Mr. Trump's Second Term: Brief Reflections on a Successful Campaign by or Around the President Elect

 

Pix credit New York Times

It appears that Mr. Trump will serve a second term in office. Mrs. Harris, the current Vice President will address her supporters, and the nation, later on Wednesday. There will be much by way of analysis, and even more by way of prognostication. There will be plenty of time for both. I offer neither. 

Instead I suggest, in preliminary form, some fo the factors that may have played a part in returning Mr. Trump to office.

1. The demonification of Mr. Trump. Almost from the moment of Mr. Trump's electoral defeat in 2020, and certainly after January 2021, Mr. Trump's enemies and opponents engaged in a vigorous campaign of demonification. The object was to transform Mr. Trump into the antithesis of the patriotic American.  He was, in the language of some an enemy of the Republic, and of the people, or at least those that mattered. That demonification intensified through the end of the campaign with the usual comparisons to the hierarchy of narrative trope figures that are most opposed to the American ideal. The problem was that the campaign appears to have had a positive effect on those inclined to despise Mr. Trump; on everyone else the effect was less pronounced and might well have produced the opposite of its intended effect.

2. The dangers of the juridification of politics.  The enemies of Mr. Trump might have been satisfied with engaging in the sort of demonification that worked so well on Mr. Nixon.  The idea ight have then been that Mr. Trump would have slowly descended back into obscurity, a historical object, reduced to writing irate letters t the editors of local news media and appearing on television and on the conference circuit.  But Mr. Trump's enemies chose a different path.  They began to apply the law as often and as broadly as possible. What to many appeared to be the application of the principle that no one was above the law, the application of that principle over and over and over again, and by people and institutions who could barely hide their antipathy nor their politically tinged objectives, began to produce the sense in some that the law and legal process might have been instrumentalized in ways that might appear to be objectionable., and threatening to a vision of the relationship between law and politics in an idealized version of the US. This tendency was augmented by what appeared to be the uneven application of prosecutorial discretion.

3. The narratives of populist revolution. The enemies of Mr. Trump sough to transform the hooliganism and violence of January 6th into something more profoundly threatening to the Republic.  That was a reasonable strategy. At the same time the risk was that on the one hand it suggested a fragility in the Republic that might bear unfortunate consequences, and it tended to equate the strength of the Republic with its buildings. Yet a Republic is not the monuments it builds to reflect its greater glory. The narrative did have an unintended consequence: it significantly strengthened the narratives of popular democracy exercised through voting, and thus to a heightened sense of the need to vote, and of the greater need to protect the integrity of the franchise.  But, it appears, that narrative was as successfully embraced among Mr. Trump's supporters as it was among those who despised Mr. Trump and everything they insisted he stood for. 

4. Garbage in/Garbage Out. Mr. Trump's enemies committed the same error that produced the shock results of the 2016 election. They were so focused on their ability to extract knowledge from the ata they collected that they failed to see that the environment they produced in which data was to be extracted created substantial incentives to either ignore data sources, or for data sources to lie.  Here one sees the consequences of the 4 year effort to demonize and deploy the judicial power of the State against Mr. Trump.  Many people would have been disinclined (in now appears, again, in retrospect) be be truthful or forthcoming to pollsters or even with friends and employers in an environment in which the consequences of that openness might be quite negative.  On the other hand, Mr. Trump's enemies appeared to be so desperate to have their own views vindicated that they might have, again in retrospect, skewed their data collection and analytics to "tell" them what they wanted to hear. That is always fatal.  And in this case decisively so. It is also a warning to those who seek to rely on data and data based analytics about the dangers of ego or desire in analytics. 

5. The Jewish problem. This one is likely to be debated for decades.  The choice of Mr. Walz (Minnesota) as Mrs. Harris' running mate was not a bad one.  And in the end he might have been a better choice than Mr. Shapiro (Pennsylvania). The decision to make that choice in the context of a debate within the Democratic Party about its approach to the Israel-Hamas War turned both into avatars of the politics around which some supposed the decision revolved.  The costs of that decision will be hard to gauge. I suspect it is a number reater than zero. And it appeared not to have produced the positive effects intended--at least not as great a positive effect as hoped.

6. The Versailles effect.  In an essay of 200 I noted the disastrous consequences of the "Versailles effect"(Forbidden Cities). Elites that wall themselves off (physically or virtually) within structures of their own creation, where they exist in a world far removed from others run the risk that they will be strangers in their own land. In democratic Republics where the masses still count for something--whatever the power of guidance may be among techno-bureaucracies, social and media elites, and academics who believe themselves invited guests in these palaces--these palaces, these forbidden cities may either be ignored or displaced.  That was a great error of the 2016 campaign for the Democrats (the "despicables"); it appears to have repeated itself in the 2024 campaign ("garbage").  One would have thought they might have learned to mask the hierarchies and leadership power. They did not.  On the other hand, the election appears to nudge that elite power back, at least marginally, from the public to the private techno-bureaucracies.

 7. The Issues that weren't. Mr. Trump's enemies overestimated the power of certain key social issues (among them abortion rights), and, more importantly, Mr. Trump's effective counter.  Mr. Trump's wrapping himself in state's rights--the federalism and localism principle--as a counter to the Democratic Party efforts to paint him as an anti-abortion zealot at the federal level did not get far off the ground.  More interesting was the failure of the Project 2025 to capture the imagination. In the end, that was effectively an elite issue (see the Versailles effect above) and it proved difficult to use it effectively in the campaign--sort of like Party Platforms, the half life of which is short indeed.

8. Borders matter now. Mr. Trump's opponents underestimated the power of the border issue for the election. And they were singularly unable to detach Mrs. Harris from what was effectively portrayed as the Biden administration failures with respect to the border. That issue did not cut in ways that were anticipated; especially among voters from the Latino community. Related to that was the remarkable inability of the Democratic Party to retain the level of support among minority communities they thought they had.  A large part of the problem was the product of success.  The successful (there is still a lot of work to be done certainly) of minority communities into the larger economic and social mainstream at least at the margins also changed the basket of issue sof importance to them.  Minority communities of small and medium sized firms, of families seeking to educate their kids, etc, have the same basket of concerns as other middle class people though in contextually different ways.  That was not exploited by Mr. Trump's opponents.

9. The enigmatic Mrs. Harris. To some extent Mrs. Harris began the campaign already at a disadvantage.  The way she was selected as the Democratic Party candidate and relations with the current office holder created negatives that were never fully overcome.  Mrs. Harris came late to the issues and her careful relationship with the press organs made it easier to paint her as remote, ineffective, and unprepared. Certainly one could argue that these tropes were more easily deployed given gender prejudices. But that would not have been unknown to Democratic Party leaders and their retinues of consultants. On top of everything else, what proved to be an ineffective campaign and an inability to show their candidate in the best possible light proved significant. 

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Maximilian Robespierre, Rapport sur les principes de morale politique dans l'administration intérieure de la République [On the Moral and Political Principles of Domestic Policy]--Text and Reflections on Modernity

 

La démocratie périt par deux excès, l'aristocratie de ceux qui gouvernent, ou le mépris du peuple pour les autorités qu'il a lui-même établies, mépris qui fait que chaque coterie, que chaque individu attire à lui la puissance publique, et ramène le peuple, par l'excès du désordre, à l'anéantissement, ou au pouvoir d'un seul. La double tâche des modérés et des faux révolutionnaires est de nous ballotter perpétuellement entre ces deux écueils.* * * On dirait que les deux génies contraires que Ton a représentés se disputant l'empire de la nature combattent dans cette grande époque de l'histoire humaine pour fixer sans retour les destinées du monde, et que la France est le théâtre de cette lutte redoutable. Au dehors, tous les tyrans vous cernent; au dedans, tous les amis de la tyrannie conspirent: ils conspirent jusqu'à ce que l'espérance ait été ravie au crime. Il faut étouffer les ennemis intérieurs et extérieurs de la République, ou périr avec elle; or, dans cette situation, la première maxime de votre politique doit être qu'on conduit le peuple par la raison, et les ennemis du peuple par la terreur. (Rapport sur les principes de morale politique dans l'administration intérieure de la République [On the Moral and Political Principles of Domestic Policy])

Democracy perishes by two kinds of excess: the aristocracy of those who govern or the people's scorn for the authorities whom the people itself has established, scorn which makes each clique, each individual take over the public power and lead the people, through excessive disorders, to its destruction or to the power of one man. The double effort of the moderates and the false revolutionaries is to drive us back and forth perpetually between these two perils. * * * The two opposing spirits that have been represented in a struggle to rule nature might be said to be fighting in this great period of human history to fix irrevocably the world's destinies, and France is the scene of this fearful combat. Without, all the tyrants encircle you; within, all tyranny's friends conspire; they will conspire until hope is wrested from crime. We must smother the internal and external enemies of the Republic or perish with it; now in this situation, the first maxim of your policy ought to be to lead the people by reason and the people's enemies by terror. (On the Moral and Political Principles of Domestic Policy [Rapport sur les principes de morale politique dans l'administration intérieure de la République])

Pix Credit Library of Congress

 The perception and defense of popular democracy has always been a fragile enterprise, one caught up by both the glories and traps of its own contradictions. That applies with equal force, of course, to all contemporary variation on the democratic consciousness.  That insight tends to be lost in the enthusiasm of the cohorts of enthusiasts who, in every age, experience the contradictions without perceiving their own role as phenomenological objects in the dialectics of democratic intensity suited ot the times and place in which it is experienced. Among its greatest strengths and contradiction are the proclivities of democratic enthusiasts to insist on the essential role of 'othering' in the constitution of a system the great virtue of which is its impulse toward universality. That its power has remained substantially unimpeded at least from the start of the contemporary age of democratic consciousness in the 1770s, speaks to its power. That its approach is indifferent toward the political-economic model within which it is deployed (liberal-democratic, Marxist-Leninist, Theocratic, ethno-tribalist, etc.) speaks to its character as a fundamental premise of the enterprise.

It is in this area, perhaps, that Maximilian Robespierre still has much to teach--despite his own obliviousness to the lessons he was crafting in his speeches leading up to his execution in 1794 (Rapport sur les principes de morale politique qui doivent guider la Convention nationale dans l'administration intérieure de la République, fait au nom du Comité de salut public).  Among the more relevant now may be his remarkable, and to modern ears quite contemporary, speech on the moral politics that ought to guide manifestations of public power in the management of domestic policy--and, of course, the masses. The speech is extraordinarily rich, and modern, and worth contemplating for its relevance and lessons that touch on, at the least, the the discursive featsts which the masses have been invited to eat. The speech serves as reminder of the power, perhaps the inevitability, of the trajectories of the experience of a certain 'othering' within the democratic enterprise that carries with it a remarkably consistent set of consequences. And the Jacobin conundrum--hierarchy, leadership,  and control within idealized perceptions of equality remain at the center, the justification for which remains a central element of democracies whether in the form of "brain trust" techno-bureaucratic democracy, traditional populism (irrespective of its ideological tilts), or any of the forms of vanguardism--either progressive  (that is progressing toward some eventual ideal state) or otherwise--remains at the core element of the current general contradiction for the times.

Is it possible to move beyond the Jacobin conundrum--played and replayed in a variety of forms since the 1790's? Does one even need the democratic form to be subject to the Jacobin conundrum?   The speech, and a nice English translation follow below.  May be accessed here (original French), and here (English).

International Scientific Conference ‘Legal Imaginaries of Crisis and Fear’ 9 November 2024, Sofia Bulgaria

 

I am delighted to be part of this conference and with thanks to the remarkable Martin Belov for bringing us all together. The Conference, ‘Legal Imaginaries of Crisis and Fear’, will he held from 8:30 - 18:30 in the New Conference Hall, Main Building (Rectorate) of the University of Sofia ‘St. Kliment Ohridski’.

The conference ‘Legal Imaginaries of Crisis and Fear’ aims at exploring the legally relevant feelings, emotions, and imaginaries of fear. It will present the outcomes of a multifaceted scientific analysis of the constitutional and international law dimensions of crisis and fear. Dark feelings and the (un)constitutional politics of fear are at the core of the research interest of a group of leading and internationally recognized scholars that have been gathered by prof. Dr. Martin Belov of Sofia University in a network researching the legal imaginaries of fear.

The conference shall start with an outline of fear constitutionalism. It will present the epistemological, semiotic, semantic, and heuristic approaches to dark emotions in constitutions and constitutional law. Special attention shall be devoted to affectual constitutionalism and the collective emotional self-identification of the constitutionally framed socio-political communities and the various groups that are framed by them. Dark constitutional memories, memory politics of fear, and the emotions of constitutional transition and social transformation will be assessed marking the transtemporal research of constitutional darkness and fear politics. Special part of the conference shall be devoted to the international and transnational imaginaries of crisis and fear. The conference shall conclude with heuristic analysis of the images of fear.

This event is organised by the European Values and Social Challenges (EUVaSC) research group under the SUMMIT project of Sofia University St Kliment Ohridski. The project SUMMIT - Sofia University Marking Momentum for Innovation and Technological Transfer is financed by the European Union-NextGenerationEU, through the National Recovery and Resilience Plan of the Republic of Bulgaria, project No BG-RRP-2.004-0008.

The Programme follows below. More information ay be accessed through the QR Code:

Looking forward to presenting my paper there as well.

The Contradictions of Employment in New Era Socialist Modernization: 习近平 促进高质量充分就业 [Xi Jinping, Promoting high-quality full employment]

 

 IN its latest issue (2024/21), Qiushi 《求是》distributed  the text of a speech given by General Secretary Xi Jinping speech at the 14th collective study session of the 20th Central Political Bureau on May 27, 2024. The speech is entitled 习近平  促进高质量充分就业 [Xi Jinping, Promoting high-quality full employment].

The distribution of this speech is important for several reasons.  The first is to foreground the importance to which the State attaches to employment--or rather to the challenge of unemployment.  The second is to align employment policy with the core principles of socialist modernization and high quality productivity as developed in the 3rd Plenum of the 20th CPC Central Committee (here, here). And the third is to distill the general structure of the application of New Era Socialist modernization to the challenge of employment. These were reduced to five points of emphasis:

1. First, always adhere to employment priority. We must unswervingly implement the new development concept, more consciously take high-quality and full employment as the priority goal of economic and social development, make the process of high-quality development a process of improving the quality and expanding the capacity of employment, and enhance the employment driving force of development. [第一，始终坚持就业优先。要坚定不移贯彻新发展理念，更加自觉地把高质量充分就业作为经济社会发展的优先目标，使高质量发展的过程成为就业提质扩容的过程，提高发展的就业带动力。] This serves as the framework for applying the general principles of high quality development of the 3rd Plenum. But it also suggests the ways in which the premises of new quality development will be contextualized in the employment context. It also suggests the potentially important foregrounded alignment of employment with the general contradiction of the new era--that is employment as an element of just distribution of the benefits (and responsibilities) of socialist modernization.

2. Second, focus on solving structural employment contradictions. The mismatch between supply and demand of human resources is the main contradiction facing my country's current employment field. [第二，着力解决结构性就业矛盾。人力资源供需不匹配，是当前我国就业领域面临的主要矛盾。] Among the most interesting aspects of this is the effort to overcome the hierarchy of labor value. "We should create a favorable public opinion atmosphere and inclusive social environment that is conducive to employment and entrepreneurship, such as "no profession is noble or humble, and labor is respected", "there are top talents in all 360 professions", and "grassroots employment can also be outstanding"," [营造“职业无贵贱，劳动受尊重”、“三百六十行，行行出状元”、“基层就业，同样出彩”等有利于就业创业的良好舆论氛围和包容社会环境，]

3. Third, improve the employment support policy for key groups. [第三，完善重点群体就业支持政策。]. These include students, migrant workers (especially in encouraging relocation back to place of origin), groups with employment difficulties (the elderly, disabled and the long term unemployed), and retired soldiers and women. Again, the focus appears to be on employment at the margins and in contexts where both the state and private sector wil have to expend a more substantial effort to achieve goals.  The critical questions here, though is the extent to which provincial and local officials will require nudging from the center.  In this context, certainly, the use of data driven assessment measures might be usefully applied--assuming the administrative apparatus takes the tie to develop and correctly deploy them.

4. Fourth, deepen the reform of the employment system and mechanism. We must give full play to the decisive role of the market in the allocation of human resources, better play the role of the government, and focus on solving the problems that restrict the improvement of employment quality, the expansion of employment capacity, and the optimization of employment structure. [第四，深化就业体制机制改革。要充分发挥市场在人力资源配置中的决定性作用，更好发挥政府作用，着力解决制约提升就业质量、扩大就业容量、优化就业结构的卡点堵点问题。]. Here the complementary dual pathway system of public and private enterprises coordinated by the CPC, will play a leading role. But that differentiation may also become more visible. See for example Law of the Law of the People's Republic of China on Promoting Private Economy (Draft for Comments) [中华人民共和国民营经济促进法 （草案征求意见稿）] Text and Source Materials.

5. Fifth, strengthen the protection of workers' rights and interests. It is necessary to improve labor laws and regulations, standardize labor standards for new employment forms, improve the social security system, and safeguard the legitimate rights and interests of workers in labor remuneration, rest and vacation, labor safety, skills training, social insurance and welfare. [第五，加强劳动者权益保障。要健全劳动法律法规，规范新就业形态劳动基准，完善社会保障体系，维护劳动者在劳动报酬、休息休假、劳动安全、技能培训、社会保险和福利等方面的合法权益]. This includes a number of projects, from flexible employment and occupational injurt policies to stricter supervision of labor and labor rights.

 The full text of the remarks follow below in the original Chinese and in a crude English  translation.

Risky Business--A New Batch of Exclusions From the Norwegian Pension Fund Global's Investment Universe and One Discontinuance of Observation: Suppressed Economic Sectors, Human Rights, Corruption, Environmental Harm

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The Norwegian Pension Fund Global has recently announced a number of exclusions on the basis of a variety of bases. Three touch on investment or operation of investment-suppressed fields (tobacco and nuclear weapons); one was based on risk of contributing to human rights abuse; one was based on contributing to or responsibility for gross corruption; and the last for contributing to severe environmental damage. 

The three forbidden economic sector decisions include the following. It bears recalling that the Fund applies a broad reading to its rule respecting nuclear weapons ("The assessment’s starting point is that companies which produce nuclear weapons or key components thereof shall be excluded from the GPFG" (General Dynamics, text, below).

Turning Point Brands Inc 

Turning Point Brands Inc is listed on the New York Stock Exchange and manufactures and distributes tobacco products, among other things. The company's annual report for 2022 states that it produces snuff tobacco in its own operations. The company distributes a number of other products based on tobacco and cannabis, but these are produced by others. The Council has approached the company and invited it to disclose further details. The company has not replied to the Council’s query

Company is excluded from the Fund’s investment universe due to its production of tobacco products.
Please find the Council’s recommendation here; text here.


Larsen & Toubro Ltd  

 Since the 1990s, India has undertaken the development of its own SSBN fleet for use as launch platforms for nuclear weapons. The country’s first domestically produced SSBN, INS Arihant, was launched in 2016. In 2022, another SSBN, the INS Arighat, was launched. A further two Arihant-class submarines are presumed to be under construction. . . Part of L&T’s role is to produce the boats’ hulls, which are fabricated and equipped at L&T’s shipyards. The company has mentioned this in several of its annual reports

Company is excluded from investment by the Fund Global (GPFG) due to its production of key components of nuclear weapons. Please find the Council’s recommendation here: text here.

 General Dynamics Corp 

 It is clear that GD is the main contractor for the construction of Columbia-class SSBNs and that these boats are built and equipped at the company’s shipyards. Since the construction of the Columbia-class fleet will continue for many years to come, it must be presumed that the company will engage in this activity for the foreseeable future. It is further evident that GD supplies components for the construction of the UK’s Dreadnought-class SSBNs.

Company is excluded from investment by the Fund Global (GPFG) due to its production of key components of nuclear weapons. Please find the Council’s recommendation here; text here.

Decisions based on risk of serious human rights abuses, risk of gross corruption, and risk of severe environmental damage include the following decisions.

Prosegur Cia de Seguridad SA 

Prosegur is a Spanish company which, among other things, provides security services in several Latin American countries. The company’s subsidiary in Brazil has been involved in severe acts of violence and abuse of tribal people’s rights, providing security services for two clients. Since the company continues to perform the assignments where the abuse took place, and also operates in numerous countries in which there are land disputes and serious antagonism between commercial companies and local populations, the Council presumes that new situations may arise involving a considerable risk of human rights abuses. The Council on Ethics finds that Prosegur has not substantiated that its systems for identifying and managing such risks are adequate, and deems the risk that Prosegur will contribute to serious human rights abuses in future to be unacceptable.

Company is excluded from investment by the Fund due to an unacceptable risk that the company is contributing to serious human rights abuses. Please find the Council’s recommendation here; text here. The most interesting aspect of this decision is the continued refinement of the risk analysis of decision making. Even more interesting is the presumption of an increasingly tight alignment between the administrative structures and operational policies and informal determinations of public authorities and expectations of seamless compliance by the administrative apparatus of private enterprises around which their operations are to be organized. 

The Council notes that Prosegur has established governing instruments and reporting systems that are intended to ensure respect for human rights. Since the company does not perceive recommendations from the prosecuting authorities as alerts of human rights abuses, the Council considers that these systems are of limited significance. When the company sets such a high threshold for addressing the risk of human rights abuses, it is difficult to both identify risks and establish adequate initiatives to mitigate them. (text here.)

Neither bad nor good, but further indication of the trajectories of alignment of public and private techno-bureaucracies operating under conditions of compliance driven by public policy.

China State Construction Engineering Corp Ltd (CSCEC) 

CSCEC’s primary business activities include the construction of all types of public buildings, as well as infrastructure such as railway lines, motorways, bridges, ports, etc. The Council’s inquiries have shown that CSCEC may be linked to allegations or suspicions of corruption in a number of countries in the period 2004–2021. CSCEC operates in a business sector and in many countries in which the risk of corruption is high. Moreover, China’s enforcement of corruption abroad has been ranked in the lowest category by Transparency International. The Council has therefore contacted CSCEC and asked it a number of questions concerning the company’s measures to prevent, detect and react to corruption, but the company has failed to reply to the Council’s queries. On this basis, and in light of the cases described, the Council considers that the risk of gross corruption linked to CSCEC’s operations is unacceptable. (here)

Company is excluded from investment by the Fund due to an unacceptable risk that the company is contributing to or is itself responsible for gross corruption. Please find the Council’s recommendation here; text here. The case is interesting both for its reminder that failure to reply to Fund inquiries can be read quite negatively and for the presumptions built on the relationship between risk and compliance measures. The real question centers around sanction (exclusion versus observation), the jurisprudence of which remains still uncomfortably close to discretionary determinaitons with no real check. The Ethics Council's summary of its anti-corruption structural and compliance expectations follow below. 

Tianjin Pharmaceutical Da Re Tang Group Corp Ltd 

Tianjin Pharmaceutical Da Re Tang Group Corp Ltd is a Chinese pharmaceutical company that manufactures and markets Traditional Chinese Medicine (TCM). The company’s products contain body parts from globally threatened species such as leopard bones, pangolin scales and musk from musk deer. The use of threatened animal species in TCM products may contribute to illegal wildlife trade and increases the risk to of these species becoming extinct. There is no information concerning the quantity of body parts of threatened species that the company uses, where the animal parts originate from, what stockpiles exist and how these are replenished. When such data is not made available, the Council on Ethics concludes that the company contributes to severe environmental damage. The company has not disclosed any specific plans to replace the ingredients based on threatened species with other ingredients. Company is excluded from investment by the Fund due to an unacceptable risk of the company contributes to severe environmental damage.

Please find the Council’s recommendation here; text here. This case is another in a growing list of cases that suggest that the Fund has a special interest in the environmental consequences of Chinese traditional medicine procurement.

In addition, following a recommendation from the Council on Ethics, Norges Bank announced its decision to discontinue the observation of the company Supermax Corp Bhd.

Supermax is a Malaysian company that produces rubber and latex gloves. . . In February 2022, the Council on Ethics recommended that Supermax be excluded from the Norwegian Government Pension Fund Global (GPFG) due to an unacceptable risk that the company was contributing to human rights abuses. The Council’s recommendation was based on reports of extremely poor living and working conditions for migrant workers at the company’s production facilities in Malaysia. In June the same year, Norges Bank decided to place Supermax under observation. During the observation period, Supermax reported that it has implemented measures to improve conditions for migrant workers. . . In September 2023, furthermore, the US authorities lifted import restrictions on Supermax’s products because the conditions that had led to the company being blacklisted due to the risk of forced labour had been rectified. This could indicate that conditions for workers at Supermax’s production facilities have improved, and that the risk of the company contributing to serious or systematic human rights abuses no longer unacceptable.

Please find the Council’s recommendation here; text here. Here, as in earlier cases, the Fund appears willing to rely determinations by the state apparatus of other public bodies on which to base its assessment. The regularization of this impulse remains to be developed in a useful way.

Announcing Online Publication Volume 37 Issue 7 of the International Journal for the Semiotics of Law/ Revue internationale de Sémiotique juridique

 

I am delighted to share the announcement of the online publication of Volume 37 Issue 7 of the International Journal for the Semiotics of Law/ Revue internationale de Sémiotique juridique. This issue includes 22 quite interesting essays, many of them open access, on a variety of topics. Among these are Piarangelo Blandino's consideration of possibilities of uniform language among what Niklas Luhmann might have been tempted to describe as the management of the communicative aspects of structural coupling among critically interlinked sub-systems of human collective organization (open access); Jorge Nuñez examination of the concept and conception of sovereignty; Aagnieszka Bielska-Brodziak, Marlena Drapalska-Grochowicz, and Marek Suska's examination of legislative hermeneutics in the service of specific objectives (open access); Ali Haif Abbas's consideration of a critical cognitive discourse analysis of the Rohingya crisis; and Piotr Pieprzyca on the possibilities of an image jurilinguistique des animaux dans les codes civils français et polonais.

 The Index with links to the articles follows below.

On the Ritualization of Narrative and Discursive Responses to Sanctions Regimes: Ritual Text and the UN GA Draft Resolution a/79/l.6 (“Necessity of ending the economic, commercial and financial blockade imposed by the United States of America against Cuba") Along With Brief Reflections

 

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The blockade against Cuba is an economic, financial and commercial warfare and qualifies as a crime of genocide. It is a flagrant, massive and systematic violation of the human rights of our people. It is the most encompassing, comprehensive, and longest-standing system of unilateral coercive measures ever applied against any country. (Bruno Eduardo Rodríguez Parrilla, a member of the Politburo of the Communist Party of Cuba, and Foreign Minister of Cuba since 2009, Address to the United Nations at the presentation of draft Resolution a/79/l.6 entitled “Necessity of ending the economic, commercial and financial blockade imposed by the United States of America against Cuba" (30 October 2024).

U.S. goods exports to Cuba in 2022 were $372 million, up 13.6 percent ($45 million) from 2021 but down 20 percent from 2012. U.S. goods imports from Cuba totaled $6 million in 2022, up 92.9 percent ($3 million) from 2021, and up 5,811 percent from 2012. The U.S. goods trade surplus with Cuba was $366 million in 2022, a 12.9 percent increase ($42 million) over 2021. (Office of the US Trade Representative, Cuba; as of August 2024 trade for the current year was reported by the US Census Bureau at $383.9; in 2023, the EU exported €1,653 million to Cuba (here))

Cuba does not publish figures on remittances and is not a member of international financial institutions such as the World Bank, International Monetary Fund, and Inter-American Development Bank, which provide credible statistics. There are estimates produced by research groups, but these vary significantly. For example, Manuel Orozco of the Inter-American Dialogue reported $1.53 billion in remittances in 2019, while the Havana Consulting Group reported $3.72 billion. Despite these disparities, remittances constitute Cuba’s third-largest source of dollar reserve after the service and tourism industries. (U.S. Policy on Remittances to Cuba: What Are Some Viable Options?)

Except for its political and discursive effects, which continue to be significant, one might be excused for coming to the conclusion that an extensive set of sanctions against the government of a state imposed for the purpose of inducing a change in that State's governance system in operation for about sixty (60) years without producing the desired political outcome ought to be an object of reconsideration by the sanctioning state, even if its fundamental goal of regime change remains intact. And yet inertia in politics produces value, especially where realities on the ground may provide proof of inconvenience to the sanctioned State but where even the sanctioning state remains a critically important trade partner for the sanctioned state.  

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In those circumstances one might also be excused for thinking that such a system of sanctions--and sanctions opposition--must be generating value to all parties sufficient to keep the current system in place.  And one might not be wrong, especially where the phenomenology of sanctions  suggests a state of things quite at variance with the discursive and ideological projects that sanctions represent. It appears, then, that the multiple performances now ritualized around sanctions serves enough of a positive purpose for all significant (and opportunistically motivated) States to warrant the continuation of those performances  strictly adhering to the calendar of the celebration of such rituals for the community of states.  And those rituals are even more usefully deployed when one or the other of the principal players in the ritual are able to invoke new imagery, even if in the process t may cheapen or corrupt the thing/idea/referent thus instrumentalized as a ritual prop (or fetish) (eg here).

It is with that in mind that one might approach the annual celebration of sanctions discourse built around the annual performance of condemnation of the now 60 something year long architecture of sanctions imposed by the United States against the government of the Republic of Cuba with the aim of enhancing the possibilities of a regime change more to the liking of the United States.  

Pix credit here (The Eagle (2011) Universal)

The UN General Assembly on Wednesday once again urged the United States to end its economic, commercial, and financial embargo on Cuba, renewing a demand it has made annually since 1992. The resolution, titled “Necessity of ending the economic, commercial and financial embargo imposed by the United States of America against Cuba,” passed with 187 votes in favor, two against (Israel and the US), and one abstention (Moldova). Though non-binding, the result drew attention the relative isolation of the US regarding the embargo, which was first imposed in 1960 after former leader Fidel Castro came to power following the revolution. The resolution reaffirmed, among other principles, the sovereign equality of States, non-intervention and non-interference in their internal affairs and freedom of international trade and navigation. (General Assembly renews long-standing call for end to US embargo against Cuba)

Fair enough; this is a sin for which repentance would be required of virtually every State in the community of States. And, indeed, the General Assembly included its usual ritualized encouragement of States to control themselves in these matters--without naming names (for irony see European Parliament resolution of 20 May 2021 on Chinese countersanctions on EU entities and MEPs and MPs). States are right to view sanctions as damaging--that is their intent; their damage is meant to produce a nudging effect by making negatively affecting the people of a targeted state. Cuba is neither the first nor last state to loath sanctions directed against them; and the United States is neither the first nor last state that uses sanctions to seek regime change. Indeed, even as the ritual of the Cuba sanctions vote was proceeding apace, the movement toward sanctioning Israel--to achieve a different sort of regime change and especially useful in encouraging more generalized sanctioning of its people directly, appears to be gathering momentum among the same lot of States (eg here).  Not that these other engagements with sanctions regimes ought to be viewed one way or another--but the irony cannot be lost on anyone (who will then spend time in justification by differentiation and the sui generis attack--another form of ritual well practiced within the community of states and its instruments.

None of this is particularly interesting in and of itself. Most states view this ritual, as it applies to Cuba at least, as both painless and (from their perspective seeking advantage within competing imperialist camps) cost-less. And indeed, one of the most delightful aspects of the ritual was its use by the European Union to push its own regime change agenda, grounded on its 2016 EU-Cuba Political Dialogue and Cooperation Agreement (analysis here, and here).

Nonetheless three points of ritual performance evolution that may be worth consideration.

Pix credit here (The Eagle (2011) Universal)

The first is the general absence of a full throated defense of its policies by the United States--even if it invokes (or precisely because it is used to invoke) the core and fundamental principles driving the policy and the failures of the Cuban State to organize itself in a way that--should the sanctions provisions be revoked immediately, would leave the internal embargoes within Cuba still intact. That is, that one invests in the State organs of Cuba through which it is possible, guided by the State and in partnership with it, to participate as a part of the State directed economic activity (eg here). These missed opportunities significantly reduce the value of the US sanctions to the US in its necessarily important objective of seeking to drive the narrative of sanctions, and suggest that even the sanctioning state does not value its project enough to be able to leverage it discursively to advance its more important normative objectives and discursive goals (eg here, and here).

The second is built into the actualities of sanctions as against its discursive realities.  In the case of US-Cuba relations it is indeed both a moving target and quite messy.  While the ritual focuses on the official sector and state to state relations--which the discourse effectively manages to convince many is the only or principal element on the basis of things perceptions about sanctions are to be determined, the realities of the Cuban unofficial markets and its officially sanctioned non-state sector, combined with the actualities of trade from the bottom up between the Cuban diaspora and its counterparts in the Cuban Republic make for the sort of messiness that discursive clarity abhors. It suggests, indeed, the the object of ritual are the ritual objects themselves. In this case both the management of inter-community relations among the players in the UN's Estates General, and the control, through ritualized repetitive performance, of the language of discourse and its presumptions of perception. 

The third, and perhaps most interesting, is the way in which these rituals tend to absorb the rhetoric of whatever seems to have captured the imaginations of the ritual-performance community.  This year the discursive term is genocide. The sanctions condemnation ritual this year included the transposition of genocide from its current framework in religious and ethno-imperialist wars to that of the economic relations among states that loath each other for all sorts of good, bad, rational, irrational and structural reasons (or reasonable facsimiles thereof).  Adding genocide to the rituals of sanctions affects not just the perception of sanctions regimes, but also that of genocide. That ritualization of the invocation of genocide affects then not merely its discursive power, but at some level, and in some form, the application of its ritualized meaning tropes into action. One already sees that in the work of international courts, whose administrato-jurists perform within the theaters of their own ritual performances.  Its seeping into this context will likely have some unexpected impact.  But that is for the future.

The Address of the Cuban Foreign Minister follows below.  The US response also follows. It is similar to those what have been made since the state of the Biden Administration. The EU response supporting the end to sanctions and the adoption by the US of its own approach also follows.

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13th UN Forum on Business and Human Rights--Registraiton Open for Those Able to Attend

REGISTER HERE  For those interested a great event.  Unfortunately it conflicts with the US Thanksgiving holiday I will be unable to attend.

On the Semiotics of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) as Object, Signifier, Lebenswelt, and Facade

 

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Israel's parliament has voted to pass legislation banning the UN's Palestinian refugee agency (Unrwa) from operating within Israel and occupied East Jerusalem, accusing the organisation of colluding with Hamas in Gaza. Contact between Unrwa employees and Israeli officials will be banned within three months, severely limiting the agency's ability to operate in Gaza and the Israeli-occupied West Bank. Co-operation with the Israeli military - which controls all crossings into Gaza - is essential for UNWRA to transfer aid into the territory. It is the main UN organisation working on the ground there. Several countries, including the US and the UK, have expressed serious concern about the move. (BBC here).

 In a number of respects, the current war(s) in Israel-Gaza, and around its "Jewish question" can be understood as a war of and through facades--that is of building behind the outward forms of the sacred (civilians, hospitals, spaces where children are brought together, as well as multilateral institutions, the structures of international jurisprudence) the institutions through which war (in all of its forms) can be effectively waged. This instrumentalization is made more effective by leveraging the narratives and presumptions built around and signification of the facade-objects behind which the re-signification of the object can be augmented. That signification shield of the facade produces a profound effect within the communities committed to the signification (whatever the realities of the facade) and by cultivating a conflation of facade-object and its signification. This, of course, is not unique to the Israel-Palestine conflict. It is instead that the exposure here is unusual; and even more unusual the push back. In this sense narrative shielding serves as useful a purpose as human shielding, and one that is much less difficult to cultivate and use proactively. 

 Whatever one thinks of the object-facade, whatever one thinks of the underlying values at play, however one has determined any sort of "end game" toward which resources of all kinds ought to be deployed, the semiotic power of facades--especially signified facades, is coming to play a quite prominent role in warfare.  It is not just innovation in the technologies of war--within and outside of physical combat--that has been accelerated by regional conflicts of this kind which has, by the collective decisions of a host of other actors and institutions (not the least of which are religious), but also the instrumentalization of narrative and the management of orthodoxies that can be applied in aid of combat. That innovation is not just positive (for example the use by non-combatants like South Africa and Nicaragua of jurisprudential instruments, though that is an ancient practice), but also the defensive use of institutions and the presumptions, goals, and states of being that they represent that can be effectively deployed.

It is with this in mind that one can understand the actions and reactions of all parties around the status and actual purpose of the UNRWA (United Nations Relief and Works Agency for Palestine Refugees in the Near East) and its instrumenatlizations (as relief agency, as the cover for the activities of Hamas and Hezbollah, as the means through which the UN can project its own political objectives in the conflict, as the representation, fulfillment and personification of human rights and humanitarian principles of etc.). For some there is a necessary conflation on the ground between that institution and the delivery of humanitarian services for the population trapped in an active combat zone (here).  And yet that is precisely the assumption that has been challenged; if indeed the institution has become something other than what its narrative suggests it is, then its object becomes "other than" as well and either the institution will have to be reformed or replaced (here; "Israel is reportedly considering taking over aid distribution itself or subcontracting it, but it has yet to put forth a concrete plan."). 

The UNRWA techno-bureaucratic leadership core of course have sought to defend the institution, not by refuting the allegation but by suggesting that those who raise it are themselves seeking to destroy the narrative signification within which the agency acquires its power; insisting on a distinction between individuals in the institution and the essence of the institution itself (Opinion article by Philippe Lazzarini, UNRWA Commissioner-General "But we must distinguish the behavior of individuals from the agency’s mandate to serve Palestinian refugees. It is unjust and dishonest to attack UNRWA’s mission on the basis of these allegations.").  This is a position UNRWA has taken from the first, a perception premise that indeed might also be subject to interrogation, and one that would  have been remarkable had it not been put forward. This discursive response is both classical and powerful--but only to the extent that it may be believed in the sense that it is free from doubt.  And doubt may well be planted when the agency appears to be used either as an element of international political objects that cannot be directly applied or where it has become the instrument of another--effectively. 

More interesting still may be the effects of perception on the engagement with evidence.  From the perspective of semiotics it is possible to understand that what one perceives is in essence a consequence of how one perceives; what one believes is a critical element in the identification and evaluation of the significance of what can be signified, and thus signified interpreted. It is not merely that one can believe only what one wants to believe, it is that the rationalizations of perception and the critical importance of perception premises make it impossible to see things except in ways that fulfill and reinforce the core perception premises through which the world is understood and therefore must be made to operate (see, eg here, here, here and here).  Different perception universes produce different perception of objects, different approaches to their signification, and quite different interpretations of their meaning. What one fights over, then, is not the facts but the meaning universe those facts are meant to reinforce and protect. Unexamined, this produces the nearly perfect form of instrument essential in conflict, and its strategic deployment--in itself or as facade, then becomes a powerful means of advancing conflict based objectives.

It follows that, in his own way, though, Mr. Lazzarini is correct when he argues that "We must meaningfully defend U.N. institutions and the values they represent before the symbolic shredding of the charter establishing the United Nations. This can only be achieved through principled action by the nations of the world and a commitment by all to peace and justice."  (Opinion article by Philippe Lazzarini, UNRWA Commissioner-General ). But what exactly is being defended--the idea of the UNRWA or its facade, or what lies behind? The difficulty here is that one must now, it seems, confront head on the issue of the facade and its signification. It may no longer be enough merely to assert the proposition. The issue of the UNRWA (in this case but with broad applicability to much of the work of international agencies in conflict areas), then itself serves to contain two broad if related perception fields. The first goes to the preservation of the perception-premises on which a global order is rationalized. That depends in large part on the integrity of its institutions. From a semiotics perspective to attack the integrity of the institution is to attack the premises on which it is based and therefore the entirety of the multilateral order. On the other is a more subtle conversation about mixed use institutions--in this case the possibility that  indeed in some respects UNRWA was an incarnation of its signification, but perhaps in others it incarnated a quite distinct signification, one the protection of which required a cultivation of  a grand vision in order to obscure a perception rationalizing variation operating in and through its signified cover. 

 Noam Chomsky was getting to the heart of the matter in his  book, What Kind of Creatures Are We? (Columbia University Press, 2018):

That much was already clear to Aristotle. He concluded that we can 'define a house as stones, bricks and timbers,' in terms of material constitution, but also as 'a receptacle to shelter chattels and living beings,' in terms of function and design; and we should combine  both parts of the definition, integrating matter and form, since the 'essence of a house' involves the 'purpose and end' of the material constitution. Hence a house is not a mind-independent object. That becomes still clearer when we investigate further and discover that the concept house has much more intricate properties. . . Inquiry reveals that even the simplest expressions have intricate meanings. (Ibid., p, 44).

UNRWA is in this sense an aspect of Aristotle's 'house' a word concept that both embraces both matter and form.  But then again, in a sense, so is Gaza--a territory, an encampment, and a facade within, around and beneath which exists another reality.  That objective signification becomes more complicated when both become multiple but each is essential to some but not all of an interpretive community, the ruptures of which rupture a common material and significating language and (collective) meaning as well. It is the possibility of facade rather than the appearance of "bad" people within the organization that poses the greatest danger not just to UNRWA but to other organizations operating perhaps under similar conditions. 

The Israeli action has made it impossible to avoid the issue.  But the question of which issue it is that will be resolved remains an open question--object, symbol (signification), or interpretive rationalization of a preferred perception universe. Also open is the issue of the level at which they resolution is to take place--as a matter of cognitive integrity, as a matter of internal solidarity or integrity, or as a matter of the interrogation of perception principles within which it is even possible to develop some sort of coherent means of communication. One moves here from the world of fact to one of belief within which facts are constituted and signified. One moves from experience to the constitution of experience in and through objects that constitute and manifest that belief and its experience. The key, then, is the power of faith in the rationalizing premises in which reality and belief in a reality can be held/imposed on a community of believers. One moves to Calvin (Calvin on Faith and Justification) and perhaps to Chao Lun (The Treatises of Seng.chao (Sengzhao; later Qin dynasty))

Objects are not (in themselves) objects; objects are produced by cognition. While an object produces a cognition, the cognition produces the object. So, the object arises in dependence (pratitya-samutpanna) and therefore it is a conditioned dharma (samskrta).3l1 As conditioned it is not a true (dharma). As such, it is not Truth (paramartha). Therefore, it is said in the Chung-kuan :312 'Because things arise from causes and conditions they are not true. What does not arise from causes and conditions is true' (Walter Liebenthal (ed & trans), Chao Lun: The Treatises of Seng-chao (Hong Kong University Press, 1968 (384-414 C.E.);  PAN-JO WU-CHIH LUN III, ¶ 31, p. 75).

 Where does this abstract and semiotic analysis leave one? Top what extent might it have any relevance to the current conflict over how one must be made to see the institution of UNWRA and its situational context?  One might start with the object of  avoiding the usual reverse engineering in discussions around serves as a reminder that discussions about institutions their ideals, the fulfillment of that ideal (along with its corruption), and the ways in which an institution, built around its ideals may actually serve as a facade to protect the construction and fulfillment of a different ideal (with or without the collusion of the institutions providing cover). If one starts where one wants to end then the analysis is itself an instrument meant to serve an objective; and in that sense loses its value as analysis as it merges with its object. 

Shorn of its instrumental character, it may be possible to understand UNRWA and the extraordinary investment in social collectives in its preservation or elimination, as an aspect of a broader and more fundamental rift between what are emerging as distinct ways of understanding (and tolerating) the world of social relations manifested generally in political community and more specifically in the management of its Jewish problem in  in what is again Israel. It is in the context of accumulating multiple displacement and enveloped in multiple inter-subjectivities that produces a concoction brewed out of the collision or collusion of a variety of lebenswelt all seeking to occupy, and arrange, a specific, if tiny, space. That concoction is then seasoned, if unfortunately, with a mix of disjunction--especially between ideals manifesting a belief in the way the world ought to be and the way that the vision is manifested on the ground.  What emerges, and the UNRWA provides only one example, is the emergence of increasingly well developed symbiosis between ideal forms sharing a single point of manifestation. What makes it more problematic is the emphasis by both that this symbiosis does no exist.  And perhaps that is ultimately the problem--the element of subterfuge, of disguise, of deception, denial--not of the respective ideal forms of those in symbiosis, but of the symbiosis itself. In this case, for example, it might have been less deceptive to have embraced the realities of symbiosis: that UNRWA could not effectively operate in Lebanon and Gaza with, as, and through, Hamas and Hezbollah. That synbiosis, then, would have transformed  the ideal of UNRWA in its operational capacity, as a framework institution the substance and implementation of which would be driven by the ideological framework and objectives of its partners on the ground. That might have been distasteful to some, a diret threat to others, and a more realistic basis for conversion about the integrity of the ideal of the UNRWA within a system of necessary symbiosis.

 Where does that leave us--at least from an analytical perspective? As the current "debate" is now framed is is met with irreconcilable visions of the world and choices about what slices of that world ought to be emphasized and what ought to be ignored). The UN's techno-bureaucracies, true to their natire and in service to their institutions, have foregrounded an idealized vision of UNRWA. Their arguments, emotion, etc. all center on a defense of the idealized state of UNRWA--that an attack on the institution is effectively an attack on the fundamentally sound principles around which its ideal is wrapped, and more generally an attack on the UN system itself--not just the institutional apparatus of the system but also the entirety of the principles on which the UN was founded and purports still to operate (at the limit of this form of discourse).  It is essentially a formalist defense on the essentially functionalist attack. It is one that posits a theoretical barrier between the conception and formal structures of UNRWA and the realities around which it operates.  It also posits a sort of purity of purpose wrapped around a mandate that can, formally, be read as shorn of any connection with the conflict around which it was made necessary (in the judgment of those responsible for its creation and maintenance). It is also founded on the idea that any attack on UNRWA is an attack on its ideal form, its core principles, and the integrity and operation of the UN itself. Most importantly, focused on its ideal form, it necessarily must reject the possibility of its use oas a facade by other social collectives who see in the structures of UNRWA, and ideal instrument for the realization of its own ideas, now incorporated within the architecture of another, less objectionable (to UNRWA's funders and sponsors perhaps) manifestation of an ideal. The approach, then, in defense of the ideal of UNRWA, serves as a basis for its transformation as or amenability to be instrumentalized as, a facade of another lebenswelt the manifestation of which might incur, if exposed, more severe consequences. 

It follows that the integrity of the ideal must be protected, even as its reality may vary somewhat with that ideal. Any evidence of integration with the architectures, objectives, ideals, and operations of another ideal system--in this case that of Hamas and Hezbollah committed, in part, to a Jew-free Palestine, would necessarily be characterized (it must be characterized this way given the semiotics of the ideal and the need for its preservation) as the work of rogue elements or of individuals, or groups of individuals, whose own bad acts do not corrupt either the integrity of the institution nor its ideals. This serves, perversely enough, to strengthen the symbiosis between the groups and the solidity of the instrumental use of the facade of the UNRWA (and its ideals). The object of this defense, then, is not focused on an interpretation of events on the ground, but rather on the preservation of an abstraction behind which all sorts of things might happen but can be explained away from perspectives of expediency, realpolitik, and perhaps sympathy. 

The functional counter, then, inverts this analytical scheme. It is in a sense much more inherently phenomenological (and with it inductive). It starts from evidence on the ground and uses that evidence to (re)construct the ideal. So reconstructed, that on-the-ground-manifestation is compared to the abstracted ideal. The disjunctions then serve as the basis of analysis. For the Israeli (and others elsewhere), then,  UNRWA becomes no more than its manifestation on the ground, which the Israeli analysis then concludes evidences the effective betrayal of those ideals in context.  The issue, though is more complicated.  But that avoids the subtextual issue of deception, which is at the heart of the functionalist attack on UNRWA, and thus its semiosis. What the facts imply is not merely that UNRWA is a facade, but that it lends the power and legitimacy of its ideal state in the service of the ideal state (and its operationalization) of another social collective.It would be one thing if this had been done in the open--then one might have a more brisk conversion about the symbiosis of ideals--that is whether, indeed, UNRWA must function as and through Hamas, Hezbollah or any other power within whose midst it operates. Yet it has not, and that lends power to the challenge to UNRWA in the current circumstances. And especially in this context, that lends credence not only to the assertion of symbiosis, but to the further allegation that so combined, UNRWA becomes or serves as an instrument of war/conflict even as it protects one of the combatants behind the walls of its idealized authority. There is a betrayal here that has a power equal, perhaps, to the betrayal that accusations of betrayal lodged by UNRWA and UN officials against the current functional attack and its consequences.

What semitotic analysis does, in this case, is expose, then the fundamental element around which all of the elaborations of attack and defense might be reduced to at their origins--the issue/element of fraud, of deception--and of the utilization of deception as an instrument of war in a most clever way. UNRWA understand the consequence of that exposure to its integrity, both as ideal and as working institution; but it fails in that defense to the extent it continues to wrap itself in its ideals, detached from the reality the exposure of which is having substantial consequence. There is no ready solution, one which will be reverse engineered in the current style of international relations.  All of this, then, requires a confrontation  with the fundamental issue of the cognition of UNRWRA within a broader cognitive discourse.Yet it is precisely within these systems of belief that is is possible to operate lebnenswelt behind the facades of another. The rest is politics--of cognition and of action that manifests belief in and as a thing.

Law of the Law of the People's Republic of China on Promoting Private Economy (Draft for Comments) [中华人民共和国民营经济促进法 （草案征求意见稿）] Text and Source Materials

 

Sale of English Goods Canton Hong (1858); pix credit here

 One of the important elements of the Decision/Declaration of the recently concluded 3rd Plenum of the 20th CPC Congress was its emphasis on dual tracking economic development..Now divided between a public sector and a complementary private sector, each is required to contribute in its own way and to stay in its own lane. " In these ways, entrepreneurs in China appear to have a vital role to play to  “implement the "two unshakable" principles. Unshakably consolidate and develop the public economy, unshakably encourage, support and guide the development of the non-public economy.” ([从这些方面看，中国企业家在“贯彻‘两个毫不动摇’，毫不动摇巩固和发展公有制经济，毫不动摇鼓励、支持和引导非公有制经济发展”方面发挥着重要作用。] Text of Remarks: "Chinese Entrepreneurs as a leading force for new quality productive forces innovation" [致辞 中国企业家是新高质量生产力创新的引领力量] Delivered at the Wenzhou Entrepreneurs Forum: Accelerating the Cultivation and Development of New Quality Productive Forces (2 September 2024); for general discussion here, here, and here).

As part of the institutionalization of this refinement in the relationship between public and private sectors, the Ministry of Justice and the National Development and reform Commission announced distribution for commentary of a Law of the People's Republic of China on Promoting Private Economy (Draft for Comments) [中华人民共和国民营经济促进法 （草案征求意见稿）]. See 司法部 国家发展改革委关于《中华人民共和国 民营经济促进法（草案征求意见稿）》公开征求意见的通知  [Notice of the Ministry of Justice and the National Development and Reform Commission on Soliciting Public Opinions on the Law of the People's Republic of China on Promoting Private Economy (Draft for Comments)];  Ministry of Justice Press Release (English) here).

 In its Press Release (民营经济促进法草案向社会公开征求意见), the objectives of the draft Law of the People's Republic of China on Promoting Private Economy is divided into eight parts:

 First, clarify the overall requirements. Emphasize the direction and principle of promoting the development of the private economy, ensure the correct political direction of the development of the private economy, and clarify that promoting the sustained, healthy and high-quality development of the private economy is a major policy that the country has adhered to for a long time. The state encourages, supports and guides the development of the private economy in accordance with the law. 

Second, ensure fair competition. Emphasize that all types of economic organizations, including private economic organizations, outside the negative list of market access shall enter the market equally in accordance with the law, implement the fair competition review system, standardize bidding, government procurement and other behaviors, and promote private economic organizations to participate in market competition fairly and use production factors equally. 

Third, improve the investment and financing environment. Support private economic organizations to participate in major national strategies and major projects, establish and improve the market-based sharing mechanism of financing risks, optimize the investment and financing environment of the private economy, and reduce institutional transaction costs. 

Fourth, support scientific and technological innovation. Support private economic organizations to play an active role in developing new productivity, encourage private economic organizations to participate in national scientific and technological research, support capable private economic organizations to take the lead in undertaking major technical research tasks, ensure that private economic organizations participate in standard setting and the development and utilization of public data resources in accordance with the law, and strengthen the protection of their intellectual property rights. 

Fifth, focus on normative guidance. Provisions are made on giving full play to the political leadership role of party organizations in private economic organizations, protecting the legitimate rights and interests of workers, improving the governance structure and management system of private economic organizations, improving the system and mechanism for preventing and controlling corruption from the source, and fulfilling social responsibilities. 

Sixth, optimize service guarantees. Establish a smooth and effective government-enterprise communication mechanism, implement a system for hearing opinions on the formulation of laws, regulations and policy measures closely related to the production and operation activities of business entities, strengthen administrative law enforcement supervision, prevent multiple law enforcement, and improve the system of punishment for dishonesty and credit repair. 

Seventh, strengthen the protection of rights and interests. Standardize compulsory measures such as restricting personal freedom and sealing, seizure, freezing, etc., and require them to be carried out in accordance with legal authority, conditions and procedures. It is prohibited to use administrative and criminal means to illegally interfere in economic disputes. Standardize law enforcement in other places. Focusing on strengthening the guarantee of account payment, strengthening budget management, and specifically refining the payment regulations, setting up procedures for negotiation and mediation of overdue accounts. 

Eighth, strengthening legal responsibility. Corresponding legal responsibilities are stipulated for different illegal entities and situations, and rigid constraints are strengthened.

This did not come out of the blue (for earlier policy frameworks here) and drafting was announced in February 2024 (here). There has been some commentary from the academic community; see, e.g., here,  In many respect the new law represents the legalization of the objectives and premises  specified for the private economy in the 3rd Plenum Decision. But much of its form and implementation will depend, as is common in Chinese legality, on the administrative regulations (at the national and provincial levels), and in the application of law (principles) and regulations (mandatory expectations) through the accumulated decisions of officials charged with its actual application.