VOLUME V, CHAPTER 7
How the Law Treats an Ordinary Person
The previous chapter closed Part Two and set the highest position law has, self-discipline. But most groups have not yet reached the state of no litigation, and law is running every single day. Part Three comes back to the most concrete ground of all, where law lands on one living, ordinary person, in its three most basic things, proof, guilt, and the tension between a dead law and a living person. The two parts before this discussed what law is and how it runs, still reasoning in midair. This part stays close to one ordinary person's actual circumstance. This chapter is the first chapter of Part Three, and it starts from the most basic act of all, when a person faces power, who has to produce the evidence first.
The first section is the direction of proof, the most basic line in how the law treats an ordinary person. Sima Qian says heaven's way plays no favorites, it is always with the good, and then turns and asks why Bo Yi and Shu Qi starved to death on Mount Shouyang while the bandit Zhi died peacefully of old age. The camera then turns to today. A person goes through customs and his suitcase is stopped. Does he have to prove where his goods came from, or does customs have to produce the evidence. The same suspicion, one line's difference, and for an ordinary person, two entirely different worlds. The Book of Documents says where guilt is in doubt, lean toward the light penalty, where merit is in doubt, lean toward the generous reward, better to let an offense go unpunished than to kill an innocent man, setting the direction three thousand years ago. England's Magna Carta, Beccaria, France's Declaration of the Rights of Man, and the American Constitution only systematized presumed innocence more than two thousand years later. Speaking early is not the same as doing it thoroughly, and this section lays the order and the depth of both sides side by side. Pressing the burden of proof onto the ordinary person is exactly what Laozi calls "taking from what has too little to serve what has too much." The very same burden, placed on the shoulders of the weak, weighs far more than it does placed on the shoulders of the strong. Which way the burden of proof leans is the most direct signal of whom a law truly serves. This section sets the twentieth layer.
The second section digs into the four words, where guilt is in doubt, lean toward the light penalty. The Punishments of Lü added one more line, where there is doubt, pardon first, and continue to investigate the case to its truth. What is pardoned is the "doubt," not a true culprit let loose. The Tang Code with Commentary says for every doubtful crime, judge according to the offense charged, and settle it by redemption payment, and the Great Qing Code divided these into grades, yet all along this road hides one assumption, that guilt and innocence are already clear to begin with. Push deeper, and guilt itself is a position. King Wu of Zhou marched against Zhou, the last king of Shang, and in the eyes of the Shang loyalists he was a rebel. In the French Revolution and the American Civil War, who was guilty depended entirely on which side one stood on. Guilt was never a label stuck onto an action. It is stuck on by whoever is looking, from whatever position he stands in. Wang Yangming, judging cases, always first sought to understand the defendant's family circumstances and motive, only to see the matter from one more position. Complete trading of places does not exist, and yet it must still be pursued, because it is the only road that draws closer to heaven's way. But beneath position sits one line that does not shift with position, what you would not want done to yourself, do not do to others. A good judge is only a person capable of trading places. This section sets the twenty-first layer.
The third section returns to the plain saying, law is dead, a person is alive. A husband racing his laboring wife to the hospital in the middle of the night presses the accelerator down. Once the dead clause lands on this living circumstance, how it gets used depends entirely on that living person. Laozi says heaven's way takes from what has too much and adds to what has too little, man's way takes from what has too little to serve what has too much, and most who make law are already among those who have plenty. Guan Zhong says one must first enrich the people, when the people are rich, they are easy to govern, when the people are poor, they are hard to govern. Push the root down, and the root is insufficient output. Chen Sheng says fleeing is death, rising up is also death, and since both are death, better to die for a cause. Most of the time, when the weak break the law, it is not a matter of morality, it is the pressure of survival. From the end of Qin to the end of Ming, from England's enclosures to the French poor seizing bread, the chain is exactly the same. Zhang Shizhi says law is what the Son of Heaven shares in common with all under heaven. His being able to do it in that moment had conditions behind it. After decades of recovery under the reigns of Wen and Jing, output was relatively sufficient, and Emperor Wen himself was enlightened and restrained, and only with both conditions met could that moment happen at all. This rare exception only proves how solid the ordinary pattern truly is. Material foundation comes before law. This section sets the twenty-second layer.
Across these three sections, building from the twentieth layer to the twenty-second, this chapter feels out the whole ground of how law treats an ordinary person, from proof to guilt, digging all the way down to output as the deepest root. The stance of this chapter has not changed. It only lays out positions and leaves the judgment to the reader. The next chapter starts from a grand phrase written into the opening of more than one constitution, "we the people," and looks at whom it actually left standing outside.
Contents
Section One. The Direction of Proof, the Most Basic Line in How the Law Treats an Ordinary Person.
Section Three. The Law Is Dead and a Person Is Alive. The Real Position of the Law.
Credit to the ancestors; the mistakes are mine: Tiger Lyon.
Section One. The Direction of Proof, the Most Basic Line in How the Law Treats an Ordinary Person.