[author]PAN Weijiang
[content]
On the Sociology of Law’s Contribution to Jurisprudence:
A Legal Philosophy Reflection Based on Ancient Inheritance Allocation Case
PAN Weijiang
Professor, School of Law, Beihang University
Abstract: In the story of "camels inheritance case", the twelfth camel from the Kahdi is the most important element for the success. It is a biological real camel, but it functions as a prop camel, which has symbolized the consolidation between inside perspective and outside perspective of the legal system. So the traditional "either-this-or-that" perspective cannot objectively observe the twelfth camel. Observation is to make a difference and to designate one of the side. The observation itself will result in a paradox. The paradox of a twelfth camel just symbolizes the paradox of the self-observation of legal system. The social system theory of law can consolidate two perspectives of law and thus making a better observation．
Keywords: Biological Camel; Prop Camel; Self-Observation; External Observation; Paradox
1. Introduction
The disciplinary positioning and contribution of socio-legal research have been hotly debated within the field of jurisprudence, yet significant confusion remains, making it almost a "cold case" that remains unsolved. For instance, many scholars engaged in socio-legal research believe it can and should replace traditional doctrinal legal research, rather than merely serving as a supplementary approach. Conversely, many scholars who oppose socio-legal research completely reject it, even seeking to banish it from law schools. Personally, I have long attached great importance to socio-legal research, believing that in a transitional China, excluding social factors from the scope of legal research and engaging solely in pure normative and statutory analysis has its limitations. However, it truly remains a difficult problem to theoretically analyze and discern the potential contributions of socio-legal research to legal studies.
In my own difficult exploration, I have noted that the research on the nature and positioning of socio-legal studies by the renowned German sociologist Niklas Luhmann holds significant enlightening value for our consideration of these related issues. Although Luhmann was critical of 20th-century socio-legal research during his lifetime, he nevertheless cultivated and harvested much in the field of sociology of law, publishing seven monographs on the subject during his lifetime, almost all of which have become recognized classics in the field. Furthermore, Luhmann published numerous articles on socio-legal research. It can be said that Luhmann undertook long-term and systematic reflection and exploration in the field of socio-legal studies. Among these, a paper Luhmann wrote in 1985, "The Return of the Twelfth Camel", tells a legal story from Islamic law and unfolds a series of brilliant analyses and discussions around this story. From the perspective of social systems theory, he analyzes the necessary switching between and relationship of the "internal perspective" and "external perspective" that socio-legal research must confront. This is highly enlightening for our understanding of the disciplinary positioning and contribution of the sociology of law, especially regarding the respective characteristics, strengths, and weaknesses of socio-legal research and traditional legal research.
This paper by Luhmann was not published until 2000, after his death, and elicited strong reactions from German legal and sociological circles. The German Journal of Legal Sociology dedicated a special issue, inviting leading scholars from German legal and sociological research fields to comment on and respond to the article. The reason for revisiting this matter here, writing a dedicated article to discuss and critique the problems and arguments raised in this paper—particularly the story of the camel inheritance case recounted in the article—is primarily based on three considerations: First, the story told by Luhmann and his interpretation of it are truly brilliant. I very much wish to share this brilliance with domestic colleagues. Second, the issues discussed therein are precisely those we are concerned with, and also represent major theoretical questions of great practical significance for China's rule of law construction during its transitional period. Third, this article was written during Luhmann's mature period and is very typical of his mature observations and understanding of the modern legal system; it is also very helpful for our understanding of Luhmann's overall sociology of law theory.
The writing of this article is based on the interpretation and analysis of Luhmann's aforementioned paper, but is not confined solely to it. It also involves the interpretation and critique of other important literature and reflections from Luhmann's socio-legal research. Simultaneously, our analysis and understanding of this Islamic story differ slightly from Luhmann's, as we focus on its implications for considering the potential contribution of sociology to legal research within the Chinese context.
2. The Twelfth Camel: The Secret to the Qadi's Success
The story told by Luhmann is as follows:
A wealthy Bedouin made a will to distribute his estate, which consisted mainly of camels, among his three sons. According to the will, the eldest son, Achmed, was to receive half of the camels. The second son, Ali, was to receive a quarter. The youngest son, Benjamin, was to receive one-sixth. When the old father died, the number of camels had sharply decreased for some reason, leaving only 11. The conundrum of inheritance distribution then arose. The eldest son demanded six camels, but this exceeded half of the total, so the second and youngest sons objected. However, if the eldest son were given only five, he would not agree, nor would it conform to the stipulations of the will. Thus, a dispute arose among the three sons over how to distribute the 11 camels. Eventually, they decided to resolve their dispute by appealing to an Islamic judge, a Qadi.
In the end, the wise Qadi devised a clever method that satisfactorily resolved the inheritance dispute. The Qadi's solution was this: he added one of his own camels to the estate of the recently deceased father, making the total number of camels 12. Consequently, the eldest son inherited 6 camels, the second son inherited 3, and the youngest son inherited 2, which exactly accounted for the original 11 camels. All three brothers were satisfied and felt the Qadi's ruling was just.
We see that the judge, the Qadi, in the camel inheritance case achieved the pre-set goal of the judicial function: he adjudicated a case originally deemed difficult to resolve and settled the dispute satisfactorily. The three brothers accepted the Qadi's ruling and left the court content.
So, what is the secret to the Qadi's success?
Attentive readers will, of course, note that the judge here is not the secular judge we typically understand. He is a judge of Islamic law. In Islam, a judge is called a Qadi, a "executor of Sharia," meaning they adjudicate matters on earth based on divine law, entrusted by God's will. With divine will backing them, the so-called hard case mentioned above seems not to be a problem. Perhaps it is precisely the guarantee provided by the supreme Islamic god, Allah, that gives parties in any difficult dispute the confidence to "enter the court" seeking the "one right answer" for their conflict.
Interestingly, however, the Qadi in this camel inheritance case did not resort to this, even though he could have completely used methods like trial by ordeal. If he had used trial by ordeal, the Qadi could have attributed the basis and reasoning of the judgment entirely to the mysterious God. For example, he could have been suddenly "possessed" by God, allowing God to announce the verdict through his mouth without giving any reasons: for instance, declaring that the eldest gets six camels, the second gets three, and the youngest gets two. Or he could have decided the outcome by casting lots. Or he could have written several possible distribution schemes on pieces of paper, crumpled them, placed them in a box, drawn one, and executed whichever scheme was written inside. But the Qadi did not adopt any of these methods.
In my view, the Qadi creatively utilized the Islamic people's faith in and trust of God, thereby creating conditions for a form of judicial rationality. What truly interests us in this case is that the Qadi, deeply versed in the doctrines and essence of Islamic law, ultimately resolved the dispute using a completely secular and technical method. The Qadi's authority was endowed by divine law, but he made his judgment in a manner akin to positive law. This is one interesting aspect of this case.
From the perspective of positive law, the challenge facing the Qadi was to adjudicate the case according to the rules of the will without slaughtering the camels, thus violating Bedouin tradition and customs.
The secret to the Qadi's success lies in this twelfth camel. With the addition of the twelfth camel, the previously seemingly unsolvable problem was readily resolved. As the estate now consisted of twelve camels, the eldest son, Achmed, received 6 camels, the second son, Ali, received 3, and the youngest son, Benjamin, received 2. The will was executed perfectly. According to the will, each son received their due share, and justice was perfectly served. So, what magical role did this twelfth camel play in the execution of this inheritance distribution plan to make this all possible?
First, as outsiders hearing the story, we can quickly see that the key to solving this hard case lies in a miraculous change in the facts of the case—the eleven camels to be distributed as inheritance now became twelve. From a technical perspective, if there were eleven camels, this inheritance distribution plan was unworkable. But once the number of camels became twelve, the distribution plan could be executed perfectly.
Even more magically, according to the solution proposed by the Qadi, the camels received by the three brothers still added up to eleven. After the distribution was complete, the judge took the remaining camel back. The three brothers did not seem to raise any objection. On the one hand, according to the will, the three brothers received the shares they were originally entitled to. On the other hand, the judge's solution "in fact" allowed them to receive more camels than they should have legally received. And all this was possible because the judge "selflessly" contributed his own camel. Therefore, the three brothers seemed to have no issue with the judge taking the camel back.
Based on this magical camel inheritance case, Luhmann posed two classic questions: (1) Was the twelfth camel indispensable for the Qadi's adjudication? (2) Could the Qadi take back the twelfth camel?
Throughout his argument in the entire article, Luhmann primarily answered the first question, concluding that the twelfth camel was both indispensable and, simultaneously, not indispensable. Regarding the second question, Luhmann did not provide a direct answer. He only suggested that both returning and not returning the camel were problematic, because in either case, the judge could not adjudicate his own action.
However, if we analyze this strictly according to legal rationality, the judge should not be able to take back the twelfth camel. When the judge contributed his own camel to become part of the estate for distribution, from a legal perspective, this created the effect of a gift. After the distribution was completed, the ownership of the remaining camel no longer belonged to the judge. Therefore, the judge could not take this camel back.
This argument seems somewhat reasonable, but it's not absolute. For example, the Qadi could argue that although the ownership of the camel did not belong to him at that point, it did not belong to the three brothers either, as they had already received their inherited shares. The father's will did not specify the possible ownership of this remaining camel, so it could be considered an ownerless item. The Qadi could then reclaim the camel on behalf of the state. Of course, those who love legal analysis could continue along this line of reasoning. For instance, top civil law students might say that the twelfth camel should be distributed according to the rules of statutory succession. Someone might argue that although they couldn't kill and proportionally distribute the twelfth camel, they could rent it out and distribute the proceeds according to their shares. However, does the theory of statutory succession learned in civil law classrooms apply to Islamic law?...
Undoubtedly, based on the doctrinal legal analysis we learn in Chinese law schools, I am also inclined to believe that the twelfth camel should not be returned. How it is handled is one matter, but that it should not be returned seems certain.
In Luhmann's version of the story, whether the Qadi took back the twelfth camel is somewhat ambiguous. Hence, Luhmann could raise the question of whether the Qadi could take it back. From the overall context of the story, the three brothers did not seem to oppose the judge taking the camel back. But their acceptance of the judge retrieving the camel is also vague and suspect. It is quite possible that the Qadi judge quietly took the camel back after the three brothers left the empty "courtroom" satisfied, leaving only the Qadi and the twelfth camel behind. This version, where the Qadi takes the camel back secretly, perhaps aligns more with how most legal professionals view this matter: although the Qadi took the camel back, he did so quietly, with a touch of guilt, because he knew that, strictly speaking, he could not rightfully reclaim the camel.
3. The Truth and Fiction of the Twelfth Camel: The Conflict Between Jurisprudence and Sociology
We are all fascinated by the twelfth camel in this case. Legal professionals are troubled by the fact that the twelfth camel should not have been returned, yet the likely actual outcome is that it “was” returned. Although many law students, from a professional standpoint, believe the twelfth camel should not be returned, considering the outcome, they might agree with its return. More likely, if they were to become judges themselves, they would all wish to have a camel like the Qadi's—one they could bring out when needed, and then secretly take back after solving the problem. Of course, in this sense, the twelfth camel is a symbolic presence; it could just as easily become a twelfth piglet or a twelfth plough ox.
This reminds us of a Chinese mainstream film, The Court on Horseback, which features a case strikingly similar to the camel inheritance dispute—the “Pickled Vegetable Jar Case.” In that case, two sisters-in-law each claimed ownership of a single pickled vegetable jar and refused mediation. Judge Lao Feng ultimately smashed the jar and paid five yuan out of his own pocket, enabling each party to buy a new one, thereby quelling the conflict. If we link the Pickled Vegetable Jar Case with the Camel Inheritance Case, we may analogously say that the twelfth camel in the latter corresponds to the second jar in the former. In the Pickled Vegetable Jar Case, Judge Lao Feng’s act of smashing the jar was profoundly judicially wise. He faced a new difficulty that the Qadi in the camel case never encountered: it was impossible to ascertain the jar’s ownership, or the cost of establishing ownership far exceeded the jar’s value. Moreover, even if ownership were determined, the resolution would damage the relationship between the sisters-in-law and harm family harmony. Thus, by smashing the jar, Lao Feng shifted the focus of the dispute entirely. As the tortfeasor, he then had to compensate for the loss. By paying five yuan—two yuan and fifty jiao to each party—he converted their contested ownership into realized exchange value, satisfying both sides.
The key difference between the Pickled Vegetable Jar Case and the Camel Inheritance Case lies in this: Lao Feng’s five yuan could never be recovered, whereas the Qadi took back his camel. Consequently, the camel remains available for future use. A second, less obvious distinction is that in the Pickled Vegetable Jar Case, Judge Lao Feng operated a “court on horseback,” delivering justice to rural communities, whereas in the Camel Inheritance Case, the parties actively came before the Qadi seeking adjudication. The nature and purpose of such judicial outreach is precisely to render future outreach unnecessary—to motivate people from remote mountainous regions to journey to the “door of law” in search of justice.
The Pickled Vegetable Jar Case suggests another possibility for the twelfth camel: it might not be recoverable. If we adopt this perspective, we must ask: Was the Qadi’s camel merely coincidentally available, or had it been prepared in advance? How could the Qadi have known beforehand that a dispute over camel inheritance would arise, prompting him to ready a camel specifically for this purpose? If the camel was not “just happen to be at hand,” does the Qadi maintain a vast warehouse stocked with “elephants,” “donkeys,” “horses,” “cattle,” and “tents”? If the Qadi’s success depended on such an all-encompassing repository, wouldn’t that impose an unreasonably high demand on him?
In The Court on Horseback, a pickled jar costs only 2.5 yuan, so Lao Feng could readily pay five yuan. But camels are far more valuable; if the Qadi had to contribute a camel in every case, he would soon go bankrupt. Hence, the twelfth camel must be retrievable.
If it can be returned, then it is a special kind of camel—a camel that both exists and does not exist, a camel that symbolically participates in the distribution yet is in fact inalienable. Luhmann once wittily referred to it as a “camel on official duty,” a “procedural camel,” or a “camel available for lending.” In our familiar terms, it is essentially a “prop camel.” In this sense, this camel differs fundamentally from the eleven left by the father, for it is a “virtual camel.”
But the question remains: in the adjudication process, did the camel truly need to be physically lent out, or was a legal fiction—merely a simulated loan—sufficient? During the proceedings, all three brothers undoubtedly agreed that this camel was “real” and “identical” to the other eleven; the entire distribution plan proceeded on this premise. Thus, as “insiders” to the case, both the judge and the three brothers regarded the camel as unquestionably real. To the brothers, the twelfth camel had to be an indisputably healthy, purely biological camel; otherwise, they would never have accepted the judgment.
Hence, we observe a serious divergence between jurisprudence and sociology regarding the nature of the twelfth camel. From the juridical perspective, the camel must be real; otherwise, the case could not be adjudicated at all. The transition from an apparently intractable dispute to a successfully adjudicated and universally accepted resolution necessarily presupposes the camel’s reality. Conversely, from the sociological perspective, the camel is not “real” but rather a legal fiction—it is not a genuine camel, but merely a highly “verisimilar” one.
Jurisprudence insists on the camel’s reality because it adopts an internal perspective. Sociology deems it fictive because it employs an external perspective. This difference in observational stance leads to diametrically opposed conclusions. When these two opposing perspectives are combined, a fascinating insight emerges: the success of the judgment hinges precisely on this “fictional reality.” That is, the twelfth camel succeeds because it is both false and true: false from one angle, true from another; ultimately, it is inherently false yet must be treated as true. It is precisely this dual character—being simultaneously “true falsehood” and “false truth”—that constitutes the key to the camel inheritance case’s success. The twelfth camel’s simultaneous possession of “truth” and “falsity” vividly and aptly reveals the tension and unity between jurisprudence’s internal observation and sociology’s external observation.
Such tension is not uncommon in legal practice. For instance, when a large enterprise, Enterprise A, directly discharges pollutants and harms the environment, it may be ordered by a court to pay a sum in damages. From a juridical standpoint, this sum is compensation for tortious harm. Yet from an external perspective, the enterprise might view it as a de facto “pollution tax”—an economically rational calculation that may even seem like a bargain compared to the cost of installing full-scale pollution control facilities.
Consider another example: traffic rules. From a legal perspective, traffic regulations are unequivocally legal norms. Take the common “red means stop, green means go” rule. Pedestrians halt at red lights and cross at green lights because they treat this rule as binding and use it to guide their conduct. When others violate it, they respond with disapproval, reminding themselves that such behavior is wrong and that, as law-abiding citizens, they must comply.
However, an external observer might describe the same phenomenon as a highly probable event: the likelihood that people stop at red lights and walk at green lights, and how this probability varies across cities and neighborhoods. To them, there is no “rule” at work—only patterns of behavior with varying degrees of regularity, akin to rain following dark clouds.
Similarly, viewed externally, law may appear as nothing more than “words on paper.” What legal professionals regard as self-evident, immutable truths may vary by location—“What is truth on this side of the Pyrenees is error on the other,” as Pascal wrote—and change over time: “With three strokes of the legislator’s pen, all books become waste paper,” as Kirchmann observed. From this sociological vantage point, jurisprudence often appears as self-deception or delusion—a discipline fixated on a mirage, blind to its own nature and the true state of the world, thus falling into naivety and illusion.
In this light, the sociological perspective performs a powerful function of disenchantment (Entzauberung). What jurisprudence insists “must be true,” sociology reveals as “likely false.” Consequently, sociological observation exposes the contingency and complexity of the world.
This revelation poses a challenge to legal scholarship: in a contingent world, how can jurisprudence justify its presupposition of necessity—the idea that things “must be” a certain way? Yet this perspective also brings its own drawbacks. Because a contingent world is also a fragmented one, sociology, while recognizing the twelfth camel as fictive, fails to perceive the coherence of law. It cannot see the unity between the twelfth camel and the twelfth ox. It views law merely as a collection of specific interpersonal relations and ad hoc dispute-resolution methods, overlooking the underlying consistency that connects individual cases and solutions. On the contrary, it sees only contradictions among different resolutions.
The logic embedded in the twelfth camel story clearly does not support such a purely external viewpoint. In this tale, the camel’s magical efficacy stems not only from the Qadi’s wisdom but also crucially from the wisdom of the testator—the father. We might even boldly assert that in the Camel Inheritance Case, the Qadi’s camel ultimately originates from the father, the great legislator, through his wisdom and authority. By designing a proportional scheme of distributive justice, the father ingeniously addressed the uncertainty caused by the camels’ natural life cycle—birth, aging, illness, and death. Partly due to the fairness of the allocation scheme and partly due to the father’s authority as legislator, all three sons accepted the will. Throughout the dispute, they insisted on distributing the estate strictly according to the will’s stipulations.
Due to the father’s wise testamentary design—even though each brother may have harbored various calculative motives, imaginable or beyond—we can say that they all ultimately accepted the will’s prescribed scheme as the standard for adjudication. When they approached the “court” and asked the Qadi to adjudicate their inheritance dispute, their explicit demand was that he adhere rigorously to the testamentary terms.
At this moment, the Qadi’s twelfth camel had already been prepared—not by the judge, but by the father. This twelfth camel is the Law itself. To observe the twelfth camel is to observe the Law. Through the creation of the will, the father successfully instilled in his sons a consciousness of law and rules, enabling them to resolve their conflict through legal means. Thereby, the brothers were liberated from various economic, psychological, situational, and strategic considerations. For them, all these hidden agendas and private calculations could only be realized through legal validation. Consequently, the central issue became the legality of each proposed allocation.
Because the legal system operates through a binary code—legal/illegal—judicial adjudication reduces complex value conflicts into clear-cut decisions. Just as a woman claiming pregnancy is either pregnant or not (there is no “a little pregnant”), so too must a judicial ruling declare an action either legal or illegal, with no third option. This binary coding greatly eases the judge’s burden and renders value allocation manageable. In this sense, adjudication is technical, not axiological or principled. Any value or principle entering judicial reasoning must itself be rendered binary—marked as either positive or negative—so it can be clearly applied and enforced.
We might as well to say that the Qadi’s twelfth camel resembles the “dashed lines” used in solid geometry. With such lines, a problem suddenly becomes clear; without them, the problem appears “intractable.” Physically speaking, any figure drawn on a plane is inherently two-dimensional. Yet through the convention of dashed lines, we gain the capacity to represent and construct three-dimensional space on a flat surface. It is precisely this added spatial dimensionality—enabled by the dashed line—that transforms an unsolvable problem in two dimensions into a solvable one in three. Similarly, the father and the judge—two sages who may never have met—collaboratively constructed a legal space beyond physical reality. It is within this emergent legal space that a dispute insoluble in the physical world was perfectly resolved.
4. The Metaphor of the Twelfth Camel: The Paradox of Law’s Self-Observation
Many people believe that in this case, the camel could be replaced by a “prop camel” because the twelfth camel functions as a symbol that stands for something else—such as a wooden carving of a camel. Although it is merely a prop, once it enters into a one-to-one correspondence with a real camel, we treat it as if it were a genuine camel. For example, in a casino, “chips” represent real “money.”
What makes the twelfth camel in this case particularly intriguing, however, is precisely that it is not a camel in this sense of symbolic representation. Its meaning is inverted: it is a biologically real camel, yet it performs the function of a “prop.” This inversion indicates that the camel does not serve the function of symbolic reference; rather, it fulfills the function of symbolic representation in a deeper sense—it symbolizes the highest-level symbol of the legal system itself, namely, the capacity of legal operations to render an otherwise impossible judgment possible.
In other words, the “falsity” of the twelfth camel does not lie in its being a symbolic stand-in; rather, it lies in the fact that although it “participates in the distribution,” it itself cannot be “truly distributed.” Its biological reality enables it to perform the function of participation in distribution in an unquestionable manner. Yet its true significance does not reside in its biological attributes, but in its role in making “an impossible case adjudicable.” One might even say that the unreality of the twelfth camel stems from its functioning within the legal process like a grammatical “function word”—a word that connects different clauses to form a coherent sentence, yet carries no substantive referential meaning of its own.
If we adopt this perspective to examine the twelfth camel, the earlier question transforms into the following: for the legal system, what is it that makes possible the binary-coded operation of distinguishing between legal and illegal?
When we speak of “observation,” the image that often first comes to mind is someone peering out a window, watching passersby. Or perhaps we picture a scientist observing lab mice through the bars of a cage.
Indeed, this is how we understand “observation” through everyday experience—as “seeing.” But mere “seeing” is not yet “observation.” Observation usually implies knowing how to see, understanding what to see, and thereby acquiring “information” and “understanding” about something. Moreover, when we talk about “observation,” we also notice that different “angles of observation” lead to different things being seen. Thus, more often than not, when we refer to “observation” (as opposed to mere “seeing”), we are referring to something far more abstract. For instance, we might say that a lawyer’s observation of a phenomenon differs substantially from an economist’s observation of the same phenomenon. Here, the difference in observational angle transcends spatial metaphors like “viewing mountains from different sides” and instead reflects divergent abstract criteria of observation.
So, what is observation by the legal system? Pioneering interdisciplinary research in cybernetics, information theory, and systems theory during the mid-twentieth century—by figures such as George Spencer-Brown, Humberto Maturana, and Heinz von Foerster—has provided crucial insights into the concept of observation. According to their work, observation is a binary distinction-making operation: it consists in drawing a distinction and marking one side of it. For example, when we see a car ahead of us, we are in effect making a distinction in space—this object / everything else. In this sense, we say we have “observed” the car. Upon reflection, any act of observation can be reduced to this operation of distinction and marking.
Furthermore, although sensory perception is our most familiar form of observation, observation is not confined to the sensory realm. From a strict logical standpoint, any operation that establishes a binary distinction and marks one side of it constitutes an observation. A simple example is an air conditioner. Suppose we set it to 28 degrees Celsius: when the room temperature rises above 28°C, the unit turns on automatically. Here, the air conditioner performs an observation—it first draws a distinction (above 28°C / below 28°C) and then marks one side (above 28°C triggers activation).
Thus, the difference between a lawyer’s observation and an economist’s observation is not a matter of professional identity—an economist can make legal observations, and a lawyer can make economic ones. What truly distinguishes them is the form of distinction each employs. Legal observation operates through the binary form of legal/illegal: its essence lies in applying this distinction and marking one of its sides. Economic observation, by contrast, uses the distinction of payment/non-payment, and its essence is the application of this form with one side marked.
Observation, therefore, is an operation: the making of a binary distinction and the marking of one of its sides. The problem of observation arises when this operation attempts to observe the very distinction it uses. For instance, what happens when the legal/illegal distinction is applied to itself? This would mean that the observer—the operation that draws a distinction and marks one side—is attempting to observe itself.
So the question is, how is such self-observation possible? First, from the standpoint of a single observational operation, self-observation is fundamentally impossible. For observation to proceed, the form of distinction itself must remain outside the scope of observation—that is, the form A/–A must be excluded from what is being observed. The essence of observation is to choose and mark either A or –A. But the observational form itself contains both A and –A simultaneously. It thus encompasses both the condition of possibility and the condition of impossibility for marking A. Consequently, when this form attempts to observe itself, it oscillates endlessly between A and –A, unable to settle on a mark. The operation of observation therefore collapses. Within logic, such a situation—where an operation simultaneously encompasses the conditions of its own possibility and impossibility—is termed a paradox.
Since human perceptual observation is a special (though familiar) case of observation, we can illustrate this point using psychological self-reflection. A key feature of self-reflection is that when I reflect upon “myself,” the “I” doing the reflecting is no longer identical to the “I” being reflected upon. We sometimes distinguish these as the “old self” and the “new self.” Yet both must still belong to the same “I.” Thus, neither the “old” nor the “new” self refers merely to a momentary snapshot, but to the self as a whole. Self-observation, therefore, is actually an observation of the self’s wholeness.
If we place the twelfth camel within this theoretical framework, many fascinating insights emerge. For example, the function of the twelfth camel is to render an undecidable dispute decidable and to enable communication that would otherwise be impossible. As an observing system, the legal system’s core task is to conduct countless acts of “legal communication,” each observing the legality of behaviors and events.
Through this continuous stream of communicative operations that perform legal observation, the legal system emerges and reproduces itself. However, as a system that operates through the legal/illegal distinction, the legal system inevitably confronts the problem of self-observation. Once it observes itself, it must confront the question of law’s own legality—this is the paradox of self-reference.
To continue functioning, the legal system must conceal this paradox. It requires the twelfth camel—and must presuppose that this camel is real. If a camel that is simultaneously real and unreal were to appear, the legal system would automatically exclude it as a “contradiction.” In other words: from an external perspective, we can recognize that legal facts are “artificial constructs”; but from an internal perspective, we must presuppose the “reality” and “objectivity” of legal facts—otherwise, legal practice cannot even begin and would collapse into paralysis.
In traditional legal theory, this problem was resolved through the question of law’s origin. Classical natural law theory, for instance, solved it by positing a hierarchical order from divine law to human law. The legality of a specific law was traced upward to a higher norm, ultimately reaching the origin of the cosmos—the act of divine creation. Thus, classical natural law required a cosmological or theological foundation.
After the decline of classical natural law and the acceptance of the world’s contingency, alternative solutions emerged: social contract theory (Hobbes), the violent origin of law (Marx), or “the free association of free individuals” (Kant)—all of which externalize the paradox in different ways. Yet all these theories, including natural law, express the same fundamental idea: “law originates from non-law.” None can directly judge whether the original, supreme law itself is legal. Hence, Kelsen posited the Grundnorm as a logical presupposition, while Hart resorted to a circular argument between internal and external perspectives on the rule of recognition to evade and conceal the issue. Earlier social contract theories, meanwhile, transformed the problem of law’s legitimacy by contrasting the “state of nature” with “civil society,” reframing the question as the benefits law brings within civil society.
That is to say: even though, from an external viewpoint, we may recognize that the legal/illegal binary code itself is a contingent “human construct,” from an internal viewpoint, we must presuppose the naturalness, inevitability, and unquestionability of this binary observational schema—otherwise, legal practice cannot commence or proceed and would grind to a halt. In other words, to put it differently: from the external perspective, law itself is a “fiction”; thus, “law” originates from “non-law,” just as the twelfth camel is an “external camel”—indeed, merely a “fictional” camel. But from the internal viewpoint, the legal system must hide this fact, rendering it invisible, so as to sidestep the question and assume that law is self-evident and “natural.” Consequently, the task of law becomes the application of law—not the questioning of law’s own origin and legitimacy.
5. Observing the Twelfth Camel: The Potential Contribution of Systems-Theoretical Sociology of Law
If the foregoing understanding of law’s self-observation is correct, then we must also reconsider certain entrenched “preconceptions” about the sociology of law. The most significant of these is the view that the sociology of law is merely a research method and practice that observes law “from the outside.” This is not to deny the significance of external observation. As previously noted, observing law externally reveals that the very distinction scheme on which the legal system operates—the binary code of legal/illegal—is contingent, rather than an “emergence of the essence of the world.”
However, the problem with such observation lies in the fact that its own recognition of contingency necessarily relies on a specific distinction scheme of its own; otherwise, the observation could not be carried out at all. For any observation requires a binary distinction of the world and a marking of one side of that distinction. Thus, as a second-order observation, while it can recognize the contingency of the legal/illegal code, it cannot see that its own observational schemes—whether good/evil, beautiful/ugly, true/false, rational/irrational—are themselves equally contingent and cannot possibly constitute an “emergence of the essence of the world.”
Consequently, these so-called external observations can only reveal the contingency of the legal system’s distinction scheme but cannot observe the legal system itself. For what constitutes the legal system as a system is not its contingency per se, but precisely its capacity, within a contingent world, to construct operational closure through a complex series of communicative operations, thereby differentiating itself from its environment. Within the distinction scheme of legal system/environment, the legal system distinguishes itself from its environment through autopoietic operations, thereby generating its own identity.
Admittedly, the legal system also attempts to observe and describe itself as a whole. Yet such self-observation and description are necessarily constrained by the fundamental limitation inherent in the legal system’s own observational schema—the binary code of legal/illegal. In this sense, no matter how sophisticated the legal system’s reflective theories become, they can never fully grasp the system’s complete image—especially its paradox.
It is thus evident that neither a purely external perspective nor a purely internal perspective suffices for observing a modern functional subsystem endowed with reflexive capacity. The contribution of systems-theoretical sociology of law lies precisely in overcoming this dichotomy between pure externality and pure internality. As previously illustrated, a purely external perspective merely reveals the contingency of the legal system without telling us what constitutes its internal specificity. Conversely, a purely internal perspective is equally incapable of revealing the legal system’s distinctive character. On this point, Luhmann offers a vivid analogy: just as a black ink cartridge in an inkjet printer cannot convey any information if it is purely black, so too can pure internal operations alone fail to illuminate the system’s characteristics. Only when black ink is sprayed onto white paper—and contrasted against the unmarked white background—can legible characters emerge and convey information. Similarly, the intrinsic nature of a system can only be revealed through contrast with its environment. In terms of observation theory, the properties of the marked side of a distinction can only be discerned through reference to the unmarked side. For example, when “man” is marked within the distinction man/woman, it signifies gender; but when marked within the distinction man/child, it denotes age (adulthood).
In comparison, systems-theoretical sociology of law has the advantage of integrating external and internal perspectives, thereby enabling observation of the modern legal system—a system characterized by self-reference, self-observation, and binary coding. The strength of functional comparison lies in the insight that many structurally different systems may nonetheless be functionally equivalent and thus comparable. Consequently, these seemingly disparate systems or structures are, from a functional standpoint, contingent alternatives to one another.
On this basis, systems-theoretical sociology of law investigates how a particular system emerges under specific socio-historical and cultural conditions, and how it develops distinctive internal characteristics to fulfill a given function. Through an evolutionary approach that incorporates historically contingent factors, Luhmann identifies the binary-coded internal structure of modern law and the paradoxes generated by such binary operations. For Luhmann, the paradox of the legal system is not, as internal legal observation would have it, a mere “contradiction” to be eliminated. Rather, paradox is the very foundation and precondition of the legal system’s operation. From a systems-theoretical perspective, paradox is not “A = –A,” but rather “A because of –A.” It is precisely the existence of paradox that makes self-referential observation within the legal system possible.
Thus, genuine sociology of law can only consist in observing how the legal system observes itself. To achieve this, sociology of law must regard the self-observing legal system as a paradox. Only then can external sociological observation see more than the legal system’s internal self-observation can: “Every operation of the system presupposes and enacts a deparadoxification of self-reference.” In this light, we may say that the distinctiveness of modern functional subsystems lies in their respective binary codes, the paradoxes arising from the self-application of these codes, and the diverse operations of deparadoxification they employ. Such distinctiveness can only be mapped through the method of functional comparison employed by systems-theoretical sociology.
6. Conclusion
In China’s transitional era, the disciplinary positioning of the sociology of law has long perplexed many legal scholars. Superficially, this appears to be a methodological dispute within legal studies; in reality, however, it reflects a deeper question: how should we understand the nature and function of modern law? Many sociologists of law adopt an external perspective to deconstruct the internal operational logic of the legal/illegal binary code, reducing the legal system to an eclectic assortment of dispute-resolution mechanisms. Conversely, many doctrinal scholars pursue “armchair jurisprudence,” isolating conceptual analysis and statutory interpretation from the context of China’s social transformation.
Luhmann’s parable of the camel inheritance case—and particularly his analysis of the Qadi’s twelfth camel—clearly demonstrates the limitations of both approaches. It suggests that only by synthetically employing functional analysis (functional structuralism) and systems analysis (autopoietic systems theory) can we truly observe the modern legal system: a system characterized by self-reference and self-observation, whose existence and operation hinge upon the paradox of its binary code and the operations of deparadoxification it continuously performs. Only thereby can we grasp the uniqueness of the autopoietic legal system relative to other functional subsystems and comprehend its role in modern society.
In this sense, sociological observation of law is nothing other than observing how law observes itself. The legal system’s self-observation is necessarily monistic—it can only operate through the singular code of legal/illegal. But external observation of law is inherently polycontextural and thus pluralistic. The task of the sociology of law, therefore, is to observe how the legal system observes itself.
Perhaps this is the greatest insight offered by the Qadi’s twelfth camel to Chinese socio-legal scholars, who find themselves caught in the tension between the jurist’s internal perspective and the sociologist’s external perspective, and who grapple with methodological uncertainty about the future direction of their discipline.