VOLUME V, CHAPTER 3, SECTION 2

VOLUME V, CHAPTER 3, SECTION 2

Rights Are in Nature, Not in the Law

The last section set the law back inside the great net of culture, economy, politics, and law. This section traces back a more fundamental question. The law speaks every day of protecting rights, but where does a right actually come from. Is it given by the law. The question looks simple, and the answer presses the position of the law down one more layer.

Look first at how the word right is used today. In the language of modern law, a right is nearly always tied to the law. Civil rights, statutory rights, constitutional rights, as though a thing counted as a right only once it was written into a clause, and what was not written in did not count. Follow this account and a person easily forms an impression, that a right is a gift the law bestows, and you have as much of it as the law grants. The impression comes too easily, so easily that few stop to ask, before the law existed, did a person have rights. Humankind has had written law for a few thousand years, and a person has lived on this earth far longer than that. In an age with not one written clause, a person still did not wish to be killed for no reason, still guarded his own mouthful of food, his own patch of ground to sleep on. Did these have to wait for the day someone wrote them into a clause before they counted. This impression is what the section means to loosen, because by the ancestors' position the thing runs exactly the other way.

By the ancestors' position, a right is not given by the law. It is given by nature. A living person needs to eat, to drink, to have a place out of wind and rain, not to be struck down for no reason. These are not bestowed by any clause. They are carried by a person as a person from birth. Before the law, a person already had them. The law did not make these rights. At most it does two things. One is to confirm, to write down and shield the share a person already has. The other is to violate, to seize and press down the share a person already has. In other words, the law has only two relations to a right, confirming and violating, and no third called creating. It is not the source of a right. It is the gatekeeper of a right. A gatekeeper can keep the gate faithfully, or he can steal from the store he guards, but the things inside the gate were never put there by the gatekeeper. Take the plainest thing. A person works hard and grows a field of grain, and the grain is his already, not because some clause wrote that property is protected. That the law wrote that clause is confirming. That the law changes it one day to all grain is requisitioned is violating. In both cases whom the grain originally belongs to never changed. What changed is only whether the gatekeeper keeps his post.

Laozi set the root of a right back in the Way of Heaven in one line, quoted before. The Way of Heaven takes from what has more than enough and gives to what has not enough. Its intent is evenness. Each person born into the world ought to receive a roughly even share, a share to go on living, a share not to be bullied at will. That share is given by the Way of Heaven, not by the law of the human world. As the last section said, the way of man often runs the reverse, taking from what has not enough to offer up to what has more than enough, seizing even the weak person's little. But even so tilted, the way of man cannot change one thing. The source of that share is in the Way of Heaven, not in the clause. So the root of a right is planted in natural law, in the first layer set at the start. However the law is written, it only adds branch and leaf above that root. It can shield this share, it can wound this share, but it cannot grow this share out of nothing. Hidden here is the deepest root of equal rights. The share the Way of Heaven gives each person is roughly even. No one is born owed more, no one born owed less. That the human world later parted into high and low is the tilt of the way of man, not the intent of the Way of Heaven. So the line all are equal before the law, taken only as a gift of the law, is read shallow. Its true root is in that share of the Way of Heaven, even from the start.

Mencius set this share heaviest of all. Around 300 BC, Mencius wrote the line quoted before. The people are the most precious, the altars of the state come next, the ruler is the lightest. The people are most precious not by any ruler's grace. The people are precious to begin with. To set the people above the state and the ruler is to say that the weight an ordinary person carries from birth stands higher than the machine of the state and higher than the one who holds power. The state and the law exist to shield that weight, not that weight to be handed out by the state and the law. Whoever reverses the order has taken the servant for the master. Mencius said this harder than anyone. Before King Hui of Liang and King Xuan of Qi, he never flattered the ruler as supreme, and again and again reminded them that once the people's hearts scatter, the realm cannot be kept. In his eyes the ruler and the state are tools serving that weight of the people, and a tool worn out can be changed, but that weight cannot be touched.

Reverse this layer and the cost is heavy. If a group truly believes a right is given by the law, then it has granted that whoever can change the law can take the right back at any time. Written into a clause today, you have it. Struck out tomorrow, you do not. A person's most fundamental thing hangs on someone else's pen. But if a group remembers that rights are in nature, not in the law, then even the day the law strikes some right out, the human heart knows clearly that what was struck out is not the right itself, but that the law failed to keep its post of confirming and shielding. That right still stands there in the Way of Heaven, still what each person ought to have, only for the moment not shielded. That one turn of thought is the line, when a group faces a bad law, between standing up straight and not. History has no lack of such moments. A bad law comes down and cancels with one stroke the thing some group of people ought to have, and if all believe the law says no, then no, the group can only lower its head and take it. But so long as someone still remembers that the root of that thing is in Heaven, not in the law, that bad law cannot bring the human heart to heel, and sooner or later the heart pushes it back. A clause can strike out a word. It cannot strike out the older account carried in the human heart.

For the law to call itself the source of a right is for the servant to pose as the master. Turn the lens to the West and it groped to the same layer. Around 1690, Locke spoke of natural rights, that a person's life, liberty, and property exist before government, and that government is set up to protect these, not these to be doled out by government. In 1776, the American Declaration of Independence carries that widely repeated line, of the same layer. All men are created equal. The Declaration goes on, that men are endowed by their Creator with certain unalienable rights, and that the just powers of government come from the consent of the governed. Locke and the Declaration both set the order plainly. First the share a person ought to have, then government and law, and government and law are set to keep that share, and once they turn instead to seize it, the governed have ground to take their consent back. Whether it is called endowed by the Creator, or given by the Way of Heaven as the ancestors said, the two languages point to one thing. The source of the share a person ought to have is above the law and government, not below them. East and West both groped to this layer, and what it draws near is the thing itself, with no need to rank who is first or higher.

This ruler joins straight back to the tormenting no one of the fourth volume. The fourth volume set a layer, that good governing is to torment no one, not to bear down on people minding their own honest lives. Laid over the law, tormenting no one is the law keeping its own post as gatekeeper, confirming and shielding the share each person carries from nature, and not seizing without cause what a person ought to have. Whether a law is just was given a ruler before, does it shield people. This section grinds that ruler a little sharper. Does it shield the share a person ought to have. A law that confirms and shields this share stands straight. A law that turns to seize this share, to shortchange this share, however complete its procedure, however grand its sign, has gone from gatekeeper to thief who robs the store he guards. This ruler is good because it does not read the name of the law, only where it lands. A law can call itself something ringing, against discrimination, against monopoly, social security, and if it truly lands on shielding the share ordinary people ought to have, it is tormenting no one. And another law can carry a name as neutral as you please, and land instead on keeping tight for those who already hold much the surplus they hold, and blocking the road by which the shortchanged claim their own, and it is tormenting people. The fair distribution of the fourth volume also leans on this kind of law to make good the bottom. Made good, it shields. Made to leak, or worse, made to run the other way, it seizes.

But that nature gave this share does not mean it lands in the hand of its own accord. A cool word has to be added here. The Way of Heaven gave each person a share, but the human world has the strong and the weak, and the strong end forever wants to take the weak end's share too. Precisely because the force of taking is real, a gatekeeper called the law is needed, to confirm the share and to block the taking. If the law keeps its post, the share holds. If the law fails its post, or worse abets the strong, the share does not hold. So rights are in nature is a plain truth, and for that truth to land in the human world it must still pass through a whole set of made things. Who legislates to confirm it, who takes it in the dark, what a weak person does once taken from. These are exactly what the next part opens, one section at a time. This section only sets the root firm. The root of a right is in Heaven. The work of shielding is in the human world.

So do not hear this section as some empty comfort. Rights are in nature does not mean a person can lie down and the share falls into his hand. Just the reverse. Precisely because it can be taken at any time, a person has all the more to see clearly where it comes from, so that when it is taken he knows where to claim it and on what ground. See that the root is in the Way of Heaven, and the back straightens.

So this section sets a ninth layer. Rights are in nature, not in the law. The law does not create rights. It can only confirm rights, or violate rights. This layer carries the first section's natural law is the highest position of the law down onto rights. The share a person ought to have comes from the Way of Heaven, and the law is gatekeeper, not the one who hands it out. Join this layer to the layers before. Natural law is the highest position of the law, and a right is natural law come down onto each person as his share. The law is Wei, a made thing, so it may keep this share and may wound it. One layer clasps the next, all saying one thing. Above people and the law there is still Heaven, and below the law there is still the share a person ought to have. Laozi said the Way of Heaven takes from what has more than enough and gives to what has not enough, Mencius said the people are most precious, Locke spoke of natural rights, the Declaration said all men are created equal, two thousand years, East and West, one vein, rights above the law, not below it. Hold this layer firm, and the next time you meet a law that claims to grant rights, ask one more thing, is it confirming the share a person ought to have, or under the name of granting, doing the deed of shortchanging and seizing.

The next section is the capstone of this road, the living law, how a person actually lives inside the net of law with clear eyes in a world where no one is perfect. Let the reader carry all the tools set firm in the nine layers before, into the section that follows.

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