Методологические проблемы цивилистических исследований. Сборник научных статей. Ежегодник. Выпуск 2. 2017

Every meaningful, productive research of the legal phenomena, including those of the civil law character, should start with establishing the methodological principles and frames of work. That is why, the researches should first of all be taught to use different methods of cognition and be equipped with the methodological tools.

The question about what the scientific methodology is, is a complicated question not only for the civilians but also for the methodologists of the science, for the philosophers and the theorists of the law. But the general scientific complexity of the problem should not lead to avoiding it in the specific sciences.

At present, the situation is created in the sphere of the civil law researches, when the methodology, in a manner of speaking, “takes a revenge” over the civil science: the full ignoring of the methodological aspects of the scientific research, the lack of understanding of the essence and the meaning of the methodology, the failure to use the system of the general and the specific scientific cognition methods leads to the diluting the very core of the science, to the intensive multiplication of the scientific “plankton”, to the research of the civil “chimeras” instead of the really existing problems. N.A. Vlasenko rightly characterized the state of the modern scientific thought as the “circulation of the muddy water”21. It is a pity this characteristic is applicable to many scientific researches being performed.

The methodology of the science is traditionally understood as a complex of the scientific cognition methods. Nevertheless, as known, the entire is always bigger than a simple set of the components: a kit for making a plane – is not yet a plane itself.

The cognition methods separately are a specific part of the civil methodology, and the researcher should be familiar with each of them.

To begin with, the the excellence of a legal theorist is defined by his understanding of the special, specific (general legal) methods of cognition and his ability to use them. For example, the usage of the historical legal method – is not the interpretation of the contents of the normative acts, that regulated in the past the researched phenomenon, and not the retrospective of the scientists’ opinions about it. Similarly, the use of the comparative legal method is not the re-writing the articles, covering the researched phenomenon, from the legislations of the foreign countries. Such application of the mentioned research method is very often met in the civil scientific works.

It is a pity that the civil scientists seldom use the methods of the nonjuridical sciences (economy, sociology, cultural studies, psychology, mathematics), which significantly enlarge the opportunities of the research. An especially promising and in some researches – a necessary method is the economic analysis and the sociological analysis of the civil law concerning how the civil legal phenomenon under study influences the economics and the society and vice versa. For example, if the recently implemented institution of the personal bankruptcy is needed in the specific economic relations, if it has led to the expected economical result, i.e. the significant reduction of debt to the creditors? Using the sociological methods, one can discover how the addressees of this institution treat it: if the risk of bankruptcy is a real factor inducing to pay the debt, or if it, on the contrary, is a happy opportunity to get rid of the creditors’ claims? In the latter case, the eficiency of the civil legal regulation of the personal bankruptcy will be extremely low, in the worst case scenario – the regulation will be not needed, and this cannot be ignored by the researcher.

It is quite often that the civil works include the innovative proposals that require considerable financial resources which are totally not taken into attention by the researchers. For example, the thesis researches propose to develop the mechanisms of compensating the civil damage for the deceived participants of the co-funded construction project, for the crime victims and the victims of other offences, for consumers, for the investors of the bankrupt financial organizations, for the authors of illegally used creative works, and other persons at the expense of the national budget. The economic analysis22 of such statements about the novelty of the research is a mandatory condition for their verification.