Legal Methods (Volume 4)

Author: Chen Jinzhao
Publisher:
Publish Date: 2005-03-01
Features: The Significance of Legal Methodology
In the field of Chinese legal scholarship, research on legal methodology has just begun, and the "legitimacy" of legal methodology itself has not yet been resolved. However, it faces an "internal and external crisis." From an external perspective, Western legal scholars are attacking legal methodology, with many arguing that there is no independent proposition in legal methodology. They believe that what is called legal methodology has no special significance—it is merely the application of general methods in a legal context, such as logical methods, economic methods, or ethical methods. Even legal thinking is often viewed by scholars as merely the application of everyday thinking in judicial practice. Some scholars even claim that legal methodology has not played a positive role in the rule of law but has instead gone against it, becoming a method that undermines and disintegrates 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 core 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 establishment of a legal methodology section on the Legal Thought Network, 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 studying the significance of legal methodology.