论法律经济学的研究方法论

The Research Methodology of Law and Economics

法律经济学的研究方法论包括了研究的逻辑起点、研究的认识论基础和研究的学术认知立场三个部分。研究的逻辑起点是一门学科研究中最基本、最简单的质的规定。法律经济学的逻辑起点是"个体总是进行理性选择"这一"命题",对该命题具体内涵的理解在法律经济学中主要有四种。研究的认识论基础涉及研究者对何为个体对知识的真正认识以及如何获取这些真正认识的基本观念,包括实证主义、规范主义和实用主义三种。法律经济学中的不同流派,甚至同一学者在不同的思想发展时期,都采用了不同的认识论基础。研究的学术认知立场是研究者在分析问题时所采取的基本认知态度和立场,主要包括方法论个体主义和方法论整体主义两种类型。主流法律经济学接纳了方法论个体主义,制度主义法律经济学则坚持了方法论的整体主义。

Legal research methodology is the abstract description of methods and ideas of legal research. It consists of ＂The Starting Point of Research＂ （SPR）, ＂The Epistemological Basis of Research＂ （EBR） and ＂The Academically Cognitive Position of Research＂ （ACPR）. SPR is the core assumption of all disciplines. It is not a concept but a proposition. SPR of Law and Economics （L＆E） is that individuals always act to make rational choices. It is a ＂rational choice theory＂. There is considerable debate within law-and-economics communities about precisely what rational choice theory is and four opinions are dominant： （1） The Definition Version, which argues that rationality is understood as suiting means to ends. （2） The Expected Utility Version, which argues that individuals make rational choices through comparing the expected utility of different actions. （3） The Self-Interest Version. It starts from expected utility theory＇s prediction about the manner in which actors will attempt to achieve their utility, and add predictions about the actor＇s goals and preferences： that is ＂Self-Interest＂. （4） The Wealth Maximization Version. It provides even more specific prediction about the ends of decision makers than does the Self-Interest Version： that is ＂wealth maximization＂. The Expected Utility Version is the most dominant opinion in modern L＆E. EBR is the basic cognition about what knowledge is and how individuals get it. It consists of ＂positivism＂, ＂normativism＂ and ＂pragmatism＂. Schools in L＆E have different EBR and even the same scholar argues over different EBR during the special stages of his academic career. The Chicago School and Institutional L＆E prefer positivism and Constitutional Economics prefer normativism. During his early stages of academic career, Richard Posner insisted that normativism was as important as positivism, but several years later he claimed positivism as more important than normativism, while in 1990s, he changed his mind again and turned to pragmatism. ACPR is scholar＇s basic cognitive position when he is engaged in academic researches. It consists of ＂Methodological Individualism＂ （MI） and ＂Methodological Holism＂ （ MH ）. The Chicago School and Constitutional Economics hold MI and Institutional L＆E holds MH.