VOLUME V, CHAPTER 5, SECTION 1

VOLUME V, CHAPTER 5, SECTION 1

Where the Lawmaker Comes From. Election, Appointment, Inheritance, Self-Appointment

The sections before spoke of the strong and the weak, public legal education, and lawyers in the running of the law. But a more upstream question has not been asked. How does the lawmaker himself come to be. The lawmaker did not fall from the sky. He is some member of some group, who by some way climbed onto the seat of lawmaking. And that some way is exactly what decides whom he later makes law for. The one truly lifted up by the group makes law nearer the group's need. The one pushed up by a small handful makes law nearer that handful's need. The one who seized his way up makes law first to keep his own seat.

Guanzi set the relation of lawmaker and the people's hearts down in one line. Around 700 BC, Guanzi wrote a line, one of the eyes of the whole book. What makes a government rise is following the people's hearts. What makes a government fall is going against the people's hearts. A government rises by following the people's hearts and falls by going against them. Guanzi speaks not of morality but of structure. A lawmaker who follows the people's hearts, the people uphold him. Against them, the people scatter from him. Any lawmaker, however he came, cannot escape this one line. But Guanzi knew too that when the line is spoken the problem is not finished. What are the people's hearts. In the people's hearts there is the heart of the many and the heart of the few, the heart of those with more than enough and the heart of those with not enough. Which part of the people's hearts the lawmaker follows is itself a choice, a choice of whom to make law for. And that choice is mostly decided not by the lawmaker's wish but by the position he stands in.

The lawmaker comes from no more than four sources. The first, inheritance, father to son, the seat handed down within the family. The second, appointment, the level above hands the seat to the next person. The third, election, the members of the group by vote or recommendation choose the one to stand for the whole group. The fourth, self-appointment, a person with force declares himself the leader. Inheritance is steadiest, for the heir grows up in the center of power and knows the system best, and its flaw is the most direct, for if the father is a wise ruler the son may be a fool, and then the people suffer. Appointment is common in a bureaucracy, good for tier checking tier, and the appointed man answers first to the one above, not the one below, his rise turning on the superior's face, not the people's content, so he leans by birth toward pleasing the superior. Election lets the people's will enter the choosing most directly, and the chosen man knows more or less that the seat was given by the people, and has the most direct drive toward following the people's hearts, and it too can sink into mob talk and be stirred up. Self-appointment is crudest, seen most in war or a vacuum of power, and the self-appointed man knows himself that he holds only force and no assent, and so tends to hold rule by harsher means.

All four have flaws, but they can be lined up on one ruler. Inheritance leans on the family's passing of ability, appointment on the superior's fair judgment, election on the people's reason, self-appointment on the overpowering of force. Not one can guarantee the lawmaker makes law for the people. But from another angle, the four measure by one ruler, how much the people took part when the lawmaker rose. Inheritance, the people took no part, the seat passing within the family. Appointment, the people took no part either, the seat passing within the power class. Election, the people take part throughout, voting or recommending directly. Self-appointment, the people neither take part nor have a say, the seat taken straight by the strong. By this ruler election stands nearest to following the people's hearts, inheritance and appointment next, self-appointment furthest. But this does not mean election surely yields a leader for the people. Once a person is elected and the seat is firm, the nature of power begins to show. The logic of power is self-protection and self-enlargement, running counter to the logic of for the people, so even a person chosen can, holding power long, slide a little at a time away from the very people who chose him up.

Chen Sheng's one line asked to the deepest bottom of power. Around 200 BC, Sima Qian set down in his records Chen Sheng's line. Kings, marquises, generals, ministers, are these born to the breed. These high seats, are they born into the blood. Chen Sheng's one line lifted the lid on the layer that power is not handed by Heaven but taken by people. Once that layer is seen through, no one will meekly believe the tale that my lot is fixed by Heaven, and rising up, rebelling, changing the dynasty, become from then on the ordinary state of things. But Sima Qian does not judge this right or wrong. He sets out what came after together. Chen Sheng's rising toppled Qin, and he built his own Zhang Chu and used the same harsh law of Qin. Han toppled Zhang Chu, and at its founding promised light punishment and light taxes, and by the hand of Emperor Wu it was harsh law again. Each toppling looks like a chase for a better system, and once the toppling is done, the set the new power uses is mostly the very same as the old. Because the logic of the position is the logic of power, and that logic does not change of itself just because the person changed. The reader sees for himself, change the person and you do not change the nature of the seat.

Mencius gave the people a last card, and it is hard to play. Around 300 BC, Mencius said a harder line. I have heard of the execution of the lone fellow Zhou, I have not heard of the killing of a ruler. He means a ruler who goes against the people's hearts too far is no longer fit to be called ruler, and the people have the ground to topple him. This is the last card in the people's hand. But Mencius admitted himself that the card is very hard to play. Because the people are by nature scattered, the people with more than enough and the people with not enough have interests that do not agree, and it is hard to twist them into one cord, so however discontented the people's hearts, it is hard to organize a true toppling. It is those with more than enough, rather, with resources, organization, and shared interest, who more easily join hands. So in reality the ones who truly topple the old power are often not the whole people but another small handful, and that handful, once up, becomes the new power, the seat only changing hands among the strong, and the ordinary people gaining little from it.

So is there a way to make the lawmaker truly answer to the people. East and West both speak of two. The first, the people's daily oversight. The lawmaker knowing the people are watching him and may voice their discontent at any time, and that watching and that voicing are a steady pressure. The Chinese ancients' the people are the most precious and the people as the root spoke of this layer, and the modern talk of speech and of oversight by opinion speaks of the same thing, that the people must have a voice and the voice must be heard. The second, the people's final check. If the lawmaker wholly ignores the daily oversight, the people have one last hand, the ballot or force. Under an electoral system the people can vote him out next time. Under a non-electoral system this showed historically as uprising. The Chinese ancients had no election but had the mandate of Heaven, that if a ruler did too badly Heaven would warn and the people might rebel, which is in fact the people's ultimate power of toppling said a little more veiled. The modern West wrote the check plainly into constitutions, and the clause in the American constitution on the people bearing arms is often read as meaning that should the government betray the people, the people keep a last force of resistance. Mandate of Heaven or written into a constitution, the logic is one thing, only one veiled and one plain, set here side by side, no ranking which above which.

So the key is not how the lawmaker came, but whether the people have a real way to check him. A ruler by inheritance, if the people have voice and force enough, cannot but answer to the people. A leader by election, if the people have no voice and no force, ignores the people all the same. So what truly matters is not by which road the lawmaker came, but whether, once he takes the seat, the people hold anything real to watch and check him with. This layer pulls many an argument back to the ground. People love to argue which way of rising is best, argue red in the face, and easily miss the more solid question, however he rose, can the people make him hear them, and change him when they must. Answer that badly, and however handsome the way of rising, it is empty.

But here hides the deepest and most unsettling layer, that voice and force are, by birth, spread unevenly. Those with more than enough have voice by birth. They have the resources to run media, print papers, befriend the ones who can be heard, and their voice carries of itself into the ear at the center of power. They have force by birth too, money, organization, direct dealings with power. So for those with more than enough, even if the law does not write freedom of speech, their voice is already there, and even if the law does not say so, their weight already presses power a few degrees. Those with not enough are exactly the reverse. They have no resources to run media, no platform to speak from, and speaking, few hear them. They have no money, no organization, no real weight, and though the law may write that the people can check power, when it comes to the use of it they cannot bring their strength to bear. So freedom of speech, the power to check, these things that look given to all the people, are in fact most usable by those with more than enough. This is not to say these rights should not exist. Just the reverse. They are precious. But if a way is not found at the same time to give those with not enough real voice and real weight, these rights easily become, in silence, a handier tool in the hands of those with more than enough. The words are written very fair, and landing on people the distribution is very unfair. This is the most hidden layer of legal institutions.

So this section sets a fourteenth layer. Where the lawmaker comes from decides his starting position, but once he takes the seat, every lawmaker runs into the same question, how to answer to the people. The answer is two things, the people's voice and the people's force. But these two are, by birth, spread unevenly, those with more than enough loud in voice and strong in force, those with not enough faint in voice and weak in force. So however complete a lawmaking system is designed, and however it gives freedom of speech and the power to check to every person in name, the ones who can truly use them to the full are, most often, still those with more than enough. This layer is not to have the reader deny election, nor deny freedom of speech. These are good things, worth treasuring. What it has the reader see is that fairness written on paper is not enough, and there is one more thing to ask, does this fairness, landing on those with not enough, actually cash out. Take that one question to any system that claims to give the people rights, and you will not be cowed by the handsome words on the page.

The next section is vested interests, the law's largest customer. The lawmaking, the public legal education, the lawyers, the lawmakers spoken of so far are all the front-facing parts of the legal system, and yet in every link stands someone who profits from it. The vested party keeps a permanent residence at the scene of lawmaking, the ordinary person only appears now and then, and this decides who the law's true customer is. Let the reader carry the positions set before into the section that follows.

Credit to the ancestors; the mistakes are mine: Tiger Lyon.