关键词: 教育法学研究, 双重进路, 规范主义, 功能主义

Abstract:

There are two distinct orientations in the educational law research at the methodological level, with one viewing educational law as a “model” and the other as a “guarantee”. The conflict between the two orientations is a challenge that the discipline of education law has to face in order to mature and systematize. The two ideal types of normativism and functionalism proposed by Martin Locklin are introduced as analytical conceptual tools to construct the two orientations of educational law research into normativism and functionalism in the sense of public law. The functionalist approach to the educational law research emphasizes the instrumental attributes of educational law in educational governance and the effective achievement of the goals and tasks assigned to educational law. This approach originates from the legislative activities in education since the reform and opening-up, and is also influenced by the education research orientation, which focuses on the legislative theory, regulatory theory, and comparative law research in terms of research content. The normative approach to educational law research emphasizes the independence of the educational law system and the primacy of individual rights, attaches importance to the control and adjudication functions of educational law, and takes “controlling public power and safeguarding private rights” as the core proposition. This approach is not only based on the deepening of the practice of the rule of law in education, but also influenced by the study of jurisprudence, in the content of the study on the “rule of law”, and the study of legislation. The dual path of educational law research needs a solid “spindle” connection in order to better serve the construction of disciplinary community. Constructing the disciplinary knowledge system of educational law also can not avoid the existence of normative-functionalist dichotomy. A researcher who has mastered the methodology of legal doctrine and who understands the reality of education is able to participate in the process of “translation”, which makes possible interaction and understanding within the community of researchers in educational law.

Key words: educational law research, dual approach, normativism, functionalism