Sunday, September 30, 2007

"The Scientific Concept of Development," The Rule of Law and the Proposed Amendments to the Constitution of the Chinese Communist Party

The public organ of the Chinese Communist Party recently announced what had been rumored for some time--proposed amendments to the Chinese Communist Party Constitution. Communist Party of China to Amend Part Constitution, People's Daily Online, Sept. 17, 2007. The amendment is expected to be adopted at the 17th National Congress scheduled on October 15, 2007 "The amendment should be made "under the guidance of Marxism-Leninism, Mao Zedong Thought, Deng Xiaoping Theory and the important thoughts of 'Three Represents,' and to reflect the major strategic thoughts the CPC Central Committee has set forth since the 16th CPC national congress was held (in 2002), such as the scientific concept of development," said the meeting." Communist Party of China to Amend Part Constitution, , supra. These amendments will formalize Hu Jintao's stamp on Party governance, in a manner similar to that of his predecessor and the incorporation of the "three represents" (sange daibiao) theory into the normative structure of Communist Party governance. See Larry Catá Backer, The Rule of Law, The Chinese Communist Party, and Ideological Campaigns: Sange Daibiao (the “Three Represents”), Socialist Rule of Law, and Modern Chinese Constitutionalism, 16(1) Journal of Transnational Law & Contemporary Problems 29 (2006).

Still, Hu Jintao is being more circumspect than his predecessor, Jiang Zemin. The amendments are careful not to refer to the concept of scientific development as rising to the level of "Thought" (as in Mao Zedong Thought, or "Theory" (as in Deng Xiaoping Theory). Instead, the scientific concept of development is accorded no higher place than that of sange daibiao. Sange Daibiao is references as "important thought" while the scientific concept of development is labelled "major strategic thought." Yet one important difference between the two may be telling--Hu Jintao, unlike his predecessor has been very careful to present this new ideological development of Chinese constitutional thought firmly within an institutionalist framework (rather than as a reflection, as had been traditional, of personal effort). Thus, the scientific concept of development appears as the work of the CPC Central Committee..

His predecessor, thought to be more "academic," reached out to the merchants who were fueling China's rapid economic growth. He made it possible to extend, at least as a theoretical matter, Party member ship to merchants. The price they paid was simple--embrace the ideological limits of Chinese Marxist Leninist Mao Zedong Deng Xiaoping , in return for which Party membership and extended prosperity for all would be more likely. Hu Jintao has broadened this approach to reach deeper into Chinese society. The principles of scientific development, unveiled in 2003, are meant to stress the importance of deep progress to sustain the economic revolution in China (that is to try to keep it truer to its political roots in Marxist Leninist Mao Zedong Thought (and especially Deng Xiaoping Theory). "It stresses people-centered development that is comprehensive, coordinated and sustainable." Communist Party of China to Amend Part Constitution, , supra.

Scientific development flows naturally from the principles of the Three Represents--especially with respect to development. "The "three represents" important thought has enriched the ideology concerning the harmonious development of socialist material civilization, political civilization and spiritual civilization." "Three represents": guiding ideology requires long-term adherence to, News of the Communist Party of China, Sept. 23, 2004. Indeed, it might be thought to have been implicit in that campaign. Thus the Chinese Communist Party was careful to describe it in terms that resonate with prior developments: "It refers to coordinated development between urban and rural areas, among different regions, between economic and social development, between the development of man and nature, and between domestic development and opening up to the outside world." Communist Party of China to Amend Part Constitution, , supra.

This relationship is well understood even at the level of popularizing the ideas of the campaign to rank and file Party Members. The stress is on forward movement and pragmatism geared toward the principal object of Party and State apparatus--deep popular development.

"All the Party members are required to stick to the policies of reform and opening up, advance scientific development, promote social harmony and strive together for new victories in the process of building a well-off society in an all-round way, the meeting said. The meeting also called on all Party members to understand the new requirement of the country's development and the new expectation of the people to draw guidelines and policies adapted to the times and the people."
Communist Party of China to Amend Part Constitution, , supra.

The Chinese Communist Party is quite aware of the necessity for building governance capabilities. "Of the series of major strategic ideas and theoretical, innovative new achievements released since the 16th CPC National Congress, the most vital and crucial is the overall blueprint or layout for Party building with hallmarks to stress not only stepping-up of Party building in an all-round way but taking the hold of "key points" and the "motif" in the course of Party building. Namely, it is focused on the enhancement of its governing capacity, and taken the increase of Party members' advanceness as the motif." CPC's new headway with its Party building concept, News of the Communist Party of China, April 20, 2007.

Still, the progress objective requires the Party to get its conceptual house in order. But as recent commentary has suggested, Party building is still subject to intense competition among factions within the Party. Some of it is part of the formal framework of public debate. For that purpose, it seems, the Party has entertained at least a limited public debate over the form of future reform. See, e.g., the discussion in Joseph E. Lin, Central Party School Scholar Discusses Limited Party-Government Separation, China Brief VII(17):1-2 (Sept. 19, 2007). On the other hand, Willy Lam, for example, has suggested the nature of some of the factional fighting, which conflate personal influence and political agenda. Willy Lam, Limited Reforms: Status Quo at the 17th Party Congress, China Brief VII(17):6-7 (Sept. 19, 2007). He notes the conservatism of the theory of scientific development, its placement (as the third of the "four insistences" campaign, the relation of that campaign to Hu's efforts to solidify his and his faction's hold on the governing machinery of the Party, and (from my perspective) the fairly audacious efforts to overlay Deng Xiaoping's Four Cardinal Principles with the interpretive trope of the four insistences. See Willy Lam, Limited Reforms: Status Quo at the 17th Party Congress, supra.Lam's points are well taken, though I might be inclined to suggest hat the caution in Hu's moves, from a certain perspective more cautious and institutional than similar moves by his predecessors, suggests at least a (very) limited headway towards institutional "rule of law" within the Party. As I have suggested before, Larry Catá Backer, The Rule of Law, The Chinese Communist Party, and Ideological Campaigns, supra, the cultivation of an intra party democracy is a necessary key to political progress within China. To the extent that, as Lam suggest, Hu pushes forward on that front, there may also be progress on a broader basis. I am less inclined to believe in the sort of "western style" possibilities of the "thought liberation" portion of the "four insistences." Such liberation must be understood as possible only within the normative framework of Chinese political theory--Marxist Leninist, Mao Zedong Thought, Deng Xiaoping Theory, and the important thought of the Three Represents, to which some or all of the four insistences might be added. To de-contextualize thought liberation, is to set the reforms up to failure from an incorrect starting perspective. In the context of Chinese constitutional norm development, it seems that the third and fourth of the four insistences (scientific concept of development, social harmony and prosperity) are likely to be far more important than the first two (thought liberation and reform and open door policy).

Thus, to the extent that "the scientific concept of development" serves as a formal platform for legitimacy to govern all social sectors, the CCP may continue to serve in fact as well as in name as the "party in power" of the apparatus of the Chinese state. But this will require continuous efforts to absorb the leading elements of Chinese society, and to assimilate them to the political values culture of the CPC, as well as to articulate those values in a way that accords with the aggregate interests of all sectors. For that purpose, Hu Jintao's scientific concept of development is well positioned to serve as a basis for governance. The trick will be to see if the Party's bureaucracy is as adept in developing its praxis as the intellectual organs of the Parry are in recognizing problems and shaping theoretical approaches to its solution. It is easy enough to herd intellectuals, and to frame programs. The Chinese political apparatus has become quite successful at it. But success is marked by operations at the level of contact with the governed--from rural peasants to important industrialists, and the foreign community whose involvement is not to be lightly dismissed. If the party cannot practice what it preaches, it will lose its mandate. The highest levels of the Party understand this: "They include, among others, unfolding activities to educate the CPC members in retaining their advanced character, pushing ahead the building or development of the study-type political party, going in for the inner-party democratic construction, developing inner-party democracy, improving the CPC members' conduct and building a clear government, still bettering the Party's leading and governing methods, and further improving the inner-Party supervision." CPC's new headway with its Party building concept, supra. But whether this understanding can be naturalized among its lowest level cadres is another matter.

Stay tuned.

Saturday, September 29, 2007

Funny Games: Norms and Decadence in The Western Intellectual Establishment

It is rare to come across a robust admission of the deep decadence of the West, especially of the variety that has engrossed a portion of its intellectual elites in its modern form for over half a century. But in a rare convergence of honesty, low and high culture among the Euro-American intelligentsia, it is possible to appreciate both the exquisite nature, and the enormity, of this decadence in somewhat disturbing but fascinating detail. I am referring to an interview with Michael Haneke, the director of the recently released movie--Funny Games--a film about a white, middle class and vaguely mainstream religious origin family (the cultural ideal), visited by two well dressed young men appearing for all intents and purposes to belong to the same socio-cultural circle. "Over the course of the next hour [of the movie] these two polite, articulate strangers force the family to take part in progressively more sadistic contests, periodically stepping outside the film's action to speak to the viewer directly." John Wray, Minister of Fear, The New York Times Magazine (Sept. 23, 2007) at 44, 46. The movie ends mostly badly for the model family and for the perpetrators, and for the audience as well. Everybody loses when cultural structures provide no satisfactory support for action, or guides to conduct

We are told by Haneke that Funny Games "moves like a thriller, it has a thriller's structure, but at the same time it comments on itself. A movie is always a manipulation, regardless of whether it is a biopic or a romantic comedy, and 'Funny Games' takes this manipulation as its primary subject." Id. The conceit of this movie is the disdain the "protagonists" have, for both their victims on the screen and those watching from the audience. "The young men make no secret of their disdain for their victims; but the bulk of their contempt is reserved for the audience." Id. And disdain as well for the evils of "hidden" manipulation. "Heneke tells us that "political manipulation is rampant in the American political media. . . .It's present in movies, too, of course." Id., at 47. That political manipulation was a hallmark of National Socialists in Germany, Bolsheviks in Russia and American in the United States for export to a gullible global market. Id. For Haneke, "What is terrible about the Harrison Ford film [Air Force One], though, especially terrible, is that it represents itself as simple entertainment. The audience doesn't realize there's a message hidden there." Id., at 47. Haneke likes his manipulation overt--and meant to undermine the political value system through which, through manipulation, is reinforced. As such, there is an element of the "hidden" within the exposure that Heneke seeks. But no matter--the principal target--overt political manipulation through movies reinforcing certain sets of values, is undermined in favor of a set of either "anti-values" or a competing system of political values--but one which itself remains hidden from the viewer. Id. Thus, the audience that sits, paralyzed and subject to manipulation through the simple entertainment of the Americans (or Soviets or National Socialists, etc.) is apparently also as easily subject to manipulative anti-manipulation. For Haneke also tells us that this gullible audience is not: "People in the film industry underestimate their audience. . . . . I believe the viewer is fundamentally more intelligent than most films give him credit for, but only if you give him the opportunity to use his brain." Id., at 46.

These sorts of artistic endeavors have won a substantial and deferential following--not so much with respect to what the film is about, but with respect to the truth of the feeling of disdain which the films interrogate. Each is an exercise in self loathing from asocial and cultural level, telescoped down to the ordinary terrors of individuals in hyper exaggerated (for effect) but basically ordinary circumstances. His "stark studies of violence and alienation" Id., at 48, with substantial and suggestive socio-cultural overtones designed to interrogate the foundations of the social order in any of its variations, "earned him a measure of admiration outside the German speaking world. It was his next film, however, that made cinephiles the world over take notice. That film was 'Funny Games.'" Id.

Manipulation, disdain, self-loathing, the end of possibility, and--dare it be suggested here--a certain narcissistic nihilism, appear to be at the center of this intellectual universe. But Heneke is merely representative of a trope, a stance embraced by those who stand at the epicenter of cultural self-confidence and continuity. And he understands this. In a long comment pregnant with meaning, Heneke exposes the self aware character of the sort of terminal decadence, the death wish vectors, of a certain strain of modern Western "high" culture:
"'At the beginning of the 20th century,' he told me, 'when film began in Europe, storytelling of the kind still popular in Hollywood was every bit as popular here. Then the Nazis came, and the intellectuals--a great number of whom were Jewish--were either murdered or managed to escape to America and elsewhere. There were no intellectuals anymore--most of them were dead. Those who escaped to America were able to continue the storytelling approach to film--really a 19th century tradition--with a clear conscience, since it hadn't been tainted by fascism. But in the German speaking world, and in most of the rest of Europe, that type of straightforward storytelling, which the Nazis had made such good use of, came to be viewed with distrust. The danger hidden in storytelling became clear--how easy it was to manipulate the crowd. As a result, film, and especially literature, began to examine itself. Storytelling, with all the tricks and ruses it requires, became gradually suspect. This was not the case in Hollywood.'" Id., at 49.
Where to start! It is all here: loss of cultural confidence, cultural death wishes in expiation for the sins of National Socialism, the love-hate relationship with Judaism--seen as both all powerful and powerless, the great cultural manipulator and its victim, the remnant of which is now resident in Hollywood, the reactionary nature of telling stories, the wrongness of any mechanics that replicates or continues culture and cultural values (at least as practiced in the West, the difficulties of the underlying values of that culture itself, the transference of guilt from the masses to the elite (through the "trickery" of storytelling), the inherent falsity of stories, the hypercycles of self reflection (literal narcissism) as a substitute for culture as praxis, and the principle utility of intellectual efforts as a destructive mechanics.

Undoing culture seems to be the only way to overcome the mortal sins of National Socialism (the Central European disease), Bolshevism (the Eastern European version), and consumptive commercialism (the American variation). And each of these is no more than the end product of the tendencies of Western civilization toward bad practices. And destruction is the only and inevitable course of Western civilization. The solution is destruction and the task of the intellectual is to unmask that task and to lend a hand.
"'I had a dream last night,' Heneke told me toward the end of our lunch in New York. ' A nightmare, to be exact. Maybe you'll find it useful for your piece.' . . . He finally said: 'I was sitting in a bus, and suddenly it went out of control . For some reason I was responsible for every body's safety, but I couldn't get the steering wheel to work: perhaps it was broken, perhaps someone else was preventing me. People were wandering up and down the street, and the bus ran them over, unavoidably, one after another. Somehow, I was responsible for this, but I was helpless to prevent it.'" Id., at 49.
Thus at last a proper task for the intellectual elite, the flower of Western civilization--to preside over its destruction, though with enough modesty to avoid taking credit for the job. There is nothing like the passive voice in the project of nihilism. "He tool a slow, thoughtful sip of coffee. 'A pretty terrible dream, but to me it seems representative of our current situation in the world. All of us are responsible but unable to change the direction of the bus--everyone in Europe, everyone in the so-called first world, is in that same predicament'" Id. "Funny Games" provides the necessary and self consciously manipulation in that direction. It provides the bus with which our elites will undo us. Welcome to the real "Funny Games" where large groups play for enormous stakes and for keeps. And it is with this as foundation, that the West approaches the defense of its legal, social and moral systems.

Friday, September 28, 2007

Structural Changes at the IMF: More Voices Same Choices

The International Monetary Fund continues to be the resting place for European politicians waiting for better times. France found it necessary to place an important member of the new opposition party some place safe. And what better place than the International Monetary Fund. This is especially the case with the successful candidate--Dominique Strauss Kahn, the former French Socialist Finance Minister and the runner up for Socialist Party leader in France , who thus "won" (at the IMF) by losing to Segolene Royal to be the Socialist party's candidate in the recent French presidential election. Indeed, one of Mr. Strauss Kahn's principal backers was none other than "French President Nicolas Sarkozy [who] had supported Mr Strauss-Kahn's leadership bid and hailed the nomination as a 'great victory for French diplomacy.'" Frenchman is Named New IMF Chief, BBC News Online, Sept. 28, 2007.

But this time the Europeans may have chosen well. There has been an increasingly effective attack on the legitimacy of the International Monetary Fund from a variety of perspectives. The old Marxist Leninist states, supported by elements drawn from the developing states have maintained that the IMF is illegitimate as part of a global system of national subordination and economic neo-colonialism in the form of a legal system establishing global financial markets in sovereign debt. See Larry Catá Backer, Ideologies of Globalization and Sovereign Debt: Cuba and the IMF, 24 Penn State Int’l. L. Rev. 497 (2006). Less comprehensive but possibly more effective, have been the "rule of law" and system legitimacy attacks by debtor states, and those rising developing states eager to project more power (though less eager to spend money in that effort). As the BBC accurately reports
there has been growing criticism over its legitimacy because of the overriding influence of rich nations at the expense of emerging powerhouses, such as India and China. Since the group's post World War II inception, it has been the custom that Europe picks the boss of the IMF, a practice considered unfair. Many of the IMF's 185 members are also unhappy with how the board and voting rights are structured.
Frenchman is Named New IMF Chief, supra. An who better to diffuse these attacks than a representative of European Socialism. Mr. Strauss Kahn is meant to present the warm and fuzzy, the empathetic face, of the dominant powers. "In a statement after the announcement on Friday afternoon, he said: 'I am determined to pursue without delay the reforms needed for the IMF to make financial stability serve the international community, while fostering growth and employment.'" Frenchman is Named New IMF Chief, supra.

And so he will. For the public law culture, and private law ordering norm systems, of the dominant states to continue to provide the basis for the restructuring of developing states; that is, for the continued success of a campaign to assimilate the global community to the norms of the victorious powers of the Second World War, it is necessary to preserve the legitimacy of the global institutions charged with this civilizing task. Having abandoned direct assertions of political power through systems of global colonial empires, the civilized states substituted a global structure based on a complex network of norm and norm naturalizing institutions, that were meant to be infused with appropriate values, and sent off to naturalise those values in the rest of the world. Among the global institutions created for that purpose was the IMF. It is thus necessary to preserve the legitimacy of the IMF without jeopardizing the structural values which it seeks to implement through its conditional lending programs and other efforts.

And for that purpose Mr. Strauss Kahn may be perfect. He appears to be willing to aid in the restructuring of the constitution of the organization. But who may win? To the extent that rising powers are given greater clout, it is unlikely that much will change. China, Brazil, and India, for example, are rising economic powers precisely because they have been willing to internalize the values the IMF is supporting. Giving them greater voice in IMF matters may change the IMF's actions at the margin, but not affect the basic values structures of the institution. At the same time, Mr. Strauss Kahn is likely to resist changes that will upend governance at the IMF. It is unlikely, for example, that he will permit power to flow from lenders to debtors. Still, he is likely to continue the programs of paying debtor countries off, by subsidizing debt restructuring that effectively reduce the aggregate cost to borrow of these states.

But debtor states will ultimately be no better off under a "kinder and gentler" regime of greater "developing" state participation. Global financial markets in secondary debt are unlikely to change much in the face of governance reconstitution at the IMF. The IMF will continue the process of reducing states to public corporations for purposes of debt markets. See Larry Catá Backer, Odious Debt and “Vulture Funds”: Making a Case for Repudiation of Sovereign Debt, Law at the End of the Day, Feb. 16, 2007. "Photo opportunity" governance changes play well in the press, and for elections, but they tend to do little to affect the financial obligations of poor states with a taste for borrowing (or the necessity thereof by operation of the current global economic system). Here the IMF will be presented with a great opportunity to indulge in a bifurcation of rule of law regimes within its governance systems--presenting greater representation within the formal structures of governance while reinforcing the structures of norm maintenance at the operational level. See Larry Catá Backer, Rule of Law as Form or Substance: Pakistan and Its Prostitutes, Law at the End of the Day, June 23, 2007. As long as the norm structure underlying norm conditionality, and the surveillance and assessments derived therefrom continue to reflect the understandings and values of creditor states--and there is no reason to believe that this will change--then structural changes at the IMF will make great press but have little effect on the key work of that institution.

In any debtor creditor relationship, the creditor will tend to assert a certain dominance. That dominance is not merely structural--a power to appoint or control the mechn ics of an organization. It is systemic as well. That is a point that critics like Fidel Castro understand well. Less well understood, though, is that in such a dynamic, "reform" will tend to be marginal. Modification of lender (IMF) institutional structures will change culture, and in this case the culture of lending and of appropriate behavior by debtors, only to the extent creditors are willing to continue to contribute--that is to supply the financing for the work of the institution. Systemic changes, thus, are not necessarily a function of structure--of the "law" of the organization--but of the "organic" law of the community. In this community, lender preferences have dominated. Changing the governance mechanics of the IMF might produce "control" to the debtor states, but that control may be illusory for one of two reasons: (1) the debtor states will be careful to appear "revolutionary" while retaining intact the underlying structures of power and culture in the institution (a charge sometimes made against several generations of post colonial African leaders); or (2) the creditor states will abandon the institution and form another, or leave it to the private markets (whose rule structures the creditor states will enforce in its courts).

There may be one significant caveat, and it reflects the "margin" mentioned above. That margin can have important effects. And indeed, in one respect those effects may be worth the effort for debtor states. A debtor controlled IMF may be more willing, to broaden the context in which debt need not be repaid, and to narrow the scope of obligations to restructure debtor governance to protect against corruption--especially the corruption of individuals controlling the state apparatus of debtor states. But even here, the extent of change may depend on the willingness of contributor states to tolerate changes. This may portend well for the elaboration of a more effective theory of odious debt. See Larry Catá Backer, Odious Debt Wears Two Faces: Systemic Illegitimacy, Problems and Opportunities in Traditional Odious Debt Conceptions in Globalized Economic Regimes, 70 DUKE JOURNAL OF LAW & CONTEMPORARY PROBLEMS –(forthcoming 2007) (document download here).

So let us cheer the appointment of M. Strauss Kahn. Expect changes in the form of governance, and fewer choices in the form of relationship between lender and creditor states.

Aristotle's Natural Slaves and African Slavery in the United States

Europeans spent much time seeking both moral and rational justifications for Black African slavery. For the Spanish, in the early years of the American colonization, both Catholic theology and Greek philosophy provided a suitable basis. Proponents of Black African slavery looked to Aristotle’s Politics for a reasoned justification of slavery. Aristotle, Politics (Benjamin Jowett, trans., 350 BCE) (http://classics.mit.edu/Aristotle/politics.html). Aristotle envisioned a natural order based on vertical relationships. With respect to slavery, he posited that “There is a slave or slavery by law as well as by nature.” Id., at Bk I Part VI. Legal slavery was disputed even in Aristotle’s day. See Id. But natural slavery was something else. It could have its origin in the natural character of people (Hellenes versus barbarians) or inferior versus superior person.

For that some should rule and others be ruled is a thing not only necessary, but expedient; from the hour of their birth, some are marked out for subjection, others for rule. . . . Where then there is such a difference as that between soul and body, or between men and animals (as in the case of those whose business is to use their body, and who can do nothing better), the lower sort are by nature slaves, and it is better for them as for all inferiors that they should be under the rule of a master. For he who can be, and therefore is, another's and he who participates in rational principle enough to apprehend, but not to have, such a principle, is a slave by nature.


Id., at Bk. I, Part V.

It was a simple matter, thousands of years later, to extract from these passages of Aristotle a philosophical and rational basis for both the natural enslavement of Black Africans, and sometimes Indians. In her study of the religious and philosophical justifications for Black African slavery in the New World, Juliana Beatriz Almeida de Souza described a typical argument drawn from Aristotle. Looking at the work of the 16th century cleric Alonso de Sandoval, she noted that

Sandoval also believed that, as Aristotle noted, the ignorant and lacking in intelligence should due to reason, serve the wise and discrete, so that the latter could govern them and teach them how to live in a virtuous way. This idea when applied to blacks made slavery an effective means for the knowledge of the true faith and an improvement in their living conditions. For who could be “ so blind” as not to realise “ the mercy” of God towards the “ ignorant through slavery”. For Sandoval this blindness consisted in not perceiving that through slavery blacks were led “ to the power of Christian lords” who would give them “ the light of the Gospel, baptising them and keeping them in the Faith” and achieving “ the salvation of their souls”. And if they were free? Would they not “ lose miserably”?


Juliana Beatriz Almeida de Souza, Las Casas, Alonso de Sandoval and the Defense of Black Slavery, 2 TOPOI - Revista de História [on line] (Eoin O’Neill, trans.), available at http://socialsciences.scielo.org/pdf/s_topoi/v2nse/scs_a04.pdf (citing Alonso de Sandoval, De instauranda æthiopum salute. Madrid: Por Alonso de Paredes, 1647. Preface.) Thus, philosophy, when applied through the application of scientific knowledge available at the time, could serve as a rational basis for Black African slavery. And indeed, people drew on both Aristotle and Augustine for the proposition that with respect to uncivilized people, like Black Africans, slavery was ultimately beneficial—a means of bringing them to civilization. See Peter Garnsey, Ideas of Slavery From Aristotle to Augustine 41-43 (Cambridge, UK: Cambridge University Press, 1996).It is clear to see how this idea—focusing on individuals, could also form the basis of an international system that posited a hierarchy of states, with the most civilized states empowered to “enslave” for their own good and proper education, those states less deemed civilized. African colonization, the subjection of the indigenous populations of the Americas, and the colonial projects elsewhere could seek justification in these theories.

De Souza also noted the way in which Sandoval found Scriptural justification. This justification implicated morals but also deepened the notion that slavery was a positive estate for those who were so needy—so dependent on superior peoples.

In the Scriptures Sandoval found an argument to link the black slavery in an unredeemable form to the Word of God, “eternal truth, to reprehend ingratitude, natural evil and the worst customs of the people of Israel, it will raised your feelings and your sins”, comparing them to the “sons of Ethiopia”, then the greatest condemnation used when displeased with someone: Are you not as the Children of the Ethiopians to me, oh children of Israel? (Am 9, 7). Sandoval says that in the ‘divine words’ the words “black and Ethiopian are used often as synonyms of sinner and evil”.


Id. (“Christianisation inscribed in the social fabric and in the bodies of the individuals the basic rules of colonial Christian society. Alongside the conquest of souls, a conquest of bodies took place with a public dimension involving participation in ethics, education, traditions, customs and Christian values107. In the case of blacks their Christianisation would correspond to an adjustment of their social place inscribed by slavery.” Id., at 27).

Many of these ideas, translated from out of its Spanish and Catholic context, made their way to the United States as well. See David Brion Davis, Inhuman Bondage: The Rise and Fall of Slavery in the New World 48-76 (New York: Oxford University Press, 2006). They were reflected in English criticisms as well. See, e.g., John Stuart Mill, The Subjection of Women (1869) in John Stuart Mill, Essays on Equality, Law and Education (Indianapolis, IN: Liberty Fund). In a well known passage Mill argued:

There was a time when the division of mankind into two classes, a small one of masters and a numerous one of slaves, appeared, even to the most cultivated minds, to be a natural, and the only natural, condition of the human race. No less an intellect, and one which contributed no less to the progress of human thought, than Aristotle, held this opinion without doubt or misgiving. . . . But why need I go back to Aristotle? Did not the slaveowners of the Southern United States maintain the same doctrine, with all the fanaticism with which men cling to the theories that justify their passions and legitimate their personal interests? Did they not call heaven and earth to witness that the dominion of the white man over the black is natural, that the black race is by nature incapable of freedom, and marked out for slavery? some even going so far as to say that the freedom of manual labourers is an unnatural order of things anywhere.

Id. And, indeed, it would have been unusual for the master class to believe, as Aristotle suggested, that “where the relation of master and slave between them is natural they are friends and have a common interest, but where it rests merely on law and force the reverse is true.” Aristotle, Politics, Bk I., Part VI. And what could be more natural that the slavery of Black Africans.

It was with this in mind that I read Vernon Valentine Palmer, The Customs of Slavery: The War Without Arms, 48 THE AMERICAN JOURNAL OF LEGAL HISTORY 177 (2006). Looking at the formal and customary law of slavery in Louisiana during the French, Spanish and American administration of the territory, Palmer paints a picture of a group of people who, though formally enslaved, was able to play a decisive role, at least at the margins, in the elaboration of their condition and the development of rules for their emancipation. He shows how, over several centuries in the territory, there was a “continuous dialectical interaction between slave legislation and slave customary law.” Id., at 178. More importantly, he shows how slaves themselves were important actors in the creation, elaboration and vindication of customary slave law, especially when it served their interests. He “suggests that slaves were conscious participants in the creation in the creation and used their awareness of the law to advance their own interests.” Id., at 181. Slaves were particularly protective of the laws of manumission, especially during the period of Spanish control, when manumission was easier to obtain. Palmer notes that three hundred cartas de libertad were issued during ten years of Spanish administration (17769-1779), many times the number issued under French rule. Id., at 186 & n. 35.

Particularly interesting was the description of the ways in which planters, slaves and municipal authorities would sometimes collude to enforce custom over statute. This was particularly the case where it inured to their respective economic interests to do so. Palmer recounts, for example, the food market at Congo Square in New Orleans. There, slaves brought and sold foodstuffs they produced themselves and sold for their own account—the proceeds of which might eventually buy them their freedom. But the Code Noir forbade this activity in Louisiana. Yet slave produce sales were essential to keep New Orleans fed, slave owners were spared the costs of maintaining their slaves by the amounts the slaves used for that purpose and slaves could use the money for their manumission. In such a situation, “the solution was for the authorities simply to do nothing and to say nothing, and ‘assume’ that the slave vendors were selling goods for their masters, and with permission.” Id., at 192 & n. 66 (quoting JERAH JOHNSON, CONGO SQUARE IN NEW ORLEANS 13 (Wilson Publications 1995).

The experience with self-employment on the Sabbath shows that owners and slaves successfully turned the meaning of several provisions of the Code Noir inside out. They not only managed to reverse the rule that forbade work of any kind on Sundays, but owners circumvented the injunction which forbade them from discharging their own duty to provide rations and foodstuffs by giving slaves another day off (other than Sunday) to work for their own account.

Id., at 202. And thus an oddity that Palmer nicely theorizes: “In this way slaves sought a sphere of autonomy within the totalitarian structure imposed upon them. The customs are strivings for some idle ground. They were a kind of retrocession of rights to legally ‘rightless’ individuals.” Id., at 210. He provides a window on the manner in which the master slave relationship was always being negotiated within the confines of a violent struggle between master and slave, on the one hand and owner and the state on the other. Id., citing Orlando Patterson, Slavery and Social Death: A Comparative Study 207 (Cambridge: Harvard University Press, 1982) and Ira Berlin, Many Thousand Gone: The First Two Centuries of Slavery in North America 2 (Cambridge: Harvard University Press 1998).

For Palmer, the lesson is clear—the evolution of the customary law of slave master relations “fits with Lon Fuller’s theory of the origins of legal and moral duties.” Id., at 211. Even within the confines of the master slave relationship their was a measure of reciprocity, of bartering, rather than merely of the application of brute force. Id., at 211-212. But that required the development of a sophisticated legal consciousness among slaves. Slaves had to know and understand their rights—and have some power to seek their enforcement. In what may be the most significant portion of the article, Palmer explores the extent of the legal consciousness of slaves in Louisiana. Id., at 213-218. Palmer gives several examples of the legal sophistication of slaves and the courage they showed in seeking to vindicate their customary rights, even in the face of conflicting statutory provisions. Indeed, especially with respect to the rules regarding manumission, the “speed with which Louisiana slaves grasped the details of even obscure slave laws is also remarkable.” Id., at 217. Palmer leaves the mechanics of slave knowledge unexplored, though he suggests at least some of the informal channels through which knowledge might have been conveyed. “Perhaps the first informants were within the battalion of free black militia men who came with O’Reilly from Cuba.” Id., at 218. In any case, by 1803, almost 1,500 slaves had had their freedom purchased. Id.

For me, the implications are as clear—the notions of black African inferiority was a knowing construct even at the time of its creation in colonial America. Black African slaves could not have been natural slaves even within the regimes of colonial slavery that sought to construct them as such. It is not clear, then, who the academics, moralists, and other theorists of the day were trying to fool by an elaboration of a theory of natural slavery. Perhaps it was enough that a formal theory was constructed, even one without any basis in even the realities of the day. Certainly de Souza and Palmer make clear that there was a substantial and conscious disjunction between reality and the academic, moral and legal theories developed to serve as a cover for the elaboration of slave codes grounded in an even more loosely constructed racial hierarchy. And perhaps that is the real moral. Reality matters less than the ability to cover over it with something plausible. Formally coherent fantasy can have a far greater and long lasting legal effect than the reality that it seeks to cover. Generations of people may look, and understand the disjunction, and not recognize the disjunction for what it is. The only thing that appears natural in the construction of legal orders of human social and political systems, seems to be the ability to construct legal fictions with formidable effect.

Saturday, September 22, 2007

Fujimori in Perú: The Rule of Law and Trials of Fallen Leaders

A recent Argentine newspaper article described the extradition of Alberto Fujimori, former President of Perú back to his homeland after a long period of exile in Japan following the collapse of his Presidency amidst charges of corruption and human right abuses. Fujimoi regresó a Perú, La Nación, (Argentina) Sept. 21, 2007. The Peruvian state has promised the world (and its people) a trail in which the state will seek expiation of its sins in ridding the nation of the horrible violence of the period of the revolt by the Sendero Luminoso (Shining Path) guerillas, whose European web site may be accessed here. I have suggested the political realities behind the urge to bring the veil of rule of law notions into the arena of criminal trials in which highly placed individuals are chosen to bear the responsibility for the acts of state that in hindsight suggest conduct at variance with some interpretations of international political behavior standards but for which collective punishment would appear to be imprudent. In the context of the trial and execution of Sadam Hussein of Iraq, I suggested:

I don’t write about the trial or the verdict, other than to say that Saddam Hussein has joined a long list of monarchs condemned to death after public proceedings in the form of a trial—Charles I of England, Louis XVI of France, and the defeated leaders of Nazi Germany and militarist Japan, and the political enemies of Marxist Leninist Regimes (especially under Stalin in the 1930s and Mao Zedong in the 1960s). In each case, the trails were meant as theatre. They served to discredit the ancien regime and legitimate the process of regime change. They also served to strip authority from the body of the representative of the prior political order. Then, with that representative reduced to mere man, the man—and not the state—is condemned as mere criminal; he suffers the same penalties as other bandits and outlaws. The state is preserved and punishment for its sins inflicted on the body of its proxy. The state is now reborn.
On the Conviction of Saddam Hussein, Law at the End of the Day, Nov. 6, 2006. This reductionism--the Peruvian government assured the Chileans holding the ex President that Fujimori will be tried as an ordinary criminal in accordance with the rule of law applicable to actions tied to his own conduct, was siad to have been decivive in convincing th Chileans to permit the extradition of Fujimori to Perú. See Alberto Fujimori: "Me voy a Perú, pero con un blindaje legal," El Mercurio (Santiago de Chile) Sept. 22, 2007 ( Gobierno peruano aseguró que su estrategia de no politizar este caso fue decisiva para conseguir que se aprobara la extradición). But the Peruvian people seem to understand another reality. Maria Pastora Sandoval, Blogs peruanos celebran extradición de Fujimori, El Mercurio Online, Sept. 21, 2007 (reporting on sentiments that Fujimori returns to face punishment for the crimes committed during his administration while the world watches).

Still, Fujimori understands the theatre of the trial to which he will be subjected. To meet the performative elements of the state case against him, Fujimori has threatened to produce his own theatre. Fujimori has promised to increase the political spectacle in judicial form by bringing his supporters. Fujimoi regresó a Perú, La Nación, supra ("Fujimori, de 69 años, y que debería llegar a Perú cerca del mediodía, aseguró además que cuando arribe el fujimorismo va a movilizarse."). Thus, we will once again be treated to the spectacle of the state cleansing itself by proxy, and of the utility of the body of past leaders as the tangible place upon which the past sins of the state will be recognized and punished. The state can then continue, freed from its past, now reduced to the "criminal" activity of the leader chosen to bear the collective sins of the people. For an elaboration see Larry Catá Backer, The Führer Principle of International Law: Individual Responsibility and Collective Punishment, 21 Penn State Int’l L. Rev. 509 (2003).

Perú, the state, its apparatus and people, are to a greater or lesser extent, complicit in the revolutionary actions of the Sendero Luminoso wing of the Communist Party's actions in Perú, the causes of that revolutionary activity, and the consequences of reactions thereto. The world will be treated to the spectacle of a very thin slice of that large and violent history of Perú as an exercise in performative reductionism. On the one hand, this performative reductionism--condensing all of the ills of a certain period of Peruvian history into a small set of events drawn therefrom and tied, by ordinary principles of criminal law to the person of the accused in his individual capacity as representative of the state apparatus. But the formal elements of the proceedings will mask the political realities at issue. Fujimori stands accused of tolerating corruption and the murder of individuals in the context of a large scale class war in Perú , which has reached (again) a stalemate of sorts. That stalemate requires tending. Adherence to the forms of the rule of law against an individual may serve that purpose, even as rule of law forms in this case give pause to those who might worry about th eperverse effects of this movement towards a strict formalism that might ultimately discredit rule of law regimes.

And yet, the state requires a confrontation with its past. Perú cannot move forward without understanding and accepting their past. But that confrontation, where limited to the person of Fujimori, provides too easy an excuse for the actions of the nation. It absolves those who profit from systemic corruption, or the arrogance of violence in the name of proletariat dictatorship produced from aggregations of intellectual elitists who embraced a praxis of blood with significant ethnic rather than class overtones. But confronting these issues is hard. Falling back on the rule of law to engage in elaborate acts of symbolic punishment is easier. But law and nation suffer.

Wednesday, September 19, 2007

The Other Sectarian War in Iraq: Iraqi Christians, the Vatican, American "Soft" Islam and a Future of Fractured Constitutionalism

The BBC reported recently that Benedict XVI refused to receive the American Secretary of State this past August. David Wiley, Pope 'Refused Meeting With Rice,' BBC News Online, Sept. 19, 2007. The report suggested two reasons for the snub. First was payback--apparently the Papal Ambassador had been badly treated by the Bush Administration early in the current Iraq War, and this was viewed as a nice way of paying back the slight. A small payback in any case since the Pope has been careful to meet with President Bush in June, 2007 to hear the American Administration's case for continued activity in Iraq. For a video report click here.
Secondly, the US has responded in a manner considered unacceptable at the Vatican to the protection of the rights of Iraqi Christians under the new Iraqi constitution. The Bush administration has told the Vatican that as coalition forces have not succeeded in securing the whole territory of Iraq, they are unable to protect non-Muslims.
David Wiley, supra. This mirrors recent criticism by the Archbishop of Canterbury, who suggested in 2006 that "there was "no doubt" that life for Christians in Iraq had become more difficult since the invasion." Archbishop Attacks Iraq Strategy, BBC News Online, Dec. 23, 2006.

And indeed, the BBC has reported on the increasing difficulties of Christians in Iraq, a community that predates Iraq's Islamization by a number of centuries.
In fact, the number of Christians in Iraq is decreasing because of death threats and kidnappings. Many have been killed. It means we have no freedom to move around. It's especially difficult for women - they are prisoners in their own homes. This forced me to send my wife and four daughters to Syria. Situations vary from neighbourhood to neighbourhood. In some areas we can't practise our religion in a normal way, while in other places we can go to Church but there is no safety guarantee.
Iraq Surge: Christian Family, BBC News Online, Sept. 10, 2007 (quoting Kurkies Ishou, a member of an Iraqi Christian party called Bait Al-Tahrain).

The Iraqi constitution provided the Vatican with a perfect opportunity to contribute to the developing dialogs about the contours of next generation constitutions--represented by the U.S. influenced Iraqi and Afghani Constitutions--which appear to develop substantial departures from the post WWII constitution models of Germany and Japan, as well as the post dictatorship constitution models of Argentina and South Africa. The Iraqi constitution, in particular, is an ethnic constitution. It accepts ethnic fracture within a monolithic religious framework. That religious framework gives the Iraqi constitution its form and cohesion. I have suggested the difficulties of this choice of framework. See Larry Catá Backer, God(s) Over Constitutions, Law at the End of the Day, Jan. 8, 2007. I have also indicated the not so hidden agendas behind that constitutional project. Larry Catá Backer, Of Political States and "Soft" Religion as the Basis for State Organization, Law at the End of the Day, July 16, 2007.

But the Vatican reminds Americans (and through the Americans, the Iraqis) that Iraq, like Afghanistan, is divided by religion as much as it is divided by ethnicity (beyond the schism between Sunni and Shi'a Islam). See Larry Catá Backer, Constitution and Apostasy in Afghanistan, Law at the End of the Day, March 28, 2006. In that context, Constitutions that exclude through frameworks that marginalize citizens pave the way for interventions from outside the state. Indeed, such constitutions serve to weaken the monopoly of state power over its citizens by suggesting a hierarchy of citizenship based on fracture. It would follow then, that failing to provide an equal dignity to Christian Iraqis, it falls to communities outside the state to represent the political interests of those citizens within the state. And so, it is to the Vatican to protect the rights of Iraqi Christians (might it be to Israel to protect the interests of the People of Israel in Iraq?). Certainly the Iraqi Constitution might make that possible, and it appears to have become a necessity. Constitutionalism in this form thus forms another step in the process of weakening the state as the final repository of rights and powers over individuals.

This is an observation that has not been lost on ethnos based political communities. Consider the People's Republic of China, about which in this context I have recently written. See Larry Catá Backer, China and the New (Old) Citizenship: Overseas Chinese, "Soft" Citizenship, and the Homeland, Law at the End of the Day, Sept. 17, 2007. Like the Vatican, the People's Republic of China has sought to project its power over the members of its community beyond the formal niceties of state theory and formal citizenship. By so doing, the Chinese, like the Vatican, have suggested a limitation on the functional power of formal instruments, like constitutions. The Chinese look to the interests of its emigrants, who retain ties--economic, cultural and perhaps political (for in a Marxist Leninist world view the three merge)--with the homeland, a "soft" citizenship worth protecting. The Vatican looks to the interests of the Christian community who retain ties with each other in another form of "soft" citizenship--in the Christian "nation." This notion of religious nationality is strong within the rising legal traditions of constitutional law in Muslim majority states. Consider Article 11 of the Constitution of the Islamic Republic of Iran:
all Muslims form a single nation, and the government of the Islamic Republic of Iran has the duty of formulating its general policies with a view to cultivating the friendship and unity of all Muslim peoples, and it must constantly strive to bring about the political, economic, and cultural unity of the Islamic world.
This constitution of nationality based on the ties of religion are not unique to Islam. Nor are they unique to religion. Yet, so (re)constituted, we might be witnessing (again) the rise of overlapping, functionally differentiated and overlapping autonomous communities with varying degrees of authority over its members. We have seen this rise in the area of global economic organization. See Larry Catá Backer, Economic Globalization and the Rise of Efficient Systems of Global Private Law Making: Wal-Mart as Global Legislator, 39(4) University of Connecticut Law Review 1739 (2007). We are now seeing it rise within the public constitutional global order(s).

Monday, September 17, 2007

China and the New (Old) Citizenship: Overseas Chinese, "Soft" Citizenship and the Homeland

The issue of migration and identity has been a troublesome one for some time. In the West, there is a great tension between a tendency to want to open borders to those people seeking to enter to improve their lives and join the host community and an equally strong tendency to want to close borders to migrants who come for the money and have no intention of assimilating to the host culture. Tied to the issue of migration, then, is the question of loyalty to host and home state. In a world in which ethnos and nationality converge, some argue the difficulty migrants face in seeking to change nationality. Ethnic citizenship and ethnic nationality portends poorly for individuals seeking to find a permanent home in a host state. The current trend, at least until the early 21st century, appears to look suspiciously on ethnic states, to suggest a strict division between culture/ethnicity and citizenship, and between political loyalty and socio-cultural assimilation. But all bets are off on this model in the aftermath of the breakup of Yugoslavia in the 1990s and the imminent breakup of Iraq in the early 21st century. Those places suggest a reemergence of ethnos as a basis of nationality. The ethnic cleansing and mono ethnic state not tolerated when attempted by Serbia in the early 1990s, appears to be a model for places like Kosovo and Iraq, if only de facto.

Now the Chinese have weighed in on this issue in a very interesting way. China is an interesting case. A hybrid of sorts that may provide a window on the relationship between ethnicity and citizenship n the coming century. The Chinese Constitution declares the People's Republic to be a multi ethnic state.

Article 4. All nationalities in the People's Republic of China are equal. The state protects the lawful rights and interests of the minority nationalities and upholds and develops the relationship of equality, unity and mutual assistance among all of China's nationalities. Discrimination against and oppression of any nationality are prohibited; any acts that undermine the unity of the nationalities or instigate their secession are prohibited. . . . All the national autonomous areas are inalienable parts of the People's Republic of China. The people of all nationalities have the freedom to use and develop their own spoken and written languages, and to preserve or reform their own ways and customs.
At the same time, there are elements of ethnos in the Chinese constitutional order.
Article 50. The People's Republic of China protects the legitimate rights and interests of Chinese nationals residing abroad and protects the lawful rights and interests of returned overseas Chinese and of the family members of Chinese nationals residing abroad.

The meaning of this provision has not been clear. But recent reports suggest a broad applicati0on of the principles underlying this provision. Like the Irish in the 1990s, China is now seeking the return hom eof its most successful emigres.

The People's Daily has recently reported on a suggestion from Jia Qinglin, a member of the higher reaches of Chinese Communist Party circles, that implies that migration should not affect ultimate political loyalty of Chinese emigrants to their home state--at least among "overseas" Chinese. See China's Top Political Advisor Voices Five-Point Hope for Overseas Chinese, People's Daily Online (Sept. 16, 2007). The suggestion was made overseas--in Japan--and was targetted at the elite of China's emigré communities abroad. "China's top political advisor Jia Qinglin voiced in Kobe, Japan on Saturday his five-point hope for overseas Chinese when addressing the opening ceremony of the 9th World Chinese Entrepreneurs Convention (WCEC)." China's Top Political Advisor, supra.

Essentially, Jia Qinglin made a pitch to Chinese emigrés to more positively participate in China's economic development by serving Chinese interests abroad.
the first is that overseas Chinese can live harmoniously with local people and actively push forward the development and progress of the country they live in.

The second is that China welcomes overseas Chinese, with their own advantages, to take part in China's modernization in various forms.

The third is that overseas Chinese can be united closely in opposing "Taiwan independence" secessionist activities in any form, and continuously promote personnel, economic and cultural exchanges across the Straits so as to push for an early realization of China's reunification.

The fourth is that overseas Chinese, while learning from other countries, can carry forward and promote Chinese culture.

The fifth is that overseas Chinese can help promote people-to- people friendship between China and other countries in the world.
China's Top Political Advisor, supra. The venue for this exposition was carefully chosen. It was made at the Japanese meeting of the 9th World Chinese Entrepreneurs Conference. " The WCEC was first held 1991 in Singapore. Since then, it has been held in Hong Kong, China, Bangkok, Thailand, Vancouver, Canada, Melbourne, Australia, Nanjing, China, Kuala Lumpur, Malaysia, Seoul, Republic of Korea, promoting local as well as regional and national economy of the host countries." Backgrounder: World Chinese Entrepreneurs Convention (WCEC), People's Daily Online, Sept. 15, 2007. The WCEC described the conference in these terms: "Ethnic Chinese businessmen from all over the world(Executives of Chinese ancestry) got together and they discussed about establishing economic networks and focused on the revitalization of Ethnic Chinese and Decent Chinese economics; Whose purpose is that contribute to economic development for the host country." The 9th World Chinese Entrepreneurs Conference, About the 9th World Chinese Entrepreneurs Conference.

The language of the five point plan was thus meant to be clearly economic--China seeks to more pro-actively harness the great wealth and networks of overseas Chinese communities. It was also sensitive to the realities of the precariousness of Chinese settlement in may countries in Asia, where they are still viewed as unassimilable and as neo-colonialist outside exploiters. But that, itself, is telling of the difficulties of getting away from ethnos as a touchstone of belonging to political communities (irrespective of assimilation though complicating its effects--even outside the West). On the Chinses disaspora in Malaysia, a particularly sensitive spot in this respect, see Jonathan Kent, Chinese Disaspora: Malaysia, BBC News Online, March 3, 2005 (describing the changes in the Malay Chinese community since the anti Chinese riots of 1969. "Most visitors to Malaysia are struck by how successfully the country's Chinese population has preserved its identity - in contrast to Thailand, for instance, which has operated a policy of assimilation. "We're like a little backwater of Chinese culture as it was in China 80 years ago," said heritage architect Jimmy Lim." Id.).

It also mirrors the fluidity of citizenship that finds expression in its Nationality Law. See Nationality Law of the People's Republic of China (Article 2 The People's Republic of China is a unitary multinational state; persons belonging to any of the nationalities in China shall have Chinese nationality; Article 9 Any Chinese national who has settled abroad and who has been naturalized as a foreign national or has acquired foreign nationality of his own free will shall automatically lose Chinese nationality.). That fluidity of meaning has marked the last century of Chinese history, and is only now becoming more conventional in a globally understood sense. See the essays in Changing Meanings of Citizenship in China (Merle Goldman, Elizabeth J. Perry, eds., Cambridge: Harvard University Press, 2002).

But there is a cultural and political element as well. The call to resist Taiwanese independence is no surprise. Chinese officials have been seeking every means to counter the increasingly vocal campaign by Taiwan to seek to regularize its status outside of China. More interesting is the call to learn from other countries, sometimes the country of citizenship, and "carry forward and promote Chinese culture." Citizenship does not seem to affect either the cultural foundations of the individual, or an obligation to promote the interests of the home state through culture. Chinese citizens of foreign states appear bound to learn what they can from their foreign hosts and promote Chinese culture in that foreign land. To the extent these foreign nationals living abroad are family members of Chinese nationals, the Chinese state has an obligation to protect their legitimate rights and interests. Chinese Constitution art. 50. Those interests are cultural, but principally economic.

China has been increasingly projecting power abroad. It has done so in traditional ways--through extensive military exercises and entanglements, through aggressive investments abroad and the locking up of the natural resources of other states (especially in Africa and South America), through a more active diplomacy. And now, in a most interesting way, through the reconstitution of "soft" citizenship based on ethnos, within a formal construct of citizenship based on residence and application. Ethnic Chinese may become formal citizens of other places, but they remain "Chinese", and to that extent owe a soft allegiance to the source of culture and ethnic identity. In return, the state owes to them an obligation to protect their interests as "soft" Chinese. That is the understanding that
Jia Qinglin means to elaborate. That is the understanding that Malay Chinese understand as they look to a reinvigoated China to protect their interests as Chinese Malay citizens.

"From 1969 onwards the Chinese actually fought to preserve their culture, heritage and... education," said Jadryn Loo. The 1998 anti-Chinese riots in Indonesia reinforced the sense of insecurity. But an emergent China could change all that, particularly if Malaysia's Chinese community can act as a bridge to the new big boy on the block. "We will feel much safer, and in fact we will feel much [more] important when China emerges as a superpower," said Jadryn Loo.
Jonathan Kent, Chinese Disaspora: Malaysia, BBC News Online, March 3, 2005. We return, in a sense, to an old fashioned approach to multi layered citizenship. Formal citizenship becomes merely the beginning of an analysis of political, cultural, ethnic and affective loyalty and affinity loyalties. "Soft" citizenship may become as important as formal citizenship in the coming century. In that respect China may be pointing the way to a different sort of future. But beware, "soft" citizenship can bite. To the extent it becomes a thinly veiled means for bullying less powerful countries through effort to directly reach Chinese ethnics in those states, it smacks of the sort of neo-colonialism that China had traditionally been in the forefront against. To the extent it can proceed only outward--from out of China and not into China, the policy runs the risk of being discredited as another means of exploiting economic power unfairly. That may not be in China's log term interests. But this last point severely affects China's internal security and the balance of its ethnic policies, especially in the Uighur regions. It is likely that were Jia Qinglin's suggestions to come from the mouth of the Kazakh Prime Minister, and directed to the Turkic people's of China, the protests in China would be loud indeed.



Saturday, September 15, 2007

The UnRepentant: Fidel Castro Confronts Cuban Globalization

I have suggested the ways in which Cuba has been moving toward an embrace of a Chinese style engagement with globalization. That engagement has put the armed forces of Cuba--the Fuerzas Armadas Revolucionarieas (FAR)--under Raúl Castro's leadership, at the forefront of a movement to reorder the foundations of Cuban economic organization without substantially affecting the "socialist" characteristics of the Cuban Revolution of 1959. That engagement has seen a movement to reordering the state economy from a typically Soviet centrally planned structure, to one that is heading toward corporate organization. Where the relationship between the state and the factors of economic production will transition from that of an owner (effectively a corporate sole proprietor--for that is the essence of centrally planned economies), to one more resembling that between a shareholder (usually a controlling shareholder) and its corporation. See Larry Catá Backer, Cuban Corporate Governance at the Crossroads: Cuban Marxism, Private Economic Collectives, and Free Market Globalism, 14 (2) Journal of Transnational Law & Contemporary Problems 337 (2004).

This sort of change will have great consequences for Cuban economic organization. It may permit the sort of investment and trade with outside public and private entities that will produce a greater integration of the Cuban economy with that of the rest of the world. And it may well result in a reduction of the power of the state to intervene. As shareholder rather then sole proprietor, the state will assume a secondary (though still vital and important)
role in economic governance. It will tend to determine policy through its boards of directors rather than manage the day to day affairs of these enterprises. And when engaged in joint ventures with foreign entities, its role will be even more remote.

The ideological difficulties these changes will bring are great. And its consequences have not been completely determined. When these changes were steered through the organs of Chinese Communist Party leadership in the late 1970s by Deng Xiaoping, there were significant voices raised in opposition. See Backer, supra. Now in Cuba, a great voice has been raised in pointed opposition--that of Fidel Castro himself. In a remarkable address, Fidel Castro Ruz, Reflections of the Commander in Chief: The Super Revolutionaries, (Sept. 3, 2007) (in the original Spanish here) Fidel Castro has publicly criticized Socialist engagement with economic globalization of the very sort that Cuba is now cautiously embracing.

The "Reflection" is not directed internally. It focuses on the errors of well meaning friends of the Revolution. He starts by reminding his readers of the fatal deficiencies of the current "neoliberal" system of private economic globalization, especially from a social and political perspective. "
The theory of continuous growth from investment and consumption, applied by the most developed to the countries where the vast majority is poor, surrounded by luxuries and the wastefulness of a tiny minority of wealthy individuals, is not only humiliating but destructive, too. That pillage, and its disastrous consequences, is the cause of peoples’ growing rebelliousness". Reflections, supra. In the original Spanish it reads thus: "La teoría del crecimiento continuo de la inversión y el consumo, aplicada por los más desarrollados a los países donde la inmensa mayoría es pobre, rodeada por lujos y derroches de una exigua minoría de ricos, no solo es humillante sino también destructiva. Ese saqueo y sus desastrosas consecuencias es la causa de la rebeldía creciente de los pueblos." Reflexiones, supra.

Castro reminds his readers that in a world order driven by consumption, everything is for sale,
including, it would seem, the "most gifted and cultivated intellects" ("Law inteligencias más dotadas y cultivadas
"). These intellects "have their price tags on the world market of goods and services" Reflections, supra. ("están tarifadas en el mercado mundial de bienes y servicios" Reflexiones, supra.). The market for ideas, Fidel Castro suggests, has worked its magic. And that helps explain the fate of the "super revolutionaries of the so-called left" ("los superrevolucionarios de la llamada extrema izquierda").

What is the evidence that these great intellectuals, defenders of the Cuban Revolution, and frequent guests of the Cuban state? The suggestions, increasingly made, are that Cuba embrace a posture of economic engagement with the global economic system! The basis of this advice, Fidel Castro suggests, is grounded in a reconsideration of the foundational understandings of the Cuban Revolution: First, the U.S. blockade does not exist, "it would appear to be a Cuban invention"
Reflections, supra. Second, Cuban must reconsider its single minded cultivation of the talents of its people and refocus its educational programs. "They sustain that some must live doing simple and rough work." Reflections, supra. And they overlook the value of the Cuban health care system. Reflections, supra.

But worst of all--they advocate an engagement with globalized business--the very global economic system that Fidel Castro has argued has been the ruin of developing states. See Larry Catá Backer, Ideologies of Globalization and Sovereign Debt: Cuba and the IMF, 24 Penn State Int’l. L. Rev. 497 (2006).
Thus, Fidel Castro suggests:

If foreign investments in housing had not been stopped in time, they would have constructed tens of thousands without any more resources than the prior sales of that same housing to foreign residents in Cuba or abroad. Furthermore, they were joint enterprises governed by a legislation intended for productive companies. There were no limits for the authority of the buyers as owners. The country would supply services to those residents or clients, without the need of being knowledgeable in science or computers. Many of the dwellings could be acquired by the enemy intelligence agencies or their allies. Reflections, supra.

De no haberse detenido a tiempo las inversiones extranjeras en viviendas, habrían construido decenas de miles sin más recursos que la venta previa de las mismas a extranjeros residentes en Cuba o en el exterior. Eran además empresas mixtas regidas por otra legislación creada para empresas productivas. No había límites para las facultades de los compradores como propietarios. El país suministraría los servicios a tales residentes o usuarios, para lo cual no se requieren los conocimientos de un científico o un especialista en informática. Muchos de los alojamientos podían ser adquiridos por los órganos de inteligencia enemigos y sus aliados. Reflexiones, supra
It follows, Fidel Castro argues, that this sort of engagement is "pure poison; the most typical of the neoliberal formulae" Reflections, supra ("veneno puro. Las fórmulas más típicas del neoliberalismo." Reflexiones, supra.). Fidel Castro thus argues against any significant move toward an engagement with the global economic system. Since it is the system itself that is poison--the ideological basis of economic globalization that is both fatally flawed and incompatible with Cuban Revolutionary values--it is the introduction of the values and practices of that system, rather than engagement with any particular state, that is particularly dangerous for Cuba. The juridico-political framework of economic globalization corrupts when engaged. It cannot be turned to the profit of the Revolution.

It follows as well, for Fidel Castro, that the only path toward engagement with the "enemy" ideology is a system of strictly monitored and controlled relationships within the Island. Cuba must continue to seal itself off from direct contact with what Fidel Castro might refer to as the neoliberal contagion. "We need some of the joint enterprises since they control very necessary markets. But you can hardly flood the country with money and not sell our sovereignty "
Reflections, supra. (“No se puede prescindir de algunas empresas mixtas, porque controlan mercados que son imprescindibles. Pero tampoco se puede inundar con dinero el país sin vender soberanía.” Reflexiones, supra).

Thus, like the conservative elements of the Chinese Communist Party who argued the incompatibility of Marxist-Leninist-Maoist ideology and state organization with a markets and non-state directed ideology, Fidel Castro suggests that the founding ideology of the Cuban Revolution will be poisoned by engagement. It will become the thing it hates most. Though Fidel Castro points the arguments to foreigners--the friends of the Cuban Revolution who seek to tell the Cuban nation what is in its best interests, it won't escape anyone's notice that the real object of this "Reflection" might not be Raúl Castro and the FAR. Especially since his speech on the anniversary of the attack on the Moncada barracks, Raúl Castro has made it increasingly a matter of public record, the intention of the FAR leadership to move the country toward a Chinese style mode of governance. See Larry Catá Backer, On the Anniversary of the Attack on the Moncada Barracks: Cuba Moves Forward towards its Chinese Future, Law at the End of the Day (July 27, 2007). Deng Xiao Ping had the luxury of time and the authority to interpret the Thought of Mao Zedong, without Mao looking over his shoulder. Raúl Castro does not have that luxury--though perhaps for the survival of the current regime he might need it more. Fidel may be reminding his brother and the FAR that they ought to proceed cautiously, or at least discretely, as they remake the Cuban state consistent with the Thought of Fidel Castro.