On The Legal Institutional Design Strategies Related To Tragic Choices And The Concern Of Vulnerable Groups

This paper starts from the concept of "tragic choice".The tragic choice,according to Sen and Nussbaum,is a situation in which the choice of either option will dramatically destroy the rights of basic values.The vulnerable groups,under the effects of multiple authorities(such as Weber's "legal-rational authority" and "traditional authority")and multiple institutional rules(whether formal or informal),are the most helpless groups in the situation of "tragic choice",and they are also the subjects of this paper.The "tragic choice" can be attributed to the institutional design to a large extent,because it overemphasizes the disciplinary and incentive functions and pays little attention to the supporting functions of institution.In traditional legislative activities,lawmaker tries to directly replace the behavior preferences,decision rules of individual,in order to transform the choice and behavior of the individual as a result.However,since this method neglects the influence of informal institution and the cognition of subjects themselves,it is not always successful to achieve the expected legal effect.In order to solve this problem,it is necessary to stress the importance of the supporting function of institution.That's to say,we could change and extend the scope of constraint condition that subjects take into consideration while keeping the preferences and inner strategic rules of subj ects unchanged.In this way,the outcomes of the changed constraint condition and unchanged inner strategic rules of subjects are favored by the subject and are in line with the legislative aim as well.This paper seeks to explore the desirable institutional form for subjects,especially vulnerable groups facing "tragic choice" and other institutional subjects related to vulnerable groups.As human beings are born with imperfect characteristics,we are not only limited by bounded rationality and insufficient ability.We are often troubled by emotions.However,a desirable legal institution makes it possible:among all the options that a subject can choose,the one that is most favorable to him/her and most consistent with his/her personal planning is exactly the same one that the lawmaker expects him/her to choose,and the option conforms to social interests.This is the core and innovation of this paper.These are two strategies of this method:(1)Respect the inner rules of individuals who are of the vulnerable groups or who interact with the vulnerable groups.(2)Respect the evolution of institution by helping the vulnerable groups to win respects from others rather than imposing mandatory rules on others.