From contract to mental model: Constitutional culture as a fact of the social sciences

This paper develops the concept of constitutional culture—the attitude, thoughts, and feelings about constitutional constraints and the nature, scope, and function of constitutionalism. Constitutional culture is approached as a complex emergent phenomenon bridging Hayekian cognitive and institutional insights. It can be studied as a mental model, a series of expectations and understandings about the constitutional order, how it is, and how it ought to be. The “map” and “model” approach from Hayek’s Sensory Order (1952) is employed to understand how individuals and (cautiously) groups of individuals at the national level approach constitutionalism. This paper goes beyond the more traditional one-size-fits-all approach where all individuals respond uniformly to incentives, as provided by the constitution qua contract. Instead, constitutionalism is tied up in the individual’s vision of the world, that is, what Hayek (1948) labels “the facts of the social sciences.” The paper concludes with four areas where constitutional culture can further the insights of constitutional political economy: comparative political economy, constitutional stickiness, constitutional maintenance, and the new development economics.     

Toward a naturalistic foundation of the social contract

This paper delivers a step toward a naturalistic foundation of the social contract. While mainstream social contract theory is based on an original position model that is defined in an aprioristic way, we endogenize its key elements, i.e., develop them out of the individuals’ moral common sense. Therefore, the biological and social bases of moral intuitions are explored. In this context, a key adaptation during evolution was the one that enabled humans to understand conspecifics as intentional agents. Since these behavioral aspects are considered to be an exaptation, they are not amenable to direct genetic explanations or to rationality-based approaches.

论商法的私法本质

商法在本质上是私法,与民法一起构成完整的私法体承。笔者从公法、私法的区别入手,阐明商法的私法本质,并从商法的公法化趋势阐明,现代商法虽然具有了某些公法性质,但这并不改变商法的私法本质。     

A social contract approach to sustainability

This paper asks whether it is possible to derive a concern for future generations (“sustainability”) from an account of the firm as a social contract (SC) among its stakeholders. Two aspects of a leading SC model of the firm limit its usefulness for an analysis of sustainability. First, the stakeholders provide investments to the firm over time. Second, the relationship between contemporaries and future generations is marked by asymmetries of power and knowledge that need to be considered while reconstructing the SC today. I discuss three reformulations of the SC that are all, in principle, capable of introducing within the SC a concern for future generations. The first describes the contractors as heads of families. The second envisages a grand meeting of stakeholders of all generations. The third, which I find most defensible, views the SC as an ahistorical agreement reached behind a thick veil of ignorance. This agreement is based on John Rawls’s norm of reciprocity, whereby the stakeholders adopt today the decision they wish all previous (and future) generations had made regarding the rate of consumption of natural resources and emission of pollutants.     

Poverty as social deprivation: a survey

The concept of poverty is discussed using qualitative and quantitative measures as an indicator for social deprivation. Poverty can be absolute, relative, income based, consumption based, or entitlement based. The variation in the concept of poverty reveals its dimensionality. However, when closely examined, these dimensions are seen to be conceptually interrelated and complementary rather than substitutable. The concept used to define poverty determines the methods employed to measure it. Composite indicators can hide important policy messages inherent in their constituent variables.     

Limited observability as a constraint in contract design

Limited observability is the assumption that economic agents can only observe a finite amount of information. Given this constraint, contracts among agents are necessarily finite and incomplete in comparison to the ideal complete contract that we model as infinite in detail. We consider the extent that finite contracts can approximate a complete contract. The objectives of the paper are: (i) to identify properties of agents’ preferences that determine whether or not finiteness of contracts causes significant inefficiency; (ii) to evaluate the performance of finite contracts against the ideal optimal contract in a bilateral bargaining model.     

Overconfidence as a social bias: Experimental evidence

The overconfidence bias is discussed extensively in economic studies, yet fails to hold experimentally once monetary incentives and feedback are implemented. We consider overconfidence as a social bias. For a simple real effort task, we show that, individually, economic conditions effectively prevent overconfidence. By contrast, the introduction of a very basic, purely observational social setting fosters overconfident self-assessments. Additionally, observing others’ actions effectively eliminates underconfidence compared to the individual setting.     

劳动合同法的成本效应分析

很多企业家担心劳动合同法实施后会增加企业成本,因此不少企业赶在该法实施之前采取规避措施.本文通过广泛企业调查,对劳动合同法的成本效应进行了实证分析,发现劳动合同法实施后带来的成本增幅存在较大差异.从规模角度看,对小规模企业影响较大;从不同所有制形式看,对私营企业影响较大;从行业看,对服务业、建筑业等行业的影响较大.文章建议从三方面完善劳动合同法的实施.     

国际工程合同的评析与借鉴

国际工程合同为我们提供了建造合同、设计和建造合同、EPC/交钥匙合同等多种可供选择的工程承包模式,探讨国际工程合同的优势和缺陷,明确其应用范围,对于克服我国工程承包合同存在的内容简单;操作性不强等问题有积极的意义.     

国际工程合同的评析与借鉴

国际工程合同为我们提供了建造合同、设计和建造合同、EPC/交钥匙合同等多种可供选择的工程承包模式,探讨国际工程合同的优势和缺陷,明确其应用范围,对于克服我国工程承包合同存在的内容简单;操作性不强等问题有积极的意义。     

国际仲裁及其他

国际仲裁FIDIC合同第67款全部与仲裁有关。除前面所提的第67.1款的咨询工程师准仲裁和第67.2款的友好解决尝试外,第67.3款国际仲裁也是一条非常有实际意义的条款。第67.3款〔仲裁〕有关以下方面的任何争端：a.咨询工程师的决定（如果有的话）,未能根据第67.1款规定成为最终决定并具有约束力;以及b.在第67.2款规定的期限内尚未达成友好解决;除非合同中另有规定,均应按国际商会的调解与仲裁章程,由据此章程指定的一名或数名仲裁人予以最终裁决。上述仲裁人（们）有权解释、复查和修改咨询工程师对争端所做之任何决定、意见、指示、确…     

The evolution of sanctioning institutions: an experimental approach to the social contract

A vast amount of empirical and theoretical research on public good games indicates that the threat of punishment can curb free-riding in human groups engaged in joint enterprises. Since punishment is often costly, however, this raises an issue of second-order free-riding: indeed, the sanctioning system itself is a common good which can be exploited. Most investigations, so far, considered peer punishment: players could impose fines on those who exploited them, at a cost to themselves. Only a minority considered so-called pool punishment. In this scenario, players contribute to a punishment pool before engaging in the joint enterprise, and without knowing who the free-riders will be. Theoretical investigations (Sigmund et al., Nature 466:861–863, 2010) have shown that peer punishment is more efficient, but pool punishment more stable. Social learning, i.e., the preferential imitation of successful strategies, should lead to pool punishment if sanctions are also imposed on second-order free-riders, but to peer punishment if they are not. Here we describe an economic experiment (the Mutual Aid game) which tests this prediction. We find that pool punishment only emerges if second-order free riders are punished, but that peer punishment is more stable than expected. Basically, our experiment shows that social learning can lead to a spontaneously emerging social contract, based on a sanctioning institution to overcome the free rider problem.     

The emergence of English commercial law: Analysis inspired by the Ottoman experience

Thirteenth-century England was a commercial backwater whose trade was dominated by foreigners. To accommodate and encourage foreign merchants, England modified its legal system by creating legal institutions that were available to both domestic and foreign traders. Among the most important of these institutions were streamlined debt collection procedures and mixed juries composed of both Englishmen and foreigners. By introducing institutions that treated locals and foreigners equally, England created a level playing field that enabled English merchants to become increasingly prominent in the later Middle Ages. England's ability to modernize its law was facilitated by the secular nature of English law, the representation of merchants in Parliament, and legal pluralism. Medieval England contrasts sharply with the early modern Ottoman Empire. The latter created special institutions for foreign merchants, which eventually put Ottoman Muslims at a competitive disadvantage.     

公司对外担保合同相对人审查义务的合理性质疑--以对我国《公司法》、《合同法》相关条文的规范分析为视角

如果公司法定代表人违反公司章程规定以公司名义与他人订立担保合同,该合同效力为何？公司对外担保合同的相对人是否负有审查义务？若是担保相对人有此项义务,那么应当审查什么,按照什么具体标准审查,违反义务又当如何？有学者认为,基于资本维持原则的要求和实务中维护中小股东利益、防止法定代表人滥用代表权的需要,应当认为公司对外担保合同的相对人负有审查义务,但此观点合理性存疑。     

论商业秘密的民法保护

民法保护是商业秘密法律保护的重要组成部分,对于保护商业秘密权利人的合法权益,维护正常的市场竞争环境,建立和谐的市场竞争秩序,具有十分重要的作用。在民法保护中,应当准确界定商业秘密的权利归属,合理划分侵权诉讼的举证责任,明确商业秘密被侵权时可采取的法律保护形式,依法判定侵权人应当承担的民事法律责任。     

Aumann-Shapley prices as a scarf social equilibrium

Considered are economies with a single output (a single consumption good) which is produced from l inputs by means of an increasing returns to scale production function f. We show that for quasi-concave and homogeneous functions f of degree r ? 1, the Aumann-Shapley prices constitute a simple Scarf Social Equilibrium. Put differently, Shapley value of the associated atomless game is in the core of that game. Such is not the situation, however, in the more general case when f exhibits increasing returns to scale (but in homogeneous).     

Remittances as a social status signaling device

Like all human beings, migrants may have a concern about their prestige or social status in the eyes of left-home family and friends. They can remit money in order to signal their economic success and increase their status. We show that if migrants’ income is private information, unsuccessful migrants might accept a worsening of their living conditions and send back home large amounts of remittances only in order to make residents believe that they are successful. In some cases, successful migrants can signal their true favorable economic situation by remitting an even larger amount. The game presents various equilibria that differ with respect to the proportion and nature of the migrants who sacrifice consumption opportunities to status revealing actions.     

Enculturation of professional contract nurses: a concept analysis

The concept enculturation, an essential component of integration into the work arrangement of professional contract nurses, also known as travel nurses, is analyzed. These registered nurses are contracted by hospitals through health care staffing service firms, for temporary work assignments. The work of travel RNs involves frequent recurring episodes of integration to health care teams at hospitals throughout the nation. Rodgers Evolutionary Method (Rodgers & Knafl, 2000) is applied to analyze the concept of enculturation, leading to a pragmatic perspective on its meaning and utility. This work may contribute new knowledge applicable to future nursing research.     

基于社会契约的公平观浅谈收入分配政策

建立符合正义的公平、完善的收入分配制度,推进和谐社会建设,是当前中国发展中亟待解决的重大问题。现有的按劳分配、按要素分配制度不能得到有效贯彻、实现,这与基于社会契约的公平观存在密切联系,因此,建立符合正义的公平观念,制定体现公平与效率的再分配政策是一个重要研究课题。