鐔津文集 5.14

5.14

A questioner asked: "In antiquity, laws were lenient, punishments were few, and those among the people who committed transgressions and villainy were very rare. In later ages, laws became meticulous, punishments proliferated, yet those among the people who committed transgressions and villainy became exceedingly numerous. What is the reason for this?"
I replied: "When the ancients employed penal laws, they preserved the root; therefore, those among the people who transgressed were few. When later generations employed penal laws, they preserved the branches; therefore, those among the people who transgressed were many."
The questioner asked: "What do you mean by the root and the branches?"
I replied: "Governance and moral instruction are the root; penal laws are the branches. If one makes light of the root and gives weight to the branches, it is like sprinkling oil to put out a fire: the more intensely one applies it, the more fiercely the blaze burns—how could it ever be extinguished?"
Someone said: "I truly do not understand how governance and moral instruction constitute the root. I hope you will explain it fully, sir."
I said: "Are human goodness and wickedness merely innate nature? They are shaped and altered by external things. Thus, when presented with profit, people rejoice; when thrust into harm, they become enraged. The ancient sages knew it was like this. They instituted the well-field system to secure their means of livelihood and sustenance; they established schools to guide them toward mutual filial piety and fraternal respect; they made bridges and waterways freely passable and instructed them not to contend over profit; they inspected border passes and stabilized market prices, teaching them not to deceive one another; they taxed one-tenth of their produce, teaching them to subordinate private interest to public duty; they instituted ritual to moderate their feelings of sorrow and joy; they created music to correct their remaining unhealthy habits and obsolete customs; they issued decrees to settle their speech; and they used penal laws to prevent their lapses. If, unfortunately, someone violated the law and faced punishment, the sage would still search within himself, saying: 'That the people have come to this must be because my instruction has not reached them and my governance is not perfected.' Thus he acted with leniency rather than relying on punishment. When Yu hunted in the south and reached Cangwu, he observed an execution of a criminal in the marketplace, wept, and descended from his carriage. When he asked his attendants about it, they said: 'That criminal was insubordinate and brought this upon himself; why does the lord grieve for him?' Yu said: 'The people in the times of Yao and Shun took the minds of Yao and Shun as their own minds. Now I am the ruler, yet the people act on their own private minds; that is why I mourn.' In the time of King Wen, the two states of Yu and Rui contended over their borders and brought their suit to King Wen. King Wen addressed them with words and released them. Afterward he said: 'It was my governance not being enlightened that caused them to be so.' He devoted himself diligently to governance, and the states of Yu and Rui thereupon ceased their litigation. Indeed, among human emotions, who does not love the pleasant and hate the foul, cling to life and fear injury? If everyone can equally secure comfort and joy in their livelihood, live in harmony with their kin, fulfill their human nature, and attain a good name, how could anyone be indifferent and refuse to follow along? Even barbarian peoples would surely not remain unchanged like this. This is why the ancient sages strove so forcefully for moral transformation. Therefore, the reason why people in antiquity rarely transgressed and had wholesome customs was entirely due to the perfection of governance and instruction. Because governance and instruction were perfected, there was no place to use penal laws. The gentleman uses them only when there is no other choice; he does not rely on them exclusively. Confucius said: 'Guide them by virtue, regulate them by ritual, and they will have a sense of shame and moreover become upright. Guide them by governance, regulate them by punishment, and the people will avoid the punishments, but have no sense of shame.' Therefore it is said: 'Punishment means completion.' In high antiquity, it was applied only as a final completion. Penalties were not promulgated in advance, so the people knew nothing of laws; and since the people knew nothing of laws, no disputes arose. The Lord of Youyu (Shun) knew that later ages would become increasingly superficial and feared that minor officials would deceitfully set forth arbitrary laws. He therefore established the five punishments in his documents, saying: 'Pardon the five punishments through exile; make the whip the punishment for officials, the rod the punishment for instruction, and metal (fines) the punishment for redemption. Misfortunes and disasters are to be freely pardoned, while repeat and unrepentant offenders are to be punished with death.' In later ages, virtue declined further, and the names of crimes and penalties recorded in books became countless. The more numerous punishments became, the more wicked the people became, precisely because the root and branches had been inverted. Down to the likes of Han Fei, Shen Buhai, and Shang Yang, cruel and merciless punishments were carelessly instituted. The people of Qin employed them; before one generation had ended, their state was destroyed without delay. Still, punishments such as those of the Marquis of Fu or the laws of the Marquis of Zan, if upheld with utmost fairness, could yet remedy the defects of a single era. How much worse it is that mediocre officials of later times rely on opportunism: the penal texts are interpreted deeply or shallowly according to their private caprice, and penalties are made light or heavy according to their personal feelings! The law was originally that by which the former kings sought to suppress villainy; yet when it degenerated, it became villainy. Punishments were originally that by which the former kings sought to curb violence; yet when they degenerated, they became violence. Not only did they become violence, they also induced people to generate violence; not only did they become villainy, they also induced people to generate villainy. For this reason, when the gentleman discusses penal law, he values the root and does not value the branches.
Someone said: 'Your words may well be called impractical; they do not adapt to the changes of the times. Such arguments as yours are suitable for antiquity, but not suitable for today. Today's people are increasingly wicked; without penal law, they cannot be governed. Ancient people were still simple and honest; they could be encouraged through moral instruction. If one were to rely solely on moral instruction in today's world, prisons would become even more crowded and murderers would carry on without pause.'
I said: 'You may truly understand the times, but you are blocked concerning the Way. As for the times, antiquity is just like today; as for the Way, goodness is just like wickedness. The people of antiquity were simple because they attained the Way; the people of today are false because they lost the Way. I worry that virtue is not cultivated; I do not worry that the people are not quickly transformed. I worry that governance and moral instruction do not attain their zenith; I do not worry that the people are not simple and honest. The Book of Odes says: "In hewing an axe-handle, in hewing an axe-handle, the pattern is not far off. Grasp the axe to hew an axe-handle, and looking askance at it, one still thinks it far off." This means that the Way is not far off; it can be cultivated and reached. Confucius said: "The flow of virtue is swifter than the transmission of orders by post-horses." This speaks of the rapidity with which governance and instruction transform the people. Emperor Wen of the Han dynasty practiced hidden and quiet governance, striving for leniency and generosity, and felt ashamed to speak of others' faults. As his transformation took effect, the custom of bringing accusations ceased in his era. He appointed Zhang Shizhi as the Minister of Justice, intending that he administer the laws with great leniency. Thereupon, punishments were greatly reduced, so that in a whole year only four hundred criminal cases were decided, and the realm showed the spirit of setting aside punishments. Emperor Taizong of the Tang dynasty pacified the chaotic world and sought to rule the empire through civil culture. He engaged Fang Xuanling, Du Ruhui, and other Confucians to assist him in strenuously reviving the kingly way, whereupon the empire was greatly ordered. In the thirtieth year of Zhenguan, the outer gates of households were not barred, and travelers across the southern passes did not pack provisions. In an entire year, those condemned to death did not exceed thirty people; released to go home, they all returned precisely at the appointed time. At that time, the realm also came close to the spirit of setting aside punishments. Yet both the Han and Tang eras directly succeeded the former customs of the Qin and Sui. Were their people alone inherently elegant and good? That their moral transformation and governance reached such a state—was this not due to the Way rather than the times? An old saying states: "Governing the empire depends solely on how vigorously one puts it into practice." The other person fell silent, bowed twice, and withdrew.