VOLUME V, CHAPTER 4, SECTION 3
Lawyers and Procedure. Knowing the Words Is Not Understanding the Law
The previous section discussed public legal education, passing 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 what exactly does a lawyer master, and does hiring a lawyer mean hiring someone who understands the law. This section sets down one of the most hidden layers in the world of law, mastering the clauses of law and understanding the law are two different things.
One. A Line from Zhuangzi Separates the Tool from the Purpose
Around 300 BC, Zhuangzi wrote a line in the chapter External Things.
The fish trap exists for the fish, catch the fish and forget the trap. Words exist for meaning, grasp the meaning and forget the words. Zhuangzi, Zhuangzi, External Things.
A fish trap is a bamboo device for catching fish, and once the fish is caught the trap can be set aside. Words exist to carry meaning, and once the meaning is understood, the words can be forgotten. Zhuangzi laid this layer down twenty-three hundred years ago, the tool and the purpose are two different things. The tool serves the purpose, and once the purpose is reached, the tool's meaning is spent. Yet people easily cling to the tool and, clinging, forget where they meant to go in the first place.
Apply this layer to law. Law is a tool. Justice is the purpose. Law exists so that a group can move closer to justice, not for the sake of law itself. However complete the clauses grow, that only makes the tool finer, and however fine, it remains a tool, not justice itself. A person who has mastered the clauses has mastered the tool. A person who understands justice understands the purpose. The two can sit inside the same person, or they can come apart entirely. A person can recite every clause by heart and still have no idea that law exists to shelter people. A person can know only a handful of clauses and still see through, completely, what law is for. The first has mastered the tool, the second understands the purpose, and these are not the same thing.
Two. So Which Side Does a Lawyer Master
Honestly speaking, most lawyers master clauses and procedure, not justice. This is not the lawyer's fault, professional training shapes him this way. Law school teaches codes, precedents, procedural rules. The bar exam tests familiarity with procedure. Once inside a firm, the work is drafting documents by procedure, appearing in court by procedure, countering opposing counsel by procedure. The whole training turns a person into a procedure expert, not a thinker on justice.
This is exactly the wei this book keeps returning to. Mastering the clauses is not the same as understanding the law. Mastering the clauses is mastering a tool. Understanding the law is grasping the purpose behind the tool, understanding why law exists to begin with. A person who truly understands the law can be a lawyer, or can be someone else entirely. Across history and across cultures, the people who have truly seen through law are, more often than not, not career lawyers, they are thinkers, statesmen, clear-eyed observers standing outside the system, and standing outside, they see the whole net more clearly. A career lawyer, immersed daily in specific clauses, easily sees the trees and misses the forest. This is not any individual lawyer's flaw, it is decided by the position of the profession itself.
Three. A Group of Men in Sima Qian's Writing Lays This Layer Bare
Around 100 BC, Sima Qian wrote, in the Biographies of Harsh Officials in the Records of the Grand Historian, about men like Zhang Tang, Zhao Yu, and Du Zhou. They shared one trait, an extreme mastery of legal clauses, and an equally extreme mastery of using those clauses to reach whatever end they wanted.
Zhang Tang's laws were severe, woven to an extreme fineness, and to convict a man he could pile a dozen clauses onto him, each one holding up on its own, and together leaving the man certain to die. Zhao Yu closed cases with astonishing speed, taking a case in the morning and reaching a verdict by afternoon, relying entirely on his mastery of clause and procedure. Du Zhou judged cases purely by reading the mood above him, digging up a clause to convict whomever his superiors wanted convicted, and digging up another to clear whomever they wanted cleared.
Sima Qian adds no commentary, he simply lays out how these men used the law, and a reader finishes and understands on his own, a man who has mastered the clauses can turn that skill toward protecting justice, or toward serving cruelty, and which side the tool lands on depends entirely on which side the one holding it stands. The very same skill, applied to its fullest, becomes a shield for the weak in one pair of hands, and a blade that kills without spilling blood in the hands of a harsh official. The skill itself carries no good or evil, the good or evil sits in the heart that wields it.
Four. But Is the Lawyer's Position the Same Across Every Time and Place. Not Quite
The Chinese record has a figure called the songshi, the litigation master. Unlike an official position, the songshi arose from the people themselves, helping ordinary people draft complaints and pursue lawsuits. Among the songshi were good ones who genuinely helped the weak, and bad ones who stirred up disputes, coached false claims, and set neighbors suing one another purely to profit from it. Names like litigation shark and pettifogger were aimed squarely at the bad ones.
Good songshi were always there too, only the reputation of the bad ones overshadowed them and left the whole group with a poor name. This layer is, in truth, the same split that exists inside today's legal profession, some serve justice, some serve only their own interest. The difference is that the songshi operated outside any formal system, coming and going as conscience allowed, while the lawyer is institutionalized, and once institutionalized, the direction of the whole training is fixed. However much an individual lawyer wants to lean toward justice, he still has to travel first along the track that is procedure.
Five. Four Words from Confucius Fit a Lawyer Remarkably Well
Around 500 BC, Confucius spoke a line.
Fine words and an ingratiating manner are seldom found alongside humaneness. Confucius, The Analects, Xue Er.
Clever words and a flattering expression rarely carry much humaneness inside them. Confucius was not speaking of lawyers, and yet the line fits remarkably well. A lawyer's signature skill is exactly fine words, using language to persuade a judge, to persuade a jury, to force the other side into concessions. The finer the words, the greater the skill, and the higher the fee.
Confucius saw, twenty-five hundred years ago, that fine words tend to run against humaneness. A person who truly speaks from humaneness tends to speak plainly, directly, without dressing it up. A person whose every sentence winds and circles is usually working toward some purpose, and that purpose is not necessarily justice. This is not to say every lawyer lacks humaneness, it is to point at the nature of the profession, it trains a person to use language to reach an end, not to speak the plain truth. The two directions run against each other by nature.
Six. Turn the Camera West, and Dickens Wrote a Lawsuit with No End
Around 1853, the English novelist Charles Dickens wrote a novel built around an inheritance lawsuit. That lawsuit ran from the book's beginning to its end, dragging on for decades, with generation after generation of lawyers, judges, and clerks passing through it.
Every generation of lawyers followed procedure, every document was filed in compliance, every hearing proceeded exactly as prescribed, and yet decades passed without the case moving forward in any real sense. Some of the parties went mad, some died, some went bankrupt, and in the end the case was finally closed for the simple reason that the entire estate had been consumed by years of accumulated legal fees, leaving nothing to fight over.
Dickens was not mocking any one lawyer, he was exposing a structure. Once law is reduced to pure procedure, and lawyers to pure procedure experts, the whole system begins serving procedure itself, no longer serving the parties, and no longer serving justice. The more elaborate the procedure, the higher the fees, the longer the timeline, the more complicated the case, the system breeds itself, growing into an enormous industry, and this is not the work of anyone's scheming, it is simply the direction structure grows in on its own.
Seven. This Is Exactly the Layer This Book Keeps Returning To, a Human-Made Matter Grows Its Own Direction
Once a human-made matter starts running, it grows according to its own logic, and that logic often runs against the very purpose it was first built for. The person who wrote the law may truly have intended it for the people, but once law starts running, it needs lawyers, judges, courts, prisons, an entire judicial supply chain to go with it. That supply chain carries its own interests, its own way of living, its own direction of expansion, and expanded to its furthest point, the supply chain itself becomes the purpose, and the people become, instead, the resource that keeps the chain running.
This is not conspiracy, it is structure. It is not any one person's fault, it is the direction set by position. See this layer clearly, and a person stops naively believing that hiring an expensive enough lawyer and completing a thorough enough procedure will automatically deliver justice. Procedure is a tool, and a tool taken to its extreme can drift ever further from its purpose.
This also explains something that often baffles an ordinary person, why sometimes, clearly in the right, he still loses the case, still gets dragged down and drained. It is not that he was wrong. It is that he stepped into a procedure running for its own sake, a procedure that recognizes no right or wrong, only process, and process has to be fed with time and money.
Eight. So How Should an Ordinary Person Face This Structure. Laozi Already Pointed a Direction
The ancestors' answer picks up right where the previous section left off. The highest layer does not sit with the lawyer, it sits with self-discipline, the very thing the next chapter is devoted to. If everyone inside a population understood that law is a tool, not the final purpose, and everyone valued self-discipline more highly than hiring a lawyer, disputes in that population would naturally shrink, and the industry built on lawyers would naturally shrink along with them. But this layer is extremely hard to reach, it needs culture, education, and generations of cultivation all pushing together.
Around 500 BC, Laozi wrote a line often misread.
Cast off sagacity, discard cleverness, and the people benefit a hundredfold. Laozi, Daodejing, Chapter 19.
Set down the so-called sages, set down clever schemes, and the ordinary person's benefit multiplies a hundred times over. Laozi was not against wisdom itself, he was against turning wisdom into a tool for exploiting others. A lawyer's mastery of procedure can be genuine skill, or it can be exactly the kind of fine words and ingratiating manner Confucius warned against, and the difference lies only in which side the one wielding it stands on. Once expertise grows into an independent industry, it tends, almost on its own, to lean toward serving itself, and at that point, returning to plainness may serve the people better than chasing ever higher expertise.
Nine. The Position Set by This Section
This section sets the thirteenth layer. Mastering the clauses is not the same as understanding the law. Mastering is mastering a tool. Understanding is understanding a purpose. The two can coincide, and the two can come apart. As a profession, the lawyer naturally tends toward mastering the tool. As a form of cultivation, understanding the law naturally requires grasping the purpose. This is not meant to tell a reader to distrust lawyers or refuse to use them, good lawyers, ones genuinely devoted to their clients, have always existed. It is meant to help the reader see this distinction clearly, so as not to mistake having hired a lawyer for having secured justice.
The next time a reader runs into a legal dispute, let him ask himself three questions. What does the other side's lawyer master. What does my own lawyer master. And what do I myself understand. Ask these three, and it becomes clear who in this dispute is working for justice, who is working for procedure, and who is working only for himself.
The next section asks where the lawmaker comes from, election, appointment, heredity, self-appointment. The previous three sections, strength and weakness, public legal education, and lawyers, all concerned matters after the law already exists. But who made the law in the first place. A lawmaker does not fall from the sky, he arrives at the position of legislating by some particular route, and that particular route is exactly what decides whom he will go on to legislate for. Carry the positions set in these first three sections, and walk into the next section.
Credit to the ancestors; the mistakes are mine: Tiger Lyon.
Chapter Five. The Lawmaker, Vested Interests, and the Roads Left to the Weak.