VOLUME V, CHAPTER 4, SECTION 2
Whom the Law Is Carried To. The Real Position of Public Legal Education
The previous section established that whom law serves depends on the position of the powerholder, and on whether any restraint sits above that power. This section takes one more step forward. Once a law is made, there remains one more action, passing it on to the people it binds, an action called public legal education. It looks unremarkable, as if it were nothing more than publicizing the content of a law, but it actually decides something enormous, whether an ordinary person can use the law to protect himself at all.
One. A Law That Never Reaches the Ordinary Person Is Only a Sheet of Paper Covered in Words
If an ordinary person does not know a given law exists, does not know what rights he has, does not know how a dispute is supposed to be handled, then that law is, to him, a sheet of paper with nothing to do with him. It only becomes suddenly relevant in two situations. One, he has broken it and is being pursued. Two, he has been wronged and cannot find the law to protect him.
In a population without public legal education, both situations run against the ordinary person. In the first, he does not know he has already broken the law until he is caught, and only then scrambles to find a lawyer. In the second, he does not know the law could have protected him, and can only swallow the wrong in silence. This one action, public legal education, decides exactly this, whether an ordinary person's relationship to law is picking up the law to protect himself, or being caught by the law from behind.
Two. Han Fei Already Said Law Is Best Kept Visible
Around 250 BC, Han Fei wrote the line quoted earlier.
Law consists of statutes compiled in records, set up in government offices, and proclaimed to the common people. Han Fei, Han Feizi, Objections III.
The phrase proclaimed to the common people is, more than twenty-two hundred years ago, the plainest description there is of public legal education. Law must let the people know it. A law the people do not know does not count as law. Han Fei wrote another line.
Law is best kept as visible as possible. Statecraft is best kept out of sight. Han Fei, Han Feizi, Objections III.
The more openly law is displayed the better, the more hidden the art of governing the better. Han Fei split law and statecraft apart. Law governs the common people and must be shown so that everyone knows it. Statecraft governs officials and must stay hidden so officials cannot grasp its pattern. He was a Legalist, arguing from pure utility, and yet even by pure utility's own logic he understood one thing clearly, a tool no one it governs knows about is a tool that cannot work.
Three. A Law Kept from the Open Turns from a Restraining Tool into a Purely Punishing One
If law is not made public, the people do not know it, and cannot act according to it, so law loses its power to guide conduct and keeps only its power to punish. Once a thing keeps only the power to punish, it is no longer a rule, it has become a means of pressing people down. At that point, what the people are looking at is no longer law, it is power.
Law and power are two different things. Law is a rule laid out plainly, something anyone can follow and can predict by. Power is the hand hidden behind it, falling whenever it chooses, on whomever it chooses, with no way to know in advance. A group that hides its law and only shows it when it wants to punish someone is no longer holding law in its hands, it is holding power dressed in law's clothing.
The most wounding part of this layer is that an ordinary person has no way of knowing beforehand whether he has crossed a line, and can only live carrying that worry, only learning there was ever such a line once the punishment lands. Living inside that kind of uncertainty leaves a person with no ground to stand on at all.
Four. Shang Yang Moving a Pole to Build Trust Was the Earliest Systematic Act of Public Legal Education
Around 350 BC, once Shang Yang had finished remaking the laws of Qin, he did something specific. He had the new laws carved into wooden boards and set up at the capital's gate for everyone to see, and then set up a pole with a reward attached, and made good on the reward exactly as promised, so the people would believe this law was real, was public, and could be relied upon. This became known as moving the pole to build trust.
Shang Yang's law has drawn opinion split in two directions across the ages. But this one action, building trust with the people, stands as one of the earliest systematic practices of public legal education in the Chinese record. It points to a hard truth. For law to actually work, writing it down is not enough. The people must know it, believe it, and be able to predict by it, and missing any one of these three, law never lands on the ground.
Five. But Being Made Public Is Not the Same as Being Made Accessible
A legal text posted online, printed in a code book, in theory searchable by anyone, has technically met Han Fei's law is best kept visible. But if a law can only be understood by someone with formal legal training, then that being public is, to an ordinary person, public in name only, not in substance. Facing it, he still has to find someone who understands law, that is, a lawyer.
A quiet position forms right here. Law is publicly available to everyone on the surface, and usable in practice by only a few. Something meant to govern the common people ends up governing them in a way that leaves them unable to read it, so that they can only pay a professional and depend on him. Making the text public is one thing. Making it accessible enough for an ordinary person to understand and use is another, and between the two sits language, whether anyone teaches it, and whether an ordinary person has the time to learn it. A code running to thousands of clauses and packed with jargon, set in front of someone with only a few years of schooling, differs little in practice from a code never published at all. He can see the book. He cannot read his way into it.
Six. Deeper Still, This Soil Grows an Entire Industry with a Motive to Keep Things Complicated
In a population without public legal education, an enormous sector grows up, lawyers, legal consulting, legal services, legal insurance, legal training. Everyone inside this sector shares one interest, keeping law complicated, keeping ordinary people unable to understand it. Because the moment law becomes simple enough for everyone to understand, this sector shrinks.
This is not some conspiracy plotted behind the scenes, it is the direction structure grows in on its own. A person who has found position, income, and status in this line of work does not need to intend harm to anyone, he only needs to act in his own interest. Praising the complexity of law, keeping the bar of legal expertise high, backing the professionalization of jargon, opposing any oversimplification of law, each of these actions looks entirely proper on its own, each one flying the banner of protecting the rigor of law, and yet together they pin law firmly in the position of never truly becoming accessible. This is the most hidden form of vested interest, not a deliberate harm to anyone, only everyone chasing his own benefit, which together injures the ordinary person.
Seeing this layer clearly is not meant to turn a person against lawyers, most lawyers are simply making a living inside their own position. What needs to be seen clearly is the structure, the fact that it has turned law's difficulty into a steady business, a business whose cost lands, in the end, on the very people least able to afford it.
Seven. Confucius Pushed Public Legal Education to Its Highest Layer
Around 500 BC, Confucius spoke a line quoted in the first chapter, worth looking at again from a different angle here.
Guide them with policy and keep them uniform with punishment, and the people will avoid wrongdoing but have no sense of shame. Guide them with virtue and keep them uniform with ritual, and the people will have a sense of shame and will correct themselves. Confucius, The Analects, Governing.
Guiding with decree and restraining with punishment can keep the people from breaking the law, but leaves no shame in their hearts, only fear of punishment. Guiding with virtue and restraining with ritual gives the people a sense of shame, and they correct themselves on their own. Applied to public legal education, the deepest form of it is not merely letting the people know which clauses exist, it is helping the people understand the reasoning behind the clauses, understand why a thing must not be done.
This deepest layer of public legal education restores law from clause back into reasoning, moving an ordinary person from passive obedience to active agreement. It is a very high ideal, and few populations in history have achieved it, yet Confucius laid it out twenty-five hundred years ago as the highest realm public legal education could reach. This book, from beginning to end, speaking of law in plain language, is ultimately reaching toward that same layer, trying to land the reasoning inside the heart of someone who has never studied law.
Eight. Turn the Camera to Today, and Two Kinds of Ordinary People Live in Entirely Different Circumstances
In some populations, children receive legal education from an early age, and by adulthood an ordinary person already knows what a contract is, what a tort is, what criminal liability is, what civil liability is. Facing an ordinary dispute, he can handle most of it himself, needing a lawyer only for a genuinely complicated case. In this position, law is an ordinary person's helper, not something standing against him.
In other populations, an ordinary person has never received any systematic legal education, and the moment a dispute arises, his first reaction is not knowing what to do, leaving him no choice but to hire a lawyer. Hiring a lawyer costs money. A simple contract dispute might run several thousand dollars, a complicated lawsuit tens or hundreds of thousands. Someone who cannot afford it has no choice but to give up on legal relief and swallow the justice he was owed. In this position, law is an ordinary person's expensive tool, one he may not even be able to afford. The same word, law, lands on two kinds of ordinary people, and becomes, for one, an umbrella, and for the other, a wall. No judgment is made here about which population is which. The two situations are simply laid side by side.
It is worth noting that how well a population carries out public legal education is often not a matter of how much money it has, it is a matter of whether it is willing to explain law in words an ordinary person can understand. Willing, and law becomes a public instrument. Unwilling, and however much law there is, it remains the private instrument of a few.
Nine. But the Other Side of This Must Be Stated Honestly Too, Doing Public Legal Education Well Is Not Automatically a Good Thing
If the law a lawmaker writes was never for the people to begin with, then no matter how well it is publicized, all that is accomplished is making the people see, more clearly than ever, that this law was never for me, which only adds a deeper layer of despair. If the law carries a bias, public legal education is simply passing that bias on to everyone, word for word, so that everyone walks in the direction of that bias, and the bias accumulates all the faster.
Public legal education is itself neutral, it is an extension of the law. When law serves the people, public legal education extends that service. When law does not serve the people, public legal education extends that failure. So whether public legal education is meaningful, whether it is good or bad, is not decided by the action of public legal education itself, it is decided by whom the law it extends was made for in the first place.
Ten. The Position Set by This Section
This section sets the twelfth layer. Whom a law reaches decides whether that law can actually take effect, but reaching more people does not automatically mean the law serves the people, that still depends on whom the law itself was made for in the first place. Legislating is upstream, public legal education is downstream. Get the legislating right, and the wider the public legal education spreads the better. Get the legislating wrong, and the wider public legal education spreads, the deeper that wrongness soaks in. Public legal education and legislating must be looked at together, looking at either one alone will get it wrong.
Around 700 BC, Guan Zhong's line, in the way of governing a state, one must first enrich the people, was quoted earlier. Connect it here to public legal education. When people are prosperous, they have the time, the energy, and the spirit to learn about public affairs, including law. When people are poor, every day is spent scrambling for survival, and no public legal education policy, however good, has room to be absorbed. So the true foundation of public legal education is not publicity, it is a prosperous people. A prosperous population will work out the law for itself even without any formal public legal education program. Han Fei spoke of keeping law visible, Shang Yang built trust by moving a pole, Confucius spoke of guiding with virtue and restraining with ritual, Guan Zhong spoke of enriching the people first. The ancestors all spoke to the position of public legal education, and all saw that it was never an isolated matter, it has to be viewed together with legislating, with culture, and with economy.
The next section turns to lawyers and procedure, mastering the clauses is not the same as understanding the law. Public legal education passes law on to the people, but when an ordinary person truly needs to protect himself in a dispute, he often still needs an intermediary, a lawyer. So is mastering the clauses of the law the same thing as understanding the law. Carry these two positions, strength and weakness, and public legal education, and walk into the next section.
Credit to the ancestors; the mistakes are mine: Tiger Lyon.
Section Three. Lawyers and Procedure. Knowing the Words Is Not Understanding the Law.