VOLUME V, CHAPTER 5, SECTION 1
Where the Lawmaker Comes From. Election, Appointment, Inheritance, Self-Appointment
The previous sections discussed strength and weakness, public legal education, and lawyers inside law's operation. But an even more fundamental question has not yet been asked, where does the lawmaker himself actually come from. A lawmaker does not fall out of the sky, he is some member of some group, who arrives, by some particular route, at the position of legislating. And that particular route is exactly what decides whom he will go on to legislate for. One truly lifted up by the group legislates closer to the group's actual needs. One pushed up by a small handful legislates closer to that handful's needs. One who seizes the position himself legislates, first of all, to protect his own seat.
One. Guanzi's Line Sets Down the Relation Between the Lawmaker and the People's Heart
Around 700 BC, Guanzi wrote a line that is one of the keys to this whole book.
Governance flourishes by following the people's heart. Governance falls by going against the people's heart. Guanzi, Guanzi, On Shepherding the People.
Governance flourishes when it follows the people's heart, and falls when it goes against it. Guanzi is not speaking of morality here, he is speaking of structure. A lawmaker who follows the people's heart earns their support. One who goes against it drives them apart. No lawmaker, however he arrived, escapes this rule.
But Guanzi himself knew the question was not finished once this line was said. What is the people's heart. Inside it sits the heart of the majority, and the heart of the minority, the heart of those who have plenty, and the heart of those who lack. Which part of the people's heart a lawmaker follows is itself a choice, a choice of whom to legislate for. And this choice is mostly decided not by the lawmaker's own wishes, but by the position he stands on.
Two. The Lawmaker's Origin Comes Down to Four Kinds
The first, heredity, the father dies and the son succeeds, the position passed down generation after generation inside a family. The second, appointment, one level above hands the position to the one below. The third, election, members of a group choose, by vote or by nomination, someone to represent the whole group. The fourth, self-appointment, a person gains enough force and simply declares himself the leader.
Heredity is the most stable, because the heir grows up from childhood at the center of power and knows the system best of all. But its flaw is just as direct, a wise father can leave behind a foolish son, and once that happens, the people suffer for it. Appointment is common in bureaucratic systems, useful for layered checks, but the one appointed answers, first and foremost, to the person above him, not to the people below. His promotion depends on pleasing his superior, not on satisfying the people, so he is naturally inclined to please upward.
Election lets the people's will enter the choice most directly, and someone elected knows, at least somewhat, that his position was given by the people, giving him the most direct motivation to follow their heart. But it is also prone to drifting into mere popularity, and easily stirred by demagogues. Self-appointment is the crudest, most common in times of war or in a vacuum of power, and the one who seizes it knows himself that all he holds is force, not legitimacy, so he tends to rely on harsher measures to maintain his rule.
Three. All Four Have Their Flaws, but They Can Be Ranked Along One Ruler
Heredity relies on a family's inherited ability, appointment on a superior's fair judgment, election on the people's reason, self-appointment on the crushing weight of force. None of the four can guarantee that a lawmaker will legislate for the people.
But turn it another way, and all four can be measured on one ruler, how much the people took part when the lawmaker rose to his position. In heredity, the people take no part at all, the position passes within a family. In appointment, the people take no part either, the position passes within the ranks of power. In election, the people take part the whole way through, voting or nominating directly. In self-appointment, the people take part neither in the rising nor in the choosing, the position is simply seized by the strong. By this ruler, election comes closest to following the people's heart, heredity and appointment come next, and self-appointment stands furthest away.
But this does not mean election is guaranteed to produce a leader who serves the people. Once a person is elected and settles into the seat, the nature of power begins to show itself. The logic of power is self-protection and self-expansion, running against the logic of serving the people, so even someone who was elected can, the longer he holds power, drift little by little away from the very people who put him there.
Four. Chen Sheng's One Line Asks Down to the Deepest Base of Power
Around 200 BC, Sima Qian recorded, in the Hereditary House of Chen She in the Records of the Grand Historian, a line Chen Sheng spoke.
Are kings, lords, generals, and ministers born to their bloodline? Chen Sheng, Records of the Grand Historian, Hereditary House of Chen She.
Are these high seats, king, lord, general, minister, something a person is simply born into? With one line, Chen Sheng pulled the lid off this layer, power is not granted by heaven, it is seized by men. Once this layer is seen through, no one is willing to sit quietly believing my fate is fixed by heaven any longer, and uprising, rebellion, and the changing of dynasties become, from then on, a recurring pattern.
Sima Qian passes no verdict on whether this was right or wrong, he simply lays out what came after. Chen Sheng's uprising toppled Qin, and he built his own state of Zhang Chu, using the very same harsh laws Qin had used. Han toppled Zhang Chu, promising at its founding a gentler code and lighter taxes, only to arrive, by the time of Emperor Wu, at harsh laws once again. Every overthrow looks, on the surface, like the pursuit of a better system, and yet once the overthrowing is done, the new power very often uses exactly the same playbook as the old one. Because the logic of the position is the logic of power, and that logic does not automatically change just because the person sitting in it has changed. A reader arriving here understands on his own, changing the person alone does not change the nature of the position.
Five. Mencius Handed the People One Last Card, but It Is a Very Hard Card to Play
Around 300 BC, Mencius spoke a harder line.
I have heard of the punishing of a lone villain named Zhou. I have not heard of the murder of a ruler. Mencius, Mencius, Devoting the Heart, Part Two.
Mencius meant that a ruler who has strayed too far against the people's heart is no longer worthy of the name ruler, and the people have the right to overthrow him. This is the last card in the people's hand.
But Mencius himself admitted this card is extremely hard to play. The people are, by nature, scattered, and those with plenty and those without do not share the same interests, making it very hard to twist them into a single rope, so that even when the people's discontent runs deep, organizing a genuine overthrow remains difficult. It is, instead, those with plenty who have resources, organization, and shared interest, and who find it far easier to join hands. So in reality, the ones who actually topple the old power are often not the people as a whole, but another small handful, and once that handful rises, it becomes the new power itself. The seat only changes hands among the strong, and the ordinary people gain little from the exchange.
Six. Is There a Way to Make a Lawmaker Truly Answer to the People. East and West Both Speak of Two Things
The first, the people's ongoing oversight. A lawmaker who knows the people are watching him, ready at any moment to voice their discontent, feels that watching and that voicing as a constant pressure. The ancient Chinese world spoke of the people are most valuable and of a people-rooted governance, meaning exactly this layer. The modern world speaks of free speech and public oversight, meaning the same thing, the people must have a voice, and that voice must be able to be heard.
The second, the people's final check. If a lawmaker ignores ongoing oversight entirely, the people still hold one last move, the ballot, or force. Under an electoral system, the people can vote him out next time. Under a system without elections, this has historically shown up as uprising.
The ancient Chinese world had no elections, yet it had the mandate of heaven, if a ruler governs too badly, heaven gives warning signs, and the people may then rise against him, which is, in truth, the people's ultimate right of overthrow, only spoken more indirectly. The modern West wrote its checks directly into its constitution, and the American constitutional provision on the people's right to keep arms is also often read as meaning that should the government ever betray the people, the people retain one final capacity to resist. The mandate of heaven and a constitutional clause point to the very same logic, one spoken indirectly, one spoken plainly. The two are simply set side by side here, with no ranking of higher or lower.
Seven. So the Key Is Not Where the Lawmaker Came From, It Is Whether the People Have a Real Way to Check Him
A hereditary ruler, if the people hold real voice and real force, still has no choice but to answer to them. An elected leader, if the people hold no voice and no force, will neglect them just the same. So what truly matters is not which road the lawmaker climbed, it is whether, once he holds the seat, the people actually hold something real in hand to watch him and restrain him.
This layer pulls a great many arguments back down to the ground. People often argue heatedly over which method of rising to power is best, and in the arguing, easily miss the more concrete question, whatever road he climbed, can the people make him listen, and can they replace him when it is truly necessary. Answer that question badly, and however beautiful the method looks, it is empty.
Eight. But the Deepest, and the Most Unsettling Layer, Hides Right Here, Voice and Force Are Never Evenly Distributed to Begin With
Those who already have plenty naturally have voice. They have the resources to run media outlets and newspapers, to know people who can speak with influence, and their voice reaches the ear of power almost automatically. They also naturally have force, money, organization, and direct dealings with power itself. So for those who already have plenty, even if the law never wrote down freedom of speech, their voice was already there. Even if the law never said so plainly, their weight was already enough to press against a portion of power.
Those who lack are exactly the reverse. They have no resources to run media, no platform to speak from, and even if they speak, few listen. They have no money, no organization, and no real weight, so even if the law states plainly that the people may check power, when it comes time to actually use that check, they have nothing to use it with.
So freedom of speech and the power to check government, things that look as if they belong to the whole people, end up, in practice, mostly usable only by those who already have plenty. This is not to say these rights should not exist, quite the opposite, they are precious. But without also finding some way to give those who lack a real voice and real weight, these rights easily turn, without a sound, into a tool that fits more conveniently into the hands of those who already have plenty. The words are written fairly. Landing on actual people, the distribution is anything but fair. This is the most hidden layer of any legal system.
Nine. The Position Set by This Section
This section sets the fourteenth layer. Where a lawmaker comes from decides his starting position, but once he holds the seat, every lawmaker runs into the very same question, how to answer to the people. The answer comes in two parts, the people's voice, and the people's force. But these two are, from the start, unevenly distributed, those who have plenty carry a louder voice and a stronger force, those who lack carry a quieter voice and a weaker force. So however carefully a legislative system is designed, however fully it hands freedom of speech and the power to check government to every person in name, the ones who can actually make full use of them tend, still, to be those who already have plenty.
This layer is not meant to make a reader reject elections, nor to make a reader reject freedom of speech, these are good things, worth treasuring. What this layer asks the reader to see clearly is that fairness written on paper is not enough by itself, one still has to ask whether that fairness can actually be cashed in by those who lack. Take this question and measure any system that claims to have given the people rights, and the polished words on the page will no longer be able to bluff you.
The next section turns to vested interests, law's largest customer. The sections before this, legislating, public legal education, lawyers, the lawmaker, are all the visible face of the legal system, and yet inside every single one of them stands someone who profits from it. Those with a vested interest stay at the scene of the law full time, while an ordinary person only shows up now and then, and that alone decides who the law's real customer actually is. Carry the positions set in the sections before this one, and walk into the next section.
Credit to the ancestors; the mistakes are mine: Tiger Lyon.