VOLUME V, CHAPTER 5, SECTION 2
Vested Interests, the Law's Largest Customer
The last section spoke of where the lawmaker comes from and how the people check him. But at the scene where the law runs stands a group more lasting than the lawmaker, the vested party. The lawmaking, public legal education, lawyers, lawmakers spoken of before are the front-facing links of the legal system, and in every link stands someone who profits by it. This section speaks of vested interests, a position this book set as far back as the fourth volume, the law's true largest customer, who it is.
The vested party is not some bad person. It is everyone who profits inside the legal system. In the lawmaking bodies there are the representatives of interest groups. In the judicial system there are lawyers, judges, and court people who eat by the law. Prisons, police, guards are all vested parties in the legal system too. All these people together share one trait. They reside permanently at the scene of the law, while the ordinary citizen appears only now and then. This one sentence quietly decides who the law's true customer is. A shop, its regulars who come daily and a passerby who steps in once a year, which does the shopkeeper mind more, no hard guessing. The shop of law is the same. The group standing daily at the scene of lawmaking, enforcing, and judging, and the ordinary person who enters a courthouse door a few times in a life, which does this machine of law turn more closely for, plain at a glance. Note that the vested party spoken of here is mostly not a bad person. A clerk who eats by handling cases, a lawyer who reviews contracts for a firm, a warden who keeps a prison, all only live their own lives. Yet gathered together they form a net standing at the scene day in and day out, and the ordinary person is only the passerby this net scoops up now and then and drops back.
Laozi's line names the true face of the vested. Around 500 BC, Laozi's line, quoted before. It takes from what has not enough to offer up to what has more than enough. To take from those who fall short and offer it up to those with surplus, this is the way of man. The vested party, said through, is exactly the group with more than enough. They already hold resources enough, and what they most want is to keep that holding going. The law, to those with more than enough, is a tool for keeping things as they are, and they will use every means to have the law keep the present for them. This also explains a common illusion. People suppose that those with money and power most want to change the law, and in fact the reverse, the ones who most want the law not to move are exactly they, because the present already stands on their side. The ones who truly long for the law to change are mostly those the present presses down, and those are exactly the ones with the least strength to change it.
The most consequential vested parties are three kinds. Broadly, all who gain anything within the present legal system count as vested. But by actual weight the three that matter most are these. The first, the people inside the lawmaking and enforcing bodies, who directly make and enforce the law and have the most direct hold over it. The second, the legal professionals, lawyers, judges, professors of law, who interpret the law with expertise and whose word carries authority. The third, those who have gained great wealth or power under the law's protection, who have the resources to sway lawmaking and whose interest is the largest. These three have interests pointing one way, to keep things as they are. And the beauty of it is that they need not collude at all to gather into one force keeping things as they are. Because each is only acting for his own interest, and together they prop the whole structure up steadily. This is exactly what makes it hardest to deal with. You can find no mastermind to hold to account, because there is no mastermind at all, only countless people each working his own reckoning, whose reckonings happen to fall in one place.
What is each of the three keeping. The people inside the lawmaking and enforcing bodies keep their own position and enlarge their own power. The more complex the law, the more room the enforcer has to choose, and the greater his power, so he has the drive to make the law ever denser. A simple law leaves the enforcer little room. A complex law can be read any way you like, and the room is large, and the room is power. This layer is the hardest to notice, because it need not be written into any clause. It hides in the room to interpret, and the denser the law, the larger that room. The legal professionals keep the complexity, spoken through in the chapter on lawyers, touched here in one line, the harder the law is to read the more indispensable they are, and simplifying the law is near a mortal blow to the trade, so the whole trade by birth opposes telling the law plain. The rich merchants and men of power who gain under the law's protection keep their own wealth and power. The law, in protecting their property, contracts, and inheritance, at the same time binds the ordinary person. The law lets some monopolize lawfully, press wages lawfully, skirt taxes lawfully, and these are all the look of the law serving those with more than enough. They sway lawmaking by lobbying, donation, the steering of opinion, all to one end, that the law keep speaking for them. The daily work of these three kinds is the upkeep of the structure of vested interest, and they need not be bad people, may even truly believe they do the right thing, and the position they stand in decides that they uphold the present of their own accord.
How great is their force. Look once at the scene of lawmaking and it is plain. When a new law is drafted, the representatives of every interest group crowd about the lawmaker to speak. Business associations, bar associations, judges associations, real-estate associations, all with dedicated lobbyists, legal counsel, and ample budgets, lobbying on a regular schedule. Where is the ordinary person. In the factory, in the field, in the office, with no time to attend a legislative hearing. The odd one or two who go have no organization and do not command that specialized way of speaking, and their voice is quickly drowned in a sea of professional voices. No one drove the ordinary person out by force. It is that the ticket to this contest is built of time, organization, and expertise, and the ordinary person by birth cannot afford it. So the result of lawmaking is nearly foreordained, the law tends to favor the vested party. Corporate law, tax law, labor law, the places that touch vested interest directly, are exactly their most active battlegrounds, and the laws that should shield the ordinary person, shield the weak, are in the lawmaking often weakened, compromised, shelved. There need be no one meaning to harm. The louder side won, that is all. A household saying fits this best, the crying child gets the milk. But at the scene of lawmaking, the ones who cry, cry loud, cry standing at the door all day, are those several kinds of vested parties, and the ordinary person can scarcely get in the crying door. The milk is only so much, and it goes to whoever is present and cries loud.
Sima Qian leveled the drive behind it in one line. Around 100 BC, Sima Qian wrote in his account of the money-makers. All the bustle of the world comes for gain, all the crush of the world goes for gain. The people come and go, thronging and pressing, all for gain. Sima Qian judges this neither right nor wrong. He only sets out this common human feeling. The chase for gain is common feeling, and yet once the vested party takes the law up to keep and enlarge its own gain, the neutrality of the law is quietly broken. This drive to keep is born of itself, needing no one to plot behind. The lawyer earns by the law's complexity, so he keeps it complex of himself. The enforcer eats by power, so he lets the clauses grow dense of himself. The rich merchant keeps his wealth by the law, so he goes to sway lawmaking of himself. Worse, the structure fortifies itself. The more complex the law, the less the ordinary person can afford it, and the less he can afford it the more he must lean on the vested party, and one lawsuit and he must hire a lawyer, and the lawyer earns and has more drive to keep it complex, and round the circle tightens. This is why once a system takes shape it is so hard to shake, not because the ones who uphold it are bad, but because the present is good for them.
This is vested interest at its deepest and hardest to see through. It is not open oppression. It is a structural tilt. The vested party need do nothing bad at all. It need only do its own job well and keep its own interest, and the law tilts their way of itself. This tilt has more force than any deliberate evil, because it is formless, automatic, hidden under the look of everyone just doing normal work, hard to point a finger at. The ways given before, public legal education, hiring a lawyer, election, the check, all look able to deal with it, and each hides a condition, that the ordinary person have resources and strength enough to use it. And that is exactly what the ordinary person lacks. To be publicly educated in the law takes time to learn, and the ordinary person runs for a full stomach. To hire a lawyer takes money, and the moneyless can only give up. To oversee, to speak out, takes a platform, and the ordinary person has no media and no organization. So these seeming safeguards for all, in the end also mostly serve those with more than enough, and the circle strengthens itself on. So the truly hard thing was never to see through one bad person. It is to see through this net with no bad person in it, which has no mastermind, and yet is harder to take apart than any mastermind.
So this section sets a fifteenth layer. The vested party is the law's largest customer. It resides at the scene of lawmaking, loudest in voice and strongest in force, so the law tends of itself to serve it. This is no one person's fault. It is a structure, and so long as the parting into more than enough and not enough remains, the law tilts of itself toward more than enough. The fourth volume, speaking of political institutions, set this layer of vested interest, and here in the law it has only changed grounds, its true face exactly the same, the law become the vested party's first tool for keeping what it holds. See this layer, and it is not to have the reader despair of the law, but to keep him from naively supposing the law is neutral by birth. The neutrality of the law is never held of itself. It takes force after force pushing back against the tilt to keep it barely held. The next time you look at any law, ask one thing, at the scene where it was drafted, which kinds of people stood, and was the ordinary person present. The answer is often written into whom this law, in the end, leaned toward.
The next section is what the weak are to do, the several ways ordinary people rescue themselves. Since the law tilts of itself toward those with more than enough, those with not enough have to find another road. In history the weak have had which choices, to flee, to band together, to turn to self-discipline, to strike back with force, to cultivate the self. Each has its cost and its gain. Read it not asking which is best, only which best fits your own position. Let the reader carry this cord of vested interest into the section that follows.
Credit to the ancestors; the mistakes are mine: Tiger Lyon.