中国法学实证研究客观性难题求解——韦伯社会科学方法论的启示

以实证研究方法为特色的中国法治实践学派日益受到关注。中国法学研究方法正处于转型之中，实证研究方法将成为法学研究的常规范式。一些学者对法学实证研究的客观性提出质疑。求解实证研究的客观性难题可以从马克斯·韦伯那里得到启发。韦伯对社会科学的客观性研究具有代表性，认为人文社会科学可以做到“价值无涉”。韦伯主张的客观性以价值关联为前提，以客观可能性为基础，以对理想类型的应用和超越为实现路径。在法学研究中，运用指向客观性的社会科学研究方法具有必然性，这是由法学研究对象的广泛性以及法学对法律的批判功能决定的。法学实证研究并不排斥主流的规范研究，两者应互相补充，这也是中国法治实践学派的基本立场。中国法学实证研究要实现客观性，需要兼顾证实与证伪，注重文献的积累、理解的逻辑以及实践。中国法治实践学派的目标是要在韦伯方法论基础上实现创新和超越。

The Solution to the Problem of Objectivity of Empirical Legal Research in China : The Revelation of Max Weber's Methodology on Social Sciences

Research studies on the Rule of Law Index, the Judicial Transparency Index and the E-Government Development Index suggested that the empirical research methodology is practically being applied in Chinese legal studies with a strong presence and stance. The extensiveness of legal research objects determines the inevitability of the application of empirical research methodology while the function of legal theory to deconstruct law determines the presence of diverse legal research methodologies. The empirical research methodology not only compensates for the deficiencies of legal research methodologies in China, but also is more closely geared to the demand for the practice of rule of law. The China Rule of Law School of Practice, which takes the empirical approach towards its research, has increasingly drawn public attention. Chinese legal research methodologies are in the period of transition and empirical legal research methodology will become a conventional paradigm of legal research in China. Nevertheless, some scholars have reservations on the objectivity of empirical legal research methodology in terms of its subject, object and the shortcomings stemming from its quantitative and qualitative analysis. The solution to the problem of objectivity of empirical legal research can be inspired by Max Weber as his research on the objectivity of social science is typical. Weber took the view that the humanities and social sciences can be ″value free.″ The ″objectivity″ which Weber argued for is premised on value relevance, based on objective probability, and achieved by the application and transcendence of the ideal type. It is inevitable to apply the social science research methodology to legal research because of its objectivity and this inevitable application is due to the extensiveness of objects in legal research and the role of legal studies to criticize the law. The basic standpoint of the China Rule of Law School of Practice does not exclude the mainstream normative research|rather, it claims that two approaches complement each other. To achieve the ″objectivity″ of Weber's methodology in the empirical legal research in China, we should take China's current situation into account in response to Weber's methodology of social sciences. Firstly, we should correctly deal with the relationship between value relevance and value free while removing false value free. Secondly, we should explore the objective probability of causation in legal phenomena. Thirdly, we should solve the specific problems of objectivity in quantitative and qualitative research. The practical solution is to put emphasis both on verification and falsification, and on the accumulation of references and bibliography, and the logic of understanding and its practical application. It is the aim of China Rule of Law School of Practice to achieve innovation and transcendence on the foundation of Weber's methodology.  Weber has already provided a logic of explanation for empirical legal research in China. This kind of logic is a way to demonstrate the objectivity of the empirical research method. Chinese legal research should have its own unique features as far as empirical research is concerned. The China Rule of Law School of Practice has demonstrated the prospect of legal empirical research in China from one perspective. The unique research methodology advocated by the China Rule of Law School of Practice is based on practice, empirical evidence and experiments, which is beneficial to the exploration of the developmental path and the theoretical system of the Rule of Law in China.