【摘要】 “代码”与“法律”是数字法治时代的一对双生主题。“代码”在数字空间的规制属性越来越接近“法律”。于是，“代码即法律”成为一种高影响力观点，它表达了代码在数字空间的一种强大规制能力。虽然代码具有自我校正、理性、精密、高效等各种优势功能，其技术化后的公权执行系统、私权防护系统能够弥补立法在运行过程中缺陷。但是“代码即法律”这种表达目前还停留在一种文学类比阶段，我们不能仅从字面含义去理解这句话。从法理视角来看，代码尚未满足成为法律的各项条件，也不具备法律的品格。代码自身也存在：公开度受限、稳定性较弱、缺乏国家意志和民主意识、可信度易被质疑等局限。我们既要发挥代码的优势，发现代码的弊端，同时更要探索代码与法律的沟通与融合路径，并为中国式现代化下的数字法治秩序保驾护航。更多还原

【Abstract】 “Code” and “law” are twin themes in the digital rule-of-law era. “Code” and “law” originally belong to two different domains, but they have developed a high degree of correlation within the realm of network technology. Code continuously evolves through technological iterations and gradually acquires independent regulatory attributes. The phrase “code is law” emerged as a result, shaping a brand-new “technocratic” worldview, which challenges the ideological stance of traditionally placing legislation at the core of the legal system. The concept of “code is law” has been continuously emphasized during the early stage, the rapid development period, and the intelligent network era of the Internet.This paper adopts an interdisciplinary approach combining computational science and law to re-examine the scientific connotation of the statement “code is law”, and considers this statement to be a literary analogy rhetorical device. The essence of code is the collection of instructions given by humans to machines, serving as a tool for expressing logic and algorithms. Code innovation requires legal experts to inspire computer experts. We should maintain the advantages of code, which include self-regulation during code execution; eliminating the uncertainty of traditional power during operation; having a stable and technologically advanced private rights protection system; and reducing the costs of legal enforcement and supervision. The computing engineer used code to create a new tool that restrains power. It not only constantly affects every network user participant, but also restricts the managers of society. It can not only dismantle the arbitrariness that occurs when individual power is exercised, but also overcome the arbitrariness of individuals when they exercise power. Citizens are confronted with a completely new type of “code enforcer”, who fulfills their duties through the e-government system.This paper uses a comparative approach to propose that the gap between “code” and “law” is due to the significant disparity between code and the will of the state. There are differences between the operation procedures of code and legislative procedures. Codes do not meet the requirements of an outstanding legal character, and the authority and credibility of codes have always been questioned. Even for occasional, novel, and complex legal issues, codes are ultimately difficult to handle. Although the scope of law has a “broad” and “narrow” distinction, codes have not yet been seen within the “broad” legal connotation and extension. If we accept “code as law” within the “broad” legal scope, then this new definition is revolutionary to traditional legal theories and will pose risks of code escaping regulation and threatening formal national legislation. If only the legal text is recognized as being able to be transformed into codes, programs, and algorithms as instructions, it might be more easily accepted by the academic community.Finally, the integration and development of code and law should ultimately exist for and serve human beings. It is human beings who give life to code and law. The rapid development and high standardization of science and technology have gradually compressed the space for researchers to explore the pure individual humanistic spirit. The human knowledge system is constantly evolving and upgrading, and advanced knowledge systems tend to leave those with conservative thinking behind. Even advanced technological and political legal systems may not be able to address the issue of an individual’s value, especially when a person separates from politics, society, economy, and law attributes and is detached from technology, what is the value of such a person. Code and law cannot replace each other, and many non-technical things cannot be replaced by “code” or “law”. We cannot forget to explore these things, which include noble character, virtues, conscience, and lofty social values of human beings.更多还原