In constructivist epistemology, the observer observes the world based on different distinctions, and the self-reference to the distinctions used is the process of self-description. The legal system sees the world in terms of legal/illegal codes, and the legal side is seen as the side of self-description. Of course, self-description can’t just rely on the observation of the revealed part, we already describe the hidden part when we describe the revealed part. It is a process from the self to the non-self and finally the realization of the non-self. In the famous “pipe” diagram, we can distinguish the image of the pipe because of the difference we observe between the pipe and its extension. When the subject of observation changes from our eyes to the pipe itself, the pipe stands out from the whole chaotic complexity with the help of self-description.
Moreover, there is a strong link between social evolution and self-description. In essence, the history of legal self-description is a part of social evolution, and the self-description theory is a reflection of social evolution, especially the development of law.
The dispute between law and morality has a long history. It is usually expressed as whether morality and law are necessarily related, and whether law without moral support is still law. With the end of the two world wars, and especially the worldwide reckoning with the Nazi Holocaust, the debate about the relationship between morality and law has been revived. Fuller, the representative of the new natural law school after the war, believed that law and morality were inseparable. Fuller put forward the eight principles of rule of law as the internal morality of law, and called it the procedural morality of law. Laws that do not conform to the principles of the rule of law will lose their qualifications as law.
In contrast to Fuller, Hart, the master of new analytical positivism, retorted that there was no essential relationship between law and morality, and that the validity of law did not depend on morality (Gomez, 2014). Although we accept that the law should have some social value. Whether a law is effective or not is one thing, but whether it is good or bad is another. The boundary of criminal law should stop at the privacy of citizens. Morality should not be the reason for invading citizens’ privacy and making citizens unfairly punished for voluntary acts that do no harm to others.
Reference
Gomez, J. V. (2014). The Hart‐Fuller Debate. Philosophy Compass, 9(1), 45-53.