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 is still in its infancy, 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 launching an assault on legal methodology, with many arguing that there is no independent proposition in legal methodology. They believe that what is termed "legal methods" are merely applications of general methods in a legal context, such as logical methods, economic methods, or ethical methods. Even legal thinking is often dismissed by some scholars as merely the application of everyday thinking in judicial practice. Some scholars even contend 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, within Chinese legal scholarship and even in China's legal tradition, legal methodology has long been neglected. There are few works 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 majority of law schools. Legal methodology is marginalized in mainstream legal scholarship.
Although in recent years, a growing awareness of legal methodology has emerged among many scholars (e.g., some universities have introduced courses on legal methodology, a section on legal methodology has been added to the Legal Thought Network, and some scholars have begun researching legal methodology), and many believe that rules (including procedures), concepts, and methods are indispensable factors for the realization of the rule of law, overall, legal methodology remains on the fringes of academia. Even the research institutions of judges and the court system have not recognized its rightful position. Judges' research topics mostly revolve around improving legislation, while so-called training programs are largely focused on promoting new regulations. All of this underscores the necessity of studying the significance of legal methodology.