Chapter 11 (Rule of Law/Role of Law): From "Elements of Law" to "Introduction to the Law and Legal System of the United States"--Building an Introductory Course to the Legal Curriculum for the 21st Century

(Pix (c) Larry Catá Backer 2014)

Since 2010, I have been posting on the development of a new course I have been developing for our first year law school students, "Elements of Law." The course originally had a quite modest objective--to introduce law students to legal research and reasoning through case law, statutory interpretation, and legal history, processes, and institutions. I chose to broaden its objectives within these specific parameters and development a framing and concepts course that would provide a deep foundation to law students on the legal system they were undertaking to study.

--Elements of Law 3.0: On the Relevance of a First Year Law Course Designed to Frame the Law School Curriculum).
--Developing a New Course--"Elements of Law"
--"Elements of Law" Course 2.0: A Framework Course for the U.S. Law Curriculum,  

Grounded in the principles of the sociology of law, the course has morphed into an effort to introduce students to law as a self-referencing system with its own particular structures, premises, constraints and language, with its own logic and taboos and its own means of understanding the world. That systemicity (cf. Peter Checkland, Systems Thinking, Systems Practice, Chichester : John Wiley and Sons Ltd, 1999) is then a critical element in the way in which the legal system (in this case of the United States) interacts with the world, both as a legal and as a socio-economic-political actor. The course has also expanded from its original narrow and technical focus, to a broader focus on principles and the use of language and logic to build and operate a system of law. That broadening has made it possible to offer the course not just to first year law students, but also to graduate students in the social sciences and in international affairs, as a grounding in the legal systems that are important in their respective fields.

This and the posts that follow produces some of the materials I will be presenting to the class. I offer these materials in hopes that they may prove of use and that you might share comments, perspectives and suggestions as I develop those materials on this site. Thanks.

This post includes a draft of the fourth Chapter of Part II (Hierarchies of Law and Governance; Sources and Uses) --Chapter 11 (Role of Law/Rule of Law).

 

Chinese Communist Party Plenum on Socialist Rule of Law: Xi Jinping on Five Key Points of Chinese Rule of Law

 (From 习近平眼中的“法治中国” )

My co-author Keren Wang and I have been following the very interesting and important discussion of Socialist Rule of Law and its evolution in China.  This week is especially important for that enterprise as the Chinese Communist Party Plenum on the rule of law and its Socialist character.

This post includes both Keren Wang's English language summary translation of Xi Jinping's Five Key Points on Chinese Rule of Law, which include the following.

1.  If the corruption problem persists, it will inevitably lead to the overthrow of the Party and the State;

2. The Party must confine its own actions within the bounds of the Constitution and law;

3. We must enclose power within the cage of institutions;

4.  When civilians have no place to go to seek redress for the wrongs they suffered,civil unrest will be inevitable;

5.  We must perform our legal obligations, and refrain from exercising powers that are not provided by law.  

The post also includes the  original Chinese reporting of the presentation at which these Five Key Points were announced (Link).

My Remarks: "A Lex Mercatoria for Corporate Social Responsibility Codes without the State?: On the Regulatory Character of Private Corporate Codes"

(Pix from HERE)

I was fortunate enough to participate On October 17 in a "Workshop on research by the UM-HiiL-Chair on the Internationalisation of Law, the theme of which was “Enforcing Corporate Social Responsibility: Transforming voluntary corporate codes into private law obligations?”, held at the Theater aan het Vrijthof, Vrijthof 47, Maastricht, Netherlands under the sponsorship of the University of Maastricht, the Hague Institute for the Internationalisation of Law, and their UM-HiiL Chair.  The workshop description and program follow below.

I spoke to the "Implications for the effective regulation of companies."  My remarks, "A Lex Mercatoria for Corporate Social Responsibility Codes without the State?: On the Regulatory Character of Private Corporate Codes" also follows.

Chapter 10 (Hierarchies of Law within the Domestic Legal Order and Between National and International Law Reflecting Governmental Order ): From "Elements of Law" to "Introduction to the Law and Legal System of the United States"--Building an Introductory Course to the Legal Curriculum for the 21st Century

(Pix (c) Larry Catá Backer 2014)

Since 2010, I have been posting on the development of a new course I have been developing for our first year law school students, "Elements of Law." The course originally had a quite modest objective--to introduce law students to legal research and reasoning through case law, statutory interpretation, and legal history, processes, and institutions. I chose to broaden its objectives within these specific parameters and development a framing and concepts course that would provide a deep foundation to law students on the legal system they were undertaking to study.

--Elements of Law 3.0: On the Relevance of a First Year Law Course Designed to Frame the Law School Curriculum).
--Developing a New Course--"Elements of Law"
--"Elements of Law" Course 2.0: A Framework Course for the U.S. Law Curriculum,

Grounded in the principles of the sociology of law, the course has morphed into an effort to introduce students to law as a self-referencing system with its own particular structures, premises, constraints and language, with its own logic and taboos and its own means of understanding the world. That systemicity (cf. Peter Checkland, Systems Thinking, Systems Practice, Chichester : John Wiley and Sons Ltd, 1999) is then a critical element in the way in which the legal system (in this case of the United States) interacts with the world, both as a legal and as a socio-economic-political actor. The course has also expanded from its original narrow and technical focus, to a broader focus on principles and the use of language and logic to build and operate a system of law. That broadening has made it possible to offer the course not just to first year law students, but also to graduate students in the social sciences and in international affairs, as a grounding in the legal systems that are important in their respective fields.

This and the posts that follow produces some of the materials I will be presenting to the class. I offer these materials in hopes that they may prove of use and that you might share comments, perspectives and suggestions as I develop those materials on this site. Thanks.

This post includes a draft of the second Chapter of Part II-- Hierarchies of Law and Governance; Sources and Uses, Chapter 10 (Hierarchies of Law within the Domestic Legal Order and Between National and International Law Reflecting Governmental Order).

 

New Draft Essay Posted: "Institutionalizing Shangfang within the Chinese Socialist Rule-of-Law Framework"

(Pix (c) Larry Catá Backer 2014)

My co-author, Keren Wang, and I are preparing for an upcoming conference of the European China Law Studies Association (欧洲中国法研究协会) to take place in late November in Hong Kong.  More on the conference in later postings.

The conference theme this year is “Making, Enforcing and Accessing the Law.” One of the objects of the theme is to explore both the establishment, and implementation of law making within the administrative apparatus of the Chinese state. The question is particularly pressing with respect to systems of remedies for state obligations already well established. Many Westerners focus on the pseudo state building project of judicial empowerment when considering the issue of law making and dispute resolution. Non-judicial mechanisms are viewed with suspicion or dismissed as either transitory of illegitimate as a basis for framing a strong viable system to resolve disputes arising in law.  

We have been considering these issues form a Chinese constitutional perspective.  In earlier work we analyzed the legality and viability of extra judicial detention (Backer, Larry Catá and Wang, Keren, The Emerging Structures of Socialist Constitutionalism with Chinese Characteristics: Extra Judicial Detention (Laojiao and Shuanggui) and the Chinese Constitutional Order, Pacific Rim Law & Policy Journal 23(2): 251 (2014). For this conference we turn our attention to a related institutional structure for the disciplining of state organs and the developing of legal bases for dispute resolution--the system of Shangfang (letters and visits or or petitioning) within the dynamic and evolving construction of a socialist rule of law theory in China.  While many judge the current manifestation of Shangfang to be more or less a failure (e.g., here), we will suggest that reconstituted within the theoretical framework of socialist rule of law, Shangfang may, like shuanggui, serve a useful role in the construction of law and in the disciplining of officials.  This issue becomes more compelling in light of the theme of the 4th Plenum of the 18th Chinese Communist Party Congress to take place in late October 2014 (see here and here).    

To that end we have drafted for presentation a short essay, Institutionalizing Shangfang within the Chinese Socialist Rule-of-Law Framework. The essay is in preliminary draft form, without footnotes, and is structured as a journey of extracting truth from the formal and informal Chinese context. The focus is on theory and formal structure, with an eye toward implementation.  It is not meant to serve another and no doubt equally useful purpose--as  a vessel for the harvesting of prior scholarship and managing that scholarship to a particular objective. The introductory paragraph follows.  We look forward to comments and further engagement.

Chapter 9 (Ordering Government Through Law: Constitutions, Statutes, Treaties, Regulations, Judicial Decisions, and Other Sources): From "Elements of Law" to "Introduction to the Law and Legal System of the United States"--Building an Introductory Course to the Legal Curriculum for the 21st Century

(Pix (c) Larry Catá Backer 2014)

Since 2010, I have been posting on the development of a new course I have been developing for our first year law school students, "Elements of Law." The course originally had a quite modest objective--to introduce law students to legal research and reasoning through case law, statutory interpretation, and legal history, processes, and institutions. I chose to broaden its objectives within these specific parameters and development a framing and concepts course that would provide a deep foundation to law students on the legal system they were undertaking to study.

--Elements of Law 3.0: On the Relevance of a First Year Law Course Designed to Frame the Law School Curriculum).
--Developing a New Course--"Elements of Law"
--"Elements of Law" Course 2.0: A Framework Course for the U.S. Law Curriculum,

Grounded in the principles of the sociology of law, the course has morphed into an effort to introduce students to law as a self-referencing system with its own particular structures, premises, constraints and language, with its own logic and taboos and its own means of understanding the world. That systemicity (cf. Peter Checkland, Systems Thinking, Systems Practice, Chichester : John Wiley and Sons Ltd, 1999) is then a critical element in the way in which the legal system (in this case of the United States) interacts with the world, both as a legal and as a socio-economic-political actor. The course has also expanded from its original narrow and technical focus, to a broader focus on principles and the use of language and logic to build and operate a system of law. That broadening has made it possible to offer the course not just to first year law students, but also to graduate students in the social sciences and in international affairs, as a grounding in the legal systems that are important in their respective fields.

This and the posts that follow produces some of the materials I will be presenting to the class. I offer these materials in hopes that they may prove of use and that you might share comments, perspectives and suggestions as I develop those materials on this site. Thanks.

This post includes a draft of the second Chapter of Part II-- Hierarchies of Law and Governance; Sources and Uses, Chapter 9 (Ordering Government Through Law: Constitutions, Statutes, Treaties, Regulations, Judicial Decisions and Other Sources).

 

2014 Report of the Congressional-Executive Commission on China Released

The Congressional-Executive Commission on China was created by the U.S. Congress in 2000 "with the legislative mandate to monitor human rights and the development of the rule of law in China, and to submit an annual report to the President and the Congress. The Commission consists of nine Senators, nine Members of the House of Representatives, and five senior Administration officials appointed by the President." (CECC About). It tends to serve as an excellent barometer of the thinking of political and academic elite sin the United States about issues touching on China and the official American line developed in connection with those issues. As such it is an important source of information about the way official and academic sectors think about China. 

 

The CECC FAQs provide useful information about the CECC. See CECC Frequently Asked Questions. They have developed positions on a number of issues: Access to Justice; Civil Society;Commercial Rule of Law; Criminal Justice; Developments in Hong Kong and Macau ; The Environment ; Ethnic Minority Rights;Freedom of Expression; Freedom of Religion ; Freedom of Residence and Movement ; Human Trafficking ; Institutions of Democratic Governance ; North Korean Refugees in China; Population Planning ; Public Health ; Status of Women ; Tibet ; Worker Rights ; and Xinjiang. As one can imagine many of the positions of the CECC are critical of current Chnese policies and institutions. The CECC had most recently focused on Hong Kong (e.g., The Congressional-Executive Commission on China and Press Freedom in Hong Kong April 3, 2014). 

On October 9, 2014, the CECC released its 2014 Report, Congressional-Executive Commission on China, 2014 Annual Report (113th Congress, 2nd Sess, USGPO).  The Report may be accessed HERE. From the perspective adopted--that China continues to fail to act like an Anglo-European style republic and that it has aggressively sought to advance its own interests and project its power internationally, while controlling discussion that affects its image abroad,  in ways that may be incompatible with U.S. interests, and certainly with the political and economic ideology of the United States--the Report raises all of the important areas of concern.  But that very perspective that gives the Report its power also illustrates its weaknesses and ultimately its irrelevance for one of its key objectives--to pressure China to transform its economic and political systems to mimic that of the United States, and to change its political objectives so that they are compatible with those that benefit the United States.  Indeed to describe the project is to prove the pathos of that approach and the extraordinary misapplication of so much intellectual firepower as represented in that effort.  And that is a shame. Just one example suffices--the criticism of China's failure to ratify the International Covenant on Civil and Political Rights is the subject of substantial criticism by a government that itself has, and laudably in the service of its own interests, refused to em,brace the International Covenant on Economic, Social and Cultural Rights.  It would serve American interests better to abandon the ideologically rigid perspective that tends to produce flawed analysis and which contributes unnecessarily to antagonism--since at its foundation, the CECC starts from the premise that the Chinese state government is illegitimate and that it is in the interests of the United States to overthrow that regime.  That is hardly a basis for the development of the sort of strong relationships that makes legitimate conversation and criticism possible--even among economic competitors. China ought to be criticized when it fails to live up to its own ideology--just as the United States ought to be open to such criticism for its own failures to live up to its political ideals (as framed in our Constitution and political ideology). Beyond that, these sorts of reports devolve into little more than the usual sort of propaganda and ideological warfare that satisfies few but those engaged in this sort of combat. 

What is needed is rigorous and contextually based analysis that contributes to the application of American policy that advances American interests. That requires a refocus that accepts the organizing principles of the Chinese system and then seeks to hold them to their own ideals and to press them, in the way the United States is pressed, when it fails to fulfill its obligations, especially in ways that affect our own interests. What is not needed is yet another report that highlights the ways in which the Chinese system is not American. Even less necessary is a policy founded on the premise that the CHinese government must be overthrown. To that end, the work of the 4th Plenum, to be held in the coming weeks, on the structure of government and the development of rule of law in China, is probably worth more careful attention.  (e.g., New Essay Posted: "Crafting a Theory of Socialist Democracy For China in the 21st Century: Considering Hu Angang’s (胡鞍钢) Theory of Collective Presidency in the Context of the Emerging Chinese Constitutional State"). But it is likely to be dismissed as propaganda--perhaps because Americans continue to think that the Chinese are just Asian versions of bankrupt European Marxism.  But there is much there that is worth engaging, even with respect to the American ideological mission to advance protection of the dignity of individuals, but undertaken in a Chinese context.

What follows  are the Press Release issued by the CECC Joint Chairs, and their joint transmittal letter to President Obama.

Keren Wang on "Religion in China: Historical and Legal Context" and Chinese-Vatican Relations

(Pix (c) Larry Catá Backer 2014)

The study of the relationship between the state and religion—especially organized and institutional religion originating in the West and Middle East--is grounded in an important and often overlooked premise. That premise is based on a very specific view of religion and a very historically contextualized understanding of the relationship between the state and religious institutions. Both are grounded in the primacy of the model of religious organization and of state-religion relations developed in the Middle East and Europe (and later spread elsewhere in the globe) centering around Judaism, Jewish state organization and its important evolution under Christianity and Islam, the religions that emerged from it. Much of the national and international discussion of the last several centuries has effectively centered on the way in each of these variants of so-called "Abrahamic" religions (and thier contests for domination within social, cultural and economic space) be manifested, and their relations with states legitimated. Other religious traditions are then folded into the master narrative of law-religion discourse, or treated as exceptions or variations within it.

That has been the basis on which the grounding premise fo Abrahamic religions have been universalized and then offered to the international community as the sole basis on which to understand, manage and "protect" the interests of these legal and theological systems, each with substantial designs on the control of the social, political and economic orders of its adherents. It is into that construct that non-Western or Abrahamic traditions--state and religious--are now required to mold themselves. That molding, of course, can sometimes highlight the differences between the founding premises of non-Abrahamic political orders, and the difficulties of transposing the universalizing project of Abrahamic state-religious organization outside of its context.

The essay that follows, Keren Wang, Religion in China: Historical and Legal Context, Coalition for Peace & Ethics Working Paper 9/1 (Sept. 2014), provides an introduction to those issues. The abstract follows. The essay may be access HERE.  On the Coalition for Peace & Ethics, see HERE.

 

 There follows an excerpt from a Vatican sponsored conference on the life of the Catholic Church in China, Holy See, Comunicato: Riunione Plenaria Della Commissione Per La Chiesa Cattolica In Cina (Press Release: Plenary Meeting of the Commission of Catholic Church inChina), Holy See Bulletin April 26, 2012.