VOLUME V, CHAPTER 4, SECTION 3
Lawyers and Procedure. Knowing the Words Is Not Understanding the Law
The last section spoke of public legal education, carrying the law to the people. But for an ordinary person to truly shield himself in a dispute, he often still leans on a middleman, the lawyer. So what does a lawyer actually master, and is hiring a lawyer the same as securing someone who understands the law. What this section sets is the most hidden layer in the world of law. Mastering the clauses of the law and understanding the law are two different things.
Zhuangzi parted the tool from the purpose in one line. Around 300 BC, Zhuangzi wrote it. The fish trap is for the fish, and once the fish is caught the trap is forgotten. Words are for the meaning, and once the meaning is grasped the words are forgotten. The trap is the bamboo tool for catching fish, and once the fish is caught the trap can be set down. Words are for carrying meaning, and once the meaning is understood the words can be forgotten. Zhuangzi set this layer down twenty-three hundred years ago, that the tool and the purpose are two things, the tool used for the purpose, and once the purpose is reached, the tool's meaning is spent. Yet a person is prone to hold the tool and not let go, and holding and holding, forgets where he set out for. Lay this over the law. The law is a tool, justice the purpose. The law exists so the group draws nearer justice, not for the sake of the law itself. The more complete the clauses, only the finer the tool, and however fine, it is a tool, not justice itself. The one who masters the clauses masters a tool. The one who understands justice understands a purpose. The two can meet in one person, and can fall wholly apart. A person can have the clauses by heart and not understand at all that the law is for shielding people. A person can be unable to recite a handful of clauses and see clean through what the law is for. The first masters the tool, the second understands the purpose, and these two are not one thing.
So which does a lawyer master. Honestly, most lawyers master the clauses and the procedure, not justice. This is no fault of the lawyer's. The training of the profession shapes him this way. Law school reads codes, precedents, rules of procedure. The license exam tests familiarity with procedure. Inside a firm, the work is to draft documents by procedure, appear in court by procedure, answer the other side's lawyer by procedure. The whole training makes a person into an expert in procedure, not a thinker on justice. This is exactly the Wei this book keeps naming, that mastering the clauses is not understanding the law. Mastering the clauses is mastering a tool. Understanding the law is grasping the purpose behind the tool, grasping why the law exists at all. A person who truly understands the law may be a lawyer and may not. Across the ages and everywhere, the people who truly saw through the law were mostly not professional lawyers but thinkers, statesmen, cool-eyed onlookers, who stood outside the law and so saw the whole net clearly. The professional lawyer, soaked all day in particular clauses, easily sees the trees and not the forest. This is not any one lawyer's failing. It is set by the position of the profession itself.
A set of people in Sima Qian's records wrote this layer through. Around 100 BC, in his account of the harsh officials, Sima Qian wrote of Zhang Tang, Zhao Yu, and Du Zhou, who had one thing in common, all masters of the clauses, and masters of using the clauses to reach an end. Zhang Tang made law harsh, fine to the extreme, and to convict a man could hang a dozen clauses on him, each valid alone, and together this man must die. Zhao Yu handled cases at great speed, a case taken in the morning and the conviction by afternoon, on nothing but his fluency in clause and procedure. Du Zhou judged only by the face above him, and if the one above wanted a man guilty he turned up the clause to make him guilty, and if he wanted a man clear he turned up the clause to clear him. Sima Qian adds not a word of comment. He sets out how they used the law and the reader sees for himself, that the one who masters the clauses can turn that skill to shield justice or to abet a tyrant, and where the tool lands rests wholly on which side the one who holds it stands. The same skill of running the clauses to the hilt, in the hand of one who shields the people, is a shield for the weak, and in the hand of a harsh official, a knife that kills without drawing blood. The skill has no good or evil. The good and evil are in the heart that wields it.
But is a lawyer's position the same across the ages and everywhere. Not quite. The Chinese world once had a kind of person called the litigation master. Not certified by the offices, but risen from the people, who helped ordinary folk write pleadings and fight cases. Among them were good ones who truly helped the weak, and bad ones who picked at words, stirred up suits, egged the people into suing one another for profit. The curses litigation stick and pettifogger were aimed at the bad ones. The good ones were always there too, only that the bad ones' name outweighed them and left the whole group ill-reputed. This layer is in fact the same as the split in the lawyer's profession today, some for justice, some only for gain. The difference is that the litigation master was of the people, coming and going as the heart moved, while the lawyer is institutionalized, and once institutionalized the direction of the whole training is fixed, and a person who would lean toward justice still has to run first along the rail of procedure.
Four words of Confucius fit the lawyer well. Around 500 BC, Confucius said a line. Clever words and a pleasing face, rare in these is benevolence. Fine-turned words, a face put on to please, and inside is little benevolence. Confucius did not mean this for lawyers, and laid over them it fits. The lawyer's stock skill is exactly clever words, using speech to persuade the judge, persuade the jury, force the other side to yield, and the cleverer the words, the greater the skill, the higher the fee. Confucius saw through it twenty-five hundred years ago, that fine-turned words mostly run counter to benevolence. A person who truly speaks of benevolence tends to speak plain, direct, without winding. A person whose every word winds is mostly aimed at some end, and that end is not always justice. This is not to say lawyers are all without benevolence. It is to speak of the nature of the profession, that it trains a person to reach an end with words, and does not train a person to speak the truth, two directions, opposed by birth.
Turn the lens to the West and Dickens wrote of a lawsuit with no end. Around 1853, the English writer Dickens wrote a novel centered on a suit over an estate. The suit ran from first to last for decades, the lawyers, the judges, the clerks changing over generations. Each generation of lawyers went by procedure, each document in order, each hearing by the book, and decades passed with not a hair of real progress. Of the parties some went mad, some died, some went bankrupt, and in the end the suit closed, on the ground that the estate had been wholly eaten up by the accumulated legal fees, with nothing left to fight over. Dickens is not mocking one lawyer. He is baring a structure. When the law sinks into pure procedure and the lawyer into a pure expert in procedure, the whole system begins to serve the procedure itself, no longer the party, no longer justice. The heavier the procedure, the higher the fee, the longer the cycle, the more complex the case, and the whole system breeds itself, growing into a vast industry chain. This leans on no one's scheme. It is the structure growing that way of itself.
This is the layer this book keeps naming, that a made thing grows a direction of its own. A made thing, once running, grows by its own logic, and often runs counter to the purpose it was set up for. The lawmaker's first heart may truly be for the people, and once the law runs, it must be fitted with lawyers, judges, courts, prisons, a whole judicial industry chain. This chain has its own interest, its own way of living, its own direction of enlargement, and enlarged to the limit, the chain itself becomes the purpose, and the people become the resource that keeps the chain turning. This is no plot. It is a structure, no one's fault, the direction of a position. See this layer and you will not naively suppose that if only you hire a dear enough lawyer and walk a complete enough procedure, justice arrives of itself. Procedure is a tool, and a tool run to the extreme may draw further and further from the purpose. This also explains a thing that often baffles the ordinary person, why a suit he plainly holds the right of loses the longer he fights, and grows the poorer the longer it drags. The right was not wrong. He stepped into a procedure that runs for its own sake, and that procedure does not recognize the right, only the process, and the process has to be fed with time and money.
So facing this structure, what does an ordinary person do. Laozi gave a direction. The ancestors' answer joins straight to the end of the last section. The highest layer is not in the lawyer but in self-discipline, which the next chapter opens on its own. If in a group everyone understood that the law is a tool and not the final purpose, and everyone weighed self-discipline as more urgent than hiring a lawyer, then the group's disputes would grow fewer of themselves, and the lawyer chain would shrink of itself. But this layer is extremely hard, resting on culture, education, and the cultivation of several generations together. Around 500 BC, Laozi wrote a line often misread. Cut off the sage, discard the clever, and the people gain a hundredfold. Laozi is not against wisdom. He is against turning wisdom into a tool for exploiting others. The lawyer's mastery of procedure can be a true skill, or the cleverness of clever words and a pleasing face, the difference only in which side the one who uses it stands on. When the specialized grows into an independent industry chain, it will mostly lean of itself toward for itself, and then a return to the plain may serve the people better than a chase after higher specialization.
So this section sets a thirteenth layer. Mastering the clauses is not understanding the law. What is mastered is a tool, what is understood is a purpose, and the two can meet or can part. The lawyer as a profession leans by birth toward mastering the tool. Understanding the law as a cultivation demands by birth the grasp of the purpose. This is not to have the reader distrust lawyers or refuse to use them. Good lawyers, lawyers truly for their parties, are always there. It is to have the reader see this distinction, and not mistake hired a lawyer for secured justice. The next time you meet a dispute at law, ask yourself three lines. What does the other side's lawyer master. What does the lawyer I hired master. And what do I myself understand. Ask those three and you can see in this dispute who bends his force for justice, who for procedure, and who for himself.
The next section is where the lawmaker comes from, election, appointment, inheritance, self-appointment. The three sections before, the strong and the weak, public legal education, lawyers, are all matters after the law is set. But the law itself, who made it. The lawmaker did not fall from the sky. He climbed onto the seat of lawmaking in some way, and that some way is exactly what decides whom he later makes law for. Let the reader carry the positions set in the three sections before into the section that follows.
Credit to the ancestors; the mistakes are mine: Tiger Lyon.