[author]Weizhi Song

[content]

 Is Digital Law Really Here?

*Author Weizhi Song

Postdoctoral Researcher, Koguan Law School, Shanghai Jiao Tong University

Abstract: The study of legal issues brought about by the development of digital technology has pushed forward digital law as an academic proposition. Although digital law is developing rapidly and has become a popular research field in the academic world, the research on theoretical issues such as the theoretical basis of digital law is still relatively weak. On the one hand, digital law lacks a clear problem area, and the problems studied are essentially technical problems, which can be explained through the improvement of the existing jurisprudence theoretical system; on the other hand, digital law lacks sufficient theoretical construction, which neither breaks through the traditional theoretical framework of power nor proposes the theory of technological transcendence. As a result, digital law cannot be justified in terms of both problem areas and theoretical constructs. Instead of saying that digital law is a new paradigm for legal research, it is better to recognize that digital law is essentially a vague generalization of technology application scenarios. The digital society is only one of the many perspectives for observing society, and the arrival of the digital society does not necessarily mean that legal research has shifted to digital law. In legal theory, digital law is not a real academic proposition.

Keywords: digital law; digital society; digital technology; legal theory; new jurisprudence

Introduction

digital law is one of the current academic concepts hotly debated in the legal academy. In recent years, around digital law, the academic community has carried out intensive academic activities, such as publishing academic papers in important journals, publishing academic books, founding academic journals, organizing academic conferences, forming teaching and research institutes, and planning for postgraduate training. It seems that overnight, digital law has become an important pillar of legal research. There are even views that digital law is similar to the digital economy, as an integral part of digital China's discourse design, is the historical necessity of today's era of superstructure, digital law to the height of the top-level design.

Undoubtedly, the rapid development of digital technology makes human society deeply penetrated by "digital", "the tentacles of subversive science and technology not only touch the daily life of the general public, but also have been extended to the economic, social, political and even spiritual fields of human beings". Human society can no longer do without digital and the various technologies it brings. In this sense, today's society can be called a "digital society". In this sense, today's society can be called a "digital society". So, does the study of jurisprudence in the context of a digital society automatically become the study of digital law? That is, is digital law an inevitable logical progression of the digital society? In the face of the sudden emergence of digital law, we must ask: what is digital law? What should be studied? The further question that should be asked is: what are the similarities and differences between the study of digital law and the current study of jurisprudence? On the basis of these thoughts, this paper attempts to reflect on a fundamental theoretical question: is digital law a real academic proposition?

1. The basic scope of digital law

Any academic concept does not appear out of thin air, the generation of academic concepts are supported by a certain accumulation of research. The same is true for digital law. Although the current special research on digital law is not rich, but combing the academic development behind the vein, analyze its attempt to study the content, observe its own academic positioning, for us to grasp the overall "what is digital law" is helpful.

1.1  The Development Process of digital law

digital law is a popular expression in the current discourse. Using Zhi.com to search for "digital law", it can be found that this concept first entered the academic community in 2018, when Professor Zhang Wenxian published an article entitled "Towards a scientific and modernized Chinese jurisprudence". The article proposes that "digital law" is a "new category and new concept of jurisprudence", but its connotation is still "incomprehensible", "ambiguous " and "answering the wrong question". Professor Xu Juan 2019 published "digital law of binary recursive symbols", but the "digital law" mentioned in this article is essentially a synonymous replacement concept for "data jurisprudence". Obviously, the "digital law" here is not the same concept as the digital law that is currently hotly debated in the academic community. If we examine the published academic literature in China, the publication of digital law: Principles, Paths and Structures in May 2021 is a landmark academic event in the development of digital law. This document first relatively systematically outlined the scope of research on digital law. From this point, digital law has "grown" in just three years, and is still a very new, newly popularized, and currently trending academic concept.

However, digital law is not an academic concept without any research basis. The current basic consensus is that the proposal of digital law cannot be separated from the academic research on issues such as cyber jurisprudence, data jurisprudence, computational jurisprudence, artificial intelligence jurisprudence and so on. digital law may be a distillation of these "fragmented" studies, or it may be a general term for these studies. Either way, digital law is an academic concept with a large research base. Or rather, the study of digital law is still inseparable from the support of these issues. For example, taking digital law: Principles, Paths and Structures as an example, the research content of digital law includes at least four aspects of personal information protection, artificial intelligence legal responsibility, network security and regulation, digital rule of law and justice. Again, some scholars have proposed that the construction of the discipline of digital law includes the general principles of digital law, digital basic law (data law and digital security law, etc.), and digital application law (digital economic law, digital intellectual property rights, etc.).

The development of digital law has an obvious "technical background". Studies such as network law, data law, computational law, artificial intelligence law, etc., are carried out in the context of the development and application of technology ahead of the legal norms, and produce or may produce legal blind spots, with an obvious "problem - countermeasures" logical progression. This determines that the development of digital law can not be separated from the support of digital technology - the "digital" here includes but is not limited to computers, the Internet, cloud computing, data, information, platforms, artificial intelligence, and other technologies that rely on binary computing in depth. binary computing. Regardless of the future direction, the intellectual background of digital law consists of solving legal problems arising from advanced technologies.

But the technological context alone is not sufficient to support the growth of digital law as an academic concept. The obvious fact is that issues such as cyber jurisprudence and artificial intelligence jurisprudence have been studied relatively systematically in China as early as the beginning of the 21st century. If we say that 20 years ago digital technology was not yet developed, and thus the relevant research was not in-depth; then, in the past 10 years, the research literature on real problems, judicial decisions, and academic disputes based on the large-scale popularization and application of digital technology can be said to be overwhelming. However, until Professor Ma Changshan published the article "Theoretical Expression of digital law" in 2022, there has never been any discussion on the construction of digital law at the level of basic theory of jurisprudence; on the contrary, the research of AI jurisprudence, data jurisprudence, computational jurisprudence, etc., are more inclined to divide into their own fields and carry out research that may be connected but not interfering with each other, and they have a distinctive "characteristic of the times". The "zeitgeist". Therefore, there may be other factors outside the academic context that support the emergence of digital law.

It is worth noting that studies of digital law have coincidentally mentioned the construction of "new liberal arts" and "new jurisprudence".2021 The Ministry of Education issued the Notice of the General Office of the Ministry of Education on the Recommendation of Research and Reform Practice Programs for New Liberal Arts (Letter of the Office of Higher Education [ 2021] No. 10), which states that the new liberal arts should be recognized by the Ministry of Education. 2021] No. 10), the construction of the new liberal arts entered the stage of project materialization and promotion. This point in time is highly overlapping with the rise of digital law in the academic world. It may be in the emphasis that the new liberal arts should "adapt to the transformation from industrial civilization to information civilization", the new jurisprudence should strengthen the "scientific and technological orientation of the teaching system", and the research of jurisprudence should "reflect the laws of digital society, characterize the logic of digital development, and present the value of the digital era". Under the policy background of "reflecting the laws of digital society, characterizing the logic of digital development, and presenting the value of the digital era", digital law is proposed as an academic concept that condenses or integrates the jurisprudential issues related to digital technology. Perhaps digital law is the natural outcome of many years of previous research, but the new policy's guidance for the intersection of arts and sciences has undoubtedly contributed to the emergence of digital law. Therefore, the development of digital law is inseparable from both the technical background of the rapid development of digital technology and the policy background of the construction of new liberal arts and new jurisprudence.

1.2 Theoretical Connotation of digital law

What is the specific problem of digital law? To answer this question, first of all, we should clarify what semantics different scholars are discussing digital law. At present, there are two types of positioning of digital law: the first type, represented by Professor Ma Changshan, believes that digital law is "the reconstruction of modern jurisprudence beyond and the conversion of generation", emphasizing that "digital law is not an emerging discipline, especially not under modern jurisprudence,". ". This position is at the level of the intergenerational evolution of jurisprudence, and it is proposed that digital law should be positioned in the genealogy of "classical jurisprudence - medieval jurisprudence - modern jurisprudence - digital law".This type of view can be summarized as "generational innovation theory". The second category, represented by Professor Hu Ming, believes that "digital law is a cross-research field in which digital technology and legal theory are deeply integrated", emphasizing the interdisciplinary intersection of knowledge and subject matter. Although some studies have proposed that digital law is "an emerging interdisciplinary discipline with independent disciplinary positioning, disciplinary attributes, research perspectives and methods", it is still considered that digital law is a branch within the discipline of law, or a cross-research field based on the discipline of law. This type of view can be summarized as "emerging discipline theory".

For the intergenerational innovation theorists, the context of digital law is "the dual space-time environment of physical/electronic, the hybrid behavioral model of natural/digital people, the logic of human-computer synergy of subject/object (intelligences), and the triadic framework of state/platform/society (public/private/private rights)". This means that digital law does not carry out research at the level of "problem-response" - of course, providing norms to respond to the legal blindness brought about by the application of digital technology is also one of its tasks, but such work is only a part of digital law. Of course, providing norms to cope with the legal blindness caused by the application of digital technology is also one of its tasks, but this kind of work is only a part of digital law, and not even a very important part of digital law - the goal of digital law is to construct jurisprudential paradigms for the new era. Therefore, digital law proposes solutions to the legal problems of the present, but only for the purpose of "transferring and inheriting" from modern jurisprudence, and its main research content is the reconstruction of the basic theories of jurisprudence after the change of the times. For example, digital law needs to answer the question of electronic identity of natural person which cannot be explained in a comprehensive way within the existing legal framework, but the solution of digital law is not to settle the "digital person" in the existing law, but to reconstruct the basic position of the law on human beings, and to elevate the digital person to the height of the same status as the natural person, in order to rebuild the whole Instead, it attempts to reconstruct the basic position of the law on human beings, elevating digital persons to the same level as natural persons, with a view to rebuilding the entire theoretical framework of law.

For the theorists of emerging disciplines, digital law is a typical product of "jurisprudence +". "Jurisprudence + algorithm", "Jurisprudence + data", "Jurisprudence + artificial intelligence" and so on have been quite common research patterns in recent years. The general background of digital legal research is that "digital practice is obviously ahead of legal research", and its emergence is either based on "looking for various possibilities of applying emerging technologies represented by artificial intelligence to the theory and practice of jurisprudence", or based on Its emergence is either based on "looking for various possibilities of applying emerging technologies, represented by artificial intelligence, to the theory and practice of law", or on the consideration of "how the traditional value of the rule of law can be adapted to and domesticated in the era of new technologies". Therefore, digital law has a distinctive "problem-countermeasure" approach, the problem domain brought by digital technology constitutes the main content of digital law, and the expansion of the connotation of digital law relies on the innovation and application of digital technology. Comprehensive digital law research basis, taking into account the development of digital technology in the present and foreseeable future, some scholars believe that digital law mainly contains data jurisprudence, network jurisprudence and artificial intelligence jurisprudence of the three fields; there are scholars also proposed that, according to the different technical objects can be differentiated from digital law research content into elements, platforms and outputs. Obviously, the different divisions of digital law research content is only the different basis for researchers to categorize; the core is to put forward the jurisprudence response program of digital technology, which is the basic thesis of digital law as an emerging discipline.

1.3  The mission of digital law

Based on the content of the research, digital law has at least two constructive goals. For generational innovation theorists, digital law is to rebuild the entire legal discipline system, and ultimately hope to realize the transformation from modern jurisprudence to digital law; while the emerging discipline theorists hope to solve the impact of digital technology empowerment on the existing legal system. To summarize, the former is more macroscopic, while the latter is relatively mesoscopic. However, no matter at what level the construction of digital law, digital law as a discipline has a common construction goal.

First, to promote the construction of new liberal arts and new jurisprudence. The construction of new liberal arts emphasizes "not only to inherit the traditional and classical culture, but also to show the new changes resulting from the cross-fertilization of philosophy and social science with the new industrial and technological revolution". The construction of new jurisprudence more specifically puts forward the goal of "adapting to the impact of the scientific and technological revolution on the future rule of law and the cross-fertilization of jurisprudence with other disciplines". Therefore, to carry out research on digital law, to pay attention to the path of legal regulation of new problems brought about by digital technology, and to build a framework for the guidance of law to the digital society is not only to respond to and supplement the lack of coverage of the existing legal norms and to solve the legal problems arising in real life, but also to expand the breadth of jurisprudence through the crossover between jurisprudence and digital technology, and to "open up a new field of jurisprudence that is different from the traditional jurisprudence". It is also to expand the breadth of legal research through the intersection of law and digital technology and to "open up new fields that are different from traditional legal research"; and it is also to guard against the risk that law, as a liberal arts discipline, will become "increasingly marginalized" in the digital age.

Second, to realize the autonomy of Chinese jurisprudence beyond. The development of digital technology, especially the large-scale application of digital technology in China, has become an excellent opportunity to establish the autonomy of Chinese jurisprudence in the eyes of some scholars. In the context of the times, the "track" of commercial civilization has been switched to the "track" of digital civilization; in the application of technology, China's business model, technology level and so on may still be in the leading position. The wide range of application scenarios of digital technology provides a broad testing ground for the emerging legal issues to be raised and solved. How to solve digital legal problems, how to abstract the principle of the rule of law in the digital society, there must be a large number of practical operations to supply experience for theoretical refinement. This provides an opportunity for Chinese jurisprudence to establish an independent theoretical system and surpass the Western jurisprudence paradigm. In this sense, the establishment of digital law is not only to solve the current legal problems, but also to create a space for the independent growth of Chinese jurisprudence.

2.Reflection on the problem areas of digital law

The establishment of a discipline should have a relatively clear research field or research content, otherwise it is not enough to be independent as a discipline. However, whether as a transformation of modern jurisprudence or as an emerging cross-cutting field, digital law is unable to summarize a relatively clear problem area with more obvious boundaries. This makes digital law never able to be proved as a true proposition.

2.1  Problem areas arising from the application of technology

Prof. Ma Changshan proposes that digital law is "a science that takes the legal phenomenon of digital society and its regularity as its research content". Then, the inevitable question is: "the legal phenomenon of digital society and its regularity" and what is it? Professor Ma Changshan further explains it as the part of inheritance and absorption, the part of "digital" renewal and the part of digital rebirth. But are these three parts really "phenomena and their regularities" independent of the existing scope of legal research?

The inheritance and assimilation part is self-explanatory, and the issues involved can be resolved within the existing legal framework. The part of "digital" renewal and the part of digital rebirth can be explained only by adding to the existing legal norms. For example, researchers have suggested that the theory of personality rights should "add the connotation of digital personality". However, this does not break through the basic scope of personality rights, and does not even add the content of new personality rights. The subject of the right of personality is the person in civil law, the so-called "electronic person" "digital person" does not exist, or only in the concept of the proposed existence, and ultimately need to realize the rights in the entity. Typical example is, if two people use the network virtual identity dispute, one party through a certain way to insult the other party, the law will consider this is a natural person to another natural person's infringement of the incident, and then to pursue the natural person's legal responsibility, rather than pursuing a "digital person" to another "digital person", but not to pursue a "digital person". Instead of holding a "digital person" liable to another "digital person". No matter how we prove that the "digital person" in the concept of traditional society to bring a huge impact, in the actual operation of the law, the subject of responsibility must be real, this is the "rights - obligations - responsibilities This is the inevitable requirement of the logic of "right-duty-responsibility". And this legal logic is "digital people" can not break through. Another example is that platform governance is an emerging theory in digital law. But platform governance is essentially about monopoly, the so-called platform "private power" does not break through the boundaries of monopoly theory. For example, Internet enterprises use big data to "kill maturity", or restrict users to use their software based on self-imposed rules, such incidents show that the problem is actually the abuse of market monopoly by some enterprises, rather than the enterprises become the main body of power based on market share. In fact, when the market is mature, enterprises with similar functions and positioning will continue to emerge and eventually share the market - at this point, we can't assume that as long as they have a market share, they will become subjects of power or generate "private power".

The concept of digital law is based on the various issues arising from the application of digital technology, such as data jurisprudence, network jurisprudence, artificial intelligence jurisprudence and so on. As far as the current academic research on digital law is concerned, the so-called digital law will still fall into the aforementioned fields to carry out research, and these research contents supporting digital law are the problematic fields that existed before the concept of digital law was put forward. That is to say, the so-called digital law does not pose new problems or generalize a certain category of problems; at most, it merely groups these technical problems together and names them digital law. If one has to find a common denominator among these multifaceted issues to fit the "legal phenomena and their regularities" that digital law needs as an independent discipline, one can only assume that these issues cannot be separated from digital technology - whether digital technology is used as a tool in them or not. -regardless of whether digital technology is an end or a means to an end. By this reasoning, any issue that involves, applies, or includes digital technology falls within the scope of digital law. If this is the sense, then it is true that digital law can be considered to replace the existing system of jurisprudence, and it is true that today's and tomorrow's society cannot exist without digital technology. But human society needs to rely on too many material elements, not because human society can not be separated from the digital technology, that jurisprudence needs to be transformed into digital law; just as human society can not be separated from the elements of electricity, petroleum, etc., the jurisprudence is called electric power jurisprudence, petroleum jurisprudence. Moreover, the construction of such an almost all-encompassing digital law, and how to explain the civil digital legal issues, criminal digital legal issues, administrative digital legal issues, such as the existence of a clear distinction between the problem areas? Ultimately, it will still lead to the subdivision of sectors, or "inevitably be based on the division of sectoral law". This creates a logical paradox: if digital law is a true proposition, then it must be supported by its own relatively independent problem areas; but the disciplinary character of digital law can only be anchored in the existence of digital technology, a widespread objective fact that will, in turn, dissolve the relative independence of the problem areas that digital law requires. Therefore, it can be logically concluded that digital law is not a true proposition that can be substantiated, and in particular, it cannot be an independent discipline - either at the macro or meso level.

2.2  Problem areas that dissolve into technical categorization

The above conclusions can also be reversed through the attribution of the nature of specific research questions. The research foundations from which digital law emerges and the specific research issues at hand include the following: data issues, algorithmic issues, platform issues, and artificial intelligence issues. So, these problems can only be found in the research scope of digital law attribution?

First, about the data problem. Data has become one of the core production factors in the era of digital economy, and its importance is beyond doubt. However, the right to data is still an unsettled issue in the legal profession. The so-called rights issue, that is, data in the law in the ownership of how? No matter how to define data or data rights, the urgent need for data flow in practice requires academics to answer: what kind of rights in data? Because data can not be fully integrated into the existing civil law system of any kind of rights theory, the current common practice in the academic community is to set the right to data as a new type of civil rights, the overall idea is a composite of property rights and personality rights. Comprehensive existing research can be found, the problem about data is essentially a civil law study to expand the interpretation of the problem. Just like electricity, heat and other popularization, the civil law system can be fully accommodated, data as a kind of "electromagnetic mode of existence, the human eye can not observe" objective things, ultimately can be found in the civil law framework. Undeniably, the economic potential of data is huge, which is far beyond the reach of traditional objects or intellectual property rights; however, this is only a prominent manifestation of its economic value, and does not exceed the theory of rights. That is to say, the issue of data will not break through the existing civil law system, nor will it subvert the existing legal theory, and it can be fully resolved within the framework of civil law. The issue boils down to the need for civil law to be properly expanded and interpreted in the light of the objective facts of technological development.

Second, on the issue of algorithms. Algorithms are "a set of mechanisms for human decision-making through code setting, data operation and automated machine judgment". Theoretically, the algorithm is only the instruction of the computer program, which is a purely technical issue, but because digital technology has been deeply applied to human society, human beings almost always need to rely on different algorithms for computing, therefore, the credibility of the computing process and results - algorithmic justice has become an urgent issue. has become an urgent problem to be solved. However, no matter what technical problems exist in algorithms, "algorithmic black box" or "algorithmic discrimination", its essence is still "through a series of steps, the input data to get the output result ". This goes back to the basic knowledge that algorithms are not fundamentally different from "an ancestral recipe, an admissions policy, or even the thought process of deciding what to wear when one wakes up in the morning". The core of the algorithmic problem is unrestricted choice. In this sense, the problem of algorithms is just the latest rendition of the problem of choice that human society has had since the beginning of time. The existence of black boxes or discrimination in algorithms is not materially different from the behavior of a department store owner who prefers how to arrange goods or decides which customers to sell to based on personal preferences, but not to sell to others; the so-called big data "ripeness killing" is just a modern reenactment of sellers adjusting prices based on buyers' accents, and the government's misuse of algorithms is just another example of the lack of transparency in the operation of the power process. The government's abuse of the black box of algorithms is also just another manifestation of the opaque power operation process. Therefore, the problem of algorithms can be technically considered a new problem of this era, but in terms of value, it does not go beyond the maintenance of social justice by the law, and it is essentially "homogeneous" with the traditional problems of discrimination and injustice. As some scholars have pointed out, "the primary problem of the legal system is not how to design the regulatory program, but to show the value principle behind the regulation". Through this perspective, it can be found that the so-called algorithmic rule of law does not raise or solve new problems, but only for the new technology - or more efficient way of social injustice behavior, in the technical application of the constraints provided by the program, but the problem solved is still about the old problem of social justice.

Third, on the issue of platforms. In recent years, the massive popularization of digital technology has prompted the governance of digital and Internet platforms to become a pressing issue. The emergence of Internet giants has enhanced the efficiency of technology application, but it has also brought the shadow of technological hegemony. Some scholars have described the growing social impact of digital platforms as digital private power and data capital power, arguing that "digital platforms have led to significant changes in the power structure of the digital era, and platform power has become a new member of the power system." On the surface, digital platforms and their resulting "power structure" are new issues that have emerged and are unique to the digital society; however, in fact, the essence of digital platforms is still the application and control of technology by market entities, which is not a new thing. That is to say, the emergence of digital platforms does not raise the new problem of subverting the traditional market model, and the so-called digital hegemony of digital platforms is only the market monopoly formed by market entities using technical means. In the final analysis, the problem of digital platforms is a monopoly law problem. Undeniably, the efficiency of digital technology has greatly enhanced the efficiency of digital platforms to form market monopoly, "illegal rise" and "winner takes all" process greatly accelerated, which is the traditional market monopoly theory has not foreseen. But no matter how high the monopoly efficiency of digital platforms and how deep the degree of monopoly, it is ultimately a question of market share. The so-called "platform power" is nothing more than a reproduction of the abuse of dominant market position by large enterprises, only the degree of this monopoly is deeper. Therefore, the governance of digital platforms ultimately needs to be implemented in antitrust regulation, and the characteristics of digital technology require more precise analytical tools and regulatory approaches, but the overall analytical framework does not break through the established antitrust theory.

Fourth, on the issue of artificial intelligence. Artificial intelligence research is probably the hottest area of "law +" research in recent years. With the leapfrog development of artificial intelligence technology, people accelerated thinking about the impact of artificial intelligence technology on human society, the legal profession also put forward artificial intelligence judicial assistance, artificial intelligence judicial adjudication, artificial intelligence legal responsibility, artificial intelligence legislation and other issues. The discussion of artificial intelligence in the field of jurisprudence must be based on the distinction between strong artificial intelligence and weak artificial intelligence, and different categories of artificial intelligence technology are based on different ethical foundations, which in turn face different legal norms.For strong artificial intelligence, the core issue is how one subject (human) can legislate for another (artificial intelligence), and the fundamental dilemma behind it is philosophical thinking about human subjectivity. If strong artificial intelligence is technically feasible, then it will become the technical basis for subverting modern legal theory; but at least from the present and foreseeable future, strong artificial intelligence still exists more in science fiction imagination, "the advent of the era of real strong artificial intelligence is still a long way to go". On the other hand, the vast majority of what is being researched in the technical field and discussed in the academic world is still weak artificial intelligence, i.e., a kind of computing technology that outputs logical results through deep learning. However, the "technical substance" of weak artificial intelligence indicates that this so-called artificial intelligence is essentially only a highly efficient automated computing technology, and is a "legal object that lacks the characteristics of a human being". This determines that the legal responsibility of applications such as autonomous driving and intelligent robots is still based on human faults that give rise to tort liability - either the developer's improper design or the user's improper operation, in short, the subject of responsibility is still a legal person. In this sense, artificial intelligence legal issues do not independently become a class of issues, it is only a new tort theory of tort means only. As for artificial intelligence judicial assistance and other "intelligent applications", even scholars who are optimistic about digital technology have admitted that there is a considerable degree of "inherent limitations", not to mention the judicial practice of such systems because of impracticality and Not to mention the fact that in judicial practice such systems are "inactive" due to their impracticality.

It can be seen that the data problems, algorithmic problems, platform problems, artificial intelligence problems and other issues of concern to the study of digital law are not independent problems, these problems can be found in the existing legal research to solve, explain the path. Or rather, these issues are just the modern system of jurisprudence of the times application expansion. Of course, if purely from a technical point of view, digital technology is indeed unique to the current society of the new technology, in the technical effectiveness of the leapfrog improvement, but in the jurisprudence of vision, digital technology is only a kind of technology, and did not break through the technology as a tool for human action, auxiliary positioning. Moreover, these problems can not be "digital technology" as its unifying element - data issues encountered in the right to challenge and artificial intelligence issues faced by the tort liability are completely different types of problems, digital technology is not shared between the two. Digital technology does not share semantics between the two. Therefore, the so-called digital law is neither able to unify the research base it now relies on, nor can it put forward problem areas that are clearly different from modern legal theory, and cannot be proved to be a true proposition.

Reflection on the Theoretical Construction of digital law

The proposal of digital law, in addition to attempting to make a clear distinction or crossover with modern jurisprudence in terms of research areas, contains the visionary goal of reshaping the foundation and autonomy of jurisprudential theory. This is particularly reflected in digital law researchers' technologized construction of the theory of power and the transcendentalist theory of technological paths for Chinese jurisprudence. The former tries to reinterpret the theory of power through technological practice, while the latter tries to re-establish the autonomy of jurisprudence through technological application. It should be said that these two are the direction of theoretical construction that the current digital legal research focuses on. But can digital legal research really make theoretical breakthroughs in these two areas?

3.1 Cannot breach power theory

The current digital legal research attempts to respond to the impact of digital technology through the establishment of new rights and new powers. The new rights may just be the expansion of the existing rights system, and the new power theory may deconstruct the "power/rights" theoretical paradigm constructed by modern jurisprudence. Some scholars suggest that the application of digital technology has brought digital platforms with "quasi-state" "digital private power", while some scholars believe that digital platforms as a power field deconstructs the existing power structure, forming a "public power-private rights" paradigm from "public power-private rights". Some scholars believe that digital platforms, as a field of power, have deconstructed the existing power structure, resulting in a structural shift from "public power-private rights" to "public power-private power-private rights". The core essence of these two descriptions is the same, i.e., digital platforms, based on their control of digital technology, have gained enough power to confront the state and dominate users - the former is reflected in the ability of platforms to set up platform rules prior to or independently of the state, and the latter in the ability of platforms to set up rules based on "legislative power (platform rules)". The former is reflected in the platform's ability to establish platform rules before or independently of the state, and the latter is reflected in the platform's ability to have "judicial power (monopoly of platform discipline) and enforcement power (implementation of platform rules)" over users based on "legislative power (platform rules)". But can these two aspects really construct "private power"?

3.2 Unable to rely on technology transcend

The large-scale application of digital technology in contemporary Chinese society has led some scholars to see a turnaround in establishing the autonomy of Chinese jurisprudence. In China, hundreds of millions of Internet users are active in cyberspace, and software such as WeChat, Alipay, Meituan, and Dripping Taxi can even have a billion active users. Convenient and efficient digital technology continues to deepen users' reliance on technology, and the high-frequency application of digital technology by a huge number of users continues to promote the upgrading and improvement of technology, so that in today's China, such as e-payment technology and e-trip-tracking technology are already far ahead of the rest of the world. At the same time, the cutting-edge legal issues arising from the large-scale application of digital technology have also provided a huge amount of material for legislation and justice. Some scholars suggest that ‘this provides a rare opportunity for somewhat to realise breakthroughs and innovations in legal theories and promote the autonomy of Chinese jurisprudence’. This expectation can be summarised as the ‘technology path beyond theory’.

But can relying on technological paths, especially those of digital technology applications, really lead to the transcendence of legal autonomy? On the one hand, from the perspective of technological development. What some scholars consider as ‘leading digital technology’ should be accurately described as ‘a wide range of digital technology application scenarios’. That is to say, the original research and development of digital technology by many enterprises is not sufficient, but based on China's huge market, the digital technology produced through imitation and learning can obtain high-frequency practical application and deep user stickiness, which provides a broad testing ground for improving the application scenarios and functional design of digital technology. For example, electronic payment technology was first launched by PayPal in 1999, while Alipay, which is currently widely used in China, was launched in 2003, and WeChat Pay was officially launched only in 2013. Although domestic companies did not carry out the initial research and development of electronic payment technology, Alipay, relying on the Taobao shopping platform, and WeChat Pay, relying on the WeChat social platform, have dominated the electronic payment market at great speeds.PayPal has about 325 million active users to date, but as early as 2018 WeChat Pay had more than 800 million active users. If we look at the user volume and transaction volume alone, it is true that domestic e-payment technology (referring to the application technology) has been far ahead of the world. But can this quantitative advantage really achieve what scholars consider to be ‘leadership’ and promote theoretical progress in disciplines such as law? This may be doubtful. While a wider range of applications may contribute to the improvement of regulatory norms, it may not necessarily lead to the autonomy of law theories.

On the other hand, from the perspective of technical support. It is true that large-scale application scenarios have created many problems for legal practice, for example, how to address data ownership in legal norms, how to expand the traditional theory of personality rights, and how to understand virtual property. However, these questions are addressing the application of technology rather than raising questions. For example, for what is artificial intelligence, cryptocurrency, virtual society (meta-universe), etc., we do not have enough technology to ask questions, but only start to solve some legal problems of scenario application after others have proposed concepts or even have set out the basic framework of problems. There is no more typical example than artificial intelligence technology. The current cutting-edge artificial intelligence technology has begun to carry out a certain degree of human-machine dialogue, and the positioning of artificial intelligence products on their own and their understanding of the human world has far exceeded human imagination. If you want to understand the impact of artificial intelligence technology on jurisprudence and even on human society, you must understand its true level of development. However, domestic technology research and development is still in the exploration stage, and there is still much room for improvement. In particular, there is still a need to strengthen the training of composite talents of science and technology and law in terms of quality and quantity. This leads to the legal profession in the field of artificial intelligence issues, for strong artificial intelligence, can only stay in the imagination stage, will be assumed to be an all-powerful robot to study; for weak artificial intelligence, can only deal with the application of automation technology. There is not much practical connection between ‘intelligent justice’ and ‘intelligence’. The objective fact that this digital technology still has a large space for development, so that the theory of law can not put forward with originality, autonomy of the problem, but can only be ‘built on the basis of purely hypothetical risk’, to put forward the imaginary problem; or in the established theoretical framework to solve the problem of technological applications, in order to make up for the blind spot of the law. Obviously, based on such technical support, it is almost impossible to achieve autonomous transcendence of legal theory.

It can be seen that digital law has tried to achieve theoretical breakthroughs in the innovation of power theory and the construction of autonomy of Chinese jurisprudence, but no substantial progress has been made in both aspects. The practice of digital technology is not enough to break through the established power theory, and the application of digital technology cannot provide strong support for the construction of the autonomy of Chinese law. Digital technology can bring about an improvement in the efficiency of social operation, but the proposal of a digital jurisprudence based on it and the attempt to construct a new jurisprudential theory cannot be realised, at least within the analytical framework of this paper.

4.Research Paradigm or Technical Scenario Reflection

Digital law researchers seek to validate digital law as a research paradigm. The validation of the paradigm not only implies that digital law has a research field and methodology different from those of other disciplines, but also implies that the digital society on which digital law is based has a clear and sustainable feature of the times. But how can digital law become a unique research paradigm when neither the problem area nor the theoretical construction can be effectively proved?

4.1Inability to serve as a research paradigm

In the current research on the digital law paradigm, there are two broad lines of thought. First, the social form approach. For example, Professor Changshan Ma believes that the ‘digital’ of digital law is its basic epochal feature, and it is in the evolution of human society from the industrial revolution, industrial and commercial society to the information revolution and digital society that digital law becomes the theoretical reflection of the epochal change. Second, the research methodology. Such as Professor Hu Ming said digital law is ‘the deep integration of science and technology and law’, ‘digital + law’ and ‘law+ digital’ two-way convergence and integration, the study of digital law should be The research of digital jurisprudence should move from empirical method to experimental method. Prof. Yang Dong believes that digital law is the ‘fifth paradigm’ after the experimental science paradigm, theoretical science paradigm, computational legal studies paradigm, and data-intensive scientific discovery paradigm, and it is an iteration of the paradigm that has abandoned the debate between qualitative and quantitative analyses, and emphasised the application of knowledge synthesis. But are these two approaches really enough to support digital law as a research paradigm?

Firstly, let's look at the socio-formal progression. Scholars argue that digital law has its roots in the objective facts of the digital society. The inevitable follow-up question, then, is: what is the digital society? In the current research, some scholars describe it from the two dimensions of technocracy and intellectualism, and some scholars try to outline it from the two aspects of digital economy and digital life, to name a few. Regardless of the interpretation, the basic consensus of the academic community on the digital society is that ‘digital’ based on information technology has obviously changed the efficiency of the society, and there are different views on how to express this ‘change’. In other words, ‘digital society’ is more like a technological experience rather than a clear academic concept; it is rather a rough description of a social state rather than a specific social form. Just as the current society is inseparable from oil and steel, to a certain extent, we can also call the society ‘oil society’ and ‘steel society’. The description of different perspectives has its own rationality, but there is also one-sidedness; in other words, ‘petroleum society’ in the application of petroleum energy scenarios is undoubtedly explanatory, but the limits of its interpretation can only be in the scope of energy. Therefore, the digital society is more of a factual description of the deep application of information technology in the current society, which is and is only a technical perspective. On this basis, the so-called ‘industrial and commercial society towards digital society’ cannot be established. The ‘industrial and commercial society’ is a description of the market economic order, while the ‘digital society’ is a description of the application of technology, and the two are not in the same dimension. Just as there is the application of digital technology in the industrial and commercial society, there is also industrial and commercial logic (market logic) in the digital society. While the two may intersect with each other, it is difficult to think of them as having a progressive, iterative relationship. As for the ‘agricultural revolution - industrial revolution - information revolution’ and ‘traditional jurisprudence - modern jurisprudence - digital law ‘It is impossible to establish a connection between the two. The ‘Agricultural Revolution - Industrial Revolution - Information Revolution’ describes the process of raising the productivity of human society, while the ‘Traditional Law- Modern Law- Digital Law’ describes the process of raising the productivity of human society. The ‘traditional law-modern law-digital law’ describes the evolution of the paradigm of legal research, so how can there be a logical connection between productivity and the paradigm of social science research? How can there be a logical connection between productivity and social science research paradigms? The two can only establish a very weak and vague mapping relationship, if not irrelevant. Therefore, changes in social patterns do not validate a digital law research paradigm.

Turning to the methodological approach to research. Scholars have argued that digital law as a research paradigm is rooted in the superimposition of the digital and the legal. So what does ‘digital’ mean here? ‘Digital has multiple social meanings’, including at least three aspects of data as a factor of production, information technology as a product of the operation of power, and data as the object of private rights protection. As Professor Peng Chengxin argues, ‘data as the material basis of the digital society and the basic legal issues on it, such as the object attributes of personal information, the attributes of rights and interests, and the attribution of rights, constitute the core paradigm of digital law.’ Obviously, when digital is narrowly understood as data, the so-called digital law discusses actually how the law should deal with the issue of data, and more specifically, how civil law locates data; when digital is broadly understood as informatisation, digital law studies actually the undue expansion tendency of public power that may exist with the support of technological tools, which is essentially the issue of the constraints of power. Neither the issue of data nor the issue of power can support digital law as a new paradigm. Therefore, at the level of research methodology, there is not enough support to prove that digital law is a new paradigm for legal research, whether it is technology-augmented, technology-integrated, discipline-transcended, science-upgraded, or newly-named as arts and sciences-integrated, or field-crossed.

4.2 Rather as a technical scenario

Since the digital law proposed by current scholars is not a new paradigm for legal research, what are scholars discussing when they discuss digital law? Professor Ma Changshan believes that the research of digital law should be carried out in the expansion and re-interpretation of legal concepts, the creation of the theory of emerging issues and the exploration of the principles of legal philosophy; Professor Hu Ming believes that digital law should include ‘digital technology as the object of norms’ and ‘digital technology as the rule of law’. Professor Hu Ming believes that digital jurisprudence should include ‘digital technology as the object of regulation’ and ‘digital technology as the tool of rule of law’. Specifically, data and algorithms are the ‘premise proposition’ of digital law, and ‘the coupling effect formed by algorithms, data and platforms creates a new problem of digital governance’. In other words, the so-called digital law is essentially the regulation of algorithmic problems, data problems, platform problems and so on. Without algorithms, data and platforms, the ‘digital’ in digital law will not be able to find a practical place to land.

As mentioned before, scholars tried to extract the concept and system of digital law from the legal responses to real problems such as algorithms, data, and platforms; however, they do not realize that it is in the specific scenarios of algorithms, data, and platforms that the theoretical foundations of digital law have been dismantled. Leaving aside the question of whether the proposition of digital law is proved or not, based on the current research, instead of saying that digital law is a paradigm transformation beyond modern law, and a cross-discipline of comprehensive literature and science, it is better to say that digital law is just a general term of legal norms for solving algorithms, data, platforms, and other types of problems; furthermore, instead of saying that digital law is a type of law, it is better to say that digital law is a way of responding to the technological scene of law. It is not so much a category of legal issues as it is a way of thinking about legal responses to technological scenarios. Admittedly, interpreting ‘digital’ as a technological scenario rather limits the possible semantic space of the term ‘digital’; however, realistically speaking, the ‘digital’ that can be shared in algorithmic, data, platform and other issues that can be shared in the algorithmic, data, platform and other issues. The term ‘digital’ can only be interpreted from the perspective of technological application scenarios. In other words, the digital problem is ultimately a huge tension between the slow updating of legal norms and the rapid development of technological applications. The stability of law requires the precision and accuracy of legal concepts, but the lagging nature of statutory law determines that the updating of legal concepts will be slower than the development of technological concepts. This tension is not a breakthrough or subversion of the legal system and the stability of the law by technological applications and scenarios, but rather that the established law has not yet completely absorbed the technological scenarios. In other words, whether it is algorithms, data, or platforms, it is ultimately a specific form of application of technology, and technological scenarios will be integrated into the established legal framework sooner or later, without fundamentally reconfiguring the legal system. Just as modern law for offline online transactions have fair and honest system constraints, no matter how the transaction mode, transaction form, transaction efficiency, transaction content changes, the unchanged is the law for the fairness of the transaction of the system to protect. This is exactly how the law responds to changes in the technological scene.

Conclusion

The arrival of the digital society is both an inevitable manifestation of technological development and an epochal transformation of social development. However, it must be noted that the digital society is only one of the many perspectives for observing society, which does not mean that society can only be understood from the perspective of ‘numbers’. In the context of the digital society, legal norms must solve the legal problems brought about by new technologies, legal research must respond to the impact of technological social logic on the legal theory system, but this does not mean that the legal research carried out in the digital society is the digital law. The digital society is not a logical necessary reasoning to the digital law. The current digital law research is in full swing, but few studies have asked about the theoretical roots of digital law. In fact, whether from the point of view of the problem area, or from the point of view of theoretical construction, or from the point of view of the research paradigm, it is impossible to prove the establishment of digital law as academic concept and academic proposition. The so-called digital law is only a vague generalisation of the technological application scene. Limited to the intellectual structure and knowledge level, the argumentation of this paper may be quite imperfect and ill-considered, but this paper tries to put forward some cold thoughts on the study of digital law in the digital society that are different from the popular academic trend, with a view to the correction of the parties.