[author]You Chenjun
[content]
Discourse and Reflection on Research Methods in the Field of Chinese Legal History in the 20th Century
You Chenjun
Professor, Law School, Renmin University of China; Member of Planning Committee, Institute of Chinese Law and Society, Shanghai Jiao Tong University
Abstract: In recent years, many scholars have independently proposed that promoting methodological innovation in legal history studies should be one of the primary measures to address the marginalization crisis facing legal history research within China’ s academic legal community. Before issuing such calls, however, it is essential to thoroughly examine and deeply reflect on the problems inherent in the research methods predominantly employed by China’ s legal history scholars in the past. From the sporadic discussions on legal history research methods during the Republican era, to the dominance of method of class analysis in legal history research during the first about two decades after the founding of the People’ s Republic of China, and then to the gradual diversification of research methods following the reform and opening-up, the discourse on research methods in China’ s legal history academia throughout the last century has left behind both a significant academic legacy and certain shortcomings that need to be overcome today. These shortcomings are primarily reflected in the overall lack of methodological self-awareness and the generally insufficient emphasis on disciplinary identity within the discipline of law. These two aspects constitute the key targets and directions that the discipline of legal history must focus on breaking through in order to escape the current crisis of being marginalized within China’ s legal academia.
Key Words: Research Methods in Chinese Legal History, the Crisis of the Discipline of Legal History, Methodological Self-awareness, Awareness of Identification with the Discipline of Law
In China's legal history community, researchers in the last decade or so have frequently lamented that the discipline is encountering a crisis. For instance, it is believed that "although the discipline of legal history has achieved many results, it has ultimately failed to change its awkward situation of moving towards 'marginalization'," that "compared to other legal disciplines, the marginalization of the legal history discipline has further intensified," and that "it has become a consensus in the legal history community that Chinese legal historiography is currently in a predicament." When reflecting on the so-called crisis of the "marginalization" of the legal history discipline, many scholars have coincidentally proposed that promoting innovation in legal history research methods should be one of the primary measures to cope with the crisis.
From the perspective of logical discourse, before issuing such calls, one should first conduct an objective examination and profound reflection on the problems existing in the research methods primarily adopted by China's legal history community in the past. However, on this crucial prerequisite issue, the current discussions in China's legal history community, especially specialized studies on the gains and losses of research methods in 20th-century Chinese legal history and their impact, are still insufficient. This academic status quo is related to the fact that China's legal history community has historically "rarely discussed methodological issues comprehensively and deeply," which is extremely unfavorable for the legal history discipline to seek development that keeps pace with the times. In view of this, this article will adopt the approach of academic history research, focusing on the views expressed by 20th-century Chinese legal historians regarding research methods and their specific modes of discourse. It will focus on analyzing the potential underlying connections between the certain common characteristics exhibited as a whole and the "marginalization" predicament that the legal history discipline is currently encountering in China’s legal academia, in hopes of assisting in thinking about how to find the issues and directions that need to be prioritized.
1. Scattered Discussions on Legal History Research Methods in the Republican Era
As far as I can see, before the 1930s, few Chinese scholars gave specific introductions or explanations exclusively on legal history research methods. Practices like the article "Introduction to the History of Legal Thought" published in Shengjing Times in 1927, which set up a special section introducing "Methods of Researching the History of Legal Thought," were extremely rare in legal history works written by Chinese scholars at that time. Entering the 1930s, expositions on legal history research methods increased somewhat in China's legal academia, but viewed from the entire Republican period, they remained scattered.
1.1 Simple Introductions to Research Methods in Chinese Legal History Textbooks in the Republican Period
In the "History of Chinese Legal Systems" course lectures or textbooks printed and published before 1930, one can hardly see any specialized introduction or explanation regarding legal history research methods. It was not until after 1930 that this situation changed slightly.
Specifically, in three textbooks on the History of Chinese Legal Systems published in the early 1930s, the authors Ding Yuanpu, Yu Yi, and Zhu Fang made some brief introductions and preliminary explanations of the methods they used in researching the history of Chinese legal systems. In his book History of Chinese Legal Systems published in 1930, Ding Yuanpu first emphasized from a macro perspective that when researching history, attention must be paid to both vertical and horizontal aspects (the vertical aspect refers to "knowing the methods of evolution, loss, and gain of our country's legal systems through the dynasties," and the horizontal aspect refers to "knowing the complex traces of legal system changes in countries around the world"). He then simply enumerated three methods of researching legal history: "explaining the sequence of legal development by chronology," "listing and analyzing the legal systems of past dynasties," and "distinguishing the changes in various jurisprudence to clarify why the legal system developed."
In the fourth edition of the History of Chinese Legal Systems textbook printed in 1931, Yu Yi added a new chapter titled "The Significance of the History of Chinese Legal Systems." He pointed out that academic research methods could generally be divided into two main categories: the deductive method, which "emphasizes logic," and the inductive method, which "emphasizes facts." He believed that since the history of Chinese legal systems aims to narrate historical facts, the inductive research method is particularly relied upon in the process of researching the history of Chinese legal systems.
In the introduction section of the History of Chinese Legal Systems textbook published in 1932, Zhu Fang set up a special section titled "Methods and Schools of Legal History Research." He emphasized that the methods used in researching legal history are no more than two schools: "proving the present via the past" and "inferring the past from the present." The former emphasizes rationality and is mostly based on natural law; the latter emphasizes experience and benefits mostly from the historical school of law.
When reviewing representative scholars and their achievements in the field of Chinese legal history research in the first half of the 20th century, some scholars believe that a major innovation and contribution of Chen Guyuan in legal history research methods was the proposal and application of the "Problem Research Method" to correct the drawbacks of the "Era Research Method" (chronological method) customarily used by the academic community at that time. However, this statement is not entirely accurate.
First, the distinction between the academic concepts of "Problem Research Method" and "Era Research Method" regarding research methods was not first proposed by Chen Guyuan, but was pioneered by Liang Qichao. In the "Introduction" to his book History of Political Thought in the Pre-Qin Period, first published in 1923, Liang Qichao set up a section titled "Research Methods and Scope of Research of This Book." In it, he proposed that research methods could be divided into three types: the Problem Research Method ("First delineate the matters to be researched within a scope and draft several topics. For each topic, view its changes from ancient times to the present"), the Era Research Method ("This method researches in chronological order... within the same era, ordering by the birth of the thinkers"), and the School Research Method ("This method extracts the characteristics of various thoughts, dividing them into several schools... ordering by category"). He not only briefly introduced the respective advantages and disadvantages of the above three research methods but also declared that he used both the "Era Research Method" and the "School Research Method" in this work. As for the "Problem Research Method," it was not used because it was unsuitable for the scope of the book.
Secondly, in his History of Chinese Legal Systems textbook published in 1934, although Chen Guyuan made practical use of the "Problem Research Method" proposed by Liang Qichao, he did not directly mention the names "Problem Research Method" and "Era Research Method." It was not until the book Outline of the History of Chinese Legal Systems published in Taiwan, China, in 1964, that Chen Guyuan explicitly used the two specific names mentioned above, stating, "Except for historical doubts which should be handled with caution, rather than adopting the Era Research Method and losing structure, it is better to adopt the Problem Research Method to gain focus."
1.2 Yang Honglie’s Discourse on Legal History Research Methods and His Initial Methodological Self-Consciousness
In the Chinese legal history community of the Republican era, the person who discussed Chinese legal history research methods the most compared to other scholars of the same time was undoubtedly Yang Honglie.
In the "Introduction" section of the History of the Development of Chinese Law, first published in 1930, Yang Honglie specifically introduced different classifications of "methods for researching general legal history" as described by several foreign scholars: Firstly, "External Legal History" and "Internal (Content) Legal History." In method and purport, the former focuses on "narrating the general evolution of law, the relationship between law and the state, and sources of law," "synthesizing the legal net to explain it"; the latter focuses on "narrating the nature and evolution of various laws," "analyzing the legal warp and woof to explain it." Secondly, "Horizontal Research" and "Vertical Research." The former is research on "so-called legal codes," and the latter is research on "the application of legal systems." Thirdly, "Substance (Ti) Research" and "Function (Yong) Research." The former is research on "legal codes," and the latter is research on "official records, comprehensive institutional histories, and huiyao (institutes)." Fourthly, Besides the two inter-related methods of "Observing" and "Establishing" the specialized structure of each system, there are also "Historical Methods" and "Comparative Methods."
After conducting the above brief introduction, Yang Honglie claimed that his monograph used both "External Legal History" and "Internal Legal History" methods, employed both "Vertical/Horizontal" and "Substance/Function" methods, and used "Historical Methods" and "Comparative Methods" extensively. He emphasized that when researching ancient Chinese law, one should comprehensively apply the various research methods mentioned above to avoid the risk of omitting strictly necessary details.
In the "Introduction" section of the History of Chinese Legal Thought, first published in 1936, Yang Honglie specially set up a section titled "Methods of Research." He elaborated on three methods that should be applied when specifically researching the development and changes of ancient Chinese legal thought: Firstly, "Dogmatic Research Method" (Faithful/Strict Observance), for example, conducting precise and solid textual research and annotation on the principles and rules of ancient Chinese legal codes like the Tang Code and related legislative texts. Secondly, "Genetic Research Method" (Tracing the Source), specifically including the "Problem Research Method" and "Era Research Method." Thirdly, "Philosophical Research Method," for example, dividing ancient Chinese legal thought into different schools and combing through them.
Yang Honglie also briefly commented on the advantages and disadvantages of the above methods, believing that they have their own strengths and weaknesses and can assist each other, and gave examples to explain how he applied these methods in different parts of the book.
It needs to be pointed out that the above research methods introduced by Yang Honglie in History of Chinese Legal Thought seem to be his personal summary, but in reality, they are a mix of the views of the famous American jurist Roscoe Pound (whose name was transliterated variously in the Republican era) and the classification of "Problem Research Method" and "Era Research Method" made by Liang Qichao, which were then applied to his own writings on Chinese legal history. Pound's English monograph Introduction to the Study of Law, published in 1912, was translated into Chinese by Lei Peihong during the Republican era and published in China in 1928 under the Chinese title Fa Xue Yi Yan(Words on Legal Studies). In this Chinese translation, Pound proposed that "any completed law can be researched using five methods," namely "Dogmatic Research," "Historical/Genetic Research," "Analytical Research," "Philosophical Research," and "Critical Research." After briefly introducing these five research methods in turn, he pointed out that the "Dogmatic Research" method might be used for historical or analytical research, but because this method is too constrained, "it is truly insufficient to become a scientific method," while the other four methods all belong to scientific methods, "so they should be the proper methods for researching legal studies." Obviously, Yang Honglie directly copied the names of three research methods—"Dogmatic Research," "Historical/Genetic Research," and "Philosophical Research"—from the five introduced in Fa Xue Yi Yan. If Yang Honglie had any "innovation," that "innovation" was manifested in his specific elaboration of the topics in the field of Chinese legal thought history when introducing the aforementioned three research methods, and in appropriating Liang Qichao's distinction of "Problem Research Method" and "Era Research Method" and placing them as two sub-items under "Historical/Genetic Research."
Despite this, the fact that Yang Honglie was able to consciously explain and account for research methods in varying degrees of detail in several legal history works published in the 1930s indicates that he had already preliminarily possessed a certain degree of methodological self-consciousness. Some scholars have commented on this, stating that Yang Honglie's aforementioned works "show more methodological self-awareness... regarding what kind of method is most appropriate, he considers and accounts for it in advance." This point was very rare among other Chinese legal history scholars and their works in the Republican era, and thus is commendable. However, possessing a certain degree of methodological self-consciousness is not the same thing as being able to truly implement and apply the claimed research methods. In this regard, the research methods Yang Honglie claimed to primarily use in his works were essentially not fully implemented from beginning to end. For example, Yang Honglie claimed in the aforementioned History of the Development of Chinese Law that "this book uses 'Comparative Methods' and 'Historical Methods' the most." However, the famous jurist Ruan Yicheng, a contemporary of his, criticized: Yang Honglie's book actually "uniquely lacks comparative methods"; not only were "comparative methods involving more than two countries never used," but even when narrating the situation of each ancient Chinese dynasty, "no work of sequential comparison was done."
1.3 General Characteristics of the Discourse on Research Methods in the Initial Stage of Chinese Legal Historiography
First, the Chinese legal history researchers of that time mainly discussed legal history research methods based on the historiographical tradition. When summarizing the characteristics of Chinese legal history research methods in the Republican era, some scholars pointed out that compared to the situation where traditional historiographical research methods dominated in the pre-disciplinary era, applying Western legal concept systems to conduct research gradually became the dominant trend in the Republican era. However, judging from the scattered explanations and discussions on research methods by Chinese legal history researchers in the Republican era reviewed above, they rarely truly touched upon modern legal research methods. Overall, there was a lack of sufficient attention to and reference for some major legal research methods that had already been introduced to China's legal academia at that time. Basically, they were introducing and appropriating broad historiographical research methods. In other words, although many Chinese legal history works of this historical period seemed to install some modern legal concepts into their writing in form, the specific presentation of content basically inherited the style of traditional historiographical methods. In this sense, what Yang Honglie, Chen Guyuan, and others represented was actually "still the tradition of historiography."
This general characteristic is mainly related to the understanding of the attributes of the discipline of legal history by legal historians in the Republican era; that is, they almost all regarded "History of Legal Systems" as more or entirely a specialized history (Zhuan Shi). For example, Ding Yuanpu claimed "History of Legal Systems is a specialized history," and Chen Guyuan argued "History of Legal Systems is one of the specialized histories." Furthermore, when Peking University introduced the third-year elective course "History of Chinese Legal Systems" (2 credits, 2 hours per week, taught by Dong Kang, with Cheng Shude's Study on the Laws of Nine Dynasties as the main reference book) opened by its Law Department in 1935, it clearly wrote: "This subject is a study of China's past legal systems as history." Even some scholars who had considerable knowledge of modern legal studies, when talking about legal history research methods, had a strong flavor of history and a weak flavor of law. For example, a Chinese scholar who seemed to know a lot about German legal studies, in an article published in 1934 titled "The Nature of Legal History and Its Research Methods," although claiming that legal history "can be said to belong to history, and can also be said to belong to law," evidently emphasized more that legal history "belongs to a part of broad cultural history, standing alongside economic history, political history, religious history, moral history, art history, etc." It was precisely based on this perception of the attributes of the legal history discipline that this scholar, immediately following his introduction of the four-step working method of legal history research (collecting materials on legal history; criticizing the collected historical materials to judge their authenticity; organizing and interpreting historical materials; constructing historical theory), naturally spoke from the perspective of historical research.
Second, scholars who could consciously explain or introduce legal history research methods specifically were extremely rare at that time. Some scholars claim that "Yang Honglie and Chen Guyuan had already made a relatively systematic and rational summary of Chinese legal history research methods in the 1930s." However, this judgment is not accurate. On the one hand, as mentioned before, Yang Honglie did show a certain degree of methodological self-consciousness in his several legal history monographs at that time, but the research methods he introduced were actually largely appropriated from Roscoe Pound, Liang Qichao, and others, and were not his own new creations or summaries. On the other hand, it is hard to say that Chen Guyuan made a "relatively systematic" summary of legal history research methods in his works at that time. In the History of Chinese Legal Systems textbook published by Chen Guyuan in 1934, although there were some discussions that in a certain sense could be seen as related to legal history research methods—for example, in Chapter 1 of Part 1 "Problems in the History of Chinese Legal Systems," he proposed three principles of "speculative words cannot be trusted," "hypothetical words cannot be used as evidence," and "legendary words cannot be confirmed" regarding "speculations" that "must be passively observed," as well as three principles of "should passively observe" ("should not recklessly rely on the rise and fall of dynasties to seek changes in Chinese legal systems," "should not rely exclusively on certain standards to speak of changes in Chinese legal systems," "should not rely occasionally on personal subjectivity to describe changes in Chinese legal systems")—these were, after all, merely abstract principles reminding researchers what not to do, rather than positive summaries regarding specific research methods. Therefore, they cannot be considered a "relatively systematic" summary of legal history research methods.
Perhaps some scholars will add that the above review omitted a very important work on Chinese legal history from the Republican era, namely Chinese Law and Chinese Societypublished by the Commercial Press in 1947. The author of this book, Qu Tongzu (T'ung-Tsu Ch'u), not only specifically explained and concisely elaborated on the research methods used in the "Introduction" section but also practically implemented his research methods consistently throughout the specific research in the chapters of the book. In this sense, Qu Tongzu can be said to have a more distinct and strong methodological self-consciousness than Yang Honglie. However, Qu Tongzu's Chinese Law and Chinese Society did not actually originate from the Chinese legal history research tradition developed in China's legal academia since the late Qing Dynasty, but was a fruit that grew out of the sociological research tradition of Yenching University due to a combination of circumstances.
2. The Dominance of Class Analysis Method in Chinese Legal History Research and Its Rectification
2.1 Formation of the Unified Position of Class Analysis Method
After the founding of the People's Republic of China, the "History of Chinese Legal Systems" course, which was offered as a compulsory course in law departments of universities nationwide in the late Republican period, was replaced by the "History of Chinese State and Law" course, remodeled according to the Soviet "State and Law" theoretical model. This was not only a change in the course name but, more critically, a fresh start in the course content and its structural system, redesigned according to the Soviet general history of state and law "Four-Stage Theory" model (historical overview, class structure, state system, law). In the establishment and promotion of the "new" course's structural system and teaching content, the Law Department of Renmin University of China, hailed as the "work mother machine" of legal education in New China, played a key role at the time. In 1953, the Teaching and Research Section for the History of State and Law of the Law Department of Renmin University of China translated and published the textbook General History of State and Law (three volumes). This set of textbooks "provided preparation in terms of guiding ideology and theoretical system for compiling textbooks on the Chinese state and law, and was regarded as the authoritative version for legal history teaching by various political and legal departments at that time and circulated widely."
The aforementioned changes in legal history course content and its structural system were accompanied by a major change in legal history research methods at that time. On November 22, 1956, the Chinese Political Science and Law Association specifically held a symposium on the history of Chinese legal systems in Beijing. Judging from the summary of speeches published after the meeting, the participants mainly focused their discussion on whether to use "History of State and Law" or "History of Legal Systems" for the name. Xiao Yongqing, Zhang Guohua, Zhang Xipo, and others advocated that the name should be "History of State and (Rights/Law)"; Li Zuyin, Zhang Yingnan, Chen Shengqing, and others favored the use of the term "(Chinese) History of Legal Systems." When speaking, the participants frequently mentioned the word "method." It is particularly noteworthy that when the word "method" was mentioned by many participants at that time, it almost always appeared in contexts and situations linked with expressions such as "Marxism-Leninism," "Dialectical Materialism," and "Historical Materialism." This specific style of discourse is distinctly different from the expressions used by Yang Honglie and others when discussing legal history research methods in the Republican era.
In legal history teaching and research in the 1950s and 1960s, the specific research method occupying the absolute mainstream position was most commonly referred to as the "Class Analysis Method." The class analysis method is a classic method of Marxism, having significant guiding significance for understanding the occurrence and success of the proletarian revolution. However, after China's political situation gradually moved towards "taking class struggle as the key link" in the late 1950s, under the influence of "Leftist" ideology, the class analysis method was not only treated as the only correct research method in legal history research but was also increasingly used in a rigid and dogmatic manner. Consequently, the narrative of the content of Chinese legal history during this period was almost simply processed into a history of class suppression, class struggle, and class oppression. For example, a legal history scholar from Peking University wrote in an article published in 1963 analyzing the object of study of Chinese legal history as he understood it: "I think the due conclusion is: The history of Chinese legal systems is a most important component of the history of Chinese class struggle; it is a specialized history within historical science; it is the history of the development of politics and law in each historical development stage of China's class society. In this sense, it is actually China's political history." At that time, this Chinese legal historiography, completely dominated by the "revolutionary view of history," placed all its emphasis on constructing a genealogy of knowledge where class conflict, class oppression, and class rule were the motives for all legal systems. Naturally, the class analysis method became the legal history research method occupying a unified position. With the use of the class analysis method becoming absolute and generalized, Chinese legal history research in this period gradually fell into a predicament of ossification.
2.2 Reflection on the Rigid Application of Class Analysis Method
The aforementioned practice of one-sidedly emphasizing law as a tool of class struggle and thereby rigidly processing the history of Chinese legal systems into a history of class struggle was not gradually corrected in the Chinese legal history community until after 1978. However, the inertial influence caused by the above concepts over a long period was still difficult to completely change in a short time. For example, in 1981, a famous jurist still stated in a published article: "In legal history research, we must adhere to the Marxist view that class struggle drives historical development and the method of class analysis. The legal history we are writing now is mainly the history before 1949, which is the history of class struggle, the history of the existence of classes. Therefore, without the viewpoint of class struggle and the method of class analysis, and instead using a supra-class viewpoint, the research will not be clear. Even when writing the legal history of the People's Republic of China, it cannot be separated from class analysis, because although the landlord class and the capitalist class have been eliminated as classes and class struggle is no longer the principal contradiction in society, class struggle still exists. Without class analysis, it is also difficult to explain the problems."
However, overall, in the writings of the Chinese legal history community in the 1980s, although the class analysis method was still the most frequently mentioned research method, compared to the situation in the previous 30-plus years, the specific way it appeared underwent some subtle changes. Furthermore, when legal history researchers spoke of the class analysis method, the highly politically ideological discourse used previously gradually shifted to a calm and dialectical tone. As one scholar summarized: "In the improvement of research methods, what should be affirmed is that since 1978, scholars have gradually broken free from the constraints of regarding class analysis and class struggle as the sole method and viewpoint for researching legal history, thereby gradually changing the practice of viewing law purely as a tool for class suppression."
In this historical period, when the class analysis method was mentioned as the main research method for Chinese legal history, it often appeared in the specific expression of "Unity of Class Analysis and Historical Analysis." For example, in 1981, Han Yanlong and Liu Hainian published a co-authored article in the inaugural issue of Collection of Essays on Legal History, the journal of the Chinese Legal History Society. When discussing the research methods of Chinese legal history, the two scholars believed that due to the long-term influence of legal nihilism previously, great confusion had arisen in the research methods of Chinese legal history, which now urgently needed rectification. They proposed that to adhere to Marxist methodology in Chinese legal history research, one must achieve "adherence to the unity of class analysis and historical analysis." Moreover, "The research of legal history should take revealing the class essence of a certain legal system as its primary task; otherwise, the discipline of legal history will lose its rigorous scientific nature. However, revealing the class essence of the legal system is not the only task of legal history research, let alone its entire task." Such statements emphasizing the need to "adhere to the unity of class analysis and historical analysis" when researching Chinese legal history could also be seen in the writings of many legal history researchers in the 1980s and 1990s.
In addition to this, when discussing legal history research methods, there was another expression with distinct characteristics of the time, namely using "historical materialist viewpoint" and "class analysis method" in juxtaposition. For example, Xiao Yongqing wrote in the "Foreword" to the Concise History of Chinese Legal Systems he edited and published in 1981: "Only by using the viewpoint of historical materialism and the method of class analysis to give a critical summary of thousands of years of legal history can we correctly understand the relationship between phenomenon and essence in state and legal activities in Chinese history..." Zhang Youyu emphasized in an article discussing legal history research published in 1981: "Especially in the field of historical science, if you do not adopt the viewpoint of historical materialism and the method of class analysis, it is fundamentally impossible to correctly understand anything in history..."
3. Dual Dynamics of Chinese Legal History Research Methods Moving Towards Diversification
3.1 Preliminary Review and Introspective Reflection on Chinese Legal History Research Methods
Since its establishment in 1979, the Chinese Legal History Society has consciously guided scholars to reflect on past legal history research methods and explore new ones. For example, at the "National Academic Symposium on Legal History and History of Legal Thought" held in Changchun, Jilin, in September 1979, "the objects and methods of study of legal history and history of legal thought were the central topics of discussion at the conference." Again, at the "Second Annual Academic Conference of the Chinese Legal History Society" held in Hefei, Anhui, in August 1986, participants launched discussions surrounding the issue of legal history research methods. A report published after the meeting stated that participants proposed at the time: "The renewal of methods is one of the important ways to revitalize the legal history discipline. Legal history research is facing a breakthrough period in methodology."
By the late 1980s, some legal history scholars consciously summarized and reflected on legal history research methods to a certain extent when reviewing and combing through the research results of Chinese legal history since the founding of New China. Among them, the most noteworthy are two comprehensive works both published in 1989: General Survey of Research on History of Chinese Legal Systems (Zhongguo Falü Zhidushi Yanjiu Tonglan) and General Survey of Research on History of Chinese Legal Thought(Zhongguo Falü Sixiangshi Yanjiu Tonglan).
The book General Survey of Research on History of Chinese Legal Systems devoted a section in the first chapter to "Methods of Researching the History of Chinese Legal Systems," emphasizing that under the guidance of historical materialism, one should use scientific methods to research legal systems in Chinese history. These scientific methods include "adhering to the unity of class analysis and historical analysis," "combining positive research and comparative research," "combining general history research and specialized research," and "adopting new scientific methods and modern technological means." Besides the introduction in this section, comments on legal history research methods in this book are also scattered in its second and third chapters. For example, the book believes that regarding Chinese legal history research before the founding of New China, "from the perspective of research methods and depth, its skills in textual research, accumulation, and analysis of historical materials were relatively outstanding, while theoretical analysis was often lacking. Even if there were some evaluative analyses, they were mostly limited to the scope of traditional scholarship." Furthermore, looking forward to the trends and future of Chinese legal history research, the book advocated adjusting the previous research methods and angles that favored history, proposing to increase the proportion of law and culture in the results of legal history research, and combining legal thought and legal systems, data research, and social investigation.
The first part of the book General Survey of Research on History of Chinese Legal Thought is titled "Disciplinary System and Research Methods of History of Chinese Legal Thought," under which the subtitle of the second chapter is "Research Methods of the Discipline of History of Chinese Legal Thought." This chapter points out that class analysis, historical analysis, qualitative analysis, quantitative analysis, social investigation, and investigation of historical records—these six methods—are appropriate methods for researching the history of legal thought, but they need to be used in combination. Section 2 of Chapter 5 of the book, "Problems and Future in Research Methods," states, "Although the discipline of History of Chinese Legal Thought has no unique research methods, when using certain general research methods, there should be certain emphases." It directly criticized the practice of determining research topics using expressions like "Legal Thought of XX" or "Legal Thought of XX School" and then extracting remarks involving legal issues from historical books for classification and compilation. It argued that "for the discipline to develop, methods must be updated" (for example, advocating that when adopting class analysis and historical analysis methods, one should prioritize historical analysis, and then class analysis), pointing out that regarding innovation in research methods, what should be done first at present is to "value the systemic nature of legal thought" and "grasp the key points, characteristics, and vitals, without needing to cover everything."
3.2 Inspiration Brought by Research Methods Used by Overseas Scholars in Chinese Legal History
By the mid-1990s, some works on Chinese legal history by overseas scholars were successively translated and published in Chinese, bringing considerable impetus to the Chinese legal history community in terms of research methods.
In June 1994, a collection of essays titled Recent American Academic Writings on Traditional Chinese Law (Chinese title: Meiguo Xuezhe Lun Zhongguo Falü Chuantong) was published by the China University of Political Science and Law Press. Jointly edited by three Chinese and American scholars, the book collected 12 representative essays on Chinese legal history by American scholars such as William Alford, Randall Peerenboom, Brian E. McKnight, and Jonathan K. Ocko. Although this was not the first time essays on Chinese legal history by overseas scholars were specifically translated into Chinese and published as a collection, the level of attention Recent American Academic Writings on Traditional Chinese Law triggered among Chinese peers after its publication was unprecedented. Shortly after the book was published, not only did Chinese scholars write and publish book reviews specifically, but the top journal in China's legal academia, CASS Journal of Law (Fa Xue Yan Jiu), specifically invited many young and middle-aged scholars engaged in legal history and jurisprudence research in the name of the editorial department to hold an academic symposium in Beijing to discuss this book. Whether it was the scholars writing book reviews or the speakers at this symposium, when sharing their views on Recent American Academic Writings on Traditional Chinese Law, they invariably placed their main focus on evaluating the innovation in research methods exhibited jointly by the articles in this book and their implications.
In a dedicated book review published under the pen name "Chen Wen," Chen Jingliang praised the essays collected in Recent American Academic Writings on Traditional Chinese Law for "standing on the position of understanding and respecting Chinese culture, based on careful textual verification of historical materials, consciously applying research methods of the humanities to interpret Chinese legal historical materials, and reaching many refreshing conclusions." He believed that "for Chinese scholars, regarding the research of legal history, one cannot but pay extra attention to the methodology of Western scholars," and specifically elaborated on the inspiration that the specific application of "humanities methods" in the essays of this book could bring to the Chinese legal history community.
At the symposium organized by the editorial department of CASS Journal of Lawspecifically centering on Recent American Academic Writings on Traditional Chinese Law, although scholars focused on different aspects, "how to view and borrow the methods of American scholars researching Chinese legal history" was undoubtedly the most discussed topic. A very noteworthy point is that when sharing their viewpoints, many participants reflected to varying degrees on certain problems existing in domestic Chinese legal history research methods at that time. Even those speakers who held a cautious attitude or even reservations about the research methods of American scholars on Chinese legal history did not shy away from this point. For example, Xu Lizhi and Li Li both mentioned in their speeches that the methods used in domestic Chinese legal history research were relatively identical, even somewhat rigid, so that the works produced often "lacked individuality."
Whether advocating for actively learning from and borrowing the research methods of American scholars on Chinese legal history, or holding certain reservations, to use a term from systems theory, the "irritation" brought by Recent American Academic Writings on Traditional Chinese Law to legal history research methods at that time promoted internal examination and even public reflection on research methods within China's legal history community.
Looking at the works on Chinese legal history by overseas scholars translated into Chinese in the 1990s that were later able to attract significant attention in China's legal history community, particularly those whose research methods clearly brought a certain "irritation" to Chinese peers, Recent American Academic Writings on Traditional Chinese Law is a highly representative example. Besides this, there were two other Chinese translations on the theme of Chinese legal history, both published in 1998, that also brought considerable impetus to China's legal history community. These two works on Chinese legal history are Civil Justice and Civil Contracts in the Ming and Qing Periods(Ming Qing Shiqi De Minshi Shenpan Yu Minjian Qiyue), compiled from translated representative essays of four Japanese scholars—Shuzo Shiga, Hiroaki Terada, Susumu Fuma, and Mio Kishimoto—and the Chinese translation of the academic monograph Civil Justice in China: Representation and Practice in the Qing by Chinese-American scholar Philip C. C. Huang. In particular, the analytical framework of "Representation vs. Practice" used by Philip Huang in the aforementioned monograph was later imitated by many in China's legal history community, almost being revered as a new method for legal history research.
It needs to be clarified that the author absolutely does not suggest that the reflection on research methods by China's legal history community in the 1990s came entirely from the "irritation" of those works by foreign peers translated into Chinese. However, the impetus and inspiration brought by the research results of these overseas peers indeed provided academic resources for reference and opportunities for discussion for the Chinese legal history community to promote the movement of research methods towards diversification at that time.
4. Reflection on Chinese Legal History Research Methods through the Review of Academic History
4.1 Awareness of Methodological Self-Consciousness is Overall Still Weak
In the 1980s, besides reflecting on and discarding the class analysis method that had prevailed for decades, China's legal history community also saw some scholars attempting to positively propose several usable legal history research methods. For example, when Han Yanlong and Liu Hainian specifically discussed "Methods of Researching Legal History" in 1981, they emphasized achieving three points: "adhere to the unity of class analysis and historical analysis," "adhere to starting from historical facts," and "treat legal heritage scientifically and oppose one-sidedness." However, these three points are more macro stances during research rather than specific research methods. By the early 1990s, some legal history scholars were unsatisfied with the formulation of "method" and instead used the seemingly more advanced expression "methodology." For example, Yu Ronggen devoted a whole chapter titled "Review of Methodology in the Research of Confucian Legal Thought" in his book General Theory of Confucian Legal Thought, first published in 1992. However, judging from the nearly 100 pages of content in this chapter, there were actually very few clear summaries of specific legal history research methods. It was more about discussing and criticizing some concepts commonly used in China's legal history community and certain popular viewpoints, such as "the opposition between Confucian rule of man and Legalist rule of law" and "Confucian natural law." Therefore, it cannot be considered a positive systematic elaboration on the methodology of legal history research. Overall, when scholars in China's legal history community at that time talked about research methods or methodology, the vast majority only carried out brief macro elaborations at the level of philosophical methodology or general scientific methodology. It was extremely rare to find systematic explorations that could penetrate deep into the level of specific scientific methodology.
In China's legal history community of the 1980s and 1990s, the representative scholar who truly systematically summarized and proposed a set of theoretical elaborations on legal history research methodology in the sense of specific scientific methodology, and was able to consciously implement and apply it in legal history research, was Liang Zhiping. In the concluding part of his article "Comparative Law and Comparative Culture" published in 1985, Liang Zhiping proposed a principle for "building a Chinese-style comparative jurisprudence," namely "using law to elucidate culture, and using culture to elucidate law." This constituted the manifesto of the methodological aim of the "Legal Cultural Research" he was committed to practicing. Especially after he successively published two monographs, Harmony in the Quest for Natural Order: A Study of Traditional Chinese Legal Culture and Fa Bian: The Past, Present, and Future of Chinese Law, in the early 1990s, Liang Zhiping realized that "if one only stays at the level of 'using law to elucidate culture,' such methodology is inevitably crude and lacking in theoretical nature." Thus, he attempted to summarize a set of legal history research methodology he termed "Cultural Interpretation of Law." In the article "Cultural Interpretation of Law," first published in 1993, Liang Zhiping on the one hand clearly limited the main application scenario of the "Cultural Interpretation of Law" method to the field of legal history; on the other hand, he emphasized that this research method has significant differences compared to legal history research in the traditional sense. The "Cultural Interpretation of Law" method introduces theoretical resources from philosophical hermeneutics and cultural anthropology, focusing on "interpreting" law as a symbol system (or world of meaning). The prominent features of "Cultural Interpretation of Law" as a new legal history research method received clearer explanation in the "Preface to the Reprint" written specifically for the 1997 reprint of Liang Zhiping's book Harmony in the Quest for Natural Order: A Study of Traditional Chinese Legal Culture. While calling his series of legal cultural studies "factual research," Liang Zhiping emphasized that this kind of "factual research" is not, like the legal history research of the vast majority of other scholars in the past, mainly dedicated to restoring the "objective reality" of history from an objective aspect, but rather adopts a hermeneutic approach, focusing on excavating the symbolic meaning of law (or its cultural meaning, "the cultural character of the institution"). To use his original words in a retrospective article published in 1998, it is that the method of "Cultural Interpretation of Law" highlights "'meaning' and 'interpretation,' opposing the prevalent functional analysis and shallow scientistic beliefs."
Liang Zhiping consciously refined and summarized his research methods in the 1980s and 1990s, forming a self-contained theoretical framework of legal history methodology, striving to demonstrate consistency in research methods and basic stance, thereby "completing the transformation from legal cultural research as a content label of writings to legal cultural research as an academic approach and method," and subsequently continuously developing, supplementing, and perfecting the content of this methodology. Such methodological self-consciousness with a strong pursuit of theory was quite rare in China's legal history community in the 20th century and remains so even today.
In China's legal history community, no monograph systematically expounding on the methodology of legal history research has been published to date. There are only some discourses on legal history research methods scattered in individual papers or books with varying lengths, and they are often macroscopic and abstract, lacking demonstration combined with specific examples. Although as early as the mid-1990s, legal history scholars called for "a revolution in methodology needed for legal history research," examples like Su Li, who used the ancient Chinese marriage system as an example to distill a five-step specific operation method for the so-called "contextualism" analytical approach, are still rarely seen in China's legal history community. By comparison, in the fields of history and social sciences, methodology often constitutes a specialized field of research, and there are now quite a few methodology textbooks or academic works written by Chinese scholars. Of course, the author definitely does not mean that a discipline that likes to talk about or talks a lot about research methods will necessarily develop better, because if there is a lack of practical application demonstration and only empty talk about research methods, it will only degenerate into some kind of dragon-slaying art (useless skill).
4.2 Identity Awareness of the Law Discipline Needs Overall Strengthening
As mentioned before, for a considerable period since the Republican era, China's legal history community almost overwhelmingly praised historiographical research methods, regarding factual description as the ultimate goal of research and regarding textual verification (kaoju) as the supreme method. Some legal history scholars thus termed the mainstream style of Chinese legal history research formed since the early 20th century as "descriptive" or "fact-descriptive type." This research style, built on the foundation of the belief in "historical materialism" (in the sense of reliance on historical materials/Scibilism), made Chinese legal history scholars lean more towards historiography in their questioning methods and writing styles, while clearly parting ways with jurisprudence and various departmental legal studies within law, even to the point of "never visiting each other all their lives."
Of course, this is not to say that all Chinese legal history scholars purely emphasize that Chinese legal history is a specialized history. Some scholars also pointed out that Chinese legal historiography is an interdisciplinary subject formed by the combination of history and law, possessing both the character of history and the characteristics of law, and thus advocated that "historiographical research methods" and "legal research methods" should be combined. There are also some Chinese legal history scholars who proposed that the attributes of law should occupy a dominant position in the legal history discipline. For example, some legal history scholars, while emphasizing the "dual nature" of Chinese legal historiography (having attributes of both law and history), argued that "its main content, research purpose, and basic methods are legal; the legal attribute occupies the dominant position in this discipline," and criticized those legal history works written solely from the perspective of history without "legal perspective" as not being "works of legal history with truly independent subjective character."
The question is, how to understand "legal research methods," "legal attributes," and "legal perspective" mentioned here? In the author's view, the specific application of "legal research methods" or "legal perspective" in Chinese legal history research is not superficially moving modern Western legal concepts like "civil law," "property rights," and "obligations" over to serve as a classification and integration framework for Chinese legal historical materials. Rather, it should be, under the premise of meeting the standards of historical craftsmanship, to further pursue elucidating the principles reflected by legal phenomena in Chinese history (including the static regulations and dynamic operation of legal systems, the content and influence of legal thought, etc.) from the height of legal theory, thereby enabling some kind of communication and exchange with other disciplines within law (legal theory and departmental law), and even providing some inspiration for the latter. But it is precisely on this point, frankly speaking, that among the academic assets left by China's legal history community in the 20th century, what can truly provide direct help today is actually quite limited. Although in the late 1980s legal history scholars proposed increasing the "proportion of law" in the results of Chinese legal history research, it was only a general discussion at the time. Even works considered by some legal history scholars to have applied "legal research methods" were actually only superficial applications in form. For example, some legal history scholars believed that Yang Honglie's practice of using modern Western legal concept systems to research Chinese materials in his History of the Development of Chinese Law published in 1930 "was a mature manifestation of the application of legal research methods in Chinese legal history research," and believed that "the work of constructing the framework of Chinese legal history research using the method of combining history and law was basically completed, and what followed was merely modifying this framework." But in fact, although Yang Honglie himself claimed that "Dogmatic Research" (Legal Principles Research) was one of the three major research purposes of the book History of the Development of Chinese Law, a major obvious defect of this book lies precisely in the insufficiency of "Dogmatic Research," so that it reads overall more like a compilation of Chinese legal history materials organized using the classification system of Western legal discourse.
In summary, research in the Chinese legal history community in the 20th century generally presented the overall characteristics of "fact-descriptive" research being the mainstream style, while in-depth analysis in the legal sense was relatively insufficient. It was not until the end of the 20th century that some legal history scholars explicitly criticized the above-mentioned problems that had long existed in China's legal history community. They believed that because "legal historiography leaned one-sidedly towards historiography" and "ignored that legal historiography is also a specialized field of legal research," the research results of Chinese legal history in China's legal academia "failed to provide sufficient nutrients for realistic legal research," and the realistic legal academia "disdained" legal historiography. Therefore, they advocated that "scholars in the legal community should emphasize researching legal history from the perspective of law. As for work such as excavating historical materials and verifying historical facts, maximum use should be made of the results of the history community."
At a time when the holistic characteristics distinguishing the discipline of law from other disciplines like history (manifested in the research stance of law as the increasingly solid dominant position of legal positivism, and in the mechanism of legal education training as increasingly emphasizing practice-orientation) are becoming increasingly prominent, legal history as a sub-discipline of law now not only needs to focus on accumulating methodological self-consciousness with its own systemic characteristics, but this methodological self-consciousness should first reflect identity with the discipline of law. Only in this way can it effectively respond to the doubts issued by some scholars from other legal disciplines regarding why legal history can be listed as a secondary discipline of law and why "Chinese Legal History" is a compulsory course for law majors, thereby maintaining the legitimacy of the legal history discipline as a member of the law family. If we say that before the late 1970s to the mid-1990s, when departmental legal research had not yet truly grown strong, the legal history discipline, which once enjoyed a "leading soldier" status and played a "leading role" in the reconstruction of Chinese law in the early days of reform and opening up, had the confidence not to care too much about the views of departmental law researchers, then since entering the 21st century, with the strong development of practice-oriented departmental law, especially the deep rooting of legal dogmatics in departmental law disciplines such as civil law, criminal law, and constitutional law in the last ten years or so, and even taking pride in legal orthodoxy, the disciplinary status of legal history in China's legal academia has declined rapidly compared to before, and the glory of being a "prominent discipline" in the past no longer exists.
Against the background where the overall style orientation of law and the mutual status of its internal disciplines have undergone tremendous changes, how other legal disciplines (legal theory and departmental law) actually view the discipline of legal history, and whether they truly recognize the legal history discipline as a "qualified" member of the law family, has become an important practical issue that legal history scholars in law schools must face today. Only by strengthening their own awareness of legal disciplinary identity can legal history scholars possibly be truly recognized by researchers in other legal disciplines as having the legitimate identity of members of the legal knowledge community. In this regard, the academic attempts by some young and middle-aged scholars in the last ten years or so to consciously introduce relevant knowledge of departmental laws such as constitutional law, civil law, criminal law, and international law into Chinese legal history research, as well as discussions on how research methods of "Social Science Law" represented by sociology of law can benefit the legal positioning of Chinese legal history research, are all new explorations of research methods that help strengthen the legal disciplinary identity awareness of Chinese legal history research.
5. Conclusion
"The methodology of any science is the reflection of that science on its research activities, modes of thinking, and utilized cognitive means." Combing through and reflecting on certain problems that have long existed in the research methods of the legal history discipline is a prerequisite academic task that needs to be seriously completed first when thinking about how the Chinese legal history discipline can step out of the "marginalization" predicament in the legal academia at present, when the internal structure of the legal discipline and its overall development trend have undergone tremendous changes compared to the past. When we look back at the research methods of Chinese legal history in China's academic community in the 20th century, we must see the important academic assets left to later generations by the predecessors' hard work, but we must also clearly realize the deficiencies and limitations of the times contained therein, and then carry out targeted overcoming, breakthroughs, and innovations in the current great changes within the law discipline with the times, rather than stubbornly following the old ways. This should be the goal that academic history research truly needs to pursue; that is, one cannot be limited to leaving a commemorative account of past academic development through recalling the past, but must also examine the present and look forward to future academic development, gaining insight into the inspirations, reminders, and lessons the past brings us.