Thursday, January 29, 2015

Just Posted: "Governance Polycentrism Or Regulated Self-Regulation—Rule Systems for Human Rights Impacts of Economic Activity Where National, Private and International Regimes Collide"

The regulation of the human rights impacts of economic activity has produced some of the most significant changes in the scope, nature and understanding of the character of law, governance, the state and the international order.

(Pix (c) Larry Catá Backer 2015)

I have been considering the systemic aspects of this emerging structures of "law", that now include both traditional state produced law and governance rules produced by non-state actors.  To that end I have drafted an essay, "Governance Polycentrism Or Regulated Self-Regulation—Rule Systems for Human Rights Impacts of Economic Activity Where National, Private and International Regimes Collide." My object is to try to identify the "constitution" within which these emerging multi-rule systems operate.  Transnational governance is not arising as a haphazard and chaotic process; it follows organizing rules and is bounded by premises that distinguish between legitimate and illegitimate efforts.  these rules ought to be of interest to lawyers and policymakers who venture into this increasingly important area of individual and institutional behavior management. 

The abstract follows. The essay may be found HERE.  A final version of this essay will appear in Kerstin Blome, Hannah Franzki, Andreas Fischer-Lescano, Nora Markard and Stefan Oeter (eds.) Contested Collisions: Interdisciplinary Inquiries into Norm Fragmentation in World Society.

Wednesday, January 28, 2015

Announcing Publication of the Article: Crafting a Theory of Socialist Democracy For China in the 21st Century: Considering Hu Angang’s (胡鞍钢) Theory of Collective Presidency in the Context of the Emerging Chinese Constitutional State

(Pix (c) Larry Catá Backer 2015)

I am pleased to mention the publication of my article, Crafting a Theory of Socialist Democracy For China in the 21st Century: Considering Hu Angang’s (胡鞍钢) Theory of Collective Presidency in the Context of the Emerging Chinese Constitutional State, which appears in the current issue (Vol 16(1) pp. 29-82) of the Asia-Pacific Law and Policy Journal. My thanks to the Journal's co-editors in chief--Garrett I. Halydier and Joshua J. Michaels, and the journal staff.  It considers the possibility, within the Chinese constitutional context, of embedding notions of democracy and and representation within government rather than principally through the exercise of voting for a representative to government.

Links to the articles in Vol 16(1) along with the editor's note follows. The article is available on line here.

Monday, January 26, 2015

Report of the 9th Annual Conference of the European China Law Studies Association

I am happy to pass along the Conference Report of the 9th Annual meeting of the European China Law Studies Association, held last November in Hong Kong.  (for earlier discussion see here and here).

The Report may be found at the website of the ECLSA and access here.  It is also reproduced below.

Friday, January 23, 2015

Focusing on Civic Education in China--The CCP's Ideological Work Comes to the Universities: 关于进一步加强和改进新形势下高校宣传思想工作的意见

(Pix (c) Larry Catá Backer 2015)

The general offices of the Central Party and State Council recently issued a directive calling for the strengthening of civic education in Chinese universities along the ideological lines specified through the Chinese Communist Party.  The original document is circulating only among senior CCP and university officials; a summary has appeared via Xinhua but remains unavailable in English (See here and below).  The folks over at China Copyright and Media January 19, 2015 have provided a translation of the Xinhua summary (see here and below). 

The move was not unexpected (see here).  It follows closely from the work of the 4th Plenum and the construction of Socialist Democracy.  It is a reminder, as well, that the economic development of the period from 1989 is now being supplemented by political development. While it is easy to view this development in reactionary terms--that is is a rectification campaign or another version of efforts to return to a cruder form fo CCP control.  I would suspect that the opposite may be true.  The directive represents another step in the development of the CCP as a post-Leninist vanguard party within a state that is no longer on the primary stages of development (discussed here), where the population has become better off materially and much better educated and where it has become worldly and expects far more both from the administrative apparatus of government and the political leadership of its vanguard party. That effort has produced both an advance in Leninist theories  of collectivity in the structuring and operation of the CCP itself (considered here), in the relationship between state and CCP (discussed here), and in the construction of the rule networks vital to maintain the relationship between them in furtherance of the fundamental objective of socialist modernization (discussed here).

A careful reading of the summary reveals both the close connection between  the program and the Sange Daibiao--the notion that the vanguard role of the CCP includes political assimilation as well as leadership in the economic and social fields. It suggest as well that the core object of the CCP's political work is to socialize all people within the structures and premises of Chinese Marxist Leninism, now  developed under its new names--socialist modernization, socialist democracy, and socialist rule of law.  That effort requires a clear delineation from the parameters of Western political and legal frameworks. Those responsible for these efforts, however might all too easily give in to the temptation of moving from delineation to isolation, and from a robust effort to inculcate Chinese civic education to xenophobia that blocks the natural communication among robust and living political systems.  

But for the moment all that is available are the general principles--none of which ought to be surprising.  At its most benign they merely suggest that the developments of Chinese political theory ought to be reflected in the education of China's youth--and that this be done in a way that does not become its own parody.  The latter point will prove difficult, if the current travails of civic education in the West is any guide. And indeed, until the CCP's own cadres are as well educated in the ideological and civic education as the CCP expects for China's students, and in the absence of a vigorous embrace of the main principles of that ideology in a way that is comprehensible and coherent, it will be difficult to develop the teaching materials and structures of learning that will effectively move the directive from aspiration to effective implementation. In order for CCP to make good on its directive, it will have to do the hard ideological work of putting together its ideological corpus in a way that is accessible to cadres and non-CCP members.  It is to that task that it is to be hoped that the CCP will devote substantial energies first.

From the Collège des Bernardins--Considering Current Issues from #JeSuisCharlie to Inter-Faith Relations

 (Pix (c) Larry Catá Backer 2015)

The Collège des Bernardins in Paris offers a rich intellectual life for those lucky enough be be able to participate.  For French speakers, the Collège posts some of its public events.  I have included summaries and links to some recent events that may be of interest:

#JesuisCharlie : Internet peut-il garantir la liberté d'expression ?, entretien avec Gemma serrano, directrice de recherche et théologienne au Collège des Bernardins

Pour départager l'information superficielle des enjeux véritables, le séminaire de recherche "Journalisme et bien commun à l'heure du numérique" dirigé par Gemma Serrano, théologienne et Eric Sherrer, directeur de la prospective et de la stratégie numérique de France Télévisions, a souhaité inscrire l'une de ses séances en lien direct avec l'actualité française du 11 janvier dernier. Gemma Serrano revient sur cette séance exceptionnelle.
  Voir la vidéo >>

  Entrevue avec Valentine Zuber, codirectrice du séminaire "A l'école du religieux ?"

Valentine Zuber, co-directrice du séminaire "A l'école du religieux ? Formation et transmission religieuses en Méditerranée" revient sur la genèse et les enjeux de ses travaux au Collège des Bernardins.
  Voir la vidéo >>

  A l'occasion de la parution du n°31 des Etudes du CRIF, "Intellectuels juifs et chrétiens en dialogue", entretien avec Marc Knobel, directeur des Etudes du CRIF, octobre 2014

"Nous devons trouver des passerelles de dialogue, des partenaires de création... Le dialogue avec l'Eglise [...] est fondamental, il y va de l'avenir non seulement des relations judéo-chrétiennes, mais de l'essence même de notre monde contemporain..."
  Voir la vidéo >>

  L'humain au défi du numérique, entretien avec Jacques-François Marchandise, directeur de la recherche et de la prospective de la FING, co-directeur de la Chaire des Bernardins

A l’occasion du lancement de la Chaire, Jacques-François Marchandise revient sur son implication au Collège des Bernardins : quel sera l’apport de la Chaire qu’il codirige aux côtés de Milad Doueihi ? Pourquoi avoir accepté de travailler sur l'humain au défi du numérique au Collège des Bernardins ? Quels seront les enjeux et les objectifs de ses travaux ? Comment impliquer le public et nourrir « la quête de sens qui anime le numérique » ?
  Voir la vidéo >>

Monday, January 19, 2015

For Martin Luther King Day: Transcript of MLK's Speech Delivered at Penn State University Jan. 21, 1965

To mark this day, I thought I would draw on the connection between Penn State University and the Rev. Dr. King.  This from Penn State news:
On Jan. 21, 1965, Martin Luther King Jr. spoke to an estimated crowd of 8,000 people in Recreation Building on the Penn State University Park campus. He talked about the civil rights movement, America's legacy of slavery and segregation and the principles he believed would change the world. The event was commemorated in 2006 with a historical marker placed outside of Rec Hall.

On Monday, Jan. 19, Penn State University Libraries presented an audio broadcast of the speech "The broadcast is just one of several events at the Libraries to celebrate King's legacy." (see here).

The speech follows.  For lawyers and moralists, the most interesting portion, one that is worth considering a new in light of the changes that the years since 1965 has produced is this:

Now, there is another myth that is constantly circulated. It is the notion that legislation really can't solve this problem; it doesn't really have a role. Of course, you've heard this: There are those individuals who say the main thing is to change the heart, and you can't change the heart through legislation. I think there is an answer to that myth. It may be true that morality cannot be legislated, but behavior can be regulated. It may be true that the law cannot change the heart, but it can restrain the heartless. It may be true that you cannot legislate integration but you can legislate desegregation. It may even be true that the law can't make a man love me, but it can restrain him from lynching me, and I think that's pretty important also. So while the law may not be able to change the hearts of men, it does the change the habits of men. When you change the habits of men, pretty soon the attitudes and the hearts will be change.
My thanks to the Penn State libraries and Penn State Live.

Sunday, January 18, 2015

The Legal Status of Constitutional Preambles--Matthew Hoffman on Developments in Moldova

(Pix (c) Larry Catá Backer 2015)

The legal status of constitutional preambles continues to generate substantial interest, especially in states whose constitutional orders are experiencing periods of vibrant development.   (see, e.g., Zhang Qianfan, Yanhuang Chunqiu, The Controversy on the Preamble to the Constitution and Its Effects, China Copyright and Media, June 10, 2013) (considering the legal effect of preambles generally and considering the four distinct schools of thought of the legal effect of the preamble to the PRC constitution).  While constitutional preambles do not have specific legal effect under the rules of many jurisdictions there are important examples where constitutional preambles have been given legal effect, and more important, where extra constitutional documents have been incorporated into the constitution through the preamble. 

My student,  Matthew Hoffman, recently considered the issue in the context of the legal status of the Moldovan language under its constitution. The case was considered by the Moldovan Constitutional Court in  Hotărâre nr.36 din 05.12.2013 privind interpretarea articolului 13 alin. (1) din Constituţie în corelaţie cu Preambulul Constituţiei şi Declaraţia de Independenţă a Republicii Moldova (Sesizările nr. 8b/2013 şi 41b/2013). The issue turned on the legal status of the Moldovan declaration of independence, and its relation to the Moldovan constitution. Mr. Hoffman's analysis follows along with his translation of the relevant portions of the opinion.

Saturday, January 17, 2015

Democracy Part 31: In a World Premised on Exogenous Democracy is a Theory of Endogenous Democracy Possible?

(Pix (c) Larry Catá Backer)

I have been considering the contours and consequences of democratic principles organized around the action of voting--as the act of devolving sovereign authority on individuals organized within the constraints of a government (and law sometimes), political discipline, and as a ritual of legitimacy  (here, here, here, here here, and here for example). Voting, combined with a strong civil society sector, are important elements of Western democratic states.  It is usually taken as the only standard for the understanding of the legitimate construction of democracy; that is, that voting is an essential element of the constriction of a democratic state, and that such voting must have a set of features relating to who may stand for election, who may vote, etc. 

Voting presents the essential act of democracy as exogenous to governance.  That is that the act of voting, of selecting representatives falls outside the operation of the governmental system within which the delegated power of the sovereign people is exercised by their representatives.  Once elected--and elected for their personal or factional characteristics among other reasons perhaps, the individual remains essentially free to act as  her own personal agent, accountable generally only by having to stand for election periodically and by the somewhat broad constraints of law. It is hard to detach even the shadow of cults of personality from the act of delegation of mass power through voting. We vote for an individual in part because we are willing to trust her exercise of individual discretion, grounded on her values, ambitions and personal principles, and on our authority ot recall or drive her from office in the next election.

But is it a mistake to assume that this is the only possible way of expressing democracy and of constructing a political system founded on democratic principles.  Is voting really the only foundational way of building a legitimate democratic state and may democratic values only be exercised through voting? Might a democratic state be constructed from a foundation of endogenous democracy--that from the principle that democracy is exercised within the government?   

This post considers the possibility of developing  a theory of endogenous democracy, one in which the touchstone of the democratic architecture of the state is centered within its government rather than in the periodic election of representatives to one or more of its organs. This is a preliminary consideration with specific application to China, where the possibility of a form of endogenous democracy is being considered.  These ideas are further developed in the Chinese context in Backer, Larry Catá, Crafting a Theory of Socialist Democracy for China in the 21st Century: Considering Hu Angang's (胡鞍钢) Theory of Collective Presidency in the Context of the Emerging Chinese Constitutional State 16(1) Asian-Pacific Law and Policy Journal – (forthcoming 2015).

To Be Published in 2015-- Frank Ravitch and Larry Catá Backer, "Law and Religion: Cases, Materials, and Readings (3rd ed)

 (Pix (c) Larry Catá Backer 2015)

Frank Ravitch has produced one of the most interesting approaches to the study of the legal interaction of law and religion within the U.S: constitutional system.  This year, I join Frank to help produce the third edition, Law and Religion: Cases, Materials, and Readings (3rd ed 2015; 9780314284075) to be published by West Academic Publishing.

From the Preface:
This book focuses on Law and Religion. The book covers three general topics: 1) Church/State Law (issues relating to the First Amendment to the United States Constitution); 2) Religious Law (the role and substance of law in various religious traditions); and 3) comparative Law and Religion (the law relating to religious freedom in other countries). Most books in this field have little or no material on the latter two topics. The bulk of this book is devoted to First Amendment Law, the book also provides an overview of Jewish Law (Halakha), Islamic Law (Shari’ah), Buddhist conceptions of law, Catholic Canon Law, Protestant conceptions of law, and Hindu law as well as background on comparative Law and Religion. The discussion of First Amendment law integrates cases, narrative, and excerpts from leading articles and books to provide an in-depth understanding of the Religion Clauses of the United States Constitution. 
This book includes a brief narrative discussion of each topic included, followed by the relevant cases and articles, and then notes and questions. The goal of the narrative is to provide students with context (the forest) so that they can grapple with the many complex issues that are raised in the cases and articles (the trees). The sections on religious law and comparative law will follow a similar format.
In addition to updated materials on U.S. law, we explore in some depth  international legal structures for the relationship among law and religion that may affect the U.S. as well as an introduction to issues of comparative law and religion. 

The almost final table of contents follows.  The book will be available  in 2015 for Summer and Fall Terms. We are happy to discuss the book.