[author]Peng Xiaolong

[content]

The “Theory” in “Empirical” Study of Law

Peng Xiaolong

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

Abstract：The 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.

This is not to say, of course, that these scholars completely ignore theoretical issues beyond research methods, which have been the focus of their attention in recent years. For example, Zuo Weimin explained the theoretical concern of empirical research from the perspective of discovering and solving practical problems, legislative defects and classical theoretical dilemmas. Huang Zongzhi, Chen Ruihua, Hou Meng and others advocated that empirical research should move from experience to theory, and Hou Meng further summarized the theoretical types such as analytical tools, concept refinement, and theoretical criticism. Chen Baifeng believes that the study of legal experience should be a combination of "macro theoretical premise + micro behavioral meaning interpretation + meso or micro mechanism analysis", and put forward the theoretical summary route of "empirical phenomenon-causal relationship-affair-jurisprudence". However, these discussions seem to tend to treat the assumptions, conclusions, or knowledge of substantive propositions in specific studies as theories, and then treat theory and method (empirical/empirical) as two different things, and then discuss the relationship between the two. Although people can use the concept of "theory" according to their own understanding, this understanding tends to sever the connection between substantive propositions and methodological issues, and to some extent ignores the fact that methodological arguments are also the manifestations or continuations of theoretical disputes. In this regard, it may be possible to elaborate on the following three aspects:

First, the choice of research approach fundamentally depends on the understanding of the basic nature of the object of study. In order to reveal the actual state of the Fa, we must first explore the actual existence of the Fa and what are the factors that affect this existence, so as to answer the question of what kind of research approach is more appropriate. In practice, whether the researcher clarifies it or not, there are specific social and legal views behind the various approaches. For example, in the study of (legal) economics, society is often reduced to rational people, cost-benefit mechanisms, market models and other elements, which have the characteristics of methodological individualism. Sociological research tends to understand society and its laws from the perspective of the whole rather than the individual, and even though this approach has a tradition of methodological individualism, it often does not simply reduce society to individuals, but focuses on analyzing social structures and their mechanisms from the attitudes, expectations, and actions of individuals.

Second, analytical methods such as quantitative and qualitative also imply an understanding of substantive propositions. From the perspective of academic generalization, quantitative research advocates value-neutral analysis of the variables presented by the data, which is actually treating society as an objective fact; Qualitative research, on the other hand, emphasizes the constructive nature of society, arguing that researchers cannot be value-free when they are in it, and that they need to analyze social reality and its cultural significance by focusing on interactions and events. The evolution of analytical methods is also closely related to the change of understanding of substantive propositions. Taking case studies as an example, the traditional "generalization beyond individual cases" often presupposes that society has a certain universal "format", so it advocates the overall shape of society through the accumulation and analysis of many individual case "types". The subsequent "generalizations within cases", "analytic generalizations" and "extended cases" argue that this view of "society" cannot reflect the complexity of reality, so relevant studies either focus on the characteristics of individual cases rather than the representativeness of individual cases in order to seek the universal meaning of "otherness", or move towards "using individual cases to observe and revise theories, and then produce new general laws".

Third, what kind of materials can reflect the actual state of the law also points to the substantive proposition. Whether to choose to rely on quantitative analysis of data or qualitative analysis to focus on individual cases, whether empirical research includes qualitative research, and whether social and legal can be quantitatively analyzed are not only technical and methodological issues, but also reflect people's judgment of law and its performance carrier. Without delving into these issues, arguments and even "consensus" on the material can become incomprehensible. For example, from the literature on which the scholars in Table 1 rear, many scholars believe that literary works are not authentic materials and advocate the exclusion of the study of law and literature from the scope of empirical research. However, why should literary works be excluded from social life, although they are not equivalent, and the more profoundly and intensively they reflect social realities and basic contradictions, the more likely they are to become classics and circulate?

1.2 Differences in understanding on the general nature of empirical research on law

It can be seen that only by examining the substantive propositions in relation to the methodological issues can it be possible to accurately grasp the essence of the current controversy and understand the differences in understanding the general nature of such research. Given that the title embodies people's understanding of the nature of things, it may be a more appropriate strategy to start with this. In this regard, in addition to the specific terms of sociology of law and legal anthropology, as shown in Table 1, the general terms of such research mainly include social science law, legal experience research, and legal empirical research, and other general terms have basically evolved from them, and perhaps we can focus on these three for analysis. Given that these terms and related controversies do not cover all the general nature of such studies, the following analysis will extend to some extent.

First of all, "social science law" emphasizes disciplinary approaches and research methods, and attempts to include the "empirical/empirical" research on law in sociology, economics, anthropology, political science, etc. When the empirical method was first developed in the study of legal phenomena, this term was meaningful in expressing the basic stance of such research in general, but at present, it is easy to increase doubts. The reason for this is that the social sciences are not a unity with clear boundaries and internal integration.

As mentioned above, the disciplinary approach or research method itself contains specific theoretical presuppositions and observational perspectives, and in the research methods of social sciences, there have been various positivist/non-positivist debates for a long time, the root of which lies in the fact that people have disagreements on substantive propositions and methods such as the basic characteristics of social phenomena, the forms of existence and the norms of scientific research, and have different ways of dealing with the tensions between subjective and objective, facts and values (norms), general and individual, and explanations and explanations. The term "social science jurisprudence" cannot be unified, but it is easy to cover up these different understandings and substantive differences, which makes it difficult for researchers not only to get out of the methodological "hybridism" and clarify the general nature of such research, but also to fall into the debate over whether "social science research" is equivalent to "empirical research", whether "empirical method" is limited to "positivist method" or whether it also includes other more interpretive or critical methods. From Table 1, we can see that the controversy between "social science jurisprudence", "legal experience research", and "legal positivism" in terms of analysis methods and data materials and their essence lies in this.

Second, "research on legal experience" may encompass two understandings of such research. One understanding focuses on substantive propositions, and the focus is on "experience", that is, the actual state of the law exists as an "experience" that is different from the "ideal law" and the "law in books". The problem is that the law itself contains and will express normative elements and value judgments in a specific institutional form. Is it enough to focus only on "experience" without taking into account the system, values, and other aspects to reveal the actual state of the law? In this regard, some scholars have proposed the "collapse of the fact-value dichotomy", arguing that experience contains the interaction and unity between facts and values, between subjectivity and objectivity, etc. However, this reinterpretation of "experience" is significantly different from the traditional mainstream view. The latter believes that experience belongs to the category of "facts", which refers to people's perception and observation of objective things, and has the characteristics of descriptiveness, reality, and individuality, and cannot conform to the prescriptiveness, shouldness, and generality of law. Based on the former, legal empirical research may include both qualitative and quantitative, case studies and data, and empirical research and empirical research can be interchanged. Based on the latter, empirical research on legal matters should be limited to qualitative research based on case materials, so as to distinguish it from "empirical legal research" that is based on quantitative research based on a wide range of data. Of course, this difference in the judgment of substantive propositions also leads to different understandings of the relationship between facts and values (norms), although existing research has not covered this much.

The alternative understanding of "empirical research in law" focuses on methodological issues, and the focus of this interpretation is on "empirical research", emphasizing that such research must be based on a systematic observation of the object of study and the facts it represents. If we cling to the tradition of the "fact-value dichotomy", this understanding will also face the question of how to bridge the "gap" between the two. For example, many empirical studies provide observations and descriptions of the coexistence of multiple normative orders in the same time and space, but it is difficult to make a breakthrough in normativeness, so that it is called "social fact pluralism". Although some studies have made some normative claims based on observational descriptions, they have encountered the sarcasm of "sliding from descriptive to prescriptive" in terms of methodology. Of course, empirical research methods can also be illustrated in terms of a reinterpretation of "experience", a strategy that has been adopted by some scholars in recent years. However, even if "experience" itself contains multiple dimensions such as facts and values, this does not mean that empirical research can naturally acquire these dimensions. "Empirical Phenomena-Causal Mechanisms-Facts-Jurisprudence" is not a logical derivation of the same thing, and if the mechanism of such derivation is not explained, it is easy to attract methodological criticism such as "a magic show without prior declaration".

Finally, the term "legal empirical research" can also be analyzed from the perspective of substantive propositions and methodological issues. First, from the perspective of research objects, the expression of "law" tends to focus more on specific legal systems, which is indeed the object of most empirical research. However, it can often be found in previous studies that the same specific legal system may present different forms based on the same data and even the same analysis methods, but this does not stem from the difference in understanding of "reality", but from the researchers' differences in understanding of general law on substantive propositions, which involve different understandings of the existence form, operating mechanism, functional characteristics and other issues of law. For example, based on case data from two trial courts in California from 1890 to 1970, Friedman and Parcival found that the courts' work was becoming more and more "routinely managed," and that the court's dispute resolution role was weakening during this period. Rembert affirms this "empirical description" but questions their conclusions, and his richer understanding of the role of courts in dispute resolution reveals a more three-dimensional approach to court dispute resolution. Therefore, when studying specific legal systems, empirical research seems to focus on general law. But the question is that the object of empirical research is often concrete or at least perceptible, and whether and how can general law be the object of empirical research? What is the relationship between general law and specific law? How are the two related?

Second, from the perspective of research methodology, the first question faced by "empirical research" is: should it be distinguished from "empirical research"? As can be seen from Table 1, some scholars advocate that empirical research and empirical research should be distinguished by qualitative or quantitative methods according to the methods used, but there are also scholars who do not distinguish between the two, arguing that both qualitative and quantitative methods can be applied. As mentioned earlier, this debate involves not only empirical research, but also scholarly disagreements over the understanding of substantive propositions. In addition, since research that focuses on "what" includes analytical empirical research and empirical empirical research, "empirical research" that aims to reveal the actual state of law is also faced with the problem of how to distinguish it from "legal positivism" research, which focuses on the concept, nature, and normativity of law itself. If it is recognized that the actual form of law contains specific normative elements and value judgments, is it necessary and in what sense should there be a distinction between "empirical research" and legal positivist research?

1.3 Empirical research on law: the appellation proposed by reflecting on the general nature of the problem

Summarizing the above discussion, the general nature of the application of empirical methods to the study of legal phenomena can be summarized into the following four points: First, is the actual state of law an objective existence that can be described through observation, or is it an existence that contains subjective factors in itself and needs to be revealed through understanding? Second, can we examine the actual state of law in isolation from the law? If not, how should the shaping role of law be understood? Third, can we put aside value considerations and explore the actual state of the law? If not, is there a "gap" between facts and values? If there is a "gap", how to deal with it? Fourth, are the factors influencing the actual appearance of the law universal? Can and how can the actual state of the law be captured from the material that is destined to be local? These questions fully demonstrate the close relationship between substantive propositions and methodological issues, which point to the tension between subjective and objective, fact and value (normative), general and individual. Unfortunately, the existing research has focused on research methods and has not been able to systematically address these issues and tensions. Based on the reflection on these general issues, this paper intends to propose the term "empirical research on law" to illustrate the basic position of such research. The reasons are preliminarily stated as follows:

First, the actual state of the law is a complex social phenomenon, and every observation of it is difficult to be comprehensive, and it inevitably contains the researcher's unique understanding of the substantive proposition and methodological issues, and involves different ways of dealing with the various tensions contained in it. For this kind of research similar to "blind man touching the elephant", perhaps we should adopt an inclusive attitude, not overemphasize the disciplinary approach in the title, should be tolerant of qualitative and quantitative methods, and include as much information as possible that can reflect the actual state of the law. This is a respect for the possible legitimacy of various "one-sided but profound" perspectives, and competition and validation in the "marketplace of ideas" can also reduce the arbitrariness of the "blind man touching the elephant" and thus bring such research closer to a comprehensive understanding. Of course, while we are "inclusive", we should also avoid making research a "hodgepodge", in addition to appealing to the researcher's methodological consciousness, whether the approach, methods and materials are "qualified" fundamentally depends on how to understand the substantive propositions and methodological issues of such research.

Second, the expression of "law" can dialectically encompass the various tensions in the actual state of law. Unlike "law," which may lead to misunderstandings that the object of such research is limited to specific legal systems, "law" has a richer meaning. In the conceptual system of law, it can refer to both objective rules and subjective cognition of law. It can refer to a specific law or a general law that reflects the commonality of law; It can refer to both the positive law and the natural law with intrinsic value considerations; It can refer not only to national law or "law on books", but also to social norms, "living laws" or "laws in action" other than national laws that play a practical role. The fact that the meaning of "law" is so diverse actually reflects people's different understandings of what the law actually looks like. It is precisely in this sense that in recent years, Hui Ning, Tamanaha and others have argued that in order to understand law and legal phenomena, it is necessary to go beyond the previous research that only focuses on law, and adopt a more inclusive understanding and definition of "law".

Third, the expression "empirical research" can better reflect the basic consensus in such research and the particularity of such research. In the case of the former, the title of setting aside the question of whether there is a "gap" between facts and values can include more research aimed at revealing the actual state of law. Of course, "empirical research" here encompasses a variety of methods, both quantitative and qualitative, not only because they have their own advantages, but also because they are interrelated in operation. Some scholars have concluded that "qualitative research and quantitative research are like two dimensions along the ascending revolving path of a multi-storey parking lot, qualitative research determines the direction, and quantitative research provides the impetus for climbing", and even though quantitative methods are currently dominant, "quantitative research is based on qualitative research". As far as the latter is concerned, unlike empirical research in other fields, the study of the actual state of law must include a certain degree of analytical empirical work.

A superficial but direct reason is that if such research does not understand the structure and content of the law itself, it is doubtful whether it can be called "empirical research on law". The underlying reason lies in the fact that although the operation of law is influenced by other norms and social factors, it also shapes other norms and even society, and the actual form of law is the result of the interaction between law, other norms, and society. This rationale is further explained below.

It can be seen that "empirical research on law" is not a new word imposed for the sake of being different. Of course, the above is only a preliminary explanation, and most of the reasons given are formal, and the detailed arguments and empirical research on how to view and deal with various tensions will be discussed in the following discussion on the role, meaning, and acquisition of "theory".

2. Why is "theory" important in the empirical study of law?

As has already been indicated, the current controversies about empirical research on law are related to differences of understanding on issues of a general nature. This section will continue to start with the connection between substantive propositions and methodological issues, and further explain that "differences in understanding" are inherent in this type of research, and cannot be simply attributed to differences in the level of researchers or the immaturity of empirical research. The reason for this is that the actual state of law is a special social phenomenon, and the empirical study of law cannot be applied to the cognitive model of natural science, and it is necessary and inevitable to deal with the various tensions inherent in it through highly theoretical "empirical evidence".

2.1 The actual form of law as a special social phenomenon

From the perspective of discipline development, social science is to some extent the product of imitating natural science, and the empirical method used in it is developed by imitating the naturalistic cognitive model of natural science, so this method emphasizes the causal relationship between things through observation, statistics, experiments, etc., and even discovers laws from it. However, "those who act in the field of social history are those who are conscious, deliberate or passionate, and who pursue a certain end; Nothing happens without conscious intentions, without an intended purpose." This kind of difference, which Engels called "fundamentally different", makes social phenomena very different from natural phenomena in terms of concept construction, operating mechanism, causal analysis, and value consideration. As the skeleton of national governance and social life, law and almost all social elements such as politics, economy, and culture are mutually constructed, and they are condensed into a specific social structure. The main actors not only carry out actions under this structure, but also participate in the formation and change of the structure and the mutual construction of elements. Therefore, the actual form of law is the result of the interaction between the conceptual values, institutional norms, and various social elements of law, and involves the complex interaction of actors at multiple levels such as normative cognition, content, and mobilization. For this special social phenomenon, which is very different from natural phenomena, the application of the "empirical" method faces at least the following special problems:

First of all, the actual state of the law embodies people's conceptual cognition of what the law is and what it should be, and it is difficult for people to present it through pure observation. Social phenomena involve the role of subjective elements such as the perceptions and expectations of actors, and sociology has been aware of this since its birth. Needless to say, the tradition of subjectivism represented by Weber's theory of "social action" goes without saying, and even the tradition of objectivism represented by Durkheim's theory of "social facts" does not completely deny this, but there are differences in the way they deal with it, and how to transcend the opposition between subjectivity and objectivity is the main concern of contemporary scholars such as Bourdieu, Habermas, and Giddens. Acknowledging the constructive role of ideas means that empirical research not only needs to explain the objective connections between things, but also needs to examine human values and interpret their social actions, which is difficult to do with the "positivism" method that imitates the cognitive model of natural science, and is also the reason for the rise of various interpretive and constructive "non-positivist" methods in recent years. Compared with ordinary social phenomena, law not only contains the value tendency of the system designer, but also carries people's imagination and pursuit of justice, and there is an inextricable relationship between these values about law and other social consciousnesses. "The effort to understand its significance brings us directly to the heart of a variety of major unresolved social theoretical problems", and the actual form of law contains a more concentrated and complex conceptual construction. Thus, in order to avoid being misled into still following the traditional view of law as an objective thing, the Anhurst school that has emerged in recent years has even abandoned the usual expression of "law" and coined the term "legality" to express the law in everyday life, that is, "those sources of meaning authority and cultural practices that are generally considered to be 'legal'".

Second, the actual form of law contains a complex relationship between norms, laws, and facts, and it is difficult to find a universal or typological form for it. In social practice, individuals often understand the meaning of behavior and the expectations of others according to their own concepts and preferences, and even have the ability to "self-justify". Therefore, social phenomena inevitably contain tensions between laws and facts, the general and the individual, and the actual state of law is no exception. In addition, the law itself also has the attribute of "dual existence", which is not only an intrinsic part of social life, but also the product of the "special science of legal people", which makes the tension inherent in the actual state of law more multiple, that is, as a typical "normative norm", the law itself also involves the question of whether it conforms to social laws and life practice. Subject to the complex relationship between norms, laws, and facts, law is more likely to face differences and challenges in the understanding, recognition, and application of people who uphold different concepts and motivations in different contexts, and its actual form is the result of multiple consciousnesses such as "reverence for the law", "use of the law", and "confrontation with the law", as well as the intertwined and overlapping discourses of law, morality, governance, and other discourses. Therefore, the hierarchical hierarchy of the relationship between "existence" and "validity" and "individual" and "general" in the empirical study of law is more complex, and the logical chain is more fragile, so we must be more cautious in deriving and judging these relationships.

Thirdly, the actual state of law is the result of the mutual structure between structure and actors, law and society, and there are complex endogenous problems. Marx pointed out that "society is not made up of individuals, but is the sum total of those connections and relations that these individuals have with each other". On the one hand, human activities create a variety of formal or informal institutional norms, which will coalesce into social structures and promote their changes. On the other hand, these structures determine the scope, mode and space of people's activities, and have a key empowering or limiting role. As the focus of long-term debate in social science, the complex relationship between structure and actors makes empirical research face many difficulties in phenomenal cognition, problem locking and conceptualization, variable control, and causal explanation. Empirical research on law also faces these difficulties, but it still has some special problems. As a dominant norm, law constructs the basic structure of today's society and the patterns of human relations, but the law itself derives from and operates in society. This mutual relationship has brought severe challenges to the empirical study of law, and has even led to the criticism of the sociology of law in recent years, which focuses on the impact of law on society and the role of society on law. Scholars have long held different judgments on many issues such as litigation awareness, judicial ability, and petition preference, and have formed different explanatory theories such as "system theory", "consciousness theory" and "subject theory".

Finally, it is difficult for researchers to make value-neutral analyses in a society constructed by legal participation. Unlike the natural sciences, where the object of study is usually external to the researcher, the researcher of social phenomena often finds it difficult to escape the influence of the social environment in which he is placed. If there are social phenomena that are somewhat distant from the daily life of researchers, and people can maintain an objective stance as much as possible, then researchers cannot stay out of the law, which is the dominant norm and constituent element of today's society, and inevitably have a certain view of law, which they will bring into empirical research. Of course, there are also scholars who believe that it is in this sense that the social sciences have greater methodological advantages. There is a certain "empathy effect" or "commonality" between the observer and the observed, from which the researcher can go beyond mere observation to make a reasonable explanation. This view actually acknowledges the problem of internalizing value judgments, but does not address the problems that may lead to subjective arbitrariness and position precedence.

2.2 The theoretical nature of "empirical" in the empirical study of law

Based on the above analysis, unlike natural phenomena, there is basically no highly definite and universally applicable causal mechanism in legal phenomena, and it is impossible for us to reveal the actual state of the law through pure observation, experiment, variable control and other natural science cognitive methods. Simply applying the latter, we may only get an "illusion" in the guise of "science". However, once the "illusion" is dismantled, can and how can empirical research reveal the actual state of the law in the face of the inevitable tensions between subjectivity and objectivity, facts and values (norms), general and individual, and ought and actual? The key to answering this question is to note that the empirical analysis of social phenomena actually relies on the researcher's general understanding of the object of study and the relevant factors. Not to mention the non-positivist approach that emphasizes issues such as meaning and value, even the positivist approach that has been criticized on this point is also true in practice. As a special social phenomenon, the actual state of law can only be understood through the "analytical framework" intertwined with substantive propositions and methodological issues, observation and understanding, etc. Specifically, the role and mechanism of this "theory" in the empirical study of law are mainly manifested in three aspects.

First, this "theory" provides a holistic cognitive framework. Empirical research in law is based on a systematic observation of legal phenomena, but this observation is not immediate, only for the object of study, and completely objective. In fact, people always come into contact with legal phenomena with a certain "pre-understanding" or presupposition, form an awareness of the problem, and determine the object, content and method of research. These presuppositions contain reflections on substantive propositions and methodological questions, and are always formed in the connection between a general grasp of general theories about law and society and a specific understanding of the object of study. By colliding with empirical observations, these presuppositions can be verified and reflected, and concretized and systematized into an overall cognitive framework of the actual state of understanding. Therefore, not only are there no empirical studies that are detached from the cognitive framework, but different cognitive frameworks often lead to significant differences between specific studies. Taking the study of people's assessor practice from 1998 to 2010 as an example, various empirical materials show that it is difficult for people's assessors to participate in trials in substance. Some scholars argue that the system is merely a "symbol" or "chicken rib", and its basis actually stems from a conflict-based framework that focuses on the checks and balances of power between people's assessors and judges. Other scholars have paid attention to the role of people's assessors in the provision of knowledge, mediation and negotiation, and manpower supplementation from the perspective of functionalism, and then discovered the role and function of people's assessors as assistants. Although the difference in cognitive framework will inevitably make the actual form of law present a different or even chaotic appearance, this is fundamentally due to the complexity of the legal phenomenon itself, and even the value and vitality of empirical research on law lie. Of course, this is a further illustration of why such research should be approached with an inclusive attitude.

Second, this "theory" acts as an intermediary for causal analysis. Whether it is a general law or a specific law, its actual form is the result of its interaction with related factors, and empirical research inevitably involves causal analysis, and causality is essentially a theoretical explanation in social science. In order to make causal analysis from the predestined incomplete and individualized observation, since Mill proposed the method of seeking differences, the "differentiation" of control variables has gradually become the methodological basis of causal analysis in social sciences, and "theory" plays a key intermediary role in it. On the one hand, causal analysis entails the interception of the causal chain from the universal connection of things, which "cannot be a purely statistical task" and depends largely on the overall cognitive framework. There are many factors that affect the actual state of the method, and people can only determine the known factors and set them as independent variables, dependent variables and control variables, and the determination of event sequences, the setting of variables and even the "hypothesis generation process" all depend on the theoretical cognition of researchers. On the other hand, the variable relations obtained through observation only have possible correlations and do not necessarily have causality, and it is often necessary to rely on the role of "theory" to move from correlation to causality. In short, quantitative research may be able to prove correlations between variables with the help of data and statistical techniques, but the extent to which such studies can illustrate causality is fundamentally dependent on the quality of theoretical work such as hypotheses and variable settings, as unknown or known factors for which data are included in the random residue. Due to the lack of statistical analysis of data, qualitative research needs to rely on theory to make causal explanations and even prove the correlation between variables.

The above discussion is somewhat abstract, but it is worth taking Putnam et al.'s empirical study of local government democratic reform in Italy since 1970 as an example. First of all, from the perspective of causal chain interception, this 25-year-old study has determined to examine from the perspective of institutional performance from the beginning of the reform, which is mainly based on the cognitive framework of new institutionalism, and lays the basic direction and main assumptions for theoretical understandings such as "the politics of institutional construction", "the system is constructed by history", and "institutional performance is constrained by the social context in which it is placed". Secondly, from the perspective of causal derivation, the three variables of institutional design, economic development and social life come from the three explanatory models of comparative social science, and the specific derivation adopts the "difference-seeking" of comparative case analysis. On the basis of examining and finding that the structure of government and legal reform measures are almost identical in different places, and that there is no decisive relationship between economic development and institutional performance, Putnam et al. identify differences in social life between the North and the South as key variables affecting institutional performance. Finally, from the perspective of causal mechanism explanation, in order to illustrate how social life determines institutional performance, this study integrates the two perspectives of historical choice and rational choice, and on the basis of using theoretical tools such as collective action dilemma and game equilibrium, the concept of "social capital" is raised from the individual level to the group level involving "reciprocal norms and networks of citizen participation", so as to provide a new understanding and explanation of the actual situation of local government democratic reform in Italy and the "long-term, systematically studying how institutions develop and how they adapt to their social context" provides an analytical framework.

Third, this "theory" builds a bond of trial and error. It may be difficult for any empirical study of law to be thorough in the observation and analysis of the actual state of law, but different studies and their collisions with daily observations can prompt people to reflect on and improve existing research, or find new directions for understanding. This development of trial and error is the key to approaching a comprehensive understanding of empirical research, and its role as a link stems from the analytical framework as a "theory". This is not only because the analytical framework embodies the researcher's thinking on substantive propositions and methodological issues, but also because it has the generalization characteristics of detachment from individual things, which can enable people to transcend trivial empirical materials and even specific research objects to achieve inheritance, deepening, criticism and development.

Thus, although the object of the argument is the "lawless order" that exists in the well-known "society of acquaintances", Su Li gives high praise to Erickson for "moving from the previous humanities research (interpretation) to a kind of social science research (argumentation)". In fact, Erikson's analytical framework itself is based on the inheritance, criticism, and synthesis of existing frameworks in law-economics and law-sociology, and it has also contributed to the subsequent development of these two fields of study. For example, by adding signaling theory, Posner proposed a new analytical framework for the relationship between law and social norms in stranger societies, which promoted the updating of the research paradigm of law and economics. Drawing on the tradition of legal sociology, Saji re-examines the case-based and analytical framework used by Erickson, and proposes a theory of dual order that incorporates elements of state and social hierarchy into the civil order. As scholars say of philosophy and social science, "it is like rebuilding a boat floating on the sea by replacing pieces of formwork...... Each step forward is one in that it asks questions that have not been asked before, that removes some of the confusion that has not been asked before, or that incorporates facts that have not been observed before." Perhaps only by relying on the testing, revision, and innovation of the analytical framework can the empirical research of law continue to present various complex aspects of the actual state of law.

3. What is not a "theory" in the empirical study of law?

The above explanation of the role and mechanism of "theory" in empirical research on law also shows that not all general statements can be used as "theories" in such research. On the basis of refuting the tendency to separate substantive propositions and methodological issues, and to equate empirical methods with operational techniques, it is necessary to clarify two other common misunderstandings of "theory". These two objects, which are misunderstood as "theories", are unable to undertake the mission of the aforementioned "theories", but they themselves contain the role of analytical frameworks, which are more likely to cause confusion in the explanation of the general nature of empirical research on law.

3.1 Empirical generalization is not a "theory" in empirical research on law

The first misconception tends to be about experience or generalizations of experience as "theories". While few have expressed this position in such an extreme way, its weaker version is widely used in a variety of positivist, naturalistic, and descriptive theories that assert that theories are the presentation of experience and the discovery of its laws in the manner of the natural sciences. The most typical example of this position in the empirical study of law is Blake's "pure sociology". He insisted on excluding all norms, values, or subjective factors in his research, and through the systematic observation of a large number of empirical facts, he summarized the "proposition" of the relationship between law and social factors such as stratification, form, culture, organization, and social control, thus constructing a kind of "legal geometry". However, empirical generalization is not suitable as a "theory" in empirical legal research for the following two reasons:

On the one hand, the material or perspective on which empirical generalization is based is always limited, and it cannot provide an overall cognitive framework and act as an intermediary for causal analysis. Even if the "fact-value dichotomy" is abandoned, empirical generalizations can only provide judgments about the relationship between certain factors under the control variables. If this judgment is taken as a "theory" in empirical research, there are at least two problems. First, there may be errors in judging correlation. For example, "change in law is inversely proportional to other social controls" comes from Black's limited experience and observations, and many other empirical studies have captured a variety of possible relationships between law and other social controls, such as cooperation, complementarity, and parallelism. Second, it is difficult to form an integrated causal judgment. Even if there is no error in the observation and correlation judgment of the relationship between specific variables, and even if the causal relationship between these variables can be reasonably explained by relying on the analytical framework in the process of empirical formation, these relationship judgments are still isolated and can only be established under the premise of controlling for other relationships. In refining the relationship between the law and various social factors, Blake repeatedly affirmed the premise that "other factors remain unchanged". There are many factors that affect the actual state of the law, not to mention that it is doubtful whether the original empirical or relational judgments can be established after adding other variables, and integrating these different relational judgments into a coherent explanation (explanation) also requires a new analytical framework, which is by no means a simple superposition of different empirical or relational "propositions".

On the other hand, using empirical generalization as a "theory" can easily obscure the analytical framework behind empirical generalization, which may detract from reflection and trial and error and even appear "rigid". However, regardless of whether there is a gap between facts and values (norms), it is the analytical framework in the process of empirical formation, rather than the empirical material or specific conclusions, that are of general significance in relation to the various tensions inherent in the actual state of the law, touching on substantive propositions and methodological issues. Directly treating empirical generalization as a theory is likely to obscure the analytical framework behind empirical generalization, reduce the possibility of testing, challenging and developing it, and may even solidify local empirical observations into theoretical "dogmas". Again, in the case of "changes in law are inversely proportional to other social controls", the analytical framework contains the assumption that laws are independent of other social controls and have the same nature, since it is only under this assumption that it is possible to carry out a comparative quantitative analysis of the two. This analytical framework and its assumptions themselves can be questioned, but some studies have misread the actual state of law by generalizing experience as theory. For example, some studies directly judge whether people's mediation has been "weakened" or "recovered" based on data such as the number of civil disputes mediated by the people and the number of civil cases accepted in the first instance, and these studies have the problems of underestimating and overestimating people's mediation. The former is because people's mediation is different from litigation in nature, and the data on their participation in dispute prevention, grassroots governance, and non-institutionalized consultation will not be included in the statistics; In recent years, people's mediation has included a large number of administrative mediations that operate in its name, and the docking of litigation and mediation has also made the relationship between people's mediation and litigation and court mediation increasingly complex.

3.2 Past theories are not "theories" in empirical research on law

The second misconception tends to regard the doctrine of law and society as a "theory" in the empirical study of law. This misconception is deeper hidden and less questioned. After all, doctrines themselves have general characteristics, and the "analytical framework" in empirical research on law does not come out of thin air, and is often consciously or unconsciously, actively or passively influenced by various theories. However, it is not appropriate for empirical research to directly treat these theories as "theories".

First of all, various theories have their own specific problem awareness and application boundaries, and they can often be applied to the study of other legal phenomena only after undergoing creative processes such as associative translation and vision fusion. Micro or mid-level theories that are close to specific legal systems may be obvious in this regard, while macro theories seem to cover many legal phenomena due to their high degree of abstraction, but they require more attention. Taking Hayek's "dualism of social order" as an example, in the sense of revealing and criticizing the constructivist rationalism, the "natural/man-made" division and the resulting "social monism" that prevailed at the time, it is appropriate to emphasize evolutionary rationalism and order as "the result of human action rather than human design", and to emphasize the distinction between law and legislation, and between spontaneous order and organizational order.

However, if we depart from Hayek's problematic consciousness and directly regard his doctrine as a "theory" in the empirical study of law, we may misread practice. One is that it is easy to cut off the interaction between spontaneity and construction. The actual form of law is the result of the intertwined influence of spontaneity and construction, law and other social controls, top-down and bottom-up, etc., and often has the characteristics of "integration and pluralism". Second, it is easy to ignore the complex composition of society. The dualistic view of social order actually treats society outside the organizational order as a "unity". However, this kind of homogeneous whole does not exist, and society itself contains many components of very different natures, and there are various relationships between these components and the organizational order, such as union, resistance, and parallelism, and these complex interactive processes profoundly affect the actual state of the law.

Second, even if the previous theories are close to or even the same as the current research in terms of problem awareness, it is not the specific conclusions that can be used as "theories" in the empirical study of law, but the "analytical framework" contained in these theories. In empirical research, researchers are always confronted with specific problems and trivial data, and the reason why current research can be related to previous theories is often because there are similarities or differences between the two in terms of substantive propositions and methods. In practice, this is the nexus of the analytical framework discussed above. The doctrine of distinction itself and its analytical framework is of great significance to the empirical study of law. For example, some scholars may disagree with Durkheim's theory that human society has changed from mechanical solidarity and repressive law to organic solidarity and restorative law, but they can use the analytical framework of law and social change contained in the theory to carry out empirical research, or even falsify the theory. Similarly, one can disagree with the theories of "communicative action" or "social system" proposed by Habermas and Luhmann based on the diagnosis of different problems in post-industrial society (risk society), but this does not prevent people from analyzing legal phenomena with the analytical frameworks of "law as a medium of the living world and system" or "closed operation and cognitive openness" implicit in these theories. On the contrary, directly treating the previous theories as "theories" in empirical research is not conducive to identifying and reflecting on the problem awareness and analytical framework of the previous theories, and it is easy to obscure the various tensions in the actual state of the law and the way to deal with them, and may even be reduced to "dogmatic" behavior in another sense, which makes us further away from the original intention of "empirical" research.

The above discussion does not deny the significance of the doctrine, but only shows that it cannot directly undertake the "theoretical" mission in the empirical study of law. In fact, if the theory can be directly regarded as a "theory", then the only thing that researchers need to do is to apply the calculation, and the significance of empirical research will be greatly reduced. Of course, this does not detract from the significance of doctrines, but rather attempts to clarify their truly irreplaceable role: when the awareness of the problems is similar, the analytical framework of previous doctrines can and often is directly regarded as a "theory" in current research, and not every analysis of important phenomena and problems needs a new analytical framework. In many cases, previous doctrines have been involved in analysis as a resource for an analytical framework, which has already been touched upon in the previous discussion of the "theoretical" nature of empirical research in law, and will be analyzed more in the discussion of how to obtain an analytical framework.

4. What is the "theory" in the empirical study of law?

Although any empirical study of law contains a specific analytical framework, not all analytical frameworks can naturally assume the mission of "theory". In the face of the various tensions inherent in the actual state of law, the empirical study of law should have a certain "sociological imagination" in the interweaving of substantive propositions and methodological issues, and the interaction between observation and understanding, so as to form an "analytical framework" with the functions of an overall cognitive framework, the intermediary of causal analysis, and the link between trial and error. Of course, this also determines that this "theory" has the characteristics of integration, limitation, analysis and temporality.

What is "good research" and "sociological imagination"?

In a feature article many years ago, Su Li proposed that empirical research is not about pursuing "the truth or truth of something", but about "discovering more general truths that are reliable, credible, but easy to forget, from real or even fictional things." Therefore, even with good empirical data and research methods, empirical research "may not be done well and may be of no academic significance". "Good research" should have "the ability to think abstractly and theoretically", "the ability to intuitively grasp problems", and "the ability to integrate imagination and imagination". "Imagination" runs through the process of discovering the "real problem" and arranging and assembling empirical data, which is actually a quality requirement for the analytical framework.

In fact, "imagination" has been a topic of high focus in social science research for a long time, and the scholars who have systematically elaborated on it may be the first to recommend Mills. In the book "The Sociological Imagination", he fiercely criticized grand theories and abstract empirical research, arguing that understanding social phenomena and their problems requires not only "information" such as empirical data, but also "perseverance in transforming personal problems into public issues, and for all kinds of individuals, transforming public issues into expressions of humanistic meanings", so that researchers need to pay attention to life, history and the relationship between the two in society, and this is "the task and commitment of sociological imagination" and social analysis "Essential Characteristics". Although Mills does not give a clear definition of "imagination", and even admits that "he can't answer" the questions of how imagination is generated and how the process of concretization produces an analytical framework, he repeatedly reminds people to continue to ask three sets of questions when analyzing social phenomena, and in fact, he proposes three important dimensions that should be considered when forming an analytical framework: the current situation and the composition of elements in the social structure, the historical position and change mechanism of today's society, and the nature of people in society and the process of shaping people.

Coincidentally, although Unger does not use the expression "imagination", he also makes similar demands such as "combining the richness of direct concern with the universality of intellectual pursuit". In his view, distinguishing between descriptive and prescriptive and breaking down the universal view of human nature is a major achievement of modern social science and social theory, but modern social science and social theory adopt logical analysis or causal explanation in method, which has the characteristics of continuity (linear order), inevitability (determinism) and objectivity (ignoring subjective significance), which is not enough to deal with social phenomena with particularity and complexity. To get out of this predicament, it is necessary to unify individual social phenomena with the overall structure of society, with systematic theory and historiography, with subjectivity and objectivity, and so on, and "to unify a large number of combinations of beliefs and behaviors into a whole whose internal unity is neither logical nor causal." To this end, he proposes a "common meaning method or interpretive interpretation" and uses law as an example to do so, on the grounds that "examining the place of law in modern society brings together the main concerns of social theory". On the other hand, this also means that the collection, collation and analysis of data are not enough to reveal the actual state of the law, and the empirical research of law should attach great importance to and go beyond the methodological dilemmas mentioned in it.

4.2 "Theory" as an analytical framework

Although the above discussions have different emphases, they all show that "imagination" is necessary in the empirical study of law, and this necessity points to the tensions between subjectivity and objectivity, fact and value (normative), general and individual, which are repeatedly mentioned in this article. Researchers have different interpretations of "imagination", but the basic proposition is that we should not only focus on the object in front of us for a purely technical description, but also place the analysis in a broader life, history, society and other backgrounds for a holistic understanding. Combined with the function and requirements of "imagination", the analytical framework as a "theory" in the empirical study of law has the following characteristics or signs:

First, the analytical framework is integrated. The actual form of law is the result of the interaction between the values of law, institutional norms and various social elements, and any relevant empirical analysis must involve these elements and their interrelationships, and the analytical framework in these studies is more or less integrated. Of course, even if it is for the same object, problem, or phenomenon, there may be multiple analytical frameworks with different levels of integration. This difference is reflected both in the substantive judgment of the factors that affect the actual state of the law and the adequacy of such judgment, and in the extent to which these elements are integrated into an internally coherent whole. Generally speaking, the more fully and coherently integrated the elements of the analytical framework, the more coherent the empirical research can form some coherent propositions when dealing with the various tensions inherent in the actual state of law, and the stronger the explanatory power of empirical research on the actual state of law. Therefore, whether or not to consider norms, values, and other issues is not a fundamental difference between empirical research, doctrinal analysis, and value research, but empirical research on law considers them in the intertwined interaction between substantive propositions and methodological issues, observation and understanding, etc.

Second, the analytical framework is restrictive. In empirical research, the collection, collation and application of data materials undoubtedly imply the researcher's specific understanding of substantive propositions and methodological issues, but these propositions and problems are often presented by specific data materials and observation methods, and these understandings will also be deepened, revised or transformed in specific observations. Therefore, whether or not abstract thinking is included is not a fundamental difference between empirical research and other research, except that the thinking in the former is deeply limited by the object of study and the facts it represents, and this is also an important difference between the "theory" in the empirical study of law and the general theory of law and society. Of course, the facts that are represented here are not limited to data and individual cases that are directly related to the subject of the study. In view of the structural role of law in modern society, it is necessary to include at least relevant legal norms and information on their legislative or judicial processes. In addition, since "legality shares schemas and resources with other social structures," it may be necessary to include empirical research and materials related to ideology, value identity, and social action, as well as materials related to it.

Third, the analytical framework is analytical. The empirical study of law needs to describe the actual state of law, and its analytical framework must have a certain descriptive nature due to the limitation of data materials, but the core characteristics of the analytical framework are the classification and generalization of phenomena, the extraction of conceptual propositions, and the exploration of internal relationships. This is not only because extracting the actual form of the law from the complex data and various tensions is itself an analytical work, but also because only this kind of analytical work can make the empirical research acquire a certain universal significance on the basis of empirical relevance, so that it is possible to really touch on the substantive propositions and methodological issues, and then have the ability to reflect on trial and error such as "teaching people to fish" rather than just "teaching people to fish". From the existing research, any analytical framework may be descriptive and analytical, but often those that are more analytical and their conceptual terms are more insightful, extensive, and vigorous. Therefore, it is not necessary that a study that uses empirical data is necessarily a legal empirical study, or more precisely, that it is a "good research", but the key lies in whether an analytical framework is applied, which may also be an important feature that distinguishes legal empirical research from pure work reports and experience summaries.

Second, the analytical framework is restrictive. In empirical research, the collection, collation and application of data materials undoubtedly imply the researcher's specific understanding of substantive propositions and methodological issues, but these propositions and problems are often presented by specific data materials and observation methods, and these understandings will also be deepened, revised or transformed in specific observations. Therefore, whether or not abstract thinking is included is not a fundamental difference between empirical research and other research, except that the thinking in the former is deeply limited by the object of study and the facts it represents, and this is also an important difference between the "theory" in the empirical study of law and the general theory of law and society. Of course, the facts that are represented here are not limited to data and individual cases that are directly related to the subject of the study.

Fourth, the analytical framework is temporary. Constrained by the various tensions and social roots inherent in the actual state of law, the analytical framework of empirical research on law cannot reach the level of generalization achieved by the natural sciences, and it is bound to have temporary characteristics. Some scholars have pointed out that in social science research, "the R2 of linear models that explain individual social behavior generally does not exceed 0.5, that is, unexplained random factors account for most of the role." In contrast, the R2 of biology is generally 0.8 or above 0.9, while physics is accurate to the point where the error is negligible." This temporality means that empirical research on law "does not provide a 'finished' knowledge", but this does not mean that empirical research on law is meaningless or not "scientific". Whether it is from the perspective of Popper's "falsifiability" because of the empirical/empirical science that "theories are absolutely unverifiable in experience", or based on Kuhn's "paradigm revolution" on conventional science and anomalous phenomena from a cognitive perspective, perhaps only by explicitly taking the analytical framework as a "theory" and being aware of its temporary characteristics can we prompt empirical research on law to make better self-reflection and accept more observations and research tests and criticisms, which may be the only way for such research to approach the actual state of lawThe unique promise of "science" that is genuine and achievable.

5. How to obtain "theory" in empirical research of law?

After introducing the rationale for using the analytical framework as a "theory" in empirical legal research, the meaning and characteristics of the analytical framework, it is necessary to further discuss how to obtain this "theory", which specifically includes the production process, key cuts and development mechanisms. Intuitively, these discussions seem to be about how specific research is conducted, but fundamentally they are further illustrations of the analytical framework, the "imagination" and the general nature of empirical legal research.

On the one hand, the previous discussion of the interweaving and interaction of substantive propositions and methodological issues, observation and understanding, etc., has already involved the mutual observation of the three. In short, people always approach, discover, and understand empirical materials under the influence of specific doctrinal resources, with "foresight" such as a general understanding of the specific object of study, as well as law and society. At the same time, the collation, arrangement, and combination of empirical data are also the selection, verification, and development of doctrinal resources. Of course, the exact unfolding of this process may vary from study to study. Researchers can verify empirical data from analytical frameworks or general issues in doctrinal resources, such as Putnam's study of democratic reform of local government in Italy. It is also possible to find problems from the conflict phenomena presented by empirical data, and reflect on interpretive doctrinal resources, such as the above-mentioned research on the practice of people's jury; It is also possible to re-understand general problems and empirical data based on the divergence between doctrinal resources and empirical data, such as the study of how civil order is formed, as described above. However, in this process, induction and deduction, generalization and verification, empirical data and doctrinal resources are not separated, and they will be condensed into the problem awareness and analytical framework of legal empirical research in mutual construction.

On the other hand, from the perspective of dynamic development, the formation of the analytical framework is also in line with the equiposition model. In social science research, doctrinal resources are rarely able to accurately explain the object of study, and often only provide partially or indirectly related explanations, and the explanations they provide may also be fallacious. The collation of empirical data is often not achieved overnight, and often requires researchers to collect new data and cases. Although the empirical research can enrich the problem awareness, form a certain analytical framework and make a preliminary empirical presentation through the preliminary observation of doctrinal resources and empirical data, researchers often find that this analytical framework is not sufficient to explain the empirical phenomena, and it is necessary to return to the doctrinal resources and empirical data to find out whether there are other doctrinal resources and empirical data that have not yet been included in the analytical framework.