Cultural assets are shared by individuals and society's views on the people they belong to. They are symbolic products produced by the interaction of many individuals in society, and all kinds of people may have certain characteristics. Doctor's knowledge may not be as good as master's, but in terms of classification, doctor's knowledge is generally wider than master's, and he generally has more cultural assets in society. This doctor will have an advantage in communicating with some strangers because of this cultural asset. It can be seen that although individuals will share the benefits of cultural assets, the basic function of cultural assets is social and owned by others. From the point of view of economics, cultural assets save the search cost or information cost for people to find and identify potential trading objects in voluntary transactions; Its function is somewhat similar to that of a trademark.
Limited by the scarcity of information and/or limited cognitive ability, each of us actually makes various initial choices with the help of the logo of a cultural asset at all times. Without knowing each other, one spouse often pays more attention to the other's education, family background, nationality, region or religious belief. When products cannot be tested, people are generally more inclined to buy products of well-known brands, including knowledge products; Many industries will require practitioners to have professional licenses, such as lawyers or doctors; These are all more institutionalized ways. There are even many non-institutional ways, for example, people will pay attention to clothes, speech, manners, accents, hairstyles, looks and any other obvious signs that may be related to identity, and choose members who belong to relatively more trustworthy groups in society to associate with them. For example, in an emergency, we often turn to people who look like policemen, soldiers, students, teachers or cadres. Therefore, from ancient times to the present, the society has strict rules and requirements on the clothing, dressing and behavior of some people or certain industries, from the past yellow robes and mandarin jackets to today's uniform robes. It is precisely in the face of such social needs that society will even arbitrarily, but not without reason, give certain cultural assets to natural sequences such as father and son or surname; Generally speaking, in transactions involving the interests of all members, fathers and brothers represent the family; Sometimes, people with big surnames play this role in local and even national politics.
The classification of this cultural asset is not fixed. Due to the changes in the means of communication and people's ability to process information, as well as the changes in the problems faced by society, society will continue to screen, identify, integrate and eliminate certain categories. Today, "surname" no longer plays this role, and surname can't bring any cultural assets to individuals who share it; The distinction between brothers, generations, officials and people, which was very important in those days, has also been weakened, although this distinction function still exists in many specific occasions. However, social changes have only changed but not eliminated the demand for cultural assets. Based on the new social needs and new information problems in all walks of life, some classifications are still based on cultural assets. For example, the degree system, professional title system, the difference between famous schools and non-famous schools, and so on. The same is true in business, such as famous trademarks and famous enterprises. Therefore, cultural assets should not be understood at the personal level, and cultural assets should naturally be equal to someone's characteristics and advantages. There may be cultural assets, but it certainly does not mean personal reputation or "word of mouth". Cultural assets are more dependent on categories, and categories are only general representatives, which do not always fully represent the actual ability or quality of a particular trader. It is generally believed that elder brother, as a social classification, has more social communication ability than younger brother, but this is not necessarily the case as far as a family is concerned; Nowadays, it is generally believed that graduates from prestigious schools are smarter and more capable, but in real life, graduates from prestigious schools are often not as capable as those from non-prestigious schools.
From the perspective of sociology and law, it is related to the information function of cultural assets, but independent of it. Therefore, in modern China, it is rarely discussed that cultural assets are an informal social control mechanism. Jun Jun chenchen and his son; Cultural assets have a certain restraining effect on the behavior of cultural asset sharers. Many studies show that, generally speaking, people who lack cultural assets tend to be less restrained in their behavior, while those who have more cultural assets tend to cherish their feathers more, and sometimes even become "fame and fortune". Daily experience also tends to confirm this; Common sayings such as "not afraid of shame", "men don't fight with women", "barefoot is not afraid of wearing shoes" and "a scholar meets a soldier" illustrate this point. In the commercial society, it is often unknown merchants who fake the goods of well-known merchants, not the other way around; When a large company has a marginal dispute with its customers, the former is generally more willing and eager to "reconcile" than going to court or making it public to the media. All these indicate that cultural assets have self-executing social control function. This function, in turn, will promote the reduction of information costs and ensure the safety of social transactions.
Due to the two most prominent social functions of reducing information cost and strengthening social control, cultural assets are relatively strange public goods: they are created by social needs and interactions, but they are attached to many similar individuals; Bring some benefits to these individuals, but they will not really be possessed by someone; Even, sometimes, society can revoke the cultural assets enjoyed by an individual, but it is impossible for society to revoke the cultural assets enjoyed by a group in a short time. The law cannot effectively intervene.
In view of the fact that society even artificially creates and pre-allocates cultural assets (for example, setting generations in natural order and allowing partial inheritance), it can be judged that cultural assets are scarce in social life. In addition to the above social functions and characteristics, the scarcity of cultural assets may also be due to (1) that at least some cultural assets have to prove that they are really different from other categories of people through long-term and consistent personal efforts, such as "township officials" and "stupid people" mentioned by Harry, and today's famous school graduates or doctors and masters; (2) Relevant information must be effectively transmitted to others in some way, which is very difficult in the traditional agricultural society; And (3) people's general awareness of self-prevention often leads to the characteristics of "good things don't go out, bad things spread thousands of miles" in information transmission. Scarcity will increase people's concern and care for cultural assets.
It is also necessary to examine the possible practical consequences of judicial handling of disputes over economic assets and cultural assets. In the dispute of economic assets, the problem is the ownership of property rights. No matter who it is allocated to, the disputed part of the property will not disappear. The transfer of property will not destroy the social value of goods, and the loss of one party is the gain of the other. Therefore, in the case of ambiguity, the only question worth considering is who is more efficient in distributing disputed property, or who is fairer in a more efficient sense. The judicial settlement of cultural property disputes is different. Cultural assets are not actually owned by individuals, but only the views of society on the groups to which individuals belong, so no judgment can transfer such symbolic assets between individuals belonging to different groups; In other words, it is impossible to change the respective ownership of both parties, and it will not bring the groups to which they belong closer (such proximity will only lead to fuzzy information). After winning the lawsuit of "appearance", in the eyes of others, the younger brother will not become or be closer to the elder brother as a social classification, nor will Wang become or be closer to the township official, nor will the cunning person become or be closer to the simple and straightforward person; Just as a similar judgment will not make a commoner become or get closer to the nobility or a non-lawyer become or get closer to the lawyer in the social classification. Of course, sometimes this judgment will dilute the differences between the types of traders to which the parties belong, but this dilution may not be what society wants. Due to the social function of cultural assets or the good nature of public goods, if diluted, it may harm others, and others cannot make use of these differences to conduct favorable transactions. Because, from the perspective of information cost, the bigger and more obvious the difference, the more beneficial it is for everyone, including both parties to the dispute, to find and identify potential trading objects accordingly; The smaller the difference, the more vague it is, and the more unfavorable it is for people to use this difference to find and identify potential trading partners. Therefore, it can be explained that although modern society seems to emphasize the equality of all people, in fact, modern urban society emphasizes the distinction between industries, positions and professional titles and the corresponding external signs or certificates more than traditional acquaintance society.
From the individual level of both parties to the dispute, the ruling may affect their respective "reputations"-a kind of cultural assets acquired through personal efforts. However, in the case of "arguing for appearances" mentioned by Harry, it is still impossible for an individual's reputation to be directly transferred through the judgment, but it will only damage the reputation of at least one party. Controversy may indeed increase the reputation of both sides, but because "good things don't go out, bad things spread thousands of miles", the result of controversy may even often be a loss of reputation.
Judging from the marginal utility of both parties, in related disputes, people with more cultural assets generally rely more on cultural assets and are more vulnerable in this sense; Once damaged, the loss is even greater. With the same amount of plagiarism, the harm to a professor is obviously greater than that to a student, and the harm to college students is greater than that to primary school students. Based on this, we find that the marginal utility of the same cultural asset to different cultural assets is completely opposite to the marginal utility of the same economic asset to different economic assets: the same cultural asset is more effective to people with more cultural assets, while the same economic asset is more effective to people with less economic assets. Therefore, in the case of cultural assets, we can only talk about the transfer and relocation of cultural assets in a metaphorical sense, and the actual result is often only the dissipation of cultural assets. From the perspective of social control, the cultural asset disputes and judicial "transfer" will lead to the dissipation of cultural assets, which in turn will damage the social control function of cultural assets. This constitutes the negative externality of cultural asset disputes and judicial disposal.
These characteristics make cultural assets actually non-transferable, which can also explain why personality rights such as identity and status are legally defined as non-transferable rights. The state often, through laws or social norms, "not only decides who owns this right first and how much compensation must be paid if this right is violated or destroyed, but also prohibits the sale of this right in some or all cases." ..... Non-transferability not only protects rights, but also restricts and regulates the granting of rights. "The law not only determines who owns what and what price to pay if it is taken away or damaged, but also regulates its sale-for example, by stipulating preconditions for effective transfer or completely prohibiting transfer".
By understanding these characteristics of cultural assets, we can see the profundity of IIB theorem and its implied strong economic pursuit, so IIB theorem can be further abstracted as follows: in vague cases involving non-transferable rights, judicial organs should choose the judgment with the least social loss. This points to more people giving priority to the protection of cultural assets, but since only ambiguous cases are involved, the distribution of cultural assets in this way has satisfied legal justice; Secondly, because the settlement of such disputes reduces the loss of various forms of social wealth, including cultural assets, it is possible for the originally scarce cultural assets to give full play to their social functions; In addition, it will encourage others to pay more attention to the cultural assets accumulated by investment, which will help to increase the total cultural assets of society. Under the social or social conditions where cultural assets are very scarce, this increase not only helps to reduce the information cost of society, but also helps to support and strengthen the social control function of cultural assets. This is a controversial Pareto optimal judicial distribution of cultural assets.
Theoretical arguments are always gray, but there are a lot of proofs in social life to support this experience summary. Both society and judicature always tend to give priority to trust in ambiguous situations, so as to strengthen and protect people or things with more cultural assets. For example, the protection of celebrity portrait right is different from the general protection of portrait right; The distinctiveness requirements of trademarks and the special protection of famous trademarks; Respect for professional experts; In temporary military and paramilitary organizations, the ownership of command is always stipulated by rank (or corresponding rank mark) rather than "ability"; In criminal cases, civil cases and daily life-although there are many formal or informal restrictions-character evidence and the words of personality witnesses are particularly allowed; In addition, Becker and Posner also mentioned two positive and negative examples in social practice: in traditional society, the family protected the "surname", but almost no one named Adolf after Hitler (this name has become a negative asset of a culture). Such examples can be said to be everywhere.
Therefore, although the "value judgment" of IIB Theorem and IIA Theorem are obviously different on the surface, the above analysis shows that, on the premise of adhering to Theorem I, that is, the principle of fairness, both of them follow the same economic logic, attach importance to the consequences of social wealth, and strive to maximize social wealth, and both require that the property rights of disputed assets be allocated to the side whose rights are obviously more inclined to the edge of judges. This is in line with Posner's theorem: "If the transaction cost in the market is too high to restrain the transaction, then the right should be given to the person who values it most". Therefore, Theorems IIA and IIB can be further integrated and summarized: the judgment of ambiguous cases should pursue the maximization of social wealth (or the minimization of social losses).