VOLUME V, CHAPTER 2, SECTION 2
The Law Cannot Govern the Many
The last section said the law must cross human feeling, because people are alive. But can human feeling settle everything. It cannot. This section takes up the saying the law cannot govern the many. When the number of people breaking a law runs past the law's power to enforce, the law can no longer govern them. This is not a failure of the law. It is the natural boundary of the law as a made tool. Like the law is never far from human feeling, this is one more household saying the mainstream of law looks down on and ordinary people all understand.
Two prejudices sit on this old saying too. The law cannot govern the many the common people have said for centuries, and it too has no earliest source, risen slowly out of actual living. But it sounds more like a helpless truth. The law cannot govern the majority, and when the majority together break some rule, the law cannot be carried out. The mainstream of law dislikes this saying likewise. The core of modern law is the universality of the law, that the law should treat all alike, whether the one who broke it is one person or a thousand, all pursued by the same standard, or the law loses its authority. This section carries the saying out of two prejudices. The first reads the law cannot govern the many as a failure of the law, as though it were a defect that should not exist and must be overcome. The second confuses the many with the masses. The many here is not the people, the masses. It is the many who break the law, and the two are wholly different positions. Set both prejudices down and the saying's own position comes clear at once. It speaks not a word of defeat but of an objective boundary.
The law cannot govern the many states an objective fact. Enforcement has a ceiling. The number of enforcers is limited, the courts have a limited capacity to hear cases, prisons have a limited number of beds, and the police, the judges, the lawyers, all these positions added together can handle a number of cases that has a ceiling. Take the plainest everyday thing. One intersection, a few traffic officers, ordinarily more than enough to manage the few who run the light. But let a thousand run it together at rush hour, and a few officers cannot even block them, let alone write a ticket for each. The law, in that moment, cannot move, not because it is written wrong but because the hands have reached their end. Enlarge that scene to a city, to a state, and the reasoning is exactly the same. Once the number breaking a law runs past that figure, the machine of law cannot turn. This is not a failure of the law. It is the natural boundary of the law as Wei. A tool has a ceiling on its capacity, and past the ceiling the tool cannot be used.
This layer is the same the world over, ancient and modern. However mighty the state machine, the number of people it can pursue at once has an end, and that end is the invisible wall of the law cannot govern the many. On this side of the wall the law can pursue. On the far side the law can only stare.
Laozi saw through it long ago, that the more laws there are, the more lawbreakers it conjures out of thin air. Around 500 BC, Laozi wrote the line quoted before. The more laws are put on display, the more thieves there are. The more laws, the finer, the stricter, the more thieves. Why. Because the more laws, the wider the range of breaking the law grows. What was not a breach becomes one the moment a law is added. Where out of ten thousand there was one who broke the law, add a law and it may become a hundred, add another and it may become a thousand. Take a plain example. A roadside stall has stood for decades and no one called it illegal, and one day a law is added, unlicensed stalls are illegal. By the next morning, a peddler who kept the law for decades is turned, all at once, into a lawbreaker. The stall is the same stall, the person the same person, the deed the same deed. What changed is one law added over his head. The number of lawbreakers did not rise because anyone turned bad. It was named into being by a single stroke of new law. The denser the laws, the more lawbreakers conjured out of nothing, and past a certain number the law cannot govern them. This is a necessity at the level of arithmetic, not a change of anyone's heart. The one who sets laws often believes that one more law means one less measure of disorder, but reckoned to the end, one more law often only marks out one more batch of lawbreakers, and the deeds that truly harm people are not thereby one fewer.
Confucius answered with fewer disputes, not more law. Around 500 BC, Confucius said another line, quoted before. In hearing lawsuits I am no different from anyone else, but what I truly want is a world where there are no lawsuits at all. Confucius understood the natural boundary of the law, so what he wanted was not more and better law, but fewer disputes. Where disputes do not arise, the law need not be moved. Laozi and Confucius are wholly of one mind here. Both saw through it. The law is a tool, a tool has a boundary, and the highest state is not to make the tool larger but to have the group live in a position where the tool need not be moved.
The end of Qin is the sample that shows the law cannot govern the many most clearly. Around 100 BC, Sima Qian wrote a passage that put it most sharply. All under Heaven had suffered under Qin for a long time. Chen Sheng and Wu Guang led nine hundred garrison conscripts toward the frontier, and on the road heavy rain blocked the way, and by Qin law to be late meant beheading. Go on, and being late meant death. Do not go, and it was also death. Sima Qian set down what Chen Sheng said to Wu Guang. Now flight is death and raising a great cause is death, and since both are death, may we die for the state. Flight is death, rising is death, either way is death, better to die for a great cause. These nine hundred rose on a single word, and within months all under Heaven answered, and the Qin dynasty fell fast.
Why did it happen. Because Qin law was strict, dense, minute, quick to snare a whole household in collective guilt. Qin law had been meant to turn weak Qin into a strong power, and it did, and Qin unified all under Heaven. But after unifying, Qin law was not adjusted. It went on using the severe law that had governed a weak state to govern a unified world. The result was that people who had not broken the law were turned by new law into lawbreakers, and people who had broken it little were turned by severe law into breaking it much, and by the reign of the Second Emperor the lawbreakers were already so many the law could not govern them. Chen Sheng and Wu Guang only struck the match. The powder Qin law had piled up itself. Sima Qian does not comment. He sets the passage out and lets the reader see for himself that the law has its natural boundary, and once the lawmaker pushes past that boundary, what falls is not the law but the whole regime.
The end of nearly every dynasty ran almost the same play. Qin is the plainest sample of this position, but not the only one. The end of Sui, of Tang, of Yuan, of Ming, of Qing, each time all under Heaven had suffered so-and-so for a long time, and behind it followed an eruption of the law cannot govern the many. The road at each dynasty's end was nearly identical. First the laws grew denser year by year, the taxes and levies heavier year by year, and the once law-abiding farmer was driven by one new rule after another to the wrong side of the law. To keep the law was to fail to live, to break it was a grave crime, and countless people were pressed into the corner where either way is death. At that point no number of officials and no severity of punishment could hold it down, because what had to be held down was no longer a few thieves but the greater part of all under Heaven. Behind every change of dynasty stands the same rule, not that the new master is wiser than the old, but that the old master pushed the law past its boundary. To read the rise and fall of the dynasties only as the turning of Heaven's mandate, as a fate run out, is to miss this most solid rule. What truly topples a dynasty is often not the outer enemy but its own laws, densened year by year, that pressed too many law-abiding people into people with no road left.
Huang Zongxi set the lawmaker's eye straight in one line. Around 1660, in the late Ming and early Qing, Huang Zongxi wrote it. Whether all under Heaven is at peace or in disorder lies not in the rise and fall of one surname, but in the joy or grief of the myriad people. Lay this over the law cannot govern the many. If the lawmaker cares only whether my law can be carried out, what he sees is the trouble called the law cannot govern the many. If what he cares about is the joy or grief of the myriad people, what he sees is why so many people are living on the wrong side of the law, and he goes to adjust the root that put them in that position. Adjusting the root may be cutting taxes, may be amending the law, may be changing the way of enforcing, may be admitting that some class of breach should never have been a breach at all. But it is never to use a severer law to press more people down, for that only pushes the law cannot govern the many toward its eruption. Huang Zongxi watched the Ming collapse and the Qing rise, and his deepest observation of the law is one vein with Laozi, Confucius, and Sima Qian.
Turn the lens to the West and American Prohibition is a complete sample. Around 1920, the United States enacted its famous Prohibition. In 1919 the Eighteenth Amendment passed, banning the making, selling, and transporting of liquor nationwide. The lawmakers' intent was good, to cut the domestic violence, crime, and poverty that heavy drinking caused. But in the actual running, ordinary people went on drinking in secret, bootleggers spread across the country, gangs grew great on the trade, police and local officials took bribes in bulk, and the courts filled to bursting. By 1933 the United States had to pass the Twenty-First Amendment and repeal Prohibition. That law ran thirteen years, and the result was to push lawbreaking to nearly the whole of society, the gangs grown large, the police corrupt, and in the end the lawmakers themselves pulled it back. This is the Western version of the law cannot govern the many, and in structure wholly like the end of Qin. Laozi's the more laws are put on display, the more thieves there are, spoken twenty-five hundred years ago, got a complete confirmation in twentieth-century America. Qin set it out this way, America set it out this way too, the same ruler, the reader sees for himself, no need to rank which above which.
So this section sets a sixth layer. The law has its natural boundary, and past the boundary it is not a failure of the law but a failure of the lawmaker. The lawmaker's duty is not to make the law as much and as strict as possible, but to keep the law inside the boundary where it can run. A group in which most people live on the wrong side of the law cannot be governed by law. It can only be governed by adjusting the root that put them in that position. Knowing the boundary of the law is the lawmaker's deepest wisdom. Not knowing it, weaving the net tighter and piling the punishment heavier, is to push the law with his own hands toward the day it cannot govern the many.
What is it to know the boundary. Put plainly, one thing. Before setting a law, weigh first how many people this law will push to the wrong side. If it touches only the very few who truly harm others, the law stands firm. If, the moment it is set, half the people turn into lawbreakers, then this law is not governing disorder, it is making disorder, and best to pull back before it is too late. Laozi said the more laws are put on display, the more thieves there are, Confucius said what I want is no lawsuits at all, Sima Qian said all under Heaven had suffered under Qin for a long time, Huang Zongxi said the joy or grief of the myriad people, the people said the law cannot govern the many, two thousand years, one vein, only the wording different. This section does not encourage the law cannot govern the many, nor criticize excess in lawmaking. It has the reader see clearly the natural boundary of the law as a made tool. The next time you read a new law, see for yourself, how many people will it touch, how many of them will be pushed to the wrong side, and pushed to the end, will it run into that wall, the law cannot govern the many.
Credit to the ancestors; the mistakes are mine: Tiger Lyon.