Legal Methods · Volume 4

Author: Chen Jinzhao, Xie Hui
Publisher:
Publish Date: 2005-03-01
Features: The Significance of Legal Methodology
In the field of Chinese legal scholarship, research on legal methodology is still in its infancy, and the "legitimacy" of legal methodology itself has not yet been resolved. However, it faces an "internal and external" (). From an external perspective, Western legal scholars are currently attacking legal methodology, with many arguing that there is no independent proposition in legal methodology. They believe that what is termed "legal methods" has no special significance and are merely applications of general methods in legal contexts, such as logical methods, economic methods, or ethical methods. Even legal thinking is often regarded by many scholars as merely the application of everyday thinking in judicial practice. Some scholars even claim that legal methods have not played a positive role in the rule of law but have instead taken the opposite path, becoming methods that undermine and erode the rule of law.
From an internal perspective, in Chinese legal scholarship, and even in China's legal tradition, legal methodology has long been neglected. There are few writings dedicated specifically to the study of legal methodology. In university legal education, the transmission of knowledge and principles constitutes the main content of legal studies, while professional compulsory courses such as judicial ethics and legal methodology have yet to find a place in the vast majority of law schools. Legal methodology is marginalized in mainstream legal scholarship. Although in recent years, awareness of legal methodology has begun to emerge among many scholars (such as some universities offering courses on legal methodology, the inclusion of legal methodology sections on legal thought websites, and some scholars starting to research legal methodology topics), and many believe that rules (including procedures), concepts, and methods are indispensable factors for achieving the rule of law, overall, legal methodology remains on the fringes of academia. Even research institutions within the judicial system and judges themselves have not recognized the rightful position of legal methodology. Judges' research topics often revolve around improving legislation, while so-called training programs are mostly focused on promoting new regulations. All of this highlights the necessity of researching the significance of legal methodology.