〈不必點開〉原創理論初稿（無需閱讀）working draft

Author: Jules Vela

Affiliation: Independent Scholar / Feminist Cultural Critic

Date written: 2025-09-05

First published on Matters: 2025-09-XX

© 2025 Jules Vela. All rights reserved. This article is an original conceptual framework.

It is posted on Matters solely as a public record of authorship and time of creation.

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Structural Traps of Power: Fishpond Effect, Hidden Monopoly Gate, Yin–Yang Monopoly of Rights, and the Ice‑Hole Dilemma

Author: Jules  Vela

Affiliation: Independent Scholar / Feminist Cultural Critic

Contact: [email protected]...

Date: 2025-09-05

Working Paper — SSRN Submission

Rights/License note: I, jules vela, am the rightsholder. I grant SSRN a non-exclusive license to post and distribute this paper. All rights reserved. No third-party figures are reproduced; external data are summarized with attribution.

Date written: 2025-09-05 · First posted to SSRN: 2025-09-06 · This version: 2025-09-06

Abstract

This paper advances a unified conceptual framework for diagnosing how modern institutions can simultaneously prohibit, tolerate, and legitimize systemic violence and exploitation. It integrates four original concepts: the Fishpond Effect (formal prohibition that functions as de facto encouragement), the Hidden Monopoly Gate (resources nominally public but accessed through a single opaque exit monopolized by elites), the Yin–Yang Monopoly of Rights (dual-track legality in which elites can deploy both formal and informal power while subordinates are constrained to formal rules), and the Ice‑Hole Dilemma (a designed false exit that converts structural coercion into pseudo‑voluntary compliance). Together, these concepts model the language–reality gap, the opacity of resource control, the stratified distribution of enforcement, and the manufacture of coerced voluntariness. Drawing on comparative illustrations from gender, caste, religion, corporate governance, and criminal justice, the paper specifies indicators, mechanisms, and policy levers, and proposes a research agenda that combines comparative sociology, discourse analysis, and formal modeling. The argument reframes ‘prohibition without punishment’ as structural encouragement, treats opacity as a political resource, and shows how designed exits fabricate consent. It contributes to critical legal studies, sociology of law, and gender studies by offering a portable toolkit to map, measure, and dismantle structural traps of power.

中文摘要

本文提出一套統一框架，用以診斷當代制度如何在「名義禁止—實際縱容—正當化」之間同時運行。四個原創概念構成此框架：其一，魚塘效應（法條上的禁止在效果上成為鼓勵）；其二，隱匿壟斷口（資源名義公共，實際以單一且不透明的出口被菁英壟斷）；其三，陰陽確權（雙軌合法性：上層可同時動用陽面與陰面權力，弱者僅受陽面規則約束）；其四，冰孔困境（由權力設計的「假出口」將結構性脅迫包裝為自願）。上述概念依序對應：語言—現實裂縫、資源控制的不透明、執法分配的階層化、與偽自願的製造。本文結合性別、種姓、宗教、公司治理與刑事司法的跨文化例證，提出可測指標、因果機制與政策工具；並規劃比較社會學、話語分析與簡式形式模型的研究議程。我們主張：「無懲罰的禁止」等同結構性鼓勵；不透明即是政治資源；「設計出口」可偽造同意。本文為批判法學、法律社會學與性別研究提供一套可攜行的分析工具，用以描繪、衡量並拆解權力陷阱。

Ethical / Legal Note

The composite vignettes included below are anonymized and non-identifying; they are constructed for analytical illustration and do not depict specific persons or institutions. The paper describes population-level mechanisms and does not offer clinical diagnoses.

倫理／法務說明（中文）

以下示例為匿名整合個案，僅作分析示意，未描繪任何可識別之個人或機構。本稿討論群體層級機制，並非對個體進行臨床診斷。

Keywords

Fishpond Effect; Hidden Monopoly Gate; Yin–Yang Monopoly of Rights; Ice‑Hole Dilemma; Dual‑track governance; Performative legality; Structural violence; Legal impunity; Governmentality; State of exception; Symbolic violence; Gender and law; Sociology of law; Comparative law; Normalized violence

1. Introduction

Across diverse regimes—authoritarian and democratic, religious and secular—societies frequently encounter a persistent paradox: law declares a practice forbidden while institutions tolerate it; resources are said to belong to all while access is controlled by a few; constitutions promise equality while enforcement stratifies by class and gender; and communities narrate consent where coercion has structured every choice. To analyze this syndrome without resorting to cultural essentialism or case‑by‑case moralism, this paper proposes a unified framework of four concepts that operate at different layers of the same political machine.

The four concepts are designed to be modular yet combinable. The Fishpond Effect models the prohibition–encouragement reversal at the level of public language versus operational routines. The Hidden Monopoly Gate models the opacity of access at the level of resource control. The Yin–Yang Monopoly of Rights models the stratification of enforcement capacity at the level of rights and remedies. The Ice‑Hole Dilemma models the manufacture of apparent consent at the level of individual decision under structural constraint. Together they explain how institutions can deny responsibility (‘we prohibit’), deny visibility (‘we are transparent’), deny inequality (‘we treat all equally’), and assert consent (‘they chose it’) while reproducing domination.

2. Positioning in the Literature

This framework synthesizes and extends several strands of critical scholarship. From critical legal studies, it inherits the insistence that legality is performative and that enforcement choices constitute the law’s real content. From governmentality studies (Foucault), it borrows the focus on techniques of rule that produce compliant subjects. From states of exception (Agamben), it recognizes how legal orders normalize exceptions and immunities. From symbolic violence (Bourdieu), it highlights how dominated agents misrecognize domination as necessity or virtue. Social‑psychological mechanisms—including moral disengagement (Bandura), dehumanization (Haslam), and the banality of evil (Arendt)—clarify how harm persists with ordinary compliance. Finally, feminist and intersectional legal scholarship (e.g., Crenshaw; Merry) demonstrate how gender, caste/class, and race concentrate the costs of these traps.

The contribution here is to package these dispersed insights into four portable, operational concepts with diagnostic indicators and policy levers, enabling comparative mapping across settings.

3. Concept I — The Fishpond Effect

3.1 Definition
The Fishpond Effect describes a language–reality reversal: a practice is formally prohibited (de jure) yet, through non‑enforcement, under‑enforcement, or selective enforcement, the practice becomes low‑risk and normalized (de facto). Prohibition without punishment ceases to be prohibition; it functions as structural encouragement.

3.2 Mechanism
Mechanisms include (a) refusal to register complaints; (b) delayed procedures that exhaust victims; (c) evidentiary thresholds selectively tightened; (d) plea‑bargaining or charge‑downgrading that systematically lowers sanctions; and (e) cultural narratives that minimize harm. These devices decouple public norms from operational routines, allowing institutions to claim prohibition while maintaining the practice’s availability.

3.3 Indicators & Measurement
Empirical indicators include: complaint‑to‑case registration ratios; case‑to‑conviction ratios; median time to disposition; sanction severity distributions; and cross‑group disparities. Text–practice divergence can be measured by comparing statutory scope with enforcement coverage, using administrative micro‑data where available.

3.4 Illustrations
Contexts where the Fishpond Effect is frequently reported include: domestic violence statutes accompanied by police refusal to register cases; sexual assault laws with chronically low conviction rates and heavy attrition; anti‑bribery laws amidst routine petty corruption; and labor standards overshadowed by systematic impunity in subcontracting chains.

3.5 Composite vignette (anonymized; for illustration only)
EN — A woman repeatedly seeks protection under a domestic‑violence statute. At the precinct, officers suggest “cooling off,” refuse to register the complaint, and tell her to reconcile for the family’s sake. When she finally secures a hospital report, the prosecutor downgrades the charge to a non‑custodial offense. The restraining order arrives weeks late. Publicly, the city boasts “zero tolerance”; operationally, non‑enforcement makes violence a low‑risk option.
ZH — 某女性多次依據家暴條例尋求保護。派出所建議「冷靜一下」，拒絕立案，並以「顧全家庭」勸返。好不容易取得驗傷，檢方將罪名降格為非羈押罪；限制令姍姍來遲。對外口號「零容忍」，實務卻以不執法讓暴力成為低風險選項。

4. Concept II — The Hidden Monopoly Gate

4.1 Definition
The Hidden Monopoly Gate is a structural arrangement in which a resource declared ‘public’ is in practice accessed through a single, opaque exit controlled by elites. Opacity enables plausible deniability (‘we rarely use it’), arbitrary extraction (‘we can use it whenever we choose’), and immunity from accountability (‘you cannot verify’).

4.2 Mechanism
Key components are: (a) information asymmetry—the location and conditions of access are unknown to non‑elites; (b) legal or administrative discretion concentrated in a small office; (c) record‑keeping opacity—usage is unverifiable to outsiders; and (d) rhetorical inversion—elites frame the gate as emergency access or stewardship while enjoying exclusive benefits.

4.3 Indicators & Measurement
Indicators include: share of access controlled by a single office or network; absence of public logs; frequency of ex post regularization of de facto usage; and discrepancy between declared allocations and observed outcomes.

4.4 Illustrations
Examples include: off‑budget fiscal channels; discretionary prosecutorial decisions shielded from review; religious authorities’ monopoly over salvific ‘exits’ with unverifiable promises; and family patrimony distributed at a patriarch’s discretion despite nominal joint ownership.

4.5 Composite vignette (anonymized; for illustration only)
EN — A municipal “public housing priority” program exists on paper. In practice, applications move only with a confidential referral from a small liaison office. Criteria are unpublished; no public log records who receives units. When journalists inquire, officials say the referral gate is used “rarely, for emergencies.” Beneficiaries are disproportionately linked to the ruling coalition.
ZH — 市府紙面上有「公屋優先」方案；實務上，申請必須取得某小型聯絡處的保密推薦。標準不公開，也無對外查核日誌。官員受訪稱「僅在緊急狀況偶爾使用」。受益者高度集中於執政聯盟關係網。

5. Concept III — The Yin–Yang Monopoly of Rights

5.1 Definition
The Yin–Yang Monopoly of Rights denotes a dual‑track legal‑political order: a formal, public track (Yang) of rights, rules, and procedures, and a hidden, informal track (Yin) of privileges, waivers, and violence. Elites monopolize the capacity to deploy both tracks, switching as interests demand; subordinates are confined to the Yang track.

5.2 Mechanism
Mechanisms include: (a) selective activation of informal immunity; (b) unequal access to ‘back‑channels’ (connections, waivers, shadow procedures); (c) cultural double standards that praise elites’ deviations as ‘exceptional leadership’ while punishing the same behavior among subordinates; and (d) legal doctrines that entrench discretion without review.

5.3 Indicators & Measurement
Track asymmetry can be proxied by: rates of discretionary waiver by class; differential probabilities of arrest/charge/plea by status; access to alternative dispute mechanisms; and qualitative evidence of shadow procedures. Mixed‑methods designs are recommended.

5.4 Illustrations
Contexts include: dual contracting (public vs. private terms); political speech that preaches equality while operationalizing favoritism; gendered double standards in family and workplace; and labor negotiations where employers alone can credibly threaten exit.

5.5 Composite vignette (anonymized; for illustration only)
EN — A firm enforces strict compliance rules on line workers—minor infractions trigger termination. When a senior executive violates procurement policy, an internal committee issues a confidential “leadership waiver” citing strategic flexibility. The same behavior is punished below and valorized above. Publicly, the firm celebrates “one rule for all.”
ZH — 某企業對基層員工嚴格執行合規，輕微違規即解雇；高層主管違反採購規範，內部委員會卻以「策略彈性」給予保密豁免。相同行為，基層受罰，高層受讚。對外口號仍是「人人一樣的規則」。

6. Concept IV — The Ice‑Hole Dilemma

6.1 Definition
The Ice‑Hole Dilemma models coerced voluntariness. In environments of necessity (death, poverty, stigma), power designs a single ‘exit’ that is framed as salvation—religious, economic, or moral. Because all alternative exits are blocked, the subordinate’s survival response is narrated as choice and consent.

6.2 Mechanism
Core features: (a) engineered scarcity of exits; (b) sacralization or moralization of the lone exit; (c) punishment or stigma for refusing the exit; and (d) retrospective rewriting of coercion as willing compliance. The dilemma converts structural constraint into legitimacy.

6.3 Indicators & Measurement
Indicators include: number of viable alternatives as perceived by agents; penalties for non‑compliance; intensity of salvation/doom narratives; and behavioral signatures of desperation (e.g., take‑up rates that spike under scarcity). Survey‑experiments can estimate perceived choice sets.

6.4 Illustrations
Illustrations span: religious promises of salvation tied to exclusive rituals; ‘voluntary’ unpaid overtime in precarious labor markets; patriarchal ideals of ‘good motherhood’ in the absence of social support; and patriotic mobilization that forecloses exit options.

6.5 Composite vignette (anonymized; for illustration only)
EN — A single parent in a city without childcare subsidies faces a stark choice: accept “voluntary” unpaid overtime to keep health insurance, or lose the job and housing. Declining overtime leads to fewer shifts and supervisor hostility. Community narratives praise those who “choose sacrifice.” Consent is manufactured by scarcity and penalties.
ZH — 在缺乏托育補助的城市，單親者面臨抉擇：接受「自願」無償加班以保醫療與住房，或辭職陷入失居。拒絕加班即被減班、遭上司敵視；社區敘事還讚頌「選擇犧牲」的人。稀缺與懲罰共同製造了「同意」。

7. Synthesis: A Two‑Layer Machine

The motive layer (Yin–Yang Monopoly + Hidden Monopoly Gate) designs double standards and opaque access; the result layer (Fishpond Effect + Ice‑Hole Dilemma) produces normalized impunity and manufactured consent. Formally: (Design of dual tracks + Opacity of access) ⇒ (Prohibition–encouragement reversal + Coerced voluntariness).

8. Operationalization and Research Agenda

Measurement strategies and formal/game‑theoretic sketches are proposed to quantify enforcement gaps, gate opacity, dual‑track access, and perceived choice sets, using administrative micro‑data, audits, and surveys/field experiments.

9. Policy Implications: Dismantling Structural Traps

Close language–reality gaps (registration dashboards, outcome‑tied budgets); break opaque access (public logs, rotation, whistleblower protection); collapse dual tracks (limit non‑reviewable discretion, equalize remedies); restore real choice (expand exits, de‑sacralize lone exit, reduce refusal penalties); plus gender‑responsive enforcement and algorithmic accountability.

10. Limitations and Scope Conditions

This is a conceptual paper offering mechanisms and indicators to be tested contextually; it cautions against cultural essentialism and recognizes capacity constraints and transitional phases.

11. Conclusion

Language forbids while routines permit; gates are public yet opaque; rights are equal in text yet unequal in use; exits convert coercion into consent. The four concepts—Fishpond Effect, Hidden Monopoly Gate, Yin–Yang Monopoly of Rights, Ice‑Hole Dilemma—provide a lens to map and dismantle these traps.

Selected References (trimmed)

Foucault, Michel (1975). Discipline and Punish: The Birth of the Prison. Gallimard / Vintage.

Agamben, Giorgio (2005). State of Exception. University of Chicago Press.

Bourdieu, Pierre (1977). Outline of a Theory of Practice. Cambridge University Press.

Crenshaw, Kimberlé (1989). Demarginalizing the Intersection of Race and Sex. University of Chicago Legal Forum.

Bandura, Albert (1999). Moral Disengagement in the Perpetration of Inhumanities. Personality and Social Psychology Review, 3(3), 193–209.

Appendix B — Original Allegories for the Four Concepts (by Jules Vela)

Note: These are conceptual allegories (thought experiments) to illustrate mechanisms. They do not depict specific persons or institutions.

B1. Fishpond Effect — Allegory

EN — A city proclaims a 'public fishpond' reserved for all citizens. For years it remains in 'closed season' pending a grand opening that never arrives. No one can audit stock, yields, or distribution dates; records are opaque. A small circle holds a hidden side gate and can haul fish at will—one net or all of them—without leaving a trace. If questioned, they can say 'we took only one', or 'the fish died', or 'there was never much stock'. The power to narrate replaces the duty to account.

ZH（繁體）— 一座城市宣稱有一口「公共魚塘」屬於全體市民。多年來皆以「禁撈期」名義遙遙無期地封閉。魚量、產出、分配日期無從稽核；紀錄全數不透明。少數人握有隱蔽側門，可隨意撈取——一網抑或一網打盡——亦無痕可查。遭質疑時，可以說「只撈了一條」，也可以說「魚都死了」或「本就沒多少」；敘事權取代了問責義務。

B2. Hidden Monopoly Gate — Allegory

EN — A 'public resource' exists in law. In practice, access moves only with a confidential referral through a gate that ordinary people cannot see or locate. For those within the elite network, the entrance is always open and the terms are discretionary. Officials describe the gate as 'rarely used' and 'for emergencies', yet outcomes concentrate among insiders.

ZH（繁體）— 法條上有一項「公共資源」。實務上，唯有透過保密推薦才能通關；普通人看不見、摸不到門道。對菁英網絡而言，入口恆常敞開、條件隨意裁量。對外話術是「極少動用」「只為緊急」，但結果長期集中於圈內人。

B3. Yin–Yang Monopoly of Rights — Allegory

EN — Two tracks run in one legal order. The Yang track—public rules—guides ordinary applications that stall for years. The Yin track—informal waivers and back‑channels—moves an identical application in days when a sponsor activates it. Those with Yin power can switch tracks at will; those without are told to 'respect procedure'. The same law becomes a passport for some and a checkpoint for others.

ZH（繁體）— 一個法律秩序內並行兩軌：陽面＝公開規則，普通人的申請在此拖延數年；陰面＝豁免與後門，若有引薦，一樣的申請幾日即通過。握有陰權力者可任意切軌；沒有者則被要求「遵守程序」。同一部法律，對上是通行證，對下是檢查站。

B4. Ice‑Hole Dilemma — Allegory

EN — In deep winter, fish are suffocating beneath thick ice. A man drills a single hole; fish leap toward oxygen and are netted. He announces: 'They chose my pot.' When all other exits are sealed, survival behavior is rewritten as consent. Scarcity engineers voluntariness.

ZH（繁體）— 隆冬冰層厚實，冰下魚群缺氧垂死。有人在冰面鑿出唯一孔洞；魚為求生而躍，卻被一網打盡。此人宣稱：「牠們自願跳進我的鍋。」當其他出口全被封鎖，求生本能便被重寫為同意；稀缺就是偽自願的工程。

© 2025 Jules Vela. Original allegories; all rights reserved.

Copyright and License Notice

© 2025 Jules Vela. All rights reserved.

The author is the copyright holder of this paper and grants SSRN a non-exclusive license to post and distribute it for academic and educational purposes. No third-party figures are reproduced; all examples are anonymized.

I, Jules Vela, am the sole rightsholder of this work. All materials are original unless otherwise cited. No copyrighted third-party figures or datasets are reproduced. , I grant a non-exclusive license for distribution.

作者：Jules Vela

首次寫作時間：2025-09-05

發表於 Matters 時間：2025-09-XX

本文為本人原創理論框架，未經允許，不得轉載或商用。

© 2025 Jules Vela 保留所有權利

This paper is a working draft and will later be included in my forthcoming book Dark Disease.

Posting on Matters serves as timestamped evidence of authorship.

All rights reserved. Unauthorized reproduction or commercial use is prohibited.

© 2025 Jules Vela