VOLUME V, CHAPTER 4
The Strong and the Weak, Public Legal Education, and Lawyers. Three Positions Where Law Runs
Part One finished with what law is, and laid the ten layers of foundation in full. The last chapter set law back into the large net of the four institutions, then came down to how a person lives with clear eyes inside the net of law, and Part One closed there. But a reader likely still carries a nagging knot. The principles all make sense, so why does law, once it runs in real life, so often go differently from what is written? Part Two is about how law runs. This chapter is the head of Part Two. It sets out the three positions an ordinary person runs into first once law starts turning: strength and weakness, public legal education, and lawyers. Part One took law apart to see it clearly. From this chapter on, we look at how it actually moves once it comes alive, and toward whom.
The first section is about the strong and the weak, the deepest position in the law. This section chases Part One's conclusion one sentence further. Whom the law serves is decided by position, but why does position always lean toward one side? The actual direction law runs is not decided by its text. It is decided by the structure of power. Laozi says heaven's way takes from what has too much and adds to what has too little, man's way is not so, it takes from what has too little to serve what has too much, and law is born carrying this pull. Mencius says the people are the most valuable, the altars of state come next, the ruler is the least important, yet two thousand years of actual practice ran the other way. Huang Zongxi says, in ancient times the realm was the master and the ruler was the guest, today the ruler is the master and the realm is the guest, and one line writes this whole reversal down. The reversal did not run on rulers turning bad. The more power a person holds, the fewer people dare contradict him to his face, and over time he truly comes to believe everything he does is right. Power is born tending toward self-expansion, and wherever no real restraint sits above it, law drifts all the way toward the strong. This sets the eleventh layer.
The second section is about public legal education. Once a law is made, it still has to be passed on to the people it binds. This section starts from an ordinary person who does not know a given law exists. Law only suddenly becomes relevant to him in two situations: he has broken it himself and is being pursued, or he has been wronged and cannot find the law to protect him. Han Fei says law is best kept as visible as possible, statecraft is best kept out of sight: law must be made public for the people to know. Shang Yang moving a pole to build trust was the earliest systematic act of public legal education. A law that never reaches people, or reaches them in a form they cannot read, turns from a restraining tool into a purely punishing one, and becomes the private instrument of a few. But being made public is not the same as being made accessible. A law that only someone with legal training can understand is, to an ordinary person, public in name only, and he has no choice but to pay to depend on a lawyer. Confucius says, guide them with virtue and keep them uniform with ritual, and the people will have a sense of shame and will correct themselves, and that is the highest realm of public legal education. The deepest public legal education restores law from clause back into reasoning, so a person understands why a thing must not be done. But passing it on widely is not the same as serving the people either. Public legal education is an extension of legislating. Only when legislating is for the people is public legal education for the people. If legislating is biased, public legal education only lets the bias soak in deeper. This sets the twelfth layer.
The third section is about lawyers and procedure. Mastering the clauses is not the same as understanding the law. Zhuangzi says catch the fish and forget the trap, grasp the meaning and forget the words, separating the tool from the purpose: law is the tool, justice is the purpose. A fish trap is a bamboo device for catching fish, and once the fish is caught the trap can be set aside, yet people easily cling to the tool. Honestly speaking, most lawyers master clauses plus procedure, not justice. This is not the lawyer's fault. The whole training of codes, bar exams and law firms turns a person into a procedure expert. Sima Qian writes of Zhang Tang, Zhao Yu and Du Zhou, who mastered the clauses and also mastered using the clauses to work people over. The skill carries no good or evil. The good or evil sits in the heart that wields it. Confucius says fine words and an ingratiating manner are seldom found alongside humaneness, and it fits a lawyer's signature skill remarkably well. Mastering is mastering a tool, understanding is grasping a purpose. Do not mistake having hired a lawyer for having secured justice. This sets the thirteenth layer.
These three sections build from the eleventh layer to the thirteenth, and set out clearly the three positions an ordinary person runs into first as law runs. What this chapter sets firm is that law is born drifting toward the strong, and sheltering the weak never happens automatically. It takes force after force pulling back against that drift. Walk through this chapter, and looking at any lawsuit or any act of enforcement around you, a reader can ask which side the hand behind it stands on, and whether anything sits above it holding it in check. The next chapter goes one step further toward the source, and asks where the lawmaker comes from, how he comes to sit in that seat, which is exactly what decides whom he later legislates for. The stance of this chapter still has not changed: it lays out positions, draws no conclusion, and leaves the judgment to the reader.
Contents
Section One. The Strong and the Weak, the Deepest Position in the Law.
Section Two. Whom the Law Is Carried To. The Real Position of Public Legal Education.
Section Three. Lawyers and Procedure. Knowing the Words Is Not Understanding the Law.
Credit to the ancestors; the mistakes are mine: Tiger Lyon.
Section One. The Strong and the Weak, the Deepest Position in the Law.