VOLUME V, CHAPTER 7, SECTION 2
Lean Light When Guilt Is in Doubt. Four Words from Three Thousand Years Ago, and a Layer Deeper Than Them
The previous section set the direction of proof, and three thousand years ago the Book of Documents wrote where guilt is in doubt, lean toward the light penalty, tilting doubt toward the accused. This section walks further into that line, first seeing how deep those four words truly run, then seeing the still deeper thing pressing beneath them. Where guilt is in doubt, lean toward the light penalty assumes that guilt and innocence are already clear to begin with, and that the only question is which way to lean when in doubt. But what if guilt itself is a position.
One. First Look at the Four Words, and the Two Lines That Follow Them
Around 1100 BC, the Book of Documents, in Counsels of the Great Yu, recorded a saying of the sage-king Yu.
Where guilt is in doubt, lean toward the light penalty. Better to wrongly spare a guilty man than to wrongly kill an innocent one. Book of Documents, Counsels of the Great Yu.
Where guilt is in doubt, judge toward the lighter side, better to wrongly release the guilty than to wrongly kill the innocent. The first four words say which way doubt should lean. The two lines after them go a layer deeper, naming which direction bears the cost. Any system of justice will err, and an error can only run one of two ways, wronging the innocent or letting the guilty go, and one of the two must be chosen as the bearable cost. The ancestors chose the latter.
By the time of King Mu of the Western Zhou, the Punishments of Lü added one more line, rounding the thought out further.
Where any of the five punishments is in doubt, grant pardon, but double the fine, and continue to investigate the case to its truth. Book of Documents, Punishments of Lü.
Where there is doubt, pardon first, but this is not simply closing the case and walking away, the investigation continues, and once the truth is confirmed, the pursuit resumes just the same. The presumption of innocence in doubtful cases is often misread as meaning insufficient evidence closes the case for good. The ancestors made this clear three thousand years ago, what is pardoned is the doubt, not a true culprit let loose forever. Protecting the innocent and not letting the guilty escape were never in conflict, both were accounted for from the very start.
Two. Did Later Ages Achieve It. Partly, and With Repeated Backsliding
This line carried forward across the centuries. The Eastern Han's Nine Chapters Code had doubtful crimes redeemed by payment, and the Tang Code with Commentary put it even more plainly.
For every doubtful crime, judge according to the offense charged, and settle it by redemption payment. Tang Code with Commentary, General Principles.
Every doubtful crime is converted into a payment rather than a direct conviction. By the Qing dynasty, the Great Qing Code further divided these into grades, major doubtful cases submitted upward for imperial decision, ordinary doubtful cases settled by redemption with a reduced sentence, and minor ones released outright.
But the other side must be laid out too. Across Chinese dynastic justice, torture to extract confession, collective punishment, and informing on one's neighbors never once fully disappeared, and presumed guilt kept reappearing. This vein in the West started later, only systematizing and refining presumed innocence from the Magna Carta of 1215 through the modern era. The ancestors spoke early, but speaking is not the same as doing. The West spoke late, yet carried it out more thoroughly in procedure. The order in time is a fact, and the depth of practice is a fact, and both are simply laid side by side here, with neither side needing to be raised up or put down.
Three. Here a Pause Is Needed, an Assumption Has Been Hiding in All of This
Where guilt is in doubt, lean toward the light penalty assumes that guilt and innocence are already clear, and the only question is which way to lean when in doubt. But what if guilt and innocence themselves are not clear to begin with, what if guilt itself is a position, not an objective fact. Laying this layer out is where the water actually runs deep.
Take a few examples. Around 1046 BC, King Wu of Zhou marched against Zhou, the last king of Shang. In King Wu's eyes, Zhou was a tyrant. In the eyes of the Shang loyalists, King Wu was a rebel defying his lord. Who was guilty. In 1789, France's great upheaval, one side saw the king as beyond forgiveness, the other saw the insurgents as committing the gravest treason. Who was guilty. In the 1860s, America's civil war, the North called the South's holding of slaves a crime, the South called the North's intrusion on the rights of the states a crime. Who was guilty.
Everyone who ever took up arms carried his own sense of justice in his heart, and no one ever believed he was acting for injustice. Every action is just from the position of the one who acts it, and only becomes guilt when seen from another position. This holds true not only in the overturning of dynasties, shrink the scale down as small as you like and it still holds. A thing done, seen by the one who did it, was unavoidable. Seen by the one who bore it, it was an outrage. A word spoken, to the one who spoke it, was plain honesty. To the one who heard it, it was a public humiliation. Guilt was never a label stuck onto an action. It is stuck on by whoever is looking, from whatever position he stands in.
Four. But Does This Mean Falling Into the View That Good and Evil Are Whatever the Strong Say They Are
The victor writes history, and defines guilt too. King Wu became king, so Zhou was guilty. Had King Wu lost, he himself would have been the guilty one. Seen this way, guilt looks entirely decided by who wins and who loses. The ancestors' answer is, both yes and no.
Concrete guilt does shift with position, and this much is yes. But underneath position sits a line that does not shift with position, what you would not want done to yourself, do not do to others. Why can anyone in any position feel this line. Because it does not ask, does what you did count as guilt on my side, it asks, if this same thing landed back on you, would you be willing to bear it. King Wu, or Zhou, or either side of any dispute, if he sets himself in the other's position and asks that question honestly, the answer very often comes out the same. So guilt is a position, and this line is not. This is exactly the ancestors' balance, neither falling into good and evil being whatever the strong define, nor pretending there exists some ledger of good and evil that everyone can simply look up.
Five. The Position Set by This Section
This section sets the twenty-first layer. Guilt itself is a position, and a good judge is only a person capable of trading places. A judge's true skill is not accurately judging guilt, because guilt is a position, a stance, a product of whoever holds the power to define it, and no one can render a position accurately. A judge's true skill is being able to stand in the plaintiff's position and see, in the defendant's position and see, in the position of society and the future and see, holding several positions in his mind at once, so that the verdict he hands down comes closer to heaven's way.
Around 100 BC, Sima Qian wrote the Biographies of the Reasonable Officials, and the good officials inside it shared one trait, none of them listened to only one side. Around 1500, Wang Yangming, judging cases, always first sought to understand the defendant's family circumstances and motive, not to excuse him and not to add to his charge, only to see the matter from one more position. Trading places sounds like a judge's special skill, but it is a skill every person uses daily, and uses badly just as often. Judging the people around us, standing only in our own position, every uncomfortable thing someone else does feels like an offense aimed at us. Stand in one more position, into the circumstance that person was actually living that day, and much of what looked like guilt dissolves into simple hardship.
But the other side must be laid out too. However capable a judge is of trading places, he himself still stands in one concrete position, family background, upbringing, class, and preference all pulling at him, and complete trading of places does not exist. The ability to trade places is itself neutral too, used badly, it can just as easily excuse the strong or add extra guilt onto the weak. So there is no such thing as an absolutely correct verdict, and yet even knowing a verdict will never be perfect, trading places must still be pursued, because it is the only road that draws closer to heaven's way.
The next section turns to law is dead, a person is alive. Starting from the plainest old saying ordinary people repeat, it looks at the tension where a dead clause of law lands on a living person, and asks where that tension's root truly sits. Carry the layer that guilt is a position, and a good judge is only one who can trade places, and walk into the next section.
Credit to the ancestors; the mistakes are mine: Tiger Lyon.
Section Three. The Law Is Dead and a Person Is Alive. The Real Position of the Law.