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JOURNAL OF ZHEJIANG UNIVERSITY 2014 Vol.44 Number 3
2014, Vol.44 Num.3
Online: 2014-05-10

Article
 
Article
1
2014 Vol. 44 (3): 1- [Abstract] ( 364 ) [HTML 1KB] [PDF 429KB] ( 1108 )
5 Xiao Lang
A Study on the Origin of the Thought of Invading Asian Countries in Modern Japan : Fukuzawa Yukichi and His Idea of″Departure from Asia and Attachment to Europe″

The idea of″Departure from Asia and attachment to Europe″appeared in Japan in the late 19th Century,and Fukuzawa Yukichi was its main advocator .As the most famous enlightenment thinker and educator in Modern Japan,Fukuzawa Yukichi's propaganda of enlightenment around the Meiji Restoration,particularly his introduction of modern Western culture and education and criticism of Confucianism,had a significant impact on the modernization process of Japan .However,like many other historical figures,Fukuzawa Yukichi also had noticeable historical limitations .He fully accepted the modern Western historical perspective on″Civilization″and the idea of″Europe-centeredness″and developed the thinking patterns of″Civilization equals Europe and America,″″Barbarism equals Asia,″ and″Removing Confucianism equals departure from Asia,″which laid a theoretical foundation for his idea of″Departure from Asia and attachment to Europe .″ In his early works like On Encouraging Learning and A Summary of Comments on Civilization,Fukuzawa Yukichi initiated his theory of international relations on the principles of″Generally acknowledged truth″and″Righteousness,″believing that″Reason″was more important than″Power .″ Whereas,due to the profound influence of the Western historical perspective on″Civilization″and idea of ″Europe-centeredness,″he regarded Western civilization as the only standard and criterion of evaluating ″civilization,″and then acknowledged and embraced the perspective on″Dual structure″in the theory of international relations .Thereupon his ideology changed from advocating″Reason″to upholding″Power .″ He began to preach mighty politics and power diplomacy,totally losing the right understanding and grasp of the truth . In fact,″Departure from Asia and attachment to Europe″is beyond a simple geographic concept,because″Asia″and″Europe″here represent two opposite standpoints .The reason why Fukuzawa Yukichi devoted himself to the propaganda of enlightenment and educational activities in his early years was to call on Japanese to improve their spiritual quality and protect″Independence of state″through ″Independence of individual .″However,along with the above change of ideology,Fukuzawa Yukichi began to advocate that Japan should join the camp of European and American powers and carve up China together,showing that his remarks and actions had changed from the standpoint of″the victim of the invasion″to that of″the invader .″In 1885,he published his article On Departure from Asia,which not only marked the appearance of Modern Japan's idea of″Departure from Asia and attachment to Europe,″but also pushed it to the direction of aggression .By propagating this idea,Fukuzawa Yukichi led Japan to stand among Western powers and join their colonial wars of carving up Asia and China,and objectively guided Japanese public opinion for the outbreak of the Sino-Japanese war of 1894 1895 .

2014 Vol. 44 (3): 5-19 [Abstract] ( 1053 ) [HTML 1KB] [PDF 1538KB] ( 2426 )
20 He Zhongli
A Study on the Non-Military Tactics Adopted by the Government of Song Dynasty to Deal with Civil Uprising
The governors of Song Dynasty attached great importance to settling internal troubles,considering them the biggest threat to the regime .Compared with previous dynasties,they took more non-military tactics,chiefly by offering amnesty and enlistment to rebels to deal with civil uprisings although they also adopted a combination of military cracking down and non-military appeasement .The tactics worked well in quelling the uprising of Wang Xiao Bo and Li Shun,of Song Jiang and of Zhong Yang and Yang Yao .There were many reasons behind the tactics : (1) Large numbers of troops were transferred to the borders to resist the invasion of Liao from the north and to fight against the Western Xia regime in the west during Northern Song Dynasty,and the invasion of Jin and Mongolia during Southern Song Dynasty . Since the day of its foundation,Song Dynasty had tried to strengthen the chief military forces and weaken local military forces,leading to the extreme shortage of military reserve at the state and prefecture levels .Consequently,the state did not have enough military forces to crack down civil uprisings . (2) Deeply influenced by the″policy of benevolence,″the scholar-bureaucrats of Song Dynasty had a deeper understanding of the fact that oppression led to rebellion and therefore tended to take non-military tactics to quell the rebellions .(3) The cost of military cracking down was too high,and it had serious sequelae as well .The non-military tactics met the demands of civilians and prevented massive turmoil .It ensured the safety of the lives of the people,reduced property loss and prevented damage to economy and culture,all of which were conducive to the stability and development of the society .In this regard,it has positive significance .However,in essence,like the military cracking down,it is a matter of expediency as it did not eliminate the roots of civil uprising .Each time the uprisings were quelled,the situation was brought under control and the crisis was over .However,all the social conflicts which brought about the civil uprising were still there,and in due time,larger civil uprisings would break out .History proves that because of the ills inherent in the feudal system,non-military tactics did not always work,nor could they resolve fundamental social conflicts .
2014 Vol. 44 (3): 20-32 [Abstract] ( 682 ) [HTML 1KB] [PDF 1491KB] ( 2610 )
33 Zhou Shengchun Chen Qianqian
The Institutional Changes in the Succession and Governance of Family Business : A Case Study of the Succession of Hukaiwen Ink Family Business

In recent years,ranking lists like″The World's Oldest Family Companies″have attracted the attention of Chinese entrepreneurs and academics although not a single Chinese family firm is included in the lists .In contrast to the″Primogeniture″tradition in Japan and some European countries,the″Coparcenary″tradition in China has been considered as an important reason for the short life of Chinese family businesses (like a Chinese proverb goes,″from rags to riches and back to rags in three generations″) .However,the fact is that there was a considerable number of long-surviving family businesses in Chinese history,but for reasons of war and political movements,they lost control over their businesses .For example,the Hukaiwen family's ink business,which was founded by Hu Tianzhu from Huizhou in the period of Qianlong Emperor,was one of the four most renowned family-run ink businesses during the Qing Dynasty . Even today,Hukaiwen is a famous ink brand and can be seen in cities all over China .The Hu family business successfully achieved family inheritance for six generations,becoming the most influential ink brand in the late Qing Dynasty .Therefore,the main characteristics and elements of the successful inheritance of long-surviving family businesses like Hukaiwen Ink are worth studying today . We obtained the primary sources,such as the Hushi Jiushu (Book of the Division of Property of the Hu Family) and Hu Genealogy in our field study .Based on an in-depth analysis of the materials,combined with a case study and the analytical paradigm of institutional economics,the present research concludes that the most important factor in the successful inheritance of the Hu family business across six generations can be summarized as″dividing the property without dividing the business .″To be more specific,the land,real estate,retail shops and other family property were converted to eight shares according to their current prices,after which the eight sons of Hu Tianzhu inherited the property equally in the form of capital .A partnership system was thus formed within the family business,which also conformed to the ″Coparcenary″tradition .Meanwhile,Hushi Jiushu,according to which only the second and seventh sons inherited the two ink factories,also regulated the operation of the family business . This practice continued the″Primogeniture″in the management and operation of the two factories .Besides the shares they held,the two sons received a salary for managing and operating the business .This arrangement led to further institutional changes in the management of the family firm .In order to keep control over the business,these two heirs hired family or non-family agents to manage the business while the ownership remained with the core family members .In practice,to some extent,this arrangement realized the separation of ownership and management in terms of property rights .This institutional arrangement and the changes in the management structure are good examples of the modernity of Chinese family businesses . There is growing concern about the succession issue in Chinese family-run businesses today,as the second generation of entrepreneurs is maturing and becoming ready to take charge .The present organizational and management systems in Western family businesses are closely related to their institutional and non-institutional factors such as history and culture .Likewise,Chinese family businesses are also faced with issues like route dependence in the Chinese history and culture .More research into the successful inheritance of family businesses in the Chinese history,together with lessons from Western enterprise systems,will have implications for the succession of contemporary family businesses in China .The successful inheritance of the Hu family business is not an isolated case;instead,it was a common phenomenon in Chinese history .The historical materials of this research are limited in number,and there remains great scope for further research into this topic .

2014 Vol. 44 (3): 33-43 [Abstract] ( 532 ) [HTML 1KB] [PDF 1586KB] ( 1876 )
44 Ye Jianliang, Liu Ze
Industrial Heterogeneity and Anti-dumping Actions :Evidences from China,India and USA

Why are anti-dumping measures frequently used in some industries,but rarely used in others ? The existing researches have not yet invested sufficient efforts in analyzing and interpreting the significant differences across industries in a country's anti-dumping actions . Based on the antidumping and industry-specific data of China,India and USA from 1997 to 2011,we set up empirical models to investigate how antidumping appeals and adjudications are affected by the heterogeneous properties of different industries .We constructed variables,including the trading competitiveness of industries,their productivity,market structure and political influence,to capture the heterogeneities,and adopted the panel regression methods of Poisson distribution and classified assessment .The empirical results indicate that : (1) The higher import penetration,the larger impact of imports on the industry concerned,which corresponds to an increase in the number of anti-dumping lawsuits and the passing rate of anti-dumping measures in adjudications .However,the higher export volume of trade,the lower passing rate in anti-dumping adjudications,that is,in anti-dumping ruling the administrative authority will take the issue of trade retaliation into account . (2) The higher productivity of the industry,the smaller impact of its imports,thus the lower number of anti-dumping lawsuits .However,the passing rate of anti-dumping adjudications indicates an inversed-U shaped relationship with industrial productivity .In other words,to protect the industries the anti-dumping ruling of the administrative authority must be weighed against the efficiency loss .When the efficiency of a particular industry is low,the administrative authority will reduce the willingness to protect;on the contrary,higher industrial productivity results in less necessity of anti-dumping protection . (3) The number of anti-dumping lawsuits has a U-shaped relationship with the degree of market monopoly .It turns out that the industry with more number of enterprises and more scattered distribution of their scales will suffer more from the impact of imports,thus the frequency of anti-dumping lawsuits will be higher . As industry concentration increases by numbers of enterprises decreasing,the crowding-out effect of import on small enterprises would increase the profit of leading enterprises,thereby reducing their willingness to file anti-dumping proceedings . When the degree of market monopoly is high,the crowding-out effect of import on small enterprises decreases,and leading enterprises will be faced with greater competition,thereby increasing anti-dumping lawsuits .The higher concentration of the industry possessing,the larger the political influence on administrative authority,and hence the higher passing rate in adjudications . (4) The political connections of an industry will not affect the frequency of anti-dumping lawsuits,but they will significantly increase the probability that the administrative authority may rule and implement anti-dumping measures .And such kind of results are not affected by national differences . This paper provides evidences and preliminary conclusions for further in-depth research on industrial factors which affect anti-dumping actions .It also provides a possible framework and a theoretical basis for export countries in terms of how to circumvent anti-dumping sanctions .

2014 Vol. 44 (3): 44-57 [Abstract] ( 378 ) [HTML 1KB] [PDF 1494KB] ( 1179 )
58 Wang Zhongming Xue Yuanhao
The Theory Building and Empirical Analysis of Intellectual Property Entrepreneurship Capability :A Multi-Case Study Based on High-Tech Firms

In the knowledge-based economy,intellectual property (IP) has become a primary means for companies to protect innovation,gain profit,and enhance competitiveness .Particularly for high-tech entrepreneurial companies in the changing technological and business environment,managing and using IP effectively could bring them new competitive advantages,and differentiate their growth path from others .Under the background of the industrial transformation and upgrading in China,facilitating IP-based high-tech entrepreneurship becomes a national strategy . However,how to build up IP Entrepreneurship Capability (IPEC) of companies to accelerate their growth and development is still unclear to both researchers and practitioners . The existent literature has explored IP management,strategy,and capability issues from various angles,but they are mostly based on giant companies'static practices,paying little attention to the dynamic entrepreneurial process,and lacking of theoretical construction and empirical validation .This study adopted the entrepreneurial capability perspective and used the″exploration-transformation-exploitation″organizational learning theory to develop a framework,aiming to capture the key elements and characteristics of IP entrepreneurship process in high-tech firms . A multi-case study based on replication logic was conducted .Data were collected from three national high-tech firms through in-depth interviews,observations and company archives .By doing within-case analysis and cross-case comparison,three dimensions of IPEC have been identified as the capability of IPEC :acquiring,retaining and utilizing . Acquiring,consisting of internal creating and external assimilating,depicts the process of getting IP;retaining,including IP protecting and system building,refers to the process of managing IP;utilizing,including product utilizing and IP-right utilizing,involves the process of achieving and maximizing the value of IP .The three dimensions are interrelated and complementary to each other .Acquiring capability is the basis for high-tech companies' long-term growth,utilizing capability is the key process to ensure their short-term performance,and retaining capability provides supports to the other two by managing and protecting companies' knowledge assets . Lacking any one of the three would jeopardize high-tech companies' growth .Therefore,a balance is needed among the three capabilities during high-tech companies'development .In addition,by comparing our findings with the existent literature,we found that Chinese high-tech companies were different from their western counterparts in the way of utilizing the value of IP .IP owned by Chinese companies is frequently used to apply for government subsidies and awards,while licensing,cross-licensing,and trading are the major strategies employed by western companies regarding the use of IP .Possible reasons of this difference,such as legal environment and policy factors,were discussed based on the interview evidence .The theoretical contributions of this study are threefold :First,we bring the entrepreneurial capability and organizational learning theories into the field of IP management and entrepreneurship,which extends the existent understanding of this research topic .Secondly,through the multi-case study,we identify the key dimensions and characteristics of IPEC,which provides the basis for future quantitative researches .Thirdly,we uncover different patterns between Chinese and western companies in their IP entrepreneurship practices,which might be a direction for further cross-cultural comparisons . Meanwhile,our research findings also provide some guidelines for Chinese high-tech entrepreneurial companies to improve their IP practices as well as to facilitate their growth .

2014 Vol. 44 (3): 58-70 [Abstract] ( 617 ) [HTML 1KB] [PDF 1517KB] ( 1353 )
71 Zhang Gang Chen Jiale
Corporate Governance,Organizational Ambidexterity and Corporate Performance : An Empirical Study Based on the Panel Data of US and China Listed Companies

In order to survive and develop in the fierce global competition,firms are supposed to be both efficiently responding to the demands of the short-term market and innovatively adapting to the long-term market,which requires organizational ambidexterity .The″structure″within the existing researches on the impact on organizational ambidexterity refers to the organizational structure rather than the governance structure .There are mainly two conflicting ways towards the understanding of the relationship between exploration and exploitation,i .e .,trade-off or orthogonality,and until now researchers have not arrived at any consensus .Since previous studies on organizational ambidexterity have ignored the importance of corporate governance and the ambiguity of the relationship between exploration and exploitation,this study tries to explore the relationship between governance structure and corporate performance from the perspective of the effect of the trade-off and orthogonal relationship between exploration and exploitation,thus revealing the mechanism of corporate governance impact on both short-and long-term performances through the balancing effect and combined effect of exploration and exploitation . In this paper,the panel data of US and China listed companies cover the years 2006 2011 . The FLGS is adopted to avoid the bias of autocorrelation and heteroscedasticity .The following findings indicate that in the US samples,both monitoring and incentive alignment of corporate governance have positive effects on the balancing effect of exploration and exploitation while in the Chinese samples,incentive alignment has positive effects on the balancing effect of exploration and exploitation but monitoring a negative impact,that is,the higher the monitoring,the less balance between exploration and exploitation .This may be due to the relatively low level of exploratory behavior in China,which is difficult to increase at present .As a result,with the high level of monitoring,the agent has to increase exploitation to cope with the increased use of strict monitoring without much improvement of the exploration level,thus leading to the larger gap between them .Neither monitoring nor incentive alignment has an evident effect on the combined effect in both American and Chinese samples,which demonstrates that the combined effect is far more difficult to achieve than the balancing effect .In the American samples,the balancing effect and the combined effect of exploration and exploitation positively influence both long-term and short-term performances,while in the Chinese samples,it is only the balancing effect that plays a positive role in both long-and short-term performances but the combined effect is evident only on short-term rather than on long-term performance,which seems to show that the balancing effect instead of the combined effect is suitable for China at present .The mediation role of the balancing effect between corporate governance and the long-and short-term performances has been partially proved,but the mediation role of combined effects has not been found .This study is an extension of the existing research about organizational ambidexterity,and provides a comparison of corporate behavior differences between US and China listed companies . Owing to the limited data availability,one shortage of this paper is that there is only one variable to represent incentive alignment .Future research may use more variables to test the hypothesis .

2014 Vol. 44 (3): 71-87 [Abstract] ( 420 ) [HTML 1KB] [PDF 1568KB] ( 1349 )
88 Guo Bin Guo Lin Wang Yueqi
Repeat Purchase and New Product Diffusion :The Role of Product Complexity

New product diffusion has long attracted the attention of both industrial practitioners and academic researchers .However,most of the literature is based on first-purchase analysis rather than on repeat purchase study .In fact,repeat purchase may have strong influence on new product diffusion in terms of diffusion scale and diffusion speed .As such,it is worth noting that in the literature,researchers disagree about the influence of repeat purchase on diffusion scale . We argue that such disagreements can be largely attributed to the neglect of the impact of product attribute .In addition,the influence of repeat purchase on diffusion speed is much less examined in the literature .Thus,this paper attempts to simultaneously investigate the impacts of repeat purchase on diffusion scale and diffusion speed,as well as the potential moderating effect of product complexity on the relationship between repeat purchase and new product diffusion . In doing so,we use Netlogo 4.1.3 to establish a multiple-agent model with a scale-free network structure based on the model in Peter van Eck,Wander Jager and Peter Leeflang (2011) .This model extends the basic model in the following aspects .First,we introduce the perspective of product complexity into the analysis of the influence of repeat purchase on new product diffusion .Second,by incorporating the negative effect of word-of-mouth and the dynamic process of knowledge transfer in new product diffusion,we employ a three-stage model to simulate the adoption behavior of new product users .The three stages are realizing the emergence of new product,deciding whether to take the new product,and deciding whether to make repeat purchase or to stop new purchase and spread the negative effect by word of mouth .Third,we include both informational influence and social influence in our modeling . The results reveal several interesting findings that are different from those in prior studies . First,on the one hand,although prior studies claim that the scale of new product diffusion increases with the higher rate of repeat purchase,this study finds that while repeat purchase does increase the diffusion scale,such a positive effect is not linear,i .e .,the influence of repeat purchase on the diffusion scale does not increase significantly when the rate of repeat purchase increases .On the other hand,at low levels of repeat purchase rate,the increase of repeat purchase may not be positively associated with the increase in diffusion speed .On the contrary,in the scenarios where the levels of product complexity are high,the increase of repeat purchase can even lead to the decrease of the diffusion speed .Second,this study reveals the importance of product complexity for new product diffusion .The influence of repeat purchase on diffusion scale will become stronger as the product complexity increases .By contrast,with the increase of product complexity,the influence of repeat purchase on diffusion speed will become less significant .What is more,lower levels of repeat purchase have a negative impact on the diffusion speed .On the whole,the results imply that the breadth of adoption (in terms of networking effect) is more decisive to the diffusion of new products with high levels of product complexity,whereas the depth of adoption (in terms of repeat purchase) is more crucial to the diffusion of new products with low levels of product complexity .

2014 Vol. 44 (3): 88-99 [Abstract] ( 485 ) [HTML 1KB] [PDF 1497KB] ( 1110 )
99
2014 Vol. 44 (3): 99- [Abstract] ( 209 ) [HTML 1KB] [PDF 0KB] ( 26 )
100 Zhang Zhengping
The Theory of Sentimental Justice :Back from Poetic Justice to Scottish Enlightenment
In the last several years,some Western ethicists have been seeking for the theoretic meaning of Scottish Enlightenment from different aspects,especially the doctrines of″sympathy″ and″the spectator″promoted by those Scottish thinkers which enlighten the modern thinkers with their reconstruction of a theory of justice . Following Adam Smith's doctrines of spectator,Martha Nussbaum applied the imagination and sympathy in literary criticism to her construction of poetic justice . She proposed in her book that people should regard the imaginative and sympathetic poet as a judge of justice .Amatiya Sen also emphasized the significance of moral sentiments for justice in his book The Idea of Justice .The theory of justice based on passions and sentiments has gained approvals,but has also raised doubts about its″applicability″to the public life . In response to these doubts,the paper attempts to trace back to the theoretic origins of poetic justice,or in other words to the theories of moral sentiments in Scottish Enlightenment so as to analyze the principles of the theory of sentimental justice and its applicability to reality . There are two parts in this paper .The first is concerned with how David Hume and Adam Smith understood and used the notion of sympathy from the perspective of the theory of spectator . Hume regarded sympathy as a medium for the transfer of passions among mankind and analyzed the different interactions of passions while Smith believed that sympathy not only is a capability for human beings to communicate but also plays a role of approval or disapproval .Following the analysis of these two Scottish thinkers' doctrines of sympathy,the second part discusses their respective theories of economic,political and judicial justices .Hume linked justice to property and explained the emergence and the enforcement of justice upon people's sympathy for the interested passion,and illustrated how mankind performs justice in a political society .Smith more explicitly discussed economic and political justice in the historical context,and argued for the principles of justice,especially the principles of judicial justice based on the human nature and function of sympathy . It should be acknowledged that there are many differences between Hume's and Smith's sentimental doctrines based on 'their own systems,but it should also be acknowledged that there are many similarities and continuations between these two thinkers .It is these similarities and continuations to some extent that constitute a unified theory of sentimental justice in economic,political and judicial fields . There is a correspondence between this empirical sort of sentimental justice and the doctrines of sentiments in traditional Chinese ethics .Several years ago,Li Zehou,a very famous modern Chinese scholar,proposed emotion ontology,and conceived for the Chinese society a harmonized order with emotions as the base point .Compared with Li's broad philosophical framework,Hume's and Smith's theories of moral sentiments seem more concrete and practical,and are more compatible with China's situation . This paper introduces Hume's and Smith's reflections on economic,political and judicial justice by a textual analysis of their writings in order to show the probability of applying the theory of moral sentiments in China . That is why the author expects Chinese scholars and legislators to cast their eyes on the ideas in this paper .Limitation of space,however,prevents me from discussing the relationship between sentiments and the construction of societal orders,which is an equally important part of the theory of moral sentiments and is worthy of further discussion .
2014 Vol. 44 (3): 100-114 [Abstract] ( 830 ) [HTML 1KB] [PDF 2599KB] ( 1026 )
115 Han Fuguo Song Daolei
Qionggen (Roots of Poverty) and Fanshen (Economic Revival) :A Study on the Reproductive Mechanism of Rural Elites after the Second Rural Reform in China

During the second rural reform in the 1980's,the rural economic reform,market economy and urbanization exerted an important effect on the reproduction structure of China's rural elites .Our studies of Village A,Village B and Village H in Shandong Province of China demonstrate one characteristic of the regenerative or the reproductive mechanism of the rural elite after reform and opening up .The″New Rural Elite″(cultivated by the Communist Party of China after 1949) and the″Traditional Rural Elite″(the rural elite before 1949) have experienced enormous changes .The continuation of generations exemplifies the endogenous change of the contemporary rural structure .One longitudinal study shows that the″New Rural Elite″and their descendants broke the″QionggenCurse,″or the poverty curse,while the″Traditional Rural Elite″ and their descendants have achieved Fanshen,or economic revival .The contemporary rural social structure has been reshaped by the new generation of the two elites .The former relies on the resources,chiefly the political power,of the political system,and the economic resources of other institutional arrangements . Their generational succession is then realized by turning these resources into economic support .The latter,on the other hand,relies on the rediscovery of cultural and economic resources .During this process of revival,″verbal instruction,″i .e .family teaching by personal example and verbal instruction,is the main recessive mechanism to pass on their characteristics,although the″dominant″economic and power resources play an important role .The verbal instruction is essential for the traditional elite to increase their descendants' human capital and acquire new economic resources and social capital,and to eventually acquire cultural resources to achieve a non-agricultural social identity .With the development of the market economy and the rapid urbanization,the two groups of elites are now relying on the same cultural resources educational opportunities for their children to achieve an urban identity,no matter whether their traditional reproduction has been achieved with political resources or cultural capital accumulation .In addition,the rural marginal population may resort to violence to acquire resources and become the″quasi-elite,″which impacts the rural elite structure,but further study is needed to track their reproductive mechanism .This research tries to bring up some open topics in the process of China's urbanization :Will the generative and regenerative mechanisms of the contemporary rural elite change in the future ?Will they succeed in achieving non-agricultural identities ?These are the crucial issues for rural governance and supply-related policies in the future .

2014 Vol. 44 (3): 115-130 [Abstract] ( 532 ) [HTML 1KB] [PDF 1557KB] ( 1218 )
131 He Zhipeng
Why Sound Law and Good Governance Are Equally Important : The Criteria of International Rule of Law Revisited
The term international rule of law is frequently used not just by scholars throughout the world,but also by many government officials and international organizations . However,the exact meaning of this term is far from clear .Controversies exist not only in whether the status of rule of law is desirable and possible in the international arena,but also in whether the main elements of international rule of law is simply the form of the legal process,or,substance of law also included .To put this in another word :do we wish to have international rule of law which emphasizes only on good governance,or both sound law and good governance ? Such a controversy stems from the debates in the legal philosophy on what should be included in the term″rule of law .″Since Aristotle,the first expounder on rule of law in human history,the term has long been accepted as requirements on sound law and good governance .And the wide spread discussion on the rule of law by Albert Dicey provided a more detailed factor on both sides .However,with the impact of legal positivist,legal philosophers like Joseph Raz takes the position that the rule of law should be only conceived as a set of requirements on the form and process of law,but not an overall requirements on the social morality of law per se as well as the operation of law .The traditional view is regarded as a thick understanding on the rule of law,and the new view is regarded as a thin understanding . The author is in the position that international rule of law should be thick instead of thin . This position is mainly based on the general conception that the rule of law should not necessarily be limited in form and process of law .Viewing form the history of the rule of law,the practice does not really show the progress from thick meaning to thin,but rather from thin meaning to thick .The thin understanding for the rule of law in the history of Europe resulted in disastrous consequences during the Nazi period,and resulted in the revitalization of natural law school in legal philosophy . Modern experiences in many states also proved that sound law and good governance link together closely,it is very hard to enforce a law which is not good in moral sense or technical sense,and strict application of law itself could not be accepted as the rule of law if the legal rules are not reasonable . Further,the author argues that,even in some highly developed legal territory in the Western society the rule of law may be understood in the thin way,it could not be the case for all states in the world,nor for the international community .The main reason for this argument is that the social values in law have been generally agreed by the Western society with the evolution of history as well as a common background of religion .The tension between fairness and efficiency,between human liberty and social order,is quite obvious in many societies,especially transitional societies .Without a perfection of law in its moral concern,it is not possible that the society may realize the rule of law in its true sense . The international society as a common consensus is a primitive society,and therefore,international law is in a primitive stage .The first hindrance we meet in international rule of law is the fragmentation of international law .Since there is no organization and normal hierarchy in international relations,the competence and coverage of international institutions may conflict in many ways,and consequently conflict in social values,as free trade and protection of environment,financial innovation and financial security . Hence,the primary concern of international society is to reach more consensuses on social values and make more good laws to reduce the conflict of the rules .Another thing in consideration is that enforcement measures of international law and international judiciary are quite underdeveloped,as not all international institutions are equipped with procedural facilities . Most international legal rules are merely ethics and codes for activities in international affairs .If we stress the formal requirements in international rule of law only,we will have to ignore many such rules and thus neglect the progress in international law in many aspects .Moreover,there has been a tension between sovereignty of states and dignity of individuals as the core value of international law and international society for a long time,such issue is reflected in the debate in″humanitarian intervention″or the newly emerging″responsibility to protect″as well as the contention on the negotiation in the WTO with different views of industrialized members and developing members,and this reality calls for a settlement of substantial controversy first . In conclusion,we may say that in the international society formal rule of law cannot be realized without the development of substances embodied in the rules .Good governance and sound law are the two sides of one coin,could not be virtually divided,and are equally significant .
2014 Vol. 44 (3): 131-149 [Abstract] ( 570 ) [HTML 1KB] [PDF 1663KB] ( 2047 )
150 Zhao Jun Liu Yun
The Transparency Reform in International Investment Arbitration and China's Reactions

In recent years,the confidential nature of arbitration between a host state and an investor of another state (an investor-state dispute) has been questioned .The status of the state determines that it is naturally linked with public interests of the host state .In accordance with the principles of good governance,these kinds of governmental activities need to comply with the basic requirements of transparency and public participation .The main purpose of transparency reform is to promote openness and public participation in arbitration so as to make up for the defect which originates from its confidential nature . Particularly,the reform mainly includes the following aspects : (1) the commencement of proceedings,(2) access to documents during the proceedings,(3) public hearings,(4) amicus curiae briefs,(5) the final award and (6) exceptions to transparency for protection of confidential or other privileged or protected information . NAFTA took the lead in making an attempt in improving transparency,and the U .S . and Canada made relevant regulations in their Model BIT . ICSID Arbitration Rules has also highlighted transparency in its 2006 amendments,and moreover,UNCITRAL adopted the″UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration″in 2013 . The reform aims at enhancing the transparency of the arbitration process so as to ensure the public's right to information,which will to some extent urge the arbitrators to make the decision prudently,and therefore strike a balance between the rights and interests of investors and host states .This provides a good opportunity for China .However,challenges come up as well .How to keep a better balance in the institutional design ? How to seize the initiative on transparency requirements during negotiations of treaties and other international rules ?Furthermore,transparency rules might have significant impact on China's legislation,judiciary and law enforcement,etc . In order to deal with the challenges brought up by transparency reform,China should change its mindset to support the basic requirements on transparency .Even though international arbitration rules already encompass certain transparency requirements,it is still necessary for China to make stipulations on transparency in the BITs or FTAs .In crafting specific provisions,we need to be aware of the application of the most-favored-nation clauses to procedural issues,protect the privileged or protected information and appropriately limit over-participation of amicus curiae .Additionally,transparency rules provide certain helpful reference for our country .We shall take advantage of this opportunity to cultivate nongovernmental organizations as a soft power,so as to better safeguard public interests,and to establish/improve the information disclosure and citizen participation mechanisms with respect to environmental issues and other public interests .

2014 Vol. 44 (3): 150-163 [Abstract] ( 1383 ) [HTML 1KB] [PDF 1497KB] ( 3028 )
164 Chen Linlin Yang Hua
Attitude-based Judicial Decision-making

As a representative of the empirical theory of judicial decision-making,the attitudinal model will be helpful in understanding the″open area″in hard cases,as well as answering the questions like how judges act,why are they acting like this,what will be the consequence of the action,and what intellectual instruments will be the most appropriate for the analysis of these issues .If we use the attitudinal model to predict the decisions of the Supreme Court of the United States,the accuracy is far above average .Among the various interpretative theories of the decision-making of the U .S .Supreme Court,the attitudinal model is dominant at present . The starting point of the attitude theory lies in the standpoint that judicial decision-making should not just depend on the application of the″right″legal rules .When deciding hard cases,the judge has a lot of discretion,and the exercises of discretion are directed by the judge's own views on public policy and rights .Judicial decision-making depends on three variants :(1) The facts of a case .This is the common core of both the attitudinal model and the legal model .However,the differences between the two models are that the legal model considers the facts in combination with legalism while the attitudinal model allows the Justices to vote by applying personal policy preference to the fact conditions .(2) Attitudes or policy preferences .They are the key in the attitudinal model .(3) The interaction between facts and attitudes .According to the analysis of the voting results from the Supreme Court and the Federal Courts of Appeals,judges'policy preference and votes are positively correlated,that is,the Justice appointed by a Democratic president are likely to vote in favor of the liberal wing while the Justice appointed by a Republican president will tend to vote for the conservative wing .No matter what method is used to determine the judges' political tendency and no matter which rank the judge belongs to in the judicial hierarchy,this presumed political tendency can always be found,and can explain to a large extent the variation of judges'votes on political issues . The attitude theory explains that when deciding hard cases,the judges make their decision not only depending on facts but also on policy preferences .Accordingly,the traditional normative decision-making theory,or the so-called″legal theory,″is generally thought to be lacking in explanatory ability and unfalsifiable,and is thus not″scientific″enough . The legal model theory claims that judicial decision-making depends on the following variants :the facts of the case,the Constitution and the statutes,the original intent of the framers of the Constitution,and the precedents .However,whether the judge in a judgment tends to be conservative or liberal,or whether he supports the plaintiff or the defendant,he can find support in the Constitution and the statutes,the original intent of the framers and numerous precedents .Therefore,the attitude theorists argue that the legal model would not provide adequate explanations for the final decision and that it is unfalsifiable . As with legal realism,the attitudinal model reveals the irrationality in judicial decision-making . Nonetheless,the attitudinal model emphasizes the practice of treating the irrational factors in a rational way and has constructed a judicial decision-making theory which can provide explanation and prediction . Yet the attitudinal model is not applicable to a massive number of cases .Besides,the phenomenon of ideological drift among Justices is also a point difficult to be explained by the attitudinal model .This is because the attitudinal model assumes that when the Justices make decisions,they submit to their policy preferences,and meanwhile the institution and rules relevant to the judicial process also authorize them to vote according to their own preferences in the open areas produced in hard cases .Although this theoretical logic has its practical foundation,it also has blind spots,since it only pays attention to the authorization given by the institutions and rules to the Justices but ignores the restrictions that institutions and rules impose on the Justices in their decision making .In quantizing the voting behavior of the Justices,the attitudinal model defines the ideology as judges' partisanship . This yes-or-no quantification of the attitudinal model is crude because it portrays judges as″politicians in robes,″and is thus destined to be a partial judicial decision-making theory .

2014 Vol. 44 (3): 164-174 [Abstract] ( 1706 ) [HTML 1KB] [PDF 1485KB] ( 2107 )
175 Wan Bin Liu Yanchao
The Political Meanings in Skeptical Philosophy

From the view of the source of philosophy,rationalism and skepticism constitute two different ways and contexts of philosophical thoughts .In each subsequent course of development,rationalist philosophy moves gradually towards dogmatism,monism and realism because of its commitment to the pursuit of certainty .Under the influence and inspiration of modern natural science achievements,rationalist philosophy attempts to build a perfect earthly paradise in the world by virtue of the political methods,but results in bad political consequences of totalitarianism .As another branch of philosophy,skepticism takes questioning and critiquing rationalism as its own responsibility and mission from the beginning,examining and deconstructing the various forms of dogmatism which rationalism may bring . Therefore,to explore and reveal the political implication of skeptical philosophy has the positive significance and value for preventing and weakening the excessive effect of rationalism in politics to a certain extent . ″Suspicion″is a word implying″exploration″and″reflection .″Therefore,skepticism refers to a kind of exploration spirit which has the characteristics of profound reflection,not only in the narrow sense referring to the rational arrogance and rashness,but also in the broad sense examining the various objects and established conclusions in the world .Skepticism refuses blind confidence and obedience,reflects on humankind and their living world,with a questioning and critical attitude,carrying on continued inquiry and reflection to a variety of seemingly self-evident premises and bases of established conclusion for clarifying concept,straightening out logic and ascertaining conclusion .We can even say that skepticism is more in line with the original meaning of philosophy : loving wisdom . Since the Sophists,skepticism always exists implicitly or explicitly in the entire development history of philosophy . As to questioning and deconstructing the political idea of rationalist philosophy,skeptical philosophy makes the opposite principles to refute it . First,rationalism has an optimistic,positive attitude towards human nature,believing that human nature can be perfected;but skepticism holds a pessimistic,gloomy impression for human nature,denying the possibility of human nature's perfection .Second,rationalism believes that reason is omnipotent,therefore it can realize the comprehensive control and planning for nature and society;but skepticism holds that reason is limited,and it should be used moderately,without going too far . Third,rationalism believes that there exists a perfect way of life for everyone which can surely be realized eventually;but skepticism believes that the human way of life is full of varieties and differences ontologically,and there is no perfect way of life for each individuals . Skeptical philosophy reminds that humans in the political field should express their ability as human,raising political objectives prudently,exercising political power moderately and treating political speech tolerantly . Just as to prevent rationalism from moving to dogmatism,we should also prevent skepticism from sliding into anti-rationalism in the epistemology or nihilism in the theory of value because of its continued doubting attitude .

2014 Vol. 44 (3): 175-186 [Abstract] ( 704 ) [HTML 1KB] [PDF 1475KB] ( 1463 )
187 Cheng Yong
An Aesthetic Utopia :The Confucian Institutional Aesthetic Thought and Its Inherent Predicaments
The Confucian institutional aesthetic thought developed from its vision of″external kings″ (wai wang) .It took the construction of the aesthetic institution as its core concern and aesthetic utilitarianism as its keynote .The positive influence of Confucian aesthetics on the construction of the Chinese literary and artistic aesthetic institution could be traced back to Han Dynasty .From then on,the institutional aesthetic thought gradually converted into the aesthetic ideology of the dynasty-state . However,during the Pre-Qin period,the ideas of Confucius,Mencius,and Tsunzi had constituted the basic framework of the institutional Confucian aesthetic thought . Confucius was enamored of the ritual(li)-musical(yue) civilization of Western Zhou Dynasty,and tried to base its new foundation on the origin of value,hence the sprout of Humaneness(ren) and imagination of an aesthetic utopia .From the perspective of Humaneness(ren),the ideal state of political practices is aesthetic,whereas the essence of the reconstruction of ritual(li)-musical(yue) civilization is an aesthetic utopia whose prospect and realization are both aesthetic .Literary and artistic aesthetic is thus given a sort of root .In this case,it is necessary to make constructive plans about its types,approaches and quality by setting up institutions of politics,society,and education . Mencius went further by describing an ideal society of″benevolent governance″(ren zheng),which is the argument for an aesthetic utopia of inherent human nature and external national politics .In Mencius'view,ideal politics should be in accord with the harmony of″heaven″(tian),″human nature″ (xing) and″human mind″(xin),and the ultimate purpose of building a state institution is to achieve moral perfection .In this aspect,literary and artistic aesthetic is the important constructive force in the realization of ideal politics .Intellectual elite,on the other hand,are the carriers and practitioners of Confucius institutional aesthetic thought . Integrating″rites″(li)and″law″(fa),Tsunzi paid more attention to the construction of literary and artistic aesthetics,as its reasonable appeal cannot be based on human consciousness,but on the standards of the institutions of politics,education and society .Tsunzi emphasized the positive impact of aesthetic construction on upholding state subjectivity,and the co-generative relationship between literary and artistic aesthetics and state order .However,to ensure the aesthetic life and state will,corresponding functional departments must be set up and operated by Confucius intellectual elite .The essence of Confucius aesthetic utopia is the cultural transformation of ritual(li)-musical(yue) civilization of Zhou Dynasty,while Confucius institutional aesthetic is the aesthetic life plan for ideal politics .The latter is cultural aesthetics as well as political aesthetics .Accordingly,aesthetic issues must be discussed and solved along with cultural and political ones .But the development of cultural aesthetics could be hampered by this thought,aesthetic utilitarianism and Saint-King ideology .Thus,the institutional construction of literary and artistic aesthetics becomes an ideological machine to filter ideology,and the Confucius aesthetic utopia is doomed to be an ideal model of politics,culture and aesthetics .
2014 Vol. 44 (3): 187-199 [Abstract] ( 1670 ) [HTML 1KB] [PDF 1519KB] ( 2298 )
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