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Peng Xiaolong | The “Theory” in “Empirical” Study of Law
2024-03-01 [author] Peng Xiaolong preview:

[author]Peng Xiaolong

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The “Theory” in “Empirical” Study of Law



Peng Xiaolong

Associate Professor and Doctoral Supervisor, School of Law, Renmin University of China


AbstractThe actual situation of law is the result of the interaction of its value, norm and various social structural factors, which contains some tensions such as between de facto and de jure, norms and facts, universality and individuality, subjectivity and objectivity, etc. The empirical study of law cannot adopt the cognitive model of natural science. Researchers will inevitably find and integrate various elements through the “analytical framework” intertwined with substantive propositions and methodological issues, observation and understanding, so as to connect rather than cross various tensions. The analytical framework undertakes the mission of providing the overall cognitive framework, media of causal analysis, and trial-and-error mechanism, and has some features such as integration, data-binding, analyticity, and temporality. The empirical study of law provides an integrated and falsifiable understanding which may be the only way to access the actual situation of law as well as its real and achievable commitment to “science”. To reveal the general nature of the empirical study of law and respond to the increased internal disputes and external criticism, taking analytical framework as the “theory” of empirical study is necessary, and a comprehensive discussing on its meaning, function and acquisition process is needed.

Keywords: Empirical Study of Law; Social Science of Law; Empirical Legal Research; Sociological Imagination; Theory


Introduction

The rise of empirical research has been one of the most noteworthy phenomena in the field of law in China in recent years, presenting a prosperous scene of a gradually growing research team, an increasingly broad scope of topics, and a diversified and differentiated perspective of observation. These researches focus on the operation of law, the effect of law, the relationship between law and society and other actual patterns of law, and continue to promote people's understanding of law in the real world. However, such research seems to be stuck in a development bottleneck at present, which is manifested in three aspects: first, the lack of internal consensus. Firstly, there is a lack of internal consensus, especially in terms of the approach, methodology and data of empirical research, many opposing views have emerged, and there is a wide range of opinions on the terminology of the research. Secondly, external criticism is sharp. Some scholars from outside the empirical research camp have criticised and questioned the existing research in terms of methodology around the issues of "comprehensively and objectively presenting the factors affecting practice" and "existence means validity", and even considered that this is "a tragedy doomed to failure from the very beginning". Thirdly, the status has not yet been clarified. Thirdly, the status is not yet clear. There are major disagreements over the contribution, methods and limits of applying empirical methods to the study of legal phenomena, and the status of such studies in the legal system is not yet clear, as exemplified by the fact that the dispute between social sciences law and legal doctrine has continued for many years.

The empirical study of law has not yet reached a mature stage, as evidenced by the emergence of internal disputes, external criticisms and unclear status, but perhaps this is a precursor to its maturity. The empirical study of law in China has not yet reached a mature stage, but perhaps this is a harbinger of its maturity. The basis is that these issues go beyond the early studies focusing on the empirical analysis of specific legal systems or the exploration and application of empirical methodology, and the core of these issues points to the general nature of the empirical study of law. It can be said that such research has begun to move into a stage of methodological self-awareness. This also means that the key to solving these problems may lie in our ability to develop some appropriate overall understanding of such research. Specifically, the general nature of empirical study of law involves two basic types of questions. One type of question points to the form in which law exists in the real world, including what law is, what factors affect law, and so on, involving the tension between subjectivity and objectivity, facts and values (norms), and so on, and can perhaps be called "substantive propositions", "social science jurisprudence" and "legal science". This may be called "substantive propositions", and is at the heart of the dispute between "social science jurisprudence" and "legal doctrine". Another type of question points to how to reveal this reality. The empirical study of law in the real world is always presented in a concrete form, manifested in data, cases and other materials, and thus always faces the "methodological problem" of whether and how to deduce generality and prescriptiveness from individuality and descriptiveness, which is the focus of the current internal methodological debates and external methodological criticism. At the abstract level, these two types of problems can be discussed separately, but in concrete empirical research, they are intertwined. On the one hand, since the object of research is the actual state of law, the choice and application of methods and related debates are bound to imply the researcher's understanding of the substantive propositions; on the other hand, different methods imply different perspectives of observing things, which also determine the researcher's treatment of the substantive propositions. In this intertwined process, the two are mutually constructed with empirical observation, and ultimately integrated to form an "analytical framework" that can help us organise empirical data and understand the actual state of the law. Although the analytical frameworks of different studies are not identical due to the differences in research objects and methods, they are all "theoretical" in nature, "detached from the generalisation of individual things". This analytical framework, which can fully characterise the general nature of such studies, is what is referred to in this paper as "theory" in The empirical study of law.

To date, there have been many empirical studies of specific legal systems, but few overall reflections on the general nature of such studies. This paper attempts to fill this gap by providing a comprehensive analysis of the role, meaning and acquisition of analytical frameworks as "theory". It should be noted that the term "theory" has various meanings, but this paper calls the analytical framework "theory" not only because it focuses on the researcher's reflection on the general nature of the problem, but also because there are problems in the current research of this kind, such as the separation of substantive propositions from methodological problems, the equating of empirical methods with methodological problems, and the lack of a clear distinction between empirical methods and methodological problems. The current research in this area has a tendency to separate substantive propositions from methodological issues, to equate empirical methods with operational techniques, and to treat empirical generalisations or past doctrines directly as "theory". These tendencies do not reflect the proper theoretical quality of this type of research and tend to mislead specific studies. Therefore, the analytical framework as the "theory" in The empirical study of law is different from the procedural "operational theory" which focuses on the research method, and also different from the substantive "middle" which focuses on the conclusions or hypotheses in the specific study. The empirical study of law is not only different from the procedural "operational theory" that focuses on research methodology, but also different from the substantive "middle theory" that focuses on conclusions or hypotheses in specific studies, and aims to clarify the general issues of the process, manner and limits of such studies in revealing the actual pattern of law based on empirical materials. In order to achieve this goal, the paper will generally follow the logic of "why-what-how". In short, analysing the current controversies and their substance, revealing the tensions and their roots that are necessarily embedded in the substantive propositions and methodological issues, explaining the theoretical nature of the 'empirical' in such studies, and justifying the use of the term 'The empirical study of law' are the contents of Part I and Part II. Part I and Part II; Part III and Part IV will deal with the meaning, characteristics and requirements of an analytical framework as a 'theory', both positively and negatively; Part V will focus on the production process, key cuts and development mechanisms of a 'theory', not only on how the analytical framework can be used in specific studies, but also on how it can be used in the context of the research. Part V will focus on the process of production, key cuts and mechanisms of development of the "theory", not only focusing on how the analytical framework is shaped in specific studies, but also attempting to explore its relationship with general theories of law and society. The article will conclude with a summary of the main points, explaining the overall understanding of The empirical study of law and responding to its internal controversies, external criticisms and unclear status.


1. The empirical study of law: a mere change of title?

As empirical methods have been increasingly applied to the study of legal phenomena, many debates have arisen in recent years about such research. These debates are mainly centred on research methodology, but behind them lies a divergence of understanding of the general nature of the question of what the reality of law is and how it is revealed. Based on a reflection on the substantive propositions, the methodological issues and the tensions they imply, this paper argues that the term "The empirical study of law" might more appropriately reflect the basic position of such studies.

1.1 Current debates about The empirical study of law and its substance

After years of concrete empirical research and experience, and especially in the dialogue with law doctrine in recent years, scholars in the field of empirical study of law have engaged in many discussions around how to understand such studies. However, instead of eliminating external scepticism, these discussions have demonstrated many divisions within the research camp. By combing through the representative viewpoints, it can be found that the debate focuses on three aspects, such as research approach, analytical method, and source material (see Table 1). In other words, scholars almost always make a general understanding of such research based on the research methodology.