VOLUME V, CHAPTER 2, SECTION 3

VOLUME V, CHAPTER 2, SECTION 3

No One Is Without Fault, and So the Law Is Never Perfect

The last section spoke of the law cannot govern the many. But why is there such a boundary, where does the root lie. This section digs to the deepest place. The deepest base of the law is not a system, not a procedure. It is people. The one who writes the law is without perfection, the one who enforces it is without perfection, the one who judges is without perfection, the one who keeps it is without perfection too. Because people are not perfect, the law is never perfect. This is not pessimism. It is clear sight, the deepest base along this whole road.

This plainest saying holds the deepest base. No one is without fault the common people have said for a thousand years, so simple it seems to weigh nothing. A parent soothes a child with it, friends comfort one another with it, a person consoles himself with it after a failure, and heard so often it has been ground into a bowl of warm broth. Yet this saying is exactly where the last several sections come to rest. Every layer set before this, natural law, Wei, whom the law serves, the law must cross human feeling, the law has a natural boundary, each one stands on the position of the person. The one who writes the law is a person, the one who enforces it is a person, the one who judges is a person, the one who keeps it is a person, and a person is without perfection. Carry this broth off the dinner table back into the law and it turns heavy at once, heavy enough to press on the hand. The plainer the saying, the more easily it is heard and forgotten, and yet it is exactly this one that holds up the weight of the dozen chapters to come.

The mainstream of law hides one assumption, that the law can be made better and better. Open a law textbook and the discussion is how to perfect the law, how to prevent judicial corruption, how to raise the efficiency of enforcement, how to build the authority of the law. Under all of it hides the same assumption, that the legal system can be made better and better, that by the design of systems, by mechanisms of oversight, by professional training, it can finally near a state of good working order. But the ancestors saw clearly that this very assumption is the problem. Because however the system is designed, however the oversight is tightened, however professional the training, at the last the one who acts is a person, and this link, the person, cannot be perfected to the point of no deviation. A machine can be calibrated to zero error. A person cannot. So long as there is a person in the link, the error cannot be scrubbed clean, and this is not any one person's fault, it is the very grain of the material called a person.

Look at Xunzi's line once more from another angle. Around 300 BC, Xunzi wrote the line quoted before. Human nature is bad, and what is good in a person is Wei. Xunzi is not saying people are all bad. He is saying human nature carries self-interest, a love of contention, and partiality, and that this is natural, not taught, and that good is the Wei made through education, rite, and cultivation. Lay this over the law and a whole row of positions comes clear. The lawmaker is a person, with self-interest in his nature, and in making law he will, knowingly or not, put his own side's interest in. The enforcer is a person, with partiality in his nature, and in enforcing he will be a little softer on the familiar and a little harder on the stranger. The judge is a person, with limit in his nature, and can only judge by the facts before his eyes, and the facts before his eyes may be incomplete. The keeper is a person, with a taste for the lucky chance in his nature, and thinks in his heart, no one saw this time, it should be fine. Every layer is a person, and every layer can tilt. This is no one is without fault landing concretely in the law, not an abstract broth but a thing happening truly, every second, in every particular case. These four tilts need not be deliberate evil. Most are unknowing, and being unknowing, harder to guard against.

Confucius and Mencius set themselves very low. Around 500 BC, Confucius said a line often passed over. How fortunate I am. If I have a fault, others are sure to know it. Confucius, honored for several thousand years as the greatest teacher of the Chinese world, describes himself as one who also has faults, only that when he does, others are sure to see them. He did not set himself up as a perfect man. Around 300 BC, Mencius wrote another line. The gentleman of old, having a fault, changed it. The gentleman of today, having a fault, goes on with it. Mencius is not saying the gentleman has no fault. He grants the gentleman faults too, and only sorts gentlemen into two kinds, the one who corrects the fault and the one who does not. Two of the highest sages of the Chinese world, neither assuming himself or anyone else to be perfect. People all have faults. The difference lies only in whether someone points it out, and whether one is willing to change.

Laozi answered this layer most deeply in one line. Around 500 BC, Laozi said a plainer line. To know others is wisdom, to know oneself is clarity. To see others clearly is wisdom. To see oneself clearly is clarity. Those three words, to know oneself is clarity, are the Chinese world's deepest answer to no one is without fault. Only the one who sees his own imperfection truly understands. The one who cannot, however clever, is only wise, not clear. The highest state of the lawmaker is not to make the law most complete but to know he is not perfect. The highest state of the enforcer is not to enforce every clause most strictly but to know he has partiality. The highest state of the judge is not to judge fastest and most decisively but to know the facts he sees may be incomplete. These people, who know they are not perfect, make law, enforce law, and judge cases nearer natural law than those who think themselves perfect. And there is a reverse truth here. The more a person thinks himself perfect, the heavier his hand tends to be, because he does not feel he could be wrong, and so leaves no door for correction.

Sima Qian's way was to set each person's merit and fault out together. Around 100 BC, in his records, Sima Qian made this layer into the plainest practice of a thousand years. In writing every figure, he wrote their faults. Of Confucius, the failure of his travels among the states, the awkwardness of the lords who would not take him in. Of Liu Bang, his street-corner coarseness, his suspicion of his own meritorious officials. Of Emperor Wu of Han, his love of grand undertakings, his drain on the people, the regret of his late edict. Of Xiao He, his merit, and also his buying of land to dirty his own name and so keep himself safe. Of Han Xin, his military genius, and also his political naivety. Of Shang Yang, the merit of his reform, and also the death by which he was torn apart. Sima Qian does not comment. He sets each person's merit and fault out together. Not one is a perfect man. Every one has merit and fault, light and dark. Read his records through and a reader understands of himself, there is no perfect man in the world, but there are people who know they are not perfect and still do the work, and people who think themselves perfect and do harm. The difference between these two is the true watershed of history. A judge who knows he may see wrong leaves three parts of room in his brush. A judge sure he never sees wrong will not hear a word from anyone even when he has erred. The difference is not in ability. It is in that one measure of knowing oneself.

Wang Yangming named the deepest root of the abuse of law in one line. Around 1500, leading troops against bandits, Wang Yangming wrote it. To break the bandits in the mountains is easy. To break the bandit in the heart is hard. The bandit in the mountains is easy to break. The bandit in the heart is hard. Lay this over the law. The outer breach is easy to investigate, catch, and judge. The inner one, that heart which thinks itself perfect, cannot be investigated, caught, or judged, and it is exactly the true root of all abuse of law. If the lawmaker thinks himself perfect, the law he makes runs too strict, too fine, taking everyone for a potential lawbreaker. If the enforcer thinks himself perfect, the enforcement runs too fierce, too quick, turning every act of enforcement into a disaster for the other side. If the judge thinks himself perfect, the judging runs too fast, too arbitrary, wrong cases judged without his even knowing. The deepest layer of Wei in the whole legal system is not the tilt of the clause but that position in the hearts of the ones who make, enforce, and judge, the position of thinking oneself perfect. To break the fault in the law is easy. To break the bandit in the heart that thinks itself perfect is hard.

Turn the lens to the West and you run into the same cycle. Around 1788, Madison, in the writings of the federalists, set this layer down clearly. If men were angels, no government would be necessary. Madison goes on, precisely because men are not angels, government is necessary, and at the same time the government itself must be bound. He is not saying government is a necessary evil. He is saying people are all imperfect, so we both need government and need to bind it. This layer is one vein with what the Chinese ancestors saw, two languages, one thing. But once this layer is set, walking on you run into a cycle. The framers admit people are imperfect and so design a system of mutual check. But the ones running that system are, again, people, without perfection, and over several hundred years the force of the check is slowly worn dull and the tilt slowly gathers. This is no one nation's private ailment. No system escapes it. China across the dynasties set up remonstrating officials, censorates, rules of avoidance, and these too were run by people, and were worn dull by people all the same. Admit no one is without fault, and set up a system to bind it. The ones who set up the system are people too, and the system is imperfect too. The ones running it are still people, and the running tilts again. Tilted, set up a new system. The ones who set up the new system are still people. This cycle has no end point. No one should count on any one system settling it once and for all.

So this section sets a seventh layer. The deepest base of the law is that no one is without fault. The one who writes the law is without perfection, so lawmaking is never perfect. The one who enforces is without perfection, so enforcement always has its tilt. The one who judges is without perfection, so the verdict may always be wrong. The one who keeps the law is without perfection, so obedience always has its lucky chance. From the highest constitution to the finest tip of enforcement, every link is a person, and every link can tilt. To admit this layer is not pessimism, it is clear sight. Not to admit it is not optimism, it is blindness. Clear-eyed lawmaking is made with restraint, with room left, easy to adjust later. Blind lawmaking is made tight, no room left, its own imperfection set in as absolute truth. Clear-eyed law can pass down a thousand or two thousand years. Blind law often collapses within decades. Confucius said how fortunate I am, if I have a fault others are sure to know it, Mencius said the gentleman of old, having a fault, changed it, Xunzi said human nature is bad and its good is Wei, Laozi said to know oneself is clarity, Sima Qian wrote out every person's merit and fault, Wang Yangming said the bandit in the heart is hard to break, Madison said if men were not angels, two thousand years, East and West, one vein.

Now set the whole row of bases together. The highest position of the law is natural law. The law is Wei, a made thing. Whom the law serves is decided by the position of people. The law must cross human feeling, and human feeling is Wei too. The law has a natural boundary, the law cannot govern the many. The deepest base of the law is that no one is without fault. These layers, stacked from the highest to the deepest, the first to the seventh, close into one whole net. Not one layer can stand alone. Only the six sections and seven layers together let a person see clearly what the law actually is. This section is not to have the reader turn pessimist, nor to give up on the law. It is to have him look at the law with clear eyes. The next time you read a law, see for yourself, do the one who made it, the one who enforces it, the one who judges the cases under it, know in their hearts that they are not perfect. See that and you understand which laws are steady and which are not.

The next section joins this net into the larger net of the whole book, the four institutions of culture, economy, politics, and law holding one another up. The law is never off by itself. It runs together with the other three institutions. Let the reader carry this whole set of tools, natural law, Wei, whom the law serves, human feeling, boundary, and no one without fault, into the section that follows.

Credit to the ancestors; the mistakes are mine: Tiger Lyon.