VOLUME V, CHAPTER 4, SECTION 2
Whom the Law Is Carried To. The Real Position of Public Legal Education
The last section set firmly that whom the law serves is decided by the position of the power-holder and by whether there is a check over power's head. This section walks one step down. Once a law is made, there is one more act, carrying it to the people it will bind, and that act is public legal education. It looks unremarkable, as if it were no more than announcing the content of a law, and in fact it decides a great thing, whether the ordinary person can shield himself with the law.
If the law does not reach the ordinary person's hand, it is only a sheet of paper full of words. If an ordinary person does not know which law exists, does not know what rights he has, does not know how a dispute should be handled, then the law, to him, is a sheet of paper with nothing to do with him. The law turns suddenly relevant to such a person in only two cases. One is that he himself broke a law and is pursued. The other is that he was wronged by someone and can find no law to shield him. Both cases, in a group with no public legal education, run against the ordinary person. In the first, he does not know he has already broken a law, until he is caught, and scrambles to hire a lawyer. In the second, he does not know the law could have shielded him, and can only swallow the loss in silence. The act of public legal education decides exactly this relation between the ordinary person and the law, whether he actively picks the law up to shield himself, or gets found by the law at his door.
Han Fei said long ago, nothing is better than making the law plain to see. Around 250 BC, Han Fei wrote the line in his book, quoted before. The law is what is drawn up in the registers, set in the offices, and proclaimed to the people. Those words, proclaimed to the people, are the plainest description of public legal education from more than twenty-two hundred years ago. The law must be made known to the people. A law the people do not know is no law. Han Fei wrote another line. Nothing is better than making the law plain to see, and nothing better than keeping the arts of rule from being seen. The law, the more public the better. The arts of governing, the more hidden the better. Han Fei splits the law from the arts. The law governs the people and must be shown out for all to know. The arts govern the officials and must be hidden so the officials cannot read the pattern. He is a Legalist, speaking a theory of tools, and even in a theory of tools he sees one thing clearly. A tool the ones it governs cannot know is a tool that cannot be used.
A law not made public turns from a binding tool into a pure tool of punishment. If the law is not public and the people do not know it, the people cannot act by the law, and the law loses its binding force and keeps only its punishing force. Once a thing keeps only punishment, it is no longer a rule but a means of pressing people. At that point what the people see is no longer the law but power. Law and power are two different things. The law is a rule set plainly out, one a person can walk by and count on in advance. Power is the hand behind, that falls when it says it falls, on whose head and at what moment there is no telling. A group that hides the law and shows it only when it wants to punish holds in its hand not the law but power dressed in the skin of law. The place this wounds most is that the ordinary person cannot know in advance whether he has stepped over a line, and can only live with his heart held tight, and only when the punishment falls does he learn there was such a clause. To live in that uncertainty is to have the least footing of all.
Shang Yang moving the pole to build trust was the earliest systematic public legal education. Around 350 BC, Shang Yang reformed the state of Qin, and after making the law did one thing. He carved the law on a wooden board and set it at the city gate for all the people to see, and set up a pole with a reward, and did as he said, so the people would believe the law was real, was public, could be counted on. This is the famous moving the pole to build trust. Shang Yang's law drew opposite verdicts from later ages, but that one act, building trust with the people, is among the earliest systematic practices of public legal education in the Chinese world. It marks a hard truth. For a law to truly work, writing it out is not enough. The people must know it, believe it, and be able to count on it, and short any one of these three, the law does not land.
But made public is not the same as made widespread. A legal text hung online, printed in the code, in theory readable by all, satisfies Han Fei's nothing is better than making the law plain to see. Yet if a law can be read only by those with legal training, then that public is public in name only to the ordinary person, not public in substance. Facing it, the ordinary person still has to find someone who understands the law, a lawyer. And here a position quietly forms. The law is on the surface public to all, and in fact usable only by a few. A thing meant to govern the people governs by the way of leaving the people unable to read it, so the people can only pay to lean on specialists. Text made public is one thing. Made widespread to where the ordinary person can grasp and use it is another, and between them lie language, whether anyone teaches, and whether the ordinary person has time to learn. A code of thousands of clauses in a wall of terms, set before a person with a few years of schooling, is little different from not being public at all. He can see the book. He cannot read into it.
Deeper still, a whole industry sits here with a motive to keep the law complex. In a group with no public legal education, a large block grows, lawyers, legal consulting, legal services, legal insurance, legal training. The people in this block have interests all pointing one way, that the law stay complex and the ordinary person unable to read it. Because the moment the law turns simple and everyone can read it, this block shrinks. This is no plot behind the curtain. It is the structure's own drift. A person with a position, an income, a standing in this trade need harm no one on purpose. He need only act by his own interest, and that is enough. Honor the complexity of the law, keep the threshold of the profession high, back the specializing of the terms, oppose over-simplifying the law, and each act on its own looks perfectly proper, each flying the flag of keeping the law rigorous, and together they pin the law firmly in the position of never truly reachable by the many. This is the most hidden form of vested interest, not harming people on purpose, but each pursuing his own interest, and together wounding the ordinary person. See this layer, and it is not to hate lawyers, for most lawyers too only make a living in their own position. What to see is the structure, that it made the law hard to read into a steady business, and the cost of that business lands, in the end, on the ones least able to afford it.
Confucius pushed public legal education to its highest layer. Around 500 BC, Confucius said a line quoted in the first chapter, looked at here from another angle. Lead them with government and level them with punishment, and the people will avoid it and have no shame. Lead them with virtue and level them with rite, and they will have shame and set themselves straight. Guide with decree and bind with punishment, and the people can keep from breaking the law and feel no shame, only fear of the penalty. Guide with virtue and bind with rite, and the people will have shame and right themselves of their own will. Lay this over public legal education. The deepest public legal education is not only to have the people know which clauses exist, but to have the people understand the reasoning behind the clauses, understand why a thing must not be done. This layer of public legal education carries the law from clause back to reason, and turns the ordinary person from passive obedience into active assent. This is very ideal, and few groups in history reached it, yet Confucius set it out twenty-five hundred years ago as the highest reach of public legal education. This book, telling the law in plain speech from first to last, at bottom leans toward this layer too, to land the reason in the heart of a person who never read a law.
Turn the lens to the present and the ordinary people of two kinds of groups stand in wholly different circumstances. In some groups, children have legal education from young, and the ordinary person by adulthood already knows what a contract is, what a tort is, what criminal and what civil liability are, and meeting a common dispute can handle most of it himself, needing a lawyer only for the complex case. In that position the law is the ordinary person's helper, not his opposite. In other groups, the ordinary person never had systematic legal education, and meeting a dispute his first response is not knowing what to do, and he can only hire a lawyer. Hiring a lawyer costs money, a simple contract dispute perhaps a few thousand, a complex suit tens of thousands or more. Those who cannot pay can only give up legal recourse and swallow the justice they were owed. In that position the law is the ordinary person's costly, even unaffordable, tool. The same law, landing on two kinds of ordinary people, is to one an umbrella and to the other a wall. This does not judge which group is which. It sets the two circumstances side by side. Worth marking is this. Whether a group does public legal education well is often not a matter of more money or less, but of whether it is willing to tell the law down to where the ordinary person can understand. Willing, and the law becomes a public instrument. Unwilling, and however much law there is, it stays the private instrument of a few.
But the other face has to be set out honestly too. Public legal education done well is not always a good thing. If the law the lawmaker made is itself not for the people, then however widely it is spread, it only lets the people know more clearly that this law is not for me, and adds one more layer of despair. If the law is tilted, public legal education spreads that tilt word for word to everyone, has everyone walk the tilted way, and the tilt gathers faster. Public legal education is itself neutral. It is the law's extension. Law for the people, and public legal education is the extension of for the people. Law not for the people, and public legal education is the extension of not for the people. So whether public legal education has meaning, whether it is good or bad, does not rest on the act itself. It rests on whom the law it extends was actually made for.
So this section sets a twelfth layer. Whom the law is carried to decides whether the law can truly land, and yet carried widely does not mean the law serves the people, for that still depends on whom this law itself was made for. Lawmaking is upstream, public legal education downstream. Lawmaking set right, and the wider the public legal education the better. Lawmaking tilted, and the wider the public legal education, the deeper the tilt seeps. Public legal education and lawmaking have to be seen together, and looked at from one side alone, either goes wrong. Around 700 BC, Guan Zhong's line, in every way of governing a state, one must first make the people rich, quoted before, joined here to public legal education. Rich, and the people have the time, the energy, the spirit to understand public affairs, the law among them. Poor, running each day for a full stomach, and no good public-education policy has the energy to be taken in. So the true ground of public legal education is not propaganda but the wealth of the people, and in a group where the people are rich, even without a dedicated public education, the people will go of themselves to understand the law. Han Fei said nothing is better than making the law plain to see, Shang Yang moved the pole to build trust, Confucius said lead them with virtue and level them with rite, Guan Zhong said one must first make the people rich, the ancestors all spoke of the position of public legal education, and all saw that it is never a thing off by itself, and has to be seen together with lawmaking, culture, and the economy.
The next section is lawyers and procedure, that knowing the words is not understanding the law. Public legal education carries the law to the people, and yet for an ordinary person to truly shield himself in a dispute, he often still leans on a middleman, the lawyer. So is knowing the words of the law the same thing as understanding the law. Let the reader carry these two cords, the strong and the weak, and public legal education, into the section that follows.
Credit to the ancestors; the mistakes are mine: Tiger Lyon.