[author]Pan Weijiang

[content]

Pan Weijiang

Professor of the School of Law, Beijing University of Aeronautics and Astronautics

Abstract: With the deepening of the construction of the rule of law in China, how to explain and prove the distinction between abstract legal norms and specific case facts in judicial adjudication has become an important issue in legal theory. Traditional legal theory mainly uses Hume's law to explain the rationality of this distinction, but it encounters huge challenges. System theory of law abandons the a priori approach and regards the legal system as a social system with closed operation and open cognition, and then understands the distinction between legal norms and case facts as a cognitive schema within the legal system. This schema implements self-reference and external reference within the legal system, coordinates the relationship between the legal system and the environment, and helps to realize the social function of the legal system to safeguard normative expectations.

Keywords: Judicial adjudication, legal norms, case facts, system theory of law, cognitive schema

I. Introduction

Since the 18th CPC National Congress, my country has continuously improved its legislative system, strengthened legislation in key areas, and the socialist legal system with Chinese characteristics has become increasingly perfect. As of June 2024, there are 303 effective laws, 598 administrative regulations, and more than 14,000 local regulations in my country, and all aspects of national and social life have been generally governed by law. Under such circumstances, the importance of law enforcement and law application has become increasingly prominent, and people have become more and more aware of the difference between simple cases and difficult cases. In simple cases, judges can make legitimate and reasonable individual case judgments through the basic knowledge system of legal doctrine and the general methods of legal interpretation. However, in the judgment of difficult cases, the complexity of the facts of the case far exceeds the scope that can be covered by the literal meaning of the legal provisions, resulting in a gap between legal norms and case facts. At this time, it is often difficult to make legitimate and reasonable individual case judgments by relying solely on the basic knowledge of legal doctrine and the general methods of legal interpretation.

In the judgment of difficult cases, how to eliminate the gap between legal norms and case facts that is widely present in judicial judgment practice has become an important issue in the current research of Chinese legal theory. Current legal theory has formed two different understandings and solutions to this problem. One understanding holds that although the gap between legal norms and case facts is inevitable, through the enrichment and development of legal doctrine knowledge and the clever use of legal interpretation methods, it is still possible to achieve a good judicial case judgment result. Another understanding holds that the gap between legal norms and case facts is mainly caused by the fact that legal norms are out of touch with social reality. The solution is to pay more attention to the complexity of case facts in judicial judgments, and to judge cases by investigating the various complex causal relationships contained in the case facts and exploring the "rights and wrongs" contained in the case facts themselves. In this solution, the distinction between legal norms and case facts in judicial judgments is broken, the guiding and restraining role of legal norms in judicial judgments is reduced to a minimum, and the judge's discretion is magnified to a maximum. Of these two understandings, the first one emphasizes the fundamental position of legal norms in the entire judicial judgment, thus regarding the process of judicial judgment as a process of legal application and legal interpretation. The second understanding questions the fundamental status of legal norms in judicial adjudication, and advocates giving case facts a more important and fundamental status in judicial adjudication, thereby constructing a judgment structure centered on case facts and a corresponding legal knowledge system. It can be found that a core difference between these two understandings is that the first understanding insists on the dichotomy between judicial adjudication and case facts, and therefore understands the judicial adjudication process as a process of applying general legal norms to individual case facts; while the second understanding abandons the distinction between abstract legal norms and special case facts in judicial adjudication, and believes that special case facts already contain the norms of "right and wrong", so by interpreting the norms of "right and wrong" contained in the case facts, more fair and reasonable case judgments can be made. This is not an insignificant issue. On the one hand, for many legal doctrine workers, the basis of their work is to recognize that the existing legal order is roughly reasonable, so the entire legal doctrine work revolves around the interpretation and application of legal norms. If the dichotomy between legal norms and case facts in judicial adjudication is abolished, it will be like cutting off the firewood from under the pot for the work of legal doctrine. In this way, the entire legal profession and legal education are facing major adjustments. On the other hand, a large number of social science law studies will break the dichotomy between legal norms and case facts in judicial adjudication, and serve as the basis and condition for conducting social science law research. If this dichotomy structure of judicial adjudication is strictly adhered to, many of the claims and ideals of social science law will be difficult to implement, and social science law may eventually have to shrink into a legal interpretation method (consequence consideration) in judicial adjudication.

The deeper basic question of legal theory raised by this is: in judicial case adjudication, is the distinction between abstract legal norms and specific case facts irrevocable? If it is irrevocable, what is its rational basis? What benefits has this brought to modern law and modern society? At the same time, what is the cost that modern law and modern society have to pay for this? Traditional legal theory uses Hume's law of the distinction between norms and facts to use a normative approach to prove the irrevocability of the dichotomy between legal norms and case facts in judicial adjudication. This line of argument emphasizes that the dichotomy between norms and facts is a philosophical truth. The reason why the dichotomy between legal norms and case facts in judicial adjudication is irrevocable is that it is the specific embodiment of Hume's law in the field of judicial adjudication. The reason why social science law opposes the dichotomy between legal norms and case facts in judicial adjudication is that social science law cannot deal with normative issues. This view has encountered a lot of criticism. For example, many scholars point out that Hume's law of the separation of norms and facts has a strict scope of application, mainly applicable to the dichotomy between pure natural facts and values. However, social facts include values. Therefore, when applying Hume's law to the relationship between social facts and legal norms, stricter restrictions are needed.

This article attempts to use a non-normative approach, systems theory of law, to explain and illustrate the dichotomy between legal norms and case facts in judicial adjudication. As a non-normative normative theory, systems theory of law does not explain this dichotomy structure of modern judicial adjudication from a priori standpoint, nor does it regard this dichotomy structure as an objective existence that does not need to be explained. Instead, it understands modern law as an operationally closed and cognitively open self-created social system, and observes the position and role of this dichotomy structure in judicial adjudication in the operation of the entire legal system. The observation and description of the dichotomy structure of modern judicial adjudication by systems theory of law helps us to have a deeper understanding of modern judicial adjudication and modern law.

Ⅱ. Limitations of Hume's Law in Arguing the Distinction between Norms and Facts

Generally speaking, the distinction between norms and facts in judicial judgments is regarded as an objective fact, and there is no need to reflect on it. A series of debates in social science law and legal doctrine on the relationship between legal norms and case facts in the process of law application have prompted us to take seriously and reflect on the rationality of this distinction. The use of Hume's Law to argue the distinction between norms and facts in judicial judgments is far from satisfactory. Instead, the schema theory of psychology provides important inspiration for understanding the status and function of the distinction between norms and facts within the legal system. Therefore, by introducing and drawing on the schema theory of psychology, systemic law believes that the distinction between norms and facts in judicial judgments is a cognitive schema for the legal system to coordinate the relationship between itself and the environment.

(I) The non-necessity of distinguishing between norms and facts in judicial adjudication

Whether engaged in legal practice or legal education and research, for most legal professionals, judicial adjudication is a process of adjudication in accordance with the law, that is, the process of applying legal norms to individual case facts by interpreting the meaning of legal norms and making judgments. If this is denied, most of the legal knowledge and skills learned by legal professionals in law school will be useless. The rule of law principle requires judges to be bound by the law. Therefore, judicial adjudication must be based on the law, that is, "based on facts and guided by the law". In the litigation process, any claim that is to be supported by the judge must seek one or more legal provisions as the basis for the claim. But if we jump out of the perspective formed by modern legal professionals based on their daily work experience and examine this issue from the level of comparative legal culture and general jurisprudence, the answer is not so simple. For example, Weber is recognized as a master of comparative legal culture research. In his Sociology of Law, he pointed out very eloquently that "conceptualizing various life relationships involving law" forms legal propositions, and then integrating legal propositions to form a legal system, so that judicial adjudication becomes the application of abstract rules. This model of legal practice first appeared only in modern Europe.

In the broad perspective of the world's comparative legal history, whether it is ancient China, India, Islam, or medieval Europe, the structure of adjudication does not follow this model. From the history of human legal development and evolution, the history of justice is much longer than the history of legislation. Legal anthropology research shows that in the early days of human society, there were no special legislative bodies and legislative activities in primitive societies, but the work of neutral third parties intervening and resolving disputes as authorities was very active, which can be regarded as the earliest judicial work in human society. In this type of judicial work, there is no clear and decisive distinction between norms and facts. The judge only makes an authoritative ruling based on the content of the dispute and the right and wrong contained in various facts, and it is accepted by all parties to the dispute. The history of the British common law also shows that legal norms as adjudication standards do not always exist before adjudication, but are the summary of judicial practice experience. Formulating abstract and general written legal norms in advance and using them as the criteria for judicial adjudication seems to be only a special achievement of modern judicial adjudication, rather than a universal historical experience. From the perspective of the history of legal thought, there are many people who question the construction of modern judicial adjudication, and the influence is not small. Llewellyn, a representative of American legal realism, fundamentally denied the fundamental status of legal norms in judicial adjudication, advocating "not believing that traditional legal rules or concepts are sufficient to describe the true practices of courts or people", and also believed that "traditional prescriptive rules" are not "a powerful key factor in the formation of court decisions". In contemporary Chinese jurisprudence, many researchers engaged in social science law also believe that "legalism" cannot effectively solve difficult cases, because the facts of difficult cases are more complicated than those of simple cases. However, the legal doctrine methodology of legal doctrine is too constrained by the meaning of legal provisions. Therefore, in the adjudication of difficult cases, the richness and complexity of the facts of difficult cases are often ignored, and the legal provisions are interpreted and applied mechanically, which leads to unreasonable adjudication results.

The citation of many pieces of evidence from legal history, comparative studies of legal culture, history of legal thought, and social science legal studies is not to deny this basic structure of modern judicial adjudication, but to point out that this practice of setting abstract and general legal norms as the basic premise of individual case adjudication is not as natural and self-evident as legal professionals usually believe. In the judicial adjudication process, the adjudication structure that clearly distinguishes between legal norms and case facts, takes legal norms as the major premise of adjudication, takes case facts as the minor premise of adjudication, and uses logical syllogism to make judicial decisions needs to be supported and explained with stronger reasons in theory.

(II) The argument of Hume's law and its limitations

Scholars have already provided a strong argument for this model at the level of legal method. However, from the root of the problem, this is not only a problem of the application of judicial adjudication methods, but also a problem of the ontological structure of judicial adjudication. In terms of the ontological structure of judicial adjudication, the treatment of traditional jurisprudence is mainly to point out the normative attributes of law, and to use Hume's law to prove the dichotomy between legal norms and case facts in judicial adjudication. Regarding Hume's Law, the last few sentences of the first chapter of the third volume of "A Treatise of Human Nature" by British philosopher Hume are usually regarded as its source: "In every system of morals I have encountered, I have always noticed that the author proceeded in the usual way of reasoning for a period of time, confirming the existence of God or making some comments on human affairs; but suddenly, I was surprised to find that what I encountered was no longer the usual conjunctions such as "yes" and "no" in propositions, but that there was no proposition that was not connected by a "should" or a "should not". Although this change is imperceptible, it is of great significance. Because this should or should not express a new relationship or affirmation, it must be discussed and explained; at the same time, for this seemingly completely incredible thing, that is, how this new relationship can be deduced from completely different other relationships, reasons should be given to explain it." Generally speaking, the meaning of this passage is understood as that it is impossible to deduce "should" from "is", so a distinction is made between the factual science that studies "is" and the normative science that studies "should". Jhering, Kelsen and others have used Hume's law to explain the normative connotation of law to varying degrees, and on this basis distinguished legal science from factual science, pointing out that the nature of legal norms is a kind of "should", that is, "someone should act in a specific way". Therefore, Hume's law is also used as a core argument to explain the legitimacy of the distinction between legal norms and case facts in the judicial adjudication process. This theory holds that if the status of legal norms in judicial adjudication is abandoned, compressed to a minimum, and a set of adjudication structures is formed around the facts of the case, there will be two possible results. One result is that the normative nature of law is completely abandoned, and judgments are made based on a kind of factual science and causal relationship as the connotation. This completely misunderstands the nature of law and is therefore unacceptable. Another possible result is that although the normative nature of law has not been abandoned, the boundaries between norms and facts are confused, and norms are derived from facts, thereby violating Hume's law, which is also unacceptable.

Using Hume's law to reveal the normative characteristics of law and thus prove the construction of the dichotomy between norms and facts in judicial adjudication is the mainstream theory in modern jurisprudence. However, in recent years, some scholars have challenged this theory. For example, philosopher Putnam pointed out that the facts distinguished from norms in Hume's law are mainly pure physical facts, but many facts in people's daily lives are not pure physical facts, but social facts with built-in values. For example, if we look at it from the perspective of pure physical facts, money is just a piece of paper. But the core connotation of money is not its attribute as paper, but the exchange value it carries in the economy. Therefore, in social sciences, the dichotomy between norms and facts is not absolute. On this basis, although the case facts in judicial judgments also contain a large number of physical facts, they are mainly social facts that contain various values and norms. In this regard, constructing a set of judicial judgments with case facts as the core does not only deal with causal relationships at the level of factual science, but also deals with value issues.

This criticism is very powerful. It is particularly noteworthy that when Kelsen used Hume's law to explain the nature of law, he did not focus on the issue of distinguishing legal norms from case facts in judicial judgments, but used Hume's law to explain the nature of law from two aspects. First, Kelsen used Hume's law to distinguish law from morality. In this work, Kelsen emphasized that law does not exist as a norm, but as a fact, which is different from morality as a value. Even if law exists as a norm, it exists as a special type of social fact, not as an eternal norm with metaphysical correctness. Secondly, one of Kelsen's key tasks in pure jurisprudence is indeed to use Hume's law to explain that law itself has normative connotations, but he did so by distinguishing legal relations from various factual relations. If the relationship between legal norms and case facts in judicial adjudication is a relationship that exists within the law, then the comparison between legal relations and any other social relations is beyond the scope of judicial adjudication.

Directly using Hume's law to explain the respective status and role of norms and facts in judicial adjudication is still questionable to a certain extent. Explaining that law is a norm and has the quality of what it should be does not directly lead to the formation of a dichotomous structure of legal norms and case facts in judicial adjudication. For most of the time and in most parts of human history, the practice of judicial adjudication did not make such a clear and strict distinction between the two as the modern legal system does. Therefore, if we want to explore and explain the respective status and role of legal norms and case facts in judicial adjudication, and further explain the rationality of this binary distinction, we must form a more systematic and profound understanding of the internal structure and operation of the modern legal system. In this regard, systemic jurisprudence provides many rich insights.

Ⅲ. The distinction between norms and facts as a cognitive schema of the legal system

The use of Hume's law to reveal the normative nature of law and to demonstrate the fundamental status of legal norms in judicial adjudication implies that legal norms have a natural correctness due to their inherent "normative" quality. This assumption about the natural correctness of legal norms coincides with the assumption of legal workers that the legal order is roughly reasonable, and is therefore tacitly agreed upon by most legal workers and legal doctrine researchers. They believe that the reason for the various errors in the adjudication results of difficult cases is not the legal norms themselves, because the legal norms are inherently correct and the correct cannot become wrong. It can be inferred that if the adjudication results of difficult cases are wrong, it can only be that the judges used the methods and techniques of interpreting and applying legal norms incorrectly in the adjudication. But in fact, the "normative" status of legal norms does not come from the natural correctness of their content. For example, through the procedure of legal amendment and abolition, a legal norm that was originally assumed to be correct loses its qualification and status as a legal norm, and is therefore no longer "correct". In this regard, the correctness of a specific legal norm is actually coupled and variable. In judicial adjudication, the correctness of legal norms is presupposed, and therefore can be modified through legislative procedures, rather than being naturally correct.

System theory of jurisprudence understands the modern legal system as an autopoietic system with closed operation and open cognition. As an autopoietic social system, the legal system takes legal communication as its basic unit, and differentiates itself from its social environment through the recursive operation of legal communication. At the same time, system theory of jurisprudence also believes that the operation of the legal system is based on the binary code of legal/illegal as the basic structure. For example, in judicial adjudication, any claim is either judged as legal or illegal by the judge, and it is impossible for the judge to judge it as beautiful or ugly, or as profitable or unprofitable. The core work of the legal system is to make a legality judgment on the claims of the case. The operation and setting of all legal systems must be carried out and carried out around the legality judgment of the claims of the case. Although the basic structure of the internal operation of the legal system is a binary code of legal/illegal, systemic jurisprudence also recognizes that for such a structure to operate effectively, the criteria for determining "what is legal and what is illegal" are still indispensable. Various legal rules, principles, precedents, etc. of positive law can all serve as criteria for determining "what is legal and what is illegal" and play a role within the legal system

(I) Schema Theory of Psychology

In the analytical framework of systemic jurisprudence, the distinction between legal norms and case facts in judicial adjudication is no longer a natural correctness in the sense of a priori theory as many scholars have imagined, but merely a cognitive schema within the legal system. The concept of schema was first proposed by the German philosopher Kant, and later cognitive psychology research further proposed the schema theory. Kant concentrated on his concept of schema in the first chapter of the second volume of the first part of "Critique of Pure Reason" entitled "Schema of Pure Intellectual Concepts". Schema, as an intermediary or bridge between pure intellectual concepts (categories) and empirical intuition, is similar to both categories (schemas of intellectual concepts) and intuition (schemas of sensory concepts). Therefore, it can reconcile and make up for the gap between the two through the subsumption process of judgment. Kant's thinking on the role of schema as an intermediary and bridge between abstract conceptual categories and concrete intuitive empirical facts is of great inspiration and reference significance for our understanding of the function and significance of the schema of the dichotomy between norms and facts. Based on Kant, Bartlett formally proposed the concept of schema in the psychological sense. Bartlett discovered through memory experiments that people always tend to associate external input stimuli with existing experience and familiar things, process and transform them with existing knowledge, and then transform them into a form that they can understand. In this process, schemas play a very critical role. Therefore, Bartlett believes that schemas are "active organizations of past reactions or past experiences, ... not simply operating one after another as individual components, but as a unified whole." The revelation of the schema theory of psychology is that human cognition is not a pure experience and individual accumulation process, but is formed by the operation of the internal structure of the psychological system. Schemas play a very important role as a mediator and bridge in this process. In the study of schema theory in psychology, the schema theory provided by Piaget's genetic epistemology is the most important and well-known. Piaget once defined schema as follows: "Schema refers to the structure or organization of actions that are transferred or generalized due to repetition in the same or similar environment." Piaget believed that "the general coordination of actions on which the most basic forms of cognition depend is based not only on the coordination of the nervous system, but also on a deeper coordination. In fact, they are the interactions that control the entire morphogenesis." In the study of cognitive psychology, various types of schemas play a very important role in coordinating the relationship between the psychological system and the environment. For example, an important condition and basis for the psychological system to respond to stimuli in the external environment is that the psychological system has a schema for response. In addition, schemas can also enable the system to store previous operating experience and structures in the form of memory, and coordinate them with various previous schemas to form a schema system. One effect brought about by this is that the system can respond "appropriately and economically" to similar things or similar things in different states, "thereby shortening the time of response and saving the energy required for response." From the perspective of system theory, schemas play a very important role as a mediator and bridge in the self-reference and external reference of the psychological system.

(II) Cognitive Schemas in the Legal System

Systems Jurisprudence further abstracts and generalizes the concept of schemas in cognitive psychology, pointing out that not only psychological systems have various types of cognitive schemas, but social systems also have their own various types of cognitive schemas. Like psychological systems, these cognitive schemas of social systems play a very important role as mediators and bridges in guiding the internal operation of social systems and mediating the relationship between social systems and their environment. For example, in the legal system, the binary code of legal/illegal and the binary schema of same/different play a very important role in guiding and controlling the internal operation of the legal system. The judicial adjudication structure, which is characterized by distinguishing legal norms from case facts, also plays a role of cognitive schemas in the legal system. This means that the legal system guides the internal operation of the legal system through this kind of schematized construction and setting, realizes the closedness of the legal system's operation and the openness of cognition, and thus adjusts the complex relationship between the legal system and its environment.

In the legal view of systems jurisprudence, it is crucial for the legal system to maintain the boundary between itself and its environment and form the closedness and autonomy of its internal operation. The closedness and autonomy of the internal operation of the legal system are not the autonomy in the sense of "isolation" and "self-sufficiency" between the system and the environment. On the contrary, the system theory of law believes that in order to maintain its internal operations, the legal system must rely on various resources and information provided by the environment. This is like a cell. Although the cell wall forms a boundary between the cell and its biological environment, and through the setting of this boundary, the cell produces and reproduces itself through its own internal operation network, but in order to achieve all this, the cell must constantly absorb various nutrients from the environment and rely on various suitable conditions provided by the environment.

There are many obvious differences between social systems and biological systems. Therefore, when analyzing the autopoietic nature of social systems, we cannot simply copy and paste the conclusions of biological autopoietic systems. For example, biological autopoietic systems often have clear moments of birth and death, but social systems last much longer than biological systems, and there is no obvious time of birth and death at all. In addition, biological autopoietic systems such as cells often have physical boundaries such as cell walls between them and their environment, but social systems use communication as the basic unit, so there is no clear physical boundary between them and the environment.

Despite this, the abstract boundary between the social system and its environment still exists. There is a lot of evidence to reveal this. For example, as a social system, the legal system does not have a point-to-point synchronization relationship between the operation of its internal elements and the changes in various elements in the legal system environment. In other words, changes in the environment do not necessarily lead to adjustments in the internal operation of the legal system. Even if the changes in the elements in the environment eventually lead to adjustments in the internal structure and operation of the legal system, the two are not synchronous changes. The legal system also needs a certain period of operation before it can make a post-adjustment and response to changes in the environment. Therefore, the adjustment of the internal operation of the legal system always lags behind the changes in the elements in the environment. This lag in changes within the system reflects the existence of the boundary between the system and the environment. Furthermore, after some operation and processing within the legal system, it can also be indifferent to the changes in the elements in the environment and not respond to them. Whether to respond to changes in the elements in the environment is in the hands of the legal system itself, not the environment. For example, the law often regulates whether it needs to respond to the occurrence of various facts in the environment by setting conditions. When the facts in the environment do not meet the conditions set in advance by the legal system, the legal system will not respond to the facts in the environment. This further confirms that there is indeed a certain boundary between the social system and its environment. In other words, "the form of exchange between the system and the environment is not established by the environment, but by the closed organizational form of the autopoietic system."

System theory of law further believes that the legal system separates itself from the environment through the recursive operation of internal elements, forming a boundary between the legal system and its environment. This means that one legal communication can only be connected to another legal communication, just like in a biological system, one cell can only be connected to another cell. This is the self-reference of the legal system. The self-reference of the legal system is an operating structure formed by the internal implementation of the closedness and autonomy of the legal system's operation. In addition, the legal system has also developed an external reference operating structure to achieve the ability to observe and recognize changes in the facts in its environment. Obviously, this external reference of the legal system must point to facts outside the legal system. Therefore, the distinction between norms and facts is precisely a "setting" within the legal system. As a "schema" within the legal system, it guides the operation of the legal system and plays a role in coordinating the relationship between the legal system and the external environment. The legal system forms the closed nature of its internal operation through recursive reference to norms, thus drawing a line between itself and the social environment. For the legal system, the various case facts in judicial adjudication are the external reference points of the legal system.

Not only does the human physiological system form closed operation and open cognition through the distinction and mutual coordination between self-reference and external reference, but the human psychological system is also the same. The human psychological system can refer to, confirm, describe and observe various physical and social facts outside of humans. However, in the human psychological system, the facts of the external world exist in the form of "information". The various facts in human thought are just some "references" to external facts constructed by humans through the operation of the psychological system, not the facts themselves. The human psychological system can refer to the facts of the external world and produce various "information" about the facts of the external world, mainly relying on the operation of the human psychological system itself. In this regard, Husserl's study of human consciousness in the phenomenology of consciousness is particularly inspiring. Husserl believes that human consciousness always contains two aspects of activities at the same time, one pointing to an external object (noema), and the other pointing to consciousness itself (noesis). If we look at human consciousness from a static perspective, we can only observe the imagery structure of consciousness, that is, consciousness is always about something. But if we observe human consciousness from a dynamic perspective, we can find that "before consciousness concerns something, it must first determine the manifester a priori based on its own phenomenon." For example, I realize that there is a flower outside the window. At this time, I am aware of the flower outside the window, and at the same time, I am aware of "I am aware of a flower outside the window". Our human consciousness can always be aware of these two aspects at the same time. Husserl's phenomenology points out that the external object referred to by consciousness is "an indirect, non-absolute, only accidental and relative existence", while the self-reference and recursive operation of consciousness itself is "a necessary and absolute existence" in consciousness activities. Only when such external reference and self-reference play a role at the same time can consciousness truly produce meaningful experience. If consciousness does not point to an object, then consciousness is empty, but if consciousness cannot form recursive self-reference, then consciousness will not occur at all.

If this dual content of Husserl's phenomenology on consciousness activities is generalized, then all autopoietic systems contain these two activities when dealing with the external world. We call the former activity external reference and the latter activity self-reference. Through the combination of self-reference and external reference, the autopoietic system establishes its own observation ability. For the legal system, the relationship between norms and facts is similar to the relationship between self-reference and external reference in the operation of the human brain. Therefore, for the legal system to form the ability to refer to, confirm, describe and explain social facts, it must first form the ability to operate recursively within itself. This ability to operate recursively is symbolically expressed as the normativeness of the law within the legal system, that is, the functional imperative that judges must be bound by the law. The operation of the legal system can only be recursively connected to an operation within the legal system, thereby forming a boundary between the legal system and society through the recursive operation within the legal system. In this sense, the operation of the legal system can never be connected to an operation or a fact outside the legal system. However, through the recursive operation within the legal system, especially through the binary coding structure of legal/illegal within the legal system, the legal system has formed an ability to refer to, observe and describe facts outside the legal system. As an external reference point within the legal system, the facts in the law can never be completely identical to the natural facts outside the law. They must be "cut" and "formatted" by the legal system, and therefore must carry the "bias" of the legal system. This is just like in the field of quantum mechanics, any physical facts in the microscopic world are nothing more than facts "detected" (referred to) through the operation of various precise scientific experimental instruments. For the legal system, the detectors it uses to detect various extra-legal relationships are the concepts and theories constructed within the legal system. The more developed the concepts and theories constructed within the legal system, the more it can detect the more subtle differences and characteristics of various facts in the external world.

In this regard, the relationship between various facts within the legal system is certainly not the "natural causal relationship" between various facts outside the law, but is just a certain reference and attribution relationship formed by calculations within the legal system. At the same time, just as the human brain can detect changes in the external environment, but does not necessarily have to change according to changes in the external environment, even if the legal system can form a perception and understanding of changes in the facts of the external environment, it does not necessarily have to change according to the changes in the facts of the external environment. When to make changes and when to remain unchanged is mainly determined by the calculation of the "algorithm" within the legal system. But one thing is certain, even if the legal system decides to make changes based on changes in facts, it must rely on the recursive operation within the law itself to achieve it. "Openness depends on closure" is precisely the real reason why the legal system must internally distinguish between legal norms and individual case facts.

Ⅳ. Social Function of the Schema of Distinguishing between Norms and Facts

Just because the distinction between legal norms and case facts functions as a cognitive schema within the legal system and performs the function of coordinating the relationship between the legal system and the social environment, a large number of criticisms of this cognitive schema are often concentrated on the level of legal functions. One of the most important criticisms is that such a cognitive schema within the legal system undermines the effective performance of the social function of the legal system. For example, due to the existence of this cognitive schema, judicial adjudication has to be understood as a process of legal application. Therefore, judges are constrained by the abstractness and generality of legal norms in individual case adjudication and cannot pay the greatest attention to and explore the importance of various special facts in individual case adjudication. Therefore, they cannot make individual case adjudications that satisfy the parties to the greatest extent. In this regard, it is not enough to explain the dichotomy of legal norms and case facts only from the structural level of the internal operation of the legal system. It is also necessary to reveal in what sense this cognitive schema promotes the performance of the social function of the legal system at the functional level, and to specifically explain what the specific connotation of the social function of this legal system is and what the social cost is.

(I) Legal norms are necessarily abstract and general

Systemic jurisprudence believes that as a self-generated complex giant system, the legal system is closed in operation and open in cognition. More specifically, the legal system achieves the effect of closed operation and open cognition by distinguishing and coordinating internal self-reference and external reference. Specifically in the field of judicial adjudication, legal norms and case facts each play a role as the self-reference point and external reference point of the legal system, ensuring the development of the operation of self-reference and external reference within the legal system. Therefore, the distinction between norms and facts, as a schema within the legal system, guides the internal operation of the legal system.

In the relationship between self-reference and external reference within the legal system, self-reference has a more fundamental position, because any external reference can only be realized based on the operation of the self-reference of the legal system. In this regard, in judicial adjudication, legal norms have a more fundamental position and importance than case facts. For example, legal norms are usually presented in the form of a conditional outline of "if...then..." In legal theory, the "if..." part is usually called the behavior pattern, and the "then..." part is called the legal effect. From the perspective of systemic jurisprudence, the behavior pattern part of legal norms sets conditions for the legal system. If these conditions are met, the legal system will respond to the facts in the external environment and give them legal effects. If these conditions are not met, the legal system will remain indifferent to the various facts in the external environment and turn a blind eye.

It is particularly noteworthy that the behavior pattern part of the logical structure of legal norms is constructed using abstract and general legal language, with the characteristics of generalization and abstraction. From the perspective of the history of legal evolution, this is a special achievement of modern law. From the perspective of comparative legal history, neither the traditional law of the Western Middle Ages nor the law of ancient China has formed such an abstract construction of legal facts. For example, Qu Tongzu once pointed out that traditional Chinese law emphasizes particularism rather than universalism. Specifically, although the law is generally applicable to everyone, there are still many special provisions in the code that only apply to a certain special identity. A more typical example in this regard is the detailed fee schedule for various injuries established by the earliest Anglo-Saxon legal collection in the Western Middle Ages, the Law of Ethelbert: "The four front teeth are worth 6 shillings each, and the others are worth 1 shilling each; the thumb, thumbnail and index finger, middle finger, ring finger, little finger and their respective nails are distinguished, and a separate price is fixed for each of them, called damages." It is difficult to imagine that the legal norms of modern criminal law or tort law will make such specific and detailed provisions on behavior patterns. Generally speaking, all these specific damage facts are condensed into an abstract concept such as "damage" in the behavior pattern part of the legal norms.

Modern law chooses to define it with general and abstract legal concepts and terms in the behavior pattern part, thereby selectively ignoring the huge differences between various specific life facts in real life. At the same time, not only are the provisions of the behavior pattern part of the legal norms abstract, but even the case facts in the judicial adjudication are actually described and presented in legal language, thus eliminating a large number of individual characteristics of objective facts. In this description process, the behavioral assumption part of the legal norms often plays an important role in the description of the case facts. In this case, the description of case facts in judicial decisions is also abstracted and generalized, which means that the legal system generally only considers those general factual features of the case facts.

(II) The schema of distinguishing between norms and facts helps to safeguard social expectations

In the view of many advocates of case-specific specialism, the dichotomy schema of legal norms and case facts set up by modern judicial adjudication undermines the individual justice and rationality of judicial adjudication. This further leads to some questions, that is, if we jump out of the structure and mechanism of the internal operation of the legal system and consider it from a larger social perspective, then what is the social function of the dichotomy schema of norms and facts in judicial adjudication? In order to achieve this social function, what social price does the modern legal system have to pay? In order to minimize this social price, what can be done? To answer these questions, it is necessary to think about the status and function of law in modern complex society at a more abstract and general level. If judicial adjudication mainly pursues the satisfactory resolution of individual case adjudication, it is necessary to limit the abstractness and universality of the factual conditions set in legal norms to the maximum extent, so that modern law can constantly change itself according to the changes in social life situations at any time.

Indeed, for the substantive resolution of individual disputes, the particularity of the facts in the social context in which the case occurs is very important. Even if the facts of different cases are "similar" according to abstract legal rules, the interests, emotional demands and litigation expectations of the parties to the case are very different. In order to truly settle disputes in individual cases, it is necessary to consider the different interests, emotional demands and litigation expectations of the parties to the case. At this time, it may be necessary and worthwhile to appropriately sacrifice the generality of the law. But in more cases, it is often difficult to fully meet the demands and expectations of all parties in judicial adjudication. Many disputes brought to court are often irreconcilable, and they are also disputes and contradictions that cannot be resolved by other alternative dispute resolution methods such as mediation and arbitration. Therefore, for courts in the modern multi-dispute resolution system, the more common life scenario of judicial adjudication is that the parties to the litigation hope that the court will give an either-or answer. This means that no matter what kind of judgment the court makes, if one party is satisfied, there will inevitably be other parties who are disappointed. Systematic legal studies believe that the main social function of the modern legal system is not to meet the demands and expectations of any particular party in the conflict, but to support and guarantee a certain social generalization normative expectation. The generalized normative expectations of society can only be consistent with the expectations of some parties in individual case trials. In extreme cases, such expectations may not even be completely consistent with the expectations of any party in individual case trials. In the study of legal sociology and legal anthropology, this solution to individual case disputes has failed. However, in the perspective of systemic jurisprudence, this solution to individual case disputes may still be successful.

Understanding the function of the legal system as a guarantee of generalized expectations has a long tradition in jurisprudence. As early as the 18th century, Bentham's jurisprudence had a very detailed and clear explanation of this. Many legal sociology researchers also agree that the function of law is to guarantee and stabilize expectations. However, these studies have not clearly distinguished between the two types of expectations, namely individual expectations and general social expectations, as systemic jurisprudence does. Individual expectations have a strong psychological color, referring to the psychological state of an individual at a certain moment, which is largely difficult to predict. Social expectations obey the "law of large numbers". Although they may not be accurately measured, they are a relatively objective social fact that transcends individual psychology. If we understand the function of the legal system as stabilizing the generalized expectations of society rather than stabilizing the specific expectations of individuals, we can form a different understanding of the law. Focusing on the response and appeasement of the various specific expectations of different individuals in individual disputes, we can develop a legal adjudication concept centered on the specific facts in the case and the satisfaction of the parties to the individual dispute as a measurement indicator. Systematic jurisprudence focuses on the protection of general social expectations in individual disputes, emphasizing that the core work of individual case adjudication is to judge the legality of behavior and facts, and on this premise, taking into account the subjective satisfaction of the parties in individual disputes.

The emphasis on the importance of "individual case facts" implies that the law hopes to "learn through facts", that is, to be ready to adjust itself according to the differences and changes in facts. From a sociological perspective, this is a typical cognitive attitude. In addition to cognitive attitudes, people can also hold a normative attitude of "not learning and changing" in the face of changes and differences in facts. For example, in the field of love, the cognitive attitude of "learning through facts" is often condemned, while the normative attitude of never changing one's mind even if the sea dries up and the rocks crumble is regarded as the true meaning of love. In the daily life of individuals, cognitive attitudes and normative attitudes merge with each other to form a harmonious relationship. However, from the perspective of social order, cognitive attitudes and normative attitudes are often differentiated from each other. This differentiation does not mean that there are only cognitive attitudes in some fields and only normative attitudes in other fields; rather, it means that in some fields, cognitive attitudes have a more basic status, while the weight of normative attitudes is far weaker than that of cognitive attitudes, while in other fields, normative attitudes have a more basic status, while the weight of cognitive attitudes is far weaker than that of normative attitudes. For example, in the field of scientific research, the importance of cognitive attitudes is obviously far greater than that of normative attitudes, otherwise scientific discovery and innovation will become particularly difficult. The importance of case facts in scientific research is unquestionable. When facts change in scientific experiments, theoretical understandings that are inconsistent with the facts must also be changed and revised accordingly. Unlike the scientific field, in the legal field, the importance of normative attitudes is far greater than that of cognitive attitudes. From the perspective of the principle of social order formation, if all actions follow cognitive attitudes, a dilemma of "double coupling" will be formed, and eventually a Hobbesian order problem will be encountered. Therefore, in the order of social life, there needs to be something that enables people to stick to the normative attitude of "not learning" when they are disappointed by changes in facts, thereby forming stable normative expectations. In pre-modern society, a mixture of morality, religion and law assumed this function, while in modern society, the legal system mainly assumes the function of stabilizing normative expectations.

Modern law mainly assumes this function of stabilizing normative expectations through the closed nature of its internal operation. The function of the legal system to stabilize normative expectations has a great impact on the structure of the internal operation of the legal system. One of the particularly important impacts is that it creates the following possibility within the law, that is, the law must decide in advance which general expectations are to be protected and which expectations are to be suppressed in advance. Those expectations that need to be protected in advance are marked as legal, while those expectations that are suppressed in advance are marked as illegal. This structure creates a decision-making situation within the legal system, that is, to make a judgment that is either legal or illegal in individual cases.

(III) The social cost of distinguishing between norms and facts in the legal system

In judicial case adjudication, in order to maintain the general expectations of society, the absolute rationality of handling individual disputes has to be sacrificed in many cases. This is the necessary cost and price that modern rule of law has to pay. This means that when various social facts outside the legal system change, the legal system does not necessarily need to "dance with the wind", but should maintain strategic focus - maintain the existing operation and structure. On the one hand, the law does not necessarily change with the changes in social facts, but should try to maintain its own identity in different situations, so that it can be continuously confirmed in different contexts and assume the function of stabilizing the general expectations of society. On the other hand, the meaning of the law cannot be completely sealed and fixed, but must have sufficient richness and possibility of change, and be able to adapt to changes in situations. In terms of information theory, the former reflects the redundancy of the law, and the latter reflects the diversity of the law.

In order to balance the relationship between the two, the legal system has developed various structures and plans within it. One of the plans is to balance the tension between the stability and adaptability of modern law by separating the content and form of modern law. The normativity of modern law is a normativity independent of content. This means that even if the content of the law changes, the law will not lose too much of its formal validity. The correctness of the content of the law is mainly achieved by the legislator absorbing social consensus. For judges, as legal workers, they should follow the constraints of legal norms to the greatest extent possible, so as to safeguard the validity of the legal form. This certainly does not mean that judges do nothing in terms of the correctness of the content in individual case adjudication. But the space for judges in this regard is necessarily limited. Compared with legislation, the work of judges in this regard is only supplementary. In short, in order to assume the normative expected function of stabilizing social communication, the legal system has to pay a certain social cost, that is, ignore the particularity of some individual cases, and therefore have to pay the price of sacrificing the justice and rationality of some individual cases. Even so, modern law has developed some internal mechanisms and measures to minimize this social cost.

First, the modern legal system not only constructs a vertical judicial structure of adjudication according to law through the dichotomy of norms and facts, but also constructs a horizontal judicial structure of the same case and the same judgment, thus forming a judicial adjudication structure with "adjudication according to law" and "same case and the same judgment" crisscrossing. In other words, in the modern judicial adjudication process, a legitimate individual case adjudication needs to meet the requirements of "adjudication according to law" and "same judgment for the same case" at the same time. If the requirement of adjudication according to law focuses more on the abstractness and generality of the rules, then relatively speaking, the requirement of same judgment for the same case takes into account the particularity of individual cases more.

Secondly, modern legal doctrine is no longer the same as the conceptual jurisprudence of the 19th century. Legal doctrine no longer completely adheres to the abstract formality and system closure of legal concepts, but adopts the concept of open system and attaches importance to the various value foundations implied behind legal concepts. At the same time, on the basis of adhering to the legal system view, legal doctrine has also absorbed many research results of social science law to a limited extent, enriching the legal doctrine knowledge system, so that legal doctrine knowledge can more effectively take into account the complexity of case facts.

Thirdly, in addition to the traditional four legal interpretation methods of Savigny, modern legal methodology has further developed methods such as gap filling, legal continuation, and result consideration, which to a certain extent reconciles the abstractness of legal norms and the particularity of individual case facts, making the goal of pursuing legitimate individual case judgments easier to achieve.

Finally, it is particularly important to note that the dichotomy between general legal norms and individual case facts in modern judicial judgments, as a cognitive schema for the internal operation of the modern legal system, does not mean that this is an ideal type of opposition between "legal provisions" and "consequences", thus forming a two-choice structure. The distinction between norms and facts is not the same as the opposition between norms and facts. This does not mean that in the specific judicial practice, there is a need to make an either-or choice between legal norms and individual case facts in terms of importance. In fact, in the process of adjudicating various specific difficult cases, sometimes the interpretation of norms is more important, but sometimes the interpretation of facts is more helpful in solving difficult cases. The dichotomy between norms and facts, as a cognitive schema for the internal operation of the legal system, does not emphasize legal norms or individual case facts more at an abstract and general level. Instead, it advocates a back-and-forth flow of attention between norms and facts based on the needs of individual case adjudication, thereby integrating legal norms and case facts to make fair individual case adjudications.

V. Conclusion

In the process of law application, the misalignment and gap between legal norms and case facts are the main reasons for the occurrence of a large number of difficult cases. This has brought great challenges to judicial judges and has also attracted a lot of attention and discussion from legal theory researchers. From the perspective of ideal type, facing the misalignment and gap between abstract and general legal norms and complex and specific case facts in the current process of Chinese law application, the two different opinions formed in the field of legal theory represent two different understandings of the law implementation model. If we insist on the judicial adjudication structure of dividing legal norms and case facts, we must insist on the priority of legislation in the legal system engineering, adhere to the legal operation method with legal doctrine as the core, and therefore adhere to the legal education model with legal doctrine as the core. If we break through the judicial adjudication structure of dividing legal norms and case facts, and judge cases around case facts and the "rights and wrongs" contained in them, then legislation will no longer take priority in the entire legal system engineering, and legal doctrine will no longer be the main tool for judicial adjudication. Therefore, the entire legal education model must also be adjusted accordingly. From a more macro social perspective, if, as advocated by social science law, the binary structure between general legal norms and specific case facts is broken in judicial adjudication, and the status and role of legal norms are compressed to the minimum, it is indeed possible to promote the fairness of individual case adjudication in the adjudication of certain special types of difficult cases. However, if it is expanded into a general model of judicial adjudication, it will inevitably sacrifice the stability of the law, and thus damage the function of modern rule of law in the governance of a large-scale stranger society to "solidify the foundation, stabilize expectations, and benefit the long-term". However, if the rigidity of the binary structure between legal norms and case facts is too rigidly adhered to, and the particularity of individual cases and the fact of rapid social changes are completely ignored, the law will appear too rigid and behind the times, and it will also bring about the practical problem of fairness in individual case adjudication of certain specific types of difficult cases. This requires us to form a correct understanding of the binary structure between modern judicial adjudication norms and facts, especially the correct understanding of the relationship between abstract legal norms and case facts and the distinction between the main and the secondary.

Using the method of systemic jurisprudence, this paper provides a pragmatic theoretical explanation and elaboration of the structure of the dichotomy between general legal norms and specific case facts in modern judicial adjudication, which is conducive to a better understanding of the role and position of the dichotomy between norms and facts within the legal system. By introducing the schema theory of cognitive psychology, this paper argues that the dichotomy between abstract legal norms and specific case facts in judicial adjudication, as a cognitive schema within the legal system, effectively coordinates the relationship between the legal system and the social environment. With the popularization and application of modern communications and transportation, as well as the rapid development of my country's socialist market economy, Chinese society is increasingly showing new characteristics such as high-speed flow, greater complexity and diversity, and the importance of the "stabilizing expectations" function of the socialist legal system with Chinese characteristics is becoming increasingly prominent. Therefore, for the function of the legal system to perform stable normative expectations in modern society, the dichotomy between norms and facts is irrevocable.