Tuesday, April 30, 2013

"Fazhi" 法制 and 法治 in China: Rule of Law; Rule by Law; Rule Through Legal System

Westerners spend a lot of time thinking about "rule of law," not just within their own domestic legal orders, but as a generalized concept of national and international law.  Rule of law and the principle of democratic organization of political power stand now as the foundation of the transnational constitutional order.  (Backer, Larry Catá, "From Constitution to Constitutionalism: A Global Framework for Legitimate Public Power Systems," Penn State Law Review 113(3) 2009).

(Pix (c) Larry Catá Backer 2013)

Chinese academics do as well.  One of the most interesting thing about rule of law in China is that, like its counterparts in Western Europe and the United States, the term has undergone some substantial changes over the course of the years.  More interesting still, and again in a way that mirrors difficulties with the concept in the West, the term can have simultaneous multiple meanings.  (E.g., Deborah Cao, "Fazhi Versus/and/Or Rule of Law?: A Semiotic Venture into Chinese Law," International Journal for the Semiotics of Law 14:223-247 (2001); and generally Deborah Cao, Chinese Law: A Language Perspective (Aldershot, UK: Ashgate, 2004)).

The protean nature of rule of law has been explored in recent years for English language audiences.  (See, e.g., Yuanyuan Shen, "Understanding the Complexity of Law Reform in China," in The limits of the rule of law in China 20-44 (Karen Turner-Gottschang, James Vincent Feinerman, R. Kent Guy, eds., University of Washington Press, 2000) ("Literally fazhi 法制 means 'laws and institutions' or the 'legal system.' But the same spelling in pinyin can refer to fazhi  法治, 'to use law to rule.' Ibid, 24). One of my students, Shan Gao, has produced a short essay on some of the more interesting aspects of the term and its use in China.  What emerges from this brief reminder of the ambiguity of meaning and its political dimension, especially in the context of great ideological struggles among great powers, is both the importance of context and of history in the development of a concept that itself is a place holder for complex relationships between institutional power, political power and the individual.

Monday, April 29, 2013

Paper Delivered at Berks County PA Bench-Bar Conference: Using the Sandusky Scandal as a Case Study--Due Diligence Requirements of Board Members in Profit and Non-Profit Organizations

On April 17, 2013, I delivered a presentation at the Berks County, Pennsylvania Bench-Bar meeting, held in Reading Pennsylvania.  There is a strong connection to Berks County for me.  My title honors W. Richard Eshelman and his spouse.  

(Pix (c) Larry Catá Backer 2013)

Judge Eshelman served for a time as President Judge in Berks County and before then had a distinguished career as lawyer and prosecutor who Judge Jeffrey K. Sprecher described, shortly after Judge Eshelman's death, as having "a very open mind and was willing to implement change as needed. . . . that were the first step  or even the conclusion of the many improvements that exist today."  (Hon. Jeffrey K. Sprecher, "In Remembrance of the Lives of Two Great Men," The Berks Barrister, (Summer 2008). 

With modest hopes of living up to that legacy I delivered the paper "Due Diligence Requirements of Board Members in Profit and Non-Profit Organizations."  The Paper may be accessed HERE.  The PowerPoint of the presentation may be accessed HERE.  The introduction to the paper follows.


Sunday, April 28, 2013

Arianna Backer on The Japanese Welfare State and Corporate Social Responsibility

Arianna Backer, a master's candidate at the University of Pittsburgh, has written an interesting paper on the relationship between expenditures by states on welfare related programs and corporate social responsibility expenditures by enterprises: The Japanese Welfare State: Private Social Expenditure in the Context of Corporate Social Responsibility: the Implications of its Rise in Relation to Public Social Spending
(Pix (c) Larry Catá Backer 2013)

She suggests the way in which globalization has produced a polycentric space within which states' welfare program expenditures may no longer invariably be related in any meaningful way to private expenditures on welfare related programs.  The reason, of course, is that enterprises operate both within the state and outside of it.  Globalization has provided a governance and operational space in which enterprises are subject to governance frameworks at once connected with but autonomous of the governance frameworks of states. While the focus is on Japan, the implications are far broader.

The paper may be accessed HERE.  The abstract follows.

Saturday, April 27, 2013

Ruminations 48: Preserving Governance in the Passive Age of Mass Democracy--On the Obligations of Citizenship in the "Republic" of the University

In this increasingly democratic age, the specter of hierarchy, conformity and obedience to higher authority is corroding the inner workings of democratic institutions even as its outer manifestations ever more gloriously declare that this is truly the age of the democratically engaged individual.

(Pix (c) Larry Catá Backer 2013)

The university is an exemplar of this outward strengthening and inward corroding of the structures of meaningfully engaged governance in an age of democracy.  I have written about this in other contexts: Larry Catá Backer, Between Faculty, Administration, Board, State, and Students: On the Relevance of a Faculty Senate in the Modern U.S. University (February 10, 2013).

Now come the thoughtful leadership of the Faculty Governance organization of the University of Minnesota that, through its Faculty Consultative Committee has produced a quite thoughtful and valuable reflection on the need for the abandonment of passivity among the citizens of an institution if they mean to preserve their rights to share in the governance of the institution.  This reflection is as important for political theory writ large as it is for the faculty of a university.  It speaks volumes to the cultural movement in democratic states in which the forms of democratic participation are becoming more important as their effective content is being systematically erased. See Democracy Part XXVII--The Utility of Voting in the Shadow of the Administrative State, Law at the End of the Day, July 27, 2012. To avoid form over empty function, action is necessary--as necessary in the university as in the public square.

Thursday, April 25, 2013

China Radio International Panel Discussion: 2013-04-23 G20 Finance Minister Meeting With Additional Commentary

On Tuesday morning I was a guest on China Radio International's (中国国际广播电台) "Today" show, which broadcasts live Monday to Friday on Beyond Beijing. They hold in-depth panel discussions on domestic and global news and current affairs to give the story behind the headlines. Expert guests from around the world share their views and debate the issues to give the locally-produced show international flavor. "Today" broadcasts to 24 cities around the world, including Washington DC, Canberra, Toronto, Auckland, Colombo, Monrovia, and Kandahar.

The topic was a discussion of the recent meeting of the IMF, World Bank and G20 Finance Ministers in Washington. It was structured as a panel discussion around the following topic:
Global financial leaders have finished a series of meetings in the US capitol Washington, DC.The so called spring meetings included a G20 finance minister meeting, and annual meetings of the IMF and World Bank.In the days before the Spring meetings of the IMF, World Bank and G20, World Bank President Dr. Jim Yong Kim highlighted the global growth power of emerging nations.
Panelists included: Cao Can, CEO of Shengya Capital; Luca Silipo, Chief Economist for Asia Pacific at Natixis Bank; and Larry Cata Backer, Professor of Law and International Affairs at the Dickinson School of Law at Pennsylvania State University.  The show's hosts were Brandon Blackburn-Dwyer & Sunny Zhao.

In preparing for the panel I worked through some additional issues around the topic.  The quesiotns and my responses are included below.