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Ye Hang: Welcome to LAM Raymond Evening Academic Salon held by ICSS! Most of the students present here tonight are students from the School of Law and Economics of Zhejiang University, and of course, students from other departments. This is a dialogue between economics and law. Economics and law itself have deep roots. Early moral philosophers, such as bentham and mill, all their works are classics of economics and law, and they are homologous. With the development of industrialization, these two disciplines have gradually parted ways and even become strangers. Since 1970s, marked by Posner's Economic Analysis of Law, there has been a trend of the integration of economics and law. Economists and jurists finally found once again that their respective research objects are intertwined and inseparable. Let's ask Professor Wang Dingding and Professor Lin Laifan to talk about their views on this.
Wang Dingding: Levin said that we can draw the theme of today's dialogue from "property right" and "property right". Because "property right" is a legal concept and "property right" is a popular concept in institutional economics or economics, is there a difference between these two concepts? Before I came, I looked through Posner's latest edition of Economic Analysis of Law (third edition) at home. According to the law school teacher, Posner used to be a law professor who was captured by our economics. Posner tells two examples in this book, which just highlights the difference between the concept of "property right" in law and the concept of "property right" in economics. Both of these examples are about intangible assets, and the result is a headache for jurists, but economists don't think this is a problem. One is intellectual property rights, especially intellectual property rights. Economists have no objection if you say that ideas have property rights. Property rights anyway.
In the eyes of economists, it is nothing more than three elements: the right to use, the right to income and the right to transfer. You can bind these three rights together or deal with them separately. For example, one of my ideas, you said that this is Professor Wang's intellectual property, and economists will not object. But jurists must deal with more specific issues, such as rights protection, tort and contract, and they will find it difficult to define this concept. Another example given by Posner is the auction of telecom channels. Economists may think that this is even less of a problem as long as the auction mechanism is well designed. But jurists have a headache, because the telecommunication channel is invisible and intangible, and it is the right of some kind of vibration in the air, which they think is difficult to define.
Lin Laifan: As we all know, the legal systems of continental law and common law are different, and the way of thinking, including some terms, is also very different. Posner's two examples are completely acceptable for the "property rights" of civil law countries. Both economics and law study property rights, but law is called "property rights" and economics is called "property rights". In fact, both English and Chinese are "property rights", so there is a difference when translated into Chinese. There is a kind of inheritance in the legal field, which is translated from the Republic of China as "property right" and still is. It is usually translated as "property right" in economics, politics and sociology. Is there a difference between "property right" in economics and "property right" in law? The "property right" mentioned in the law mainly refers to the "ownership" in modern times, and later this concept has been continuously expanded to be all-encompassing. If summed up in one sentence, the so-called property right is the right with property value. Specifically, property rights at least or mainly include four aspects: first, property rights, and ownership is a right in property rights. In the French mainland, property right includes usufructuary right besides ownership, and usufructuary right includes land use right, such as farmland use right in China; There are also superficies and neighboring rights, for example, we have the right of way to neighboring rights; Then there is security interest, such as mortgage and pledge, which is also a kind of property right; Possession is controversial. Domestic civil law scholars believe that possession is not a right, but a state. Wang Dingding: Real right is visible? ) also includes invisible, but it can be interpreted as visible in legal interpretation; For example, the telecom channel you just mentioned is interpreted as "matter" in some countries (Ye Hang: in the sense of physics. ) Yes, it is a kind of property right. The second is creditor's rights, and the most common is the right to form a contractual relationship. The third is intellectual property rights, that is, intellectual property rights you just mentioned; Intellectual property is a part of legal property rights, including copyright and patent right. In addition, that is, the fourth kind, is some rights formed by special law; Japan distinguishes between property rights in special law and property rights in public law. For example, property rights in special laws include fishery rights and mining rights. Property rights in public law include the right to use rivers. Rivers belong to the country, but we have the right to use them.
Ye Hang: If the developer builds a building and blocks the sunshine nearby, the residents nearby will sit on the construction site and demand "my sunshine comes back". What kind of rights are embodied here?
Lin Laifan: Legally speaking, this is a kind of lighting right.
Ye Hang: What's the difference between it and real right or property right?
Lin Laifan: We have no right to light a lamp. We can't just say your property. But you own a property-real estate, and you need lighting, so you have the right to lighting. What is involved here is not the definition of property rights, but the limitation of property rights. You have your property, I have my property, and the house you built blocks my sunshine. In fact, you abused your property rights. In fact, this is a conflict between property rights and property rights. How to mediate this conflict? The concept of lighting right has been established by law.
Ye Hang: So, what is the legal basis to define the rights of both parties? For example, the early gold mining rights in the western United States followed the "law of the jungle" at the beginning, and whoever was strong and ruthless, whoever won, belonged to him, and then there was legal intervention. Our country is in the stage of system transition, and many rights are lack of preliminary definition. Under public ownership, everything belongs to the state; Once resources are allocated to the market, they will encounter a series of problems. For example, in the water right transaction in Zhejiang a few years ago, Yiwu bought the permanent right to use 5,000 cubic meters of water resources of Hengjin Reservoir from Dongyang for 200 million yuan. However, this transaction was seriously questioned by Shengzhou, which is located on the other side of Dongyang. Shengzhou believes that Dongyang is actually selling the water that should have flowed into Shengzhou. This behavior harmed the interests of Shengzhou, so Dongyang City was brought to court. What I care about is, how can the law coordinate this conflict of rights?
Lin Laifan: Strictly speaking, traditional jurisprudence, especially jurisprudence in the sense of legal dogmatism, generally ignores the country before the emergence of norms. In other words, it did not consider how various forces struggled and played games before the legal norms came into being. However, after the formation of legal norms, we assume that this norm is reasonable and use this norm to adjust the subsequent conflicts and disputes.
Ye Hang: Suppose this is reasonable? What is the reason? If a gangster or fascist norm is formed, it is usually called "evil law". Is it reasonable? Should we also admit it?
Lin Laifan: In the past, legal positivism (though criticized, it is still a very powerful school) thought that law was an order, a mandatory order. Hart once criticized that this order is equivalent to the order of robbers, and the armed robbery of robbers can also form a norm. Later, people further realized that the ultimate value of law is justice. From the legal point of view, norms must implement the spirit of justice, and the interpretation, application and operation of norms must meet the requirements of justice.
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Ye Hang: This involves a crucial issue. Is the basis of law efficiency or justice?
Wang Dingding: Property right economists and institutional economists, including legal economists, believe that the basis of law is efficiency. Therefore, they think that ownership is an empty concept, and they like to describe ownership with the right to use, the right to benefit and the right to transfer. Because these powers embody the efficiency connotation of property rights. But ownership is a real concept in maintaining social justice, and it is not meaningless.
Lin Laifan: Early thinkers, such as Locke, believed that life, freedom and property were sacred and inviolable natural human rights. The early concept of property rights is the same in law, and I believe that economics and politics are the same. I think property right is sacred and inviolable, a natural right and an inalienable right. Later, people realized that property rights were actually set and gradually formed in the process of game. But law is law after all, and its ultimate value is the pursuit of justice, and it cannot be completely humbled by the contrast of power. In the process of the strong suppressing the weak, we should also listen to the "voice of God", which is justice. Today, most jurists believe that the value of law is actually diversified, including justice, order and purpose, human rights and, of course, efficiency. But more orthodox jurists, including me, think so. Efficiency can't keep up with the value of law and justice. Efficiency is a secondary concept. If justice is sacrificed, then efficiency will be terrible! In connection with China's recent constitutional amendment, I think the amendment of 14 reflects a spirit, and the era of one-sided pursuit of efficiency is over. I call it the end of the era of "some people get rich first". Since the reform and opening up 20 years ago, China's economy has been running efficiently and social progress has been very efficient. But we paid a lot of price, including the price of justice. Efficiency-oriented "economic imperialism" may be challenged, but this does not mean that the era of "economic imperialism" is over, and economics still has a lot of room for development. For example, many modern economists also attach importance to justice, and I know that brothers Ye Hang and Tintin attach more importance to justice.
Wang Dingding: What Levin said is Ross's view of justice, that is, freedom takes precedence over justice, and equality and justice take precedence over efficiency. This is Ross's ranking. I basically agree with you. In China after 1997, efficiency-oriented economics is faced with the task of solving social equity, which is a problem of political economy, so we have been talking about the possibility of rebuilding China's new political economy.
Ye Hang: In many cases, justice is only the premise and condition for the realization of efficiency. For example, we usually think that the market mechanism is the product of efficiency, but we forget that it is also the product of justice. If you don't respect and protect personal property rights, why exchange things through the market? I am stronger than you. Get your stuff. More efficient. But if anyone can grab it, no one will generate wealth, and in the long run, efficiency will be illusory. Therefore, it is very important to define a fair initial property right, which just reflects a long-term and dynamic efficiency. Therefore, the principles of justice and efficiency are inseparable.
Wang Dingding: The problem is that you just added the word "justice", which is not found in economics textbooks. It only admits that there is an initial property right, then we will establish a property right exchange mechanism, and then we can achieve efficiency by demonstrating Coase theorem. If we can't achieve efficiency, then we will abandon this exogenous cost, which is the cost right that hinders our transaction; Or, simply exchange these rights, such as the rights of gangs or lawyers. In short, you can use the market to prove that as long as we are allowed to trade, the world is beautiful and efficient, and the initial distribution is not important. As for whether this initial distribution of rights is fair, this is a question that economists are unwilling to answer.
Ye Hang: I have reservations about Coase theorem. Coase believes that if the cost of defining property rights is zero, then whoever defines property rights can finally achieve efficiency through the transaction of rights. Is this possible? Take Coase's own example, if the "right" of polluting rivers is defined to upstream enterprises, then all downstream residents should bid to buy this "right" from upstream enterprises; If this "right" is defined to the downstream residents, then the upstream enterprises will pay for the downstream pollution behavior. Can these two results be the same? Defining the pollution right to the upstream is not only inconsistent with the principle of justice of "giving priority to the right to subsistence", but also inconsistent with the principle of efficiency. In terms of operability alone, the efficiency of the two results is also obvious. Therefore, no government in the world will choose to let residents buy pollution rights from enterprises. In fact, in order to be efficient, we must uphold justice. Therefore, when we really look at problems with the internal logic of economics, or when we talk about problems with economics that we are trying to transform now, I think efficiency and fairness are inseparable. From a long-term and dynamic point of view, real efficiency cannot be achieved without the support of morality and justice. In this context, I think the goals pursued by economics and law are the same.
Lin Laifan: I am willing to accept this view. What I said earlier is the conflicting side of efficiency and fairness. In fact, they also promote and complement each other. As you said just now, considering efficiency may produce fair results; In fact, we can also say that considering justice will also produce efficiency effect. For example, as far as property rights are concerned, through the history of capitalist social development, it can be found that only countries whose economic freedom is guaranteed (including the protection of property rights) will get effective development, and the protection of property rights is actually the protection of efficiency.
Wang Dingding: It should be admitted that the current popular research on law and economics seems to be unable to answer the question of "the conflict between fairness and efficiency" in the past decades of development. There are two reasons for this phenomenon: first, economists generally don't realize that the concept of efficiency they use is actually only the concept of "Pareto efficiency", not the original concept of "efficiency" in economics, which can be defined as "every actor makes full use of opportunities". This limitation, in my opinion, makes the legal and economic analysis provided by most economists lose its legitimacy in the legal sense. Second, jurists, as Becker pointed out pessimistically recently, need about 20 years to be familiar with and popularize economic knowledge. Before they can skillfully use economic analysis methods, it is difficult for them to raise legal and economic issues with economic legitimacy within the scope of legal tradition.
Ye Hang: But I think this situation is improving effectively recently. Economists of "Santa Fe School" try to find a reasonable position for justice within the framework of mainstream economics. In a series of documents recently published by them, justice is not only endogenous to efficiency, but also an important condition for maintaining efficiency.
Wang Dingding: From the late 1960s to the 1980s, a group of scholars known as the Santa Fe School, including economists, sociologists, cognitive scientists and cultural anthropologists, conducted a series of economic experiments in 15 small societies in America, Europe, Australia, Asia and Africa, which lasted for 10 years. The most typical experimental situations are "the last spy game" and "the game of public goods". A series of research reports on the above experiments published by Kindis and Bowles show that a sense of justice is a human emotion that transcends a specific cultural tradition and a specific historical situation. Whether in a market-oriented society or a society unaffected by the market economy, researchers have observed a common phenomenon: the unfair distribution scheme proposed by Party A who participated in the "last spy game" was rejected by Party B, or in a society deeply influenced by the cultural tradition of "gift exchange", Party B rejected the excessively generous distribution scheme proposed by Party A.. This kind of life comes from the real society
The "last spy experiment" that many people participated in for ten years means that for most members of society, the value of "opportunity" that cannot satisfy their sense of justice to a certain extent will be greatly offset by the "injustice" contained in it. Buchanan believes that this is because the actor thinks that the "moral cost" of immoral behavior is too high, so it is irrational to choose these behaviors.
Ye Hang: Among a series of important documents recently published by the Santa Fe School, two are iconic. The first article is "Strong Reciprocal Evolution: Cooperation between Heterogeneous Populations" by Bowles and Kindis, published in the Journal of Theoretical Ecological Biology in February 2004. This document is actually a computer simulation report. The simulation environment is a human hunting and gathering society in the late Pleistocene 200,000 years ago, and the simulation conditions are set strictly according to the verified facts of paleoanthropology. The simulation results reveal that only by relying on a behavior called "strong reciprocity" or "strong reciprocity" can the early human society establish a stable cooperative order. The so-called "strong reciprocity" refers to those who do not hesitate to spend personal costs to punish those who betray the cooperative norms in the ethnic group, even if such betrayal is not directed at themselves. Therefore, in the terminology of "Santa Fe School", this behavior is also called "altruistic punishment", that is, "altruistic punishment". In fact, this is "being brave", that is, "helping others when the road is rough", and that is our sense of justice. Therefore, justice is actually the product of human cooperation order. The second document is Neural Basis of Altruistic Punishment, which was published in Science in August 2004 and is the cover article of this issue. This document is an experimental report of brain science and a further study after the last document. The question it wants to solve is, if strong reciprocal behavior plays such an important role in the establishment of human cooperation order, what is the mechanism driving this behavior? Because this kind of behavior is different from selfish behavior, it can't bring benefits to the actor. The correspondent of this document is Dr. ernst fel, director of the National Economic Laboratory of the University of Zurich, Switzerland, and a very famous economist of the Santa Fe School. Phil and his colleagues put forward a hypothesis: if strong reciprocal behavior cannot be stimulated from the outside, then the actor can only be satisfied through the behavior itself. In other words, this behavior is achieved through self-motivation mechanism. In fact, many behaviors of people and animals are realized through self-motivation mechanism. Brain science has confirmed that for higher animals, the mechanism of starting this behavior is completed by caudate nucleus and putamen nucleus of midbrain system. For example, our human addiction behaviors, such as smoking addiction, drug addiction and alcohol addiction, all involve this brain region. Therefore, this brain area is also called "opium reward area" in medicine. Dr. Phil speculates that if the strong reciprocal behavior depends on this self-motivation mechanism, this part of the human brain will be activated when this behavior is made, and the intensity of the behavior is positively related to its activity. Therefore, they designed a series of experimental scenes to stimulate people's altruistic punishment, and observed the actor's cranial nerve system through PET (positron emission tomography). The experimental results confirm this bold inference. The experimental report holds that the utility function defined by the social preference model should include the desire to punish for violating the norms of justice and cooperation, which can explain the actual behavior of human beings better than the traditional self-interest model. In the real society, most people will feel uncomfortable when they find that those behaviors that violate social norms have not been punished, and once justice is established, they will feel relaxed and satisfied. Before the establishment of modern police and judicial system, human beings have long relied on this kind of personal punishment to maintain social justice and social justice. In fact, the modern judicial system can be regarded as an alternative institutional innovation in the form of public goods. These two documents represent the most advanced research direction of economics. They pose a great challenge to the "economic man hypothesis" and "rational man hypothesis" in traditional economics, and provide direct empirical evidence for the concept of justice in traditional political philosophy and legal philosophy.
Wang Dingding: As a matter of fact, Hume has demonstrated the following views through the study of moral principles: all human moral emotions come from "sympathy". Our sympathy for pain inspires justice in our hearts, and our sympathy for happiness inspires kindness in our hearts. Smith's theory of moral sentiment further discusses the situational dependence, full knowledge and impartiality of "sympathy" A newly published brain functional imaging report shows that when subjects see their sympathetic subjects feel pain, their brain regions are activated similar to their own feelings of pain, but this brain region will not be activated when the empathy of the subjects to the real pain recipients is weakened to negligible time. This experimental report supports the main conclusion of a paper published in the mainstream journal of economics on 200 1-that participants who have strong sympathy for their opponents tend to adopt the strategy of "cooperation" or "gift giving". In fact, many reports in the field of brain functional imaging show us that individual moral emotions, including justice, impose very significant restrictions on individual choice through value ordering such as "preference".
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Ye Hang: How does the law define justice? Is it the same definition as Rawls?
Lin Laifan: Traditionally, the study of justice by law is similar to economics, politics, sociology and philosophy. When I gave lectures to graduate students and undergraduates, I summarized that there are at least 20 concepts of justice in law, of which five are the most important: formal justice, procedural justice and substantive justice, as well as so-called legal justice and fairness and justice. Among them, "substantive justice" is the most controversial. As Bodenheimer said, justice has an ever-changing face, that is, the face of the old man in the sea, which is elusive and difficult to grasp. Rothschild studied justice from the normative sense, mainly studying "substantive justice".
Wang Dingding: In order to give a concise explanation to the concept of "justice", perhaps we must return to Hegel's concept of law and justice. In the introduction of Principles of Philosophy of Right, at least, I realized that Hegel actually put forward the view that justice is the order in which my free will recognizes the free will of others, seeking the "civil society" defined by Kant, and ensuring that every citizen enjoys the same degree of freedom as other citizens. In the context of new political economy, justice first means that the society respects the freedom rights of every member of society, and secondly means the equality and freedom of all members of society. Therefore, as Arrow pointed out, society should respect each particular preference and make its respect for each particular preference consistent with its respect for other particular preferences. The above-mentioned view of justice is very different from that in the legal tradition. The latter, whether in ancient and medieval theological traditions or in the context of daily life, is usually expressed as "giving everyone what he deserves". In fact, in the history of economic thought before Smith, one of the core topics was the so-called "fair price", that is, the price that any commodity should get. Therefore, "substantive justice" should aim at everyone, as Kant said.
Lin Laifan: But for individual cases, "substantive justice" is difficult to identify, so whether to consider "substantive justice" in individual cases is controversial in law. For example, Harvard has a place to study. In order to select students, standards must be set. These standards must meet the requirements of justice in order to achieve what we call fairness. What are the criteria for selecting students? If academic performance is considered first, the possible problem is that a person's good academic performance may be due to his indifference to class affairs and lack of team spirit. "He doesn't listen to things outside the window, but only reads sage books", so this standard is not necessarily fair; So, should we consider moral factors? However, morality itself is difficult to quantify, and even if it can be quantified, there is still the possibility of unfairness; For example, do you want to give this opportunity to a student with family difficulties? Or, to a student who has little chance of going abroad? In short, there will be various standards, and you can't be sure which one.
Fairest; Perhaps, we can unify all these standards and find a standard that gives consideration to both academic performance and moral character.
Quasi-and also consider the standard of poverty? But you will find that we still can't get around the confusion just now, because you have to determine the weight of these three factors in the new standard. Therefore, "substantive justice" is difficult to pursue. This question was put forward by the international law circle before 1970s. Some people think that the law should give priority to "formal justice" and "procedural justice", or so-called "legal justice".
Wang Dingding: The reality in China is that we have no established "due process" and "proper form" or even "proper law". In the new society, the old system lacks legitimacy. In this case, we need normative research, such as Rojas' research, for our reference, and then find our own "procedural justice" and "formal justice" in China, such as unanimous vote. In fact, this is the choice of the public, including what the Brahmins said just now. This is the choice of the public in our new political economy. In a word, the conflict between fairness and efficiency seems to be the core topic of Analysis of Law and Economics. The correct way to solve this problem, in my opinion, should be the theory of public choice, not Posner's "economic analysis of law"
Lin Laifan: From a legal point of view, our problems in China are particularly complicated. As a native of China, after returning to the embrace of the motherland after an overseas trip, I found that the problems in China are becoming more and more complicated. For example, what China's laws lack so far is "formal justice" and "procedural justice", and some people in the legal field have suggested that our primary task is to establish "legal justice". The so-called "legal justice" means that what conforms to the law is justice, no matter who makes the law or how it is made. Personally, I feel that China is also facing the confusion of "substantive justice". Our economy has developed, but the gap between the rich and the poor is widening. In such a society, the issue of "substantive justice" is bound to be constantly raised. Besides conforming to "procedural justice" and "formal justice", we have to demand "substantive justice". For us, the modern topic has not been finished yet, and the modern topic is coming, and the post-modern problems are constantly emerging. We jurists bear the brunt and stand in front; You economists must be behind it!
Ye Hang: But we are only a few people who see or realize these problems. For most mainstream economists, they don't want to talk about morality and justice because they don't think this is what economists want to talk about.
Lin Laifan: So, I think it's very sad. Back to the original discussion on property rights, why do I just assert that the era of one-sided pursuit of efficiency is over? As far as our recent constitutional amendment is concerned, article 14 has been amended, and eight of them are about human rights. The most important thing is to write the protection of private property rights into article 10 of the Constitution. The issue of land expropriation has also been revised. This article overlaps with private property rights to some extent, but it is not completely repeated, which needs to be sorted out by legal hermeneutics. While protecting private property rights, a clause is written to define a social security system that is compatible with the level of social and economic development. Let's just say that the protection of property rights is to protect the interests of the rich or the newly rich, while the establishment of social security system is to protect the interests of the poor or the poor. The two exist side by side in the same constitutional text, and the relationship is very subtle. As far as the property rights protection clause is concerned, its provisions are also very subtle. Some people say that it basically adopts the theory of "three-layer normative structure" proposed by me in 1999. First of all, the declaration that citizens' legitimate private property is inviolable is the first layer of norms. We often say "inviolability", and "inviolability" was put forward by me. It seems that some economists mentioned "sacredness"? Wang Dingding: But there are also many people who are against it. The era of "sacred" and "pure" property rights is over. In modern times, we generally realize that property rights also have a "public * * *" or "social" side, so it is not sacred and can be restricted. The second layer of norms means that the state can protect private property rights according to law, that is, what is property rights and what kind of property rights should be protected, and its boundary and content should be defined by law. The third norm is that the state can requisition and collect private property and compensate it according to law for the needs of public interests.