Abstracts

The concept of ‘tacit knowledge’ as the means by which individuals interpret the ‘rules’ of social interaction occupies a central role in all the major contemporary theories of action and social structure. The major reference point for social theorists is Wittgenstein's celebrated discussion of rule-following in the Philosophical Investigations. Focusing on Giddens' incorporation of tacit knowledge and rules into his ‘theory of structuration’, I argue that Wittgenstein's later work is steadfastly set against the ‘latent cognitivism’ inherent in the idea of tacit knowledge and tacit rules. I also argue that the idea of tacit knowledge and tacit rules is either incoherent or explanatorily vacuous. Scholars of the emotions maintain that all anger requires an object of blame. In order to be angry, many writers argue, one must believe than an actor has done serious damage to something that one values. Yet an individual may be angered without blaming another. This kind of emotion, called situational anger, does not entail a corresponding object of blame. Situational anger can be a useful force in public life, enabling citizens to draw attention to the seriousness of social or political problems, without necessarily vilifying political officials. In the first half of this paper I show how H. L. A. Hart's theory of rules can resolve, or at least clarify, a central methodological problem in legal anthropology that was first posed in Llewellyn and Egebel's The Cheyenñe Way In the second half I explore and develop Hart's theory (a) of rules, and apply it to problems of agency and behaviourism in legal anthropology, and (b) of legal development, and apply it to the problem of rule-scepticism in legal anthropology as it is posed in Roberts and Comaroffs Rules and Processes and elsewhere. As human beings, we share many historically developed, language-game interwoven, public forms of life. Due to the joint, dialogically responsive nature of all social life within such forms, we cannot as individuals just act as we please; our forms of life exert a normative influence on what we can say and do. They act as a backdrop against which all our claims to knowledge are judged as acceptable or not. As a result, it is not easy to articulate their inadequacies in a clear and forceful manner. However, within most of our forms of life, we have a first-person right to express how our individual circumstances seem to us. And by the use of special forms of poetic, gestural talk—talk that can originate new language-games—we can offer to make our own ‘inner lives’ public. In this paper, I want to claim that this is just what Wittgenstein is attempting to do in his later philosophy: by use of the self-same methods that anyone might use to express aspects of their own world picture, he is offering us his attempts to make the background ‘landscape’ of our lives more visible to us. These methods are explored below. Proponents of the view that social structures are ontologically distinct from the people in whose actions they are immanent have assumed that structures can stand in causal relations to individual practices. Were causality to be no more than Humean concomitance correlations between structure and practices would be unproblematic. But two prominent advocates of the ontological account of structures, Bhaskar and Giddens, have also espoused a powers theory of causality. According to that theory causation is brought about by the activity of particulars, in the social psychological case, individuals of some sort. Consistence would demand that structure be those individuals. But neither Giddens nor Bhaskar wish to reify structure to the extent that would fit it for a role as a powerful particular. If only human beings can be powerful particulars in these contexts, the only way that structures can be real must be as properties of conversational (symbolic) interactions. Human action is social just in so far as people direct themselves to engage well in joint activities with others.     

古典学的人类学相关性:还原并反思地引申一种主张

近代人类学的奠基者曾高度重视借鉴古典学的研究成果。20世纪初，学科理念发生巨变。此后数十年间，古典学者继续借鉴人类学思想，而现代新人类学中重视古典学的学者却越来越少。20世纪60年代初，克拉克洪在其所著《论人类学与古典学的关系》一书中对这一变化表示喜忧参半。他乐见人类学思想渗入古典学，担忧人类学因减少汲取古典学的养分而丢失其本来的品质。克拉克洪指出，人类学的根基是人文与科学，此二者均为古希腊人的发明，现代新人类学要保持其品格，便有必要重返古希腊。鉴于克氏主张的重要性，本文力图对之加以还原，并在此基础上进行反思。本文认为，克拉克洪有规避西学人类学的神学关联及过度渲染古希腊特殊性的倾向，更存在以“文化”概念“消化”文野关联的问题。要扭转这类倾向，克服这类问题，应有选择地丰富古典旧人类学有关“中间环节”的看法。     

事实性与有效性:现代法律的重建及其方法--哈贝马斯的法学方法论初探

重建现代法律的合法性基础,是哈贝马斯法律理论的基本目标.为此,他首先用交往理性取代传统的实践理性,然后通过普遍语用学将其交往行动理论、商谈论与法律理论联结起来.事实性与有效性的区分构成了哈贝马斯法律理论的基本分析方法.他基于法律中事实性与有效性之间的紧张关系,提出现代法律的合法性问题,主张引入商谈论来调和这种紧张关系,从而形成了其独特的法律有效性理论.     

论题学的法律方法论意义

作为法律方法的一种,论题学方法虽然长期受到忽略,但这种研究在20世纪后半期得以回归。论题学法律方法是在具体个案场合,经过讨论或论辩,给出论据,解决法律问题,并由此成为当今法律论证方法中的一种。虽然存在一定的局限性,但论题学方法对我国法学与法治均有重要启示意义。

Abstract：

As a kind of legal method,the method of propositional study has been neglected for a long time,while this study revives in the later half of the 20th century.This method can be defined as to present arguments through debate to solve legal problems in concrete cases,and thus the method has been a kind of method in legal argument.Although there still exists some defects,it has important significance to legal theory and rule by law in China.     

社会工作视角下的失地农民社会保障问题研究

失地农民的出现,使建立失地农民社会保障制度迫在眉睫。本文通过从社会工作视角界定失地农民,分析失地农民社会保障问题,提出了社会工作视角下解决失地农民社会保障问题的新思路,即,将失地农民社会保障纳入社会工作实务;为失地农民提供法律援助和心理咨询服务;总结失地农民社会保障的执行经验,提出修订建议。     

On the inference rules in legal logic

推论规则是逻辑学研究的核心内容。法律逻辑是一门应用逻辑,但它并不是形式逻辑的推论规则在法律领域中的简单运用,而是形式逻辑的推论规则加上法律领域中的特殊推论规则的结果。因此,法律逻辑中的推论规则与形式逻辑中的推论规则相比,既有共性的一面,又有个性的一面。其共性表现为形式逻辑的基本推论规则是构成法律逻辑中的推论规则必不可少的组成部分,其个性表现为法律逻辑中有着与形式逻辑中的推论规则所不具有的特殊推论规则——证明责任规则。     

The Changing Mode of Legal Regulation of Labor Relations in China

At present, Chinese labor relations operate under a unitary model of legal regulation in which labor law is applied to workers “as a whole, with everyone treated equally.” This causes a number of problems. In reality, due to constantly changing modes of employment and the flexibility of workers’ “affiliation,” forms of employment are highly diverse. In addition to regular employees, there are also “quasi-employees” (employee-like persons) whose affiliation is quite weak, and other special employees. This necessitates the updating of the legislative thinking behind labor laws. While holding fast to the assumption that workers are a vulnerable group, we should review the differences between different types of employee and draw up the corresponding regulations on the basis of specific situations. Where legislative technique is concerned, we should do away with the traditional one-size-fits-all legislative model in favor of a dedicated model that targets particular types of subject and particular circumstances. We should abandon the traditional old-fashioned model in which “all labor law provisions apply” or “no labor law provisions apply” and categorize employees in such a way as to provide special rules for quasi-employees, special employees and employees of special employers. The legal regulation of labor relations should be based on categorization and differential treatment.     

从英美国家保险利益原则的理论发展看我国立法之完善

英美保险法至保险利益原则确立以来,对其法理有着“法定关系理论”、“实际利益理论”、“存在合法关系的实际利益”这三大理论。而“法定关系理论”、“实际利益理论”并不能解决保险的应有目的,“存在合法关系的实际利益”理论更符合历史潮流。我国现有保险法在人身保险合同中采用的是“法定关系理论”,在财产保险合同中,保险法未明确规定,在实践中适用的是“法定关系理论”。从英美国家理论发展的现状及国情,我国保险法在人身保险合同中不应适用经济利益理论,在财产保险合同中,应适当运用经济利益理论。     

Rules of behavior and expected utility theory. Compatibility versus dependence

Conclusions We have seen that many decision rules which are intuitively and/or empirically supported and compatible with MEU, are compatible with it but not dependent on it.There are of course rules of behavior which are implied in MEU and also depend on it like this:If the hope of winning any of the prizes in a lottery motivates you to buy a ticket, and if you win half the amount of the highest prize, you should play double or nothing with your prize.Suppose you would prefer a one in a million chance of winning $2 million to a two in a million chance of winning $1 million, but your first choice is not available so you buy a ticket for $1 million. If you win, you should play 50–50 double or nothing with your prize. Generalize: put x in the place of $1 million and p in the place of 1/1 000000, and test yourself against this principle (Pf = preferred to): (p, 2x)Pf(2p, x) (0.5, 2x)Pf(1, x).See Friedmann and Savage (1968).In the real world lotteries are multiprize, i.e., composite games of elements like these. The same applies: If you would not have preferred the highest prize exchanged for a higher probability of some lower prize, then winning a lower prize would put you in the market for some simple bet like above. If you stand up to this test, you are a unique person because, as we know, such bets are not made.While in the process of finishing the final draft, I got hold of (Samuelson, 1983). He expresses grave doubts as to what he calls the dogma of Expected Utility maximizing. In a somewhat apologetic way, he preserves some formulations deriving behavior from EUM because, as he states in a general way, they do not depend on that particular dogma. More specifically: many models incompatible with EUM imply risk aversion, which would result also from maximizing the expectation of a concave utility function,In view of the authoritarian disposition of some of the strongest defenders of EUM and of Samuelson's (well deserved) authority and his leading role in the school of EUM theory, his open expression of doubt may well mark the beginning of the last chapter in the history of the rise and fall of the most powerful school that has so far been active in 20th century decision theory.     

Cultural evolution

In this paper I consider the problem of man's evolution - in particular the evolutionary problems raised when we consider man as a cultural animal as well as a biological one. I argue that any adequate cultural evolutionary theory must have the notion of adaptation as a central concept, where this must be construed in a fairly literal (biological) sense, that is as something which aids its possessors (i.e. men) to survive and reproduce. I argue against theories which treat adaptation in a metaphorical sense, particularly those speaking of the adaptation of cultures without reference to men. Iron tools per se are not better adapted than bronze tools - it is the men with iron tools who are better adapted than men with bronze tools. I show that by taking the approach that I do, one can apply at once in a fruitful manner some conclusions of biological evolutionary theory directly to men and their cultures. I conclude with a brief discussion of methodological issues raised by cultural evolutionary theories, particularly those of confirmation and falsification.     

Gender and insult in an Italian city: Bologna in the later Middle Ages

There are few studies of insult in later medieval Italy. This article aims not only to fill that gap, but also to show the value of applying one branch of modern linguistics to the evidence for medieval insult. The overall aim is to study the particularly gendered aspects of insult: what words and actions could men and women use against their own gender and against the other? The copious judicial archive of Bologna allows for extensive study of this phenomenon. The article falls into three parts: first, establishing the general pattern of insult; second, examining closely the strongest male term of insult; and finally investigating the practice of ‘doorscorning’, by which the doors of victims’ houses were defiled. To interpret the findings, methodological approaches are borrowed from anthropology, medieval legal theory and modern linguistics.     

The Cognitive Origins of Bourdieu's Habitus

This paper aims to balance the conceptual reception of Bourdieu's sociology in the United States through a conceptual re-examination of the concept of Habitus. I retrace the intellectual lineage of the Habitus idea, showing it to have roots in Claude Levi-Strauss structural anthropology and in the developmental psychology of Jean Piaget, especially the latter's generalization of the idea of operations from mathematics to the study of practical, bodily-mediated cognition. One important payoff of this exercise is that the common misinterpretation of the Habitus as an objectivist and reductionist element in Bourdieu's thought is dispelled. The Habitus is shown to be instead a useful and flexible way to concep-tualize agency and the ability to transform social structure. Thus ultimately one of Bourdieu's major contributions to social theory consists of his development of a new radical form of cognitive sociology, along with an innovative variety of multilevel sociological explanation in which the interplay of different structural orders is highlighted. In keeping with the usual view, the goal of sociology is to uncover the most deeply buried structures of the different social worlds that make up the social universe, as well as the "mechanisms" that tend to ensure their reproduction or transformation. Merging with psychology, though with a kind of psychology undoubtedly quite different from the most widely accepted image of this science, such an exploration of the cognitive structures that agents bring to bear in their practical knowledge of the social worlds thus structured. Indeed there exists a correspondence between social structures and mental structures, between the objective divisions of the social world . . . and the principles of vision and division that agents apply to them (Bourdieu, 1996b[1989], p. 1).     

Toward a theory of myth

James Cresswell provides a thoughtful critique of my essay on a theory of myth (Mills) with a specific focus on the nature of theorizing that challenges the dogma of empirical frames of reference, concluding that scientific theories themselves are contemporary myths. Insofar as myth is an attempt to provide a narrative or discourse about phenomena, Cresswell's argument could apply to any theory. But he takes this point further: theory is synonymous with myth. In order to unpack this evocative claim, it may prove useful to revisit how theory and myth relate to the concepts of logos, truth, ontology and identity. In the end, I suggest theory is not myth because theory sets out to describe, interpret and explain phenomena and is scrutinized for its validity, generalizability and applied consequences, while the premises of myth are often historically and culturally presupposed or simply devolve into belief that may or may not be defensible.     

马克思主义人学的实践唯物主义品格

当代马克思主义人学的研究必须注重它的实践唯物主义特征，这主要基于两个层次的理由其一，实践唯物主义是马克思主义哲学的本质特征，这是人学研究兴起的深层动因；其二，实践唯物主义与人学的研究领域有着共同的支点，即现实活动中的人。现实活动中的人是人学研究的中心内容，也是马克思主义人学的实践唯物主义品格的主要体现之处。     

Shape Shifting Capital: New Management and the Bodily Metaphors of Spiritual Capitalism

There is a burgeoning and increasingly institutionalized discourse within organizational theory and business practice dedicated to exploring the intersections of “religion” and “spirituality” at work. Turning especially to the broadly influential management theory of Margaret Wheatley, I locate “spiritual” management within a contemporary management ethos characterized by both an increasing interest in transitive phenomena and pre‐conscious understanding and the wholesale deregulation of industrial metaphors for society in favor of holistic, cybernetic and global metaphors for a networked society. Turning to the phenomenological and existential anthropology of the anthropologist, Michael Jackson, I argue that social theories, whether industrial or post‐industrial, can never claim a full and final grasp over the total processes of life itself. Methodologically, I argue that we might seek to attend to the personal and social dimensions of new “workplace spirituality” contexts by paying careful empirical attention to the practical deployments and personalizations of the lived metaphors of “spiritual” capitalism, considered for these purposes to be important “patterns of intersubjective experience”. What Jackson refers to as “phenomenological and existential deconstruction” has a political edge to it because it always seeks to force abstract theory into a more empirically grounded relationship with life as it is actually lived. As Marx and various critical theories have suggested, the particular experiences of workers often resist and confound the sanitized and universalized ideologies of capital.     

卡西尔与文化哲学的进路

卡西尔是新康德主义的殿军,他的思想仍未偏离康德哲学的重心——人的问题,他通过创造性地思考和解答康德提出的问题,把＂回到康德去＂这一目标推进到了一个新层次。卡西尔把康德的先验图式转化为对符号的劳作,赋予先验图式以存在论的意义,从而把人类的自我认识看做理解和阐释人类＂创造物＂的构造原理,揭示人类的精神形式的过程。洞察神话、宗教、艺术、科学的思维和表达形式,探究其中隐藏着的人类精神得以统摄的法则是文化哲学的任务。

Abstract：

Cassirer is the last important philosopher of neo-Kantianism confronted with the problem of human,which is the core of Kant’s thoughts.His creative thinking of and answer to the question posed by Kant promotes the aim of ＂going back to Kant＂ to a higher level.Cassirer transforms Kant’s transcendental schema into the work of symbols and endows it with ontological sense,thus the self-knowing of man could be seen as the process of discovering the spiritual forms through understanding and explicating principles in the creatures of human being.The aim of philosophy of culture is to have insight into the modes,formulas and rules hidden in myth,religion,art and science.     

法制下法治与法治下法制

法制下法治和法治下法制是两种不同的社会存在。法制下法治之治理主体单一,法治下法制治理主体多元;法制下法治依赖国家法正义观支持,法治下法制依赖多维正义观支持;法制下法治以人为治理客体,法治下法制则以人和法律同为治理客体。在特定历史阶段,法制下法治曾经起过积极的作用;但是随着社会发展,民主勃兴和社会转型的逐步推进,法制下法治已经成为中国法制建设的瓶颈,应为法治下法制的理论和实践所突破。法治下法制是多元法律规则并存于社会与依法办事之法治原则的结晶。通过各种法规则的冲突、互动和整合,法治自然会从理想走向现实。     

A.I.D. and Adoption: Some Comparisons

Summary This paper is an attempt to put forward for discussion someof the similarities and differences between adoption and artificialinsemination by donor, as attempts to solve the problem of childlessness.The legal position and the view of the Church are briefly summarized.It is suggested that work already done in adoption, particularlywith reference to telling the child, has relevance for A.I.D.,and that there are implications for social workers.     

How Rules Matter: Electoral Reform in Taiwan*

Objectives. This article is a test of general electoral theory in the case of Taiwan's 2008, postreform legislative election. In light of Taiwan's electoral reform, I test several hypotheses related to choice in electoral design and winning conditions, effective number of parties, proportionality, and regionalism. Methods. I run a simulation of the new rules and districting using the previous (2004) election results and compare this to the actual results. By comparing simulated and actual outcomes, I can compare theoretically‐driven, a priori expectations with election outcomes. Results. Primary findings are that a dominant seat share for the Nationalist Party, decline in third‐party representation, and disproportionality were largely predicated on the transition to a majoritarian system. Conclusion. General electoral theory holds robust predictive power in the case of Taiwan.