Wednesday, May 31, 2006

The Auditing Function in Marxist-Leninist States: The Example of Cuba

Marxist Leninist states in transition to or confronting modern economic globalization, and its business norms, eventually must confront the issue of transparency of operations, especially where an economic organization has investors other than state entities. In that context, the question of the nature of the auditing function arises, and more specifically, the question of the existence of the concept of an auditor (an independent entity, not an internal auditor). Is it possible, for example, for the auditing function to be squared with the fundamental ordering principles of Marxist-Leninist state organization in, say, Cuba or even China?

This question is much more important than it might appear. The short answer is "no." But the short answer is a bit misleading and must be understood in the context of the Stalinist-like apparatus that oversees official life in Cuba. There are people in Cuba (usually attached to the relevant ministries, whose job it is to review the financial dealings of the entities under their supervision. To a great extent this oversight is based on a loosely understood set of accounting standards, though nothing resembling the hyper-complexity of Western style accounting concepts (that sort of refinement will await some future time). All of this auditing is necessarily public. The state essentially owns, for the benefit of the people as a whole, all of the means of production, however organized. And of course, because of the foundations of the state in Marxist Leninist theory, the concept of independence would be impossible. There is no independence of the state. But one has to draw with a finer brush here. An auditor might be independent of the entities they review, though all owe similar allegiances to the same ultimate "owner." Thus, it might be possible to fashion independent auditing more along the lines understood in the West if the auditing or supervising function was vested in a ministry other than that being reviewed. But that is difficult given the realities of power and bureaucracy in Cuba (similar in a way to the apparatus of the later Soviet era).

This is unlikely to change much, assuming a transition to Chinese style global engagement. Indeed, as many people are aware, the Chinese have been investing a tremendous amount of expertise in Cuba and the Cuban military is attempting to copy the Chinese PLA in structuring state ownership through indirect control of enterprises semi-privatized. See, e.g., Cuba-China Relations, Cuba Facts, Issue No. 21 (May, 2006). But at least under this form of economic governance, auditing will begin to look more like that understood in the West (and there will likely be a greater need for Western expertise with respect to the auditing function). And the demand would be focused on the great public/privatized firms rather than on Western style purely private enterprises. And if the Cuban in charge of transition are smart, they will insist on native auditors to perform state regulated audits of all enterprises operating within the national territory, if only to provide a state mandated basis for training a large cadre of people in the globalized auditing function. Foreign auditors that are able to provide aid to those state enterprises as they learn to speak the language of Western accounting will likely find themselves best positioned for the long term. Of course, all bets are off if the Americans are able to effect more dramatic changes after the passing of the current regime's leader. See generally, Backer, Larry Catá, Cuban Corporate Governance at the Crossroads: Cuban Marxism, Private Economic Collectives and Free Market Globalism. Transnational Law & Contemporary Problems, Vol. 14, No. 1, 2005.

Sunday, May 28, 2006

Corporate Social Responsibility From the Bottom Up: Barcelona 2006

A number of commentators have written about corporate social responsibility, that is, of the efforts, usually not legal, to induce corporate actors to adopt certain moral, political or ethical practices. The latest efforts to formalize these efforts at the international level, though quite clever, were unsuccessful. See my Multinational Corporations, Transnational Law: The United Nation's Norms on the Responsibilities of Transnational Corporations as Harbinger of Corporate Responsibility in International Law.

But, law hardly ever waits for positive enactments from national or international organs. While public law dithers about, private law systems, not binding but compelling in any case, continue to shape the form of corporate governance on a global scale. I got a small taste of this recently in Barcelona where I was witness to the effectiveness of corporate social responsibility efforts "from the bottom up."

What do I mean "from the bottom up"? For the most part, most of the current focus on corporate social responsibility is with large multinational corporations and the nation-states that either protect them or that are ripe for exploitation by them. There is understandably a focus on the big actors on the largest stage of human organized behavior. That is all well and good, but many times, the more important changes in social conduct, and legal standards, percolate up from the bottom--from the small and local actors and the communities of consumers that directly influence their practices and behaviors. Corporate social responsibility campaigns are an example of a case in which action from the most local level of activity could have a significant influence on the major actors and the public institutions that respond to the "big fish."

Well, what is going on in Barcelona? The city has seen a well publicized and tightly orchestrated campaign to sensitize the public to the evils of exploitation of developing country labor. Taking the form of a "just commerce" campaign (festa de commerc just), elements of Catalan civil society have focused on exploitation in the production of sugar, coffee, cotton and cocoa. In a well funded series of events stretching over three days (from May 26 through May 28) held at the Plaça Catalunya, one of the most visible spots in Barcelona, and a place sure to attract the attention of the thousands of European and other tourists now flocking to the city, these organizations are employing an assorted number of theatre and other post modern techniques to inform passersby of the importance of this issue.

In a well written and widely distributed publication in the form of a newspaper (I avui, que compraras?), these elements of civil society have explained the evils of exploitation of workers in thos eindustries. More importantly, they have secured the pledges of a large number of local enterprises, all small by global standards, to adhere to a social responsibility standard under which they agree not to purchase and sell to consumers products that do not meet the published "just commerce" standards. And not all of them are small enterprises, for example, Carrefour, the large European retailer has signed on as well.

We are not dealing here with a bunch of "lunatic leftists" stuck in the 1970s with no place to go, marginal actor son the current world stage. Rather, this is strong evidence (especially when reproduced in one form or another throughout the developed world) of the importance of grass roots efforts in the shaping of corporate governance practices, at least to some extent. These groups are slowly pushing small, medium, and even large retailers, to adopt certain positions. To the extent that these positions affect these retailer's purchasing decisions from the larger manufacturers, it will, over time, have a substantial if indirect effect, on the practices of the larger enterprises. And that is the point. Even Wal-Mart will have to bend to consumer tastes and preferences. . . eventually, or cease to exist. Civil society is learning that while it may be more efficient to influence practices at the level of the largest enterprises, it is probably more effective to change consumer tastes and the behavior of large numbers of local retailers. Barcelona's efforts may be more gaudy than in other venues, but it is evidence of the work that is increasingly bearing fruit all over the developed world.

And what of law? Well, on one level there is nothing to say. Law permits the very actions that elements of civil society are undertaking, as well as the responses of the corporate and other actors that feel the effects of that action. None of this effects a change in the form of corporate or enterprise law, as such. But the effects may have legal ramifications nonetheless. At the lowest level, and depending on the sort of claims made by corporations adhering to the "corporate social responsibility" standards, such actors may be liable for fraud in the sale of their products in they violate the claims to adherence to these non-exploitation norms. Much more interesting may be the way in which substantial adherence to these norms may begin to create customary practice that might eventually be given legal effect, either in contract or as a matter of evolving standards of international law and practice.

In any case, it pays for lawyers to continue to watch the efforts of these elements of civil society "from the bottom up." This may well be the most important sector effecting changes in corporate practice affecting multinationals.

Thursday, May 25, 2006

The Enron Verdicts, Oppostion to Immigration Reform, Gay Marriage, and God: The Growing Legitimacy God's Law Over U.S. Law

Over the last several weeks there has been tremendous amount of media attention to a series of what seem to be completely unrelated events.

First, Congress has been working on the formulation of a proposed amendment to the American Federal Constitution to interdict marriage as a legally recognized institution when attempted by more than two people or by two people of the same sex. Many (though by no means all) of the people holding authoritative positions in the American religious establishment have greeted this movement with great joy. There is a sense that at last the state will do its duty by aligning its coercive power with the requirements of God's law. All discussion of opponents are dismissed as the whining of people or groups worthy of marginalization, and the expectation is that the state will use the full force of the civil and criminal law to see to it that this amendment, if adopted, is vigorous enforced.

Second, in response to the proposed criminalization of undocumented immigrants to this country, and the proposed sanctions on those who aid them in the United States, Cardinal Mahoney of Los Angeles publicly stated that the proposed reforms would put serious limits on the Church's ability to serve illegal immigrants. He called for priests to defy the law if it passes.
He is quoted as saying: "The church is not in a position of negotiating the spiritual and the corporal works of mercy," Mahony said during a Mass at the Cathedral of Our Lady of Angels marking the start of the 40-day season of Lent."We must be able to minister to people, regardless of how they got here," he said." See Mahoney Calls on Priests to Ignore Proposed Immigration Law.

Third, on May 25, 2006, a Texas jury returned a guilty verdict in the criminal trials of Jeff Skilling and Kenneth Lay for their part in the fraudulent activities of the Enron corporation that ultimately resulted in the ruin of that company and the passage of the Sarbanes Oxley Act (see my article The Sarbanes-Oxley Act: Federalizing Norms for Officer, Lawyer and Accountant Behavior . In reacting to news of the verdict, Mr. Lay invoked God. "“God’s got another plan right now,” Lay, the son of a preacher, said without tears. “We’ll all come through this stronger and more reliant on God (Lay, Skilling Guilty on All Counts). . . . Then Lay walked outside the federal courthouse and declared himself blessed because “we believe that God in fact is in control, and indeed he does work all things for good for those who love the lord.” See Lay, Skilling Guilty on All Counts (

What do the three events have in common? God and the invocation of the absolute law of God.

Each represents a different way in which God, and Divine law, is increasingly invoked in the United States. It suggests a complex interweaving of human and divine law, and a problematizing of the relationship and hierarchy of law as between these systems. Each also suggests the way in which religious discourse, and the absolutism of Divine law, can be used to promote, resist, or overcome human law.

In the first instance, God is used to affirm the value of a political choice made by Congress. And it is then invoked to marginalize--and demonize--opponents. Opposition to the Marriage Amendment is transformed from political, ethical or moral disagreement, to heresy, opposition to religion, or the thwarting of the religious will of the majority of Americans. The duty of all Americans is to obey, and by obeying to comply with the requirements of both secular and divine law. There is an echo here of the sort of religious approach to law that one finds somewhat troubling in places like Iran, or Afghanistan.

In the second instance, Divine Law is used as a means of trumping secular law deemed in opposition to religious law. Congress can pass whatever secular law it likes, but it has no jurisdiction to interfere with the obligation of institutions to adhere to higher law. In this case, the institution is the Catholic Church--but it could be any institution, from Satanists to Masons. All that is required is a bona fide belief grounded in the demands of a being beyond the control of humankind, institutionalized within a religious system with a well developed legal (or rule codex). The critical assumption, though, is the necessary hierarchy of human law: divine law as received by the keepers of God's word on earth is supreme (this can include theology and increasingly also morals transposed into legal norms), secular law is subordinate to the divine law. In the event of a conflict among the keepers of divine law, a sort of majority rule of divine law operates (an ironically American republican solution to the difficulty of fostering dialog among absolutist systems that deny the legitimacy of competitor systems).

In the third instance, divine will and secular law are joined. God's plan is primary; human justice is flawed, or, at best, the means through which God manipulates lessons, justice, punishment, trial, and redemption in accordance with the Divine (and not secular) plan. As instruments of the Divine plan, each person must play their part "though they know not what they do." Secular law is the means to a divinely inspired end.

What is remarkable about the three events is the way in which each, in turn, elevates divine law above that of the secular law of the state. And this is not just a theoretical proposition. In the first instance, divine law shapes secular law in the way that was accepted before the Enlightenment as natural and required. In the second, the doctors of faith communities acquire a veto over the application of secular law, tot he extent they opine that divine and secular law conflict. In the third, secular law is understood as incoherent and merely a pathway toward a higher truth and a higher judgment. Justice is the Lord's and religion trumps that state and its governance apparatus.

None of this would be particularly noteworthy in 1500 in Europe--or in Saudi Arabia today. All of this would be perfectly reasonable in a society in which virtually all of the people fervently, and voluntarily belonged to the same faith community. But the United States is not that place--not since the leaders of this land, early in the colonial period, acquiesced in the reality that this would be a land of many faith communities--for good or ill. Now the problem--through whose religious institution will God speak to the political community? The leaders of every faith community will volunteer their interpretation of Gods word (expressed as theology, ethics, morals and derivative norms) as the authoritative speech of God. The legislature in Missouri would legislate the authority of a particular manifestation of God in the United States and privilege one set of His messengers over others. John Mills, State Bill Proposes Christianity to be Missouri's Official Religion (Missouri legislators in Jefferson City considered a bill that would name Christianity the state's official "majority" religion).

In a multi-religious society in which all religions are entitled to equal respect, then the thrust of the three impulses illustrated above can lead to some interesting results. Take the proposed Constitutional Amendment to prohibit gay marriage, for example. For the Catholic or evangelical Christian, the measure is a necessary means to the implementation of divine law within the polity. For the Unitarian, the measure could represent a secular abomination that must be resisted by resort to compliance with a higher law--the law of a God that would sanction and embrace marital unions between people of the same sex. And for gay men or lesbians, the measure would represent a Divine plan for testing--for a necessary sacrifice to evidence an adherence to God's plan for Humankind.

Poetic. Divinely inspired. But where does that leave the state? Fractured, for the most part. The territorial state, unified within a geography but internally divided by the inconsistent and absolute requirements of different Gods, would recede before the power of the greater community--the community of faith. And thus the state suffers, and withers. All in the service of a Divinity that has chosen to convince communities of faith that a Divine Babel is the highest form of state organization.

The traditional solution to this difficulty--that religion maintain its supremacy within its faith community, by operation of a strong and voluntary moral and communal will evidenced by the sound habits of its members--does not appear to be good enough. And the reason perhaps is that traditionally dominant religious communities must now share the political community with other religious establishments whose morals and ethics constitute acts of abomination within the traditional religious communities (polygamy, abortion, same sex marriage, etc.). And sharing is hard to do. See, Larry Catá Backer, Religion as Object and the Grammar of Law, 81 Marquette Law Review 229 (1998).

But don´t get me wrong. I am not suggesting that these patterns of invocation are bad, or aberrational, or out of character in our Republic. Quite the reverse. These sorts of patterns of invocation have been with us since the Founding. They were crucial in the great moral battle over slvery (giving us, for example, John Brown´s ultimately pivotal raid on Harper´s Ferry), and the equally great battle over alcohol leading first to Prohibition, and then to its repeal. The American constitution is silent with respect to the question of the existence of a hierarchy of law in which some sort of law might be deemed superior to federal Constitutional law--be it divine law or international norms, or whatever. And the complete or effective suppression of this strain of American legal perspective would produce far too much government of the totalitarian sort. There is something to the notion that dispersals of power, in this case away from the state and into the hands of independent religious communities (along with dispersal to independent economic, social, and other communities, in turn) produce a dispersal of power that makes it more difficult for any government to assert the power of a tyrant. And that is in keeping with one of the greatest findamental understanding of the Founders. On the other hand--too much dispersal, too much Divine command and control over the apparatus of government, is equally bad, and for the same reason. This sort of balancing, at least on a political level, has been crucial to the success of the European Union´s experiment in hybrid governance. Americans have managed to maintain a rough balance more or less over the course of the last coupole of centuries. Whether they can keep that balance into the future remains to be seen.

Tuesday, May 23, 2006

Globalization and Securities Markets

The New York Stock Exchange has offered to acquire the operator of a number of European stock and futures exchanges. National governments are beginning to wring their hands. It will be interesting to watch this attempt at deepening the globalization of capital--that is the creation of a more integrated global market for capital--in the face of the continued temptation for territorially limited states to attempt to extract something like a transaction cost from the movement of capital across borders. The attempt to unify this portion of the market for certain securities reminds us of the great transformation brought by the push toward economic globalization. The territorially based state, once the great protector of the capital and other resources of its citizens, now stands as an ever larger "transaction cost" in the efficient movement of capital across the globe. Like the great lords of medieval Europe, guarding the entrances and exits of the little territories they controlled for the purpose of exacting "tolls" and "fees" on traffic moving across their borders, state regulation of markets tend to inhibit rather than enhance the efficiency of capital markets.

And all of this, of course, in the name of some sort of "greater good" or "benefit" for the inhabitants of the territory with respect to which these regulations are limited. In developing states, the usual rhetoric embraces the ideals of equity in development and the disadvantages of competition for capital in a capital market the global rules of which are already tilted to favor developed states. In developed states, the rhetoric. See my discussion in Ideologies of Globalization and Sovereign Debt: Cuba and the IMF, 24 PENN STATE INT’L. L. REV. 497 (2006).

But what benefit is there in a system in which the accident of borders determines the aggregate of regulations to which capital is subject. While there may be some benefit to local inhabitants from the protections of state regulation, the differences in regulation (usually small) can serve only to benefit those who are able to take advantage of the discrepancies in regulations themselves. Territorial regulation of capital, then, can function in the same way as differences in the value of national currencies. The greatest value of these differences might well accrue to those who know how to take advantage of those differences.

Perhaps one day the world will begin moving to a global currency based on something like a 100 yen=one U.S. dollar=one Euro standard. But to the extent that nations, or influential elements of the economic sector within nations, can continue to make money off of the inefficiencies and transaction cost generating events arising from differences in territorially based values or regulatory regimes in a world increasing tending toward a free movement of capital standard, we will continue to suffer through manipulation of these inefficiencies. We will also continue to see states loudly proclaim their commitment to economic globalization--even to the free movement of capital--and simultaneously attempt to extract or divert value through regulatory barriers.

And this is the easy case.

The regulation of labor, tied so intimately with immigration, migration, human rights, and cultural policies, will be a much harder issue to tackle. For a discussion of some of these issues int he context of the great American debate about "immigration reform" see my blog entry: Irony, Perversity and Misdirection as Immigration Policy: 6,000 Troops and Their Sisyphean Labors.

Thursday, May 18, 2006

Specialization in Legal Education by Means of Certificate or Concentration Programs

Specialization in legal education, like that in private legal practice, has become more pronounced. Law schools have responded to the specialization trend by instituting programs leading to the award of post-J.D. degrees, primarily the LL.M., and by providing for recognition of specialization as part of the J.D. course of study through certificate or concentration programs. American law schools have had at least a decade to get accustomed to the idea that legal practice has become increasingly specialized. Law schools, themselves, have not escaped the tendency towards hyper-specialization that has characterized the legal profession for at least a generation. It is not uncommon for law schools to divide their curricula by fields of practice in ways that mimic the private sector. Not only have law school faculties evolved to reflect specialization, but the approach to training law students has changed as well. Law schools confront the new reality of specialization, or risk producing students less well equipped to compete in this new work environment.

Law schools have responded to this reality of specialization in a variety of ways. One of the more successful responses to this trend has been the proliferation of post-J.D. programs in specialized fields. Another response has been the establishment of concentrations or the creation of certificate programs—programs of specialized study leading to a certificate or other document memorializing the successful completion of this program of specialized study. Boston University’s web site suggests that concentrating one’s studies in one of a number of specialized areas of law may provide law students with the necessary skills to stay ahead of rapidly changing regulatory environments. “By pursuing a concentration, students can engage in advanced, in-depth study with the leading scholars and practitioners in a specific field, without having to pursue an advanced degree. Students are then equipped with the specialized legal training and tools that can give them a powerful advantage in the marketplace” (; accessed May 17, 2006).

Certificate programs became more popular in the 1990s. Their popularity can be explained, in part by their flexibility. The programs are not directly regulated by the American Bar Association or other professional regulatory body. The certificate earned upon completion of a program is not a “degree,” like a J.D., or other traditional indicia of completion of an academic program, all of which are heavily regulated within legal academia. It has no formal institutional meaning other than set forth on its face. Nor is the meaning of a certificate universal. Its academic “weight” is highly contextual. As such, it is worth “less” than a degree. But this freedom from regulation of programs, and this “worthlessness” of the certificate itself, will be crucial factors in the ultimate proliferation of certificate programs. These characteristics result in programs that are easy to implement and require substantially less administrative expense than their direct competitors—the LL.M. programs. Though the LL.M. degree may be “worth” more—have more value as an academic credential—than a certificate added on to a J.D. degree, the cost of implementing and maintaining an LL.M. program will be substantially higher than the equivalent costs of a certificate program.

At schools with the necessary faculty resources and courses already in place, creation of such programs requires minimal modification to current practice—usually just adoption of a set of simple rules specifying the courses a student must successfully complete in order to obtain a certificate. Thus, in their simplest form, certificate programs are cost-effective means of providing academic guidance to students seeking some sort of specialized program of study. It has additional benefits. It provides a means of informing employers of the student’s specialization, and of regularizing the course of study leading to that specialization—at least within each law school. Certificate programs may also aid in recruitment of prospective students. Students may be drawn to an institution that provides specialized study, leading to a recognition of that specialization, especially if they have an interest in the areas of the specialization available. Even if this is not the case, a prospective law student may use certificate programs as a proxy for faculty quality in a particular area of law, or depth of faculty coverage in these areas. Both surmises work to the benefit of the recruiting law school offering the programs—and to the detriment of competitor institutions that fail to act. Ironically, certificate programs may also provide another long-term conventional benefit —they may serve to prepare an institution for a solid investment in an LL.M. program.

The decision to create a certificate program in any area of legal specialization may be a difficult one for a law school. Successfully designed and implemented certificate programs require a substantial amount of attention to detail to ensure that they complement a law school’s mission and appropriately deploy institutional resources. Successful certificate programs are those that manage to increase generally the quality of an institution and provide aggregate benefits to students and faculty greater than the costs of operation of the program over the long-term life of the institution.

Certificate programs will vary considerably in their scope and content. Every certificate program must conform to the nature of the field that is the subject of study. As a consequence, such programs can vary considerably in form and detail. At some level of generality, however, all certificate programs contain common elements. This “commonality” is a function of shared principles underlying the creation and implementation of these programs. An understanding of these underlying principles is critical to the creation of sound certificate programs. My purpose in this section is to draw out those general principles, with a view to applying these principles to Penn State’s Certificate Program in the section that follows.

1. Differences in form between programs should be minimized.—At least within any institution, minimizing variation in the form between certificate programs offered by that institution will increase the marginal utility of the programs as a whole.

There is pedagogical value in establishing a similarity of form among all certificate programs offered at a particular institution. An overall consistency among programs may reduce student confusion. It serves, as well, to decrease the likelihood that students will fail to fulfill the requirements of a particular certificate program. Overall macro-consistency may also reduce faculty confusion, or indifference to programs. Reduction of faculty confusion may encourage faculty to better counsel students seeking their advice. Reducing indifference may encourage faculty curiosity and the advancement of knowledge through conversations across disciplines. Lastly, basic similarity of organizational form may make it easier for certificate program directors to interact, from simple matters such as sharing information on administration and student concerns, to matters of substantial institutional advancement such as the creation of joint endeavors.

There are administrative advantages to macro-similarity as well. Program similarity may serve to reinforce the distinctive culture of an institution. Macro-uniformity makes it easier to structure and implement other programs of concentration. Each concentration can make use of a basic structure that experience has shown works successfully within the academic and administrative context of the institution in which the concentration is to be adopted. Thus, program similarity reduces the cost of administration. Deans, associate deans and others charged with multi-program administration may find such tasks easier where the basic organization and functioning or programs share basic components in common. Such similarity may also encourage uniform treatment of programs by senior administrators. Perceptions of fairness tend to reduce friction within a faculty; a culture of uniform treatment is a basic component of that perception of institutional fairness that reduces the usual habits of faculty to seek individual advantage from administrators, and the resentments caused within a faculty when one person or group appears more favored than others.

Basic organizational uniformity can make it easier to publicize such programs among the various outside constituencies of an institution. For example, undergraduate recruiters may find it easier to “sell” programs where similarities make the variety of programs offered easier to explain. Likewise, organizational similarity may provide a more efficient means of publicizing such programs to alumnae and the local judiciary and bar. Where programs are open to participation by non-law students, organizational similarity makes participation easier.

2. Design programs for the future, not the past.—It is easy to build programs based on an understanding on where things stand at the present. Indeed, there is sometimes an urge to fix a program based on current views and understandings to ensure that the program will run in the future the way it was set up. This sort of approach to program design can be fatal to the long term utility of any legislation or program, including law school programs, and particularly certificate programs. Programs designed for flexibility, and with an eye toward the possibilities the future may bring can become more powerful vehicles for student and faculty satisfaction. Such programs permit change as faculty change. It makes response to changes in the market, in the fields of law, in faculty, and student interest much easier to make. It makes expansion, as well as contraction, of programs less of an administrative nightmare. It makes experimentation possible.

Yet, such a future-centered approach can require quite a bit of trust on the part of a faculty. The ideal of future focused program construction gives rise to issues of rules versus discretion that has plagued significant areas of law in the twentieth century. Where fairness is an issue, where core values and outlooks are not shared among those responsible for governance, discretion itself becomes problematic. Yet monitoring can serve as an effective substitute for limiting discretion in the context of the implementation and administration of certificate programs. Fairness to students in the administration of the certificate program, for example, can be monitored by instituting a protest or appeals process that leads to review by the Academic Dean. Discretion can be monitored by decanal or faculty oversight in the form of periodic reports from the administrators of the program. In addition, where empire building is a concern, multi-person administrative boards reduces the remote possibility of misusing certificate programs.

3. Program objectives should be clearly related to the mission of the Law School.—Certificate programs should be built on the basis of the assumption that the academic institution has committed sufficient faculty and other institutional resources to implement the certificate program in good faith. Absent this commitment, a certificate program is an empty shell—good only for the web page and recruiting. Ultimately, unrealistically implemented certificate programs tend to produce the ill will that flows from the belief among students that they have not received the benefit of their bargain with the Law School. Law Schools generally play to their strengths, as well as to the interests of students who tend to matriculate at each institution. This is a matter of economics and feasibility. This tendency to play to strengths, geography and limited mission is already well advanced in legal academia.

It is conceivable that a law school with multiple strengths could support more than one certificate program. It is also likely, under those circumstances, that the aggregate number of certificate programs will not affect the ability of the law school to offer its students a well-rounded curriculum. As long as the faculty is satisfied that its mix of mandatory and optional courses is fair and realistic, and that certificate programs do not completely monopolize student time, it is unreasonable to presume that certificate programs, even certificate programs in the aggregate, will substantially adversely affect the well rounded curriculum of any law school.

4. Limits—not every law school can support formal certificate programs in every field.—To be successful, certificate programs must be credible. One lesson of the last section must be that credibility requires playing to strengths. However, there are limits to the ability of law schools to create environments in which certificate programs, and especially multiple certificate programs, can operate. While there may be no quantitative limitation to the number of certificate programs that can be maintained by a law school, there ought to be qualitative limitations on the creation of these programs. A realistic qualitative assessment of the strengths of an institution in a particular field ought to be undertaken prior to any decision to move forward with a certificate program. Any such qualitative assessment can be most fairly accomplished only when based on the application of a uniform standard of assessment. Such a standard is necessarily contextual—its application will depend on the unique circumstances of each proposed certificate program within a law school. However, such unique circumstances can be consistently assessed against a uniform set of factors derived from the principles of certificate program construction developed in this section. Factors that must be weighed in any determination of certificate program feasibility should include at a minimum the following:
(i) the number of full and part time academic faculty devoted to that area of law at the law school,
(ii) the number of courses offered at the law school in that field,
(iii) the reputation of that law school among the community of scholars in that field,
(iv) the number of students who have historically and might in the future participate in the program,
(v) the synergistic value of a formal certificate program in that field,
(vi) the realistic potential for sustaining a focused scholarly and curricular enterprise in that field of law.
There are doubtless other factors that may play an important part in the consideration within the peculiar context of an individual law school. Thus, for example, it may be inadvisable to create a certificate program where there is only one faculty member involved full time in teaching and writing in the field, the number of courses that can be offered are limited, course offerings will be dependent on outside non-academic adjuncts, and there is little likelihood at the time the certificate is considered that either faculty or student interest in the field will be sustained or will grow. In those circumstances, there is no reason informal concentration programs cannot be created and run by interested faculty. These would serve primarily as a means of helping interested students choose more focused course packages in those fields where the law school does not exhibit the strength sufficient to create a formal program leading to a certificate.

5. Certificate requirements should be fair and realistic.—Parents who attempt to live through their children, who use their children as a means to correct the “mistakes” they made in their own youth, are rightly scorned in this society. Faculties, like parents, find it easy to get carried away by desires to “do what is best” for their students. Faculties must constantly fight the urge to do with their students what neurotically dysfunctional parents have been attempting in soccer fields and academic competitions throughout the United States in the last generation—live their fantasies through them.

The objective of determining the number and scope of requirements for a certificate should be to provide a substantial basic grounding in the field of law the study of which is represented by a certificate without the need to produce an expert the equal of the academics who trained the certificate recipients. A certificate is neither an advanced degree in law, nor does it represent anything but the systematic basic study of a field in which the beginner has commenced concentrated study. To invest the certificate with greater “results” than that is an exercise in delusion. As a consequence, certificate program requirements ought to be developed with an eye toward realistic expectations in the context of programs designed to provide a basic, significant advanced introduction to the field of law studied. All designers of certificate programs must communicate to their colleagues the difference between a certificate earned in conjunction with a J.D. and an advanced degree in a concentrated study of a field of law.

6. Certificate Programs should not be a refuge of the marginally performing student.—For a certificate program to provide the greatest benefit to students, the students themselves must be ready and able to profit from a concentration in any specialized area of law. To attain this aim, it is necessary that students be well prepared in the basics. Students who do not exhibit a minimum facility in core areas of law may find the program less valuable than alternatives. Moreover, a faculty may determine that students who do not seem to be able to demonstrate an adequate level of mastery of basic subjects ought to concentrate on that mastery before attempting specialized study.

Having determined that some minimum demonstration of mastery of basic subjects is desirable, it is necessary to determine which of the basic subjects are most relevant to the specialized study of a particular certificate program. This determination is highly contextual. To determine which courses were important as a general foundation for the certificate in international, comparative and foreign law, a number of factors were taken into account. These factors included the extent to which the substance of basic courses be important for success in the fields of law covered by the certificate. Another factor was the extent to which the basic course provided needed vocabulary or introduction to general principles with application to courses in the fields covered by the certificate. Yet another factor was the extent to which the course provided basic grounding in the lawyer’s craft and legal ethics. All of these factors, of course, have something in common. They all developed basic patterns of approach to legal problems, or a basic understanding of the structuring of basic institutions and process at the core of the lawyer’s function.

7. Program administration should be used as a vehicle for the integration of all faculty working in the field within the common enterprise.—Development of program administration can be as important for optimizing the value of a certificate program for an institution as program design. There are two general models of governance generally followed, though the variation within each category is large. The first is the single administrator model. The second is the governance-by-committee model. The former, at its worst, can be a vehicle for personal aggrandizement within an institution, and the springboard to personal advancement—perhaps to a deanship. At its best, the single administrator model can be the basis for dynamic and flexible efficient administration. Variations on this form of administration include administrator plus advisory committee, or the executive director plus board of directors model. Governance by committee can range from a dual director model, to a model based on governance through committee or committees. The basic difference between the two models is that a single person is ultimately responsible for decisions under the single director model and more than one person, collectively, is responsible for decisions under the other model. In many institutions, the model chosen is based on historical accident. Usually little attention is paid to the form of governance as a matter of theory, apart from personal benefit to the actors directly affected at the time the model of governance decision is made.

8. Certificate Programs should serve as a focal point for generalized guidance for students on curricular choices.—One of the hardest tasks for most law students is choosing the appropriate mix of courses that may maximize the value of their law school education. While maximizing the utility of curricular choices is to some extent highly subjective, such decisions are more difficult to make in the absence of information. A certificate program provides a useful vehicle for a law school to meet its information and guidance roles, at least with respect to the fields of law covered by the certificate.

For faculty, certificate programs can serve as an efficient gateway for the counseling of students. Faculty, even those not involved in the fields covered by the certificate program, can make use of the curricular requirements of the certificate, in general, and the illustrative courses of study, in particular, to help students develop a personal program of study that maximizes the utility of their years in law school. Moreover, well constructed illustrative programs of study leading to the award of a certificate can be developed consistent with the general mission of the Law School to produce well-rounded lawyers.

9. Certificate Programs should be made available to alumni and other members of the bar.—Law schools have increasingly understood their mission as neither limited to the three years of study leading to a J.D. degree, or to the education of their matriculating students. Increasingly, law schools have understood the importance of providing their alumni with opportunities for continuing education as well as for other lawyers. A certificate program provides a sound vehicle for an integrated, long term program of continuing education for lawyers wishing to expand their areas of expertise. It may thus be possible to permit lawyers to audit or otherwise enroll in courses leading to the granting of a certificate, and to make a certificate available to lawyers who finish the program. Alternatively, the courses comprising the certificate can be made available for enrollment by lawyers seeking continuing legal education credit.

Though, on first blush, one might be tempted to object to any program that permits lawyers to sit in on classes designed to meet the requirements of the J.D. curriculum, a more careful consider-ation suggests that the benefits of this mixing far outweigh any theoretical negatives. One of the strongest objections to mixing might be that programs of this kind offer lawyers the opportunity to retake courses already taken in law school. Yet this is unlikely to occur in fact. First, lawyers are busy, J.D. courses, even on audit, would tend to require the expenditure of some money. Lawyers would tend not to want to waste their time or their money on silly enterprises. Lawyers most likely to take advantage of these opportunities would be those who never had a chance to take the courses offered when they went to law school and find themselves confronting problems in new areas of law.

10. Certificate programs can be crafted to avoid adversely affecting bar passage rates.—Evaluation of the suitability of any certificate program will invariably lead to a discussion of the effects of the certificate program, or of legal specialization in general, on bar passage rates. Someone will suggest that certificate programs contribute, directly or indirectly, to a downward pressure on bar passage rates. Yet careful consideration of the issues statements like that raise indicate that certificate programs, when carefully constructed, do not have this negative effect on bar passage rates. The argument confuses the effect of specialization with hat of poor grades on bar performance. More significantly, it hints at dissatisfaction, not with certificate programs, but with the curricular choices made by the faculty between mandatory and optional courses.

In considering the parade of horribles attendant on any change within an institution, it has sometimes been suggested that certificate programs may somehow be linked negatively to an institution’s bar passage rate. Certificate programs, it might be argued, offer marginally performing students a way of rehabilitating their relatively poor performance (at least vis-a-vis the other students in their class). These students may be disproportionately attracted to certificate programs in hopes that a certificate may deflect a closer or more meaningful inspection of their aggregate academic performance. And indeed, where poorly performing students do better on their certificate courses than on other courses, they might even take advantage of this to advertise a higher grade average in an area of interest than in their aggregate performance. As a result, so the argument may conclude, such students devote a disproportionate amount of their class time on “marginal” courses, that is courses necessary to complete the certificate, and less time on “important” courses, that is courses that might help them better prepare for practice. As a result, these students may be more likely to fail the bar and thus negatively affect the bar passage rate of the institution.

Careful analysis of this argument suggests some of its weaknesses. First, it is not clear that marginally performing students are attracted in disproportionate numbers to certificate programs. Second it is not clear that marginally performing students will perform better in courses that count for the award of a certificate than in other courses. Indeed, assuming that all courses are taught within the same range of rigor, a student’s performance should, on the average, be similar in certificate and non-certificate courses. Most importantly, the connection between participation in certificate program courses and other course work which, if properly undertaken might have bettered the student’s chances of bar passage, rests on slim logic and little hard evidence. It suggests that but for the time spent on a course of certificate study, the student with a low grade point average would have either performed better in courses otherwise deemed more appropriate to bar preparation, or would have taken more courses deemed essential to bar preparation.

11. Certificate Programs can contribute to the development of a well-rounded graduate.—Most law schools profess a mission to produce a law graduate with a well rounded legal education. Certificate programs, if well constructed, can provide an efficient means of affording direction in the third year of law study, increasing the utility of the student’s third year. At their best, certificate programs, in conjunction with a well thought out program of required courses in the first and second year of study, provide an integrated course of study that can enrich all three years of legal study. Certificate programs provide a means of thinking about general curriculum issues in a narrower context. Similar considerations should guide the structuring of the sequence of courses, required and optional, that forms that basis of a certificate program, as those that inform the creation of the general law school curriculum. Certificate programs may well thus provide a framework, or another more narrowly focused space, within which the important issues of curricular needs and “what is best for students” can be developed. Yet at the same time, the focus permits law schools to adjust to the realities of the markets they serve, both legal and otherwise, especially the move towards specialization—not hyper-specialization, but rather specialization to some extent. Certificate programs provide a point at which legal education can adjust to the practices and cultures of the industries in which it operates.

Tuesday, May 16, 2006

Chinese Constitutionalism, Sange Daibiao (the “Three Represents”), and the Rule of Law

Since the middle of the last century, the ideal of constitutional legitimacy has been grounded on the foundation of the concept of the rule of law. The rule of law is usually understood in two senses: First, in its process aspect – as embracing firm limits on an arbitrary use of power, that is, of the use of the state power when not grounded in law; and second, in its substantive aspect – as vesting the state with a critical role as guardian of a set of foundational communally embraced substantive norms that are to be protected and furthered through the use of state power grounded in law. In the West, the foundational expression of this substantive aspect has taken on a variety of aspects. For example, in the United States, process itself (as an aspect of fairness, understood as substantive due process or equal protection) has assumed an important foundational substantive rule of law quality (Backer 1997), along with the overarching substantive principle of “democracy”(Bush 2004). In Germany, the underlying great substantive rule of law norm is “human dignity” (German Basic Law art. 1), embraced, in part, as a consequence of the experiences of Germany between 1933 to 1945. As a formal expression of commands, rule of law in both of its aspects is usually associated with positive acts (law) emanating from legitimate institutions of state power representing the political community (Dowdle 2002; Peerenboom 2002).

The focus on rule of law analysis is usually limited to the formal state apparatus (Blanchard 2005). The institutions of the state apparatus, its government, are usually synonymous with those political institutions through which the legislative, executive and judicial authority of the people are exercised. It is almost always fixated on the governance norms contained in the state’s constitution—the document understood as the highest expression of the political will of the people in their role as the ultimate sovereigns, that is, as the supreme holders of state power. All other entities or expressions of power within the state are viewed as subordinate to the formal system of state power.

Political parties are viewed as “factions” in the sense understood by James Madison in Federalist Paper No. 10: “By a faction, I understand a number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse or passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community” Madison, The Federalist #10). Such factions do not represent the people as a sovereign body. Rather, they are the expression of individual will, even in collective form. Thus, Madison also refers to: “Complaints are everywhere heard…that the public good is disregarded in the conflicts of rival parties” (Madison, The Federalist #10). Thus, from the earliest period of the American Republic, there was a strongly guarded separation between a state and its instrumentalities (as representative of the entire people), on the one hand, and factions or political parties (as representative of the will of individuals), on the other hand.

There can be no formal governance power that exists outside of the state and the institutions identified in its formal governance documents. Thus, the West traditionally separates the ideology of political power, which is thought to represent the personal views of individuals rather than the people as a whole, from the institutions of the state, which is thought to be bereft of political ideology other than to the extent inherent in its very structure through which the will of the people as a whole may be expressed.

On this basis, there has been a sort of standardization of the analysis of ‘rule of law’ issues in the People’s Republic of China. It goes something like this:

China has sought to conform its institutions to the norms developed in the West. China has created state institutions as those organs of government where the will of the people as a whole can be represented. China has separated from these representative organs of state power the institutions of the Chinese Communist Party (CCP). That separation confirms the Western intuition that the CCP is no more than a faction; the CCP can represent (at best) the will (however powerful) of a mere political party (albeit one with current constitutional status).

Having separated politics from institution, the constitution necessarily focused almost exclusively on the institutions. The Chinese Constitution of 1982 has, as a formal matter, embraced the idea of the rule of law in its process aspect. The Preamble declares that the Constitution “is the fundamental law of the state and has supreme legal authority.” Article 5, as amended in 1999, emphasizes that “the People's Republic of China practices ruling the country in accordance with the law and building a socialist country of law." However, the Chinese Constitution has avoided any attempt to embrace rule of law in its substantive aspect, even as a formal matter within the black letter of the Constitution itself. To the extent that reference is made to ideology--Marxist/Leninist, Mao Zedong, Deng Xiao Ping Thought, and Three Represents Thought, those references are to mere ideology and do not implicate rule of law issues.Moreover, even formal compliance with process rule of law aspects hides the reality of deficiencies in the implementation of these safeguards.

As a consequence, outsiders have questioned the fidelity of the Chinese state to the rule of law because of the control by a single party, the CCP, of the apparatus of state power in China, including all law making power. In one sense these arguments can be reduced to a criticism of Chinese constitutionalism as illegitimate because it lacks a basis in institutionalized moral and ethical norms. For the rule of law, these commentators suggest, China, through the CCP, has substituted, the personal desires of the leaders of the CCP. In the absence of these fundamental institutional norms, the behavior of China's leaders are essentially unconstrained--the essence of arbitrary governance in Western thought. The greatest effect is on the willingness of the political culture to tolerate a tremendous amount of personal discretion in the application of rules, and the use of personal power for personal ends (career advancement, and the like). Rule of law systems cannot be legitimate or authentic in the face of party control of the apparatus of state government because no party can represent all the people—only the institutions of the state can serve that function.

While grounded in neutral language, these arguments are, in reality, applied expressions of a particular ideology that has assumed aspirations to universalism in the period after the end of the Second World War outside of China. Specifically, this popular strain of rule of law analysis is grounded in a very specific ideal of constitutionalism that has become well developed and accepted outside of China, but which peculiar ideal is somewhat removed from governance ideals developed within the People’s Republic. The international norm system of deep constitutionalism developed since 1945 serves as the ideal against which the Chinese system is evaluated (Backer 2006). That system is “based on the idea that a universally shared system of values exists that serves to limit the extent to which any political community can express the popular (sovereign) will in their constitutions. These universally shared (and imposed) norms are developed and policed from out of an on-going discussion among the community of nations, from out of which norms are developed through consensus. These norms focus on the limits of state power, especially as expressed against individuals, represent the highest expression of universal political will, and are meant to provide the foundation for the rule of law as expressed within the constitutional traditions of a state” (Backer 2006). Most prominent among these norms are “democracy,” and “human dignity,” from which globalized constitutional norm making is grounded within a complex of social, political and economic rights articulated in an increasing number of pronouncements from international organizations.

These approaches to an analysis of China and of Chinese constitutional developments tend to tell us more about the cultural perspectives of the critics of Chinese developments than about China itself, the ostensible object of that analysis. In this respect my analysis shows some sympathy for Donald Clarke’s position that the standard critiques are based on an “imperfect realization of an ideal” or IRI approach to comparative law. Clarke argues that systems are measured and analyzed in terms of an ideal state chosen by the analyst. The system chosen is usually a western political system—the United States or a European state. As a consequence, any sort of western-based rule of law paradigm contributes little to an understanding of the evolution of Chinese governmental institutionalism. (Clarke 1999). This view, in one form or another, has served both to problematize rule of law analysis especially as applied to East Asian states (Peerenboom, 2004; Clark 1999), or its application to China (Peerenboom 2002b).

As applied by commentators to Chinese constitutionalism, these ideals usually translate into a criticism of the Chinese Communist Party as an impediment to the evolution of the instrumentalities of the Chinese state to a “rule of law” government. Alternatively, these commentators seek to solve the “problem” of Chinese rule of law transition by concentrating on the formal institutions of government and marginalizing the CCP. These generalized criticisms or marginalization of the CCP takes a number of forms, even among those sensitive to the realities of Chinese governance. Eric Orts, for example, is one of a number of scholars who seek to unbundle democratic theory from rule of law analysis. But the focus there is on the institution of rule of law within the institutions of government with the CCP playing, at best, the role of an outsider/spoiler in this institutional context (Orts). Pat Chew also suggests the possibility of an institutionalized rule of law regime within the Chinese state that is not necessarily tied to Western notions of democracy (Chew 2005). Others have also suggested the difficulties of squaring the notions of rule of law with development in East Asia (Ohnesorge 2003b).

Randy Peerenboom shares some sympathy for Clarke’s position but also focuses on the institutions of the Chinese state rather than on those of the Chinese Communist Party. He focuses on distinctions between “thick” and “thin” notions of rule of law. Focusing on attainment of thin rule of law governance in China, Peerenboom suggests that the rule of law in China is in a very youthful stage. He explains that China must focus on the process aspects of the rule of law and that a complete transformation awaits the folding of the Chinese Communist Party into a traditional state system in which it will serve its purpose as one of many political parties (Peerenboom 2002a).

I want to suggest that this approach is unsatisfactory for three reasons:

First, it misses an important recent development in the specific context of Chinese constitutionalism—the growing importance of writing specific ideological frameworks into the constitution. This may suggest a greater willingness to advance the implementation of ideology, and the substantive structure it represents, through state power grounded in law. “Ideology has become again an important vehicle for communicating regime values to Party cadres and the masses” (Hepeng 2004, 262). Ideology serves to supply the normative bases of appropriate institutional action that serves to define the relationship between state/supreme political entity and the individual. However, because the norm structures of Chinese ideology articulated through the CCP remain either alien or antithetical to their usual Western counterparts, they remain opaque outside of China.

More importantly, it dismisses as ideology developments in Chinese constitutionalism that in Western States might be characterized as the development of substantive or deep constitutionalism. It has struck me as ironic that the American President’s ideological campaign for democracy, accountability and social responsibility should be treated as part of the important discourse of values constitutionalism in the United States, and yet the important conversations within China about the role of citizen, state and party be marginalized as “mere” ideology. But it is also important to accept that Chinese constitutional conversations will occur in a manner distinct from, and using forms that are not familiar to, to Western approaches to constitutionalism. While it is important to judge these efforts, both within and outside of China, it is also important to base those judgments within the framework that China has chosen for itself.

Second, it misjudges the theorizing of the CCP. On the one hand, it takes the ideological campaigns of the CCP too literally. As a consequence it tends to minimize the importance of this theorizing. Characterized as mere CCP sloganeering, ideological campaigns, it is suggested, are little more than cynical attempts to manipulate Chinese public opinion with no intended substantive effect. On the other hand, Western analysts do not take CCP ideology literally enough as little more than the politics of individual power by other means. Ideology serves merely to mask the arbitrariness of the CCP’s culture of the exercise of personal power with no limits.

Third, it misses the important institutional place of the Chinese Communist Party in the analysis of rule of law in China (Backer 2004).

Let us focus on this third, and most important element of Chinese constitutionalism. In Western analysis, the CCP is the elephant in the room that no one wants to acknowledge. It is either viewed as an impediment to attainment of the rule of law or as a vast and unruly faction that stands between the people and the state apparatus, essentially the group that prevents the development of democracy and independent state institutions capable of supporting a strong rule of law (in process aspects) state.

I suggest that no analysis of the rule of law in China is possible without taking into account the institutional role of the Chinese Communist Party both within and outside the apparatus of the state. This requires taking seriously the expression of the place of the CCP as the “party in power” for constitutional purpose. It also requires looking at the CCP not as a western style party—like the faction of Madison’s theorizing—but as an essential element of the construction of state power.

To a large extent, then, the state apparatus is split into two parts—one largely following the pattern of institutionalized governance in the West, and the other following the understanding of the fusion of government and politics inherent in the construction of state socialism in China since 1949. This split is very important. In a larger sense, it shows the difficulties of constructing institutions that can at the same time serve to communicate with other states, and remain true to the substantive basis of the social and political order of the state. The outward manifestation of the state apparatus, its formal organization of the institutions of state power, is the western style manifestation of the government of a proper political entity sporting the indicia of state institutions in a form understood by the community of nations. This is the face of public organization—what the rest of the world expects to see, and the place from which they apply the standards of appropriate conduct.

The inward manifestation of the state apparatus, its substantive values, is represented through the formal institution of the CCP. In the context of China, the apparatus of the CCP as a manifestation of the ideological or substantive aspects of rule of law, serving as the representative of the genius of the people as a whole in upholding the foundational normative structure of the state—Marxist/Leninist, Mao Zedong, Deng Xiao Ping Thought, and Three Represents Thought. The CCP serves as the institutional representative of the people and thus serves the important state purpose of infusing the formal institutions of state power with a normative basis for the exercise of political power. That normative basis has found expression in a number of important pronouncements touching on the separation of individual from communal power and each worthy of implementation. They include the Four Cardinal Principles (the leading role of the CCP; adherence to socialism; dictatorship of the proletariat; and adherence to Marxist/Leninist/Mao/Deng Xiaping/3 Represents Thought), Hu Jinato’s recent Two Musts Campaign (the CCP must keep a humble attitude and must keep a hardworking spirit), and the Fish-Water connection between CCP cadres and the masses.

The Chinese constitution attempts to establish the context on which these two aspects of government can come together—the formal institutions of the state and the oversight of values/governance role of the CCP. The Constitution carefully develops the overlap between State and Party. Yet, Western commentators tend to focus more on those parts of the constitution most like their own—the sections dealing with the formal organization of the state. They tend to be blind to those portions of the constitution that open a window on that other important aspect of government—the relation of government and CCP—that is, on the relationship between institution and ideology.

The state itself can be considered complete only when the formal state apparatus is joined with the apparatus of the CCP. For the West, this is difficult to grasp—impeded by the Western limitations of considering parties as something unconnected with the state institution building. On this basis it is easier to understand the CCP’s own understanding of ‘rule of law’ as a hybrid concept:

Ruling the country by law means that the broad masses of the people, under the leadership of the Party and in accordance with the Constitution and other laws, participate in one way or another and through all possible channels in managing state affairs, economic and cultural undertakings and social affairs, and see to it that all work by the state proceeds in keeping with law, and that socialist democracy is gradually institutionalized and codified so that such institutions and laws will not change with changes in the leadership or changes in the views or focus of attention of any leader (Zemin 1997).

This requires a fusion of the outward and inward institutional manifestations of power within China:

The Party has led the people in drawing up the Constitution and other laws, to which it confines its activities. In ruling the country by law, we can unify the adherence to Party leadership, the development of people's democracy and do things in strict accordance with the law, thus ensuring, institutionally and legally, that the Party's basic line and basic policies are carried out without fail, and that the Party plays the role of the core of leadership at all times, commanding the whole situation and coordinating the efforts of all quarters (Zemin 1997).

It is only within this context that the current ideological campaign—sange daibiao (or the “Three Represents”)—assumes its importance for Chinese constitutionalism and the advancement of the rule of law culture in China.

“In 2000, his theory of the "three represents" (Sange daibiao) was first presented as the nucleus of Jiang Zemin Theory. The theory focuses on the future role of the CCP as "a faithful representative of the requirements in the development of advanced productive forces in China, the orientation of the advanced culture in China, and the fundamental interests of the broadest masses of the people in China” (Landsberger).

Sange daibiao provides an ideological basis, a deep constitutional foundation, for the position of the CCP at the center of the institutional apparatus of the Chinese state. But it does more than that—it also provides the basis through which the rule of law, as a framework for the proper relationship between state institutions (representing the collective) and the individual (as an instrument of that collective). As developed by the organs of the CCP, it is clear that sangue daibiao can provide the principles through which the framework of commonly understood rule of law constitutionalism can be adopted with Chinese characteristics.

For purposes of this essay, I will speak briefly to the parameters of this possible construction of Chinese constitutionalism, focusing on the inclusion of sange daibiao into the governance structures of the CCP after 2000 and the Chinese Constitution after 2004. Like the earlier constitutional assimilation of Deng Xiaping Theory, the adoption of sange daibiao may serve, at least as a formal matter, to further incorporate substantive rule of law elements into Chinese constitutionalism.

There has been much commentary about the Three Represents as well as about the ideological campaign conducted in connection with its promulgation.

The Three Represents can’t be viewed in isolation; its establishment occurred in the context of a campaign to open membership in the CCP to the emerging capitalist class in China (Hepeng 2004, 262), as well as the extension of the protection of property rights to individuals. An important goal is at co-opting the capitalist or market elements of Chinese society by offering them a place in the CCP in return for adherence to CCP norms, including the basic socialist foundation of state organization (Hepeng 2004, 267-269). This is an important point—it suggests the very real ways in which membership in political society in China is structured around the leadership of the CCP, and the nature of that leadership as normative rather than merely political. Given this important relationship between state and Party, the Three Represents campaign is also aimed at emphasizing the socialist character of the post 1978 reforms. “The nominal limitation to the state an Party revealed in the Three Represents is aimed at limiting abuses of power by individuals rather than at restricting the CCP’s dominance or power within the state” (Hepeng 2004, 263).

Among those who see the CCP as increasingly taking the position of a mere political party (in the Western sense) rather than as an important institution of government, it has also been criticized as a rather cynical expedient by a dictatorial faction (to which the CCP now finds itself increasing reduced) seeking to preserve its legitimacy and thus its power. And this is an important point as well—to the extent that the CCP chooses to treat itself more as a political party than as in integral part of the institutional structure of the state, then the limitations of political parties, especially as those limitations are understood in the West, will increasingly weaken the legitimacy and authority of the CCP in China, in fact, irrespective of pronouncements in official documents. That is the great trap that the Three Represents campaign clearly unveils.

Within the context of the two faces of state power in China, the Three Represents are important for a number of reasons. First, it is important because of the deepening of a new (post 1978) pattern of parallelism—incorporating changes in both the CCP constitution and the Chinese Constitution. This suggests a parallelism in institutionalization of rule of law—the CCP and its expression as state apparatus moving in lock step on rule of law behavior. Second, it demonstrates a willingness, within the CCP itself, to embrace transparency in governance. As the faithful representative of fundamental interests of the broadest masses of the people in China, the Three Represents declares a commitment to legitimacy based on its representation of the people. That faithfulness requires the retention of the confidence of the people. Third, the Three Represents can serve to limit the discretion of both Party and State officials—at least in theory. In each of its expressions of representativeness, the Three Represents emphasizes the people as a whole over the interests of any individual, faction, or interest group. It is clear that the Three Represents is meant to create and impose a great principal of fiduciary duty on Party and State officials, an obligation of acting solely in the best interests of the people that may be possible to enforce against any person exercising power in the State or the Party. The implementation is critical, but is also a harder question and treated a little in the last part of this essay. Fourth, while the Three Represents limits discretion, it does so within a system of flexible application within the particular realities of China’s position in the world. It cross-sects with the Party’s involvement as a leader of the people, the historical lessons the Party has learned from its recent past, signaling that “the practical problems of the Chinese revolution” must be solved, i.e. NOT “studying Marxism-Leninism statically and in isolation” but following Deng Xiaoping Theory; and very importantly, the understanding that “ruling the country by law…is also the objective demand of a socialist market economy,” which in turn clearly parallels Jiang’s belief that “We must never discard Marxism-Leninism and Mao Zedong Thought,” but at the same time, these latter thinkers should not be followed categorically.

The opportunities for elaboration of rule of law theory with Chinese characteristics through the Three Represents Theory were hinted at in Hu Jintao’s Party Day Speech on the 82nd anniversary of the founding of the CCP. In closing a long speech on the value of the Three Represents principles, he “listed some 14 questions, including how to improve the economy, how to expand employment, how to foster China’s “national spirit” (minzu jingshen), and how to build the CCP’s “ruling capacity” (zhizheng nengli). These questions will give party theorists plenty of scope to develop the three represents in the future” (Fewsmith 2003, 6).

The Three Represents thus highlights the basic problem of the Rule of Law in China and points to its solution. The problem of the rule of law in China, therefore, can be understood as concentrating on the resolution of the questions of the long-term fundamental role of the CCP in China, and of the relationship between the CCP and the state apparatus it has created and now dominates in the service of the masses.

Applied appropriately to the central institution of authoritative and legitimate state power in China, that is, to the institutions of the Communist Party, the Three Represents can serve as the ideological basis for solidifying the autonomy of the CCP as the legitimate source of political and ideological power within the state. Indeed, the 125-page Study Guide to the Important Thinking of the ‘Three Represents’ appears to point in that direction. “Sections 8, 11, and 12 . . . discuss political construction, affirming the importance of “political civilization”—a term officially endorsed at the 16th Party Congress and given equal status with “material” and “spiritual” civilization. These sections elaborated on the need for institution-building as well as the need for “checks and balances” and “supervision” over those exercising political power” (Fewsmith 2003, 4).

If the fundamental question of the Rule of Law in China should center on the CCP, then resolution depends on a choice of focus with significant effect on the role of the CCP in China. This is a choice that must be made by the political leaders of China. The choice will significantly affect the future institutional course of the development of China and the ultimate place of the Communist Party within Chinese systems of governance.

One choice that would be made under the traditional critical approach to Chinese rule of law analysis can be sloganized as


What does this mean? The CCP would have to continue to separate itself from the state; become more like a mere political party and ultimately one party among many (the Eastern European model); eventually the special place of the CCP and maybe the CCP itself will disappear within a much deeper kaleidoscope of political dialogue in a post CCP China. This choice reflects Western views. It is the easiest to apply. This choice represents a conscious willingness to conform with, and ultimately embrace, Western values and perspectives with respect to the appropriate basis for political and social organization. Some elements of Chinese institutional movement appear to be heading in this direction. The focus on the state apparatus and its constitution is a sign of the push in this direction.

When the CCP separates itself from the state, when it furthers projects designed to treat it like a mere political party, then it deviates significantly from its earlier stance as a fundamental institutional participant in the construction of government. So reconstituted, it preserves the CCP’s independence from the state but ultimately must accept a role subordinate to state institutions. That has been the pattern in the West, and the construction of Western style governance mechanisms will inevitably create significant institutional forces pushing both state and party into adopting Western roles—state institutions excluding the party, and the party competing with other manifestations of the public will (and other sources of institutional ideology) for control of the institutions of state power. Moreover, adoption of a Western pattern will produce strong expectations among foreigners that the Western pattern will be followed. This works very well for the West. It provides a basis for strengthening the Western internationalist movement in which the CCP will play a reduced role, one among many non-institutional non-governmental voices.

The other choice, much more in accord with the reality of China today, can be sloganized as


From the perspective of the historical development of the Chinese state, and the path it has chosen for the development of rule of law institutions, this approach deepens the commitment to an institutional structure of the state in which the CCP serves not as a mere Western style political party but as an integral organ of state power. The focus is on the reality of the CCP within the state. It suggests that the best way of deepening rule of law in China is to cultivate a strong rule of law ethic WITHIN the CCP, before it is extended outside the CCP to the state apparatus itself. This choice incorporates the parallelism already in evidence in the constitutionalization of the CCP. But this choice carries heavy responsibilities, responsibilities and obligations highlighted by the Three Represents Thought itself.

There is no reason that the Four Cardinal Principles (the leading role of the CCP; adherence to socialism; dictatorship of the proletariat; and adherence to Marxist/Leninist/Mao/Deng Xiaping/3 Represents Thought), the Two Musts Campaign (the CCP must keep a humble attitude and must keep a hardworking spirit), and the Fish-Water connection between CCP cadres and the masses should not apply within the CCP as well as between the other institutions of the state and the people.

There is no reason for the separation between the constitution of the state and of the CCP. Why two constitutions for a single enterprise? State and Party must act as one. If the CCP means what it says, if the Party occupies the pivotal institutional space within the state apparatus, if the CCP is instrumental in the construction and implementation of the “deep constitutionalism” described as essential for rule of law governance by both Western and Chinese scholars, if the Three Represents and Two Musts are to be given their full meaning, then the CCP should strive to embrace its principles completely. That embrace involves not only the construction of the state but also the continued development of the CCP and the CCP within the state itself. The CCP must live the Three Represents and the Two Musts. The CCP must implement and enforce those norms within its own organization before that organization can fully serve as the institutional model for the rest of the state and rule of law.

If the first focus of a rule of law project in China is on the CCP, then what should be its objects and the methods of realization? The Three Represents provides a useful ideological basis for this project—in its own way as useful as the Western ideological foundations of “democracy” and “rule of law.” From a formal perspective, this requires an acknowledgement of the central role of the CCP in the operation of the state—not as party, but as institution. This institution must serve as the vanguard of rule of law if the rest of the state apparatus is to successfully follow suit.

Such a formal acknowledgment can be achieved within the constitutional framework of the PRC. There are already important references to the relationship between state and Party in the Preamble of the Constitution. Perhaps, following the French constitutional model, the primacy and constitutional value of the Preamble must be better stressed and applied by those whose task it is to implement the objectives and rules of the Constitution. There is little impediment to investing the Preamble with constitutional value equal to that of the other parts of the constitution. A more radical approach would include the absorption of the institutional framework of the CCP itself within the Constitution of the PRC itself. In this way, the rule of law in China might have as its foundation the unbreakable fusion between state and Party within the institutional document understood by foreigners as the supreme authoritative instrument of legitimating state power.

“Jiang Zemin raised to prominence the idea of “governing the country through law” and discussed the need for greater institutionalization if the CCP is to act more as a ruling party and less as a revolutionary party in his July 1, 2001, speech. Similarly, it was Jiang who raised the issue of “inner-party democracy”—the notion that political participation can be expanded modestly and that, accordingly, cadre selection and decision making can be improved and greater supervision can be exercised over leading cadres, all by expanding the rights of party members and avoiding real democracy. Hu may have different notions about how to implement these ideas, but there is no apparent conflict over these policy goals.” (Fewsmith 2003, 3). But a ruling party is not a political faction. If the CCP represents the people of the nation, then its institutions must reflect its status as government rather than as mere faction. This is understood within China, and is communicated less successfully to outsiders.

The insertion of the CCP into the formal state apparatus, and the insertion of state power rule of law elements into the CCP itself can be furthered in a variety of ways. Other scholars have mentioned some of these methods. One involves an increased focus must be placed upon legitimizing the sincerity of the Party’s alignment with a rule of law; the movement toward inner-party democracy provides an interesting approach in that direction (Fewsmith 2003, 5, citing Zhen Xiaoying and Li Qinghua, “Yi dangnei minzhu tuijin renmin minzhu” (Using inner-party democracy to promote people’s democracy), Qiushi, June 15, 2003).

This raises an interesting question: can the CCP be bound by a document or a set of rules (from the state Constitution on down to the lowest levels of governance) the contents of which it controls? A YES answer would further the rule of law by separating the obligation to comply with the will of the Party, expressed as a series of discrete rules produced by the Party as an institution, from the will of any individual in deciding whether or not to comply with such rules (Chen -----). It is in this context that the current “anti-corruption campaigns have their greatest challenges. As long as individuals pervert Party policies and rules for their own ends, the will of the individual prevails over the will of the Party (and the state), and the substantive goals of the Three Represents and the Two Musts are perverted.

But separating individual from Party may require the formalization of enforcement mechanisms that themselves will be free from the influence of the individual—mechanisms run by people whose loyalty to Party and State over the individual will be both protected and rewarded. This has been difficult (Chen 2006); but the task is not impossible. It can be made easier not by the separation of the Party from the state, but by the separation of the individual element from the institution of the Party. For this purpose, it may be necessary to find a means of removing and formalizing the administration of Party discipline so that it loses its individual character and becomes more oriented to institutional objectives. The first task of the State ought to be to discipline the individualistic elements in the Party so that the Party can effectively lead the State.

This institutionalization is not limited to the mechanics of enforcement of rules over individual desires. It is also important to deepen the institutionalization of targeted ideological programs and campaigns for the purpose of constructing a normative basis for public action. For this purpose it is important to tie state action to CCP ideology—for example to the principles of democratic centralism. The development of an administrative law structure in China might serve that purpose well. But that task is only in its infancy and needs protection from abuse by individuals (Peerenboom 2001; Ohnesorge 2003a). Until the CCP is able to police or administer itself internally and develop a rule of law culture in its own internal affairs, it will be unable to implement a real rule of law system through the state. It is in this context that some of Professor Peerenboom’s criticisms provide a basis for self-analysis and further development of an inward looking administrative mechanism: “The biggest obstacles to a law-based administrative system in China are institutional and systemic in nature: a legislative system in disarray; a weak judiciary; poorly trained judges and lawyers; the absence of a robust civil society populated by interests groups; a low level of legal consciousness; the persistent influence of paternalistic traditions and a culture of deference to government authority; rampant corruption; and the fallout from the unfinished transition from a centrally planned economy to a market economy, which has exacerbated central-local tensions and resulted in fragmentation of authority” (Peerenboom 2001, 168-169).

Lastly, much more might be made of the opening of membership in the CCP. More Party Less State contains, as a corollary, the proposition that the CCP must grow to fulfill its role as the institutional leader of Chinese governance. To some extent, the Three Represents suggests a continued broadening of the base of the CCP as it becomes institutionalized within China. “This may indicate a shift in the concept of the 'masters of the nation', which used to be defined as an alliance of workers-peasants-soldiers (gongnongbing). In the early 1980s, intellectuals were added to this triumvirate, after their status had been redefined as that of 'mental workers'” (Landsberger). Yet, as the First Represent makes all too clear—broadening does not mean abandoning the initial and critical first elements of CCP membership. Still, if the CCP is to attain its institutional role within the state, then it will have to embrace all elements in society that in turn embrace its ideology, rules, purposes, and commitment to Chinese style rule of law.

Adherence to Party (and now state) norms, rather than status, ought to serve as a more important touchstone for Party membership. The opening of CCP membership to emerging private sector elements recently suggested by leaders in the CCP provides a useful opening. Advancement in alls sectors of society should be made on the basis of an adherence to at least the basic rules of state organization. Thus, bringing market elements into the CCP in return for a commitment to the institutional role and ideology of the CCP within the state apparatus serves well the construction of a rule of law society in which the CCP remains the faithful representative of the broadest masses of the people of China. Membership ought to be open to all elements in China, as long as they commit to the institutional role and ideology of the CCP as an institutional force in China. More Party can then be translated into more rule of law as the rule of law values of the Party become part of the working culture of its members—including all of the critical elements of Chinese society. From this position, expanding rule of law culture to the other institutions of the state apparatus may be easier.

There is much work to be done, but a basic choice must be made as well—with respect to the relationship between the State and the Party. The West expects the CCP to be eased into a role as a Western style political party. Still, there is another path that China might, but has not yet taken. Perhaps Dr. Zhenmin Wang’s understanding of the rule of law as it might be naturalized within Chinese political culture captures the importance of the Three Represents in developing a Chinese constitutional thought that joins State and Party (Wang). Dr. Wang suggests that the “general understanding of the rule of law is multi-faceted. First, the rule of law is the means by which human activities can be regulated and is essential to a modern industrial society. Such a society cannot prosper under the rule of man (i.e. a society governed solely by the decisions of those in power)” (Wang). This understanding corresponds nicely with the understanding implicit in the first of the Three Represents—the CCP as the faithful representative of the requirements in the development of advanced productive forces in China. “Second, under the rule of law, the primary purpose of the legal system is to regulate and restrain the behavior of government officials. There must be laws regulating the authority of the government and its officials-political behavior must comply with legal rules” (Wang). This is the idea underlying the second of the Three Represents—the connection between the CCP and its faithful representation of the orientation of the advanced culture in China. That advanced culture carries within it the connection between rule of law and the institution of the CCP above any single individual. “Third, the rule of law necessarily assumes the existence of rights. The law should uphold the various rights that modern conceptions of citizenship entail. When the government abuses its power, citizens should have the right to seek legal remedies against the government.” (Wang). The CCP remains the faithful representative of the fundamental interests of the broadest masses of the people in China by embracing this third aspect of the rule of law.

The Three Represents, like the elaboration of the rule of law for the assertion of state power, is in either sense concerned with the manifestation of collective action or will. If the state is the entire manifestation of the collective action or will of the people, as it is in the West, then the rule of law must apply single-mindedly to the institutions of that collective expression. It means that all subordinate expressions of collective will, including political parties, must remain subordinate to the rule of law derived from the supreme institutions of the collective will. In this context, the Three Represents, like the rule of law, must apply from and through the institutions of state power and from that source of power discipline all other expressions of authority, including the CCP. There are elements in the Chinese constitution that suggest the possibility of this track of political development in China. And standing alone, it is possible to read the Chinese constitution as embarking on this path to development. If that is the case, then the Western rule of law commentators’ criticisms acquire greater legitimacy and the place of the CCP as mere political party becomes more certain.

If the state is merely the partial manifestation of the collective action of the people, a face to the outside world, there must be a parallel development of the rule of law within the public face as well as within the institutions of the internal face of state power, the CCP. This will require the elimination of the personal elements from the institutional activities first from the CCP and then from the state apparatus. The Three Represents and the Two Musts provides the CCP with the opportunity to make substantial progress in this regard in a way that advances constitutionalism as theory and practice.

But China must be sure of the conceptual framework it wishes to embrace within which this is teased out: Is the state to be a manifestation of the Party? Is the Party to be merely a servant of the state? Is the whole of state power to be exercised only by the collective action of the institutions of the government and of the CCP acting together within the ambit of their authority? The answers to these questions hold the key to the rule of law issues in China.

So what does the current basis of criticism of Chinese constitutionalism teach us? They teach us that ideological campaigns may be as important a source of constitutionalism in the West as it has become in China. There is a similarity in the current ideological campaigns being waged in the United States, in particular, and in the West, in general, about the need to reform government, and to curb the bad habits of public officials, and that represented by the “Three Represents” Campaign in China. But, in the United States those campaigns center on the ideas of “rule of law,” “free markets” and “democracy.” In China, they necessarily focus on the core source of institutional power—the Chinese Communist Party. As such, criticisms grounded in American ideological campaigns tend to be less useful as a means of understanding both the challenges and the possibilities of progress within China today.


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