VOLUME V, CHAPTER 4, SECTION 1

VOLUME V, CHAPTER 4, SECTION 1

The Strong and the Weak, the Deepest Position in the Law

Part One set firmly what the law is, ten layers of foundation, from natural law down to how a person lives inside the net of law. But a reader who has come this far carries a knot. I understand the principle, so why is it that in the real world the law so often runs differently from the way it reads. Part Two comes to answer that, how the law runs. The first cord, and the deepest, is the strong and the weak.

Pick back up one conclusion from Part One as this part's starting point. The fourth layer set that whom the law serves is not decided by the words of the law but by the position of the people who write, enforce, and interpret it. Part One only set that layer out. It did not yet chase one line further, why the position keeps tilting to one side. That line is what this section chases. The strong and the weak is the deepest cord in the law. Everything the part sets ahead, public legal education, lawyers, vested interests, self-discipline, all hangs from this one cord. See the cord of the strong and the weak clearly and the sections that follow do not scatter.

Laozi's line is the root of the whole part. The line from the Dao De Jing, quoted twice in Part One, is not opened again here, only nailed in as the root. The Way of Heaven takes from what has more than enough and gives to what has not enough. The way of man is the reverse. It takes from what has not enough to offer up to what has more than enough. The Way of Heaven adds to what falls short. The way of man serves what has surplus. The law is a made thing, so the law carries by birth a pull toward serving the surplus. By the Way of Heaven the law should shield the weak and bind the strong. By the way of man the law mostly shields the strong and binds the weak. The tug between these two ways shows itself most plainly in the law, and it is the place this whole part keeps returning to.

Two lines set side by side, and the reader sees for himself. On the surface, the law protects the people, all are equal before the law, the law is the last line of social justice, written into every textbook, every constitution. In the chest, the law is the strong party's tool for holding down the weak, no source, passed down by the people the law wore away, one generation to the next. This section does not judge which is right. It sets both on the table and lets the reader see where the pull under the crack comes from. Half the answer was given before, look at which side the lawmaker stands on. But a deeper half is unanswered, why the lawmaker, almost without knowing it, keeps sliding toward the strong. The answer to that half hides in one word, power.

To see the pull clearly, look at one reversal between Mencius and Huang Zongxi. Around 300 BC, Mencius set the order of position plainly, the people are the most precious, the altars of the state come next, the ruler is the lightest, quoted before. This is a word of ought. But two thousand years of actual running ran nearly the whole way in reverse, the ruler foremost, the people bedded at the bottom. The gap in between is not that Mencius spoke wrong. He spoke right, and no one could hold back the force that ran the reverse. By the late Ming and early Qing, around 1660, Huang Zongxi wrote that reversal out in one stroke. In old times all under Heaven was the master and the ruler the guest, and all the ruler labored a lifetime over was for the sake of all under Heaven. Later the ruler became the master and all under Heaven the guest, and nowhere under Heaven could find its peace, all of it to keep this ruler. From Mencius' the people are the most precious to the ruler as master in Huang Zongxi's eyes, master and guest had turned all the way over.

This reversal ran not on the ruler turning bad but on the nature of power. Huang Zongxi asked it deep, why the turning over. Not that any one ruler is born bad, but that power, this thing, by its nature leans toward self-protection and self-enlargement. A person takes the highest seat, and at first perhaps truly for the sake of all under Heaven, and once the seat is firm the nature of power begins to show, and unless something real stands over its head, that enlargement cannot be blocked. Here is the line that matters most. The logic of power and the logic of the people are the most precious run the reverse. The logic of power is self-protection and self-enlargement. The logic of the people are the most precious is to lower one's own position. The two logics fight by birth. So however kind, however high-minded a power-holder, once he grips power, power itself begins to corrode his ideal, not that the person turned bad, but that the seat he stands on is, by its nature, so. This is not hard to feel. The greater the power in a person's hand, the fewer dare cross him to his face, and in time all he hears is the pleasing word, all he sees is the deferring face, and slowly he comes truly to believe all he does is right. Power need not grit its teeth and do evil. It need only keep a person from hearing dissent, and that is enough to carry him, step by step, off the heart he set out with.

So between Mencius and Huang Zongxi the difference is not morality but the structure of power. Mencius spoke the people are the most precious easily, and the rulers who truly did it can be counted on the fingers, and he had traveled far and seen many rulers and saw this long ago. But between him and Huang Zongxi the gap is not who had more virtue or more wit. It is the structure of power itself. The reasoning is hard. When power gathers into one person, or a small handful, with nothing over its head that can truly hold it, then the finest theory and the highest virtue cannot outweigh a hand that grips power. You speak your the people are the most precious, he works his self-enlargement, the theory floating in the air, the power planted on the ground. Miss this layer and you go on cursing some power-holder for not heeding advice. See it and you know the thing to change is not who to advise, but the structure that leaves power with nothing to hold it. The ancestors groped toward this road long ago. Why the dynasties set up remonstrating officials and censorates, why they said Heaven sees as the people see and Heaven hears as the people hear, all were attempts to prop a little something over power's head. When the prop held, the law leaned a little toward the people. When the prop failed or stood in name only, the law slid fast back to serving the surplus. The presence or absence of the check decides the drift of the law more than the momentary good or bad of the lawmaker.

So there comes the law's deepest drift, the words unchanged, the served party changed. Whom the law serves drifts, quietly, along the position of the power-holder. From made for the people to made for the state, from made for the state to made for the ruling group, from made for the ruling group to made for the lawmaker himself. This whole slide needs no public announcement and no change to a single clause. It needs only the position of the people who write, enforce, and interpret the law to move slowly, and whom the law serves moves with them. Precisely because no clause need change, this drift is the hardest to notice and the hardest to hold to account. Comb through the whole code and you find no clause that reads, from today the law serves the strong, and yet day by day it became just that. Part One spoke of early Han's three-article code shielding the people and the fine laws after Emperor Wu scraping them, not repeated here, only its deepest stroke touched again. Xiao He's three articles barely changed, the clauses were the clauses still, and the position of the enforcers changed, and whom the law shielded and whom it bound flipped in silence. The words are dead, the hand that holds them alive, and where the hand tilts, the dead words speak. This is the law's deepest drift, and the truest source of that old saying, the law is the strong party's tool for holding down the weak.

The reader can take this ruler of drift to any law near him with some years on it. Whom was it set up for at the start, and onto whom does its enforcement land today. Match the two ends and you know how far the hand that holds it has quietly moved over these years.

Turn the lens to the West and the same pull is there. At its founding the United States meant to set the law as a binding from the bottom up, and Madison's if men were not angels was quoted before, and the framers, seeing the limits of human nature, designed a system of mutual check, and on the page this stands a level above the top down. But set out the actual running of nearly two hundred and fifty years and the government has bound the citizen with law far more often than the citizen has bound the government with law. The cause is not that the constitution was designed poorly, but that the power-holders are, likewise, the party of surplus. A person who already grips power, however he swears to bind himself, at the pinch leans by nature toward shielding the surplus. However cunningly a system is designed, it can hardly force a power-holder to truly bind himself. The word written in the document, and the behavior gathered over centuries, and the gap between, is the Wei Xunzi spoke of. This stretch, set beside the Chinese one, the same ruler for both, the judgment left to the reader, no ranking of one above the other. Read together, the two ends set out a plainer conclusion. East or West, so long as power lacks a true check over its head, the drift of the law cannot be stopped. The only difference is which structure props more, and sturdier, over power's head, and in that one the force pulling the law back is a little greater.

So this section sets an eleventh layer. The real direction the law runs is decided by the structure of power, not by the words of the law and not by the good or evil of the lawmaker alone. Power leans by birth toward self-protection and self-enlargement, so unless there is a true check over its head, the law drifts all the way toward the strong, toward the surplus, and this is near a rule, not the chance of one person or one country. To admit this rule is not to have a person resign himself. Just the reverse. See that the law by birth drifts toward the strong, and you understand that shielding the weak never happens of itself. It takes force after force, pulling back against the drift a little at a time, and let anyone loosen his grip and it slides back. Whichever side the lawmaker stands on, the law serves that side. Whichever side the enforcer stands on, the enforcement runs to that side. Whichever side the interpreter stands on, the law is read into that side's meaning. And which side these people stand on is deeply governed by whether the structure of power over their heads gives them a check. See this layer and you hold the key to every concrete running in Part Two. It does not have a person lose heart with the law. It has him move his eyes off the clause and onto the hand behind it, and onto whether there is anything over that hand's head to hold it.

The next section is whom the law is carried to, the real position of public legal education. Lawmaking is upstream. Once a law is made, there is one more act, carrying it to the people it binds, and that act is public legal education. It looks unremarkable, and it decides a great thing, whether the ordinary person actively uses the law to shield himself, or gets found by the law at his door. Let the reader carry this cord of the strong and the weak into the section that follows.

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