Chapter 38 – Outside the Law
A truly good man is not aware of his goodness,
And is therefore good.
A foolish man tries to be good,
And is therefore not good.
A truly good man does nothing,
Yet leaves nothing undone.
A foolish man is always doing,
Yet much remains to be done.
When a truly kind man does something, he leaves nothing undone.
When a just man does something, he leaves a great deal to be done.
When a disciplinarian does something and no one responds,
He rolls up his sleeves in an attempt to enforce order.
Therefore when Tao is lost, there is goodness.
When goodness is lost, there is kindness.
When kindness is lost, there is justice.
When justice is lost, there ritual.
Now ritual is the husk of faith and loyalty, the beginning of confusion.
Knowledge of the future is only a flowery trapping of Tao.
It is the beginning of folly.
Therefore the truly great man dwells on what is real and not what is on the surface,
On the fruit and not the flower.
Therefore accept the one and reject the other.
Translation by Jane English and Gia-Fu Feng (1989)
To live outside the law you must be honest – Bob Dylan
Back in the 1640s, an Englishman named George Fox experienced a religious conversion. He came to believe – and to preach – that earthly authority is corrupt and that God’s message came to individuals directly through their personal Inner Light. He is regarded as the founder of the religious sect known as Quakerism.
That was a violent time in English history, after two civil wars, King Charles I was executed and a commonwealth, and later “Protectorate,” was established under the leadership of Oliver Cromwell. Cromwell himself had undergone a religious conversion a decade earlier, becoming an “independent puritan.” Cromwell was strongly anti-Catholic and directed persecutions against Catholics in Scotland and Ireland that could be classified as genocide. He was more tolerant of Protestant denominations, however. Although Quakers were sometimes persecuted under his rule in various parts of the country, Cromwell generally respected their beliefs.
Cromwell died in 1658, and after a brief period Charles II, the son of the executed king was invited back from exile to prevent the country from falling into anarchy. Charles II agreed to pardon most of those who had led the opposition against his father, though he did cause Cromwell’s body to be exhumed for a posthumous execution.
By that time, one of the leading Quakers was a nobleman named William Penn. In general, things were not going well for that denomination and Penn and his fellow Quakers were subject to extensive persecutions at the hands of the Anglican majority – part of which they brought upon themselves.
Today, we generally think of Quakers as a quiet, peace-loving group; but it was not always so. In some parts of England, and even more so in the American colonies, Quakers would disrupt Anglican churches, banging pots and pans together and sometimes stripping off their clothes to show a lack of attachment to the things of this world. Laws were soon passed that forbade Penn to hold services in his church. In protest, he conducted services in the street outside of the church and was arrested along with fellow Quaker William Mead.
At their trial for conspiracy to disturb the peace, the judge instructed the empanelled jury to find the men guilty. Four of the jurors, however, felt the law itself was wrong and refused to vote for a conviction. The jury was sent back several times to continue its deliberation until a guilty verdict was reached, but the four refused to cooperate. Finally, the judge ordered all the jurors imprisoned for failing to follow his orders.
The jurors sought their release through a writ of habeas corpus and England’s highest court ultimately ordered their release, establishing the principle that jurors could not be subjected to judicial coercion. Many believed that the case also established the principle of jury nullification, which would permit a jury to ignore a law which the jurors considered to be unjust.
A few years later, Charles II, who sympathized with Catholics and somewhat with Quakers – and who owed Penn’s family a large sum of money, granted Penn the rights to what is now Pennsylvania and Delaware to satisfy his debts. Those American lands became a refuge for Quakers.
In the American colonies, and later the United States, jurors who ignored the law established the right of freedom of the press in 1734 when John Peter Zenger was acquitted of libelous sedition for criticizing the governor of the New York colony. In the years before the Civil War, many northern juries refused to convict abolitionists who had violated the Fugitive Slave Law. Later in the 19th century, jurors refused to convict striking union workers, which established the right of workers to organize and unions to exist.
Looking at United States Supreme Court decisions, the 1794 case of Georgia v. Brailsford stands out. That was back in the days when the Supreme Court actually conducted some trials, and was not only an appellate court. In that case, Chief Justice John Jay instructed the jury:
“It may not be amiss, here, Gentlemen, to remind you of the good old rule, that on questions of fact, it is the province of the jury, on questions of law, it is the province of the court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this, and on every other occasion, however, we have no doubt, you will pay that respect, which is due to the opinion of the court: For, as on the one hand, it is presumed, that juries are the best judges of facts; it is, on the other hand, presumbable, that the court are the best judges of the law. But still both objects are lawfully, within your power of decision.”
A century later (1895), the Supreme Court considered the case of Sparf v. United States, in which the defendant argued that the trial court had erred by preventing the defense attorney from arguing that the jury was not required to follow a law that is unjust. The Supreme Court ruled that the trial judge had acted properly, stating: “…by clearly stating to the jury that they may disregard the law, telling them that they may decide according to their prejudices or consciences (for there is no check to insure that the judgment is based upon conscience rather than prejudice), we would indeed be negating the rule of law in favor of the rule of lawlessness. This should not be allowed.”
That seems to be the state of the law today. A jury can disregard a law it feels is unjust, but a defense attorney is not allowed to make that argument. Juries rarely do that, though.
Much more could be written on the topic of jury nullification, but this is not the time to do that. (A more complete historical discussion can be found here.) This is a Tao Te Ching Tuesday, so we should discuss the Tao and the Te. As we know, the thoughts left us by Lao Tzu are referred to as the Tao Te Ching. The translation of that title is roughly “the classic book of Tao and Te.” We already know that Tao is a concept that cannot be adequately described, though millions of words have been written by about it by thousands of commentators. What about Te? Can it be defined?
In Historical Dictionary of Taoism, Julian Pass wrote that Te “is the inner and outer power bestowed on each being by Tao, or all the qualities for action inherent in the nature of each being, which gives each being a way to maintain itself, to grow and flourish.” Others, like James Legge, have told us that “Tao Te Ching” means something like “the classic book of the Tao and its characteristics.” Thus, “Te” would refer to the actions which characterize Tao. Those concepts are not so different, but neither are they exactly the same.
Ultimately, it would seem that “Te” is nearly as difficult to define as is “Tao.”
In this chapter, Lao Tzu tells us, among other things, that when the Tao is lost, there is goodness. Goodness is not inherent in the Tao because it is seen in the context of a duality of good and bad – a duality which does not exist in the Tao. Nevertheless, Lao Tzu recognizes that duality is recognized in the physical world. He tells us, too, that in the hierarchy of the physical world, goodness is placed higher than kindness, which is placed higher than justice, which is placed higher than ritual. The world as perceived by us mortals is imperfect and these concepts are imperfect. They seem to be related to the concept of Te, but not to the true “true” or “great” Te, because all recognize duality and separation.
The idea of jury nullification which was discussed at the beginning of this post reflects the lowest levels of Lao Tzu’s hierarchy. To enforce a law which is unjust or immoral is only an empty ritual. Of course there are probably social or economic reasons for the existence of such laws, but I am trying to be very simplistic here. Justice, then, is a step above that kind of ritual and thus the concept of jury nullification can be seen as act of Te – an act bringing the Tao closer to realization in this world.
POST SCRIPT: In this post I have begun to look at definitions of “Te” and introduced the concept of a true or great Te. I neglected, though, to mention any background for the importance of the concept.
There are some scholars and students of the Tao Te Ching who say that it should really be looked at as two distinct works. The first 37 chapters could be considered the “Tao Ching” -the Book of Tao. They are more philosophical and describe, to the extent words may do that, the essence of the Tao. Chapters 38-81 are seen as the “Te Ching” – the Book of Te.
The invisible force known as Tao exists in each of us. Indeed, we exist only because of that force. Te is the power or virtue a ruler or an individual exhibits by living and acting in accord with the Tao. The previous chapters have shown that the sage becomes closer to the Tao by eschewing the need or desire for goods and honors and positions of authority. Rather, he or she leads a simple live in accord with natural principles.
From that state of simplicity, the mind of the sage influences those around him, and indeed the whole world through his example and attitude toward life. The ability to do that stems from Te,as we will see in subsequent chapters.