Theoretical Logic and Technical Paths of Legal Coding

Chu Erkang，Zhang Yu

(1.School of Politics and Administration,Tianjin Normal University,Tianjin 300387,China;2.School of Marxism,Taiyuan University of Technology,Taiyuan 030600,China）

Abstract: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"technological"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.

Keywords:legal theory;law as code;code of law;philosophy of law;computationalism

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 bookCode:Shaping the Law in Cyberspacehas 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 bookCode 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].However,this traditional legal-philosophical analysis model is bound to undergo a morphological transformation when faced with an information space that appears in a highly scaled and data-oriented form.Human beings extensively use computers to solve real social problems because the analysis of complex logical relationships in modern society greatly exceeds natural persons'limited data analysis ability.At this time,the traditional way of adjusting legal rules will not apply to the needs of the development of information technology.That is to say,in the process of collision and convergence between real space and legal space,the behavior regulation of information space is far from being solved by the code system alone[8].Such phenomenon is reflected not only in the continuous penetration of information technology path to legal regulation,the trend of mutual integration between the digital space in the field of regulation and the textual space of the legal rules system but also in the significant changes that exist in practice between the system of regulation methods and the mechanism of regulation operation.So,in this process,does the law impact the code world,or does the law influence the code world?This question is not only a technical path to think about but also a legal research question.

2 Operational Mechanisms for Legal Coding

The integration of code and law to achieve a more effective and orderly"digital socio-legal system"has become a hot topic in the current research of legal philosophy against the backdrop of increasing digitization[9].A historical tendency of future development is to use information technology to reconstruct the universe of legal writings and substitute words with codes.This is not only related to the path of the integration of technical rules and legal norms brought by informationization and digitization in the Internet era but also more related to the issue of the particular way of governing the behavior of various rules in the information space.How to achieve the unification of the"rule of law"in the material world and the"rule of code"in the information world in the integration of the digital world and the real world is a hot topic in the research of"law as code"from the perspective of the fundamental operational characteristics of legal"coding",and it is also a significant reflection of the paradigm shift of humanities and social sciences research in the current digital technology development environment[10].For the above reasons,building a"legal coding"regulatory form through the digital conversion path is inevitable.The basic concept of legal coding and its operation mechanism show different operational characteristics.

2.1 Runicized Characteristics

The main object of the problem of coupling the information space with data as an element and the code of legal rules is the interrelationship between the system and its components,various levels and structural functions,and between the system and the external environment.This involves the construction of several spaces of transformation mechanisms,that is,the problem of how to create a transformation mechanism between the space of possibilities of normative legal behavior(normative space)and the space of possibilities of actual behavior(real space).It also involves coding the world in different ways,both in the form of texts and in the form of a"binary"system based on quantitative analysis[11].From the legislator's point of view,the construction of legal rules needs to be abstracted based on legal relations to make the intuition of mastering organic connections into abstract rules.Conversely,the applicator must enrich the abstract rules into the original organic linkages to use complete intuition as the foundation for applying the rules.The legislator's task is to"discrete"the various concrete connections through abstraction to form a complete logical system through the judgment of legality and illegality.In this process,through the"legal/illegal"dichotomous coding,the mechanism and path of conversion from the space of social reality to the space of legal norms can be built.Through the abstraction and analysis of real social relations,the content outside the adjustment of legal norms can be regarded as invalid information and filtered out of the adjustment scope of the legal norm system.The structured system of abstract legal rule can"analyze"the real social relations and realize the adjustment and regulation of the real social problems based on it,thus realizing the dialectical unification of the rule system and the real social system[12].The law gradually achieves the anticipated orderly adjustment of social norms and organizational stability based on the logic of operation of"legal/illegal"binary code,forming an autonomous system of social norms with"legal/illegal"binary code as the core,internally closed and externally open,self-operating and self-creating.In this process,the abstraction of the normative system of the behavioral space,which is in line with social justice,is carried out through legislative technology,and the normative rule system,in the form of symbolic form,is formed by setting up the constraints used for social control.Moreover,through the representation form of the symbolic code,the mechanism of the normative role of the legal system for the regulation of cyberspace and the adjustment of people's behavior patterns in real space has a high degree of consistency.At this time,the code is not only the rule of cyberspace but also the law of data space.

2.2 Algorithmic Characteristics

The key to reconstructing the world of legal texts through information technology lies in replacing words with codes,which is an inevitable choice for the form of legal operation in the information age.Understood from the perspective of the realization path,it is completely different for the formation of various sophisticated social phenomena and systems,with some mathematical structure through algorithms or rules[13].The"legal coding"process is accompanied by the optimization of algorithms,that is,the ability to organize structural systems through computational functions.It is converting the law into a computer language for formal expression,realizing the computability of legal texts,and performing logical reasoning and intelligent analysis through mathematical modeling-where we should emphasize the organic fusion of formal logical processing and digital computational realization paths as well as a new paradigmatic interpretation of the system.By deconstructing the text into a complex algorithmic system and using more rigorous computer analysis tools,it realizes the automatic computer processing of normative adjustment,thus realizing the adjustment and regulation of real social relations at a higher level.Therefore,the realization of legal coding ultimately falls on the technical level.At the technical level,the law is converted into machine code,a programming language that machines can understand.By using the"legal/illegal"distinction as the basis of the binary code,the"true/false"path of the computer language as the implementation path,and using binary codes for expression,the algorithmicization of legal norms is realized[14].This provides the theoretical premise for a system to achieve"structural synergy"through self-change.The legal text is extracted and coded through the digital coding method to realize the legal norms'coding path,regulate the digital space's behavior with the coded normative system,and influence people's behavior in actual society.Therefore,the maturity of big data and blockchain technology has dramatically accelerated this progress and provided solid technical support.

2.3 Informational Characteristics

In general,any object's structure and the information state it condenses map to and identify the information form that belongs to that object.The subject discovers a more prosperous inner relational aspect and a deeper essential character of the object in its condensed signal relations by integrating the information it condenses.Digital forms of physical objects can realistically reproduce in computers the set of social operation norms of human social development.In terms of the mechanism of action,the essence of information technology development is to effectively transform real social problems using computer processing mode,convert the real world into a controllable object of code representation,and take the data generated by the real world social behavior in cyberspace as the object of adjustment,so as to achieve the purpose of adjusting the real space"concretization"with the"abstraction"of data form.From this analytical perspective,legal rules can be considered a"pure and internally consistent formal aggregation of material elements",a systematic result of logically and abstractly mapping social reality.As a regulatory mechanism and structure,the information allows the social system to function effectively with this model,thus realizing the operation and paths in the pluralistic structure.Therefore,in terms of operation mechanism,the compatibility and self-description of encoding are achieved by introducing external information,encoding itself and adjusting structural procedures,changing its organization,and using its logic to complete the internalization of foreign information.Therefore,through the transformation path of informatization,the modeled and symbolized social order adjusted and reproduced by the legal system makes the operation and transformation of the legal system no longer depend on the complex social reality,but the legal system adjusts the informalized object to form a rulebased existence,which further visualizes and fits the spatial system of legal normativity corresponding to the real world.Specifically,the essential feature of its operation mode is that through the processing and analysis of"databased"objects,the complicacy of the external environment can be put into the internal schematism,and through the operation of the spatial elements of the normative legal system,the normative information content of its system is"projected"back into the external space,so that legal relations can effectively adjust social relations.The legal system,on the one hand,increases the complexity of its internal operations,which is the central expression of the self-creative nature of its system operation.On the other hand,it achieves the regulation of the complex society utilizing normative and structured processing models and digital and information"compression"technologies.It can realize the systemic coexistence with external physical spaces,including data space,based on the precise operation of its model mechanism,thus achieving the critical change of operation mode of"adjusting the other by adjusting itself".

3 The Technical Path to Legal Coding

From the current academic research results,although there are more analyses and interpretations on the conceptual level of legal codification,there is no clear answer from the perspective of the operation mechanism.With the study and usage process of data and normative paradigms,system science to the composition,process,and relationship of normative elements in practice has become the key and focus of legal codification research.In the initial stage of its construction,the idealized normative model emphasizes the logical construction of the elements consistent with the materiality of society to realize the adjustment and regulation of social reality in a formally rational way.In the information space system,the digitized legal norms are the adjustment of data objects.The core of constructing the legal codification operation mechanism lies in realizing the mode conversion from data objects to real objects.In other words,legal norms are expressed in computer language,and through computable logical design,the law is transformed into computer code to realize the codification of legal provisions and logical reasoning and intelligent analysis through mathematical modeling.The rapid development of artificial intelligence,blockchain technology,and big data has provided strong technical support for legal science to express legal texts in code and realize the conversion and optimization problems from text to code.

3.1 Abstract Representation Process

Since the objects of legal norms involve all aspects of society,it becomes a vital issue whether the vast number of subjects and complex relationships in real space can be converted into codes.Although the conversion of the law as code is highly technical,from the perspective of the formation and operation mechanism of legal norms,the focus still lies on abstracting the complex objects of real social behavior into static legal rules.How this abstraction is accomplished has changed from concepts to codes[15].While from the perspective of information technology development,although the basis of computer science is binary and logic circuits based on formalized logic,different levels of abstraction can be generated to realize the model architecture of real society in the digital space of logical information.Many entities still exist in the data space,and even though abstract forms characterize such entities,they can still be known and perceived in such space.This abstraction process does not eliminate the information content of entities but rather characterizes them through a highly symbolic system.Through data-based abstraction and simulation,a complex virtual world can be created in the information space system,where details are sketched and described in a richer form,thus achieving a complete construction of entity states at a higher level.The construction of information space is a suitable place for virtual life and construction and expansion based on information resources and a new composition structure and relational embodiment of information.Analyzing information and knowledge from a constructive perspective,the object generated by reorganizing information extracted from various real entities in social life becomes a new physical existence.Through digital abstraction and simulation,the law operates in a data-based form and can sketch and process the details of natural things in a richer form.

3.2 Modeling Process

The introduction of the idea of codification into the traditional field of legal studies creates a space for research into the modeling of the processes that create and operate legal conceptions,institutions,and systems.Unlike natural systems,which are characterized by quantifiable elements and linear relationships,social systems are characterized by the unquantifiability of their constituent elements and the non-linearity of their functioning.The gulf of methodological systems must be crossed to move from depicting concrete problems to higher levels of abstraction.In this process,it is necessary to explore how abstraction can be used as a mode of treatment to systematize the object of study.As the essential operation rule of the legal modeling analysis method,the systematization and structure of the code itself are the critical links.Only through the effective operation of the legal model system can we effectively adjust external social behavior.In this process,it is a crucial link to simulate the natural language of legal texts with computer language in the quantitative form to convert the textual language of laws into data language that computers can process[16].The key to this implementation process is to express the law in a computer language.The simulation and constructive nature of the model allow the technology to be used more effectively to adjust real social behavior,changing the model settings to realize the simulation of real social relations and thus achieve the goal of legal regulation more scientifically and effectively.By depicting the abstraction of real objects and distilling,analyzing,and summarizing information about real objects using simplified,abstract mathematical models with real-world references,an essential direction for legal codification research is achieved within a more normative and predictable context.The rules of law normative structure and the sophisticated reality of its working are abstracted based on related research approaches,such as modeling,advancing our understanding of the crucial links between the operation of the components.The development of data space modeling has significantly altered the traditional legal research model at the level of legal operation.The simulation and constructive nature of the model allow the technology to be used more effectively to adjust real social behavior,changing the model settings to realize the simulation of real social relations and thus achieve the goal of legal regulation more scientifically and effectively.

3.3 Data-based Feedback Process

The virtual world generated based on data is an artifact,a reaction and prototype of an artificial reality based on symbols,a structural body of elements based on the interaction of the subject's cognition and the object's information environment.The modern legal system tends toward abstraction,operating outside the bounds of concrete fields,interpreting social systems through abstraction mechanisms,giving rise to abstract and virtual spatial features within a new structured mode of connection,thereby producing a new form of expression.Converting objects to code is a technical path based on an abstract mathematical model to convert the real world into an abstract,simplified mathematical structure through discrete algorithms.By refining,analyzing,and summarizing the elements of real object data,quantifying textual data so as to be recognized and operated by computer systems,and finally achieving the purpose of data-oriented and algorithmic conversion of real adjusted objects with the construction of algorithmic models.The algorithmic system transforms other systems'organizational structure and operation mechanism into a code system.These legal codes are formed by human construction and practice to form a legal system independent of other systems.At the operation level,it describes the major features of the external world by its inner modeling as the information model and realizes the adjustment and regulation of real social behavior through its standardized structure system.At this time,the purpose of binary localization of entity information realizes the process of abstraction of the subject,and then the content of the subject of the real society in the form of logical information,transitions to the digital space level for processing.In order to adapt to the continuous growth of social complexity,the legal system uses legal communication to operate on its own,changing its form and structure to overcome the complexity of social functioning in a way that grows its internal complexity.In this process,"law as code"involves configuring legislative power.Constructing a sound technical regulation strategy,exploring issues including clarifying the subjects of power for code conversion,unifying the technical standards of algorithms,and establishing an algorithmic filing system are all necessary steps in the code conversion of the operation of traditional legal norms.How to further clarify the basic protocols for legal coding and then enhance the effectiveness and transparency of algorithm operation becomes an important research area.

4 Conclusion

The above analysis concludes that the unit that can essentially understand the logic of computer operation and the ability to form an influential regulatory role for network technologies and behavior in the information space can only be the code.Based on the traditional sense of adjusting the norms of behavior,the legal provisions must be converted through the code to play an influential role in the information space.This path of"technologization",which is different from traditional legal research and thinking,is no less than an ideological revolution for the study of legal philosophy,which has swept through the foundations of the development of the discipline.From the perspective of code legalization,studying information space jurisprudence is bound to face how to properly deal with the contradiction between the highly abstract digital operation mode and the highly concretized real behavior mode.This is not only about the path of integration of technical rules and legal norms brought by informationization and digitization in the Internet era but also about the particular way of governance between such different rules in information space behavior.For the"legal coding",there are still many misunderstandings in traditional jurisprudence,which is not only a technical thinking path but also a value judgment issue.One crucial direction of research in"law as code"is how to apply the necessary algorithms to fulfill the goal of legal valorization.From the perspective of legal coding,forming a codified system of rules as an abstract path of complicated social relationships,in reality,is also distinctly value-oriented.The codified law is not a legal system that emphasizes the absence of contradictions and logical self-consistency,which can solve all legal problems without considering the legal purposes outside the system.In the collision and convergence between real society and legal theories,the regulation of behavior in the information space is far from being solved by the code system alone.Because legal coding cannot avoid the property of value judgment,the lawmaker establishes social values and order as the standard of behavior and defines the space of realistic possibilities for the behavior of social subjects.This is because the legal"algorithm"system is related to the generally accepted pre-determined rules of socio-political activities.Hence,it needs to consider more non-rule factors such as policies,justice,customs,and common sense,and ultimately must realize its value orientation around rules and institutions.This enables us to achieve logical unity in our knowledge and unify the model system with legal meanings and values.