Biological Structure and Embodied Human Agency: The Problem of Instinctivism

Charles R. Varela, Biological Structure and Embodied Human Agency: The Problem of Instinctivism, pp. 95–122.
Hebb's conception of instinctive behavior permits the conclusion that it is just not human nature to be instinctive: while the ant brain is built for instinctive behavior, the human brain is built for intelligent behavior. Since drives cannot be instincts, even when a human driver becomes driven, human motives are not instincts either. This understanding allows us to dismiss the determinism of the old instinctivism found in Freud's bio-psychological unconscious, and of the new instinctivism, exemplified by Wilson's sociobiology. The latter entails an explanatory shift from instincts to genes, in which the deterministic character of instincts is carried over to genes. Since genes are not instincts this is a mistake.     

Fully Unconscious and Prone to Habit: The Characteristics of Agency in the Structure and Agency Dialectic

While the human agent must have the capacity for reflexivity, intentionality and consciousness, the same agent must also be affected by the social world in which she lives: herein lies the essence of the structure and agency dialectic. This paper argues that while some realists are in principle committed to a dialectical relationship between structure and agency, there is some dissonance between this commitment and the concepts of agency that they develop. I highlight the exclusion of the unconscious and habit from realist notions of agency and argue that this oversight serves to unbalance the dialectic between structure and agency thereby leading to the over‐empowerment of agency. The concepts of agency developed by Margaret Archer, Anthony Giddens and Pierre Bourdieu are discussed in this paper. Archer's concept of agency is argued to focus exclusively on reflexivity whilst neglecting to include the unconscious and habit. Giddens is shown to develop a much improved concept of agency, which includes the unconscious, however, his rejection of the independent causal powers of structure and agency problematises his commitment to the dialectic. A much improved approach to theorising agency, developed within a critical realist framework, is offered drawing on Bourdieu's concept of habitus. The paper concludes with a discussion of gender, and considers how the unconscious and habit can help to better understand the myriad ways in which gender functions in society.     

The Role of Structure in Effective Agency Advocacy

Structured accountability at every agency level is essential for effective advocacy. The Lancaster model illustrates this. The structure requires commitment to the advocacy issue, clear role definition for staff, board and community members, mandated involvement of staff, board and community members (clients, professionals and people who have experienced the problem), and documentation and evaluation throughout the process.     

The Institutional Construction of Collective Contracts under the Labor Contract Law: Dilemma and Solution

The Labor Contract Law classifies collective contracts as special labor contracts, ignoring the fundamental differences between collective contracts and labor contracts. This has plunged it into jurisprudential obstacles and institutional difficulties. In terms of the main entities, efficacy, dispute settlement mechanisms, etc. collective contracts have their own institutional characteristics. They should be incorporated into the legislative framework for collective labor relations in future legislation, and should link up with trade unions, collective consultation and collective dispute settlement to form a complete system of collective labor law.     

Structure, Agency and Social Transformation

Revisiting the structure/agency debate, the article puts forward the broad position shared by Giddens'structuration theory and Bhaskar's transformational model. It defends Giddens'concept of structure as'rules and resources'against charges of idealism, arguing that its strength is its focus on the interface of structure and agency. But both Giddens and Bhaskar emphasise social reproduction as an unintended consequence of social action. Taking issue with postmodern pessimism, the article goes on to consider the conditions of possibility, and requisite forms of knowledgeability, for deliberate social transformation.     

投资劝诱的金融私法规制:困境及出路

投资劝诱是金融机构销售投资性金融产品时的主要营业行为,是金融机构成功销售金融商品的主要途径。从私法视角考察,投资劝诱法律本质是一种要约邀请行为;从金融商品销售规制的法理来看,强化私法规制尤为重要。现行金融基本法律规范中缺乏金融消费者的合同撤回权制度,损害赔偿责任制度的适用亦存在诸多困境。治本之策是完善金融特别法律规范,在投资性金融产品销售法律规范中全面引入"冷静期"制度,并完善损害赔偿责任制度。而治标之策是依据民法总则、合同法和侵权责任法等一般私法规范和原理,对投资劝诱这一民事法律行为的效力和相关民事责任进行法理解释从而实现规制。     

A Legal Structure for Limiting the Agency Cost of Stock Rights Transfer

股权表决权能的单独处分会减损其他股东的福利,资本多数决之下限制或者禁止股权转让的合约安排可能会侵害股东的退出权,进而减损股权市场对高管的制约力量,间接推高管理层滥权谋私的代理成小。在创设股权转让的法律结构时,必须任合约自由、资本多数决与降低代理成本之间求取妥当的平衡。法官应认定投票权转让行为无效,以保证投票权与剩余索取权匹配,并保持股东投票权之于高管的约束功能。章程概括性地禁止股权转让,阻塞了股东退出权,不利于遏制控股股东与高管潜在的滥权行为,当属无效。法官必须本着长期契约与短期契约、章程初始条款及修订条款的差异化视角,区分各类限制股权转让的章程约定的效力。     

A Legal Structure for Limiting the Agency Cost of Stock Rights Transfer

The unilateral disposition of stock rights’ voting rights detracts from the welfare of the other shareholders. Contractual arrangements restricting or prohibiting the transfer of stock rights under the capital majority rule may infringe upon shareholders’ right of withdrawal, further weakening stock market constraints on senior management and indirectly raising the agency cost of management abuse of power for private ends. In creating a legal structure for stock rights transfer, we need to find an appropriate balance between freedom of contract, capital majority rule and reduction of agency costs. Judges should determine that the transfer of voting rights is invalid in order to ensure that voting rights match residual claim rights and maintain the constraints on senior management represented by shareholder voting rights. The general prohibition of stock rights transfer in the articles of association blocks shareholders’ right of withdrawal; this is not conducive to restraining potential abuses of power on the part of senior management and should be made invalid. Judges must differentiate between long- and short-term contracts and the initial and revised clauses of the articles of association in order to distinguish between the efficacy of different arrangements limiting transfer of stock rights as laid down in the articles of association.     

信任困局的破解路径：中蒙俄经济走廊建设的非正式制度供给与软法合作

在中蒙俄经济走廊建设过程中,无论是中俄之间的政热经冷问题,还是中蒙合作过程中存在的蒙古国民族主义问题,其症结恰恰在于中俄、中蒙合作过程中的信任不足上。信任是人际交往得以顺利开展的关键要素。推进中蒙俄经济走廊建设,必须考虑制度层面的对接,必须通过制度构建,促进中蒙俄三国人民的民心相通,建立起民间的互信。通过增强非正式制度供给,能够加强中蒙俄三国民众的互信。强化中蒙俄三国的软法合作,是增进中蒙俄三国民众相互了解、促进制度对接、助力经济走廊建设的有效路径。     

政府生产成本控制的困境、突破与协调

政府生产成本有其特定的内涵.由于垄断、生产特性、缺乏价格检验机制和缺乏激励动力机制等原因,政府生产成本面临困境.在公共服务的提供、安排和生产等方面,民营化理论和治理理论的宏观视角是寻求控制生产成本的理论突破.当然,在控制过程中,政府生产成本还必须与管理工具、政府交易成本等相协调.     

The Canadian Agency for the Oversight of Research Involving Humans: A Reform Proposal

In this paper, I propose the creation of a Canadian agency for the oversight of research involving humans. I describe first a series of significant problems with Canada’s current system of oversight. I then argue for the creation of a national-level agency, covering all research involving humans, with three branches (policy and standards, education, and compliance). Of particular note, the proposed compliance branch consists of a number of independent national and regional Research Ethics Boards (i.e., REBs no longer reside within institutions). There is also an Audit Committee and a Non-compliance Committee (with supporting staff of auditors and compliance officers) to ensure compliance with the policies and standards set by the Policy and Standards Branch. Finally, I answer a series of “frequently asked questions” about the proposed agency design such as “What about ‘local context’?” and “Why not have a system of accreditation of institutional REBs instead?” In sum, radical reform is needed and, in this paper, I present a proposal for such reform.     

罗兴亚难民：孟加拉国的安全困境

作为缅甸的少数民族,罗兴亚人是全球公民权扩张的最大受害者。缅甸当局拒不承认他们的公民权或财产权,因此数以万计的罗兴亚人被迫逃往孟加拉国,给该国原本就不充裕的资源分配带来极大的压力,同时难民与伊斯兰教极端组织之间的密切联系又威胁着孟加拉国的国家安全。作为这些难民的第一避难所,孟加拉国不可能不顾国际道义,忽视对罗兴亚人基本人权的保护,由此导致政府陷入安全困境。     

Social Work Education: Tackling The Theory--Practice Dilemma

Summary The integration of theory and practice has long been a topicfor debate and concern amongst social work educators. A longitudinalparticipant observation study of one cohort of social work studentsconfirmed that the ideal of theory—practice integrationwas also high on their own list of self-established priorities.Students' efforts towards attaining this goal were also hamperedby the perspectives which they themselves brought to bear ontheir training. Attempting to resolve the conflict between theirown perspectives and their perceived demands of professionaleducation students appealed to and reconstructed afresh variousmodels of theory application endorsed both by social work educatorsand practitioners. These models, however, are essentially contradictoryand pose serious problems for the development and maintenanceof social work standards.     

Autonomous Agency in Anti-Dualistic Social Ontologies: A Compatibilist Notion

Anti-dualistic social ontologies, those highlighting the intrinsic interdependency of agency and structure as two sides of the same coin, are sometimes criticized for failing to provide a satisfactory account of autonomous – capable and free – agency, or even denying the reality of such agency. This paper contests these claims, arguing that anti-dualistic ontologies only conflict with autonomous agency when the latter is understood in a highly voluntaristic sense, whose ideational roots go to what philosophers of free will call “incompatibilist” intuitions of freedom. Those intuitions suggest that actions (intentions, decisions) ultimately determined by extrinsic causes lack the kind of freedom presupposed by moral responsibility, so when agentive autonomy is presumed to involve such freedom, it does indeed cohere poorly with the anti-dualistic picture of intrinsically structured agency. Herein, however, an alternative, “compatibilist” notion of autonomy is advanced, such that does not conflict with extrinsic determination and is therefore congruent with anti-dualistic social ontologies.     

Client Careers and the Structure of a Probation and After-care Agency

Summary This paper describes the results of a research project in whichthe first year's work of a newly-established Probation CourtIntake and Assessment Team was monitored. The subsequent changesin the practices of the probation officers are analyzed in relationto client careers and organizational boundaries; some implicationsfor social work practice are discussed.