DOI：10.19685/j.cnki.cn11-2922/n.2022.06.013





Abstracts：In recent years，with the influence of modern information technology on the traditional humanities and social sciences，the study of legal theory has increasingly shown a trend of “digital” transformation. This “techno-logical，1 path，which is different from traditional legal research and thinking，is no less than an ideological revolution that has swept through the foundations of the development of the discipline for the study of legal philosophy. In the Internet era，the logical unit of operation based on computer software and hardware code determines that it is the only code that can effectively regulate network technology and behavior in the information space. Therefore，in the face of the high degree of informationization of adjustment objects and modes，the legal provisions traditionally regulated by textual logic must be transformed by codes to function effectively in the information space. Then，how to properly deal with the contradiction between the highly abstract digital operation mode and the highly concrete realistic behavior mode is not only related to the transformation of the legal theory research mode but also affects the turn of the legal norm adjustment mode. To analyze the above problems，we need to start with “code of law” and “code as law” and explore the fundamental theoretical issues of constructing the operation mechanism of legal norms in an informational environment.
Key Words：legal theory；law as code；code of law；philosophy of law；computationalism
CLC：D 90　　DC：A　　Article ID：2096-9783（2022）06-0126-09
　　In recent years，against the backdrop of rapid technological innovations in computer and network technologies，legal theory research is increasingly penetrated and influenced by “digital” thinking. This thinking is an essential application of computationalism research. The core concept of computationalism is to emphasize that “computation” is no longer a specialized concept of mathematics but has become a new perspective and method for understanding things and studying problems. In recent years，with the continuous development of big data technology，the algorithm-based governance model has increasingly become a hot issue of social concern. In the field of legal research，this trend is reflected in the rise of “metrological jurisprudence” characterized by technology and quantification，as well as the emergence of academic achievements based on the idea of the mathematization of law and information space jurisprudence as a research method，which has set off a wave of technologicalization of legal research in the information age. In this academic paradigm shift，the theoretical view that “code is law”［1］ proposed by Lawrence Lessig in his book Code：Shaping the Law in Cyberspace has attracted the most attention and debates in the academic community. This theoretical viewpoint emphasizes a set of “laws” with an independent logical structure and identification system operating in the cyber world，which is the code. It is this system of rules based on the existence and operation of codes that not only determine the software and hardware facilities of cyberspace and their operation logic at the technical level but also，more importantly，becomes a critical system of rules that determines the information space. With the deepening of information technology in legal research，academics have paid more attention to studying “legal coding”. Analyzing the current status of academic research，we find that the theoretical research on “legal coding” is still relatively weak. Starting from the basic logic of its formation and development，further thinking and grasping how the code becomes an adjustment instrument with the nature of legal rules，and finally，analyzing the mechanism of operation become the critical issues of relevant research.
1 The Legal-Philosophical Basis on Legal Coding
　　In 2009，Lawrence Lessig explained the concept of “legal coding” in his book Code 2.0：Law in Cyberspace. He believes that the process of “legal coding” is an extension of textual legislation in the form of code legislation and that code will be the presentation of legal coercive power in the bit world（Code as Law，so Code is Law）［2］. This “technical” path is different from traditional jurisprudential research and thinking. It is more likely to be a paradigm revolution for studying the philosophy of law，which influences the direction of the discipline's development. This development of jurisprudential research is characterized by formalization，systematization，and computability，“considering law as a formal system of calculation，with the help of which the inevitable legal consequences of certain actions can be calculated as precisely as possible.［3］” Therefore，just as the inherited characteristics of the development of humanities and social sciences，the theory of “legal coding” is closely related to traditional legal research and is the inevitable product of the development of traditional legal philosophy research in the era of information technology.
1.1 The Influence of Hans Kelsen's Normative Philosophy of Law
　　According to Kelsen's philosophy of normative law，the legal order is a system of norms. As a social regulation mechanism，legal norms，when reflecting phenomena，are not just a simple mechanical and intuitive portrayal of social reality but a system of rules to dynamically regulate social relations. The process of the operation of law achieves the goal of adjusting and regulating social relations through optimizing the structure of social operation and coordinating the behavior of social operation. At this time，the law as a system of rules does not directly adjust real social interests and behavior patterns. The idealized mode of social operation is abstracted by the legislator according to the rule form of law，forming a legal structure system with a hierarchical effect. At this time，the legal order forms a relatively independent operation system in the process of different levels of the normative system，which is a “legal world” or “normative space” with relative independence. However，this abstract legal normative order，constructed on the basis of legal rules，is not simply the legal rules and system itself but an idealized social state that people generally want to achieve by regulating social activities according to the legal rules and normative systems. In other words，this system of legal norms exists as a channel of conversion between the abstract legal provision and the external objects of the social phenomena they regulate［4］. Therefore，the significance of Kelsen's dualistic research paradigm of norms and rules for the study of “legal coding” lies in the fact that the normative law and the abstract rule structure of law are used as the starting point of law and the rule form is used as the research object to construct the jurisprudential research system，which can，to a certain extent，eliminate the “carrier” form of legal norms. From the perspective of historical development，legal rules have undergone multiple forms of transformation，and both text and code can be used as forms of existence of legal norms.
1.2 The Influence of Dworkin's Philosophy of Conceptual Law
　　The legal system maps social reality's operational features logically and abstractly. Based on this，conceptual jurisprudence holds that the system of rules constructed in view of legal concepts establishes a “logical space” on account of the system of legal concepts. At this point，in the overall structure of the logical space，law，as a meaningful and integral conceptual system with diverse connotations，is a “conceptual pyramid” constructed according to the rules of formal logic. With the above analysis，Dworkin's theoretical system believes that the so-called “legal empire” can be constructed considering the overall character of the legal space. In the interaction of different levels of normative systems，a textual form of legal order system with hierarchical effect is gradually formed. At this point，the legal concept system itself is not a simple rule and system of its external manifestation but an ideal state of order that people want to achieve by adjusting social activities because of the legal rules and normative system. In reality，it is possible to achieve the mutual mapping of legal rules and conceptual systems by logical interpretation of static textual norms to achieve the realistic normative operation of legal rules for adjustment. The significance of the idea mentioned above for the study of legal codification lies in the fact that a special conversion mechanism exists between social norms and legal norms，and the external expression of this conversion mechanism is the logical space of law. The legal system is growing increasingly intricate，displaying systematized and structured traits［5］. To some extent，this conversion can also be performed by the code，which functions as a highly abstracted logical operation rule.
1.3 The Influence of Luhmann's Philosophy of Systemic Law
　　The construction of concept forms of legal relations and abstract logical systems is the primary focus of conceptual jurisprudential philosophers，with little or no attention frequently paid to the social and value-oriented factors that underlie legal relations. In order to bridge the gap between the two，the “sociological theory of law”，represented by Luhmann，has gradually emerged in recent years. The core of systemic jurisprudence is to use the high complexity of the legal system to resolve the high complexity of real society. Its core system is to unify the system of legal rules into a logically clear，internally consistent，systematically complete，and efficiently operating system. Although the legal norms are in a closed form at the level of systemic composition，they are in an open form at the level of operation mechanism. The legal space or legal system will face various complex systemic feedbacks from the social environment. From the perspective of systemic research，the law is not just a norm itself or a simple collection of norms. Norms are “stabilized expectations of behavior” that are developed to maintain social order. Not all social norms can enter the legal space formed by the legal rule system［6］. Only those determined as legal norms by the legal system can become part of the legal space. There is a systematic coupling between the normative legal and external systems environments. At this point，the law is not only a textual system of rules but also a systematic and self-consistent system of operation. The normativity of law is constructed not only in form but also in substance as an organic system with diverse connotations and a meaningful whole. The rationality and regularity of this system itself can effectively regulate and adjust the external environment. As a result，according to Luhmann，the fundamental operating principle of the social system structure is the adjustment of legal norms to social behavior through the interaction of the rule system and the external environment. Within the system，self-integration，self-stabilization，self-sustainability，and self-adaptability can be effective normative mechanisms for reducing social complexity through code formations.
　　From the analysis above，it is clear that these three philosophical theories of law share a trait，even if they each have unique formal characteristics. They all make the rule system that adjusts the operation of real society highly abstracted，making this normative system formed in the process of self-improvement of the rule system constantly systematic to form an independently operating rule space system. The traditional textual expression based on legal texts enables the legal system to break away from the constraints of the actual space and reach the sphere of the independent logical space. However，in terms of processing power，the logicalized text，in its systematization and precision，cannot yet provide a whole description of the logical structure of the normative space. This spatial system's logical self-consistency，predictability，and stability would craft a homogeneous legal technology and methodology that would ensure and preserve the relative independence of the law's operation［7］