Saturday, October 01, 2022

And the Ukrainian Response to the Theater of Annexation: Two Addresses of President Zelenskyy Responding to the Kremlin Staged Annexation Declaration

 


The durability of annexation may be inversely proportional to the theatricality of its announcement.  If that is the case, the theater of Russian annexation of Ukrainian territory may indeed exist in a quite dynamic state.  The theater of annexation, of course, is not about the actual business of wresting control of territory.  It is far more about wresting control of the narrative of territorial nationality.  

And it is here that while the Russians may have won control of some portions of the Ukrainian territories, the Ukrainians appear to be winning the war for control of the narratives of territorial nationality.  Worse, for the Russians, was the casual ineptness of the staging and production of the theatrics of annexation--from sadly farcical production values of the crudely conducted referendums in the affected territories, to the staging of the announcement itself at the space reserved for such events by the Russian core of leadership. In contrast, Mr. Zelenskyy has staged on message--and the message has been to add content to meaning--and to project meaning in ways that undermines whatever Russia was willing to pay for in the lives and property of people other than those directing these events.

It is in this context that the two addresses of 30 September 2022 by the President of Ukraine, Volodymyr Zelenskyy responding to the staging of the theater of annexation in the Kremlin, is worth some consideration.  The full text of the address follow below. 

It is a reminder that to an extent greater than in the warfare of the last century--the narrative battlefront, though less bloody, may in the end prove to be a decisive theater in war--especially where that narrative can be used to leverage and direct actions to project or counter physical projections of power. ç

Note here as well the real target of this narrative battleground--the hearts and minds of NATO and the EU. This is a narrative battle for the money, equipment, and ultimately the invitation to join the Anglo-European West.  It is also a narrative that invites the Russian people to rid themselves of the driving force of this adventure:


Friday, September 30, 2022

Without Comment: Remarks of V. Putin on the Signing of treaties on accession of Donetsk and Lugansk people's republics and Zaporozhye and Kherson regions to Russia

 Presidential address on the occasion of signing the treaties on the accession of the DPR, LPR, Zaporozhye and Kherson regions to Russia.

 

A ceremony, which from the Russian perspective was characterized as the celebration of the absorption by the Russian Federation of the Ukrainian territories now called the Donetsk People's Republic, the Lugansk People's Republic, the Zaporozhye Region and the Kherson Region,  took place in of the Grand Kremlin Palace’s St George Hall on16:00.

At the event, the President of the Russian Federation delivered an address.  It follows below.  

There is little new here.

With one exception. . . . 

That exception was embedded in the quite remarkable theatrics of what now appears as a fuller development of the the demonification of the liberal democratic West in general, and the United States in particular.  Most interesting in that respect is the way that leaders, like that of Russia, are able to deftly weave strands of criticism drawn from the current conflict within liberal democracies (and the United States in particular) to build a narrative that produces an inversion of meaning from a common set of facts. Its techniques borrow from the Americans, using the discourses of demonification in American culture wars but now in the service of an ethno-chauvinist mythos that has fueled the current form of Russian adventurism. 

This is not to suggest that the current cultural revolution in the United states (in particular) or in the liberal democratic camp (on general) ought to be faulted.  Every great civilization undergoes periods of seismic (and usually destructive) self-criticism. It may, in the long run. be necessary for the re-invigoration and survival of the civilization within which these intense periods of unconstrained critique play out--usually with excessive barbarity at times.  Nonetheless, moments of internal weakness can be exploited (as the Chinese learned, for example in the last decade or so f the leadership of Mao Zedong). The discursive excesses of internal "rejuvenation", along with the tragedies of their excesses and the accompanying bad judgment grounded in passion and calculation that at times produce reigns of terror similar to those in France  (September 1793 - July 1794), produce conditions that, as one can see in these remarks, can escape their domestic context and assume of life of their own.  

The Americans are entitled to their internal cultural and political squabbles--even to the extent that they make the Republic wobble on its foundations. The President of the Russian Federation reminds us that Empires, like the United States and China, may not have the luxury of such exuberant introspection except at great cost. It is, as well, a reminder, that no great Republic, can long neglect the cultivation and projection of its own narrative, in effective ways, for long without running the risk of narrative displacement. This is no small thing. And the failures of the United States to protect its own story in its own way may well be quite costly--not in Russia, bit within those states in which the bacillus of Russian counter-storytelling can have debilitating effect on the American effort to promote a rules based international order in its own image. That is far more important than the theatrics of annexation as farce.


Now Available: OMFIF Conference Videos--International standards for sustainable finance: Europe’s place in the vanguard

 


 

International standards for sustainable finance: Europe’s place in the vanguard
On demand
OMFIF hosted a conference in Frankfurt to examine how the European Union can strengthen its sustainable finance competitive process, with a special emphasis on Germany and Luxembourg. The EU has made vast efforts on climate change, with the EU taxonomy spearheading sustainable finance regulatory practice, developments of disclosure frameworks and the integration of climate risk into financial services. Yet challenges persist with divergence in standards and jurisdictional approaches, the need to tackle greenwashing and converging the real economic and financial markets to achieve effective net zero transition.

This conference brought together public sector agencies from around the world, emphasising the central importance of public-private interactions for success in this sphere. Participants form a powerful force for co-operation in setting standards. Topics discussed included refining green products and instruments for more effective use of financial markets in combatting climate change, moving to a more holistic view of sustainability and, importantly, saying RIP to ESG.




PANEL I: EUROPE ON THE WORLD STAGE
Watch on demand here.

PANEL II: GLOBAL STANDARD-SETTING: HARMONISATION, REGULATORY FRAMEWORKS AND TRANSFORMATIONAL FINANCE
Watch on demand here.

PANEL III: ESG AND CAPITAL MARKETS: SUSTAINABLE INVESTMENT
Watch on demand here.

PANEL IV: SUSTAINABLE FINANCE AND THE WAY FORWARD
​​​​Watch on demand here.

The one-day conference on 15 September – ‘International standards for sustainable finance: Europe’s place in the vanguard’ – was supported by a range of institutions, including technology consultancy Capco, Frankfurt Main Finance and the Luxembourg embassy in Berlin. It was attended by delegates and speakers from a dozen countries, including the European Commission, United Nations, European Investment Bank and Organisation for Economic Co-operation and Development.

Nicolas Mackel, chief executive of Luxembourg for Finance, the Grand Duchy’s financial promotion agency, summed up one prevalent mood of the meeting. The bitter consequences of the war in Ukraine – high inflation, recession worries and drawbacks of undue energy reliance on Russia – coincided, he said, with considerable opportunities for renewal and innovation.


In partnership with: 
 

The Working Group on Business and Human Rights Speaks in a Public Meeting on 4 October 2022. . . . With the Gratitude of whose Who Might Attend

 

Pix Credit: Tools for Spider Terrestrial Divination (Cameroun end of 19th c,)

 I pass this along from the UN Working Group for Business and Human Rights. It is a pity that with the democratizing possibilities of technologies, these could not be better deployed. Still for those able to attend one hopes that they may pass along what might be divined about the future public interactions between this human rights apparatus and its stakeholders.

The Working Group on Business and Human Rights invites civil society organizations and academia to participate in a public meeting during its 33rd session, in room XXVI, at Palais des Nations in Geneva on Tuesday, 4 October from 16:15 to 17:15. Interpretation will be provided in English, French and Spanish. Participants are invited to register in Indico(https://indico.un.org/event/1001731/. The Working Group will provide an update on thematic priorities and activities for 2022 and beyond, including the preparations for the annual Forum on Business and Human Rights to take place from 28 to 30 November 2022, as well as on future reports to the Human Rights Council and the General Assembly. Regrettably, the Secretariat of the Working Group does not have funds available to support participation in this meeting. If you have any queries, please email: hrc-wg-business@un.org

 

Le Groupe de travail sur les entreprises et les droits de l’homme invite les organisations de la société civile et les milieux universitaires à participer à une réunion publique, lors de sa 33ème session dans la salle XXVI, au Palais des Nations à Genève, le  mardi, 4 octobre, de 16h15 à 17h15. L'interprétation sera assurée en anglais, français et espagnol. Les participants sont invités à s'inscrire sur indico (https://indico.un.org/event/1001731/). Le groupe de travail fera le point sur les priorités thématiques et les activités pour 2022 et au-delà, y compris les préparatifs du Forum annuel sur les entreprises et les droits de l'homme qui aura lieu du 28 au 30 novembre 2022, ainsi que sur les futurs rapports au Conseil des droits de l'homme et à l'Assemblée générale. Malheureusement, le secrétariat du groupe de travail ne dispose pas de fonds pour financer la participation à cette réunion. Pour toute question, envoyez un courriel à hrc-wg-business@un.org .

 

El Grupo de Trabajo sobre las empresas y los derechos humanos se complace en invitar a las organizaciones de la sociedad civil y al mundo académico a participar en una reunión pública durante su 33ª periodo de sesiones, en la sala XXVI, en el Palacio de las Naciones en Ginebra, el martes 4 de octubre de 16:15 a 17:15. Se habilitará interpretación en inglés, francés y español. Los participantes están invitados a inscribirse para participar en persona a través de Indico (https://indico.un.org/event/1001731/). El Grupo de Trabajo proporcionará una actualización sobre las prioridades temáticas y las actividades para 2022 y más allá, incluyendo los preparativos para el Foro anual sobre Empresas y Derechos Humanos que tendrá lugar del 28 al 30 de noviembre de 2022, así como sobre los futuros informes al Consejo de Derechos Humanos y a la Asamblea General. Lamentablemente, la Secretaría del Grupo de Trabajo no dispone de fondos para apoyar la participación presencial a esta reunión. Si tiene alguna duda, envíe un correo electrónico a hrc-wg-business@un.org.

 

 

 






Secretariat of the Working Group on Business and Human Rights

Sustainable Human Development Section
Special Procedures Branch
Office of the United Nations High Commissioner for Human Rights
E-mail:
 ohchr-wg-business@un.org
Fax: 
+41 22 917 9008
Web:
 http://www.ohchr.org/ 

Twitter: @WGBizHRs / UNHumanRights
Facebook:
 unitednationshumanrights

Stand up for someone’s rights today:
Web:
 www.standup4humanrights.org

 

The registration page notes the following:

Sessions of the Working Group are closed to the public, except for specific “public consultations”.  For this session there will be no public consultation. 

  • 4 October, 15:00-16:00: private meeting with States
  • 4 October, 16:15-17:15  private meeting with Civil Society

Thursday, September 29, 2022

And the View From the Other Side of the Human Rights Fence--Conference; Business and Human Rights: From National Practice to International Binding Standards

 

PIX Margarito d'Arezzo The Virgin and Child Enthroned with narrative scenes (1263)


I have just considered the rise of an increasingly more sophisticated  theory of Chinese Socialist Human Rights, now built  into the more comprehensive effort by Chinese Marxist-Leninist theorists, and the Chinese vanguard, to put forward a very different conceptual basis for the project of internationalism within the apparatus of the institutions of international law and norm making (The Rise of Socialist Human Rights--Larry Cata Backer Remarks: "Brief Reflections on the Building of a Theory and Practice of Community with a Shared Future for Mankind and Global Human Rights Governance " [建立具有人类共同未来的社区理论和实践以及全球人权治理的简要思考] (English and Chines Versions)).

At the same time, self styled leading elements within the orbit of liberal democratic theory have also been busy seeking to manage, and perhaps divert into new and potentially interesting directions, the locus and forms of international law and norm making.  These are being constructed on ways that ghost oppositional elements. And they are undertaken in a world in which the ideological drivers of developing states and of Marxist Leninist states are marginalized--to the extent they are conceded any legitimating space at all. 

This is politics, of course.  And fair in the now heated contest for control of ideological and meaning making narratives within Marxist-Leninist, development, and liberal democratic factions.

Pix Paolo Veronese, Scorn c 1575
And so it is that even as the Chinese host a side event at the 51st Human Rights Council,  leading elements of the liberal democratic camp announced a parallel event--with an equally competing vision. Hosted by Carlos López for the influential International Commission of Jurists (Geneva) and Ira Gibson for the Geneva office of Friedrich-Ebert-Stiftung (FES), the Conference--Business and Human Rights: From National Practice to International Binding Standards will be held 12 October 2022 in hybrid form but originating in Geneva. Like its Chinese counterpart, it is meant to develop and privilege a specific way of imposing meaning on the project of human rights and internationalism.  In the case of the ICJ-FES event, one that advances the sensibilities and principles of liberal democracy as it has been manifested in what Mr. Biden has called euphemistically a "rules based international order" grounded in a specific way of understanding the content and application of human rights. In this case that embeds these groups--and that Conference--deeply in the current debate within liberal democratic elements about the form, content, and utility of centering the production of traditional international law instruments as the driving force (public, rigid and subject to the vagaries of international law transposed within domestic legal orders) for the continued development of human rights as applied, in this case, to economic activity. 

In their words, 

Since 2014 a UN Intergovernmental Working Group is discussing a draft legally binding instrument to regulate business activities under human rights law. The next session at the end of October 2022 should consider drafting proposals. At the ILO, since 2016 there have been important discussions about the pertinence and need of normative action by the organization in particular in relation to decent work in businesses’ global supply chain. These developments have engendered a growing interest among the most industrialized economies for global binding standards in this field. A recent meeting of labour ministries of the G7 made a call for joint work towards those global standards. In this context, this conference organized by ICJ and FES will bring together national and international leaders and practitioners to share the developments and evidence from national practice and discuss ways in which international binding standards can draw from that practice and provide a key impetus for the effective development and operation of other national initiatives across the globe.

A worthy effort, no doubt, but one the current form and process toward which I have been highly critical (see HERE including links). 

Still debate--assuming there is debate (and the conference suggests the amplification of a particular partisan and orthodox view) is always useful for refining and advancing ideas within collective society. To that end I pass along the conference information, including Program, concept note, and registration links.

Wednesday, September 28, 2022

The Rise of Socialist Human Rights--Larry Cata Backer Remarks: "Brief Reflections on the Building of a Theory and Practice of Community with a Shared Future for Mankind and Global Human Rights Governance " [建立具有人类共同未来的社区理论和实践以及全球人权治理的简要思考] (English and Chines Versions)

 

Pix Credit: South China Morning Post

 

The 51st Session of the Human Rights Council  is now ongoing.  It serves as an important site for the development of fundamental narratives through which the form, direction, and meaning of the work of the Human Rights Council generally, and of the apparatus of the Office of the High Commissioner for Human Rights may be undertaken and implemented.  The stakes for states and other actors invested in those narratives is quite high.  For the last several years there has been an increasingly intense debate between liberal democratic and Marxist-Leninist meaning making communities around the core project of international human rights, markets, development, and the cultures of the state system itself in its managerial role. That debate, and the contest for domination of the narratives of human rights, development, and globalization, has taken a quite intense turn with the Russian invasion of Ukraine. In the case China the contest over narrative and ordering ideology was fully exposed in the context of the OHCHR Assessment of human rights concerns in the Xinjiang Uyghur Autonomous Region, People’s Republic of China (31 August 2022); and the equally pointed Chinese response attached as an appendix to the OHCHR Report (HERE). The stakes, then, are quite high.

In that context Zheng Zhihang, Professor at the Law School of Shandong University organized a side event on the occasion of the 51st Session of the Human Rights Council. That side event, entitled "Human Rights Development in the Perspective of Community with Shared Future for Mankind" was hosted by the China Society for Human Rights Studies and organized by Shandong University.  It was held on the morning of 29 September 2022. A number of topics were considered as a function of the concept of "community with shared future for mankind", including global human rights governance, the right of development, environmental policy, and climate change. 

It was my great honor to be asked to deliver brief remarks at that side event. I spoke to the core normative and ideological structures around which the construction of socialist internationalism and human rights has emerged, and its relationship ti the dominate discourse of human rights developed in international institutions with increasing precision since the end of the last World War. The remarks now follow.  

 *          *          *

Brief Reflections on the Building of a Theory and Practice of Community with a Shared Future for Mankind and Global Human Rights Governance [建立具有人类共同未来的社区理论和实践以及全球人权治理的简要思考]

Larry Catá Backer (白 轲)

I am grateful for the opportunity to participate in this side event, Human Rights Development in the Perspective of Community With Shared Future for Mankind, hosted by the China Society for Human Rights and organized by Shandong University on the occasion of the 51st Human Rights Council. I am especially grateful to Professor Zheng Zhihang for his leadership in those efforts. Today I speak to the construction of Chinese Socialist Human Rights Internationalism. That discussion is undertaken within the broader context of the internationalization of human rights as both have developed over the last decades. The resulting reconceptualization of human rights offers an important window on the current state of discourse around what most political societies seek, each in their own way—that is, a fair and just international order. Yet this striving is now undertaken at a time when the vision of those ideals have become more sharply contested.

What exactly are the principals that make up this new socialist internationalism vision? The principles were comprehensively identified in the 2019 South-South Human Rights Forum, organized by the Chinese State Council Information Office and the Ministry of Foreign Affairs. The principles are both well-known and clearly identified. They include the following concept principles: (1) “Building a Community with a Shared Future for Mankind and Global Human Rights Governance,” (2) “The Right to Development: The Belt and Road Initiative Promotes the Realization of the 2030 Agenda for Sustainable Development,” and (3) “The Practice and Experience of Human Rights Protection in the Countries of Global South.” These principles interlink three fundamental concepts—globalism, sustainable development, and human rights. Today, these concepts serve as the foundational principles for the construction of a Socialist System of Human Rights and Socialist Internationalism. They represent the outward face of the development of the advanced contemporary structures of Chinese Marxist-Leninism in its current New Era.

The current expression of these principles were initially elaborated in their current form at the start of the leadership of Xi Jingling. In his now well-known 23 March 2013 speech at Moscow State Institute of International Relations, President Xi Jinping elaborated China’s vision for a community with shared future for mankind at about the time that China first announced what would become the Belt & Road Initiative. In 2021, President Xi Jinping’ further elaborated China’s vision of a Socialist global order in his remarks to the UN General Assembly. Its principal components included overcoming the challenge of pandemic, pursuing greener and more balanced global development, embracing a revamped ordering of international relations, enhancing  global solidarity around concepts of mutual respect and win-win cooperation, and on that of establishing a more refined practice of global governance and multilateralism.

This approach was expanded in the same year (2021) in a State Council White Paper entitled “China’s International Development Cooperation in the New Era.” The important principles of prosperity and stability features prominently in this White Paper. Most recently, in a keynote address delivered 21 September 2022 by State Councilor and Foreign Minister Wang Yi at the Ministerial Meeting of the Group of Friends of the Global Development Initiative (GRI), Chinese officials broadened and deepened the visions for human rights and development. The object was to solidify a counter-approach to the dominant vision of human rights and development long developed under the leadership of liberal democratic states and embedded within the working style of international organs.

Taken together these events provide a glimpse of  the key elements of Chinese socialist internationalism . They also point to the way in which these elements align the doctrine of the community with shared values for mankind, with principles of socialist human rights. Combined, they are offered as an alternative  global model in the form of the GDI, the Belt & Road Initiative, and more generally, of Chinese socialist internationalism. At an even deeper level, these movements evidence a more mature manifestation of New Era theory in its outward expression, and also as a template by which states with similar approaches to internal and global ordering might shape their own destinies.

Jointly, these emerging expressions of Chinese theory provide a basis to consider some of the more profound ramifications of this project of Socialist human rights, its foundations in theories of the human right to development, and grounded in the overall principles of a “Community of Shared Future for Mankind.” In particular, it may be worth considering some of the scope and implications of critical differences between the “standard” or orthodox human rights narrative overseen by the U.N. apparatus in Geneva and (sometimes) New York, and what may be emerging from South-South conversations under the leadership of China. These shifts will have important consequences for emerging specific conceptions of the integrity of human rights as a global concept, and on the movements toward its fracture, which mirror the fracture of global trade along regional lines.

The object is to offer a path to a fundamental shift in the focus of human rights and human rights discourse. That shift would move the core of discussion from one framed in the discursive tropes of liberal democratic ideology to one framed in an emerging Marxist-Leninist discourse. The shift is occurring even as those who think themselves the vanguard of traditional internationalist human rights ideology continue to advance and more deeply develop the dominant approach to human rights, development, and internationalism. Under the core leadership of liberal democratic states that project remains strongly embedded in the basic structures of the institutional international law and norms. It continues to function as the legitimating discourse of the international community.

But the challenge of a more mature Socialist path to international relations and to the framing of human rights within it now evidences a  greater and more open divide between Socialist and Liberal Democratic approaches to shaping the world order. That divide may not affect many objectives or practices. It does, however, affect the approach to important fundamental principles and interpretations on which are built the structures and understandings, that is, the ideologies, of development, of the nature and content of human rights, and of the centrality of sustainability. The result is to return the international community to a time when it operated in the shadow of a clear cut choice. That choice is between systems that view economic, social, and cultural rights as a necessary predicate to the effective nurturing of civil and political rights, and those systems that are based on the ordering principle that civil and political rights are the predicate to effective and legitimate development and protection of economic, social, and cultural rights. 

It is therefore important to understand the Chinese path. It is equally important to study the way it shifts the discourse from that of traditional liberal democratic markets-driven actors. Traditional human rights and human rights discourse takes as its starting point the key premises of the ideology on which liberal democratic social-political-economic orders are organized and through which they understand both themselves.  That human rights discourse is centered on the individual.  It speaks to the relationship between the individual and centers of power that affect the individual as an autonomous being and within collective organization.  Individuals have rights--states and other organs of power have duties and responsibilities.  

Marxist-Leninist States take as their starting point the key ideological baselines that human rights proceeds from and is centered on the collective.  Better put, it is centered on a pyramidal system of hubs of collectives all connected by the spokes of obligation to a leadership core.  Individuals have expectations; collective authority has rights, duties,  and responsibilities. The betterment of the welfare of the individual collectively is the primary duty of the state.  And thus the core framework within which human rights can be understood and elaborated are through the principle that the state's primary duty is to ensure the prosperity and stability of the collective. Civil and political rights are understood as necessarily constrained by and proceeding from the overall imperative to ensure prosperity and stability. 

This new language of human rights requires, in turn, a new vocabulary.  It requires a vocabulary that shifts the emphasis of discourse (and thus the way that terms are understood and applied as policy and rules and norms) from the language and vocabularies of human rights (of the individual) to that of  development (of society and collective institutions).

 This is an important project.  It builds not just structures of rights and responsibilities but also narratives that rationalize and order the way that societies understand the world around them. Some control of the way that narratives are constructed and people (including influential collective leadership groups) is critical to the investing of great principles with ideologically aligned meaning. That is possible only when they are attached to a collectively embraced system of common understanding of meanings and markers of legitimacy. In that context China understands that it is important to both develop a new vocabulary and a new framing for those core matters traditionally monopolized by the discursive tropes of liberal democratic ideologies (the authority of which had been virtually undisputed since the fall of the Soviet Union and its dependencies in the late 1980s). Chinese leaders now appear to act on the understanding that it is impossible to acquire influence over meaning making unless one can exercise some control over the ideological perspectives from out of which objects, thoughts, and actions are invested with meaning. Here is the essence of the Chinese "win -win" strategy, and more generally of Chinese Socialists internationalism.

 Thank you.

 A longer and lightly annotated ENGLISH VERSION follows below. Both can be downloaded HERE

CHINESE LANGUAGE VERSION OF REMARKS (Gao Shan, trans.) also follow below. 

A video recording of the remarks (for those who prefer to listen rather than read) is available HERE

 Engagement always welcome.

 

Monday, September 26, 2022

In Memorium: Joel F. Handler

 


 It is with sadness that I report the death of Joel Handler, one of the legal academic giants of a generation that is now passing. His obituary follows.

Joel F. Handler

1932-2022

 

Joel F. Handler died on September 22, 2022. Joel was born in Newark, NJ on October 4, 1932. After graduating from Princeton in 1954, he attended Harvard Law School. 

 

Following a clerkship and then practicing law with his father Charles Handler and his brother, Alan Handler, Joel went into teaching. Joel spent two decades on the faculty of the University of Wisconsin Law School, where he was the George Wiley and Vilas Research Professor as well as a critical member of the Institute for Research on Poverty. He joined the UCLA faculty in 1985, holding the Richard C. Maxwell Chair before retiring in 2010. 

 

The author of 23 monographs, Joel was one of the world’s leading scholars of social welfare law and a giant in the law and society movement, serving as the president of the Law and Society Association from 1991 to 1993. His 1996 book Down from Bureaucracy: The Ambiguity of Privatization and Empowerment won the Gladys M. Kammerer Award for the best political science publication in the field of national policy. Joel received many awards and fellowships, including a Guggenheim Fellowship, a German Marshall Fund grant, and a Rockefeller Foundation Residency in Bellagio, Italy, and, in 2004, election to the American Academy of Arts and Sciences. Joel chaired the National Academy of Sciences’ panels on the Status of Black America and High-Risk Youth.

 

Joel is survived by his beloved wife of 36 years, Betsy Handler, a retired public interest attorney. He is survived by his brother Alan Handler, a former Justice of the New Jersey Supreme Court; his brother Mark Handler predeceased him. Joel is survived by his three children and their spouses: Stephen, a retired lawyer living in Wisconsin, married to Changge; Adam, a lawyer, living in Pacific Palisades, married to Ann; and his daughter Frances Handler-Igna, a psychologist in Putnam Valley, NY, married to Loan. In addition, Joel had six grandchildren: Kate Abrey, Jeff Handler, Lane Stewart, Lydia Igna, Samantha Handler, and ChenChen Handler. A little over a year ago, Joel became a great-grandfather to Cooper Stewart and will soon be a great-grandfather to Kate and Ian’s twin boys. Also deeply loved by Joel were his niece and nephew Rachel and Neil Marcus and their children Alexandra and Nathaniel.

 

Contributions in Joel’s memory may be made to the University of Wisconsin Law School and/or to the Epstein Public Interest Law Program at UCLA.

 

Joel Handler contributed greatly to the reshaping of the discourses of power, and the topographies of its exercise by bureaucrats and market participants within institutions of economic, social, and politically coercive power.  He was skeptical of market power, but perhaps only a little less so of abuses of administrative discretion.  Finding the sweet spot of empowering the power within system in which the empowerment of institutions was first on the agenda proved to be never ending task, one that has yet to find a satisfactory conceptual or operational equilibrium whether in liberal democratic, Marxist-Leninist, or post-colonial developing state systems. Nonetheless, the language and lens he provided have played  and will continue to play an important role in the discourses of power within institutional ecologies.

Sunday, September 25, 2022

Brief Thoughts on Martin Lipton: "ESG, Stakeholder Governance, and the Duty of the Corporation" (Harvard Law School Forum on Corporate Governance)

 

Pix: Fra Angelico San Domenico Altarpiece (c1455)

 

Martin Lipton has been providing quite insightful commentary on the "ESG Wars" that often find their way to the Harvard Law School Forum on Corporate Governance. These now amuse (in the more ancient sense of that term) the magisterium of strategically sensitive corporate lawyers, academics with public intellectual ambitions, well meaning though ideologically blinded NGOs, and sensitive business people blinded by a century or more of judicial rigidity and the cultures it has spawned in baseline thinking for the business community and the public officials who rely on them. 

Recently, Mr. Lipton posted the HLSFCC a short essay well worth reading carefully: ESG, Stakeholder Governance, and the Duty of the Corporation (18 September 2022). In it Mr. Lipton again situates the debate about ESG within the now ancient debate that was once merely an academic bauble meant to amuse elite lawyer-academics, but which has now metastasized into a larger cultural artifact the emanations of which continue to pollute the form, scope and language of the debate about (1) how we render corporations in real space (eg as a function of quantifiable value measured against a "gold" standard that the sum of positive value must exceed, in the long term negative value); (2) the constrained way in which those with authority have chosen to select those actions of corporations that merit valuation and to marginalize those that do not through the device of financial accounting and thereafter by incorporating the ideologies built into financial accounting into policy driven and markets protective disclosure regimes); and (3) how that is then backed into and repackaged in a sort of specious and quite artificial "debate" about corporate purpose.  Of course, the effect is to engage in a century of backwards logic and reverse engineering of the operations of collectives engaged in economic activity which then lends itself both to capture, and to incoherence. 

Kali, late 18th century Bengal, British Museum
That, of course, is the essence of the false conundrum of environmental, social, and governance (ESG) factors in the construction, constitution, and accounting for the activities of economic collectives organized as corporations with state sanctioned legal personality (as well as rights, and obligations, autonomous of those of its stakeholder, including shareholders). Mr. Lipton seeks clarity through an insightful analysis grounded in the ancient discursive tropes and expectations built into the corporate purpose debate. To that end he fights old ghosts (who remain culturally potent; eg Friedman) and resurrects, as he must the Romulus and Remus of the corporate law (in debates of Berle and Dodd). He offers up new meanings in of text.  And he settles, as do most of the advanced social forces of American (and global) corporate law--as well as their colleagues on the human rights and sustainability side of the fence). And what he then offers up is what has been embraced by the international human rights and sustainability elites--the transformation of corporate governance into a privatized system of administrative practice guided by the sensibilities of compliance and articulated through the development of administrative systems that operationalize (delegated) regulatory authority from public organs (as well as responses to market actor sensibilities as expressed form time to time in some measurable form).  He offers this up in its American form. As Mr. Liption writes after describing compliance as a first principle of corporate law: "the Caremark doctrine requires that companies have in place information and reporting systems reasonably designed to provide timely, accurate information to allow management and the board to reach informed judgments about the corporation’s compliance with law and its business performance. The stakeholder governance model aligns closely with Caremark ." (Lipton essay supra).

Mr. Liption has no choice, really, but to follow this course and to craft his essay along those lines. This is particularly so if he means to serve as a powerfully influential public intellectual.  That is the language that people with power embrace, or at least purport to understand  And that is the language that must be molded to suit the times.  And the times  now require a broader accounting.  To that effort, it is necessary to take the language of corporate purpose and repurpose it--that is to drain the words of those tropes of its ancient meaning and to infuse a new set of collective meaning on ancient terms. The result is the preservation of an appearance of fidelity to ancient principles even as its interior is gutted, rearranged, and invested with new sensibilities. 

This is a very American project and one that is culturally appropriate. It aligns with the core semiotic ideologies of common law and the practices of statutory and constitutional interpretation of the American judiciary. Mr. Lipton inhabits a quite august position within that magisterium and it makes perfect sense to use its semiotic tropes in the service of new meaning that captures the cultural moment. That is the good news. The bad news, of course, is that the outer shell of that effort remains rigid and in come cases produces the challenge of complex meaning pathways (that reduces its impact on operations level people) and that at times creates greater obstacles to achieving the end of meanings change revolutions--even veiled ones like this one. 

Altarpiece, Cologne Cathedral 2022)
But Mr. Lipton actually did have a choice--and a path with respect to which neither he nor the people like him who drive the law and culture of corporate governance appear to have much stomach for. That is something a bit more complex and straightforward, but one that would displace the bureaucrat and lawyer in favor of the accountant and the coder: ESG represents values that are themselves identifiable, quantifiable, and that significantly affect the value (and pricing) of the goods and service produced by corporate enterprises in pursuit of whatever more granular purpose its managers put forward and its stakeholder can tolerate. To convert the qualitative language of ESG into the quantifiable measures of and within financial accounting systems much more directly prices the impact of enterprise activity on all relevant stakeholders in a way that is unavoidably tied to corporate activity--without the need for linguistic and philosophical contortions required by an endlessly fruitless quest for purpose.  One might better leave the purpose debate back n the 20th century along with the triumph of the therapeutic and the narcissism of the early post Soviet age of globalization. "Corporate purpose" is an object best curated by historians.  For corporate lawyers, and corporate stakeholders, it is valuation and accountability within the traditional language of finance that better advances corporate complaisance in the business (market) and legal (administrative) spheres.

The ramifications are of significant importance for the elaboration of emerging systems of human rights and sustainability due diligence. It is of profound relevance to the current project of datafication, systems building and modeling (descriptive and predictive) through which post-Caremark systems are now embracing (even if in preliminary forms). The emerging compliance ecologies, and the fundamental needs of cultures of compliance in economic production require a more quantifiable, rigorous and analytcal approach in which the protection and deployment of value can acquire a more comprehensive character in shaping corporate decision making with respect both to its activities and to the means chosen to achieve them. The dead hand of corporate purpsoe and its textual and qualitative prisons impede that process.

The original may be accessed on the HLSFCC website HERE. It also follows below.

Friday, September 23, 2022

Presenting Paper "Linking People to Governing Institutions: 《中国新型政党制度》 (China‘s New Political Party System), 全过程民主 (Whole Process Democracy), and Leninist Political Parties Within Socialist Constitutional Democracy"

 

 

A person who aims to enhance his power and capacity reaches afar to draw talents close to him. . . As for those who cannot be captivated with words . . ., invite them and encumber them with responsibilities. Or encumber them with responsibilities first and then reveal their weaknesses; or reveal their weaknesses first and then encumber them with responsibilities. (Guiguzi: China’s First Treatise on Rhetoric (Hui Wu, trans; Southern Illinois University Press, 2016) (Captivate-Capture (Fei Qian飛 箝; Book II.5.2, p 56, 57-58).

It was my great delight to participate in the Workshop: Political Parties and Constitutions in Asia held on 23-24  September 2022 at  St Hughes College, Oxford. Hosted by the  Oxford Programme in Asian Laws Series and the remarkable Ngoc Son Bui

My presentation was entitled "Linking People to Governing Institutions: 《中国新型政党制度》 (China‘s New Political Party System), 全过程民主 (Whole Process Democracy), and Leninist Political Parties Within Socialist Constitutional Democracy." The abstract frames the issues:

Abstract: The role of political parties in the Chinese democratic socialist political order has always been deeply misunderstood, even within Chinese academic and popular circles. The misunderstanding at a macro level is likely a product of great ideological battles of the last century between liberal democratic and Marxist-Leninist approaches to the organization of states, the positioning of political authority and its exercise through political parties—mass collectives developed for that purpose. These organizational differences reflect an even deeper conceptual gap between the way that these ideologies construct and apply the notion of party within their democratic imaginaries. Though both systems use the same word to describe collective political organization—the ideological basis of the meaning of that term could not produce a greater distance in the way in which meaning is embedded in those terms. This study takes a deeper dive into the current elaboration of the political theory of Chinese socialist constitutional democracy, the role of political parties within it, and the connection between the people and both. To those ends, the study focuses on three key documents produced by the Chinese State Council: (1) 《中国新型政党制度》 (China's New Political Party System; 25 June 2021); (2) 中国的民主 (China: Democracy That Works; 4 December 2021); and (3) [美国民主情况] (The State of Democracy in the United States; 5 December 2021). Through the lens of these contemporary elaborations of Chinese Marxist-Leninist theory, the study considers the hypothesis: ‘the emerging theory of Leninist political parties contributes to the development of a coherent theory of endogenous socialist constitutional democracy.’ Its subsidiary hypothesis is that at least conceptually, the transformation of the ‘mass line’ principle into ‘whole process democracy’ provides a basis within Leninist political theory to link the people to their state institutions through the structuring of a system of well-managed mass political organizations under the leadership of the vanguard.

 One considers here the theorization of political collectivization within a Leninist system. It represents a means of institutionalization of political voices of the masses even as it seeks to embed collectives within structures of consultative democracy. The foundation of this system requires drawing a tight division between leading and consulting, between the character and function of the vanguard, and of the political collectives that exist under and through the body of the vanguard.  The drive toward conceptualization is grounded in the now decades old process of seeking Socialist theoretical purity as against liberal democratic corruption, and with it to deepen the conceptual legitimacy and the unique constitution of the Vanguard party as the embodiment of the leading social forces and as the holder of stewardship for exercise of political authority in the service of the masses.

It is in this context that theory builds, on the foundation of a robust theory of endogenous democracy, a system collectivization in which the masses are made suitable for deeper consultation responsibilities by dividing them into representative collectives that together constitute the nation. These collectives then are consulted by and participate in national politics under the leadership of the vanguard, even as a space is retained for exogenous electoral  democratic action through the National Peoples Congress system. Chinese political parties, under the CPC, exist within the political apparatus. This is contrasted to the role of political parties in liberal democracy that exist exogenous to the state and the governance apparatus even as they focus on the performance of elections to embed themselves within it as the critical junction between party and government.

The Conference PPT follow.  The paper may be accessed HERE, with its introduction reproduced below.