Law at the End of the Day

Education to Meet the Labor Needs of Markets--Cuba Changes its Approach to University Education

2012-05-23T16:12:00.002-04:00

I have suggested how the Cuban State was rethinking the way it supported university education. Backer, Larry Catá, 'Order, Discipline and Exigency': Cuba's VIth Party Congress, the Lineamientos (Guidelines) and Structural Change in Education, Sport and Culture? (July 1, 2011). Consortium for Peace and Ethics Working Paper No. 2011-2.The object was to change the focus of university education from ideology supporting humanities to income producing sciences, agricultural studies, and engineering.

The Lineamientos themselves marked a significant change in the way that the Cuban state apparatus and the Cuban Communist Party addressed the future needs of the State and Society within a refocused Marxist Leninist foundation. See Larry Catá Backer, Cuba's 6th Party Congress and the Lineamientos (Guidelines) For Structural Change In Cuba, Law at the End of the Day, May 17, 2011.

Juan Tomayo recently wrote how the Cuban state is making good on this intent, first articulated in the Lineamientos and then transposed to state policies and programs:

Cuban universities have slashed enrollment by nearly 26 percent, apparently because of deep cuts in government spending, while several foreign investors are leaving the island, according to official and news media reports.
The two reports reflected the downsides of Cuban ruler Raul Castro's effort to fix the island's doddering economy by cutting state spending on education, health and food rations, and his campaign to carry out tight reviews of foreign investments amid a slew of corruption scandals.
Cuba's National Statistical Office, or ONE, reported this week that overall enrollment in universities - all state-controlled - dropped from 473,309 in the 2010-2011 school year to 351,116 in the 2011-2012 period. That's a drop of 122,193 students, or 25.8 percent.
The largest group of students, 118,914, was enrolled in medical sciences, reflecting the government's high interest in educating doctors, dentists and nurses - Cubans to staff the domestic health system or work abroad, and foreigners on scholarships to study there.
The biggest drop in enrollment was in social sciences, though it remained the second largest group with 77,200, according to the ONE report.
Cuba's Ministry of Higher Education sets admission quotas depending on the skills needed, but government officials have complained recently that universities are turning out too few scientists who can help modernize the economy and open new areas of production lines.
"Like other developing states, Cuba is trying now to push away from ideologically useful education - the social sciences and humanities - to job- and wealth-producing fields," said Larry Cata-Backer, a professor of International Affairs at Pennsylvania State University who has studied the Cuban education system.
Cuba's communist government has long boasted of its achievements in health and education - the record of 711,000 university students in 2008-2009 was a stunning figure in a country of 11.2 million - although both areas have suffered significantly since the Soviet Union halted its massive subsidies in the early 1990s.
The Health Ministry announced in January that it had cut its 2011 budget by 7.7 percent, and officials at the Higher Education ministry have noted that each university graduate costs the state 25,000 to 40,000 pesos - roughly $890 to $1,450.
Castro has trimmed the food ration card and other government subsidies, allowed more private micro-businesses such as barbershops and announced plans to slash 500,000 workers from state payrolls in hopes of "updating" Cuba's Soviet-styled economy. (Juan O. Tamayo, Cuban universities cut enrollment; foreign investors are leaving, McClatchy Washington Bureau, May 17, 2012).

Most interesting are the parallels between this move by the Cuban state and similar moves by U.S. universities as the model here moves from one based on the provision of a well rounded education to one that more precisely meets the needs of the labor markets into which graduates are inserted.

The Cubans, of course, are not unique in this respect. Many jurisdictions in the United States, and to some extent, public education and the provision of culture in the United Kingdom, are facing the same dilemmas. Ironically they are also responding in a similar way, after years of increasing funding for education.
Think about it. Over the next 10 years, nearly half of all new jobs will require education that goes beyond a high school education. And yet, as many as a quarter of our students aren't even finishing high school. . . . That responsibility begins not in our classrooms, but in our homes and communities. It's family that first instills the love of learning in a child. . . . Our schools share this responsibility. When a child walks into a classroom, it should be a place of high expectations and high performance. But too many schools don't meet this test. That's why instead of just pouring money into a system that's not working, we launched a competition called Race to the Top. . . . In South Korea, teachers are known as "nation builders." Here in America, it's time we treated the people who educate our children with the same level of respect. (Applause.) We want to reward good teachers and stop making excuses for bad ones. . . . And over the next 10 years, with so many baby boomers retiring from our classrooms, we want to prepare 100,000 new teachers in the fields of science and technology and engineering and math. (Barack H. Obama, State of the Union Address, January 26, 2011. 2011).

The State of the Union speech by the American President sounds like it was taken from the core section of the education provisions of the Lineamientos. It follows that it is not necessarily the Marxist Leninist principles on which the Cuban State is founded that have produced a substantially unsustainable system of education, sport and culture. Free market states face similar if not graver problems. The issue appears to be global in scope—the difficulty of a commitment to public education in a context in which the popular pressure on States forces expenditures for other purposes. And like free market states, this move away from a privileging of education, sport and culture as a public obligation is compounded by the diminution of the social position of the key factor in the production of the three—teachers. Reading the Lineamientos it is sometimes not clear whether the document was produced in Havana for Cuba or in Harrisburg for Pennsylvania. But whether in Pennsylvania or Cuba, it is clear that substantial changes to the public education system are in the offing, and that those changes are in part determined by changing requirements of economic and political policy, but perhaps in larger part determined by the unwillingness of the State to continue to privilege education, sport and culture at the expense of other objectives. (From Larry Catá Backer, 'Order, Discipline and Exigency': Cuba's VIth Party Congress, , supra.).

It seems that the productive needs of society, whether understood as driven by markets or other economic forces, appears to have become the engine that now drives education. Ideological training, once central to the idea of education of productive forces of society in Cuba has been re-imagined. Larry Catá Backer, Irony and Incoherence in the "Professionalization" of University Education, The Faculty Voice: Sharing While Chairing the Penn State Faculty Senate, May 22, 2012.

Guest Blog: Nicholas Roland on Legally Granting Entitivity, or Granting Personhood to Non-Persons

2012-05-18T01:35:00.000-04:00

My colleague here at Penn State, Nicholas Rowland, an assistant professor of sociology resident at our Altoona, Pennsylvania campus. He received his Ph.D. from Indiana University in Bloomington, IN, Department of Sociology focusing on the Sociology of Technology with a minor study in Cultural Studies. He is also a principal contributor to Installing (Social) Order, a blog on the sociology of infrastructure, exploring the sociotechnical nerves of contemporary society, originally formed as an informal work group of researchers at Bielefeld University's Department of Sociology.

(Pix courtesy Nicholas Rowland)

Rowland has been doing some vguest blogging on this site (see Guest Blog: Nicholas Rowland on "What are States Made of?"). He writes this time on Legally Granting Entitivity, or Granting Personhood to Non-Persons.

In 1886, the Supreme Court granted corporations personhood, or at least the same rights as were granted to any living person, and justified the decision based on the Fourteenth Amendment to the Constitution. The 1886 legal transformation (or imbuement) now, in retrospect, appears to figure prominently in theoretical models of organizations, corporations, and states, especially, the idea that these entities are straightforward actors, unsurprisingly, able to act. Most obviously this fits into the work of Alexander Wendt who famous (and controversially) claimed “states are people too” in his famous article in Review of International Studies, “The state as person in international theory”.

For some background on corporations and corporate entitivity, I turn to David Korten’s (1995:185-6) well-known book The Post-Corporate World: Life After Capitalism, wherein we learn that:

In 1886, . . . in the case of Santa Clara County v. Southern Pacific Railroad Company, the U.S. Supreme Court decided that a private corporation is a person and entitled to the legal rights and protections the Constitutions affords to any person. Because the Constitution makes no mention of corporations, it is a fairly clear case of the Court's taking it upon itself to rewrite the Constitution.
Far more remarkable, however, is that the doctrine of corporate personhood, which subsequently became a cornerstone of corporate law, was introduced into this 1886 decision without argument. According to the official case record, Supreme Court Justice Morrison Remick Waite simply pronounced before the beginning of argument in the case of Santa Clara County v. Southern Pacific Railroad Company that
The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of opinion that it does.
The court reporter duly entered into the summary record of the Court's findings that

The defendant Corporations are persons within the intent of the clause in section 1 of the Fourteen Amendment to the Constitution of the United States, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws.
Thus it was that a two-sentence assertion by a single judge elevated corporations to the status of persons under the law, prepared the way for the rise of global corporate rule, and thereby changed the course of history.

The doctrine of corporate personhood creates an interesting legal contradiction. The corporation is owned by its shareholders and is therefore their property. If it is also a legal person, then it is a person owned by others and thus exists in a condition of slavery – a status explicitly forbidden by the Thirteenth Amendment to the Constitution. So is a corporation a person illegally held in servitude by its shareholders? Or is it a person who enjoys the rights of personhood that take precedence over the presumed ownership rights of its shareholders? So far as I have been able to determine, this contradiction has not been directly addressed by the courts.
Shifting gears back to thinking about states, the language that is used sometimes in International Relations, political sociology, and political science is “entitivity”. This is a description of legal reality, meaning that a corporation (which is really just an idea or organizational form) can be treated as an actor, entity, or, in this case, person. This is also more than a description because it has been so profoundly reified over the last decades, by which I mean to say that the we assume states are in fact the free-standing actors that we assume-them-into-being and this happens to such a great extent that statements like "The US just sent a strong message to China" can actually be comprehended by average people. So reified is the state actor idea during the neo-statist turn in sociology, history, and political science during the 1980s/90s that one got the feeling that you could have actually snapped a picture of the state.

Regarding the action or behavior of “entities” such as states or corporations, there is a rule amongst neo institutional scholars, especially in organizational analysis, to avoid saying, for example, that "Apple just released the iPhone 4S" because the corporation actually did not do that and instead this comment is a shorthand for going to the trouble to say that Apple executives, based on the work of myriad employees, decided to release their product into a particular set of markets. This also explains the massive emphasis on leadership and management in organizational studies because the behavior of leadership is often mistaken for how an organization behaves or how an institution – like a university – thinks (thank you, Mary Douglas).

In this way, group-level behavior is sometimes subsumed in the emphasis on leaders (i.e., the group is spoken for by the management that leads them); other times, group-level and leader behavior (and whatever infinite nuance must go into all that) get subsumed under the seemingly single behavior/activity of the overarching entity (i.e., the entity appears to act/behave/speak for both group and its leadership). In all, there is no easy way to sort out these sorts of issues, at least, to my knowledge, as it is mainly a matter of perspective and whatever the analytical starting point is. Some might say, however, that this whole debate can be explained away because it is merely a case of category error; for example, the student taking a tour of campus during orientation is shown around The Pennsylvania State University, and, at the very end of the tour, says “I've seen the buildings, and the faculty and the students, but where is the University?”. The obvious and logical conclusion, therefore, must be that states, organizations, and corporations are simply operating at a different (read: hierarchically superior) level of organization from individual human beings. That might sound reasonable for sociologists from the 1950s (or even some of them now); however, while hierarchy and terms like “power” are useful for understanding such relationships, the two terms are also a shortcut for doing the hard work of describing what happens when, for example, a state appears to act in some fashion. Put another way, and one that I subscribe to: if we assume no hierarchies, and assume whatever appear to be hierarchical power relations are actually people on the ground in various network formations operating on a flat plane of existence, then we have another view (one more akin to Deleuze and Guattari’s view of the world as composed of A Thousand Plateaus).

A final option exists, and that is to treat this entire issue not as a legal reality or scholarly conception, and instead suggest that this is a perception issue, which has the potential to satisfy both camps. This is an argument under development, so forgive its crudeness. Consider social psychologist Jennifer L Welbourne’s very traditional paper “The Impact of Perceived Entitivity on Inconsistency Resolution for Groups and Individuals” published in the conservative psychology journal, Journal of Experimental Social Psychology. The thrust of her argument is nicely encapsulated in the final line of her abstract:
Abstract

Previous research has indicated that differences in perceived target entitivity influence the degree to which information about a group or individual is processed online. The current set of studies examines whether perceptions of entitivity are also associated with differences in the content of impressions formed of groups and individuals. Specifically, if perceptions of high entitivity motivate perceivers to seek coherence in a target, impressions of individual (high-entitivity) targets should be characterized by greater resolution of behavioral inconsistencies than impressions of group (low-entitivity) targets. Study 1 provided evidence for this hypothesis by demonstrating that perceivers were more likely to apply restrictive diagnosticity schemas to resolve inconsistent behaviors in a predicted direction when the target was an individual than when the target was a group. Two additional studies were conducted to determine the specific aspect of target entitivity that produced these results: perceiver expectations about the similarity and consistency of a target's behaviors (Study 2) and perceiver expectations about the unity of a target's intentions and goals (Study 3) were manipulated and the resulting impressions were examined. The results suggest that perceptions of unity in a target's intentions and goals underlie the assumptions of entitivity and the obtained impression effects.
All we need to do is to uncover a set of cases that allow us to empirically observe instances where the perceived unity of a state’s intentions and goals fuel the underlying assumption that indeed the state is an entity, which produce the impression effects. Now, if we don’t assume states are entities in advance, which we must if we are going to chalk-up their entitivity to impression effects, then we must assume that states are, to some extent, made “anew” each time we invoke them and fortified by routine invocation. So, who does this sort of performative invocation? Finding a few cases like that would make a fine book…

Dermott Groome Opens Proceedings Against Ratko Mladic

2012-05-17T16:49:00.003-04:00

My colleague Dermot Groome opened proceedings against Ratko Mladic after a long period of preparation.

("Ratko Mladic, right, the former Bosnian Serb military commander, at the start of his trial at The Hague on Wednesday." Marelise Simons, Former Bosnian Serb General Hears Indictment, and Insults, as Trial Opens, New York Times, May 16, 2012)

The New York Time nicely captured the first day.

On Wednesday, Mr. Mladic finally faced his judges as his trial opened at a United Nations tribunal here.

Sitting upright between two guards, Mr. Mladic, 70, looked more frail and aged than the burly soldier he once was, a power-strutting commander who inspired deep terror among Bosnian Muslims and Croats and great admiration in Serbia.

In the 12 months since he was brought to the court in The Hague, after hiding from it for 17 years under the protection of friends, he has not spoken of the past, let alone the 100,000 who died in Bosnia, except to ask for his military uniform. He has mostly complained about his age and ailments.

But on this day, as a prosecutor, Dermot Groome, presented his narrative of the war and what he described as Mr. Mladic’s leading role, Mr. Mladic seemed revived, even animated, by film shown in the court, scenes from the time he kept the city of Sarajevo under siege for 44 months of shelling and sniping at civilians. And he nodded approvingly as rousing political speeches from 1992 were replayed, calling on Bosnian Serbs to rally for war against perceived Muslim and Croatian enemies.

The court heard the prosecutor’s dry and methodical recitation of how, in ethnically mixed Bosnia, Serbian politicians and military leaders carefully planned a campaign of ethnic cleansing, attacking and terrorizing non-Serbian civilians to clear out whole regions and turn them into lands only for Serbs. Tens of thousands of civilians were killed or fled their homes. The campaign to divide Sarajevo, which the prosecutor said was “once a model of ethnic diversity,” left more than 10,000 people dead. He played the sounds of what he called radio intercepts in which Mr. Mladic was heard personally directing fire against civilian targets in Sarajevo’s Old Town. (From Marelise Simons, Former Bosnian Serb General Hears Indictment, and Insults, as Trial Opens, New York Times, May 16, 2012).

The full videos of the start of trial of Ratko Mladić – Prosecution’s Opening Statements of 16 May and 17 May 2012 – are now available for viewing.

John Sherman on the Professional Responsibility of Lawyers under the Guiding Principles

2012-05-11T11:23:00.001-04:00

John Sherman, an expert on the new U.N. Guiding Principles of Business and Human Rights has been a driving force in the efforts to apply human rights principles to the operations of lawyers and especially to infuse legal practice with the normative standards embodied in the Guiding Principles.

He has recently posted a great short essay on the subject for Shift, an independent, non-profit center for business and human rights practice, for which he serves as General Counsel, Senior Advisor and Secretary. John F. Sherman III, Professional Responsibility of Lawyers under the Guiding Principles, Shift, May 2012.

Shift helps governments, businesses and their stakeholders put the UN Guiding Principles on Business and Human Rights into practice. Shift's objectives revolve around sharing learning by developing public guidance materials that help build the business and human rights field globally.

Professional Responsibility of Lawyers under the Guiding Principles
John F. Sherman III

The core responsibility of business under the UN Guiding Principles on Business and Human Rights is to respect human rights, and to adopt policies, processes, and systems that enable them to know and show that they do so. So how should lawyers advise their corporate clients regarding this responsibility? This is not an idle question, in light of the American Bar Association’s endorsement on February 6, 2012 of the UN Guiding Principles, and its acknowledgement that they apply to the professional responsibility of lawyers.

In the report supporting the ABA resolution endorsing the UN Guiding Principles, the ABA Human Rights Committee noted that the Principles pour content into the independent and candid advice that lawyers must provide to corporate clients under ABA Model Rule 2.1; the rule’s commentary notes that “moral and ethical factors impinge on most legal questions and may decisively influence how the law will be applied.” This resonates with professional codes of responsibility in countries like Japan, Europe, and Canada, which acknowledge that lawyers must balance their dual roles as guardians and advocates for the interests their clients, and as gatekeepers for the interests of courts and society.

I address this and related issues in a paper I presented to a recent ABA Human Rights Center conference. In the paper, I explore the implications of the UN Guiding Principles for corporate governance, risk management and professional responsibility from the perspective of the corporate legal advisor.

Much recent attention has been focused on the tort liability of multinational companies under the US Alien Tort Statute for their involvement, usually indirect, in human rights violations outside the US. The US Supreme Court recently heard oral argument in a challenge to that statute’s application to corporations, and has invited rebriefing and reargument on extraterritoriality. However, this focus can sometimes obscure the fact that there are many other avenues for potential corporate legal exposure, which require thoughtful and creative attention by corporate counsel.

Prof. John Ruggie, the author of the UN Guiding Principles and Chair of Shift, has observed that the responsibility of companies to respect human rights does not exist in a law free zone, even though, on their own, core international human rights instruments do not generally impose direct legal obligations on companies. For example, in 2007, the SRSG identified an “expanding web of potential corporate liability for international crimes – imposed through national courts.” Countries forming part of this “emerging web” include the United Kingdom and The Netherlands, where the interaction between domestic law and those countries’ ratification of the Rome Statute of the International Criminal Court leads to the potential for imposition of criminal liability for genocide, crimes against humanity, and war crimes on corporate actors. Moreover, the laws of many countries specifically proscribe business conduct whose impacts on people violates certain internationally recognized human rights through, for example, workplace safety, privacy, product safety and nondiscrimination laws.

In addition, governments are adopting policies and regulations that incentivize or require companies to adopt the necessary internal systems and processes to enable them to respect human rights. For example, Section 1502 of the Dodd-Frank Act requires companies to conduct due diligence on their supply chain for products containing minerals from the Democratic Republic of the Congo, where mining has fueled armed conflict resulting in the deaths of millions. Section 1502 in turn has spawned California legislation regulating state procurement of products containing “conflict minerals” from companies in violation of Section 1502. The California Transparency in Supply Chains Act of 2010 requires large retail and manufacturing companies doing business in California to disclose the efforts they have taken to eliminate slavery and human trafficking from their supply chains.

Outside the US, the European Commission has engaged Shift and the Institute for Business and Human Rights to develop guides on how three sectors – employment and recruitment agencies, information and communications technology (ICT) and oil and gas – can align their business with the UN Guiding Principles, pursuant to a recent Communication on corporate social responsibility setting out the EC’s expectation that European enterprises will meet the corporate responsibility to respect human rights under the UN Guiding Principles. Other key instruments that now incorporate the standard of business respect for human rights embodied in the UN Guiding Principles include the OECD Guidelines for Multinational Enterprises, the revised Performance Standards of the International Finance Corporation, and ISO 26000 (the new international corporate social responsibility guidance standard).

This global convergence will inevitably find its way, as accepted standards of conduct do, into judicial, legislative, and administrative decisions, and into enforceable private legal instruments – such as transportation carriage arrangements, long term mining investment agreements, merger and acquisition representations and warranties, loan covenants and joint venture agreements, to name a few. Penn State Law Professor Larry Catá Backer has called this expanding and dynamic web of legal obligations a form of “polycentric governance” that corporate lawyers ignore only at their peril. Finally, since human rights risks may cause companies to lose substantial value – through delay, distraction of top management, and reputational impairment, wholly apart from litigation costs and liability - management of human rights requires top-level corporate attention as a matter of prudent corporate governance.

It should therefore come as no surprise that where companies have encountered human rights issues, particularly where legal requirements are unclear, their lawyers are among the first whom a company asks for advice. In recognition of this fact, Guiding Principle 23(b) addresses areas of legal uncertainty by providing that companies should “comply with all applicable laws and respect internationally recognized human rights wherever they operate.” The UN Guiding Principles also provide that when faced with conflicting requirements, a company should “seek ways to honor the principles of internationally recognized human rights.”

Guiding Principle 23(c) goes on to say that companies should treat the risk of causing or contributing to gross human rights abuses, such as torture, genocide, or murder, as a legal compliance issue wherever they operate. In other words, a company should act on the prudent assumption that it may be held legally liable if it causes or contributes to such abuse even if the applicable law may be unclear. This does not mean that a company’s responsibility for respecting all human rights should be vested in a company’s legal department and made a matter of legal compliance; it simply recognizes that regardless of the strength of a company’s legal defenses in particular jurisdictions, its involvement in gross human rights abuses would be such an egregious calamity that the company’s lawyers should be proactively engaged in preventing it, as they would be engaged in the prevention of any serious corporate crime.

These provisions have profound implications for lawyers who advise companies. The UN Guiding Principles apply to all businesses, including law firms. They require businesses, including law firms, to respect human rights, both in their own operations and through their business relationships, which includes their relationships with clients. As the ABA has recognized, subject to their professional ethical responsibilities, law firms’ responsibility to respect human rights extends to adverse human rights impacts that are directly linked to the law firm’s services through a client relationship.

UN Guiding Principle 19 and ABA Model Rule 2.1 should be read in harmony. Both require lawyer’s advice to be more than a determination of the letter of the law; the advice should encompass potential impacts on human rights and the full range of other legal and business consequences that may likely result, and should suggest how to achieve the client’s goals in a way that respects human rights.

Such situations call for creative lawyering. For example, in 2003, BP, the operator of the BTC pipeline in the Caucuses region of central Asia, encountered complaints by NGOs that stabilization clauses in the project’s contracts with host governments would prevent the governments from enacting new legislation to protect human rights. In response, BP negotiated with Amnesty International a unilateral estoppel document, known as the Human Rights Undertaking, which prevented the pipeline from enforcing the clause in such a fashion. Prof. Ruggie, and then the UK National Contact Point (responsible for addressing complaints of violations of the OECD Guidelines for Multinational Enterprises,) cited this as a best practice. Prof. Ruggie built on it in his report on Principles for Responsible Contracting, which guides lawyers and others in negotiating long-term investment contracts that have a high potential to impact human rights.

This is only one example of the way in which lawyers can help their corporate clients respect human rights; there are many others. Ultimately, by honoring their professional responsibilities to clients and to society, lawyers for companies can add the greatest value for both, precisely in those areas of legal uncertainty where their clients’ operations and relationships potentially can harm internationally recognized human rights.

Mr. Sherman has written extensively on this and related issues, some of which have been posted earlier to this blog site:

John Sherman on Law Firm Management and Human Rights, Law at the End of the Day, Nov. 16, 2011.

John Sherman on Integrating Human Rights Impact Assessments into Enterprise Risk Management Systems, Law at the End of the Day, May 11, 2011;

OECD Guidelines for Multinational Enterprises – What every international lawyer needs to know about possible upcoming changes, Law at the End of the Day, October 9, 2010.

For those interested in learning more Mr. Sherman has also posted a SAVE THE DATE:

SAVE THE DATE: June 6, 2012 from 12:00-1:30 EDST for a live webinar on this subject To explore these issues further, the ABA Center for Human Rights and AIDS Coordination Project, Northeastern University School of Law’s Program on Human Rights and the Global Economy, and Columbia Law School’s Human Rights Institute will be sponsoring a panel on June 6, 2012, from 12:00-1:30 EDST, entitled “UN Guiding Principles for Business and Human Rights: What Lawyers Should Know.” It will take place at Northeastern University Law School in Boston, and will be available via live web streaming. I will be speaking on the panel, so please save the date; further details about the program and how to view it will be forthcoming.

To learn more about the mandate and work of the Special Representative, visit:

http://www.ohchr.org/EN/Issues/TransnationalCorporations/Pages/SRSGTransCorpIndex.aspx

and
http://www.business-humanrights.org/SpecialRepPortal/Home

Here is a listing of Shift Team Members

Caroline Rees

President, CEO and Executive Board Member

Rachel Davis

Managing Director and Treasurer

John F. Sherman III

General Counsel, Senior Advisor and Secretary

David Kovick

Senior Advisor

Luc Zandvliet

Senior Advisor

Podcast of Debate--Zumbansen and Backer: Tension Between Public and Private Governance in the Emerging Transnational Legal Order

2012-05-08T22:20:00.001-04:00

The Robert Schuman Centre for advanced Studies of the European University Institute recently hosted a debate between Larry Catá Backer (Pennsylvania State University) and Peer Zumbansen (York University) on “Tension Between Public and Private Governance in the Emerging Transnational Legal Order,” April 16, 2012.

(Pix from David Morris, All Hail the Public Library, On the Commons, May 1, 2011)

The podcast of the debate is now available. Listen to the debate HERE.

Podcast

Introduction
Peter Zumbansen
Larry Catá Backer
Discussion

For Professor Zumbansen's paper and my Powerpoint slides, see Peer Zumbansen on Why Compare?
(Law at the End of the Day April 22, 2012).

For my initial paper, see New Essay: Transnational Corporate Constitutionalism: The Emergence of a Constitutional Order for Economic Enterprises (Law at the End of the Day April 21, 2012).

For my reaction paper, see New Essay: Reaction Paper--On the Tension between Public and Private Governance in the Emerging Transnational Legal Order: State Ideology and Corporation in Polycentric Asymmetric Global Orders (Law at the End of the Day, April 24, 2012).

Guest Blog: Nicholas Rowland on "What are States Made of?"

2012-05-07T10:23:00.004-04:00

(Pix courtesy Nicholas Rowland)

Rowland has been doing some excellent work looking closely at the state as object, force and event in social, political and economic spaces redefined by globalization. He has graciously consented to writing guest blogs from time to time. It is with great pleasure that I include the first of these here.

Nicholas Rowland writes:

As soon as Jan-Hendrik Passoth and I (Nicholas Rowland) finished writing "Actor-Network State: Integrating Actor-Network Theory and State Theory," (International Sociology 2010 25: 818-841 (2010)), I started to wonder with renewed interest “what are states made of?” One answer might be to accept a line of thinking Jan and I outline in the above paper and suggest that the question has become something irrelevant. As we write:

"This direction for state theory does not ask same old question ‘what a state is’ – it is an actor-network, of course – because that does not say much, and instead asks ‘how states are’." (Ibid., 826).

However, now I’m thinking there might be something more to it; that is, if the question can be reformulated so that we in political sociology, political science, and international relations and international law stop asking “what are states?” and instead start asking “what are states made of?” Perhaps this new “entry point” will aid us in rethinking states and the role of states.

Larry makes the point that we turn our attention to theories of action (mainly, an actor-network approach to the state) in the above article, which implies (to some extent) that states are what states do. If that’s an accurate and/or legitimate assumption, then the “hollow state” writers might be in some serious trouble, or at least have some serious explaining to do. If states are playing a more and more restricted role in the shape of international affairs as compared to, for example, global credit-rating firms or multi-national corporations (which Larry writes about with great success: Backer, Larry Catá, On the Tension between Public and Private Governance in the Emerging Transnational Legal Order: State Ideology and Corporation in Polycentric Asymmetric Global Orders (April 16, 2012).), then two possibilities exist.

First, if states are what they do, then this could imply that whatever it was that states previously “did” is no longer needed or privileged in international affairs, hence, because states are what they do, they are doing qualitatively less of it and shrink as a result (sometimes this logic seems to underlie the thinking in “governance without government” (Gw/oG) schools of thought, which Larry also writes about with success: Backer, Larry Catá, Governance Without Government: An Overview and Application of Interactions Between Law-State and Governance-Corporate Systems in Beyond Territoriality: Transnational Legal Authority in an Age of Globalization (Günther Handl and Joachim Zekoll Editors, Leiden, Netherlands & Boston, MA: Brill Academic Publishers, forthcoming 2012). (March 1, 2010). Penn State Legal Studies Research 10-2010.). Thus, whatever it was that states did, we no longer need it. Note: this is a hardcore functionalist argument. Sometimes this sort of an argument is utilized when discussing the reduced role of government not only as a descriptive account of contemporary affairs (usually, documenting liberal bellyachers fondly reminiscing a largely imagined understanding of the role of government, for example, in the US or UK) or a prescriptive account of contemporary affairs (usually, promoting a particular agenda to “save” government from having its power usurped by other actors on the international stage or, in some cases, promoted by government agencies with pro-market solutions to otherwise historically government tasks or duties such as how to “best” (by which, “most efficient” seems to be the placeholder) deliver social provisions to a deserving public (please note: this sort of a dynamic replete with descriptive and prescriptive accounts opens the door to observing “political performativity” where our ideas about the political reality unfolding in front of us is prescribed by its descriptors and described by its prescriptors – as noted in the original post by Larry, this is a potential well-spring for new research).

Second, if states are what they do, then this could imply that whatever it was that states previously “did”, someone/something else is now conducting these actions in international affairs in the stead of states, hence, because states are what they do, when someone/something steps in to assume the role(s) previously monopolized by the state, the state shrinks as a result (this logic is also adopted in “governance without government” schools of thought, although to a much different end).

Another line of reasoning, consistent with the actor-network action orientation avoids either line of reasoning described above (which currently plague the Gw/oG groups), is to see the state as it is made up of “other” stuff. As in the previous post about actor-networks, materiality (or “the physical”) plays a central role and has nearly become synonymous with ANT anytime it is invoked for the purposes of, usually, of criticism. However, this special attention to the material can result in a fantastic re-understanding of the “state ideology” (the terms Larry sometimes uses to encapsulate the notion that something like a state actually exists and occasionally acts in a concerted way in relation to its public/subjects and/or in relation to other actors like states on the international stage). I like to call this the “state hypothesis”, which explicitly reminds us that when the earliest neostatists started their writing (before full-entitivity was assumed by neostatists carte blanche) that writers like Skocpol required that “the state” was something that unfolded in historical comparative relief and that we, thus, should not simply assume the state exists but that it occasionally appears to exist under a particular set of historical contingencies. Please note: “entitivity” is just something that I pull from organizational analysis in sociology circles, which is a term to describe what is invoked when, for example, journalist say (and can actually be understood by common people) that “Apple Unveils iPhone 4S With Voice-Recognition Features” (NY Times: http://bits.blogs.nytimes.com/2011/10/04/live-blogging-the-apple-iphone-5-announcement/) or that “Goldman-Sachs profits mask revenue decline” (LA Times: http://www.latimes.com/business/la-fi-goldman-earns-20120417,0,7737808.story). Somehow in these moments, Apple is a thing and not just the concerted efforts of its managers and board members, hence, the entitivity is a reflection of this “acting thing” called Apple. Keep in mind, that if a state is what it does, then by that same logic Apple is what it does meaning that it is what releases iPhone 4S, that is, Apple is made of iPhone in the same way that states are made of, as a soon to be published example shows, other stuff such as water.

In water infrastructure research (and for those interested in STS and state theory of course), check out Patrick Carroll’s "Water, and Technoscientific State Formation in California" which has just been published as an "online-first" article by STS journal Social Studies of Science. His abstract offers the thrust of analysis:

“This paper argues that water gradually became, over a period of more than half a century, a critical boundary object between science and governance in California. The paper historicizes ‘water’, and argues that a series of discrete problems that involved water, particularly the reclamation of ‘swampland’ in the Sacramento Valley, gradually came to be viewed as a single ‘water problem’ with many facets. My overarching theoretical aim is to rethink the ontology of the technoscientific state through the tools of actor-network theory. I conclude with the following paradox: the more the technoscientific state forms into a complex gathering – or ‘thing’ – of which humans are part, the more it is represented and perceived as a simplified and singular actor set apart from those same humans” (at: http://sss.sagepub.com/content/early/2012/03/06/0306312712437977.abstract).

Patrick seems to be saying, and this is quite smart, that states are made of non-state stuff, in this case, water; that states can be invoked in relation to other (typically nonhuman) stuff. Although he does not go into great reflection on this matter, the empirical results very much support the position I’m staking-out here. One way to understand what states are is to observe what they do and recognize that they are constituted by this in a double-sense: they are made of their actions and whatever material constitutes their actions.

Corporate Social Responsibility and the Human Rights Duty of States: IKEA, Cuba, and the Corporate Responsibility to Protect Human Rights

2012-05-06T09:47:00.000-04:00

One of the thorniest issues of corporate social responsibility involves the liability of corporate actors when they engage in activities that may have an adverse human rights impact under international social norms (so-called soft law adopted through internal corporate governance mechanisms) but which may not constitute a breach of the domestic law of the state where the activity occurs.

(From Kate Connolly, IKEA faces allegations that it used Cuban prisoners to make its products, The Guardian, May 3, 2012)

Even if the corporation is implicit in the actions of the state, can the corporation be found to have violated its obligations under international norms when the state at whose instance the conduct occurred is not deemed to have violated either its domestic or international law obligations? IKEA has recently discovered the difficulties of a global order in which its global normative obligations may be substantially different than those of the states with whom it participated in activity. It may find itself complicit in acts legal when undertaken by a state within its borders but which are breaches of the corporations global human rights obligations elsewhere. In effect, the issue suggests outlines of that space where the obligations of corporations to avoid adverse impacts may be greater than those applicable to states.

The Guardian reported:

Ikea is facing allegations that it used Cuban prisoners to make its products in the 1980s.

The claims follow allegations this week that East German political prisoners were forced to make furniture for the Swedish retailer from the 1970s.

According to a report in the Frankfurter Allgemeine Zeitung, a deal to make Ikea furniture in Cuban prisons was hatched using East German trading connections.

The agreement was signed in September 1987, according to files held in the Stasi archivesfiles, after a delegation of East German business representatives went to Havana for talks with the Cuban Interior Ministry.

Talks were held with several government officials, including Enrique Sanchez, the head of the state company Emiat which was responsible for furnishing the homes of the Cuban political elite. According to the files, the production sites discussed were "incorporated in the Interior Ministry's prison facilities".

The contract signed required Cuba to produce 35,000 dining tables, 10,000 children's tables, and 4,000 three-piece suites.

Ikea reacted to the reports, which emerged following an investigation by Swedish television, by saying it had begun its own inquiry and was keen to see the Stasi files to check for evidence and compare them with the company's own records.

A spokeswoman said Ikea "condemned the use of political prisoners" in its production "in the strongest possible terms". She added the company took the claims very seriously, though denied that Ikea knew it had been using prison labour. (From Kate Connolly, IKEA faces allegations that it used Cuban prisoners to make its products, The Guardian, May 3, 2012).

Ironically, it has been American state officials, usually among the first to except their nation from and the last to wrap themselves in international norms, that have reminded IKEA of both its international obligations and of the autonomy of those obligations from the laws of the states in which they operate or with which they engage in joint ventures.

South Florida Republican Rep. Ileana Ros-Lehtinen, the chairman of the House Foreign Affairs Committee, said Friday that she urges IKEA to continue its investigation of the allegations.

“All entities, including major corporations, have a moral responsibility to assure they are not used by tyrannical regimes to further violate human rights,’’ she said.

In Miami, former political prisoners said forced labor is habitual in Cuba’s correctional system, although none had any information about the alleged collaboration with IKEA.

“Although there was forced labor, political prisoners in Cuba refused to do that type of work,” said Ernesto Díaz, who was a prisoner when the agreements with IKEA were allegedly in place.

The issue of forced labor in Cuba also arose in a different context several years ago when three Cuban men forced to work 16-hour shifts at 3½ cents an hour repairing ships for a Cuban joint venture in Curacao sued in U.S. federal court in Miami. (Alfonso Chardy, Report: IKEA used Cuban prison labor to make furniture in the late 1980s, The Miami Herald, May 5, 2012).

Of course, what Congressperson Ros-Lehtinen speaks of as a moral responsibility is something substantially more binding beyond the law structures of states. States, including the United States, have recognized the existence of a set of behavior norms grounded in international norms that may bind corporate action. See, e.g., Backer, Larry Catá, From Institutional Misalignment to Socially Sustainable Governance: The Guiding Principles for the Implementation of the United Nation’s 'Protect, Respect and Remedy' and the Construction of Inter-Systemic Global Governance (September 5, 2011). Pacific McGeorge Global Business & Development Law Journal, 2011.

The effects of these normative structures, can be substantial. This should come as no surprise. I have suggested the exposure of states to new international standards for business and human rights that may produce liability when states engage in economic or commercial transactions beyond their national boundaries. But I also suggested that companies that engaged in joint venture transactions with states might as well be deemed complicit in the human rights breaches of their state partners. Backer, Larry Catá, Globalization and the Socialist Multinational: Cuba and ALBA’s Grannacional Projects at the Intersection of Business and Human Rights Handbook on Contemporary Cuba: Economy, Civil Society, and Globalization (New York: CUNY/Paradigm Press, forthcoming 2012). In that examination I suggested the exposure of states to new international standards for business and human rights that may produce liability when states engage in economic or commercial transactions beyond their national boundaries. But I also suggested that companies that engaged in joint venture transactions with states might as well be deemed complicit in the human rights breaches of their state partners. The U.N. Guiding Principles of Business and Human Rights suggests the two aspects of complicity--one legal and the other normative:

Questions of complicity may arise when a business enterprise contributes to, or is seen as contributing to, adverse human rights impacts caused by other parties. Complicity has both non-legal and legal meanings. As a non-legal matter, business enterprises may be perceived as being “complicit” in the acts of another party where, for example, they are seen to benefit from an abuse committed by that party.

As a legal matter, most national jurisdictions prohibit complicity in the commission of a crime, and a number allow for criminal liability of business enterprises in such cases. Typically, civil actions can also be based on an enterprise's alleged contribution to a harm, although these may not be framed in human rights terms. The weight of international criminal law jurisprudence indicates that the relevant standard for aiding and abetting is knowingly providing practical assistance or encouragement that has a substantial effect on the commission of a crime. (U.N. Guiding Principles of Business and Human Rights, Para. 17 Commentary)

See also Important among these are notions of complicity. Clapham, Andrew and Scott Jerbi. 2001. “Categories of Corporate Complicity in Human Rights Abuses.” Hastings Int’l & Comp. L. Rev. 24:339; Ramasastry, Anita. 2002. “Corporate Complicity: from Nuremberg to Rangoon.” Berkeley J. Int’l L. 20:91:

liability for violations of human rights under a complicity theory has become more important as a mechanism for enforcing human rights norms, especially against businesses . . . . The legal basis of complicity remains unsettled as a matter of transnational law but extends to aiding and abetting the violation of human rights or humanitarian law (United Nations 2009). Complicity notions play a significant role in the liability framework under emerging international corporate governance soft law frameworks . . . . The issue of complicity will tend to revolve around a number of factual determinations: whether through action or inaction, a company enabled, exacerbated or facilitated the specific abuses, intent or reckless disregard, and proximity. (From Backer, Larry Catá, Globalization and the Socialist Multinational: Cuba and ALBA’s Grannacional Projects at the Intersection of Business and Human Rights, supra).

The potential breach of human rights norms by IKEA and its use of Cuban prisoners for a joint IKEA-Cuban transaction may take complicity one step farther. IKEA may be deemed to breach its own obligations under soft law frameworks, like the U.N. Guiding Principles, and may even be liable for violating the laws of the state of its incorporation or those of states where the goods were sold. However, it may also be possible that Cuba itself may not be in breach of any of its obligations, either under its own domestic law or its legal obligations to which it has bound itself. The state duty to protect human rights is limited to those obligation sin international law that a state has obligated itself to incorporate into its domestic legal order.

ad more here: http://www.miamiherald.com/2012/05/04/2784119/report-ikea-used-cuban-prison.html#storylink=cp)

Read more here: http://www.miamiherald.com/2012/05/04/2784119/report-ikea-used-cuban-prison.html#storylink=cpy

Slide Presentation: On the Evolution of Multi-National Corporations: From the External Regulation of MNCs to Self-Governance

2012-05-05T11:04:00.002-04:00

I recently had the chance to present a lecture on the evolution of the multinational corporation from object of law to autonomous regulatory entity.

(Pix (c) Larry Catá Backer 2012)

The Powerpoint slides used for that discussion can be accessed HERE.

Boasteel and Corporate Social Responsibility on the Ground in China

2012-05-05T08:47:00.001-04:00

My research assistant, Shing Kit Wong, has been researching corporate social responsibility on the ground in China. He had the opportunity to visit China recently as part of graduate course offered by the Pennsylvania State University. While there he had the opportunity to visit a number of Chinese firms, including Baosteel.

(Pix Baosteel, Products and Services)

What follows are notes of his trip with a focus on Baosteel's CSR operations from the view of a visitor.

Baosteel may be of particular interest because of its aggressive efforts to horizontally integrate its operations worldwide, including in the Western Hemisphere.

Baosteel America Inc. set up its headquarters in the state of New Jersey U.S. A, adjacent to New York . The Company at present has Finance Department, Iron & Steel Trade Department, Engineering & Equipment Department and set up representative offices in Houston , Detroit,Los Angeles U.S.A,Toranto Canada,Rio de Janeiro Brazil and Shanghai China respectively.

As an important window for Baosteel to develop overseas businesses in America, Baosteel America Inc. has energetically promoted the marketing in America of iron and steel products and auxiliary products of all subsidiaries domestically produced and has taken the initiative to introduce advanced iron and steel production control technologies and equipment of foreign countries to those companies. While actively expanded the trade of iron & steel products relying on the Baosteel's integrated advantages, Baosteel America Inc. is also a brisk agent and con- sultant for foreign firms to participate in the equipment engineering project of Chinese Metallurgical Industry.

Baosteel America Inc. is working with perseverance to become a bridge and a information platform linking iron & steel enterprises and the upper and down-stream enterprises, provide quality services to the users and pursue for a bright future of win-win. (Baosteel America, Company Profile).

Its CSR cultures, then, will have global implications.

Summary of experience in China –
Shing Kit (Jackie) Wong

I joined with an embedded program (BUS596—Understanding China) with the Pennsylvania State University Harrisburg Campus to visit Shanghai, Xian, and Beijing. This program is designed to introduce the history, economy and political culture of China as the country is playing an ever-growing role in worldwide globalization. Several presentations were given by American corporate as well as Chinese state-own corporate in order to understand corporate culture and governance as well as opportunities American corporate see in this influential country. Through our visit with these corporate and multiple cultural heritages, I gained a better understanding of China’s history and role in contemporary world events and its place in Chinese society today. These aspects strong reflect on China’s evolving “market socialism” economy and how it impacts Chinese society and globalization. I will focus more on my experience with corporate visit in this briefing. We visited a total of five corporate in China—Shanghai Baosteel Group Corporation, Xi'an Xiwei Control Motor Factory, Beijing Shunxin Agriculture Co., Ltd., TE Connectivity, and the Hershey Company.

The Baosteel visit was my main objective of the trip to China as it would bring invaluable insight to my research on the Chinese steel industry with particular emphasis on the role of the this state-own corporate within the Chinese and international industries. The visit was a bus tour within the Baosteel manufacturing site with a walking tour in one of the plant. Although I was expecting a seminar formant of presentation, I still received some good information about Baosteel’s corporate governance and its challenges with international partner via conversations with one of the personnel from the public relations department. Our conversation mainly regarded the following three areas: labor, challenges with international partners, and environment.

The manufacturing line in Baosteel that was visited is mainly automatically operated. The representative explained that since the manufacture process is automatic, the corporate laid off a good number of staffs in recent years and is not in hiring process. Baosteel is currently staffed with over 100,000 employees. The staffs that were laid off were able to get compensation from the government and the company, and some were re-trained for other positions. Since the plant has to be maintaining operational, it required staffs in a 24 hours period. Therefore, Baosteel employees are on three 8-hour shift, and thus they hardly ever work overtime.

Baosteel has international partners worldwide for technology import as well as for mining and trading. The technology of the manufacturing line we visited was imported from Mitsubishi Heavy Industries as well as one Chinese company. I raised a question on the specific challenges Baosteel usually faced when working with international partners. The representative from Baosteel briefly mentioned a few challenges mainly related with corporate culture and other cultural issue in general without specifically explain neither what they were nor the solutions on the issues. I also raised another question regarding developing, or ground breaking, a mine in foreign counties, specifically in Australia since I read that Mitsubishi Heavy Industries recently invited Baosteel to develop a mine in the country. As mining development will cause different kinds of damage to the environment and result in many other related issues, it would be interesting to see who would be responsible for the aftermath, Baosteel, the partnering company, or the local government. Nonetheless, no answer was given to the questions except some general responses unrelated to the question.

In regard with environment protection, the representative from Baosteel proudly explained that the corporate was awarded one of the best in China with an environmental management plan. Indeed, there were many trees planted in the manufacturing site as if it is an artificial forest in order to control the air quality. The area was even granted the nickname of “City of Trees”. Furthermore, the corporate keeps around 400 deer in the Baosteel area to prove that the air quality is good and safe enough that even wild life can survive. During my preliminary research, I did read in Baosteel’s CSR report that tree planting is one of the most important strategies in managing environmental issues. However, the real environment protection strategic plan in most other companies, mostly in the west, would focus more on practical issues such as reduction of emission gas and so on. What I found interesting was that it sounds like planting trees is the number one strategic plan in dealing with environmental issues in Baosteel.

During the visit to TE Connectivity and the Hershey Company, I learned about the opportunities American corporate see in China as well as challenges when conducting business in China. The class was greeted by Mr. Gordon Hwang, who is the Senior Vice President, China, when visiting TE Connectivity. We were shown a couple presentations in regards of the economic growth and market in China. However, the presentations neglected some other risk factors as well as misguided the scenario. First of all, when percentage is taken as account, the amount of population needs to be taken as consideration as well. China is still at the developing stage. The rate of growth has to be greater other U.S. partners who has already developed such as Japan and South Korea. In addition, the political risk factors between the United States and China also need to be taken as consideration. On the other hand, while at the visit in the Hershey Company, I raised a question in regard of corruption in China and how Hershey would response in case it happens when dealing with Chinese counterparts. Corruption is indeed one of the biggest challenges in conducting business in China, and as a foreign investor, Chinese central government and the Shanghai government will usually protect Hershey. Nonetheless, Hershey still has to deal with the local government, especially custom, after all. In case of corruption happening in dealing with its Chinese counterparts occur, Hershey would follow its protocol and guideline in reporting the issue in order to protect the company as well as the personnel in China.

An interesting phenomenon in China is that slogans regarding safety guidelines and business conducts are pulled up everywhere. It actually presented as if corporate and the society does care about guidelines and regulations wholeheartedly. Nonetheless, given the fact that China has a tendency of ignoring guidelines and regulations, it is very irony to see these slogans everywhere. The following are some of the slogans I captured while in China:

The slogan says, “Conduct Business Righteously, Live Under the Guidance of Regulations”

Safely Slogans at Baosteel:
“I will not harm myself; I will not let others to harm me; I will not harm the others”

“Banners at the Silk Street & Pearl Market in Beijing, which sell goods"

New Paper: Collisions of Societal Constitutions: Hierarchical Power Arrangements and Horizontal Effects in the Management of Human Rights Regimes

2012-05-02T22:21:00.000-04:00

Just posted a new paper: Collisions of Societal Constitutions: Hierarchical Power Arrangements and Horizontal Effects in the Management of Human Rights Regimes.

(Pix (c) Larry Catá Backer 2012)

The initial version will be presented at the international conference, Societal Constitutionalism and Globalization, hosted by the Hague Institute for the Internationalization of Law and the International University College, Torino, Italy, May 18, 2012. My thanks to Gunther Teubner (Goethe Universität Frankfurt am Main) and Anna Beckers (Maastricht University) for organizing this excellent conference.

In his 1920 Hibbert lectures on “The State, Visible and Invisible” (William Ralph Inge, The God-State, in Leviathan in Crisis: An International Symposium on the State, Its Past, Present and Future, By Fifty Four Twentieth Century Writers 150 (Waldo R. Browne, ed., New York, Viking Press, 1946)), the English author, Anglican prelate and professor of Divinity at Cambridge William Ralph Inge criticized the deification of the state qua state. But in a moment of prescient clarity he logic took him further:

We are perhaps on the threshold of an epoch in which other associations, either wider than the nation, like the Catholic Church or Labor, or narrower than the nation, like the groups which it is proposed to form into trade guilds, may claim and receive the same immoral and unquestioning devotion which, when given to the State, has brought such hideous calamities upon the world. If so we shall find that the error is not less destructive in its new forms. (Id., 153).

We have arrived at such an age. Whether, indeed, the multi-spatial and polycentric governance frameworks of a world structured on principles of societal constitutionalism will live down to Dean Inge’s vision remains to be seen. But what is clear is that the transformation from the monotheism of state worship to the more complex paganism of the modern age of government without the state will surely reshape the relationships between individuals and governance organs.

(Pix (c) Larry Catá Backer 2012)

The problem of the state, now multiplied and broadened within the three dimensional governance spaces made possible by globalizaiton provided a foundation for the exploration. The abstract follows:

ABSTRACT:

Constitutional theory is grounded in two principal objectives—the first is to incarnate an abstraction, and the second is to develop a set of presumptions and principles through which this incarnation can be judged. With respect to the first, constitutional theory can be understood as engaging in a descriptive project. With respect to this second objective, constitutional theory can be understood as engaging in a normative project. This is a project that is meant to help distinguish among incarnations, as well as among those societal aggregations from which such constructions might arise. Constitutional theory, traditionally, has been applied to creations holding political power—that is, to those manifestations of organized power constituted by a group of individuals, bounded by a territory, and evidenced by the institution of government. But today a certain measure of disaggregation has managed to manifest a constituting power. Globalization has opened holes in the walls that used to serve to police and protect states and their power authority. Societal aggregations can exist now between borders. Groups of individuals (and not just natural persons) incarnate abstractions of governance and then judge them in ways that are consonant with constitutional theory. This paper considers the consequences of this emerging framework of hierarchical power arrangements and horizontal effects for constitutional theory among this amalgam of states and other societally constituted organisms. After an Introduction, Section II engages in framework setting, focusing on the structures of societal constitutionalism within the logic of globalization. This consideration necessarily frames societies and their constitution from a spatially static and inward looking perspective. That investigation is divided into two parts; first a consideration of societal constitutionalism as a set of parameters for the ordering system of states and non-state actors, and second a brief consideration of the organization of corporate actors within this framework, specifically Apple, Inc. Section III then considers these constituted societies in a more dynamic and outward looking perspective. If societies can be understood as subject to certain principles for their inward constitution, to what extent might there be principles that affect the outward expression of inward self constitution. That consideration requires both an examination of the way in which societally constituted entities may be felt and seen by outsiders, but also the way that expressive communication can have inward affecting consequences. For that purpose, Gunther Teuber’s notions of addiction and chaos and Hans Lindahls notions of spatiality and communication serve as a starting point. The operationalization of these theories of constitution and its effects are considered in Section IV. The context is the enforcement of international human rights norms through the governance activities of Apple Inc. and its supply chain, and the focus are the spaces where systems converge, harmonize and collide. The paper concludes where it started—in constitutional theory. It will suggest the need to expand our understanding of constitutional theory beyond incarnation and judgment, to include communication among systems in a complex polycentric constituting universe.

New Issue of the German Law Journal "Ruptures in International Law"

2012-05-01T21:33:00.000-04:00

This from Peer Zumbansen and Russell Miller of the German Law Journal:

We are pleased to announce that the new issue of the German Law Journal, Review of Developments in German, European & International Jurisprudence is now available at www.germanlawjournal.com.

It is a richly packed issue, indeed. Its Articles section offers contributions on global rulemaking and multinational corporations, Canada's military engagement in Afghanistan and reflections on the US presidency.

In addition, we are happy to publish a thoughtful symposium on international legal theory, which includes contributions to the 4th Conference of the European Society of International Law (ESIL) in Cambridge in 2011. The symposium, held under the auspices of the International Legal Theory Group within ESIL, brought together scholars who draw on legal theory, political philosophy and international law to map the current state of international legal theorizing.

We are grateful to our authors and to you, our readers, who have been supporting the work of the Journal with so much dedication, interest and inspiration. And, we are, certainly, very grateful to the wonderful group of students at Osgoode Hall and at Washington & Lee without whose help it would not be possible to get the Journal out, month after month, year after year.

13 German Law Journal No. 5 (2012)

Download PDF Copy of this Issue's Table of Contents
Articles
From Compliance to Rulemaking: How Global Corporate Norms Emerge from Interplay with States and Stakeholders - PDF - Olaf Dilling
The Strategic Constitution in Action: Canada’s Afghan War as a Case Study - PDF - Irvin Studin
An Extremist Monarchy in the Guise of a Republic? Some Remarks on Ackerman’s proposals for the American Presidency - PDF - Marco Goldoni
Special Issue: The Ruptures in International Law
Introduction – The Ruptures in International Law - PDF - Ignacio De La Rasilla Y Del Moral
The Strategies of Rupture in International Law: The Retrenchment of Conservative Politics and the Emancipatory Potential of the Impossible - PDF - John D. Haskell
A Return to Koskenniemi, or the Disconcerting Co-optation of Rupture - PDF - Paavo Kotiaho
Global “Harmonious Society” and the Law: China’s Legal Vision in Perspective - PDF - Leïla Choukroune
From Theory to Practice: Exploring the Relevance of the Draft Articles on the Responsibility of International Organizations (DARIO)— The Responsibility of the WTO and the UN - PDF - Noemi Gal-Or & Cedric Ryngaert
Interest-Balancing vs. Fiduciary Duty: Two Models for National Security Law - PDF - Evan Fox-Decent & Evan J. Criddle
We Have Not Seen the Last of the Rogue State - PDF - Isobel Roele

Institutionalizing Principles of Business and Human Rights: Presentation of Revised Article: From Institutional Misalignments to Socially Sustainable Governance: The Guiding Principles for the Implementation of the United Nation’s “Protect, Respect and Remedy”

2012-05-01T21:28:00.000-04:00

I have just revised a presentation of a detailed analysis of the Guiding Principles, From Institutional Misalignments to Socially Sustainable Governance: The Guiding Principles for the Implementation of the United Nation’s “Protect, Respect and Remedy” and the Construction of Inter-Systemic Global Governance, 25(2) Pacific McGeorge Global Business & Development Law Journal – (forthcoming 2012).

(Pix (c) Larry Catá Backer)

The business of human rights continues to develop in important ways outside of the debates and organization of the domestic legal orders of states. Yet these developments, taken up by the largest multinational enterprises, civil society organizations, media, and institutional investors, has begun to have a significant impact on the way business carries on business--and carries on business successfully. One of the most potentially significant efforts to provide an operational framework for organizing business management of its human rights impacts is the recently adopted U.N. Guiding Principles of Business and Human Rights, developed by Harvard's John Ruggie and his team in his role as Special Representative to the U.N. Secretary General for Business and Human Rights.

I recently presented this version at a workshop at the University of West Virginia Law School. My hosts were marvelous and I am grateful for their hospitality and insights. The PowerPoint of that presentation, Institutionalizing Global Principles of Business and Human Rights can be accessed here.

Jan-Hendrik Passoth and Nicholas Rowland on "Actor-Network State : Integrating Actor-Network Theory and State Theory"

2012-04-28T13:22:00.004-04:00

I have been writing about the way in which globalization has de-centered the state in emerging systems of behavior management. Backer, Larry Catá, Governance Without Government: An Overview and Application of Interactions Between Law-State and Governance-Corporate Systems in Beyond Territoriality: Transnational Legal Authority in an Age of Globalization (Günther Handl and Joachim Zekoll Editors, Leiden, Netherlands & Boston, MA: Brill Academic Publishers, forthcoming 2012). (March 1, 2010). Penn State Legal Studies Research 10-2010. I have also suggested the ways in which the ideology of the state system itself has contributed to the difficulty of engaging in these changes that effectively threaten the fundamental ordering presumptions inherent in the law-state. Backer, Larry Catá, On the Tension between Public and Private Governance in the Emerging Transnational Legal Order: State Ideology and Corporation in Polycentric Asymmetric Global Orders (April 16, 2012).

(Pix (c) Larry Catá Backer 2012)

The power of the ideology of the state and the current framework for understanding reality through it has been the subject of excellent work by political sociologists and international relations scholars. An excellent recently published article merits close reading: Jan-Hendrik Passoth and Nicholas Rowland, "Actor-Network State: Integrating Actor-Network Theory and State Theory," International Sociology 2010 25: 818-841 (2010).

The abstract suggests the scope of inquiry:

This conceptual article draws on literature in the sociology of science on modelling. The authors suggest that if state theory can be conceptualized as an ‘engine’ rather than merely a ‘camera’, in that policy is mobilized to make the world fit the theory, then this has implications for conceptualizing states. To examine this possibility the authors look through the lens of actor-network theory (ANT) and in doing so articulate a relationship between two models of the state in the literature. They find that an ‘actor model’ of the state is accepted by many scholars, few of whom develop ‘network models’ of the state. In response, this study introduces an actor-network model and proposes that its contribution to state theory is in rethinking the character of modern states to be the outcome of actually performed assemblages of all those practices of building it, protecting it, governing it and theorizing about it. (Passoth and Rowland, supra, 818).

(Jan Hendrik Passoth, University of Bielefeld)

The jumping off point is the action-nature discourse: the state is captured within the being-doing matrix (Ibid, 818-19). Passoth and Rowland lean toward action theory, through the actor.network theory (ANT). (See, e.g., Bruno Latour, Reassembling the Social: An Introduction to Actor-Network-Theory (Clarendon Lectures in Management Studies (Oxford: Oxford University Press, 2007). Passoth and Rowland argue:

If state theory is performative, then this implies that states are performed. To unlock this idea, we suggest, state theory could best see states as performed through the concepts and implied methodology of ANT. To that end, we review state theory and show how scholars depict the state to be an actor (i.e. a macro-entity with quasi-interests, quasi-goals and quasi-actions) and how few scholars depict the state to be a network (i.e. elaborate webs of dis- tributed agency). We then outline how an actor-network concept of the state helps to overcome (some of) the problems of the ‘state as an actor’ and the ‘state as a network’ models while at the same time not devaluing previous empirical findings or purporting that they are obsolete. (Passoth and Rowland, supra, 819).

The article starts with a discussion of the move from being to action theories, "with the model of the 'state as an actor' being the most accepted." (Ibid., 820). They trace the state from an instrumentalist notion to manifestations of power relations or an ensemble of institutions (Ibid., 820-21). They then critically contextualize neo-statism (Ibid., 821-23), worrying, as do many who consider the basic institutional character of the modern globalized corporation, about the reality of treating a complex institution like the state as an incarnated being. "Rather than unified actors, states are afforded the singular appearance of constitution by a much distributed network of agents, which do not necessarily act in concert." (Ibid., 823).

The answer to these problems is to move from institution to process, and from being (formalism) to effects (functionalism). For that purpose Passoth and Rowland turn to post structuralist network models. (Ibid., 823-24).

This conceptual movement towards a network model is tightly linked to the works of Foucault and his innovative reconceptualization of power. For Foucault, there are no states per se, but only stateness (étatisation) . . . . That which looks like a state takes the form of force, is constituted by human relationships and becomes a way of linking what can be said, done and seen. Stateness is the exercise of power under mod- ern conditions. But power is neither a capacity of someone ‘in power’ nor a possession of someone who ‘has power’. Instead, power is thought of as a network of influence: the machinery and mechanisms to discipline that regulate subjected subjects . . . . Rather than being something that a person, state, or political institution can possess, power is a network of ubiquitously interrelated forces produced by inter- woven discursive and non-discursive practices. Therefore, states cannot (and must not) be analysed as centres or instruments of power (as classic Marxist state theory did) or as the ability of individual states to achieve their interests (as neostatist theory did from the 1970s on). (Ibid., 823-24).

The avoidance of trivialization, Passoth and Rowland suggest, is founded on Foucaukt's notions of gouvernementalité. "Crucial for this article: in the process of prioritizing the development of discourse analy- sis, these scholars neglected to develop the Foucauldian network model of modern statehood." (Ibid., 825). Yet it might have been as useful to consider the move from form to function within the realities of economic globalization that itself represents a presumptive universe that contextualizes the actions and effects of states in ways that might be different from that expected within the pre 1980s discourse in which the role of the state (against which theory reacted) was distinct.

(Nicholas Rowland, Penn State University)

To remedy that Passoth and Rowland move to the actor-network model: "This direction for state theory does not ask same old question ‘what a state is’ – it is an actor-network, of course – because that does not say much, and instead asks ‘how states are’." (Ibid., 826). ANT, drawing on some of the insights of semiotics and others of autopoiesis, suggests both a relational approach and a functional orientate. It draws on forensics for its reconstruction of a thing from the disturbances it has left felt by or through others or inscribed in the material world where its effects have been felt.

ANT accounts treat markets, bodies and states as sociotechnical assemblages that come into being as concrete actors are enrolled: price-calculation devices, traders trained in economic theory and Reuters terminals in the case of markets; flesh, medical devices and anatomic almanacs in the case of bodies; land, borders, measurement and counting procedures and ideological treatises in the case of states. Markets, bodies and states are not abstract entities, but concrete localities that one can visit to observe networks of ‘the social’ unfolding. (Ibid., 828).

This is applied to states in a number of forms. This sketch of framework forms the heart of the paper. First it avoids considering states as actors per se. The focus is instead on action. (Ibid., 828-29). Second, state power is not inherent but is instead something like the offal of state activity. (Ibiod., 829). Third, size and power are consequential concepts. (Ibid.). That suggests that social organizations other than states might well invoke the actions that can produce the sort of size, power and effects of states without the need to become states. Fourth, the state speaks through its actions, objects and constituent parts; "In this sense, a fence at a frontier ‘speaks’ for a population that has to be protected in the same way that a politician ‘speaks’ for the same population that has to be governed – and both protect the idea of the state and its role in protecting the people ‘it’ represents. " (Ibid., 830). Fifth, the speaking implies a common language and the presumptions that build meaning into words and actions. (Ibid.). Ideology in this sense is a second order byproduct of the actions that in the aggregate support and reify the state or any other actor within networks of activities. For Passoth and Rowland, the application suggests internal communication rather than external or constitutive communication. "This economic sleight of hand, where seemingly qualitative state issues (i.e. how and why to adopt one policy over another) are transformed into quantitative matters (i.e. how much does it cost and when will implementation be complete), allows planners to estimate a bottom-line. . . . Just as the market is performed in this way, we too expect similar processes to buttress state projects. " (Ibid). Sixth, and not surprising, the focus is on the material. (Ibid. 831). We consider Athens here and not Sparta--the former leaving much to mark its presence (Acropolis, etc.), the latter could only be felt at the time the action was undertaken and could little survive the end of the action. Passoth and Rowland, though are exactly correct to deploy the ideology of city planning as an assumptive support. But here it is possible to suggest that city planning (Ibid 831) is as much an expression as it is a construction of ideology. One can contrast Passoth and Rowland's focus on Roman approaches (Rome and the U.K.) to medieval (Toledo, Spain or the Grand Bazaar in Istanbul) to suggest that ANT itself would understand the ideology of the material in consequential terms.

Taken together, the framework suggests a way of de-centering ideology from the understanding of the state, or for that matter any entity with operational or situational effects. 'We know it when we feel it' is a powerful tool for examining a thing, especially dynamic thing that is itself an abstraction. That applied with equal force to states as it does to multinational corporations and non-governmental organizations like Amnesty International. The notion that character is not inherent in organization--a core presumption in the ideological construction of the state--is particularly useful. Yet it may also be true that particular clusters of actors gathered within a construct that acts may indeed exhibit a proclivity to particular forms of behavior that may well be inherent in the networked relation though it may not be in the organization itself. As such, ANT may explain that the character of states is not inherent in the form of the state, but it does not explain why peculiarities of action appear to be replicated in states and multinational corporations when they exhibit particular amalgamations that produce effect. More importantly, the de-privileging of formal consideration s may produce distortion. It is well understood in law (and customary system) that function may sometimes follow form, or lmore likely, that from may constrain function. That leads to a further insight--that form itself has function. ANT tends to avoid those considerations and thus may become overly indifferent to the form of action (law versus norm; consultation versus imposition for legitimacy effects; etc.). The focus on ex post effects may also make it harder to provide insights on future actions. ANYT, in this sense, may be an approach always seeking to catch up to the present. Yet for all that, the approach is powerfully sensitive to the internal construction of action and the importance of action on those ideological systems (also an effect) that themselves then produce and contain both the reality of the world within which action is deemed possible and impossible and their justification (also an effect designed to produce self restraint in those who are charged with behaving in appropriate ways).

Having sketched out the conceptual framework for approaching the "state" or other organizations, Passoth and Rowland "suggest that future research could uncover how models of states shape and are shaped by political practice, and that this article lays some groundwork for that endeavour, especially in this discussion section where we hint at specific avenues for future research. For more advanced scholars, we also include a section on linking method to theory and practice in modelling theory and end by documenting some common criticisms of ANT accounts." (Ibid., 832). For that purpose, Passoth and Rowland nod in the direction of New Public Management (Ibid., 832-33) and its potential use as an "entry point for performativity studies." (Ibid., 833). They also nod in the direction of historicity in research. (Ibid., 833-34).

Passoth and Rowland end with an engagement of common criticisms of ANT. These include the obvious--how does one choose actors to reinvent as the sum of their actions--and the less obvious: issues iof symmetry. The symmetry issues are particularly interesting. They suggest that analysis that levels actors, that is that treats human and non-human actors alike, is unrealistic. (Ibid., 835). But these criticisms suggest a theory in gestation, not in fear of error. "As we increasingly con- front the imbroglio of statehood, the performance of the global mar- ketplace and the sociotechnical network that lay the groundwork of our current experiment in ‘being’, ANT provides insight and a few limitations as we search to faithfully describe our current practices and processes. For scholars, ANT offers a (re)solution for seeing the state as both an actor and a network, or, most accurately, as an actor- network." (Ibid. 836).

New Blog: Show and Tell: Sharing While Chairing the Penn State Faculty Senate

2012-04-27T15:01:00.000-04:00

I was elected to Chair the Pennsylvania State University Faculty Senate and will serve a short term, April 2012-April 2013 in that capacity. I assume this role at a time that the University is working through a crisis of culture and governance that erupted with the arrest of a former employee on charges of sexual misconduct with young boys and the related arrests of university officials.

(Pix (c) Larry Catá Backer 2012)

The University has been working on rethinking governance, transparency and engagement. The faculty is also engaging in this exercise. This site is dedicated to enhancing transparency and engagement in shared governance. It is specifically focused on issues and affairs that touch on the role of the PSU Faculty Senate and its work. Though the materials are specific to Penn State, it may have relevance to the functioning of shared governance generally within universities and colleges. People within and outside the Penn State faculty are encouraged to read and engage.

I include the first "Welcome" post. Please accept this invitation to drop by and participate in this experiment in governance.

Welcome!
One of the great dangers of governance in large institutions governed through power sharing arrangements, whether more or less vertically or horizontally arranged, is disengagement from groups for which an actor is responsible or with which an actor shares governance responsibilities. That is no less true of universities than it is of large multinational corporations, the great organs of non-governmental governance and states. Indeed, the problem of disengagement, and its threat to the appropriate working of shared governance is perhaps greater within a university setting where functionally differentiated roles of board of trustees, administration and faculty, in the face of very real asymmetries of power, makes it harder to remain true to the principles of shared governance except perhaps as gesture.
(Pix from Board of Trustees website)

At Penn State University, governance is shared, not equally of course, but shared in any case between a board of trustees, an administrative apparatus centered on a University President, and a faculty functioning through a vertically arranged system of unit and university faculty organizations, represented at the university level by the University Faculty Senate. The PSU Board of Trustees has explained its role, and that of the administration and faculty that serve the university in this way (more on this in subsequent posts):
The Pennsylvania State University was originally chartered by an act of the Legislature of the Commonwealth of Pennsylvania on February 22, 1855. The Morrill Act of 1862 (known as the Land Grant Act) of the Congress of the United States was accepted by the Pennsylvania Legislature in 1863 and Penn State was thereafter designated as the institution in Pennsylvania to receive the benefits of the act.
The Board of Trustees of The Pennsylvania State University is the corporate body established by the charter with complete responsibility for the government and welfare of the University and all the interests pertaining thereto including students, faculty, staff and alumni. (See Standing Order VIII of the Charter, Bylaws and Standing Orders for additional information on Governance of the University.)
In the exercise of this responsibility, the Board is guided by the following policies (this statement on the general policies of the Board of Trustees was initially approved by the Board on June 11, 1970 and underwent subsequent amendments, the most recent being January 19, 1996):
1. The authority for day-to-day management and control of the University, and the establishment of policies and procedures for the educational program and other operations of the University, shall be delegated to the President, and by him/her, either by delegation to or consultation with the faculty and the student body in accordance with a general directive of the Board.
This delegation of authority requires that the Board rely on the judgment and decisions of those who operate under its authority. However, this reliance of the Board must be based upon its continuing awareness of the operations of the University. Therefore, the Board shall receive and consider thorough and forthright reports on the affairs of the University by the President or those designated by the President. It has a continuing obligation to require information or answers on any University matter with which it is concerned.
Finally, upon request the Board shall advise the President on any University matter of concern to him/her.
2. The Board of Trustees shall carry out certain responsibilities as a Board, without delegation. These responsibilities are:
(a) The selection of the President of the University
(b) The determination of the major goals of the University and the approval of the policies and procedures for implementation of such goals.
(c) The review and approval of the operating and capital budget of the University.
(d) Such other responsibilities as law, governmental directives, or custom require the Board to act upon.
3. The Board of Trustees shall inform the citizens of the Commonwealth of Pennsylvania of the University's performance of its role in the education of the youth of Pennsylvania.
4. The Board of Trustees shall assist the President in the development of effective relationships between the University and the various agencies of the Commonwealth of Pennsylvania and the United States of America which provide to the University assistance and direction. (Role of the Board of Trustees in University Governance)
The lubricant that makes the machinery of shared governance work is transparency--not merely as a means of feeding per-digested tidbits of well managed information down from from organ of governance to another, but as a means of sharing information in the context of decision making with respect to those issues over which more than one body has a role to play.
This site is dedicated to transparency and faculty governance. Its principal focus is the role of the faculty and its network of organizations. That focus will take two forms. The first is internal--the site is intended to serve as a space where internal transparency is enhanced and greater engagement in the faculty's governance role made possible. Its other focus is external--the site is intended to provide a public voice for faculty concerns directed outward to its governance partners and to the stakeholders who together make Penn State an outstanding world reputed institution.
But everyone has a stake in governance. To some extent many of the issues covbered in this site can be generalized and applied in the host of other institutions. Moreover the experiences of people in other institutions may well enrich and inform our own experiences here at Penn State. For that purpose, this web site remains open to engagement by everyone, Penn State and non.-Penn State people alike. The hope, then, is for the broadest scope of participation.
Please join me on this year long journey through transparency and shared governance that will extend the length of my term as Chair of the University Faculty Senate. I hope that the experience will enrich us all and provide a small space within which engagement and transparency may be enhanced for the better running of this institutions in particular and universities and colleges in general.

Between Law and Norm, State and Globe: Thoughts on the Exporpriation of Repsol by the Argentine State

2012-04-26T08:34:00.000-04:00

I have for some time be writing about the increasing autonomy of corporations from the states that created them. I have suggested that the logic of globalization has inverted the relationship between state and multinational corporate entity, an inversion that results in the commodification of law as states vie for the business of large corporate actors. Backer, Larry Catá, Governance Without Government: An Overview and Application of Interactions Between Law-State and Governance-Corporate Systems, in Beyond Territoriality: Transnational Legal Authority in an Age of Globalization (Günther Handl and Joachim Zekoll Editors, Leiden, Netherlands & Boston, MA: Brill Academic Publishers, forthcoming 2012). ; Backer, Larry Catá, Multinational Corporations as Objects and Sources of Transnational Regulation. ILSA Journal of International & Comparative Law, Vol. 14, No. 2, 2008.

(Women walk past a poster that reads “CFK – YPF. They’re ours, they’re Argentine” in Buenos Aires last week. Photo: Reuters)

Now comes the recent actions of Argentina, which having privatized its state owned oil industry in the late 1990s has to the former Spanish state owned enterprise Repsol has determined to expropriate that interest and return this business to the state sector. That is, having sold the company to Repsol in the 1990s, it will now take it back with an “expressed determination to “pay nothing at all” in compensation to the Spanish oil company. ” Fiona Govan, Argentine government to pay Repsol ‘zero pesos’ for YPF seizure as Spanish oil company issues legal warning, The Telegraph (UK), April 25, 2012.

Repsol itself has threatened legal action for violation of both national and international laws, even as it moved to reassure it investors that the expropriation will not hurt its business. Repsol, The unlawful expropriation of YPF does not affect Repsol’s growth capacity outside Argentina (Repsol Website, April 17, 2012).
But Repsol has done more.

The move would discourage external partners from providing the investment YPF needs to exploit vast shale oil deposits discovered within the Latin American country and is the latest attempt by Repsol to fight back against the illegal seizure of its subsidiary.

“We reserve the right to take legal action against any party investing in the YPF and its assets following the unlawful expropriation of the company,” Kristian Rix, a spokesman for Repsol in Madrid, told the Daily Telegraph on Monday.
The Spanish energy company believes billions of dollars are required to develop Argentina’s prospects including at least €25bn a year over the next decade to exploit the Vaca Muerta shale discovery made last year.
Julio De Vido, Argentina’s Planning Minister has already approached Brazil’s state-run oil company Pertobras over investment in YPF and plans to contact other foreign oil companies including Exxon, Chevron and ConocoPhilips.

The development comes amid yet more rhetoric from Argentina as government sources insisted the offer of compensation would be “zero pesos”. (Fiona Govan, Argentine government to pay Repsol ‘zero pesos’ for YPF seizure as Spanish oil company issues legal warning, The Telegraph (UK), April 25, 2012.)

Both the Spanish government and the European Union moved to protect their interest as well.

The Spanish government, meanwhile, adopted a carrot-and-stick approach.
Foreign Minister Jose Manuel Garcia-Margallo sounded conciliatory, saying Spain historically had very good relations with Argentina and wants to recover them. He said Spain would try to convince Argentina it needed to reach agreement with Repsol on fair compensation for nationalizing YPF, which he nonetheless said was a mistake that would scare off foreign investors.
“It is in Argentina’s interest not to end up isolated in the world,” the minister said.
At the same time, he said, Spain has proposed to EU partners a series of retaliatory measures against Argentina, such as filing a complaint with the World Trade Organization or downgrading trade relations.
The EU could strip Argentina of trade benefits provided to developing countries or halt free-trade talks between the EU and the South American bloc called Mercosur. That would mean dealing bilaterally with Mercosur’s non-Argentine members, which are Brazil, Uruguay and Paraguay, Garcia-Margallo said in Luxembourg. (Alan Clendenning, Repsol threatens to sue firms that help Argentina, Houston Chronicle, April 25, 2012 )

In this picture released by Argentina's Press Office, President Cristina Fernandez, left, greets supporters during the inauguration of an energy plant in San Juan Argentina, Thursday April 19, 2012. Argentina's government showed no signs of backing down Thursday from expropriating a Spanish company's controlling stake in YPF, Argentina's formerly state-owned energy company, shrugging off international condemnation while finding overwhelming support for the plan in congress. Photo: Argentina's Press Office / AP. From Alan Clendenning, Repsol threatens to sue firms that help Argentina, Houston Chronicle, April 25, 2012

The expropriation, then, suggests the tensions created as the global economic order moves from one that was primarily based on the supremacy of the state, and their domestic legal orders, to one that de-centers the state and reduces its role to that of partner within webs of legal and contractual relations between states, states and non-state actors and international organizations. It suggests the way that the power of law is being countered by the expanding power of governance contract, and one in which the monopoly of state control within its territory is being challenged by the authority of international actors to reach into states through norm and contract. More importantly, it suggests that power within a territory may not be as central to sovereign development as the Argentine action–grounded in that 20th century view of autonomous national development, might appear. Argentina may be able to do as it likes within its territory, but it has little power to move outside actors–states and non-state organizations–from engaging with it in its now more risky economic development plans.

To a large extent, the expropriation marks a rear guard action of the state, and an expression of longing for a time half a century old, of the Third World’s New Economic Order. That is a world in which corporations are understood as creatures of the state in which they are chartered, one in which the ovberriding needs of the people, as determined by its government, makes law voidable and contingent. It is a world that the internal logic of globalization opposes. The Cuban State has been quick to see the struggle in those terms, and to weigh in on the side of the Argentine state apparatus.

Ministry of Foreign Affairs Declaration
The Ministry of Foreign Affairs of the Republic of Cuba has learned of the decision made by the government of the Republic of Argentina to expropriate 51% of the oil company YPF, as stipulated in national legislation. Yacimientos Petrolíferos Fiscales is a subsidiary of the Spanish corporation Repsol which operates in Argentine territory.
The company YPF, originally an Argentine state enterprise, was among the many privatized or sold at implausibly low prices by President Carlos Saúl Menem, who governed the country between 1989 and 1999, within the framework of neoliberal policies which were imposed on Our America during this period given the insistence and collusion of the United States.
Cuba reiterates its unconditional solidarity with the Argentine Republic and affirms that the country is acting within its rights to fully exercise its sovereignty over its natural resources, including oilfields. The country’s action is based on international law and numerous related decisions which have been adopted by the General Assembly of the United Nations. (Republic of Cuba, Ministry of Foreign Affairs, Declaration, Havana, April 19, 2012, reprinted in Granma, April 20, 2012).

For more on the Cuban view underlying this declaration, see, Backer, Larry Catá, Odious Debt Wears Two Faces: Systemic Illegitimacy, Problems and Opportunities in Traditional Odious Debt Conceptions in Globalized Economic Regimes. Duke Law School, Law & Contemporary Problems, Vol. 70, 2007. It may take years to sort this out. But what will make this most interesting will be to see the way in which the state interests of Argentina, the interests of the international community, and the governance structures of globalization are deployed to reach a resolution. Backer, Larry Catá, Economic Globalization Ascendant: Four Perspectives on the Emerging Ideology of the State in the New Global Order. University of California, Berkeley La Raza Law Journal, Vol. 17, No. 1, 2006;

New Essay: Reaction Paper--On the Tension between Public and Private Governance in the Emerging Transnational Legal Order: State Ideology and Corporation in Polycentric Asymmetric Global Orders

2012-04-24T08:46:00.000-04:00

For those interested, I have posted the following essay to the Social Science Research Network (SSRN) website. Larry Catá Backer, On the Tension between Public and Private Governance in the Emerging Transnational Legal Order: State Ideology and Corporation in Polycentric Asymmetric Global Orders.

(Pix (c) Larry Catá Backer 2012)

It was submitted as a reaction paper as part of a Global Governance Debate (with Peer Zumbansen, Osgoode Hall Law School, York University, Toronto, Canada), “On the Tension Between Public and Private Governance in the Emerging Transnational Legal Order” sponsored by the Robert Schuman Centre’s Global Governance Programme. European University Institute, Florence, Italy. April 16, 2012.

Abstract:
This essay considers the tension between public and private governance in the emerging transnational legal order. The focus of examination is the corporation, which is where this tension is most in evidence. The analysis starts with the greatest structural impediment to the consideration of the tension between public and private in the transnational ordering of the corporation — the ideology of the state order, which disguises alternative governance orders and the governments through which they are operationalized. It is with the effects of the ideology of the state order that the analytical limitations of analysis become clearer, the object of Section II. More importantly, the exposure of the ideology of the state reveals the extent to which it can bend the objectives of analysis from one that follows reality on the ground to one that takes that bends that reality around the state. That bending can produce substantial effects on the structure of debate and the possibilities for understanding institutional changes in behavior that quite directly challenge the normative presumptions of the privileged ideology. This effect can be exaggerated when changes appear to threaten the hierarchies built into governing ideologies. Sections III and IV explore the power of ideology in framing analysis in Gunther Teubner’s conception of the reality of self-constitutionalizing organization outside the state and in Peer Zumbansen’s excellent theorizing of transnational law as method. Both suggest the ways in which the ideologies of framing analysis can color both the way in which relationships are understood and the objectives of analysis are formed. Section V then posits an alternative analysis, freer (though not entirely free) of the orbit of the state, a vision possible only when the ideological presumptions of the state are suspended.

Peer Zumbansen on Why Compare?

2012-04-22T13:47:00.000-04:00

My colleague Peer Zumbansen, Osgoode Hall Law School, York University, Toronto, Canada, has produced a marvelous essay on comparative law in the new world of transnational legal pluralism: Peer Zumbansen, "Transnational comparisons: theory and practice of comparative law as a critique of global governance, " Transnational Comparisons 9: 186-211(2012).

(Pix (c) Larry Catá Backer 2012)

I had the opportunity to engage with this excellent work in the course of a Global Governance Debate “On the Tension Between Public and Private Governance in the Emerging Transnational Legal Order” sponsored by the Robert Schuman Centre’s Global Governance Programme, European University Institute, Florence, Italy. April 16, 2012.

I titled my presentation: "‘The Artist’: Legality and Legitimacy in the Savage Lands of Governance." It serves as an analysis of this work. I have linked to the PowerPoints of the presentation of made of this work HERE.

New Essay: Transnational Corporate Constitutionalism: The Emergence of a Constitutional Order for Economic Enterprises.

2012-04-21T15:30:00.001-04:00

For those interested, I have posted the following essay to the Social Science Research Network (SSRN) website. Larry Catá Backer, Transnational Corporate Constitutionalism: The Emergence of a Constitutional Order for Economic Enterprises.

(Pix (c) Larry Catá Backer 2012))

It continues work on the issue of constitution legitimately organized non-state governance organizations, in this case, in the form of multinational corporations. It was recently presented as part of a Global Governance Debate (with Peer Zumbansen, Osgoode Hall Law School, York University, Toronto, Canada), “On the Tension Between Public and Private Governance in the Emerging Transnational Legal Order” sponsored by the Robert Schuman Centre’s Global Governance Programme. European University Institute, Florence, Italy. April 16, 2012.

Abstract:
The convergence of public and private law has emerged as one of the great legal issues of the 21st century. It touches everything from the regulation of state activity, to the character and effect of the activities of non-state actors — and particularly those amalgamations of authority organized as juridically distinct persons. At its core, it implicates issues of the character and nature of the state, the state system, and the division of power — political, economic, religious, social and cultural — among a number of actors of which the state is only one. Economic entities are increasingly seen as state-like actors requiring regulation at a transnational level; states seek to participate in domestic and foreign markets as economic rather than as political actors. Large multinational enterprises are increasingly able to self regulate. Simultaneously, the nature of the legal order among states and the principles within which states may constitute themselves have become increasingly regularized — the community of nations has begun to move from an acceptance of constitution as a means of organizing political communities to constitutionalism as a system for the regulation of the organization of non-state communities with political authority.

This paper engages emerging principles of transnational constitutionalism as a basis for the organization and integration of economic enterprises. For that purpose, the paper considers the role of two influential efforts in the construction of a global enterprise constitutionalism — the United Nations Global Compact system and the Organization for Economic Cooperation and Development Guidelines for Multinational Enterprises. The paper starts with context, examining the rise and character of the conceptual elements of transnational constitutionalism and its applicability to functionally distinct communities — like that of business enterprises. It then examines the development of and current efforts to ‘operationalize’ the Global Compact and the Guidelines for Multinational Enterprises as two related substantive regulatory frameworks for the transnational governance of economic actors. It also sketches the normative elements of these efforts and their potential limitations as constitutionalist frameworks. The paper ends with an analysis of the utility and effectiveness of these related normative frameworks as a basis for the elaboration of a transnational enterprise constitutionalism and as a regulatory framework for its implementation.

Text of Remarks Delivered at Penn State: Penn State’s New Reality--Four Lessons Learned About University Governance in Crisis

2012-04-18T23:40:00.004-04:00

What follows is the text of remarks I delivered at an Academic Leadership Seminar of the Committee on Institutional Cooperation hosted by Penn State April 13, 2012.

The Committee on Institutional Cooperation (CIC) is a consortium of the Big Ten member universities plus the University of Chicago, which was formed to coordinate collaborative enterprises among its members, and is overseen and funded by the provosts of the member institutions. "For more than half a century, these world-class research institutions have advanced their academic missions, generated unique opportunities for students and faculty, and served the common good by sharing expertise, leveraging campus resources, and collaborating on innovative programs. Governed and funded by the Provosts of the member universities, CIC mandates are coordinated by a staff from its Champaign, Illinois headquarters." CIC, About CIC.

CIC Member Universities: include University of Chicago, University of Illinois, Indiana University, University of Iowa, University of Michigan, Michigan State University, University of Minnesota, University of Nebraska-Lincoln, Northwestern University, Ohio State University, Pennsylvania State University, Purdue University, University of Wisconsin-Madison. Among its more interesting projects is its Academic Leadership Program (ALP). "Established in 1989, this intensive experience develops the leadership and managerial skills of faculty who have demonstrated exceptional ability and academic promise. . . . The program is specifically oriented to address the challenges of academic administration at major research universities and to help faculty members prepare to meet them." ALP --Introduction.

The last of this year's ALP seminar programs was hosted by Penn State University. This Seminar III was focused on issues of money, management and strategy. I was privileged to have served as an ALP fellow this year. As part of our program, each of the Penn State fellows was asked to address how the recent events at Penn State have impacted us in our university roles, and the way in which our situation influenced our thoughts about being or becoming an academic leader. I was grateful for the opportunity.

(Pix (c) Larry Catá Backer)

I have set out below the remarks I made for that presentation. For the related earlier presentation, see, "Between Faculty, Administration, Board, State, and Students: On the Relevance of a Faculty Senate in the Modern U.S. University": Talk Delivered at the AAUP Symposium at Penn State.

Fellows Program
Seminar III: Money, Management and Strategy
CIC, April 13, 2012

Remarks

Penn State’s New Reality; Reflections by the Penn State 2011-2012 Fellows--Four Lessons Learned About University Governance in Crisis.

With a nod to current reality, we have been asked to share some very short reflections about what is euphemistically called “Penn State’s New Reality.” I suspect this assignment was an oblique and perhaps conventionally polite way of acknowledging the way that the arrest of a former male employee with significant ties to Penn State on charges of illicit and illegal sexual activity with minor boys, and the related arrests of senior university officials on charges of perjury, served as a opening, uninvited and in some quarters unwelcome, to a necessary confrontation of a host of issues that have been lurking yet growing more insistent in the last several years—university governance, power relationships among university stakeholders, monitoring within universities, the role of athletics, etc. Thus, beyond the irresistible urge to gawk at disaster as one passes by, the pedophile and perjury scandal here at Penn State illustrates not merely administrative and institutional successes and failures in the face of crisis, but it also spotlights a range of issues that may challenge conventional expectations and patterns of behavior, and approaches to the distributions of power and influence, within universities.

I have had a chance to observe the emergence of Penn State’s “new realities,” as well as the organization of resistance to these new realities, as both an outsider and as a guest “inside” the Penn State administrative apparatus in my role as part of the Faculty Senate “leadership.” I will continue to have a chance to observe more this coming year as Chair of the University Faculty Senate. My perspective, then, is that of an institutionally committed faculty member, not an administrator with a position to secure or a master to serve, one who has been given the opportunity to observe, usually quietly and from the sidelines, and now to review in a loving and loyal, but necessarily and perhaps therapeutically critical way.

So in the few minutes left to me for this very short exercise, let me “reflect” on FOUR of the lessons I have learned that have had the greatest impact on me and that will likely affect my interactions with the administrative apparatus in the time to come:

1. The administrative apparatus of a large university is not always prepared for crisis, and tends to handle crisis badly. There are a number of strands here:

a. At the time of the crisis there was little evidence of any pre planning for crisis management, the mis-steps during the critical first days after the arrests suggested a damaging lack of communication between administration and board leadership and a lack of preparation for responding to press and stakeholder questions, rather than appearing in control the reactive posture further suggested a leadership under siege; damage control came late and took a long time to appear coordinated. Worst of all, these vacuums of process and reaction permitted a space where power could be effectively and publicly contested, moving attention from the perpetrators of criminal activity to the politics of the control of the university. Much of this was made possible by clinging to the view that things like that do not happen in a university like Penn State, that universities can make due without a substantial office of legal counsel, or a crisis management team, or the active use of public relations teams, or the cultivation of relations with media and media outlets; or the establishment of crisis response protocols; these and more are now required. The days when it was possible to run a large public assisted universities by jack-of-all-trades tightly knit groups of central office administrators are over.

b. The problem is deeper—strong administrators of large institutions can easily become isolated. Surrounded by people who may not want to challenge the perceptions of people who can fire them, these administrators can easily become critically detached from events around them and assume incorrectly the way their actions will be received by others. They can come to understand the university and the world around them in terms that have little relation to what is actually going on or to the opinions of critical stakeholders. The view from Old Main was sometimes stubbornly unique and especially so in the days after the arrests. Self-centered myopia reinforced by refusing to rely on more than a closed inner circle of information providers, is a constant danger all decision makers must acknowledge and mitigate. The appearance that this is the case is as detrimental as its actual occurrence. What appeared to some outsiders as an example: the former university president’s initial statement of support for Messrs. Curley and Schultz, which produced a critical firestorm that was, in turn, purportedly a factor in the president’s dismissal. The statement might have made perfect sense and been innocuous from the perspective of the president in the context of the usual obligation of a superior administrator to support well respected inferior officers. But that was a view at odds with developing reality outside of Old Main, a reality that was ignored to great detrimental effect.

2. University governance structures that are based on a strong President model are especially susceptible to mismanaging crisis, especially where the crisis itself focuses on the office of the President. The cult of personality is as dangerous for a university administration as it is for political leaders. Stakeholder models built on more open textured governance principles are more likely to have systems in place to avoid crisis and to intervene effectively.

a. On the one hand this requires a greater willingness to re-vest boards of trustees with greater oversight capabilities, including the power to reach down directly into the operations of the university in meeting its monitoring and assessment responsibilities. On the other it serves as a caution when political figures with conflicting loyalties, or their designees, assume an active role in university governance.

b. It also requires boards to be both more pro active, vis a vis monitoring and information flows, and more willing to consult with and defer to knowledge centered groups. The board of trustees appeared to follow neither of these rules in the months after the arrests. The initial response to the arrests appeared secretive and defensive, which tended to have the effect of disengaging faculty, and of raising suspicion in ways that are still felt with respect to official communication from the University to interested stakeholders outside the university. The subsequent terminations of Messrs Spanier and Paterno (whatever the bona fides of those actions) appeared craven to some in the public and among university stakeholders, and reported so in the press—the fact that explanation came garbled and in definitive form only months after the events, did little to raise the reputation of either administration or board. The process of correction continues but it is neither yet entirely successful nor free from gaffs.

3. Large bureaucracies resist nimbleness—they prefer gesture to substantive changes if only because they are less drastic and because they hold the promise of substituting formal for functional changes.

a. There is nothing more disconcerting than to see administrative responses to crisis devolve into little more than frenetic administrative activity that has all the feel of hamsters at their exercise wheel, with the same normative effect. Lots of little activity at the margins of a problem is no substitute for consideration of the more difficult underlying questions that this activity tends to mask. This applies both to issues arising in crisis—for example issues of trust, transparency, engagement, accountability, retaliation—as well as to strategic issues that arise in ordinary course, everything from the future of undergraduate education to the changing role of students and faculty, to the sustainability of tenure on an emerging “made to market” educational program delivery culture.

b. Frenetic activity that appears to substitute for deep engagement may also serve to corroborate a cynical view by stakeholders that it is undertaken to exclude them and to protect administrative prerogatives threatened by crisis, leaving the core of conventional culture intact. Preservation of authority lines, the politics of personal advancement, and the cultivation of cultures of servility as a marker of advancement are always a distraction in a large administration.

4. Faculties, and faculty organizations, did not well serve the interests of the university in this crisis when they assume that servility is the highest form of service. Beyond the general and bland cultivation of cultures of servility within a highly decentralized administrative model marked by benign neglect of the actual governance of unit cultures, faculties themselves tended to be divided, timid, and swayed by sometimes unsupported fears of retaliation. The combination produces a tendency to both over and under reaction that little serves the university.

a. Part of the problem was defensive, there was a sense that some sought to manage faculty engagement, to keep it well mannered and innocuous; this raised suspicion within certain quarters of the Senate and it hurt morale; it also tended to drive some faculty from participation in governance (on the basis of an assessment that faculty governance was being used as a cover to rubber stamp action already undertaken).

b. Indeed, the faculty was under utilized, inhibiting the flow of ideas that might be useful and reducing its effective engagement in crisis management; for much of the crisis the faculty was either an afterthought or a potential threat to spin management, it hardly participated. In crisis, a well behaved faculty was apparently only a docile one.

c. The role of the faculty Senate in the crisis was telling. The Senate was conspicuously absent at key moments from November on. It certainly was not involved in those governance roles that might have provided another source of monitoring and gatekeeping. The Senate was never really invited to the governance table except in a peripheral way and when it did appear to act, the reactions appeared to tend towards suspicion and fear of a crazy group of faculty out of control. Its initial response came late, and to some appeared passive and obsequious; the holding of a special meeting, an extraordinary event in Senate history, was met in some quarters with substantial fear that the Senate would stick its nose where it did not belong; the resulting motions to constitute an independent investigation committee was resisted, as was the move to no-confidence the board of trustees, the administration and its allies countering with a “work with us-not against us” campaign insinuating that a move to no-confidence would be disruptive and cheeky; the absence of authentic shared governance beyond cooperation in low level administrative process issues pre crisis made it impossible to engage effectively after the crisis commenced. Indeed, the greatest effect of the crisis was a move to greater control of Senate processes by curtailing or eliminating the power of members to call a special meeting.

For all that, Penn State has been moving in the right direction. Key actors are beginning to ask some of the right questions. There is a greater willingness by an institution, with a cultural affinity to the safety of the middle of the benchmark, to take greater risks. There is at least a conceptual commitment to structures of engagement and consultation, though not yet enough of one with respect to transparency, and an episodic willingness to engage in shared governance. Under the leadership of our new President, his leadership team, and the new Chair of the Board of Trustees, important changes are being undertaken. Both are making substantial efforts to be more accessible and greater efforts are being undertaken to avoid isolation and disengagement from critical stakeholders. The renewal of a commitment to shared governance is well appreciated. Yet there is much that still needs to be done. Penn State’s new reality, then, is still to some extent its old reality. Some changes have been made, others promised, but old habits die very, very hard. Still, assuming we are able to profit from the lessons of the last several months, there is a role for all of us at Penn State in that process of change.

Part XXVII—Zhiwei Tong (童之伟) Series: Reform of the Political System Should Start with the Party Constitution rather than the Constitution

2012-04-14T11:21:00.000-04:00

(Zhiwei Tong, PIX (c) Larry Catá Backer)

For 2012, this site introduces the thought of Zhiwei Tong (童之伟), one of the most innovative scholars of constitutional law in China. Professor Tong has been developing his thought in part in a essay site that was started in 2010. See, Larry Catá Backer, Introducing a New Essay Site on Chinese Law by Zhiwei Tong, Law at the End of the Day, Oct. 16, 2010. Professor Tong is on the faculty of law at East China University of Political Science and Law. He is the Chairman of the Constitution Branch of the Shanghai Law Society and the Vice Chairman of the Constitution Branch of the China Law Society.

The Zhiwei Tong (童之伟) Series focuses on translating some of Professor Tong's work on issues of criminal law and justice in China, matters that touch on core constitutional issues. Each of the posting will include an English translation from the original Chinese, the Chinese original and a link to the original essay site. Many of the essays will include annotations that may also be of interest. I hope those of you who are interested in Chinese legal issues will find these materials, hard to get in English, of use. I am grateful to my research assistants, YiYang Cao and Zhichao Yi for their able work in translating these essays.

TABLE OF CONTENTS FOR THE SERIES AVAILABLE HERE.

(Emblem of the Communist Party of China )

Part XXVII—Zhiwei Tong (童之伟) Series: Reform of the Political System Should Start with the Party Constitution rather than the Constitution

Abstract: This article is an academic response to the important point “reform of the political system should start with the Constitution," made by Professor Jiang Ping. The progresses of the 1982 Constitution compared with previous ones are all driven by reforms of the Party Constitution, since then, major changes in the Constitution have always been guided by reform of the Party Constitution. Implementation of the Constitution depends on the implementation of constitution-related provisions in the Party Constitution. National People’s Congress’ interpretation of the Constitution is determined by the interpretation made by the ruling party. The status of the implementation of constitution-related provisions in the Party Constitution has decisive influence on the building up of the constitutional supervisory system. The reform of the political system should begin with reform of the ruling party itself and its rules. The author advocates: establish party code of conduct to guarantee the strict compliance of party organizations and officials with the law; gradually form within the ruling party multi-candidate, direct and competitive electoral system; start with the enrichment and protection of the rights of party members in order to enrich basic rights of citizens and improve related protection system; use changes and application of the Party Constitution as the starting point to reform the judicial system; start from reviews based on the Party Constitution to gradually build an effective constitutional supervisory system to conduct constitutional reviews.

(From The CCP Re-institutes Party Cells, Elizabeth M. Lynch, I Pledge Allegiance to the CCP….Chinese Lawyers’ New Oath Requirements, China Law / Policy March 22, 2012).

May 12, 2011, at the establishing ceremony of “Cai Dingjian Constitutional Education Fund” Professor Jiang delivered the speech entitled "Political Reform should first begin with the Constitution.” Reading the text of the speech, I was particularly impressed by the sentences: “the Constitution is a socially sensitive issue, or a key issue affecting the system. If we engage in political reform, we shall first start from the Constitution. If our Constitution cannot be reformed, our system will not be able to get much improvement either."[i] It should be said this is indeed the real situation within the legal system and regarding the relationship between the Constitution and other laws. So, it is thus undoubtedly correct to say that the judicial system or legal system reform should first start with the Constitution.

The legal system, however, is only a component of the political system. The results will probably not be the same if the reform of the political system is discussed beyond the scope of the legal system. The logic of historical experience and political behavior has demonstrated that the function of the Constitution is to document and fix the achievements of reforms of political systems; it is the result and not the starting point. Therefore, reform of the political system is not likely to start with the Constitution. So, if it cannot start with the Constitution, where shall it start then? I think, if we must look at the problems from a normative view, then the reform of the political system should start from the Part Constitution. The Party Constitution here is mentioned in a general sense, referring to the Constitution of the Communist Party of China and fundamental rules or norms provided by guideline documents of the Party that hold the same level of authority as the Party Constitution.

Why do we say political system reforms should start with the Party Constitution? Allow me, referring to the reality after “Reforms and Opening Up,” tersely state the reasons with which I derived my conclusion from. I very much respect Mr. Jiang’s point. I write this article, not to deny Mr. Jiang’s opinions but attempt to push further the discussion initiated by Mr. Jiang, regarding where to start political reforms.

1) Progresses made in 1982 Constitution are all results of the reform of the Party Constitution.

As a whole, the Constitution of 1982 is the best one among all the constitutions after the foundation of the new China: this is the consensus in the academia and among politicians. The progressiveness of the 1982 Constitution in comparison with other ones is mainly seen in four aspects, and the root of the progress in these four aspects can all be found in the constitution and guideline documents of the ruling party.

1) Compared to previous constitutions, the most outstanding progress of the 1982 Constitution is the focus on the modernization of the country and establishment of the fundamental task for the nation. The seventh paragraph of the Preamble of the Constitution provides clearly: “The basic task of the nation in the years to come is to concentrate its effort on socialist modernization.” This is a decisive turning point or milestone in the historical development of the new China, its positive significance cannot be exaggerated.

However, the above-mentioned reform of the Constitution had roots in the changes of the Party Constitution and improvement of ruling party’s awareness. In December 1978, the Third Plenary Meeting of the Eleventh Session of the Chinese Communist Party, adapting to domestic and external development, had decided to “to transfer the inclination of Party’s work and the attention of the People to the building of socialist modernization.”[ii] On September 6 1982, the new Party Constitution passed at the Twelfth Session of the CCP after stating: “ most conflicts in the society of our country do not have a class-struggle nature, class-struggle is no longer the main conflict,” “the major conflict in the society of our country is between people’s growing cultural and material demand and backward social forces of production,” demanded the general task with the core content of gradually realizing the “four modernizations,” and defined the inclination of the woks of the CCP as “to lead the people of all ethnicities in the nation to build a socialist modernized economy.”[iii] Without the improvement of CCP’s awareness and changes in the Party Constitution, it would have not been possible for the 1982 Constitution to establish the determination to “concentrate strength to build socialist modernization” as the fundamental task of the nation.

2) Another progress made by1982 Constitution compared to previous ones is that it provided that all political parties have to comply with the Constitution and the Law. The last paragraph of the Preamble provided: “the people of all nationalities, all state organs, the armed forces, all political parties and public organizations and all enterprises and undertakings in the country must take the Constitution as the basic norm of conduct, and they have the duty to uphold the dignity of the Constitution and ensure its implementation.” Article 5 also provided that: “All state organs, the armed forces, all political parties and public organizations and all enterprises and undertakings must abide by the Constitution and the law. All acts in violation of the Constitution and the law must be investigated. No organization or individual may enjoy the privilege of being above the Constitution and the law.” Here the expression “all political parties” includes naturally the ruling Chinese Communist Party.

The provision in the Constitution of 1982 requiring CCP’s compliance with the Constitution and the Law is also based on the improvement of CCP’s awareness and changes in the Party Constitution occurred earlier. In December 1978, the Third Plenary Meeting of the Eleventh Session of the CCP demanded: “it is necessary to assure equality for the people in front of their own laws; nobody is allowed to have privileges overriding the Law.”[iv] “Resolution on Some Historical Issues of the Party since the Founding of the People's Republic” passed during the Sixth Plenary of the Eleventh Session of CCP in 1981 wrote: “organs of the Party at all levels, like other social organizations, must act within the scope of the Constitution and the Law.”[v] The Party Constitution passed in the coming year provided: “the Party must act within the scope of the Constitution and the Law.”[vi] If there had not been a consensus within the ruling CCP on the compliance with the Constitution and the Law which had be written into the Party Constitution, it would have been impossible for the Constitution of 1982 to establish such provision.

3) Similarly, the provision in the Constitution of 1982 that prevents excessive concentration of power was also rooted from guideline documents of the ruling party. The third progress of the 1982 Constitution compare to previous ones is the establishment of necessary provisions that prevents excessive concentration of power, among these provision the following ones have had particularly evident effect and received favorable comments both at home and abroad: Article 66 providing that “The Chairman and Vice-Chairmen of the Standing Committee shall serve no more than two consecutive terms;” Article 79 providing that “The term of office of the President and Vice-President of the People's Republic of China is the same as that of the National People's Congress, and they shall serve no more than two consecutive terms;” Article 87 providing that “The Premier, Vice-Premiers and State Councilors shall serve no more than two consecutive terms;” Article 124 providing that “The term of office of the President of the Supreme People's Court is the same as that of the National People's Congress; he shall serve no more than two consecutive terms;” and Article 130 stating that: “The term of office of the Procurator-General of the Supreme People's Procuratorate is the same as that of the National People's Congress; he shall serve no more than two consecutive terms.”

These provisions in the Constitution can all be traced to the “Reform of the Leadership System of the State and Party” which serves as “the guideline document that directs reforms of the political system in our country” to the ruling party.[vii] This documents was originally a speech made by Deng Xiaoping on August 18 1980 at an expanded meeting of the Politburo, the Politburo however passed this speech on August 31 1980. This speech became since then the guideline of the reform of the political system in our nation. The “Reform of the Leadership System of the State and Party” writes: “power should not be too concentrated. Excessive concentration of power impedes the implementation of the system of socialist democracy and Party's democratic centralism, it hinders the development of socialist construction and full play of collective wisdom, it is likely to cause arbitrary decision by individuals and destroy collective leadership, it is also an important cause for the emergence of bureaucracy under new conditions,” “the Central Committee has presented to NPC’s Third Meeting of the Fifth Session the proposal to revise the Constitution……The principle of prohibition of excessive concentration of power will also be demonstrated on the Constitution.”[viii] Following that, the “Resolution on Some Historical Issues of the Party since the Founding of the People's Republic” has also reflected on the historical lesson that “excessive concentration of power and emergence of arbitrary behavior by individual and personality cult, made it extremely difficult for the Party and State to prevent and impede the launching and development of the Cultural Revolution.”[ix]

4) Regarding the protection of basic civil rights, fundamental political system of the nation and advancement of the legal system, the Constitution of 1982 contains also contents surpassing previous constitutions. These contents are essentially reflections of corresponding contents of guiding documents passed by the ruling party some time earlier. Guiding documents of the ruling party had already made relevant discourses: “civil rights provided by the Constitution must be strongly protected, nobody may violate them;” “in order to safeguard people’s democracy, it is necessary to strengthen socialist rule of law; institutionalize and legalize democracy; let these institutions and laws possess stability, consistency and great authority; make sure that there are laws to rely on, follow a law when there is one, implement laws with seriousness and investigate any violation of the Law.”[x]

( Herdspeople love to read books by Marx and Lenin, 1976)

2) Important changes of the Constitution since 1982 had always been guided by changes in the Party Constitution.

Since its publication and implementation, the Constitution of 1982 underwent four partial revisions and thirty-one amendments were passed. Without any exception, all of these amendments were passed after they had been presented as advises to the Standing Committee of NPC by the Central Committee of CCP, and important contents included in these amendments were all written into the Party Constitution and other guideline documents of the ruling party beforehand. Let us take a look at the guiding function of the Party Constitution and guideline documents on important changes of the Constitution.

1) The First Amendment passed by National People’s Congress in April of 1988 which has the core content of “the State permits the private sector of the economy to exist and develop within the limits prescribed by law,” came from the same proposition of the Report of CCP’s Thirteenth Assembly passed in October of 1987. The Report wrote: “reforms we have conducted, including development of an multi-form ownership economy based mainly on public ownership, allowing even the existence and development of private ownership economy, are all determined by the objective situation of productive forces of the initial stage of socialism,” “regarding urban-rural cooperative economy, individual economy and private economy, all of them have to be encouraged to develop.”[xi]

2) Amendments 3 and 7 passed by NPC in March of 1993 confirming that “our nation is at the initial stage of socialism” and “the State implements socialist market economy,” all came from the Constitution of the Communist Party of China passed at the Fourteenth Assembly of the CCP in October 1992. This Party Constitution passed during the Fourteenth Assembly recognized in its the general statement: “our nation is at the initial stage of socialism,” and presented the proposition “it is necessary to reform radically the economic system that restrains development of productive forces, and build the socialist market economy.”[xii]

3) The Thirteenth Amendment passed in March of 1999 by NPC providing that “the People’s Republic of China implements the rule of law, builds a nation of socialist legal system,” came from the propositions of “rule the country in accordance with law, develop socialist democratic politics,” and “complete the legal system, build a nation of socialist rule of law,” passed by CCP’s Fifteenth Assembly.[xiii]

4) The Twenty-Second Amendment with the core content of “lawful private property of citizens may not be violated” passed in March of 2004 is based on the proposition of the Sixteenth Assembly of CCP regarding “building legal institutions that protect private property.”[xiv]

5) The Twenty-Fourth Amendment passed in March 2004 by NPC, added to Article 33 of the Constitution the item “the State respects and protects human rights,” this item is based on the proposition “respect and protects human rights” in the Report of the CCP’s Sixteenth Assembly passed in November 2002.[xv]

The above five aspects can be seen as landmark reforms of the 1982 Constitution since its publication and implementation. These reforms are all realized under the guidance of the Party Constitution and guideline documents of the ruling party, without the changes in the latter, no reforms could have happened to the Constitution. This conclusion is consistent with the establishment of the entire Constitution of our nation, from its preamble to main body.

3) The implementation of the Constitution depends on the implementation of the corresponding provisions of the Party Constitution.

A constitution is significant if it is implemented, and it is also valued with its implementation.

The basic content of the implementation of the Constitution is the compliance with the Constitution. Abiding by the Constitution is the obligation of all parties regulated in the Constitution. The Constitution of our nation provides: this very Constitution is the fundamental law of the nation and has the supreme legal power; the people of all nationalities, all state organs, the armed forces, all political parties and public organizations and all enterprises and undertakings in the country must take the Constitution as the basic norm of conduct; All state organs, the armed forces, all political parties and public organizations and all enterprises and undertakings must abide by the Constitution and the law. All acts in violation of the Constitution and the law must be investigated.

A higher level content in the implementation of the Constitution is the application of the Constitution. Application of the Constitution refers to activities of public affairs or resolutions of specific disputes performed with active used of constitutional provisions in accordance with statutory power by state organs with statutory qualifications provided by the Constitution. Application of the Constitution consists firstly and mainly in the application of legislation, that is activities of state organizations with legislative power making laws in accordance with the Constitution to implement the specific provisions of the Constitution. There are also some content of executive application in the application of the Constitution, but there is basically no space for juridical or procuratorial application.

Under the current system of our nation, without the pushing forces of the ruling party, “to enhance the implementation of the Constitution” to a great extent is a declaration in vain. Regarding the implementation of the Constitution, the Party Constitution provided that “ the Party must act within the scope of the Constitution and laws;” it is necessary to “expand socialist democracy, improve socialist legal system, build social socialist country under the rule of law.” The Seventeenth Assembly of the CCP also asked to “ enhance the implementation of the Constitution and laws,” “All party members and party organizations at all levels must act within the scope of the Constitution and laws voluntarily, and act as example in protecting the authority of the Constitution and laws;” “fully implement basic policy of ruling the country in accordance with law, accelerate in building a country under the socialist rule of law.”[xvi]

However, how can the implementation of the Constitution be enhanced? Enhancing the implementation of the Constitution requires stricter obedience to the Constitution. Whether the Constitution can obtain strict obedience, depends essentially on whether the ruling party can obey to the provision “the Party must act within the scope of the Constitution and laws” as written in the Party Constitution. The half-century history of the implementation of the Constitution demonstrates, if the organizations or the leader of the ruling party can act within the scope of the Constitution then the Constitution can be strictly followed; if the organizations or the leader of the ruling party do not act within the scope of the Constitution, then no force can prevent the Constitution from being violated or even trampled as scratch papers.

Enhancing the implementation of the Constitution requires also more extensive application of the Constitution. Legislative agenda and focus of the NPC and its standing committee, radically speaking, are all determined by the central leadership of the ruling party in accordance with the Party Constitution and other guideline documents. In this sense, the implementation of the Constitution depends on the level of ruling party’s compliance to and application of the Party Constitution. Whether a certain law should be included in the legislative agenda of the NPC or its Standing Committee, or when it will be included in the agenda, in practice, mainly depends on the judgment and considerations of the central leadership of the ruling party acting in accordance with the Party Constitution.

For example, after the basic formation of the legal system, the first topic that the application of the Constitution faces in our country is to continue in establishing or improving laws that protect basic civil rights, such as establishing laws that protect freedom of speech and press, freedom of association and improving laws that protect personal rights and freedom etc. The other important topic that the application of the Constitution faces is to establish, following the provisions of the Constitution, laws necessary for the implementation of ruling party’s policy on the rule of law and for ruling party’s governance in accordance with law. The main content here consists of laws that regularize constitutional supervision and regularize the relationship between party organizations and state organs at various levels. When these topics are going to be planned into the agenda of nation’s highest legislative body, depends on the arrangement of the ruling party.

4) Ruling party’s interpretation of Party Constitution’s provisions regarding the Constitution determines NPC’s interpretation of the Constitution.

The Constitution of the Communist Party of China contains numerous provisions regarding important constitutional issues. Provisions in the Party Constitution as the following ones involve important constitutional issues: “It is compulsory to adhere to and improve the basic economic system based primarily on public ownership combined with multiform types of ownership; adhere to and improve the distribution system based primarily on the distribution system according to work combined with multiform types of distributions;” The Communist Party of China “leads the people in promoting socialist democracy. It integrates its leadership, the position of the people as masters of the country, and the rule of law, takes the path of political development under socialism with Chinese characteristics, expands socialist democracy, improves the socialist legal system, builds a socialist country under the rule of law, consolidates the people's democratic dictatorship, and builds socialist political civilization. It upholds and improves the system of people's congresses, the system of multiparty cooperation and political consultation under its leadership, the system of regional ethnic autonomy, and the system of self-governance at the primary level of society.” “The Party must meet the requirements of reform, opening up and socialist modernization, persist in scientific, democratic and law-based governance, and strengthen and improve its leadership,” “The Party must conduct its activities within the framework of the Constitution and laws of the country. It must see to it that the legislative, judicial and administrative organs of the state and the economic, cultural and people's organizations work with initiative and independent responsibility and in unison.” Interpretation the ruling party’s leadership has on these provisions, determine their interpretation of relevant constitutional provisions and corresponding terminology, which will ultimately determine NPC and its Standing Committee’s interpretation of corresponding constitutional provisions and terminology. The mechanism with which things work here is self-explanatory.

The impact on the implementation of the Constitution by the leadership of the ruling party in accordance with the Party Constitution is extensive. In this aspect, even a careless action by those in charge may often cause confusion of the constitutionally provided relationship between state organs, making the relationship distorted or even reversed, impacting to a great extent the statutory power distribution among state organs. The Party Constitution provides that in social and public affairs the Party implements “political, intellectual and organizational leadership.” The form of leadership in any of these aspects can directly or indirectly influence the implementation of the Constitution. Regarding this aspect we can probably explain using the example in which the ruling party implements leadership within the judiciary system by using party organizations. For example, arranging the secretary of legal affairs to be the permanent member of the party committee and head of the Public Security Bureau of the same administrative region was a common and is still a not totally abandoned form of leadership by using party organizations implemented by the ruling party within the state judiciary system. One of the many consequences of this form of leadership is that the head of the Public Security Bureau, who has a lower constitutional status than the head of the court and procuratorate, enjoys a higher political status and power than both of them in practice. According to the above arrangement, head of the Public Security Bureau has replaced the political status of the leaders of the court and procuratorate, therefore the head of the Public Security Bureau can summon leaders of the court and procuratorate of the same administrative region and guide the processing of cases, at any time he or she feels necessary under the name of “coordination.” This is an important reason why since a long period the processing of criminal cases in our country are often controlled by public security departments while procuratorates and courts cannot have effective restrictions on the public security departments involved in the investigations. Currently, this type of practice is retreating from judicial stage, at the same time a non-concurrent post system is close to replacing the old practice. Bearing in mind the requirements for strict implementation of the Constitution, whether the ruling party needs to establish a committee for “political and legal affairs” at all levels of party committees; if yes, whether the position of its secretary should not allow concurrent posts or be concurrently hold by the head of the court (a system implemented by Mr. Ren Jianxin when he was the Chief Justice of the Supreme People’s Court) or head of the Public Security Bureau, are all important questions that should be carefully addressed when the ruling party implements leadership by using party organizations in accordance with the Party Constitution. This is only one of the many aspects of traditional relationship between Party and administration, concerning other aspects, there would not be fundamental difference concerning the decisive impact of the leadership of the ruling party can exert on the implementation of the Constitution.

What needs to be particularly explained is that: ruling party’s interpretation of the basic political system provided in the Party Constitution, has decisive impact on the constitutional status and statutory power of relevant state organs and relationship between different state organs in terms of functions and powers, determining thus also the implementation of relevant constitutional provisions. The Constitution of the Communist Party of China provides that it is necessary to “persist and improve the system of People’s Congress.” But, what is the system of People’s Congress? How to have an up-to-date interpretation of such system? How are the relative status and functional powers of the deferent state organs under the People’s Congress system determined? These are all problems that can cause large discrepancy in interpretations. However, regardless of discrepancies, the content and form of implementation of the “People’s Congress System” in the Constitution, are essentially dependent on ruling party’s interpretation of relevant provisions in their Party Constitution. In the Constitution of our country, under the National People’s Congress there are the State Council, Central Military Committee, Supreme People’s Court and Supreme People’s Procuratorate, these are four parallel central state organs. However, the ruling party, evidently influenced by the mentality of warring period and planned economy, has never seen the four organs as parallel, instead it views the Supreme Court and Supreme Procuratorate as lower organs than the State Council and Central Military Committee, putting the two “Supreme” institutions as important ministries under the State Council (the Public Security Bureau). This is in fact the result of ruling party’s interpretation of the People’s Congress system. According to this interpretation, despite the fact that both the office of the Chief Justice of the Supreme People’s Court and the office of Chief Procurator of the Supreme People’s Procuratorate are vice Head of State-level posts, evaluating their status in the Party, the index most valued by the current system, neither of them enjoy a status higher than a minister. Here there is a question of whether the interpretation of relevant provisions in the Constitution is done to suit the market economy and the environment of the rule of democracy. Under the environment of planned economy, rule of man and class struggles, administrative power and strong institutions are the most important, judicial branch cannot contribute much, appearing thus less important, therefore it is normal to place the State Council and Central Military Committee above the Supreme People’s Court and Procuratorate. However, in the time of market economy and building up of a country under the rule of law, the Supreme People’s Court and Procuratorate can be and should be, as the text of the Constitution provides, placed at the same status of the State Council and Central Military Committee. If the central leadership of the CCP considers the Supreme People’s Court and Procuratorate as parallel central state organs as the State Council and Central Military Committee, in the future, they should totally nominate two permanent members of the Politburo to the National People’s Congress for the office of the Chief Justice and Chief Procurator, and place the two offices as vice Head of State-level posts institutionally.

Of course, ruling party’s interpretation of provisions related to the Constitution contained in the Party Constitution and its leadership behavior has essential impact on all fields of the implementation of the Constitution, the text above is only a simple discussion focusing on the judicial field, and it is not a systematic discourse.

5) The application of constitutionally related provisions in the Party Constitution also has decisive impact on the establishment of the constitutional supervisory system.

Put in simple terms, constitutional supervision is constitutional judicial review or protection of the Constitution. Without an effective constitutional supervision system, the Constitution cannot be fully implemented.

Reading from the text of the Constitution, China does have its constitutional supervisory system. The tragic end of the 1954 Constitution and painful lessons learned through the experience of the Cultural Revolution allowed the “people and the Communist Party of China to notice profoundly that the authority of the Constitution is related to political stability and national fate, no harm will be allowed to the foundation of the Constitution.”[xvii] Therefore, the authors of the current constitution have attached more importance to constitutional supervision. The Constitution provides: “This very Constitution ..is the basic law of the national, and has the supreme legal power;” none law, administrative regulation and regional normative regulation can be in conflict with the Constitution. The Constitution also provides that, National People’s Congress supervises the implementation of the Constitution; it has the power to change or abolish inadequate decisions made by its Standing Committee; NPC’s Standing Committee explains the Constitution and supervises the supervision of constitutional implementations, it has the power to abolish administrative regulation, decision and orders made by the State Council when they are in conflict with the Constitution or laws, it also has the power to abolish regional regulations and resolutions made by provincial, regional (autonomous regions) and municipal (direct municipalities) state authority if they are in conflict with the Constitution, laws and administrative regulations; local People’s Congresses guarantee compliance to and implementation of the Constitution, laws and administrative regulations; People’s Congresses above the county level has the power to alter or abolish inadequate decision made by its Standing Committee, has the power to alter or abolish inadequate decisions of the government of the same level and abolish inadequate resolutions made lower level People’s Congresses etc. The “Legislation Law,” passed in March of 2000 during the Third Meeting of the Ninth Session of the NPC and activated on the 1st of July made numerous complementary provisions to the supervisory system determined by the Constitution.

In practice, the constitutional supervisory system provided by the text of the Constitution and relevant complementary law have some evaluative, educational and guidance functions. However due to the absence of specific constitutional supervisory institution and relevant procedural laws, the constitutional supervisory system in our country remains still largely on paper so far. No public review of provisions of any law or normative regulation has been done in regard of their constitutionality. Therefore, this present system cannot be considered as an effective one. Secretary General Hu Jintao at the celebration of the twentieth anniversary of the promulgation of the Constitution in Beijing pointed out that “some unconstitutional phenomena varying in degrees still exists,” and proposed that “it is necessary to accelerate research and strengthening of the constitutional supervisory system, further clarify constitutional supervisory procedures, rectify timely all unconstitutional behaviors. National People’s Congress and its Standing Committee have to serve to fundamental interests of the State and people, fully protect citizens’ freedom and rights provided by the Constitution during the process of legislation, take effectively the functional responsibility of supervising constitutional implementations and rectify unconstitutional behaviors with determination.”[xviii]

Considering the above situations, and according to the provision “to strengthen State works in legislation and legal implementation, realize the legalization of all State works” written in the current Constitution of the Communist Party of China, and the requirement by the Seventeenth Session of CCP’s National Representative Assembly of “persist characteristics and advantages of socialist political system, advance the institutionalization, regularization, proceduralization of the socialist democratic political system, in order to provide political and institutionalized legal protection for the long-term stability of the Party and nation,”[xix] the ruling party should make pragmatic efforts in the building up of an effective constitutional supervisory system. Two things can be done in this regard: 1) establish the long-proposed and long-discussed specific constitutional supervisory institution; 2) plan and establish procedural legislation regarding the constitutional supervision.

Actual advancement in constitutional supervision depends on the will with which the ruling party implements relevant content of the Party Constitution and its judgment on the appropriateness of timing.

6) Conclusion: political reform should start with the reform of the ruling party itself and its rules.

In the recent 30 years, huge changes occurred in the society and economy of our country, during this time, although the political system has had some reforms, but the steps taken were small. Since CCP’s Twelfth Assembly in October 1992, the Constitution of the Communist Party of China has provided to initiate economic reforms, “and accordingly, it is necessary to initiate political system reforms and reforms in other domains.” Regarding political system reforms, the society has huge expectations from the ruling party. Evidently to respond to this expectation, CCP’s Sixteenth Assembly hold in November 2002 modified the Party Constitution, propositioning the task of “advance coordinated development of socialist material, political and spiritual civilizations.” Afterwards, the Eighteenth Amendment of the Constitution passed at NPC’s meeting in March 2004 included the task of “advancing material, political and spiritual civilization” in the Constitution. Since then, seven years have passed, and evidently the expectation of the society for the ruling party has only increased.

Social economic reforms unavoidably lead to political reforms. Political reforms are divided into two distinct forms consisting in political revolution and political system reform (or political system moderation). In long terms, the occurrence of political changes is unavoidable, therefore the question remain only whether the society chooses to adopt the form of revolution or reform. As political phenomenon, it is difficult for us to mark every single political change with the stamp “revolution” or “reform,” but it seems like we can provide a general judgment: in a country where the leading or ruling status of a political party is recorded and fixed by the Constitution, all changes willingly activated, voluntarily accepted and advanced by the ruling party are all reforms in nature; not all phenomena of change prohibited by the ruling party who is unable of exerting full control are of revolutionary nature, but evidently there is danger that they may turn into revolutions.

Although in contemporary China social problems are rather acute due to unbalanced economic and political development, unfair distribution of economic and political resources and corruption of public authority, there are rare social conditions that may cause “revolution” or prominent risk. However, our society is still in development, for the sake of long-term stability, our nation has to initiate political system reform sooner possible, it cannot attempt to avoid the necessary reforms of the political system, because the longer it avoids, the harder it will find reforming the system and greater are the risks.

After going through circle, we still have to address the question asked at the introduction of this article: where shall the reform of the political system start from? Thousands are issues reform of the political system may involve, I proposition to start with the ruling party itself and the implementation and changes of its Party Constitution, concretely speaking, starting from the following aspects:

1) Establish party regulations that reassure its organizations and officials’ strict compliance with laws. Strict compliance with laws by party organizations, official and state organs under their governance, is an precondition for effective advancement of political system reform. The Constitution of the Communist Party of China demands: “the Party has to act within the scope of the Constitution and laws,” party members to “follow state laws and regulations as example.” However a question, often ignored in the past and becoming increasingly prominent recently, is that public authority and its officials act in evident violation of law but not investigated by any institution. The victims cannot even find a place to appeal. There are already multiple ways in which public authority and its officials act in violation of law: violent demolition, illegal detention, forced “missing accident,” forced psychiatric treatment, deprivation of rights to appeal, investigation with torture, joint process by Public Security Bureau, Procuratorate and Court, judgment before investigation, establishment of temporary non-statutory institutions overriding state institutions etc. These are all disorderly phenomena for a country that is determined to build a rule of law, they should be put to an end. Under the current environment in our country, the most effective way to manage these disorderly phenomena is to severely implement party disciplines in accordance with the Party Constitution.

2) Gradually revise or improve regulations regarding candidate nomination and election of party assembly representatives at all levels as well as members, permanent members and secretary of party committee at all levels, and also gradually form a multi-candidate, direct and competitive election system within the party. Then include the new regulations regarding elections in the Constitution or laws with the same principles, spreading it to the nation and society. Whether it is a party, nation or society, the most fundamental institutional element for democracy is election, if there is not an election valued with multi-candidacy, directness and competition then it has lost the fundamental meaning of party democracy and social political democracy. Single-candidate, indirect and uncompetitive election, especially single candidacy and non-competition are essentially a gibe to election, they do not have the original meaning of election. Single candidacy, indirect and uncompetitive election are a suitable political form for planned economy, non-democracy and rule of man; the political form suitable for market economy, democracy and rule of law is expressed in terms of multi-candidacy, direct and competitive election. There is no conclusion more materialist (the word “materialist” is often used as the equivalent of “scientific” in mainland China----------translator) than this.

3) Enrich basic rights of citizens and build the protection system by starting with the enrichment and protection of rights for party members. Historical facts prove that the protection of the rights of ruling party members determines, and at the same time reflects, the protection of basic civil rights provided by the constitution, although these two types of rights might may not match. Although Article Three of The Party Constitution passed at the Eight Assembly of CCP in 1956 provided seven rights for party members, seeing from the real situations between 1956 and 1969, this provision in the Party Constitution is close to being nonexistent. Party Constitution of the Ninth Assembly in 1969, Tenth Assembly in 1973 and Eleventh Assembly in 1977 simply abolished the provisions of party members’ rights of the Eighth Assembly in 1956, especially party constitutions of 1969 and 1973, they almost did not recognize any right for party members while providing numerous duties. The current Constitution of the Communist Party of China is passed in 2007 at the Seventeenth Assembly. Its Article Four provided eight rights for party members, and is the same text of Article Four of the Party Constitution passed at the Twelfth Assembly, unchanged for 30 years.

Although the current party constitution is unrivaled in terms of number of rights by party constitutions passed before 1982, and the situation of the protection of these rights is rather good, but it is evident that the current party constitution does not fit the society which has had great changes after the “Reforms and Opening Up” in many places. The unfit situation can be generalized in the following three aspects: 1) there are rare opportunities and platforms to participate in policy discussion of the Party, especially there are rare opportunities and platforms to expresses different opinions, such opportunities and platforms are almost inexistent. 2) There are rare or zero opportunities to directly participate in the elections of Party Assembly Representatives, Party Committee members, permanent members or secretaries at various levels, and the opportunity for independent candidate is simply inexistent.3) Although Article Sixteen provides : “it is forbidden for any leader to conduct personal arbitrary judgment and override the party organization,” due to reasons such as imperfection of the supervisory system, the situation in which secretary of local party committees makes arbitrary judgments and suppresses lower officials and party members is still quite common.

The ruling party should push for the solution of the above problems through revision and improvement of the Party Constitution and similar party regulations. By solving first issues of enriching and protecting rights for party members, the party can accumulate experience to advance enrichment and protection of basic rights for citizens under new historical conditions. With a strong base built with the experience of enrichment and protection of rights for party members, the ruling party will be more agile in managing the difficult problems of enriching basic right for citizens and implementing protection for such rights. These difficult problems include freedom of speech and press, freedom of association, and freedom of movement, freedom to strike which are rights the Constitution should have but not yet recognized, as well as other basic rights that the public feels the necessity to be recognized by the Constitution.

4) Use the revision and application of the Party Constitution as starting point to gradually reform the judicial system, maintain judicial independence, and elevate judicial authority in order to let justice produce social economic and even political functions present in a normal region or country ruled by law. Judicature in our country lacks severely in authority, this situation leaves numerous potential dangers for the normal development and stability of the society, while also harming the authority and leading status of the ruling party. Reasons for the failure of the establishment of judicial authority in our country are: judicial organs and its officials do not have neutral appearances, regarding sensitive issues the public general sees the judgment of the court as judgment of the organization of the ruling party of the same or superior level; harmonious resolutions of social conflicts cannot be obtained if the court cannot be a neural and liable arbiter in various social disputes. If our country wants to create a neutral, fair and liable judicature, then the judgment of the court should not absolutely be something that can be influenced or even determined in advance or retrospectively by relevant organization and leaders of the ruling party.

Constitution and laws of any country rule by law allow the ruling party to directly control legislative and administrative organs, but none of them allow the ruling party to directly control the court and its juridical activities. This arrangement is reasonable. Applying the language of social class analysis, it can be said that such arrangement matches the fundamental interest of the ruling class, it is a necessity of the ruling class to maintain long-term stability of the society and country. Same reason, in the judicial domain, the ruling party should realize its leadership by revising the Constitution, establishing laws and advancing the implementation of the Constitution and laws. The ruling party should not realize its leadership by letting local party organizations and its officials to take over the court; otherwise it will be very probable that undesired consequence arise.

In order to solve this problem from its root, the ruling party perhaps needs to revise the Party Constitution after a general consensus within the party is gathered, and then modify the relevant provisions that explain the national Constitution. Before accomplish this, it is possible to reduce the influence and intervention on judicature by local party organizations and their leadesr, by prohibiting for example party organization and its leaders from giving orders on cases and being involved in the judgment of cases.

5) Establish gradually effective constitutional supervisory system by starting with judicial review based on the Party Constitution (party-constitutionality review---translator). There are greater difficulties to establish effective constitutional supervisory system according to the provisions of the Constitution and realize judicial review on the constitutionality of laws and normative documents, because it involves establishment and improvement of procedural laws and specific institutions. Implementations in this regard can come some steps after. A feasible way is to start with the review of behaviors of party organizations and leaders in accordance with the Party Constitution, realizing indirectly constitutional review on them. According to the provision of the Party Constitution “the Party has to act within the scope of the Constitution and laws,” party members have to “follow state laws and regulations as examples,” it is totally possible to achieve this point. After this system is established, at least policies, resolutions or orders by leaders of party organizations of various departments and regions (including the Central Department of Propaganda and Central Department of Organization) can be presented to or receive review by superior Committee of Party Discipline in accordance with Party Constitution, following certain procedures. Such reviews may not have the name of constitutional reviews, but they conduct the substantial work of constitutional reviews. Perhaps a considerable number of people have the concern that the establishment and improvement of procedural laws, and establishment of specific institutions may weaken Party’s leadership, but the indirect constitutional review exercised by Committee of Party Discipline mentioned in this article will only enhance and improve Party’s leadership, such problems will not exists.

By using transitorily reviews on behaviors of local party organizations and its leaders in accordance with the Party Constitution by high level Committee of Party Discipline, the following three institutional effects can be obtained: 1) rectify concretely policies, resolutions, decisions and orders in violation of the Constitution and laws and ease the pressure created by calls for establishment of effective constitutional supervisory system at national level. 2) Accumulate experience in constitutional and judicial reviews 3) It is possible to use the experience of Party-Constitutionality reviews as base and form a judicial review system on administrative regulations and normative documents when the time is proper. Step one stair up when the conditions are established: transform the Party-Constitutionality reviews system into a feasible national constitutional supervisory system. Many years and hard works of constitutional scholars are necessary in order to accomplish this mission.

I invite courteously readers to criticize and advise regarding the above tentative plan.

Endnotes:
--------------------------------------------------
[i] Jiang Ping, "Political Reform should first begin with the Constitution.” May 12 2011 at the Establishing Ceremony of “Cai Dingjian Constitutional Education Fund”

[ii] Report of the Third Plenary Meeting of the Eleventh Session of the Chinese Communist Party

[iii]Constitution of the Communist Party of China passed in1982 at the Twelfth Assembly of the CCP

[iv] Report of the Third Plenary Meeting of the Eleventh Session of the Chinese Communist Party

[v] “Resolution on Some Historical Issues of the Party since the Founding of the People's Republic”

[vi]Constitution of the Communist Party of China passed in1982 at the Twelfth Assembly of the CCP

[vii] “Reform of the Leadership System of the State and Party”

[viii] “Reform of the Leadership System of the State and Party”

[ix] “Resolution on Some Historical Issues of the Party since the Founding of the People's Republic”

[x] Report of the Third Plenary Meeting of the Eleventh Session of the Chinese Communist Party

[xi] Report of the Thirteenth Assembly of the Chinese Communist Party

[xii] Constitution of the Communist Party of China passed in1992 at the Fourteenth Assembly of the CCP

[xiii] Report of the Fifteenth Assembly of the Chinese Communist Party

[xiv] Report of the Sixteenth Assembly of the Chinese Communist Party

[xv] Report of the Sixteenth Assembly of the Chinese Communist Party

[xvi] Report of the Seventeenth Assembly of the Chinese Communist Party

[xvii] Report on the Revision of the Constitution of the People’s Republic of China, delivered by Peng Zhen at the Fifth Meeting of Fifth Session of NPC in Movemebr 26 1982

[xviii] Secretary General Hu Jintao ‘s Speech at the Celebration of the Twentieth Anniversary of the Promulgation of the Constitution in Beijing http://news.xinhuanet.com/newscenter/2002-12/04/content_649124.htm

[xix] The current Constitution of the Communist Party of China

From the AAUP: Tenure, Financial Exigency, and Shared Governance in an Era of "Made to Market" Education

2012-04-12T09:21:00.002-04:00

The American Association of University Professors (AAUP) has just released two reports. AAUP, Layoffs at Two Louisiana Universities Violated Academic Standards: Faculty Fired, Then Offered Lower-Paying Jobs Teaching the Same Classes,, April 12, 2012.

(Pix (c) Larry Catá Backer 2012)

These highlight the way some institutions are moving to re-frame both the governance relationships between faculty, board of trustees and administrators, but also the way in which this re-framing increasingly packages faculty as fungible commodities that, like the programs that faculty are meant to operationalize, may be deployed to suit the moment in the production of profits to the institution.

Particularly telling are two points perhaps under-emphasized in the report. The first is the way that the actions described highlight a substantial and substantially disturbing shift in power between the board of trustees and administrators. The second is the way in which tenure is seen increasingly as a threat to flexibility in providing "made to market" education services. That, in turn, highlights a turn to short term and passive management cultures within academic establishments in which popular tastes drive the delivery of educational services. This, of course, aligns academic business with that of the for profit sector and produces even greater pressure on tenure as no longer in keeping with a business model those that rewards short term responses to markets driven by stakeholders over longer term considerations that might preserve universities as autonomous centers of knowledge production and dissemination. Universities, it seems, have moved from the embrace of the active principle to that of an increasingly reactive one, where discretion is shifted to stakeholders and administrators can export responsibility for decisions to others. Variations of that old passive aggressive children's excuse, "My mother made me do it", might well be the motto of this industry in the coming years.

AAUP, Layoffs at Two Louisiana Universities Violated Academic Standards: Faculty Fired, Then Offered Lower-Paying Jobs Teaching the Same Classes, April 12, 2012.

Administrators at two Louisiana universities used program discontinuances as an excuse to get rid of selected tenured faculty members, a new AAUP investigating report finds (pdf). The investigation focused on Northwestern State University and Southeastern Louisiana University, both part of the University of Louisiana System, and was conducted by a committee of AAUP members with no previous involvement in the situation.

At both institutions, administrators discontinued or consolidated academic programs and arbitrarily selected certain tenured professors in the programs for termination of appointment. Especially egregious was that some faculty were dismissed from tenured positions and then offered short-term contracts teaching many of the same courses at drastically reduced salaries.

At Northwestern State, programs were discontinued in such fields as economics, journalism, political science, sociology, German, chemistry, and physics. At least sixteen tenured faculty appointments were terminated in disregard of AAUP-supported standards. The investigation revealed that the NSU administration created a special appeals procedure for terminations that denied faculty members the right to a faculty hearing, terminated tenured positions before untenured ones, and did not attempt to find suitable alternative positions for those affected. The committee found that the administration “failed to consult the faculty in decisions that a financial crisis existed or was imminent” and “fell severely short of the expectations . . . of the UL System’s policy for academic program discontinuance.”

At Southeastern, the only tenured faculty appointments terminated were those of the university’s three professors of French. This happened in a state and in a local parish where French ranks with English as one of two official languages. The professors have outstanding academic records, and the investigating committee found no legitimate basis for terminating their services. The president refused to give them any reason for his action, and he has resisted all pressure to reconsider his position.

Under AAUP-recommended standards, tenured faculty appointments may be terminated only because of financial exigency, a condition affecting an institution as a whole; for program discontinuance based on educational considerations, as determined primarily by the faculty; or for demonstrated cause.

The AAUP report concluded that, lacking chief administrative officers who respect tenure and due process, academic freedom at both Southeastern Louisiana and Northwestern State is and “will in all likelihood remain insecure.”

The University of Louisiana System, consisting of the state’s public four-year institutions that are part neither of the flagship Louisiana State University nor of the historically black Southern University System, is the state’s largest, with eight component institutions during the events investigated and a total student enrollment in excess of eighty thousand.

This is the third major report in five years published by the AAUP as a result of investigations in Louisiana. The first of these, Hurricane Katrina and New Orleans Universities, was a 2007 report on the investigation of apparent violations of principles of academic freedom and tenure at five of the city’s universities. The second major report, published in 2011, dealt with two distinctly different academic freedom cases at Louisiana State University, Baton Rouge.

Read the full report on the University of Louisiana System (.pdf).

If you have comments, please contact Jordan Kurland or Jenn Nichols.

The American Association of University Professors is a nonprofit charitable and educational organization that promotes academic freedom by supporting tenure, academic due process, and standards of quality in higher education. The AAUP has approximately 47,000 members at colleges and universities throughout the United States.

Part XXVI—Zhiwei Tong (童之伟) Series: In accordance with the Constitution, court cases must be public

2012-04-11T22:38:00.002-04:00

(Zhiwei Tong, PIX (c) Larry Catá Backer)

For 2012, this site introduces the thought of Zhiwei Tong (童之伟), one of the most innovative scholars of constitutional law in China. Professor Tong has been developing his thought in part in a essay site that was started in 2010. See, Larry Catá Backer, Introducing a New Essay Site on Chinese Law by Zhiwei Tong, Law at the End of the Day, Oct. 16, 2010. Professor Tong is on the faculty of law at East China University of Political Science and Law. He is the Chairman of the Constitution Branch of the Shanghai Law Society and the Vice Chairman of the Constitution Branch of the China Law Society.

The Zhiwei Tong (童之伟) Series focuses on translating some of Professor Tong's work on issues of criminal law and justice in China, matters that touch on core constitutional issues. Each of the posting will include an English translation from the original Chinese, the Chinese original and a link to the original essay site. Many of the essays will include annotations that may also be of interest. I hope those of you who are interested in Chinese legal issues will find these materials, hard to get in English, of use. I am grateful to my research assistants, YiYang Cao and Zhichao Yi for their able work in translating these essays.

TABLE OF CONTENTS FOR THE SERIES AVAILABLE HERE.

(Bill Shields, Quincy Court Becomes Reality TV As Proceedings Streamed Live, CBS Boston, May 10, 2011)

Part XXVI—Zhiwei Tong (童之伟) Series: In accordance with the Constitution, court cases must be public

http://libertyzw.fyfz.cn/art/1046475.htm

March 4, 2012

From the point of view of the implementation of the Constitution, for effective protection of citizens’ fundamental rights and the formation of judicial credibility, China’s criminal justice system should solve the two interrelated problems. To solve these two problems require the appropriate conditions. If we are to effectively protect the fundamental rights of citizens and the formation of credibility can be divided into two internal and external aspects. You can say that Article 126 of the Constitution providing for the independence of the judiciary and the independent exercise are the internal conditions, while the external conditions are mainly from Article 125 of the Constitution that provides for a public trial and the right to counsel. Focusing on the draft amendments for the Criminal Procedure Code being considered by the National People’s Congress and to provide a reference to the delegates, this article only focuses on the external conditions of the Constitution on trial disclosure provisions in the implementation of the amendment of the Criminal Procedure Code.

(From Chinese court upholds death penalty for police killer, China View Oct. 20, 2008)

1. With regards to the principle of public trials, the draft seriously violates constitutional provisions

a. This specifically involves the first provision of Article 11 of the current Criminal Procedure Code, the provision in the late December 2011 draft amendment by the National People’s Congress of the Criminal Procedure Code is issued to maintain the current Criminal Procedure Code as is. In the thirty-years between the 1979 Criminal Procedure Code to the current draft amendment of the Criminal Procedure Code, aside from the moving the order from eighth to eleventh, the contents of the article has not been changed. The text reads: “Cases before the People’s Court, unless specified in other provisions, must all be made public.”

b. In this regard, as part of the draft Article 11 of the Criminal Procedure Code, it is directly tied to Article 125 of the Constitution: “Hearings before the People’s Court, except special circumstances as specified by law, must all be made public.” The provision for public hearing is established as one of the basic principles of the Criminal Procedure Code by the Constitution.

c. Before we can discuss the constitutionality of the provisions of the Criminal Procedure Code requiring public hearings, we should be aware of the following circumstances: the Criminal Procedure Code was adopted in July 1979. Therefore, the existing Criminal Procedure Code and the draft amendment of Article 11 were both created before the 1982 Constitution, and as a result there should be discrepancy in the content of the corresponding provisions. Note to the reader: Article 125 of the 1982 Constitution (and the current Constitution), involving the court hearing cases, “except for special circumstances as specified by law,” must be heard publically; the text of Article 11 of the existing Criminal Procedure Code and its latest draft, retains the content of Article 8 of the 1979 Criminal Procedure Code without changing a word and says that the court adjudicating cases, “unless specified in other provisions,” must be made public. We can easily see from the above facts, the following:

i. The content of Article 11 of the current Criminal Procedure Code and its draft amendment regarding public hearings were formed before the birth of the 1982 Constitution. Therefore, the former provision is not in accordance with the corresponding provisions that the latter created. There has been a mismatch in the merging of the provisions regarding public hearings in the current and draft amendments of the Criminal Procedure Code with the Constitution.

ii. The text and meaning of “except for special circumstances as specified by law” within the Constitution and “unless specified in other provisions” within the current and draft amendments of the Criminal Procedure Code are significantly different. “Except for special circumstances as specified by law” only excludes “special circumstances,” with “special” being in the context of “exceptional” and “situation” referring to specific phenomenon. Therefore, according to this provision of the Constitution, the public hearing of court cases is a general principle that must be followed and to rule a case as being excluded from public hearing is an exception and should be limited to “special circumstances” and should be few in number. Just taking the meaning between the text of the Criminal Procedure Code and the Constitution shows significant differences. The range of the former is far greater than what “special circumstances” can refer to. As a result, at the level of basic principles, the Criminal Procedure Code tampers with the Constitution, greatly narrowing the scope with which the Constitution allows for public trials and greatly broadening the scope by which trials are not heard publicly.

iii. From a logical point of view, there are objective criteria for the range of the ability of “except for special circumstances as specified by law” to limit public trials, because the “specific circumstances” are objective it itself; while the formulation of “unless specified in other provisions” removes the objective criteria in the relevant provisions of the Constitution, and thus the range of cases before the court that can be heard by the public is completely based on the subjective views and decisions of lawmakers.

d. Perhaps it is because of this departure of the current and draft amendments of the Criminal Procedure Code from the Constitution that leads to the former being almost led to the point where trial level cases are excluded from the scope of public hearings. The key to correctly understanding and implementing provisions for the constitutional public hearings within the Criminal Procedure Law is to accurately recognize the purpose of the requirements within the Constitution. Historically, the fundamental purpose of public hearings or trials within the Constitution is to ensure that criminal prosecutions under the supervision of a court or judge be accepted by the community. The intent of these provisions within our Constitution is the same. In this regard, the author has never witnessed any Chinese or foreign law expert who has raised any objections or suspicions. Some people may say that Article 125 of the Constitution is not included in the “citizen’s basic rights and obligations” and thus is not fundamental rights. This view is incorrect, because the constitutional guarantee of civil rights are fundamental rights and is not dependent on where the relevant provisions are written in the Constitution. For example, China’s Constitution pertaining to provisions for “citizens’ lawful private property is inviolable. The country, in accordance with the law, protects citizens’ private property and inheritance rights” is not included in the “citizen’s basic rights and obligations” section of the Constitution. However, there is no doubt that these rights are universally recognized fundamental rights.

e. Based on the above, in my opinion, the text of the current and the latest draft amendments of Article 11 of the Criminal Procedure Code that reads “unless specified in other provisions, must all be made public” are unconstitutional. This must be amended and must abide by the text of Article 125 of the Constitution on court cases, “except special circumstances as specified by law, must all be made public.”

(From Visitor's Guide to Oral Arguments Courts.IN.gov. )

2. The draft amendment for the terms of public hearing of cases being tried for the first time is unconstitutional

a. Now we will discuss Article 152 of the current Criminal Procedure Code and the second December 2011 draft’s attempt to amend provisions of Article 184.

b. Regarding the constitutional provisions for public trial, it is specifically implemented by Article 152 of the current Criminal Procedure Code. The current Article 152 is composed of two sections, of which one section states: “People’s Court hearings of first time cases should be conducted in public. Cases involving state secrets or personal privacy shall not be heard in public. Juvenile delinquency cases involving suspects that are 14 years old but under the age of 16 shall not be heard in public. Juvenile delinquency cases involving suspects older than 16 years of age but under the age of 18 generally shall not be heard in public.” The second section states: “For cases heard in closed session, the reason should be articulated by the court.”

c. The draft changes to Article 152 of the current Criminal Procedure Code being considered by the National People’s Congress Standing Committee in late December 2011 is to adjust the article number to 184, retain the first section, while deleting the second section. If we are to consider the combined effect of the implementation of the Criminal Procedure Code since 1996, whether it is the current or draft of the Criminal Procedure Code implementation the constitutional provisions for public hearings obviously has issues that deviates from the Constitution. In fact, the constitutional requirements for public hearings since 1996, within the Criminal Procedure Code has been first and principally to implement Article 152.

d. The fundamental purpose of the Constitution provision for public hearings is to protect the right of those being criminally prosecuted to a prompt trial before a judge under the supervision of the society. We can easily see that the contents of the first clause of Article 152 of the current Criminal Procedure Code and the proposed draft of Article 184 seriously depart from the relevant provisions of Article 125 of the Constitution. Below, we will perform a preliminary analysis of the four sentences that constitute paragraph 1 of the Article 152 of the current Criminal Procedure Code:

i. The first sentence reads: “Cases being heard for the first time before the People’s Court should be open to the public.” The meaning of this provision logically implies that outside of cases being heard for the first time, any case can be conducted in closed session. This provision actually does the prerequisite groundwork of excluding the re-hearing of a case, death penalty review procedures and trial supervision procedures from the scope of public hearings. In contrast, the relevant principles of provisions of the Constitution provide that “except for special circumstances as specified by law,” all cases being heard “must be made public.” We can see by comparing the two, be it through semantics, logic or common sense that the relevant provisions of the Constitution absolutely does not consider the re-hearing of a case, death penalty review procedures and trial supervision procedures as “special circumstances and does not imply that these cases are excluded from public hearings. However, the draft amendments of the Criminal Procedure Code arranges for provisions that are in direct contradiction to the provisions of the Constitution.

ii. The second sentence reads: “But cases involving state secrets or personal privacy should not be heard in public.” This phrase places reservations upon the previous provision and is too general, allowing the court to use state secrets or personal privacy grounds to generally reject the broad public attention for public hearings towards cases involving public power. Moreover, whether cases involving personal privacy should be conducted publicly should first and foremost respect the wishes of the defendant and the accuser. The “state secrets” excuse used by courts to refuse for public adjudication of cases not only deprives the constitutional rights of suspects or accused to a public trial, but also possibly conceals existing suspicions of illegal handling by public authorities, so that the activities of public authorities and individuals with power escape the supervision of the society.

“Personal privacy” involves either the rights of the accused or the rights of the victims. These rights should be handled on their own during the judicial process. Therefore, whether it is the national legislature or the judicial authorities, legal principles cannot dispose of the rights that belong to them and must ascertain their willingness to decide whether to not hold public hearings. As a result, this kind of situation may occur: both the defendant and the victim decide that a public hearing is consistent with their litigation interests and request to the judge and the court that their case be heard publicly. In this case, do the legislature and the judicial authorities have any reason to require or decide that the case not be heard publicly? Even in situations where one side requests for a public hearing and the other side opposes, the legislature and the judicial authorities must measure the interest and the pros and cons before making their decision. For example, in sexual assault cases, the defendant may be sentenced to death, and as a result, the defendant decides that a public hearing of the case is the only way he or she could get a fair trial. Due to privacy concerns, the victim opposes an open trial. So, should this case be heard publicly or not? I think that jurisprudence in such cases require a public hearing, as the right to life possesses greater importance than the right to privacy. When the two are in conflict, the latter should give way. Perhaps this is why in so many countries sexual assault cases are tried publicly.

Perhaps some people also believe that cases involving sex, such as sexual assault, organized prostitution, among others, the disclosure of facts in public hearings would be indecent. Such concern is unnecessary and even backwards and hypocritical, because there is no need to mimic the feudal China era by hypocritically creating a mysterious aura about sex. In this regard, young people need norms and rules rather than ignorance. Public hearings would help educate them about the norms and rules.

iii. Whether juvenile delinquency cases should be heard publicly should primarily respect the views of the defendants and their guardians. The third and fourth phrase of the provision provides: “Juvenile delinquency cases involving suspects that are 14 years old but under the age of 16 shall not be heard in public. Juvenile delinquency cases involving suspects older than 16 years of age but under the age of 18 generally shall not be heard in public.” Why are there such requirements? Is it to protect the privacy of these minor suspects or defendants? If the answer is yes, so if right to privacy and to a fair trial belongs to these minors, and they and their guardians have the ability to waive these rights, then why does the legislature give the courts the power to waive these rights? If these minors and their representation believe that only a public hearing would guarantee them a fair trial, then they deserve the right to waive their right to privacy and to accept a public trial.

Regarding the question of public hearings of juvenile delinquency cases, some people in China believe that it is justified that these type of cases not be heard in public. I think that this is largely a myth or a blind superstition. Such conceptions need to be reflected upon and the relevant institutional arrangements must re-measure the stakes involved. According to my limited understanding, in many of the countries that are governed by the rule of law, juvenile delinquency cases allows for public hearings. Here I will talk about a personal experience with this kind of situation. I remember during the winter of 1998, when I was a visiting scholar at the University of Memphis with Professors Tan and Liu of Zhongnan University of Economics and Law, it was arranged that we attended a public hearing of a local burglary case. The defendant was a minor of about 15 years of age. At the time, there were many primary and secondary students in attendance. The trial atmosphere was very calm and the result was good. Afterwards, the Law Professor that had brought us to the hearing immediately organized a discussion. The most intuitive feeling that we had was that this kind of public hearing was a good legal education class for the young people who had attended. Whether from the perspective of theory or practice, the Criminal Procedure Code does not provide sufficient rationale for the almost entire denial of public trials in cases involving minors.

The key to how the amendment of the Criminal Procedure Code should deal with these issues is to recognize the fact that to receive a public trial is a fundamental right of citizen, and that aside from the “special circumstances” mentioned in the Constitution; the Criminal Procedure Code should adhere to the constitutional requirement that all cases be heard publicly. With regards to the scope of public trials, the legislature and the judicial authorities have no right to impose any restrictions that would violate the provisions and spirit of the Constitution.

(From Chinese courts sentence drunk drivers to jail, China.org.cn, May 10, 2011; "Guo Shudong, 37, the first drunk driver to be punished in Beijing since the introduction of tough new driving laws, stands in court as the judge delivers his sentencing in Fangshan district, May 9, 2011. Guo, who rammed into a car while twice the legal alcohol limit, was sentenced to four months in prison and fined 2,000 yuan." [Photo/Xinhua])

3. Draft amendment regarding the constitutional flaws whether re-hearings of cases and other trial procedures should be public

a. Discussed here is the content of Article 187 of the current Criminal Procedure Code and the Article 224 of the second draft amendment of the Criminal Procedure Code of December 2011. Paragraph 1 of Article 224, drafted to replace Article 187 of the current Code, reads: “Cases being heard for the second time with regards to the following types of cases, shall form a collegiate bench to be retried:

i. The defendant, the plaintiff or their legal representation objects to the facts and evidence of the initial judgment, and the People’s Court involved in the second trial believes that may it warrants appeal of the conviction and sentencing.

ii. The defendant sentenced to death, appeals.

iii. The result of the case is protested by the People’s Procuratorate.

iv. Other cases that should be publicly tried.

The People’s Court hearing the case for the second time should interrogate the accused and listen to opinions of the other parties involved, the defending counsel and other legal representation.

Clearly, only public hearings can be said to be public hearings. However, not all public trials are public hearing, and not all public trials are not public hearings. Thus, we can see that there are defects in the draft amendment of the Criminal Procedure Code regarding whether cases that are being retried should be publicly heard:

i. In fact, the above-mentioned draft of Article 224 upholds the principle that cases being re-tried should be publicly tried (and not publicly heard) and instead marks public trials (including public hearings) as exceptions and explicitly enumerates the four kinds of exceptions. By listing the four exceptions that should be publicly tried looks to be an indirect and partial way of confirming the scope of public hearings and seems to be understandable. However, from a logical point of view, this kind of legislative sentence structure enumerates the practice of public trial cases and, in fact, in a general sense denies the premise that cases that are being re-tried should be done so publicly as a precondition. The embodiment of the content of these principles and provisions is contrary to the explicit requirements of the Constitution regarding courts hearing cases (regardless of level), “except for special circumstances as specified by law.”

ii. In the final analysis, we should accept that “public hearings” are a basic human right of the prosecuted. However, perhaps we do not quite understand or perhaps because of other reasons, the developers and the amenders of the Criminal Procedure Code since 1979 have failed to fully respect the most important historically and constitutionally acceptance of “public hearings” as a fundamental right of citizens. To place elements that originally belonged to the scope of the fundamental rights of citizens as a part of state power can result in the arbitrary lack of respect for the historical and constitutional importance of “public hearings.” Under the circumstances of objections being raised by the defendant, the plaintiff and their legal representation, the decisive factor in determining whether a retrial should be public was originally meant to allow the defendant to exercise their rights. However, according to the draft of the Criminal Procedure Code, whether the retrial is to be public is dependent on the courts. Specifically, a public hearing is dependent entirely on how the court “thinks.” In this way, an element in the Constitution that belongs as a part of basic civil rights has been surrendered to the courts and their discretion to exercise power.

4. The public hearing of cases is an effective protection of fundamental human rights and is an urgent requirement for the enhancement of judicial authority

a. The quick acceptance by judges and courts of public trials are an important procedural right of citizens. The protection of this right is inseparable from citizens’ personal freedoms, freedom of speech, protection of private property rights and other fundamental rights. Not having a public hearing is often is an indispensable condition through which miscarriages of justice exist within the field of criminal law. The other side of public hearings permits citizens to sit in attendance and a crucial part in the right of citizens to know about public affairs. The goal of the constitutional provision that require open hearings is to place the hearing of the case by the court and the judge under the supervision of the society to promote the fair administration of justice, and to meet the citizens’ right to information and the rights of the parties. Constitutional provisions for the public hearing of cases are mainly implemented by allowing the right to attend and belong to freedom of speech and press. In this regard, countries and regions governed by the rule of law are no exceptions. It can be said that the ability to attend a public trial is the right of every citizen. This right cannot be arbitrarily dismissed by the court. From this perspective, that the Supreme People’s Court has provided that courts must abide by the law and publicly hear cases so that citizens can attend and provides for a system for visitors to apply for passes is inappropriate. In accordance with the provisions and spirit of the Constitution, citizens (including mostly importantly relatives of the relevant parties and non-government media reporters) do not have the “possibility,” but rather the right of sitting in and listening in on the trial. The court can manage the behavior of those listening in on proceedings, but has no right to impose a review of the visitor passes being issued. Therefore, the relevant provisions of the Supreme People’s Court do not correctly reflect the spirit of the Constitution and disregards and even denies the basic civil rights of suspects.

b. The role of the court is to reveal the facts of the case, apply the law, implement justice and also the place to provide legal education. In recent years in China, the record of the implementation of public hearing of criminal cases and the presence of civil observers listening in on the cases has been extremely poor that it can be said to be quite vile. This creates circumstances where constitutional guarantees for public hearing as a civil right becomes a forum where judicial officials are free to do as they please.

c. With regards to playing around with public hearings, the common practice is to arbitrarily set the eligibility standards for those attending the hearings, do everything possible to disrupt and limit citizens and even relatives of the defendant to attend, arrange a large number of official staff to occupy the gallery, and so on. In recent years, more and more local criminal trials while there is an open façade have been no different from semi-open, closed or even secret trials. What is more, organizations with public power, on the one hand, brazenly embellish the merits of rendering the case, guide public opinion, and engage in the presumption of guilt. On the other hand, they close the trial off from the public and block the truth of the case from being made public.

d. In the internet age, “public hearing” sets a very high value for judicial impartiality. Recent legal practice shows that when court hearings of cases are open and transparent, the court decisions are frequently not too far off the mark according to opinion.

e. In reality, full disclosure in court cases is to help the judiciary build credibility. Taking into account the initiative to amend the Criminal Procedure Code in China today is actually in the grasp of agents of the agencies and departments that handle criminal cases, in order to better convince or persuade them, we may wish to utilize the perspective of judicial credibility to discuss how to earnestly implement the constitutional requirements for public hearings in the draft amendments of the Criminal Procedure Code.

f. With respects to improving judicial authority, some of the practices of the court in recent years have often been severely contradictory: on the one hand, they talk about the formation and maintenance of judicial authority; on the other hand, they tend to turn cases that should be heard publicly into closed or semi-open trials, letting people feel ridiculous about the situation. The general meaning of a public hearing is first to have the trial be open and free to attend; second should freely allow the media to track and file reports on the trial process, issues of debate and key evidence; followed by making public the litigation documents and allow the media to freely comment; and lastly the judge’s documentation should state the judicial grounds so that in the future the different views of the collegiate bench or the CRIC members participating in the judgment can be categorized as to majority opinion, concurring opinions and dissenting opinions. According to legal principle, if there is a major case or a case where there is a high degree of public concern, hearings should be more open to the degree that allows for the creation of conditions for as many citizens as possible to attend and provides for conditions for radio and television to report on the trial.

g. But in China over the long term, especially in recent years, the trend has been reversed. In court cases around the country, there are often strict restrictions on observers and limitations on reporting. The more major or more public concern for the case, the more severe the restrictions.

h. Justice is visible and is unafraid of being seen by the public. Common sense tells people that: if the hearing a case has real justice, then the judicial organs would certainly be willing to make public every detail of the trial process; not daring to make these details public must therefore be an attempt to cover up on-goings that are not exactly kosher and therefore the justice of the results of the judicial proceedings is something that not even the judges themselves can believe. Take the example of the case of Peng Zhimin. For a private entrepreneur who has a net worth of more than 5 billion, why is it that even though he pleaded not guilty, his defense attorney put forward a not guilty case, has he been sentenced to life imprisonment and the deprivation of political rights for life? What is the key issue of debate between the prosecution and the defense here? Why is there such a big difference between their views? Why did the court account for the prosecution’s alleged facts of the crime and not the defense’s evidence and opinions arguing for the accused’s innocence? In another example, the Li Qiang case, with regards to the 1849 items of evidence provided by the prosecution, the defense attorney, Professor Zhao Changqing, concluded that none of the evidence could establish Li Qiang’s ties to the mafia. In contrast, the Chongqing court sentenced Li Qiang to twenty years in prison. Imagine, with Professor Zhao’s authority on criminal law, why was there such a large gap in the defense’s opinion with the perception of the court? The two sides were worlds apart. Why did the court sentence the defendant to twenty years in prison? What exactly happened?

i. All of these issues originally should have been revealed to the public through public hearing of the case, but the reality is not only that the general public can only see the official reports, even legal experts who have paid close attention to the case cannot understand what happened. Under these circumstances, how credible is the judgment of the court?

j. The damage done by closed or semi-public trials to justice is more prominent in trials of cases where defendants are sentenced to death. The proceedings for the trial, retrial and death penalty review are not in the least bit transparent. Those people who pay attention to these cases generally feel that it is wrong to kill the suspects. As a result, taking the small view, the hard work of the judiciary to handle these cases will not only not help them establish their authority, but bring them infamy. From the big picture, these cases do immeasurable damage to legal authority and judicial credibility. We can see that semi-public or closed trials not only damage the authority of the judiciary, but also seriously damage legal authority and functionality. If these cases are able to be public heard, I believe the results and impact would be another matter entirely.

k. Criminal trials that are semi-public or closed are most likely to lose most the societal function. The first loss is the crime prevention function, followed by the loss of the legal education function and even possibly the loss of the justice bearing function.

l. These practices not only deviate from the Constitution, but also from the existing Criminal Procedure Code and results in the loss of trust and confidence in the current political and judicial system. This should be rectified.

5. Conclusion: the new draft amendment should ensure that all cases be heard publicly except under special circumstances.

a. To ensure adherence of the draft amendments to the Criminal Procedure to constitutional requirements, except for special circumstances, that all criminal cases are heard publicly, I propose that the amendment take the following approach:

i. Change the draft amendment of Article 11 of the Criminal Procedure Code with regards to cases before the People’s Court from “unless specified in other provisions, must all be made public” to “except special circumstances as specified by law, must all be made public.”

ii. The terms of the draft amendments of the Criminal Procedure Code with regards whether the first trial of a case should be publicly heard should be modified on three bases:

1. Clearly define the content and scope of “state secrets.” Compress the scope of so-called sensitive cases heard in closed hearings and reduce the suspicion both domestically and abroad of political show trials

2. Whether cases involving personal privacy should be heard publicly should in principle is decided by the defendant, the plaintiff, the victim and other associated parties or one of the parties with the help of their legal representation. In circumstances where there are different opinions, the court will decide.

3. Whether juvenile delinquency cases should be heard publicly should in principle is decided by the guardian of the minor, plaintiff, the victim, and other associated parties.

The specific terms need to be further studied and discussed.

iii. With regards to retrial procedures, death penalty review procedures, trial supervision procedures, special procedures, and mental patients forced treatment program, the Criminal Procedure Code should also require, except for special circumstances, public hearings. In the design process, those in charge should pay particular attention and accept that public hearing is the fundamental rights of the defendant or other parties in the case and deserves full respect.

iv. To protect the basic rights of citizens, the new draft amendment of the Criminal Procedure Code should make provisions in the following areas:

1. When a court hears cases, it should implement the principles of open attendance and free news reporting.

2. Prohibit the court or any public power organization from blocking public awareness of cases for the purpose of manipulating public attendance.

3. The court is obliged to create conditions for citizens to attend court hearings and also have the right to manage the behavior of those attending in accordance with the provisions and spirit of the law; rules should be published in advance and remain relatively stable.

v. Recommend the following addition to the Criminal Procedure Code: “Cases being heard before the court, citizens should be able to freely attend based upon proof of identification; close relatives of parties involved and journalists have priority; observers can take written notes and audio recordings, but video, photography and live broadcasts are subject to the approval of the court on a case by case basis.”

vi. Details of cases that has been publicly disclosed by personnel of government organs or publicly reported by the media must all be heard in public.

__________

法院审理案件必须按宪法规定公开

——刑诉法修改宪法视角研究之六

童之伟

【作者按语：2012年 “两会”已开始举行，刑事诉讼法修正案草案很快就要在全国人大会议上交付审议表决了。值此关键时刻，我再次强烈呼吁“两会”代表和委员关注草案中存在的不合宪法的问题，推动刑诉法的进一步修改。如果现有刑诉法修正案草案背离宪法原则太远，全国人大本次例会不如暂不审议，留待下一届全国人大审议。】

【内容摘要】接受法院公开审判是公民基本权利的组成部分。现有刑诉法修正案草案对审理公开原则的表述严重违反宪法规定。草案关于一审案件是否公开审理的条款不合宪。草案关于法院按二审等程序审理的案件是否公开的规定有宪法瑕疵。案件审理公开是切实保障基本人权、提升司法权威的紧迫要求。刑诉法新修正案应确保除特别情况外案件一律公开审理，为此必须对现有刑诉法修正案草案做进一步调整。

从宪法实施角度看，有效保障公民基本权利和司法[1]形成公信力，是我国刑事司法制度应该解决好的两大相互关联的难题。解决这两个难题必须具备相应的条件。如果我们把有效保障公民基本权利和形成公信力所需的条件区分为内在和外在两个方面，那么可以说，宪法第126条所规定的司法独立，即法院“独立行使审判权”是内在条件，而其外在条件，则主要是宪法第125条关于审理公开和律师辩护的内容。着眼于全国人大对刑诉法修正案草案审理在即，为有针对性提出意见供代表们参考，本文只集中讨论上述外在条件中宪法关于审理公开的规定在刑诉法修正案中的落实问题。

一、草案对审理公开原则的表述严重违反宪法规定

这里具体涉及的是现行刑诉法第11条中的前一项规定（在2011年12月修正案草案二稿中该项规定所在法条的顺序号未变），该项规定在2011年12月下旬全国人大常委会审议的刑诉法修正案草案稿维持了现行刑诉法的原样。这也就是说，从1979年刑诉法公布到今天的刑诉法修正案草案，33年来除其所在条文的顺序号从第8改为第11外，内容一字未修改，也未计划修改。原文是：“人民法院审判案件，除本法另有规定的以外，一律公开进行。”

在这方面，作为刑诉法修正案草案第11条的一部分，其直接根据似乎是宪法第125条中的如下文字：“人民法院审理案件，除法律规定的特别情况外，一律公开进行。”为讨论方便，我们把宪法第125条规定的这部分内容概括为“审理公开”。审理公开是宪法为我国刑事诉讼制度确立的基本原则之一。

在讨论刑诉法有关规定是否符合宪法审理公开的要求之前，我们应该了解以下情况：刑诉法是1979年7月通过的，所以，现有刑诉法和修正案草案中第11条，都是1982年宪法诞生前创制，其相关内容与现行宪法的对应规定有原则性歧异。请读者注意：1982年宪法（即现行宪法）第125条规定，法院审理案件，“除法律规定的特别情况外”，一律公开进行；而现有刑诉法及其最新修正案草案第11条，内容一字不变地保持着1979年刑诉法对应条款（第8条）的原文，即，法院审判案件，“除本法另有规定的以外”，一律公开进行。我们不难从以上事实中看出如下情况：

1.现行刑诉法及其现有修正案草案（第11条）关于审理公开的内容实际上形成于1982年宪法诞生之先，所以，前者的条文并不是依据后者的对应规定创制的。我国刑诉法和现有修正案草案关于审理公开与否的规定与现行宪法第125条的内容对应的规定，一直是没能加以融合的“两张皮”。

2.宪法里“除法律规定的特别情况外”与刑诉法及其修正案草案中“除本法另有规定的以外”，文字明显不同，涵义亦有根本性差异。“除法律规定的特别情况外”只排除“特别情况”。“特别”在上下文中有“例外”的涵义，而“情况”指具体发生的现象，所以，根据宪法的这一规定，公开审理是法院审理案件须遵循的一般原则，能够排除在公开审理之外的案件是例外，只能限于“特别情况”，应该数量极少。就涵义而言，刑诉法的“除本法另有规定的以外”与宪法的“除法律规定的特别情况外”差别明显，前者的范围完全可以远远大于“特别情况”这个词组所能指涉的对象。这样一来，刑诉法就在基本原则层面上篡改了宪法的规定，极大地缩小了按宪法原本应该公开审理的案件的范围，同时相应地扩展了可以不公开审理的案件的范围。

3.从逻辑上看，“除法律规定的特别情况外”限制公开审理的案件的范围有客观标准，因而有比较确定的范围，因为“特别情况”本身是客观的；而“除本法另有规定的以外”的说法，拿掉了宪法有关规定中原本存在的客观标准，从而使法院可以不公开审理的案件的范围完全由立法者根据主观意愿决定。

或许，正是刑诉法及相应修正案草案与宪法的这种背离，使得前者可以在该法原则性章节的后续各章中，近乎以整个审级为单位将案件排除到了公开审理的范围之外。正确理解并在刑诉法创制中落实宪法审理公开的规定，关键是要准确体认宪法做这项规定的目的。历史地看，审理公开或审判公开进入宪法，根本目的都在于保障刑事被追诉人获得在社会大众监督下接受法官或法院审判的权利，我国宪法做这方面的规定，目的同样是这样。对此，作者从来未见中外法学界有谁提出过异议或怀疑。或许有人会说，宪法第125条不是在“公民的基本权利和义务”那一章中，因而不算基本权利。这种说法不对，因为，宪法保障的公民权利就是基本权利，不论有关规定写在宪法的那一部分。例如，我国宪法关于“公民的合法的私有财产不受侵犯。国家依照法律规定保护公民的私有财产权和继承权”的规定,就没有写在宪法中“公民的基本权利和义务”那一章，但这些权利毫无疑问是举世公认的基本权利。

基于以上情况，我认为，现行刑诉法及其最新修正案草案第11条中关于法院审判案件，“除本法另有规定的以外，一律公开进行”的提法违反宪法，这次必须修改，回归到宪法第125条关于法院审理案件，“除法律规定的特别情况外，一律公开进行”的规定上来。

二、草案关于一审案件是否公开审理的条款不合宪

现在再讨论现行刑诉法第152条、亦即2011年12月刑诉法修正草案二稿中第184条的规定。

对我国宪法审理公开的规定，现行刑诉法首先和主要地是通过第152条来具体贯彻的。现行刑诉法第152条由两款构成，其中第一款规定：“人民法院审判第一审案件应当公开进行。但是有关国家秘密或者个人隐私的案件，不公开审理。14岁以上不满16岁未成年人犯罪的案件，一律不公开审理。16岁以上不满18岁未成年人犯罪的案件，一般也不公开审理。”第二款规定：“对于不公开审理的案件，应当当庭宣布不公开审理的理由。”

全国人大常委会2011年12月下旬审议的刑诉法修正案草案对现行刑诉法第152条的改动方式，是将其序号调整为第184条，内容上保留第一款不变，同时删去第二款。如果结合1996年以来的刑事诉讼法的实施情况考虑，不论是现行刑诉法，还是新一稿刑诉法修正案草案，在贯彻宪法的“审理公开”规定方面，也都有明显与宪法的规定相背离或脱节等问题。实际上，宪法“审理公开”规定自1996年以来，在刑诉法中首先和主要地一直是通过该法第152条贯彻的。

基于宪法规定“审理公开”之根本目的在于保障刑事被追诉人获得在社会大众监督下由法官迅速进行审判的权利这一基础性原理，我们很容易看清现行刑诉法第152条第一款即刑诉法修正案草案第二稿第184条（序号多少无关紧要）的内容较大程度上背离了宪法第125条的相关规定。下面让我们对构成现行刑诉法第152条第1款（即修正案草案第184条）的四句话做初步解析：

1.上述四句话中第一句是：“人民法院审判第一审案件应当公开进行”。这项规定在逻辑上暗含第一审案件之外的所有案件可以不公开审理的意思。这一规定事实上为刑诉法随后将法院按第二审程序、死刑复核程序和审判监督程序等程序审理的案件原则上排除到公开审理的范围之外做了前提性铺垫。反观宪法，其规定的相关原则是，“除法律规定的特别情况外”,所有案件的审理“一律公开进行”。两相对比可见，不论从语义上、逻辑上还是常识上看，宪法相关规定绝对没有将法院按第二审程序、死刑复核程序和审判监督程序等程序审理的案件一般性地归结为“特别情况”、从而对这些案件可以不进行公开审理的含义。但是，刑诉法修正案草案起草者却实实在在地违背宪法的规定做了条文安排。

2. 上述四句话中第二句的原文是：“但是有关国家秘密或者个人隐私的案件，不公开审理。”这句话是对前一项规定做的保留，失之于太笼统，使得法院能以涉及国家秘密或者个人隐私为由，拒绝对公众广泛关注的几乎所有涉及公权力运用的案件进行公开审理。再说，涉及“个人隐私”的案件是否应公开审理，首先应该尊重被告和受害人的意愿。法院借口“有关国家秘密”拒不公开审理案件，不仅剥夺了众多犯罪嫌疑人或被告人获得公开审判的宪法权利，还遮盖了公权力机构可能存在的违法办案嫌疑，使公权力机构和权力人士的活动逃避了社会大众的监督。

“个人隐私”涉及的要么是被告的权利，要么是受害人权利，这些权利在司法过程中应该由他们自己处理，因此，国家立法机关也好，司法机关也好，按法理无权处分属于他们的权利，更不可以不考虑他们的意愿断然规定“不公开审理”。法律生活中很可能出现这种情况：被告和受害人两方面都认为公开审理符合自己的诉讼利益，同时他们也都对法官和法院提出公开审理的要求。试想，在这种情况下，立法机关、司法机关有什么理由规定或决定对有关的案件不公开审理呢？即使面对被告与被害人中一方要求公开审理，另一方反对的情况，立法机关或司法机关也应该做利益衡量或得失评估才好作相应的具体决断。例如，性侵犯方面的案件，如果被告可能被判死刑，且被告认为只有公开审理，自己才能得到公正的审判，而被害人却因隐私权保护的考虑而反对公开审理。那么，这个案子应该还是不应该公开审理呢？我以为，按法理这类案件应该公开审理，因为生命权大于隐私权，两相冲突，后者应该退让。或许，这就是为什么很多国家性侵害方面的案件也公开审理的原因之一。

或许，有些人还认为，涉及“性”的案件，如性侵、组织卖淫等案件，公开审理披露的案情会有伤风化。这种担心是多余的，甚至是落后和虚伪的，因为，没有必要像中国封建时代那样将“性”虚伪地加以神秘化。在这方面，青少年需要的是规范、规则，而不是无知、蒙昧，而公开审理有助于对他们进行规范、规则教育。

3.未成年人犯罪案件是否公开审理，主要应尊重被告及其监护人的意见。上述四句话中第三句和第四句话规定的内容在性质上差不多，其原文是：“14岁以上不满16岁未成年人犯罪的案件，一律不公开审理。16岁以上不满18岁未成年人犯罪的案件，一般也不公开审理。”为什么这样规定？是要保护这些未成年犯罪嫌疑人或被告的隐私权吗？如果答案是肯定的，那么。所要保护的隐私权是属于这些未成年人的，获得公开审判的权利也是这些未成年人的，他们和他们的监护人有权处置这些权利，立法机关有什么理由把这些权利的处置权交给法院？如果这些未成年被告及其代理人等认为只有案件公开审理，自己才能获得公正审判，那么，他们理所当然有权选择放弃隐私权，接受公开审判。

关于未成年人犯罪是否公开审理的问题，我国似乎有人认为这类犯罪案件不公开审理是天经地义的，我觉得这在很大程度上是神话或盲目的迷信。此类诉讼观念需要反思，有关制度安排需要重新做利害方面的衡量。按我有限的了解，不少法治国家的青少年犯罪案件，是允许公开审理的。这里谈点个人亲历情况。记得1998年冬天，我和当年中南政法学院的覃教授和刘教授在美国孟菲斯大学访学，曾由主人安排旁听了一场当地法官对一入室盗窃案的公开审理，被告是一个15岁左右的少年，当时还有不少中小学生也去旁听。庭审气氛很平和，效果很好。旁听后领我们去的法律诊所教授马上组织了讨论，我们最直观的感觉是，这次公开审理对旁听的青少年是一堂很好的法制教育课。不论从理论还是实践角度看，刑诉法都没有充分理由近乎一概地否定对未成年人犯罪案件的公开审理。

刑诉法修改时处理这些问题的关键，在于深入体认接受公开审判是公民的一项基本权利的道理，而且除宪法所说的“特别情况”外，刑诉法是应该不折不扣地遵循所有案件一律公开审理的宪法要求的。对公开审理的案件的范围，立法机关无权违背宪法的规定和精神任意施加限制，司法机关更不能。

三、草案关于法院按二审等程序审理的案件是否公开的规定有宪法瑕疵

这里讨论的是现行刑诉法第187的内容，亦即2011年12月刑诉法修正草案二稿中第224条的规定。草案二稿拟定的用以取代现行刑诉法第187条相关内容的第224条第1款的全文是：“第二审人民法院对于下列案件，应当组成合议庭，开庭审理：（1）被告人、自诉人及其法定代理人对第一审判决认定的事实、证据提出异议，第二审人民法院认为可能影响定罪量刑的上诉案件；（2）被告人被判处死刑的上诉案件；（3）人民检察院抗诉的案件；（4）其他应当开庭审理的案件。第二审人民法院决定不开庭审理的，应当讯问被告人，听取其他当事人、辩护人、诉讼代理人的意见。”

显然，开庭审理才谈得上公开审理，但开庭审理还不一定都是公开审理，而不开庭审理就一定不是公开审理。由此可见，刑诉法修正案草案关于二审案件是否开庭审理的规定也有不少宪法瑕疵：

1.草案（第224条）的上述规定，实际上是把二审案件不开庭审理（即不公开审理）作为原则，把开庭审理（含公开审理）作为例外，并且明确列举了例外的4种情况。列举4种应该开庭审理的例外情况，看起来是在间接地、部分地确认应进行公开审理的案件的范围，似乎无可厚非。但是，从逻辑上看，这种立法句式列举应开庭审理的案件的做法，其实是以在一般意义上否定二审案件应开庭审理（含公开审理，下同）为前提的，其所体现的原则和规定的内容，与宪法关于法院审理的所有案件、无分审级，“除法律规定的特别情况外，一律公开进行”的明确要求是相违背的。

2.接受“公开审理”归根结底是被追诉人的基本权利，但是，或许是由于不太明白，或许是由于其他原因，1979年以来的刑诉法制定和修改者对接受“公开审理”是公民基本权利的一部分这一最重要历史属性和宪法属性显得没有足够尊重。把原本属于公民基本权利范畴的要素当作国家权力可以任意支配的无主资源来处置，就是他们不太尊重“公开审理”的历史属性和宪法属性的重要表现。请看在这种背景下草案是如何在立法上“替民作主”的：按前引草案二稿第224条之规定，“被告人、自诉人及其法定代理人对第一审判决认定的事实、证据提出异议，第二审人民法院认为可能影响定罪量刑的上诉案件”，可以开庭审理；“其他应当开庭审理的案件”，也可以开庭审理。可见，在这些情况下，影响二审案件能否开庭审理的决定性因素，原本应该是被告人如何行使权利，但按刑诉法草案的规定，能否公开审理完全取决于法院如何行使权力。具体地说，这些二审案件是否公开审理完全取决于法院怎样“认为”，取决于在法院看来是“应当”还是不“应当”。就这样，在宪法上属于公民基本权利范畴的要素，通过刑诉立法变成了法院可以行使自由裁量的权力随意处置的对象。这就明显违背了宪法的相关规定和精神。

3同样由于不尊重被追诉人接受“公开审理”的权利的历史属性和宪法属性，前引草案第224条还在“尊重”被告人，其他当事人、辩护人和诉讼代理人意见的堂皇外观下，将原本应该由被告人及其代理人等做决定的权利，变成了法院做决定的权力。请再看前引草案第224条第1款的最后一项： “第二审人民法院决定不开庭审理的，应当讯问被告人，听取其他当事人、辩护人、诉讼代理人的意见。”在这里，接受公开审判原本是属于公民基本权利范畴的权利，但修正案草案只是允许权利主体表达“意见”，而把实实在在的决定权（即被告人、其他当事人等的权利的处分权）给了法院。在这里，修正案草案再次专断地攫取了原本属于被告人、其他当事人等的权利。

到此为止，本文这部分和前几个部分已经阐明的原理，完全可以很容易地拿来衡量刑诉法修正案草案关于法院按死刑复核程序、审判监督程序、特别程序、精神病人强制医疗程序审理的案件是否应该公开审理的各项规定的合宪性。因时间关系，本文对修正案草案的有关规定不再做详细评述。但这里还是有必要再次强调：所有案件都公开审理是我国宪法明定的原则，只有具体的“特别情况”可以例外；全国人大修改刑诉法对“例外”必须严格掌握，必须纠正从前的偏差。

四、案件审理公开是切实保障基本人权、提升司法权威的紧迫要求

迅速接受法官或法院公开审判是公民的重要程序性权利，这项权利的保障与公民人身自由、言论出版自由、私人财产权等基本权利的保障密不可分。在刑法领域冤假错案的生成和维持条件里，不公开审理往往是其中不可缺少的一项。案件审理公开的另一面是公民是旁听权，它是公民对公共事务知情权的一部分。宪法规定法院审理案件公开，目的是要把法院、法官对案件的审理置于社会大众的监督之下、促进公正司法，同时满足公民的知情权和当事人的相关权利。案件公开审理的宪法规定，主要是通过旁听自由和属于言论出版自由范畴的报道自由来落实的，在这方面，法治国家和地区概莫能外。可以说，旁听公开审判是每个公民都享有的权利，这些权利不能由法院任意处置。从这个角度看，最高人民法院规定法院“依法公开审理案件，公民可以旁听”，同时还规定了申办“旁听证”的审查许可制，很不合适。[2]按照宪法的规定和精神，公民（其中首先是当事人亲属和非官方传媒的记者有权）不是“可以”旁听，而是“有权旁听”，因而旁听应该是充分自由的。法院可以对旁听行为进行管理，但无权实行事实上的审查许可制。所以，最高人民法院的有关规定没能正确体现宪法精神，有漠视乃至否定公民基本权利的嫌疑。

法庭是揭示案件真相、适用法律、落实正义的地方，也是进行法律教育的地方。任何对自身的司法制度有信心、不借助庭审达到不正当目的的国家和地区，无不欢迎公民甚至外国人自由旁听庭审。但是，在刑事案件的公开审理和公民旁听方面，近几年我国法院留下的纪录是极其糟糕的，甚至可以说是恶劣的。其糟糕、恶劣的集中表现，是公开审理从宪法保障的民权变成了官方随意玩弄的司法权术。

在玩弄审理公开方面，常见的做法是任意设定旁听资格、千方百计阻扰限制公民乃至被告亲属旁听、安排大批官方指定人员占据旁听席，等等。近年来，愈来愈多地方刑事案件的审判，名为公开，但事实上无异于半公开审判、不公开审判或秘密审判。更有甚者，公权力组织往往一方面肆无忌惮地加油添醋渲染案件的案情、引导舆论，搞有罪推定和未审先定，另一方面又进行不公开审判，对外封锁案件真相。[3]

在网络时代，“公开审理”对于司法公正的价值也非常高。近年来的法律生活实践表明，法院对案件的审理只要是充分公开透明的，法院的判决往往不会太离谱，否则可能会很离谱，至少在公众看来是如此。

法院审理案件充分公开，其实是司法机关打造其公信力的重要方式。考虑到刑诉法修改的主导权在今日之中国实际上掌握在办理刑事案件的机关和部门的代理人群手中这一客观现实，为取得比较好的说服或规劝效果，下面我们不妨主要从司法公信力的视角，来讨论在刑诉法修正案草案中切实贯彻宪法公开审理的规定的必要。

在提升司法权威方面，法院最近几年的一些做法，往往严重自相矛盾：一方面，开口闭口要形成和维护司法权威，另一方面却往往把应该公开审理的案件搞成不公开审理或半公开审理，让人感到匪夷所思。公开审理的一般含义，首先应该是庭审公开，自由旁听；其次应该是开放新闻媒体自由地追踪报道庭审过程、争议点和关键证据；再其次是公开诉讼文书，开放媒体评论；最后，裁判文书应该载明裁判理由，将来甚至应该考虑公开合议庭或参与下判决的审委会组成人员的不同意见，如多数意见、协同意见和反对意见。按法理，应该愈是大案要案和公众关注程度高的案件，审理时愈应该公开程度高，不仅应该创造条件让尽可能多的公民自由旁听，还应该提供条件让电台或电视台对审理进行全程报道。

但我国长期以来、尤其是近年来的情况却完全相反。各地法院审理案件，往往都有严格限制旁听、限制报道的倾向，愈是大案要案或公众普遍关注的案件，愈是限制严格。但遗憾的是，杨佳案，李庄案，黎强案，彭治民案、北海案，黎庆洪案、“史上最穷黑社会案”这类社会各界广泛关注的案件，都是在半公开甚至基本不公开的安排下审理的。其中，限制旁听、限制媒体报道、甚至限制包括诉讼文书和辩护词等可能透露案情的材料公开的措施可谓花样繁多。

正义是看得见的，正义是不怕公众看见的。常识告诉人们：如果案件审理真正有正义，审判机关一定愿意将审判过程的每一个细节公之于众；不敢公开，一定是要掩盖什么不大好拿出来见人或经不起社会大众检验的东西，一定是审判机关对其审理过程和裁判结果的正义性自己都无法相信。就拿被称为重庆最大黑社会的彭治民案来说吧。一个身家50多亿的私营企业家，为什么在他自己不承认有罪、辩护律师为他做无罪辩护的情况下，他会被判处无期徒刑、剥夺政治权利终身？控辩双方关键争议点有哪些？双方意见分歧为何天壤之别？法院凭什么认定控方指控的犯罪事实而不采信辩护律师主张被告无罪的证据和意见？又如,重庆黎强案, 对于公诉机关提供的1849件证据,代理此案的律师赵长青教授给出的法庭辩护结论是其中无一能证明黎强涉黑罪名成立,而重庆法院却判黎强20年徒刑，试想，赵教授作为刑法学权威，其辩护意见何以与法院的认知差距如此之大？双方认知天壤之别，法院基于什么样的理由能够判被告20年徒刑，这到底是怎么回事?

所有这些问题，原本都应该通过公开审理向公众展现、让公众看明白的，但实际情况是不仅普通公众只能看到官方发布的语焉不详的报道通稿，连紧盯着此案的法学专家都不明白此案的就里！在这种情况下，法院的判决怎么可能有公信力？按这种情形，公众怀疑有关公权力人士通过包装黑社会制造假案、变相抢劫私有企业、私有企业家的资产和私有财产，难道不是合理怀疑？

不公开或半公开审理对司法公信力的损害更突出地表现在一些被告被判处死刑的案件的审理上。如重庆樊奇杭案、辽宁朱立岩案，被告遭严刑逼供的事实已经显露无遗，公众对严刑逼供与犯罪事实认定的关系疑问重重，而一审、二审和死刑复核的审理过程又都没有最起码的透明度，让关注这些案件的人普遍感觉他们有被冤杀的嫌疑。如此一来，于小处而言，司法机关辛辛苦苦办理这些案件，不仅无助于他们确立权威，甚至给他们带来了骂名。从大处看，这些案件对法律权威和司法公信力的损害，更是不可估量。可见，半公开或不公开审判，不仅损毁司法机关的权威，也严重损害法律的权威和功能。如果能公开审理这些案子，我相信结果和影响一定会是另一回事。

搞半公开或不公开审判，，刑事审判可能丧失多半的社会功能。首先丧失的是刑罚的犯罪预防功能，紧接着丧失的是审判的法制教育功能，甚至法律本身的正义承载功能也深受关注有关案件的民众的怀疑。

这些做法，不仅背离宪法，甚至也违背现有刑诉法，也是对现行政治和司法体制已失去信任和信心的表现，应该纠正。

五、结论：新修正案应确保除特别情况外案件一律公开审理

为确保按宪法要求，除特别情况外，刑事案件能够一律公开审理，刑诉法修正案应在这个方面做进一步修改。我建议修改从以下诸方面着手：

1.让刑诉法修正案草案第11条关于人民法院审判案件，“除本法另有规定的以外，一律公开进行”的规定回归宪法，改为“除法律规定的特别情况外，一律公开进行。”这是刑诉法修正案在公开审理方面要处理好的最具原则性的问题。

2.将刑诉法修正案草案关于一审案件是否公开审理的条款，在现有基础上本着接受公开审判是被告人的基本权利的认识从三个方面进行修改：（1）对“国家秘密”的内容和范围做明确规定，压缩不公开审理的所谓敏感案件的范围，减少国内外对法院进行政治性审判的疑心；（2）涉及个人隐私的案件是否公开审理，原则上由被告、自诉人、被害人等当事人或其中一方在他们的律师的帮助下做决定，有些情况下意见不一可由法院裁定；（3）未成年人犯罪的案件是否公开审理，原则上由被告的监护人、自诉人和被害人等或以其中一方的意愿为主，在律师帮助下做决定，有些情况下意见不一可由法院裁定。具体条款如何拟定，须研究、讨论。

3.按二审程序、死刑复核程序、审判监督程序、特别程序、精神病人强制医疗程序审理的案件，刑诉法修正案也应本着除特别情况外，一律公开审理的原则做条款设计。在设计过程中，主事者应特别注意，接受公开审理是被告人或案件其他相关当事人的基本权利，应予充分尊重。

4.刑诉法新修正案在保障公民相应的基本权利方面，应在以下方面做出规定：（1）法院审理案件，应贯彻旁听自由、新闻报道自由的原则；（2）应禁止法院或任何公权力组织以阻断公众知晓案情为目的操控旁听活动；（3）法院有义务创制条件让公民旁听案件审理，也有权按法律的规定和精神对旁听活动进行管理；管理规则应该事先公布并保持相对稳定。

5.建议刑诉法修正案增加一条：“法院审理的案件，公民可凭身份证自由旁听；当事人近亲属和新闻记者旁听优先；旁听者可以做文字记录、录音，但录像、摄影，和转播实况须经案件审理法院有关方面批准。”

6.案情已被国家机关工作人员向公众披露或已被媒体公开报道过的案件，一律公开审理。

（刑诉法修改宪法视角研究之七待续）

[1]司法应该主要指法院的对案件的审理和裁判。由主旨所决定，本文所说的司法，重点在法院对刑事案件的审理和裁判。

[2]《高人民法院关于严格执行公开审判制度的若干规定1999年3月8日公布》，法发[1999]3号。

[3]陈有西：《不公开审理的杭州“淫窟”卖淫2万次的虚假报道是如何出笼的》，http://www.360doc.com/content/12/0205/23/7933072_184435962.shtml。

Molding and Practicing CSR--Amy O'Connor and Michelle Shumate on a View from the Corporation Out

2012-04-08T21:38:00.004-04:00

In Amy O’Connor and Michelle Shumate, “An Economic Industry and Institutional Level of Analysis of Corporate Social Responsibility Communication,” Management Communication Quarterly, 24(4):529-551 (2010), the authors explore how companies communicate about corporate social responsibility and what that means for the values premises, claims of legitimacy and the use of communication about CSR to develop better relationships with targeted stakeholders. This post considers some of the insights from that article.


Amy O'Connor

Michelle Shumate

Amy O'Connor is an Associate Professor and Director of Graduate Studies at North Dakotah State University. Her program of research examines how the corporate form shapes and is shaped by our understandings of social issues, work, and community. Michelle Shumate is an Assocaite Professor in the Department of Communication at the University of Illinois at Urbana-Champaign. She is the director of Interorganizational Networks (ITO) research group at the University of Illinois and writes a useful blog, The Sector Blender, a blog about the growing relationships and blurring boundaries among nonprofit, for profit, and government sectors.

What makes this article particularly interesting is its focus on one of the key areas of corporate social responsibility that is generally discounted--the engagement by corporations, competing at times with the great global civil society actors, in the discourses that shape popular opinion (and in this way also shapes the political activity of states where popular can become political opinion), a critical point in the construction of autonomous governance systems with corporations at the center and CSR as its regulatory object. (Backer, Larry Catá, Multinational Corporations as Objects and Sources of Transnational Regulation. ILSA Journal of International & Comparative Law, Vol. 14, No. 2, 2008. This is a starting point to their analysis.

Running concurrent with scholarly research is the communicative practice of CSR. Through public communication, corporations “attempt to shape the grounds for discussing social and political issues of the day”, including the corporation’s responsibility to society. CSR has been described as a value-laden concept wherein “corporate social responsibility and value representation concerns are not about whether values, but whose and what values, are represented in business decisions” (Deetz, 2007, p. 269). (O'Connor and Shumate, supra, citing Cheney, G., & Christensen, L. T., "Organizational identity: Linkages between Internal and External Communication," in F. M. Jablin & L. L. Putnam (Eds.), The new handbook of organizational communication (pp. 231-269); Thousand Oaks, CA: Sage, 2001, at 233; and Deetz, S., "Corporate governance, corporate social responsibility, and communication, " in S. May, G. Cheney, & J. Roper (Eds.), The debate over corporate social responsibility (pp. 267-278); New York: Oxford University Press, 2007, at 269).

With this as framework, O'Connor and Shumate seek to "unpack what values are presented in CSR communication by asking the following question: How do corporations collectively define the scope of CSR?" (Ibid.). To answer this question, they examined the CSR statements of the U.S. Fortune 500 companies in eleven economic industries. (Ibid.). Focusing on communication patterns and practices, they show the shape of the boundaries companies seek to impose on the meaning and practice of CSR, and the way these efforts differ in form or function among the industries considered. The examination yields an interesting set of conclusions, one that should concern civil society and international organization leaders who are seeking broader scope and application of CSR. Their first conclusion is that companies continue to seek to reduce the scope of CSR to its traditional components--charity and ethical conduct. (Ibid, 530). This is in line with the legal framework within which CSR can be understood. (See, Larry Catá Backer, Multinational Corporations, Transnational Law: The United Nation's Norms on the Responsibilities of Transnational Corporations as Harbinger of Corporate Responsibility in International Law. Columbia Human Rights Law Review, Vol. 37, 2006). The result, O'Connor and Shumate's fourth conclusion, is a strong focus on what they call welfare capitalism, taking care of employees and local communities, as the framing concept for CSR. (O'Connor and Shumate, 530-531).

(Pix (c) Larry Catá Backer 2012)

O'Connor and Shumate begin with a sound discussion of CSR, focusing on CSR an institutional communication. (Ibid., 531-533). They note, like many others, that this refocuses the discussion of CSR from its effects projected outwards, to its value on the construction of the corporate institution itself in its self-conception and as recognized within the networks of stakeholders among whom it operates.

Institutional communication “serves to reproduce understanding and acceptance of the institution within society” (Lammers & Barbour, 2006, p. 364), thereby, creating institutional order (Phillips, Lawrence, & Hardy, 2004). Through communication, institutional order is made meaningful, a framework for internal and external behavior is provided, and the costs of nonconformity are understood. (Ibid., 532).

Thus understood, it can be reduced to a small set of normative responsibilities to society. These are grounded not so much in legal compliance as in notions of citizenship tied to the expectations of critical stakeholders. (Ibid., 532-533). It is within this conceptual structure that O'Connor and Shumate pose their three questions:

Research Question 1: How do corporations across economic industries collectively describe their CSR activities?

Research Question 2: How do corporations within the same economic industry describe their CSR activities?

Research Question 3: What are the similarities and differences in CSR communication across economic industries?(Ibid., 533-34).

The object is to extract not just idiosyncratic expressions off CSR but to fins the "normal" within these expressions as well. (Ibid., 534).

In their method and data analysis discussion (ibid., 534-536), O'Connor and Shumate, suggested that the focus of analysis was the corporate rationale for CSR activities in web sites from the 2005 online version of U.S. Fortune 500. Included in the analysis were those entities that provided such a statement, defined as "public introductory statements corporations use to describe what they consider to be their socially responsible activities and the justification for those activities." (Ibid., 534). This choice was justified because "the selected texts are (a) produced by authoritative actors, (b) are recognizable and usable by other organizations, (c) are highly structured, much like mission statements, and (d) are statements about the corporation’s legitimacy." (Ibid., 235).

The results of the study were both to some extent not surprising, though in some ways troubling. On the other hand, in this very dynamic area, it is possible that data is better at suggesting past experience than in predicting future behavior or approaches, especially as the governance world around CSR changes dramatically. (Backer, Larry Catá, From Institutional Misalignment to Socially Sustainable Governance: The Guiding Principles for the Implementation of the United Nation’s 'Protect, Respect and Remedy' and the Construction of Inter-Systemic Global Governance (September 5, 2011). Pacific McGeorge Global Business & Development Law Journal, 2011.

(Pix (c) Larry Catá Backer 2012)

The principal finding of O'Connor and Shumate was cultivated ambiguity. "CSR communication embraces strategic ambiguity at both the institutional and economic-industry level of analysis." (Ibid., 542). The object of this ambiguity was to develop a sense of principle without committing to specific actions. "Corporations in this study did not provide evidence of CSR (e.g., amount of money contributed, number of people served); rather they framed their CSR in corporate creeds and responsibilities that served to limit the role of business in society." (Ibid.). The "credo" form of CSR statement was used in about of third of the enterprises. (Ibid.). The credo form is important was setting out the values framework within which specific instances of CSR can be discussed. More importantly, as a frame of judgment of appropriate conduct, credos can also tend to omit the scope of CSR. To say what on believes, after all, also suggests the limits of belief; it suggests the presumptions and values structures that provide a basis for action and contain within them an understanding of what lies beyond belief. Written ambiguously enough, "I believe" can be interpreted to suit the tastes of a wide variety of listeners who might be induced to hear what they want. "corporations in this study did not provide evidence of CSR (e.g., amount of money contributed, number of people served); rather they framed their CSR in corporate creeds and responsibilities that served to limit the role of business in society." (Ibid., 543).

Beyond the credo, O'Connor and Shumate reveal that corporations continue to view CSR in very traditional ways--focusing on philanthropy and ethical responsibilities. More importantly, O'Connor and Shumate suggest that corporation seek to veer away from CSR as a legal duty, and by recasting it as an ethical obligation voluntarily undertaken, appear to assume a greater social role.

Rather than a set of expectations placed on the corporations by society, the corporations in this study communicated CSR as being initiated by the corporation based on benevolence and paternalism. For example, corporations identified worker health and safety as being an ethical responsibility rather than a legal responsibility. This was surprising since worker health and safety is governed by federal and state regulation in the United States. Such a move suggests that corporations are recasting their legal responsibilities as discretionary to enhance public perception of CSR practices. (Ibid., 543).

The argument is intriguing. If corporations view CSR as a means of recasting their legal obligations as "value added" and voluntary to enhance their standing, then it also suggests that markets, especially markets for consumer and investor preferences, may have a strong an effect on corporate communication and positioning within CSR structures, as the traditional systems of CSR via command under the domestic legal orders of states.Backer, Larry Catá, From Moral Obligation to International Law: Disclosure Systems, Markets and the Regulation of Multinational Corporations. Georgetown Journal of International Law, Vol. 39, 2008. Yet, in conventional thinking, especially, for example of global civil society actors, the opposite approach is considered more likely to induce corporate changes in behavior, and soft law approaches remain suspect. (See, e.g., essays in Governance, International Law & Corporate Social Responsibility, International Labour Organization Research Series No. 116 (2008), pp. 7-37). Yet it also suggests the possibilities of "CSR whitewashing." By investing in the communication of CSR, and by using that communication to both shape and narrow CSR as a concept, corporations appear to use CSR strategically, to appear to be more aggressively ethical beyond obligation that they are, and to use that stance to also narrow the reach of CSR. It also suggests the stakes in the current battles between civil society and corporate actors for control of the rhetoric and scope of CSR as a concept within communities of stakeholders, consumers and investors. The organizations that can control the meaning of CSR can also control the extent of corporate obligation.

As a consequence, O'Connor and Shumate argue that the literature about corporate citizenship and the public role of corporate citizens is overboard and perhaps naive.

The CSR rationale statements in this study limit the scope of CSR to people, places, and practices directly tied to corporate endeavors as opposed to society as a whole. As such, at the institutional level, CSR rationale statements suggest a more limited role for corporations than the business citizenship perspective. In the current research, more than half of the corporations suggest that their responsibility was limited to their local communities. In addition, employees were the most commonly mentioned beneficiaries of CSR activities. Corporations in this study offered general employee quality-of-life benefits as evidence of social responsibility. Some of the benefits were not regulated by law, such as child care programs (Citigroup), whereas others noted their compliance with federal laws as evidence of their social responsibilities (e g., Burlington’s safe working environment). CSR statements, therefore, suggest that the responsibilities of the corporation more closely resemble that of welfare capitalism. (O'Connor and Shumate, supra, at 544).

Corporate citizenship, then, like those of natural persons, may be better understood as a normative concept applied strategically. O'Connor and Shumate combine notions of strategic citizenship with the philanthropic and ethical thrust of CSR to posit that corporate CSR remains infused with notions (and the limitations) of welfare capitalism.

Welfare capitalism suggests that corporate responsibility extends to employ- ees and communities in which operations are located . . . . Corporate communication emphasizing welfare capitalism can be traced back to the 1920s. . . . [First,] although the Web sites may have replaced glossy corporate magazines of the 1920s, scholars should be cautious in interpreting CSR communication as equivalent to increased CSR expenditures or activities. . . . Second, scholars have suggested one of the reasons for the increased communication of welfare capitalism, especially concerning benefits to workers in the 1920s, was to undermine organized labor . . . Similarly, rationale statements suggesting employees as beneficiaries of CSR may have additional goals beyond fulfilling the ethical and discretionary responsibilities . . . of the corporation. Finally, adherence to the welfare capitalism view of CSR suggests that corporations have a responsibility only to communities that support their business operations. (O'Connor and Shumate, supra, 545).

Beyond the macro level findings, O'Connor and Shumate suggest industry specific approaches. These are tied to the strength of the connection between the corporation and consumer and investor markets.

Industries that were further up the value-chain and that relied on the exploitation of natural resources and/or had the potential to do significant community harm (e.g., chemical, mining and crude oil production, petroleum refining and utilities, gas and electric industries) focused more on environmental responsibility. notes that these industries are more likely to be targeted by activists, and such communication may be an effort to appease or redirect these activists. . . . . In contrast, industries that had more direct contact with customers (e.g., commercial banking, general merchandisers, hotels, casinos, and resorts, specialty retailers, and the telecommunication industries) were more likely to define CSR in terms of philanthropy and focus on education. (Ibid., 546).

Beyond suggesting weakness in the theory that CSR is used strategically to gain competitive advantage, the incentives of enterprises in the same business to copy each other also suggests the importance of the development of normative framework as against third parties. In effect, marginal advantage through strategic management of individual approaches to CSR may be less valuable than industry convergence of standards of CSR principles and behaviors that would in the aggregate reduce risk and permit companies to compete in more traditional areas of price and service. The authors conclude:

We suggest that CSR communication spins a translucent web of community by invoking images of neighbors, employee volunteerism, and the ability of the corporation to enhance quality of life. CSR communication presents values we all seemingly agree with, including improving education, protecting the environment, safe workplaces, and volunteerism. On closer examination, however, the results of this study suggest CSR communication presents universal values that are accessible only to those people and places fortunate enough to have munificent corporations in their communities. (Ibid., 548).

Ironically, the authors suggest that despite clothed in the more sophisticated language of modern CSR, most companies continue to view corporate responsibility in traditional and conventional terms. That approach, certainly, is much in evidence in Japan, Korea and China in the development of CSR. Larry Catá Backer, Japanese Approaches to Corporate Social Responsibility (企業の社会的責任) and Global Human Rights--Between the Law-State and Corporate Culture, Law at the End of the Day, Sept. 14, 2010; Corporate Social Responsibility in KoreaLaw at the End of the Day, Dec. 1, 2011.

Yet international soft law approaches is moving in another direction.Both civil society actors and international organizations are embracing an "impacts-assessment" model. These posit a set of specific normative principles that serve as the touchstone for measuring adverse impacts of corporate activity. Thus, for example, the U.N. Guiding Principles of Business and Human Rights is based on the adherence of corporations to comply with the International Bill of Rights through constant and transparent human rights due diligence. That is an approach substantially at variance form the soft law philanthropic credo structures described in O'Connor and Shumate. Transparency and impact analysis is at the heart of the ISO 26000 Standard and the GRI reporting principles. What O'Connor and Shumate expose is what may be a growing split between traditional approaches to CSR in which the corporation determines the scope and extent of its social responsibility within its fundamental obligation to security holders, and modern approaches in which the corporation is a participant in the construction of systems of CSR governance grounded in obligations to others as developed outside the state by international and civil society organizations. The former is grounded in doing good for those around corporate activity, an approach in which the corporation remains distinct from and remains wholly in control of its interventions for the social good. The latter is grounded in impacts analysis grounded in normative systems which corporations may influence but which they do not control.

The Private Corporation as a Threat to the Political Order: Of Cuban State Corporations and Private the Vehicle for Private Economnic Development

2012-04-07T23:50:00.000-04:00

The Cuban Communist Party and state apparatus have adopted a set of Guidelines (Lineamientos) in April 2011. VI Congreso del Partido Cominiosta de Cuba, Lineamientos de la política económica y social del partido y la Revolución (aprobado el 18 de abril de 2011). These Lineamientos serve as a detailed, though still general, basis for reordering the economic framework within which Cuban socialism is understood. They suggest the opening to potentially significant structural changes in Cuban economic policy.

(Caption: "La política trazada incluye la estrategia de desarrollo de sectores generadores de los principales ingresos en divisa libremente convertible como el turismo Jorge Luis Baños - IPS"; From Cuba priorizará sector cooperativo, Inter Press Service, March 27, 2012)

Among the least explored aspects of the Lineamientos has been its framework for organizing economic activity in the private sector. The key feature of that organization is the prohibition of the aggregation of capital or other means of production outside of the state sector. If corporations are prohibited as a form of private economic activity but reducing such activity to prescribed simple sole proprietorships may not produce the sort of positive economic growth necessary to avoid economic stagnation, then the question of finding an alternative form of economic activity that permits private aggregations of economic activity becomes critical to the forward movement of Cuban economic reforms consistent with its governing ideology. For that purpose the Cuban state will offer the cooperative in a form that is yet to be determined. What follows describes the context in which this development is occurring and recent movements by state official to implement this form of activity.

The broad prohibition against the aggregation of capital and other means of production for private economic activity, that is for economic activity not directly owned and controlled by the state, is clearly articulated in the Lineamientos.

–03. En las Formas de gestión no estatales no se permitirá la concentración de la propie-dad en personas jurídicas o naturales. (Lineamientos No. 3, at pg. 11)

The foundational principle is that under Cuban Marxist Leninist economic organization, only the people, organized through the state sector and directed by the Party, can accumulate the means of production and act engage in collective activities. To permit collective activities outside the state sector would be understood as a threat to the principal authority fo the state and its apparatus as the vanguard of popular action. For those brought up under Soviet Socialist theory, this approach sounds familiar. It has also, to some extent been abandoned virtually everywhere, at least in the form the Cuban Communist Party seeks to preserve it in the form of Lineamientos No. 3. See, Backer, Larry Catá, Cuban Corporate Governance at the Crossroads: Cuban Marxism, Private Economic Collectives and Free Market Globalism. Transnational Law & Contemporary Problems, Vol. 14(2):337-418 (2004)) ("Like other Stalinist states, Cuba uses the forms of autonomous economic collectives as a handy means of dealing with foreigners, as the medium through which the State could deal with the capitalist exterior." Ibid., 371).

Yet at the same time, the Cuban state appears to understand that limiting the private economic sector to a mass of small proprietorship heavily regulated by the state might not be helpful in meeting its objectives of opening the economy and reducing the need for state employment for the great mass of Cuban people. As an alternative, the Cuban state apparatus, and its intellectual elites, have been exploring an alternative--the cooperative form. Larry Catá Backer, Camila Piñeiro Harnecker on Cooperatives and Socialism in Cuba, Law at the End of the Day, Oct. 3, 2012. Much of the theoretical justifications and arguments supporting this form as an acceptable alternative for the organization of private economic activity has been recently explored in a collection of important essays published as Cooperativas y socialismo: una mirada desde Cuba (Camila Piñeiro Harnecker, editor; La Habana: Editorial Caminos 2011)(ISBN 978-959-303-033-5). The form of cooperatives is a potentially delicate alternative. For cooperatives to work as an alternative acceptable under the current regime's assumptions about the corporate form, it would be necessary to distinguish between the autonomous governance form at the foundation of the corporate form and a cooperative form more amenable to state supervision and control.

Recently, the Cuban state has moved from theory and intent to practice. It was announced that Mafrino Murillo, the Vice President of the Counsel of Ministers, confirmed the preparaiton of new rules for the operaiton of cooperatives outside the agricvultural sector ("Vicepresidente del Consejo de Ministros, Marino Murillo, confirma preparación de decreto ley y reglamento para ampliar las cooperativas al sector no agropecuario.")(From Cuba priorizará sector cooperativo, Inter Press Service, March 27, 2012). The announcement was timed to coincide with the visit of Pope Benedict XVI and was meant to suggest sustained movement to implement the Lineamientos approved by the Party and State apparatus, without encouraging political reform. (Ibid).

Con la primera prioridad colocada en el tema agropecuario, la política trazada incluye la estrategia de desarrollo de sectores generadores de los principales ingresos en divisa libremente convertible, como el turismo, el níquel y la industria biotecnológica y de medicamentos.

En segundo lugar, el vicepresidente mencionó la promoción de diferentes formas de propiedad y “otras firmas de gestión” que garanticen una mayor eficiencia económica, al tiempo que deben preservarse las conquistas de la Revolución cubana en los sectores de la salud pública y la educación.

Así, añadió, el nuevo modelo debe verse no como “igualitarista” sino como la creación de igualdad de condiciones para el desarrollo del ser humano, en un contexto en el que el ingreso principal tiene que proceder del trabajo.

Como la “tarea más importante” aparece “hacer eficiente la empresa estatal” y en la búsqueda de una solución en ese sentido, Murillo aseguró que se hace necesario avanzar en fórmulas que permitan, manteniendo la propiedad estatal, estimular la gestión eficiente por otros actores no estatales. (Ibid.).

The move to liberalize the use of cooperatives is meant to be part of the larger strategy of opeing the agricultural sector, reviving the tourist, extractives and biotechnology sectors without significantly altering the nature of political control oof economic productivity.

"Between Faculty, Administration, Board, State, and Students: On the Relevance of a Faculty Senate in the Modern U.S. University": Talk Delivered at the AAUP Symposium at Penn State

2012-04-01T19:35:00.002-04:00

On April 2, 2012, the American Association of University Professors and Pennsylvania State University faculty hosted a symposium--The Future University: Academic Freedom, Shared Governance, and Contingent Faculty.

(Pennsylvania AAUP web page)

This post includes the conference program information, conference program and the text of my presentation to the conference: Between Faculty, Administration, Board, State, and Students: On the Relevance of a Faculty Senate in the Modern U.S. University.

The Conference program provides:

Who is really in charge of a university? The faculty? The President? The Trustees?

What are “contingent faculty”– and how do their conditions of employment affect student learning?

How are program openings and closings, and the creation and elimination of majors and minors, determined?

What role should students play in the governance of a university?

What is the AAUP ... and what is academic freedom?

______________________

These and other questions will be discussed at the

AAUP Symposium at Penn State University

The Future University: Academic Freedom, Shared Governance, and Contingent Faculty

April 2, 2012 9:30-5

________________

(From AAUP web site, May 2005)

The conference program included the following speakers:

AAUP Symposium at Penn State University

The Future University: Academic Freedom, Shared Governance, and Contingent Faculty

April 2, 2012

S5 Osmond Laboratory

9:30 am Michael Bérubé

President, Modern Language Association

Chair, Subcommittee of AAUP Committee A on Program Closures

Opening remarks

10 am John Hinshaw

President, Pennsylvania AAUP

AAUP 101, or, Why Are We Doing This?

11 am Susan Squier

Brill Professor of Women's Studies and English, Penn State University

“Something of an Academic Orphan”: The Closure of STS (Science, Technology, and Society) and the Gendered Corporate University

12 noon Larry Catá Backer

Professor of Law and International Affairs, Penn State University

Incoming Chair, Penn State Faculty Senate

Between Faculty, Administration, Board, State, and Students: On the Relevance of a Faculty Senate

1 pm Lunch*

2 pm Gary Marotta

Professor of History, Buffalo State University

The Arrogance of University Administrations: Tales of a Recovering Administrator

3 pm Elizabeth Landers

Assistant Teaching Professor in French, Department of Anthropology, Sociology and Languages, University of Missouri-St. Louis; co-chair, Committee on Contingent Labor in the Profession, Modern Language Association

Contingent Labor: National Perspectives, Local Solutions

4 pm Rodney Hughes

Ph.D. candidate in Higher Education, Penn State University

Member of Phi Beta Kappa

Faculty, Staff, and Student Participation in Higher Education Governing Boards

5 pm Michael Bérubé

Wrapup

_______________

What follows is the text of my presentation at the conference, revised slightly to fix typos from the original and to add a few explanatory footnotes that might prove helpful to the reader:

April 2, 2012

Between Faculty, Administration,Board, State, and Students: On the Relevance of a Faculty Senate in the Modern U.S. University

Presentation of Larry Catá Backer

W. Richard and Mary Eshelman Faculty Scholar & Professor of Law,

Professor of International Affairs

Pennsylvania State University

239 Lewis Katz Building

University Park, PA 16802

1.814.863.3640 (direct), lcb11@psu.edu

Let me start with thanks to the American Association of University Professors (AAUP)[1]and to the faculty, staff and administrators who helped make this conference possible. I also want to thank you for your willingness to hear us out, to permit us, each in our own small way, to offer perspectives and ideas that, taken together, might suggest the norms, structures, and cultures of governance that are central to the legitimate operation of the modern university. This occasion comes at a particularly timely point, providing me with an opportunity, as the incoming chair of the Pennsylvania State University Faculty Senate[2]to present my views about the state of shared governance and to suggest the policy issues that will be important in the coming years. I also offer an apology: in events like these, people like me are usually called upon to describe a problem, posit a theoretical basis or model for approaching analysis, and then apply that model to produce a sometimes elegant solution to the problem.

Lamentably, I come to you today with no answers. Age and experience have given me enough sense to realize that answers are always a reflection of the way in which a question is framed. To produce the right question is more important than to extract an answer from the wrong question. And so, rather than try to produce answers to questions fashioned for that purpose, I hope, instead, to suggest the problem and to consider whether there is even a way to consider approaches to analysis. For that purpose, what I will offer are observations of the articulation of power and power relationships within an institution that is at once neither organ of the state, economic corporation, civil society organization or charitable apparatus. I will suggest the fragility of power within complex organizational structures and lament the push, increasingly institutionalized, in the construction of a-symmetrical power relationships in which the appearance of participation is heightened while its actual effects are diminished, in which servility increasingly comes to represent the most rewarded form of service.

And so, at last, to the problem, and the topic of my remarks—shared governance.[3]I will consider shared governance within the increasingly contested governance space of the U.S. public research university. My contextual focus will be on its most fragile element, a faculty senate. This organ of governance is sometimes trotted out for photo opportunity moments as proof of democratic engagement within non-profit organizations with a teaching and research mission. On some occasions it plays a formal role as a source of advice and consultation on matters of direct concern to faculty, the substance of which might or might not be embraced in whole or in part to by those with authority to act. More rarely, some of its members could be invited to play a critical role, though one usually behind the scenes and limited to the expression of faculty sentiment with a chance of influencing decisions or influencing thinking about potential action by those with power. On the rarest occasions, some members of the Senate may find themselves permitted a very small space in which to hear and speak to the most pressing matters of administration in the wake of crisis.

Most of the time, however, the reality is quite distinct. I recall more than one occasion where members of faculty and administration (usually unit administrators) will ask pose questions going to the relevance of the faculty governance organization—for example, is a university faculty senate relevant to the modern public research university? What can a university faculty senate do that can’t be more effectively undertaken by efficient and well-meaning unit administrators and their entourages or by local unit faculty? This position is made stronger where administrative entourages are growing at faster rate than faculty hires. I have also heard of unit administrators and their subordinates who mock the Senate and sometimes seek to impede its work. The best expression of their sentiment went something like this: “There is no bigger waste of my time than having to deal with the Senate.”

Faculty members are increasingly understood as units of production—factors in an human production line that is meant to apply processes to students that stamp out graduates of uniform quality who are fit for specific purposes, and also to produce knowledge of some utility to the currently favored crop of knowledge consumers—commercial enterprises and the state.[4] In this factory setting, faculty governance participation appears to be a distraction valued mostly as gesture. Reduced to the service component of mandatory faculty responsibility,[5]it remains a marginal element of everything from annual reviews to the review of the sufficiency of tenure files, reflecting and simultaneously deepening the production line mentality that is usually clothed in more elegant language. Its exercise can result in retaliation, sometimes of the most sophisticated and subtlest kind, sometimes quite crude, especially far from the eyes or cares of even governance-sympathetic central administrators. Faculty governance is sometimes thought to serve best when its ambitions are quite humble—for example when governance is understood as service to low level administrators, or when it serves to more efficiently respond to issues of administrative organization and rule implementation for the management of students, staff and faculty themselves.

High-level and policy governance is beyond the usual realm of the acceptable; as a consequence, faculty sometimes cultivate a deferential attitude that can appear to slide toward a servility of a kind that reminds more of the Commons in Tudor England than of modern notions of participation and engagement. The tension between service and servility, and the influence of faculty governance cultures that favor one or the other, complicates the development of cultures of governance. But this tension also reflects a reality in which the cultural parameters of corporate governance and state administration practices—grounded in power hierarchy, division of function, chain of command, and obedience—have come to dominate thinking about the way a university, like a governmental administrative agency or a large multi-unit corporation, ought to be governed. Within these structures, the idea of faculty governance is a rare and sometimes unappreciated thing indeed. It suggests a culture of governance that posits more horizontal relationships among stakeholders in the enterprise, and a more sensitive degree of commitment to consultation, inclusion, engagement, and accountability, that is absent increasingly from emerging foundations of institutional cultures, especially outside the university.

All of this I have come to understand better, and with increasing alarm, since I began my service on the Penn State University Faculty Senate, as I studied our behavior and that of faculties in our brother and sister institutions against those ideal types proffered for our consumption. I have begun to understand this more formally as a set of tensions inherent in the position of a university faculty senate within a governance structure that places it between the hierarchical structures of university administration, the political structures of state and federal governments, the fiduciary structures of the Board of Trustees, and contested among them all, the academic structures of knowledge production and sharing from which administrators, politicians, regulators, board members and consumers (employers and alumni) derive benefits from which the profitability of the enterprise is (un)conventionally but increasingly measured. That is, as the title of my talk suggests, I will speak today about the Faculty Senate between faculty, administration, board, state and students.

I will start with a very brief review of the foundations. The conceptual structures of shared governance are fairly well known but it is always useful to nod in the direction of sources. I then consider the realities of shared governance. I will suggest the context and the difficulties of shared governance within the a-symmetric power arrangements that are the hallmark of public universities. What I hope to flesh out is an outline of the context in which shared governance might be measured by its form with little attention paid to the effectiveness of its function. I will then consider where a faculty senate can fit into this governance enterprise. I will consider whether shared governance has come to mean more a sharing of the burdens of administration than a sharing of governance. I will end with a consideration of how I see the Penn State Faculty Senate playing a more engaged role within the constraints of shared governance.

The Framework of Shared Governance: Normative structure and Operating Principles.

The general principles that reflect the common culture of shared governance in the context of universities are well known. The AAUP, of course, has been instrumental in developing and maintaining a good part of this culture. I refer, of course, to the 1915 Declaration of Principles on Academic Freedom and Academic Tenure, [6]the 1940 Statement of Principles on Academic Freedom and Tenure,[7]the 1966 Statement on Government of Colleges and Universities,[8]and the 1994 Statement on the Relationship of Faculty Governance to Academic Freedom.[9]

From the 1915 Statement emerged the modern understanding of the special role of faculty within a modern research university, one that resists easy conversion to the routinized hierarchical relationship of employee and superior. The 1915 Statement characterized the relationship between faculty and the university as one in which the faculty “are the appointees, but not in any proper sense the employees, of the [university trustees]. For, once appointed, the scholar has professional functions to perform in which the appointing authorities have neither competency nor moral right to intervene. . . .[10]As a consequence, the relationship between faculty, administration and trustee are necessarily not strictly hierarchical, but instead invoke a sharing of responsibility for the work of the university:

A university is a great and indispensable organ of the higher life of a civilized community, in the work of which the trustees hold an essential and highly honorable place, but in which the faculties hold an independent place, with quite equal responsibilities—and in relation to purely scientific and educational questions, the primary responsibility.[11]

That responsibility extended to the production of knowledge based on independent inquiry, to the training of students, and to the development of expertise for the advancement of the general welfare of the state.[12]The 1915 Statement, then, is grounded in another great principle of the academic establishment—academic freedom,[13]an explanation of which was the primary objective of that statement. While the normative conception and operationalization of academic freedom was ultimately elaborated in the 1940 Statement, the fundamental conception of the nature of the relationship between faculty and university—the idea of the academic as appointee but not employee, of the autonomy of the scholar’s undertaking within the university—remains as strong today as it was in 1915, as a matter of internal practice to which a university may but need not subscribe as a matter of binding internal organization.

That idea of the faculty member as appointee and autonomous actor within the government of the university had another significant consequence. Inherent in that principle was another, that of shared governance—for if the academic was not to be understood as being in a conventional employment relationship with the university, and if the scholar was expected to contribute to the training of students and the public good, then those interests would require participation in the operation of the institution in which they conducted their work.

The idea of the fundamental importance of governance participation as central to the integrity of academic freedom was at the heart of the 1966 Statement on Government of Colleges and Universities. Its basic premise was what it called “joint effort”: the necessity for joint action among governing board, administration faculty and students to increase capacity to solve educational problems.[14]It followed from this premise that governance principles are necessary to avoid the confusion or conflict that would result from institutional usurpations by one of the coordinate governance bodies.[15]For my purposes here, I focus on the role of the 1966 Statement in clarifying two distinct aspects of the faculty role in governance. The first is the normative standard—the fundamental premises of the faculty role. The second is the operational standard—the fundamental premises of the organization required to permit the exercise of the faculty role in governance.

The fundamental normative standard is grounded in stakeholder engagement, understood as both an institutional commitment to transparency and an equally strong commitment to engagement in decision-making.[16]Transparency is understood in its dual role—the provision of meaningful information at a meaningful time and in a meaningful form—and transparency as a mechanism for effective participation in governance. The 1966 Standard, for example, speaks to “Effective planning demands that the broadest possible exchange of information and opinion should be the rule for communication among the components of a college or university.”[17]For faculty, the principal substantive governance role centers on “such fundamental areas as curriculum, subject matter and methods of instruction, research, faculty status, and those aspects of student life which relate to the educational process.”[18]

The operational standard consists of two requirements: first, an institutionalized participation in decision making, either in an initiator or consultative role, and second, a principle of deference where the decision falls closest to the heart of the core governance role of the stakeholder. In the case of faculty, primary responsibility for decision-making, and the greatest deference by governing boards and administration, center on the core normative governance role of faculty relating to curriculum, instruction, research, faculty status and educationally related student life.[19]In these areas, the faculty’s role in decision-making should be at its strongest and both governing board and administration should defer to the greatest extent. With respect to other aspects of university governance, where the responsibilities of governing board and administration are paramount—strategic planning, legal compliance and risk management, budgeting, selection of administrative personnel, physical resources management and the like—faculty engagement remains significant but deference to faculty views might be sometimes significantly reduced. The degree of deference, or put another way, the degree of responsibility for governance, is a function of the subject for decision and the context in which decision-making occurs—or as the 1966 Statement suggests, “differences in the weight of each voice, from one point to the next, should be determined by reference to the responsibility of each component for the particular matter at hand.”[20]

The 1966 Statement also speaks to the organization of the faculty voice in governance—after all there is little value in vesting authority without institutionalizing its exercise in some sort of efficient and representative manner. That institutionalization calls for the creation of a government internal to faculty so that the views of the body of the faculty could be articulated, presented and advanced effectively. In the words of the 1966 Statement: “Agencies for faculty participation in the government of the college or university should be established at each level where faculty responsibility is present. An agency should exist for the presentation of the views of the whole faculty.”[21]These agencies, then, can be constituted as faculty senates at the university level and as local faculty organizations within departments, colleges and units in a multi-campus, multidivisional research university—like Penn State. These institutions, like the faculty they represent, are meant to be constructed as autonomous entities, governed by their own terms and without interference by the coordinate governing groups—principally administration, governing board, or the organs of state government when acting as an internal stakeholder—though created in consultation with and jointly approved by all stakeholders.[22]

With the 1994 Statement, the AAUP added the last layer to governance within the university. In the context of institutionalizing shared governance and deepening its normative framework, the 1994 Statement sought to expand on the meaning of deference in shared governance. It was meant to remind all stakeholders, in part at least, that deference was not an invitation to ignore a coordinate partner in governance. It also reminded that the object of the shared governance model of the 1966 Statement was not to cabin, and by cabining, reduce the role of the faculty to a very narrow slice of university life—such as the construction and offering of courses. Instead, tying together the 1915, 1940 and 1966 Statements, it made a case for the broad construction of the faculty role in governance and the importance of faculty engagement in most aspects of university governance, even as that role varied from consultation to a principal role in the fashioning of rules and policy. It also included a warning, taken in part from the 1966 AAUP Statement on Professional Ethics, a warning that has been increasingly overlooked to the detriment of shared governance in this century—“’Professors accept their share of faculty responsibilities for the governance of their institution.’ If they do not, authority will drift away from them, since someone must exercise it , and if the members of the faculty do not, others will.”[23]

The Reality of Shared Governance: Is Authority Drifting Away?

A very pretty picture of governance emerges from this review of a century of AAUP Statements. Governance at the university is not grounded in the principles of the organization of economic enterprises or even of charitable and religious institutions—grounded in hierarchy, obedience, and power based differentiation of function and control. Instead, the university is conceived as a collaborative enterprise to a greater extent, one in which its coordinate branches—the governing board, the administration, the faculty and students, work together, exercising their authority in harmony and for the greater glory of the institution for whose interests they all work.

But reality sometimes paints a less gloriously bright picture.[24] And it may be time to consider more carefully the warning in the 1994 Statement. Let me suggest some clouds on the shared governance horizon that apply generally to all university institutions and that in some form might also represent the experiences of some here at Penn State. My focus is on six (6) challenges to faculty governance, though some of these also touch on the integrity of governance by the board and leadership by the administration.

1. The role of the state is changing and the courts provide little protection through the application of law. For almost a generation, political leaders have increasingly viewed the administration of the university, and the management of its product—research and teaching—as an increasingly important focus of state policy. This interest is not unique to this era—in periods of crisis or instability, the political branches have always focused on managing the levers of social, cultural and economic controls, including the university. But the character of the current wave of state interventionism also has substantial effects on the organization of university management. These include a number of issues that remain unresolved. One is the potential conflicts of interest in the role of political officials in the internal management of the enterprise—these more directly affect the governance role of boards of trustees. For example, when an elected official or an appointed official who serves at the will of an elected official acts as a member of a board of trustees, is that person bound to act solely in the best interests of the institution or may that official breach that duty because of the overriding duty to the electorate? If the latter is the case, then it is no longer clear that the board of trustees can be understood as acting in the interests of the university it is meant to serve but instead that the university has dissolved and become an appendage of another organization. Another is the role of the representative bodies of the state and federal governments to more precisely manage the form and content of education. It was not all that long ago that state legislators oversaw the content of materials used in the classroom and insisted that certain courses be taught or taught in a certain way.[25] While the power of the state is largely beyond question in these respects, principles of transparency might dictate more clear and full disclosure of the role of the state in the operation of the academic enterprise, and perhaps even a more transparent justification for its exercise.

Equally important, governance remains almost entirely a matter of internal organization developed through and enforced under the rules and other contractual relations that were created in furtherance of the establishment of the organization of the university. Though there is some law, especially constitutional law, that at times protects the speech of faculty,[26]the application of that law provides little comfort. It is grounded in an assessment of the value of the speech outside the academic community and involves a post facto balancing of interests that are of little help in determining before the fact whether actions taken in a governance capacity will be protected against retaliation.[27] Indeed, from the court’s perspectives, the AAUP’s 1915 vision of the role of the academic is rejected as a matter of law.[28]The judiciary has resisted calls to read into law any form of special relationship between academic and university, instead starting from the presumption that there is substantially no difference in the main between faculty and any other employee of any other enterprise.[29]Though the Supreme Court has left open the question of the applicability of the recent Garcetti case,[30]the courts have in the usual course treated internal governance matters and the protection of conduct related thereto as an employment issue. As a result, and giving substantial weight to managerial and administrative concerns centered on the smooth running of an organization,[31]this approach has encouraged some in the business of education to treat the role of the university academic as little more than another cog in an education-industrial complex and subject to the same rules of chain of command and production line efficiency as people who are employed in a production line assembling goods for sale. Yet, the courts have also shown a wiliness to respect the adoption of the vision of the 1915 Statement as a matter of internal university corporate governance and enforce those understandings in contract.[32]For faculties, those mean the need to more aggressively and precisely ensure that the vision of university governance espoused in theory becomes written into the law of university organization and enforceable as such, for example, as in binding job descriptions or terms of employment.[33] For that purposes, whistleblower statutes are rarely enough both because they tend to be narrowly applicable and are easily contested on the facts.[34]Failure to institutionalize protections for faculty exercising their governance roles makes cultures of impunity and bullying, treated next, easier to sustain and harder to eradicate.

2. Cultures of impunity are sometimes tolerated. The role of the state may be a destabilizing force but not an unprecedented one in the operation of the academy and the distribution of governance power within it. More troubling are deviations from the idealized model of governance. Among the most serious are the cultivation and tolerance of cultures of impunity, supported by administrative governance models that do little to provide avenues for remediation. Impunity takes three major forms at the university: first administrative overreaching, and second retaliation and bullying.

A. Administrative overreaching is a significant threat to shared governance. These can include deliberate avoidance of consultation, or accidental failures to consult on matters of shared governance, or even attempted and sometimes successful intrusions of administrators into the heart of the administrative organs of faculty governance. Since consultation is at the heart of shared governance, the management of that process, and the control of the use of consultation, both without accountability for abuse by administrators of that management and control, can significantly skew the contributions of faculty to discussion. If administrators can determine the time, place and manner of consultation by faculty, consultation itself becomes little more than theatre, and in this case theatre for the amusement of the governing board. If the governing board encourages this stage-managing, it suggests commitment only to consultation in form, not in fact. Indeed, it is not clear why consultation should be managed and thus controlled at all in the context of shared governance, It is true that sometimes administration officials know what is best—but many times consultation provides additional perspectives that might challenge even the most absolutely certain knowledge. Even the easy case, the low lying fruit, of administrative decision making might profit from the sort of consultation that could lead to better or better accepted decision-making that preserves the integrity of the process of shared governance. Moreover, failures of consultation can have a significantly demoralizing effect, eventually corroding shared governance so that it remains a formal husk covering a rotted and shriveled body.

Yet equally damaging to the body of shared governance is what appear to be overt and covert efforts to usurp and corrupt the internal processes of faculty governance. Overt usurpation usually involves administrative efforts to expand control in matters where faculty authority is traditionally at its greatest. There is a noticeable tendency among university officials at the middle levels of administration—deans, chancellors, and their subordinates—to move to usurp the faculty role in governance. This can be effectuated formally—we have heard of cases in which such officials have insisted on the need for them to become leaders of the faculty governance organization, or where officials have insisted that they should have full authority over the development of courses and curricula. Covert overreaching is more insidious. It can appear through a strategy of primus inter pares projection of administrative voices into policy and governance debates within faculty organizations. I have understood the way in which administrative voices—and administrators cannot serve two masters, they will serve the master who can terminate their administrative position[35]—purporting to speak as colleagues have sought to privilege the administrative perspective (their own) in faculty debates about an issue. Debate is chilled where administrators become too eager to share their views within the debates of non-administration colleagues. Where participation might dictate self-control, an over-eagerness to project voice and manage outcomes becomes clear and clearly troubling. Both formal and informal intrusion by administrative officials in the internal governance of faculty organizations corrupts the integrity of any shared governance system as surely as any assertion, for example, by the U.S. President of power to appoint members of Congress ex officio to participate in their activities.

B. Retaliation and Bullying are closely tied to cultures of impunity. Drawing on the 1915 Statement, the 1994 AAUP Statement reminded of the intimate connection between faculty governance and academic freedom. “Protecting academic freedom on campus requires ensuring that a particular instance of faculty speech will be subject to discipline only when that speech violates some central principle of academic morality, as, for example, where it is found to be fraudulent.”[36]More importantly, the 1994 Statement takes what for some is a radical position—that it is for faculty in the first instance to assess whether faculty speech constitutes such a violation of a central principle of academic morality.[37]

Yet, most of us live within academic cultures in which the subject of administrative, or much more rarely governance board or political branch retaliation, is a constant topic of conversation. Faculty in any institution will know which dean has what sort of reputation for punishing dissent. Faculties tend to know which administration official is a bully, and more importantly, which administration official appears to be more successful at bullying not merely their own faculty but also central administrative officials themselves. Quid pro quo retaliation is the most pernicious, but consequential retaliation is not uncommon, the “if you fail to approve ‘X’ then you can be sure I will do nothing to prevent bad thing ‘Y’ from happening” is also not uncommon. A sustained hostility to the governance work of the faculty can also have important repercussions, from the subversion of efforts to provide faculty leadership support by way of teaching relief to the promotion of dismissive attitudes toward the work of faculty governance organizations. Retaliation chills discussion not merely between administration and faculty but also among faculty themselves. It has a strongly toxic effect upon the operation of the university, yet university officials prefer to turn a blind eye to the cultures of retaliation, relying instead on the assertion by individuals of Faculty Rights and Responsibilities proceedings when administrators were careless enough to leave sufficient evidence that in individual cases they might have crossed the line.

Cultures of retaliation, especially at universities run on a diffuse administrative governance model like Penn State, are sustained principally by a lack of substantial attention from central administration officials. One wonders whether retaliation, something easy to assert and difficult to prove, is usually undervalued especially where an administrator is able to meet some other and more administratively valuable goal. But the toleration of retaliation has a powerfully corrosive effect on governance. And it has an even more corrosive effect on the integrity of the university and the protection of the research and teaching missions of its faculty.

But faculty organizations sometimes share blame in equal measure for retaliatory practices. It is not unknown among faculties, and every faculty member is aware of instances of faculty bullying and mob behavior.[38] These include instances of covertly enforced isolation, a disinclination to respect the views of colleagues, usually marginalized as offbeat, the social marginalization of the “cranky” or “unusual” colleague, and the cultivation of academic judgments based on notions of political advantage within a faculty. My personal favorite are those faculties where an isolated faculty member becomes invisible—forgotten, not spoken to, and even lower level administrators feel no shame in walking by them without even the courtesy of an acknowledgement or “hello”. Where these efforts are undertaken to curry favor with administration officials the corrupting effects are horribly pernicious. We all know of instances where faculty groups will seek to curry favor, sometimes with the encouragement of administrative officials, by marginalizing the dissident voice. Interestingly, these instances of bad behavior are usually understood in hierarchical terms, something for a superior to control (even when she is the problem) and not a matter for faculty governance.[39]Important as well might be the criticism that Nancy Rappaport gently made—because there are few consequences for irresponsible actions by faculty organizations, there is a tension in shared governance that is hard to avoid.[40]

Not all of these problems lend themselves to institutional correction through rules. Some depend on the maintenance of cultural standards that require people to live up to their social and governance obligations. Yet, as the judiciary has mentioned in more than one case, it is within the power of the university to extend a substantial measures of protection to those of its stakeholders exercising governance power. This, most universities have not done this well, if they have done it at all. Penn State is no exception.

3. Cultures of impunity and the threat of retaliation are not the only factors undermining the effectiveness of the ideal of shared governance. Over the last several decades, structural changes in the constitution of faculty have themselves provided significant new challenges. I will touch on two of them: first the rise to prominence of fixed term faculty within faculty ranks; and second, the construction of faculty status hierarchies in multi-campus universities.

The idealized model of shared governance is grounded on the assumption of a system in which virtually all faculty are tenured and virtually all administrative personnel are drawn from the ranks of tenured faculty. That combination is meant to assure common and shared values that make the management of shared governance feasible. The increasing use of non-faculty administrators has put substantial pressure on this model, injecting into administrative ranks people with substantial authority in governance and no evidence of shared cultural values. But the predominance of faculty with no hope or expectation of tenure, or of the full protections of academic freedom that are grounded traditionally in tenure—faculty that now make up almost 50% of the instructional and research faculty at Penn State, for example—has significantly affected both the organization and operation of the internal governance of faculty organizations.[41] More importantly, it has substantially affected the issues of policy that are given priority. Issues of retaliation become more prominent and assume a different character. Likewise interference with activity and the scope of work duties also become more common. The possibility of conflict in the interests among faculty grow—tenured and fixed term faculty have sometimes distinct interests and distinct priorities with respect to issues of policy, instruction and expectations of service. Yet virtually every university or college has managed to avoid a sustained and critical discussion of these issues and their ramifications for governance.

Equally important are the role of faculty and the evolution of faculty status hierarchies within multi-campus universities. At multi-campus universities like Penn State, the ease with which faculties can be divided along locational lines presents an ever present danger. It is altogether too easy to divide a faculty along status lines dictated by the campus location where one teaches. Even the usual language describing a multi-campus university can be telling—where a university labels the main campus the “flagship,” where it begins to charge differential tuition or permitting different standards for tenure and the like for “market” or other reasons, all of these can begin to suggest a difference in quality and thus of status within the university. I understand that there may be situations that arise where faculties turn on themselves in this way to the advantage of one or another group, or where they are encouraged to do this by administrators, usually quietly. In the process, of course, effective governance power flows out of faculty hands and into those of unit administrators. A unified faculty requires a culture that embraces a culture of equality among faculties in the various campuses of the university. To the extent that Faculty Senates fail to encourage this culture and to the extent that others seek, by word or action, to undermine this sense of collective equality corrupts shared governance as surely as those who would distinguish between tenured and fixed term faculty in the constitution of a faculty voice in governance.

4. Ironically enough, emerging cultures of assessment and benchmarkingmay also serve to diminish governance, and especially the governance role of faculty. Assessment cultures use metrics to end-run discussion on policy by hiding policy determinations behind the bland façade of information collection and monitoring. Yet assessment is itself a values and policy-laden exercise.[42] Its conceptualization and execution incorporates sometimes-important policy choices; referring back to my opening remarks—skillfully constructing questions can provide you the answers you want and avoid those you do not. What makes assessment cultures more dangerous is the unthinking willingness of administrations to assign these as purely administrative tasks, and to employ academics, staff and other administrators as the technicians who are meant to operationalize assessment along the lines conceived by administration. The blandness itself is meant to provide strong argument against interference with purely technical matters of data harvesting and neutral assessment.[43]To avoid faculty consultation and engagement in those matters because of the technical nature of the exercise can have a substantial chilling effect on governance. The fact that assessment might be required by outside accrediting agencies or others is hardly an excuse to subvert governance by converting it into a technocratic exercise.

Likewise, cultures of benchmarking tend to hide as much as they purport to help decision-making. Its greatest effect, however, is to remove policy discussion from the table in favor of a mindless obsession with imitation and the comfort of protection in numbers. We are all aware of the power of benchmarking, and of the increasing use of benchmarking as a substitute for discussion. But governance by pack behavior is hardly what anyone had in mind when constituting the academy as a site for shared governance and it would be useful to avoid using benchmarking as either a shield to protect against consultation or as a sword to evade governance. All too often, benchmarking serves as an excuse for timidity and a justification for inertia, paralysis and an avoidance of policy discussion.

5. Narrowing the Scope of Faculty Governance, from engagement to sharing the burdens of low level administration and the remoteness of the Senate organization reduce the quality of faculty governance. The move to disengaged technocracy evident in the effort toward regimes of assessment and benchmarking has an overt character as well. That character is marked by the move to substantially narrowing the role of the faculty senate to a technical one centered on the administration of courses. The effect, of course, is to remove faculty more and more from the center of discussion of policy and more toward the role of helpmate to department heads and other front line administrators concerned with the smooth operation of the course delivery system and the mechanics of degree production. Where a faculty senate confines the bulk of its work to this goal, as worthy as it is, to the exclusion of others, it substantially reduces it governance role. More importantly, the character of that role changes substantially—from an autonomous voice representing those producing and conveying knowledge, to a mere appendage of the administration of the university.

This narrowing of the role of the Senate has a more perverse effect—it tends to change the sense among the Senate of the stakeholders whose interests the Senate represents. More like an institutional department head, the Senate can begin to take on administration culture and outlook. But worse, the Senate and its leadership can grow remote from both its members and the faculty unit organizations that are its lifeblood. I have more than once heard whispered, and not unreasonably, the sentiment that the Senate leadership tends to treat its members as objects to be managed, and that they have lost a vibrant connection with either the members or more importantly the units.

6. The role of students on governance and the classroom has been changing appreciably. The 1966 Statement spoke to the emerging trends of listening to students so that they might speak without institutional reprisal, increasing the space for student participation in governance, ensuring academic due process to students and to participate in the knowledge production life of the university. Most of these aspirational ideas have become a reality. Students have assumed a greater ownership role in their education; increases in tuition, among other things, have ensured this result. Greater investments through tuition and the larger stakes for students in the quality of education and the reputation of the university into which they enroll have also heightened a willingness to increase the scope of participation. That has required a greater willingness on the part of faculty to be more responsive to student needs, or to engage more aggressively in better-shaping the understanding of those needs by students and others. Sometimes faculty have been less than gracious in sharing this core responsibility, even as they clamor for a greater role in those areas of responsibility nearer the heart of the administrative and policy roles. In this context, faculties have become somewhat protective, in everything from general education to the development of curriculum and programs. This must change.

How does a Faculty Senate Fit in Between State, Board, Administration and Students.

In the face of these challenges how should one approach the role of the faculty senate as idealized in the AAUP Statements? Is there a real and substantive role for a faculty Senate that is not obviated by local governance or the good intentions of our friends in the administration, government, student dorms and board of trustees? Should we be content to shape ourselves through assessments constructed by administrators, benchmarking that aggregates administrative and governing board priorities, and student evaluations that seek to maximize student interests in self-advancement at the smallest possible cost? Should we accept the realities of managerial abuse through retaliation and interventions in governance? Should we embrace the corporatist employee model requiring academic quietism and obedience to those who know better in the service of the uniform production of factors in the machinery of economic, social and political life?

By now you can imagine that this is hardly the path I will urge. At the same time I understand the constraints of shared governance: institutions change slowly, faculty institutional leaders change with great frequency, faculty governance leaders receive some but not sufficient institutional support, support that is sometimes undermined by unit administrators, administration and board sometimes presume that faculty interests are inherently interest-conflicted so that they cannot perform governance tasks neutrally, a representative body like the Senate cannot speak as clearly with one voice as can an individual administrator clothed with substantial authority to speak, and outside actors have an increasingly large voice in the operations and outcomes of university governance. But I am also encouraged by the positive—the good faith of many in the central administration and among some unit administrators; the energy and commitment of a new generation of governing board members committed to preserving the ideal of shared governance in a dynamic environment that is in some aspects hostile both to the university and to shared governance.

At Penn State, there are good governance “bones” and a deep culture of respect for shared governance principles within the highest levels of our administrative apparatus. Under the leadership of Rodney Erickson, first as provost and now as President, the central administration has affirmed its fidelity to general principles of shared governance both privately and publicly. The University has undertaken to include faculty in many of its administrative committees. The administration has worked hard to become more transparent and inclusive. The University President has a long tradition of reporting and standing for questions at formal meetings of the University Faculty Senate and has reaffirmed a commitment to more open governance.[44] The introduction of the Faculty Advisory Committee to the President permits more intimate conversation on a regular basis between President, Provost and selected Senate leaders. The board of trustees under the leadership of Karen Peetz has reached out to the Senate and has been undertaking a broad review of its operations.[45] I anticipate a closer working relationship with the board in the coming years. The Senate itself has slowly begun to shed some of its remoteness, encouraging broader and deeper participation among its rank and file, and promoting closer ties to unit faculty governance organizations. This deserves high praise.

Yet, as I suggested, there is still room for improvement. The institutional role of the Senate as faculty representative is sometimes ignored in administrative efforts in which faculty is selected without consultation or connection with the Senate. Administrators will sometimes intervene where retaliation is overt but they can do more to instill in their administrative personnel a commitment to shared governance and cultures that do not tolerate retaliation. This includes a clearer and more enforceable set of protections of faculty in their exercise of shared governance. Transparency can be more robust, moving from mere reporting of events and programs to providing information to enhance engagement. Let me suggest some small steps that the Penn State faculty Senate might undertake in the service of shared governance during the very brief year I will serve as Chair of the University Faculty Senate. These programs can be organized into four broad categories.

The first are programs to enhanceengagement. The University Faculty Senate must shed its increasingly single-minded concentration on issues of the facilitation of administrative mandates. For that purpose the Senate must begin to more consciously participate in dialogue at all levels of university decision-making. Additional avenues of consultation and engagement need to be pursued. The mechanics used for the closure of the Science, Technology and Society program, where consultation was after the fact at the central levels and virtually minimal elsewhere serves as a reminder of the perils of adhering to the forms of engagement while avoiding its real effects. Engagement is not useful when limited to being the first to hear about decisions that have already been taken.

The second are programs to militate against retaliation. Retaliation affects all faculty in a governance role, but most especially it is the principle focus of the problems of engagement by fixed term faculty. But it also goes to the extent to which the university is willing to provide real protection, enforceable against its officers, for faculty exercising their shared governance duties—for example by the adoption of a code of governance rights. It has a cultural element as well—there ought to be as great a focus on cultures of retaliation as there is about the culture of drinking at public universities.[46]Changing cultures of impunity, especially in the form of retaliation and overreaching is a critically important task. That requires some additional sensitivity on the part of the administration and less tolerance for the overreaching exuberance even by administrators that are otherwise meeting other goals and objectives dear to central administrator’s priorities. Programs implementing 360-degree review of administrative personnel would be useful.[47]

The third are programs enhancing transparency. I have suggested that there is no effective governance without thorough and effective transparency. But transparency, both understood as data and assessment, can sometimes be employed as a weapon to sharpen the disadvantages among parties to decision making. Where there are a-symmetrical power relationships—where administration controls the levers of access to information, it does little good to provide a certain enhanced level of information and data to administrative personnel and another, and less enhanced level of access to faculty engaged in governance. In that context, the excuse of privacy or sensitivity is hardy worthy—such data was not private enough to prohibit its use in making a determination, by some,; if you use it you should be prepared to share it.

But transparency means more than merely sharing selected information with groups of people. Transparency means opening proceedings to all stakeholders and engaging stakeholders through consultation; it means accountability to those in whose service one acts. It also means that Senate meetings might cease being well-managed staged affairs that make good theatre, and which follows corporate models, but which also discourages participation. Greater opportunities for comment on proposed action by Senate, board and administration would serve transparency well. But so would an HR 40 style requirement that front line administrators list their annual goals and account for their attainment.[48]

The fourth involves flexing atrophied muscles. A very conservative and conventional colleague of mine here on the Senate was fond of reminding me, as he tried to teach me the ropes of governance at Penn State, that the greatest power of the Senate lay in exposing problems in a clear and systematic way. The Senate is at its strongest in its governance role when it carefully considers an issue. For that purpose the Senate can make greater use of its forensic powers. Some examples of ways in which the forensic power can be more usefully deployed include seeking to assess administrators informally through the application of its own metrics; producing programs discussing cultures of retaliation at the University, and discussing institutional approaches to equity for fixed term faculty and protection against overreaching by administrators.

Conclusion: It is Time to Return to Core Values in Governance.

Almost a hundred years ago the AAUP began to describe the role of the faculty in the administration of the modern university. It adhered to the idea, more ancient still, of the academic as an institutional appointee with a substantial amount of autonomy in her work and a necessary role in the governance of the institution. It championed the integrity of educational institutions grounded in the production of knowledge and its dissemination free from the control of other actors. Faculty do not own or run the university but neither are they owned or run by it. Sadly, over the last century, radical ideologies, disguised as new notions have sought to abandon this basic relationship between the university and its faculty in favor of some flavor of paternalism. It remains to us, faculty, in concert with our like minded brothers and sisters in administration and our governing boards, among students and state officials, that we can reject these radical incursions into the governance life of the university and preserve its role as an authoritative site for the production and sharing of knowledge.

[1] The AAUP is a member driven organization, the purpose of which “is to advance academic freedom and shared governance, to define fundamental professional values and standards for higher education, and to ensure higher education's contribution to the common good.” AAUP, About the AAUP, available http://www.aaup.org/AAUP/about/.

[2] From its web site: “The University Faculty Senate is the representative body of Penn State's faculty with legislative authority on all matters pertaining to the educational interests of the University and all educational matters that concern the faculties of more than one college. In addition, the Senate is recognized by the University as an advisory and consultative body to the President on all matters that may affect the attainment of the University's educational objectives.” Pennsylvania State University, University Faculty Senate, available http://www.senate.psu.edu/.

[3] The idea of shared governance has become both complicated and subject to substantial treatment by scholars and others. For my purpose, I like to start with Gary Olson’s approach:

The phrase shared governance is so hackneyed that it is becoming what some linguists call an "empty" or "floating" signifier, a term so devoid of determinate meaning that it takes on whatever significance a particular speaker gives it at the moment. Once a term arrives at that point, it is essentially useless. . . . "Shared" governance has come to connote two complementary and sometimes overlapping concepts: giving various groups of people a share in key decision-making processes, often through elected representation; and allowing certain groups to exercise primary responsibility for specific areas of decision making.

Gary A. Olson, Exactly What is ‘Shared Governance’?, The Chronicle of Higher Education, July 23, 2009, available http://chronicle.com/article/Exactly-What-Is-Shared/47065/ . See also Michael Shattock, Re-Balancing Modern Concepts of University Governance, 56(3) Higher Education Quarterly 235-244 (2002); Judith Areen, Accreditaiton Reconsidered, 96 Iowa L. Rev. 1471, 1475-77 (2011); .

[4] Consider a recent student critique of assessment metrics at the University of Texas, Matt Daley, The University Assembly Line, The Daily Texan, Aug. 30, 2011, available http://www.dailytexanonline.com/opinion/2011/08/30/university-assembly-line (“This predictable, mechanical style of operation would certainly please a factory’s shareholders. But students are not widgets, and universities of the first class are not factories.”).

[5] See Franklin Silverman, Collegiality and Service for Tenure and Beyond (Westport, CT: Praeger Books, 2004).

[6] American Association of University Professors, 1915 Declaration of Principles on Academic Freedom and Academic Tenure, AAUP Bulletin, Volume I, Part 1 (December 1915): 17–39, reproduced in AAUP Policy (10^th Ed., 2006) App. I, pp. 291-301 (hereafter the “1915 Statement”), available http://www.aaup.org/AAUP/pubsres/policydocs/contents/1915.htm.

[7] American Association of University Professors, 1940 Statement of Principles on Academic Freedom and Tenure, in AAUP Policy (10^th Ed., 2006), pp, 3-11 (hereafter the “1940 Statement”), available http://www.aaup.org/AAUP/pubsres/policydocs/contents/1940statement.htm.

[8] American Association of University Professors, 1966 Statement on Government of Colleges and Universities, in AAUP Policy (10^th Ed., 2006), pp. 135-140, available http://www.aaup.org/AAUP/pubsres/policydocs/contents/governancestatement.htm.

[9] American Association of University Professors, Report: On the Relationship of Faculty Governance to Academic Freedom (June 1994), in AAUP Policy (10^th Ed., 2006), pp. 141-144, available https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&sqi=2&ved=0CDMQFjAB&url=https%3A%2F%2Fportfolio.du.edu%2Fportfolio%2Fgetportfoliofile%3Fuid%3D139295&ei=A1p6T9nZCsjf0QGy29D1Aw&usg=AFQjCNGnUJD7BXYJ7YGTsCQ7e9dOFcA3EA&cad=rja.

[10] 1915 Statement, page 294.

[11] 1915 Statement pg. 294.

[12] Ibid, pages 295-96.

[13] See, e.g., Matthew W. Finkin & Robert C. Post, For The Common Good: Principles Of American Academic Freedom (Yale University Press 2009).

[14] 1966 Statement ¶1.

[15] 1966 Statement ¶ 2.b.

[16] 1966 Statement ¶2.a.

[17] 1966 Statement ¶ 2.c.

[18] 1966 Statement ¶ 5.

[19] Id.

[20] 1966 Statement ¶ 2.a.

[21] 1966 Statement, ¶ 5.

[22] Id.

[23] 1994 Statement quoting in part, American Association of University Professors, 1966 Statement on Professional Ethics, at ¶ 3, available http://www.aaup.org/AAUP/pubsres/policydocs/contents/statementonprofessionalethics.htm?PF=1.

[24] The recent role of the Cornell faculty Senate and its efforts to engage in shared governance in the creation of eCornell provides a nice example. See, Risa L. Lieberwitz, Faculty in the Corporate University: Professional Identity, Law and Collective Action, 16 Cornell J. L. & Pub. Pol’y 263, 306-310 (2007).

[25] Course on Anti-Communism Upheld for Florida Schools, NewYork Times, June 1, 1983 (“Amid cheers, jeers and scattered choruses of the national anthem, the Florida House killed an attempt today to do away with an ''Americanism versus Communism'' course that had been a required part of the state's high school curriculum for more than two decades.”).

[26] See, e.g., Pickering v. Board of Education, 391 U.S. 563 (1968).

[27] See, e.g., Edwards v. California University of Pennsylvania, 156 F.3d 488 (3rd Cir. 1998), cert. denied, 525 U.S. 1143 (1999).

[28] These are touched on in Donna R. Euben, Academic Freedom and Professorial Speech, Presentation to the 25^thAnnual Conference on Law and Higher Education, Stetson University College of Law, Feb. 2004, available http://www.aaup.org/AAUP/programs/legal/topics/prof-speech.htm.

[29] See, e.g., Boring v. Buncombe County Board of Educ., 136 F.3d 364 (4th Cir., 1998) (but contrast the strong dissent, id., Motz, J., dissenting, at 375); but note some willingness to concede a governance space base don the traditions of the university related to academic freedom, e.g., Mailloux v. Kiley, 323 F.Supp. 1387 (D.Mass,1971). d.

[30] Garcetti v. Ceballos, 547 U.S. 410 8(2006) (“Justice Souter suggests today’s decision may have important ramifications for academic freedom, at least as a constitutional value. See post, at 12–13. There is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court’s customary employee-speech jurisprudence. We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching.” Id., at )

[31] See, Michael A. Olivas, Opinion Piece: Garcetti: More Chilling Than the Unabomber, AAUP, Protect the Faculty Voice Program, available http://www.aaup.org/AAUP/programs/protectvoice/opinions/Olivasop.htm. The majoirty opinion suggested: “Government employers, like private employers, need a significant degree of control over their employees’ words and actions; without it, there would be little chance for the efficient provision of public services.” Garcetti, supra, at Section II.

[32] See, e.g., Greene v. Howard University, 412 F.2d 1128 (D.C. Cir. 1969).

[33] This is a point emphasized in Garcetti, supra, Section III.

[34] For example, the Pennsylvania Whistleblower Law (43 P.S. Sec. 1421 to 28) protects employees against retaliation for good faith (understood as reasonable cause) reporting of waste or wrongdoing, but defines wrongdoing narrowly to include only violation of law designed to protect the public interest and not merely technical or minimal in nature. They offer less than perfect protection. See, Scott James Preston, Whistleblowing in INtercollegate Athletics, University Business, March 28, 2012, available http://www.universitybusiness.com/article/whistleblowing-intercollegiate-athletics(discussing Glenn Hedden v. Kean University, Case No. L 002278-11 (N.J. Super. Ct., complaint filed June 13, 2011).

[35] This is of course both well known in the corporate fiduciary duty rules of economic corporations and suggests the importance of power relationships in organizational speech. See, e.g., In re Oracle Corp. Derivative Litigation, 824 A.2d 917 (Del.Ch. 2003)

[36] 1994 Statement at 143.

[37] Id.

[38] See, e.g., Darla J. Twale and Barbara M. de Luca, Faculty Incivility: The Rise of the Academic Bully Culture and What to Do About it (Hoboken, NJ: Jossey-Bass, 2008); Noa Davenport, Ruth D. Schwartz and Gail Pursell Elliott, (Civil Society Pubs. 1999).

[39] For helpful “how to” manuals directed at the academic “boss”, see, e.g., Jeffrey Buller, The Essential Academic Dean (Hoboken, NJ, Jossey-Bass, 2007); C.K. Gunsalus, The College Administrator’s Survival Guide (Cambridge: Harvard University Press, 2006).

[40] “If a faculty votes to cut the size of the entering class or eliminate a program beloved by the alumni, the faculty suffers no consequences (at least not directly), but the department chair or dean certainly does.” Nancy B. Rapoport, Academic Freedom and Academic Responsibility, 13 Green Bag 2d 189 (2010) (reviewing Matthew W. Finkin & Robert C. Post, For the Common Good: Principles of American Academic Freedom (Yale University Press 2009)). Of course, as I suggest above, disciplining administrative personnel may be as noteworthy as disciplining irresponsible faculty organizations.

[41] The AAUP has developed a variety of resources in this area. See AAUP Contingent Faculty available at http://www.aaup.org/AAUP/issues/contingent/.

[42] See Larry Catá Backer, Global Panopticism: Surveillance Lawmaking by Corporations, States, and Other Entities, 15(1) Indiana Journal Of Global Legal Studies 101 (2008).

[43] See, Larry Catá Backer, Ruminations XXXVII: From Regimes of Law to Systems of Assessment, From the Outlaw to Deviant, Law at the End of the Day, Jan 26, 2012., available http://lcbackerblog.blogspot.com/2012/01/ruminations-xxxvii-from-regimes-of-law.html.

[44] Rodney Erickson, Interim Penn State President Rodney Erickson Issues Statement Expressing Pride in Penn State Community, Discusses Way Forward, Fox News Insider, Nov. 14, 20911, available http://foxnewsinsider.com/2011/11/14/full-text-interim-penn-state-president-rodney-erickson-issues-statement-expressing-pride-in-penn-state-community-discusses-way-forward/.

[45] Andrew McGill, For Penn State, Going Private an Option, The Morning Call, March 14, 2012, available http://www.mcall.com/news/breaking/mc-penn-state-trustees-meeting-sandusky-20120314,0,5678669.story; Genaro C. Armas, Penn St. Trustees Seek to Rebuild Communications, Boston.com, April 1, 2012, available http://www.boston.com/news/education/higher/articles/2012/04/01/penn_st_trustees_seek_to_rebuild_communications/.

[46] On the latter, see, e.g., Larry Catá Backer, The University and the Panopticon: Naturalizing "New" Governance Forms for Behavior Control Beyond Law, Law at the End of the Day, Sept. 17, 2010, available http://lcbackerblog.blogspot.com/2010/09/university-and-panopticon-naturalizing.html.

[47] Joann S. Lublin, Transparency Pays Off In 360-Degree Reviews, The Wall Street Journal, Dec. 8, 2011, available http://online.wsj.com/article/SB10001424052970203501304577086592075136080.html.

[48] Penn State Human Resources Policy 40, available http://guru.psu.edu/policies/OHR/hr40.html, “provides the process for an evaluation of the performance of each member of the faculty at least once each year. Each tenured faculty member will be evaluated with an extended review every fifth year after the most recent promotion decision.” Id. Its central element is the self-production of an annual report.