Ruminations 94: "The Mechanics of Perfection," Reflections on the Swearing In of Supreme Court Justice Amy Coney Barrett

 

Pix Credit Here

 The process leading to the eventual swearing in of Amy Cony Barrett as an Associate Justice of the US Supreme Court on 26 October 2020 (here) has absorbed the American elites, no elite field more than ts lawyers and lawyer academics. There was good reason for that, of course. And that is the problem. Having legalized politics over the course of the last century, and constructed the judiciary as its arbiters, the fortunes of political factions ride on the selection of appointees to its highest court. Serendipity and longevity favored the liberal faction in the short run--producing majorities or close dissents by a group of jurists who held on during the last years of the last Democratic Administration. But in the long term, it appears, fortune favored certain factions of traditionalists, especially since the (to their political enemies) unexpected election of Mr. Trump in 2016. So now, having invested authority and legitimacy in the courts, having placed them as the overseers of law, of administrative discretion, and of the meaning of political action, the political enemies of the forces assumed to be represented by the newest Associate Justice face the prospect of a court which would no longer reliably be their instrument (at lest from the perspective of ideology)

The wheel turns; it will no doubt turn again.  But that is of little comfort to contemporary combatants who will mostly not live long enough to see that happen. The politics and ideology that drives this combat, and the specifics of the individuals involved, has produced much passion; it has revealed much by way of ideological preference.  But it has revealed far more than that--it has exposed the peculiar tick of American legal culture that has over the course of the last century transformed American politics as well as its conception of law.  It is simply this:  

American philosophy of law is better understood as theology than as that traditional American academic or pragmatic discourse that styles itself philosophy. The mechanics of an American philosophy of law provides a basis in reason for an American theology of faith in the perfectibility of law. The relationship among reason, faith, and truth (perfection) better defines an American philosophy of law than do traditional, merely rational, conceptions. (Larry Catá Backer, 'The Mechanics of Perfection: Philosophy, Theology and the Foundations of American Law,' in On Philosophy in American Law 44-52 (Francis J. Mootz, Jr., ed., Cambridge: Cambridge University Press, 2009).

Americans continue to ask a sideways (I was going to write "wrong" but that itself suggests the alignment of law with some sort of state pf perfection) question of their law and of their judges; they ask if the law is perfect and the application is the right "one." They seek judges who can be instruments of this striving toward perfection--will the judge deliver the "right" result in the form of a "correctly written" opinion? Perhaps they might better ask whether the law is suitable for the times and whether the judge is able to deliver some sort of plausible interpretation. The core question, perhaps, then should be plausibility rather than perfection. Perfection belongs to the realms of morals, politics, theology, and ideology--subjects suitable for argument, and battle in which the legal system serves as crucible. Americans, however, have long rejected the notion law follows rather than leads social transformation. It is just that the ancient document through which this transformation  is to be realized continues to pull in the opposite direction in a sometimes most inconvenient way.

Still, Americans now embrace the ideology of perfection. A perfectible law requires perfectible jurists. Neither is possible. Our system was not designed to produce the perfect state, reflected in perfect law, overseen by a perfect magistracy.  Americans once left that striving toward perfection to moralists, politicians. . . . and eventually to our Leninists. The task of the law (once essentially private) was to strive toward perfectibility as it suited the times. It was left to moral-politics to guide suitability. That is both the genius and the tragedy of the contemporary American political-juridical system, now built as it is on the necessary scientism (ad with it notions of perfection) of the administrative state.  The conflict around the suitability of Amy Coney Barrett, then, reflects  the way law is now understood as the expression of a striving for (eternal?) perfection--a theological and Leninist conception--one that requires the perfectible instrument for its delivery.  And it is to that that these brief reflections are directed.

Birgit Spiesshofer: "Responsible Ownership" or "Benefit Corporation" English Translation of Article published first (in German) in the Frankfurter Allgemeine Magazine Einspruch! (online) 19 October 2020

 

 (Birgit Spiesshofer)

Dr. Birgit Spiesshofer has been undertaking truly important and path-breaking work in the area of the responsibility of business for harms that may be attached (that, of course, is the issue of the moment, that is the jurisprudence of "attachment") to the economic activities of enterprises and persons.  Her  monograph, Responsible Enterprise: The Emergence of a Global Economic Order (Munich: CH Beck, Oxford, Hart, 2018), is a remarkable analysis of the "state of the legal art" in this field and an excellent basis for thinking about the paths already being carved out for going forward (for my review of this work, see "The Enterprise of Responsibility:" Reviewing Birgit Spiesshofer, "Responsible Enterprise). 

Dr. Spiesshofer also writes frequently for the Frankfurter Allgemeine Magazine Einspruch! (online) on themes of corporate governance, sustainability, and its inevitable relations to systems of trade and political governance across borders. Though these essays are produced for a German audience, she has kindly agreed to translate some of them for re-publication here. Earlier translations include (1) "And Who Asks the Supply Chian"; (2) "Fridays for Future, Siemens or the Australian Government - who decides?"; (3)  "Green monetary policy - "whatever it takes"?"; (4) "What is "sustainable"?" ; (5) "The Hour of the Nation-State" (see also here). 

 

 Dr. Spiesshofer has now agreed to the translation of a recent essay--"Responsible Ownership" or "Benefit Corporation" English Translation of Article published first (in German) in the Frankfurter Allgemeine Magazine Einspruch! (online) 19 October 2020. In a short and quite condensed form, Dr. Spiesshofer turns her analytical gaze to the legalization of a the idealization of a "responsible" enterprise.  In the process, of course, those who are pushing this effort mange to define the ideal form (the character of responsibility) and then to incarnate it in the form of idealized law. But the creation of an ideal type also exposes a quite specific attack on deviant forms--the traditional enterprise.  And not just the traditional enterprise, but the edifice of corporate law grounded in principles of capital aggregation and the core (now responsible) purpose of the enterprise. The benefit corporation and responsible ownership enterprise, then, may not merely provide an idealized variant.  It may serve as a vanguard for an assault on the complex set of principles on the basis of which economic enterprises have been constituted (and privileged) for the last century or more.  The law of enterprises, the understanding of the core obligations of economic activities, and the protection of capital (in the context of market driven risk and responsibility, ought never to stand still.  Nor, it seems, should the way in which political communities have constructed separate spheres for political and economic government.

 

One ought to ask, though, whether the way forward (if indeed change has a direction as scientific socialism believes, but other political models reject) ought to follow this path or another.  That, however, is a conversation largely denied. Elite history cannot be denied (though it can be resisted) or diverted. In a sense, the action continues a process which took its current form in the 1970s. It amalgamates a set of outlooks that start with a suspicion of private economic activity, that understand the corporation as merely a privileged nexus point for the development of productive forces to social ends, that is suspicious of markets as an allocation of risk and reward devise in the absence of strong state (ideologically and policy driven) guidance, and that seeks ultimately to treat the enterprise as a form of state administrative organ (but without the irritation of sovereign immunity). Not that any of this is bad.  It is merely unfortunate that few are privy to the discussion of urtext even as they are continuously presented with bits and pieces--like this one-- which seeks to advance an ideological position by "making facts" one step at a time. If, indeed, we are moving toward regimes that understand responsible business conduct and the societal role of the corporation in public terms, then this may represent yet another  step in the governmentalization of economic enterprises, and the privatization of governance.  The resulting construct may well serve as a template for a post global European political-social model its "New Era."

 

One can see that the essay provides much useful fruit for thought. The essay and Dr. Spiesshofer's brief bio follow. 

 

To Wage Legal Warfare One Must First Acquire a Territorial Connection: Hatice Cengiz v. Mohammed bin Salman, Case 1:20-cv-03009 (US Dist Ct for the District of Columbia)

 

Pix Credit: Fiancée Sues Saudi Crown Prince Over Khashoggi Killing

 

War today., at least war with significant geo-political consequences. are today rarely fought with armies.  To a large extent, and where it matters most (that is where the consequences of traditional warfare are topp great, the major (and great regional) powers now deploy armies of bureaucrats, lenders, cyber shockk troops, enterprises, social scientists, news and other well managed social media organs (yes, even or especially in the West), politicians . . . . and lawyers.  Clever lawyers (e.g.,  Lawfare: Law as a Weapon of War).   Despite an almost constant occurrence of traditional warfare at the edges  and margins of those actors of central importance to the global core of leadership, where consequences count, non-traditional warfare has proven quite effective.  And, as an added benefit, it preserves the spoils of war--the productive forces of defeated rivals.  In a sense, modern post-global warfare (the multiple generations of warfare that are now the object of great study and strategic use by those states capable of their deployment) preserves the goods, services, infrastructure, and laboring elements even as they acquire the advantages once assumed only possible through conventional war (e.g., The Fuhrer Principle of International Law: Individual Responsibility and Collective Punishment).

The circumstances around the death of Jamal Khashoggi serves as the the battlefield on which the opponents of the government of Saudi Arabia now wage war.  Initially the combatants deployed the traditional forces of diplomacy and strategically social agitation (especially useful as a management tool of assemblages of human collectives in liberal democracies, if one knows what one is doing), leveraged through the management of news and social media organs among networked news and media organs (especially the case where a media organ  becomes both combatant and chronicler of events, e.g., here).  In liberal democratic states that is undertaken through private markets for influence, and the consequences of control or contractual relationships embedded within autonomous private self referencing economic systems (e.g., here). That produced (from the perspectives of the opponents of the Saudi state) limited success (e.g., here, and here).

Now onto the battlefield come the lawyers. Initially the battle revolved around criminal sanctions that veiled the political war between Saudi Arabia and Turkey (e.g., here, and here). On 20 October 2020, the fiancé of Jamal Khashoggi along with  DAWN, a US non profit corporation, filed suit against a large number of Saudi officials--Hatice Cengiz v. Mohammed bin Salman, Case 1:20-cv-03009 (US Dist Ct D.C.). The Complaint seeks compensatory and punitive damages along with attorneys fees on the basis of claims for extra judicial killings under the Alien Tort Statute (28 USC §1350) and the Torture Victim Protection Act (28 USC §1350 note), along with claims for tortuous interference with contract, wrongful death, intentional infliction of emotional distress, loss of consortium, and loss of society.  

Brief reflections follow

European Corporate Governance Institute Research Network Full Picture Series: Workshop on "Ernst and Young Study on Directors' Duties and Sustainable Corporate Governance" 11-13 November 2020

 

Pix Credit: HERE

It is not only states that have been undergoing ideological turmoil and core factional battles since  the start of the second decade of the 21st century.  Those battles--over the character of market economies, of Leninism, of democratic participation, of the character of public duty and private responsibility, of the character of governance as jurisprudential or data driven--have spilled over into corporate governance debates as well. Core corporate principles, and the foundations of enterprise legalities--as law, culture, expectations, are being challenged and factions of influential academic, bureaucratic, and governance elites are now invested in substantial transformations--or in the development of countermeasures--to reshape the Weltanschauung of enterprises, and with it of economic activity--in global orders emerging from the general instability that has marked the world since 2001.

 This spillover is not serendipitous.  Neither is its character.  Factional battles over the soul of corporate law--who does the corporation serve,--what is the character of the the responsibilities of  the board and its officers, what are the duties of the enterprise to an identifiable universe of groups with which it might be connected by relations of proximity, control, contract, or politics--are converging with more general elite factional battles (different within liberal democratic and Leninist systems of course) respecting (1) the character of the relationship of the individual to public and private bodies, (2) the de-centering of the individual from the rights and obligations of communities, and (2) ultimately the de-centering of humanity from the core duty to preserve and sustain the planet.  

In the context of the regulation of economic enterprises, the spillover is threatening, that is threatening to the autonomy and character of corporate regulatory and operational principles--as it has been since the 1970s (recounted  years ago when the great priestly keepers of corporate orthodoxy did not think this much worth notice in Backer, Larry Catá, Multinational Corporations, Transnational Law: The United Nation's Norms on the Responsibilities of Transnational Corporations as Harbinger of Corporate Responsibility in International Law. Columbia Human Rights Law Review, Vol. 37, 2005, Available at SSRN: https://ssrn.com/abstract=695641). 

And now the priestly magisterium of corporate regulation--the keepers of the temple of corporate Weltanschauung have also begun to intervene. The Americans have their renewed project on principles of corporate law through the American Law Institute, and now the Europeans, also moved to act, if only in response to this sideways attack on corporate regulatory systems by way of efforts to get states to negotiate a treaty on business and human rights and the embedding of sustainability principles in corporate operation. That latter effort was marked by the distribution of a a study by Ernst & Young (EY) on directors’ duties and sustainable corporate governance published in 2020 which was meant to serve as the platform from which the European Commission would engage in a bit of law reform itself. 

But seeing this as a potential threat to their position as drivers of policy, the global academic elite now seeks to intervene. To the extent of interlinkages (e.g., in one manifestation here) between academic and bureaucratic elites this may prove useful to both and certainly contribute to their hold on status as the political or at least normative vanguard under whose leadership corporate regulation will change. It is in that context that the European Corporate Governance Institute (ECGI) has associated itself with the organization of a workshop to bring together those academic and bureaucratic drivers of policy for the purpose of intervening in the process of anticipated reform.  That intervention must be signaled of course--and that signalling is heralded by this Workshop.  But its deeper meaning is intimated by the conversations, off the public record, and the deepening interlinkages, that this event may produce.

It may therefore be of some use, especially for those on the outside (who might at some point be allowed in for engagement at the margins), to take notice of and participate in what is likely to be an important publicly visible step in the inexorable movement of corporate law from where it sits now to some other place. That place is likely to be one that is substantially more risk averse, increasingly compliance and accountability oriented, and seeped with public responsibility delegated to it as a manifestation of its growing character as a privatized administrative organ of either states or international actors.  Now THAT is what will be truly transformative, and a transformation that our magisterial will contribute, but perhaps without much thought.  And it is the thoughtlessness--the "short termism" (to be ironic given one of the targets of the effort)--that ought to worry those who might want to take a longer and broader view of these efforts.  There is indeed some irony that this event is being held even as the UN Intergovernmental Working Group holds its 6th session on cobbling together a draft Business and Human rights treaty that would upend corporate law and principles as part of a project that in its own way is deeply suspicious of markets and of private concentrations of capital that are not tightly managed by the state through constraining international "law."

Workshop registration information follows along with the organizers' description of the recent, its importance, and the identity of those who will shape it.  My own reflections on the study and what it portends follows in a later post.

 

 

ACSE-CPE Interview Series: Cuba's International Constitution, a Conversation with Ngoc Son Bui

 

The Association for the Study of the Cuba Economy (ASCE) with the support of the Coalition for Peace and Ethics (CPE), has undertake an interview series. The object of this series is to draw attention to the work of leading scholars and actors involved in the examination of Cuban society, culture, politics, law, and economics from a national, regional or international perspective. 

For the ASCE Series' next interview, Larry Catá Backer had the great pleasure of speaking with Ngọc Sơn Bùi who is an Assistant Professor at the Chinese University of Hong Kong Faculty of Law where he teaches and researches on constitutional law, comparative constitutional law, and comparative law. His work includes the monographs Constitutional Change in the Contemporary Socialist World (Oxford University Press 2020) and Confucian Constitutionalism in East Asia (Routledge 2016), and articles published in the American Journal of Comparative Law, International Journal of Constitutional Law, Cornell International Law Journal, NYU Journal of International Law and Politics, and the  Illinois Law Review, among others. He was previously a research fellow at the Centre for Asian Legal Studies in the National University of Singapore Faculty of Law. He serves as an editor of the Asian Journal of Comparative Law. He earned his Ph.D, at the University of Hong Kong and the LL.M and LL.B degrees at Vietnam National University-Hanoi. He has been an Academic Visitor, Melbourne Law School (May 2014), a Visiting Scholar, Tsinghua Law School (September 2013), and a Visiting Researcher, Harvard Law School (February-May 2012).

Our topic for this conversation is his fascinating work on Cuban constitutionalism, and its connection with emerging trends in global and internationalist constitutionalism, "You the People: Cuba's International Constitution," International Law & Politics 52:829-874 (2020). Constitutional internationalism suggests what might be the leading edge of ye another transformation int he forms and functions of national constitutions, one better suited for a global order in which states are deeply embedded in global production of goods, services, culture, and politics. 

Our conversation revolved around four thematic questions:

1. Please tell us about the genesis of your interest in Cuban constitutionalism and the impetus for your trip to Cuba in 2019; what did you learn and how did it contribute to your scholarship? Here  Ngọc Sơn Bùi focused on the way that Cuba's 2019 constitutional experience appeared to align with what appears to be an emerging trend in constitutional internationalism.  He spoke to the characteristics of that trend and in manifestation in constitutional documents.  It was hard to avoid comparisons with Vietnam with which the Cuban state has been increasingly engaged.  What officials appeared to make clear was that there was a conscious effort to move from the old model to something that remained true to its core principles but which sought to mitigate its operational constraints. 

2. You speak about the constitutional enshrinement of international relations. And yet it manifests itself in a quite unique way in Cuban constitutional discourse. I am especially curious about the evolution from and enshrinement of the principles you identify—international amity, independismo, anti-imperialism and the like. Could you explain what is unique in this respect in Cuban constitutionalism? He noted the difficulty of separating Cuban internationalism from its quite specific roots in Latin American regionalism, and with the long tradition of sovereign integration that was a hallmark of Cuban hemispheric policy at least south of the US border. We noted as well the convergence not just of historical practices bt as well of an internationalism shaped by Socialist construction of anti-imperialism and constructed in the shadow of the United States. 

3. One of the most interesting aspects of your article touches on the enshrinement of constitutional internationalism in the form o human rights, climate change and, for me most crucially, in the context of foreign investment. Might you elaborate for us your arguments with respect to each? We spoke as well to the role of constitutions as a constraining signal device: it signals outwardly its commitment to certain values and policies, and inward to constraints on the application of the national political-economic model.  On both cases, such signalling can serve as an important constraint and farming device for policy and legal elaboration. In this case the Cuban case provides some unique elements. That signally might evidence in a variety of ways, from guiding the enactment of measures designed to implement constitutional norms, to the way in which constitutional principles (for example climate change) might require revision of core economic planning, including perhaps the 2030 Economic Plan. He underlined the potentially significant role of constitutional signally in broadening the scope  and focus of popular participation in a system where interpretation and application is not centered on the courts but rather on the legislature. 

4. I was particularly struck by your discussion on the constitutionalization of transnationalism respecting dual citizens and foreigner rights. I am curious about the differences between the Cuban and Chinese positions on each. Could you elaborate? Here Professor Ngoc focus on the construction of nationality internationalism, a concept with some resonance with Chinese constitutionalism.  One sees developed here a conception of "belonging" beyond and deeper than formal citizenship. The potential for embracing a Cuban diaspora remains to be explored.  As interesting, we considered the embrace of foreigners within the Cuban polity.  Of course, fidelity to the political-economic model--and the leading role of the Communist Party--would require demonstration.  But the impulse for this broader inclusion appears both the other side of the coin of nationality beyond citizenship and echoes the impulse of the Second Havana Declaration in which willing foreigners were embedded within the masses. 

We hope you find the discussion interesting and thought provoking We welcome your views. The video is posted to the CPE YouTube Channel (ASCE Interview Series Playlist) and the specific interview may be accessed HERE.

Human Rights Society at Penn State Law & SIA: Roundtable Discussion on "COVID, Control, and Complicity in Rwanda: Human Rights Intersectionality in the Dead Spaces between Legal and Markets Regimes"

 

 

I was delighted to accept an invitation from the our students in the Human Rights Society at Penn State Law & SIA to participate in a round table discussion of the issues raised in in a discussion draft recently completed: "COVID, Control, and Complicity in Rwanda: Human Rights Intersectionality in the Dead Spaces between Legal and Markets Regimes." The Round Table will take place (virtually) Wednesday 21 October 2020 at 5 pm (1700) US East Coast Time.

The discussion will be structured around a quite straightforward problem which is set out below along with the Zoom connection information.  Discussion will focus on its real life analogue, the case of Rwanda where the issue of complicity and the use of enterprises to change state behavior, is much in evidence. 

The problem is meant to highlight emerging issues where the human rights responsibilities of enterprises and the state duty to protect human rights may not align.  It also focuses on the consequences of the generation long project of delegating private regulatory authority to transnational actors through programs of compliance and reporting. The resulting shift in regulatory authority moves the center of human rights regulation from the public law of states and international actors to the private law of private actors managing transnational production chains.  Lastly, it considers the consequences for human rights of the slow but steady move to a tort-compliance foundation for managing conduct in this field. That it, it examines the institutional behavior incentives when the state takes human rights risks but the enterprises bear the obligation to remedy resulting harms from that risk taking. This responsibility shifting at the heart of current approaches to the regulation of the human rights consequences of enterprise behaviors (even in the context of their relations with states) create an important conceptual dead space between the compliance based administrative regulatory model of public law and the markets driven tort  model of private law. 

The discussion draft may be accessed here: Larry Catá Backer, COVID, Control, and Complicity in Rwanda: Human Rights Intersectionality in the Dead Spaces between Legal and Markets Regimes, CPE Working Paper 10/1 (October 20, 2020). Available < https://www.thecpe.org/wp-content/uploads/2020/10/Backer_COVID_Complicity_Rwanda_CPEWP10-1.pdf> .

PowerPoint may be accessed HERE.

 

Individuals as Instrumentalities of State and the Erosion of Human Rights Autonomy: Chinese Policy on the Arrest of Foreigners as a Part of its International Relationship Toolkit

 

Pix Credit International Business Times

 

Three seemingly unconnected stories have circulated in recent days.  The first was the announcement by the Chinese government of its intention, at times and places of its choosing, to arrest U.S. citizens in China in retaliation for the arrest in the US of Chinese citizens on charges of espionage and related activities (China Warns U.S. It May Detain Americans in Response to Prosecutions of Chinese Scholars).  The second was an announcement by the Chinese government that the Canadian decision to grant Hong Kong people asylum in Canada by threatening the several hindred thousand Canadian citizens living in Hong Kong (Chinese envoy says Canada’s acceptance of Hong Kong refugees jeopardizes Canadians in former British colony)  The third was a story, receiving far less notice in Western news sources, about embassy personnel of the Chinese government attending a Taiwan national day affair in Fiji, beating up a Taiwanese official and then seeking the protection of diplomatic immunity, though here   there are conflicting story lines advanced by both parties (Taiwanese, Chinese staffers injured after clash in Fiji; Taiwan says diplomat injured in clash with Chinese side in Fiji).  

Pix Credit HERE

 

While each of these stories touches on matters important in their own right, they acquire a power to suggest more powerful insights when read together. First, it is becoming clearer that the Chinese are as blinded by their own way of seeing the world as are their Western (and especially their US) counterparts; one learns more about the Chinese from these actions than one gathers about the coherence of their foreign statecraft. Second, that world view suggests a quite interesting set of fundamental principles about the nature and autonomy of individuals that, when projected outward, manifest themselves in the essentialization of the individual as a granular representation of the collective (in these cases the state). Third, that process of essentialization  produces a reductionism that (that is it reduces the individual to a representation of the collective within which she is placed) that effectively orders intersectionality (that is the essence of a parson as belonging to multiple collectives--ethnic, religious, gender, etc.) into a hierarchy  which when ordered permits the application of authority in a vertically coercive way.  “‘There is no coercive diplomacy on the Chinese side,’ he said. ‘The Hong Kong issue and the Xinjiang-related issue are not about the issue of human rights. They are purely about internal affairs of China, which brooks no interference from the outside.’” (Chinese envoy says Canada’s acceptance of Hong Kong refugees jeopardizes Canadians in former British colony). This is perfectly sensible  from the Chinese perspective but incompatible with the way the Canadians (in this case) understand the world.

 

Pix Credit HERE

These are ways of understanding and responding to the world that is in some respects incompatible with the world view of China's partners.  The consequences for both international relations and human rights law and norms ought not to escape the attention of those who seek to engage both along the Belt and Road and more generally elsewhere. It increases the likelihood of miscommunication, and certainly of misreading action (since all parties are engaged in narcissistic interpretive exercises universalizing their own world views and projecting it onto others).  Lastly it furthers the current trend toward both decoupling (here along ideological lines), and the reorganization of global communities within distinct camps--not those that were the essence of the Communist-Free World divide of 1919-1989, but rather one defined by and through the control of production chains extending from the heart of the ideological hubs (China, the US, and the EU) which now seek to cement their "control" over their production territories through the embedding of their own rule and operational systems. 

One does not speak here about good or bad--that is a moral-political judgment that suggests the necessity of allegiance (and taste) rather than "facts" or "truth" (despite the best efforts of social scientists to insist otherwise). But it also suggests the limits and consequences of the sort of narcissistic analysis and actions undertaken by the emerging imperial powers which both advances their respective interests (by hardening their conceptual frontiers and projecting that outward as their brand of narrative) but also undermines their respective long term interests by deliberately over-differentiating difference and to undermine the efforts of the last century to advance the material (and moral) conditions of the global order.  And indeed, the big losers are the elite which rose after 1945 and which remains loyal to the conceptions of global multilateralism that appeared to suffer great setbacks (at least symbolically) with the US elections in 20016, the change of core leadership in China from 2013, and Brexit.

The three news reports follows along with brief reflections on each of the three points raised above.   

The West's Private Sector Responds: "European Chamber Stance on United Front Work In China’s Private Sector"

 

 In 中共中央办公厅印发《关于加强新时代民营经济统战工作的意见》The General Office of the CPC Central Committee issued the "Opinions on Strengthening the United Front Work of Private Economy in the New Era", the Central Committee of the Chinese Communist Party continued the development of its all around development of expanding the CPC's influence, and of ensuring cohesion and discipline among those subject to the CPC's leadership (English translation HERE).  This includes private enterprises, Chinese or foreign, operating in China.  I suggested  two potentially substantial implications.  "The first is the use of the United Front as a means of more closely aligning political and economic decision making. . . The second, is that--and certainly within Belt and Road relationships worldwide--the United Front's discipline of private sector enterprises might affect as well the way in which foreign relationships with non-Chinese businesses and governments are constructed, implemented, and advanced." (HERE).

It is the second of the implications that has caused some concern for foreign business.  These concerns were recently articulated in a widely circulated statement issued by the European Chamber, self described as "the independent voice of European businesses in China." 

The Statement follows.

 

Cuban Constitutionalism in a Global Context--A Conversation With Jorge Dominguez for the Association for the Study of the Cuban Economy

 

The Association for the Study of the Cuba Economy (ASCE) with the support of the Coalition for Peace and Ethics (CPE), has undertake an interview series.  The object of this series is to draw attention to the work of leading scholars and actors involved in the examination of Cuban society, culture, politics, law, and economics from a national, regional or international perspective.

For the ASCE Series' next interview, Larry Catá Backer had the great pleasure of speaking with Jorge Dominguez. Now retired, Jorge Dominguez was a Harvard professor for 46 years and Harvard’s vice provost for international affairs for nine years, among other senior posts. He has been publishing books and articles about Cuba for about a half century. In 1989, Abraham F. Lowenthal described him in Foreign Affairs as the dean of U.S. Cubanologists. Dominguez' books touching on Cuba (without mentioning his excellent work on Mexico and other Latin American states) include: The Construction of Democracy: Lessons from Practice and Research; Between Compliance and Conflict: East Asia, Latin America and the New Pax Americana; The Cuban Economy at the Start of the Twenty-First Century;  and Democratic Politics in Latin America and the Caribbean.  Dominguez's germinal work,  Cuba: Order and Revolution (1978) whose look at the way in which changing elites made clams to legitimate rule in Cuba and its consequences, remains a foundational work for those studying Cuba, and its insights now appears to have increasing resonance in the conflicts among political elites in the contemporary US.

 

Our topic for this interview is the most recent Cuban constitutional project, one that produced a revised constitution approved by popular plebiscite after a period of mass consultation and more intimate consultations within the Cuban Communist Party from the time of the adoption by the PCC of its Conceptualización Del Modelo Económico Y Social Cubano De Desarrollo Socialista in 2017.  Our conversation revolved around three thematic questions:

(1) What is the most intriguing element for you in the new Constitution? Here Dominguez focused on key institutional changes wrapped around the institutionally momentous transition inevitable after the death of Fidel Castro.Some attention was paid both to the alignment of changes in the organization of the state via the constitution as against the organization of the PCC, as well as how the constitutional changes have appeared to change the working style of the highest levels of government.

(2) What is the most disappointing gap in the constitutional reform thus far? Here discussion entered on  the lack of change thus far to the electoral laws, and an examination of changes that could still be adopted within the framework of the current political regime. Comparisons with China and Vietnam were considered as well as differences between Leninist and  liberal democratic premises of elections.

(3) What are the salient changes in the Constitution that pertain to the economy? Here the focus was on the advances of private foreign investment and the preference for foreign over national firms e.g. turning nationalism on its head. The resulting constitutional internationalism represents a potentially shift from the traditional nationalism of post Revolutionary constitutions well worth exploration.  In the course of the discussion Dominguez considered the role for markets in Cuban economic ideology as well as the way that political ideology shapes economic principles embedded in the constitution.

We hope you find the discussion interesting and thought provoking  We welcome your views. The video is posted to the CPE YouTube Channel (ASCE Interview Series Playlist) and may be accessed HERE. 

 

 

 

 

Announcing Posting of Video Recordings of the Association for the Study of the Cuban Economy's 2020 Virtual Conference: CUBA FROM THE CASTROS TO COVID

 

In conjunction with the Association for the Study of the Cuba Economy (ASCE) and the Coalition for Peace and Ethics (CPE), I am delighted to share the video recordings of the ASCE 2020 Virtual Conference, the theme of which was "Cuba From the Castros to COVID." From the Concept Note:

Before the COVID-19 pandemic at the start of 2020, Cuba and its friends and neighbors had been functioning within the framework of a broad equilibrium. American enmity was matched by the friendship of Venezuela, China, China, and Iran, while European provided a measure of protection to take the edge off of American efforts to destabilize the government. Internally, Cuba elite continued to refine its Caribbean variant of Marxist-Leninism, one substantially suspicious of markets. Yet the resulting formal structures of the economic system also provides a space for an informal economy tolerated because it is the price of stability, and useful because it provides a means of disciplining the population when it suits the state. Cuba's search for hard currency and global influence produced programs of providing medical services to other states (Cuban medical internationalism), which competitor states (and some of its participants) criticized for potential violation of human rights. Even this description can be incendiary precisely because Cuba lends itself to polarization of opinion. For example, while some are convinced that Cuban medical internationalism is deeply embedded within the political premises of Cuban Marxist Leninism, others believe that it constitutes a form of modern slavery in breach of the ILO conventions. And economists deride analysis describing declining economic growth as a broad equilibrium.

All of the delicate components of these external and internal balancing, the aggregation of which defined the state of the nation (its economics, politics, law and social ordering), have been substantially disrupted by the COVID-19 pandemic. This conference has been organized to consider some of the more important aspects of that disruption and its potential consequences for the Cuban state, Cuban society, and its economics and international affairs. Participants will consider

(1) The Cuban Economy and Prospects after COVID-19; (2) The Cuba Venezuela Relationship; (3) "Destrabando" the Cuban Economy: An Assessment of Reforms and the Road Ahead; and (4) a Roundtable on Developments in Moving Beyond Cuba's Dual Currency System. The featured event, the Carlos Diaz Alejandro lecture will be given by the annual Carlos Diaz Alejandro Lecture. This year's lecturer is Alejandro de la Fuente, Harvard University, who will speak to “Racism with Equality? Measuring Racial Inequality in Cuba, 1980-2010.” Lastly, ASCE will recognize a group of extraordinary students whose papers will be presented to end the conference.

Videos of each of the six panels may be accessed separately. The links follow below. The videoa may also be accessed through the CPE YouTube Channel HERE.

The Conference website and its rich set of materials may be accessed HERE. 

 

Meaning Making History--Donald Trump: Columbus Day Proclamation; Indigenous Peoples' Day Proclamations of the Governors of California and Vermont

Here are the indigenous people Christopher Columbus and his men could not annihilate

Shared history within a political community has always been difficult; all the more so when history moves, as it must, from the relation of events to its judgment.  History has always been well embedded in judgment, and judgement in values that serve as the structures through which the world (and the events which take place) are recognized, and in that act of recognition, placed within the value systems it is meant to validate and confirm.  Indeed, the word itself, ultimately derived from the Greek--"historein "be witness or expert; give testimony, recount; find out, search, inquire," and histōr "knowing, expert; witness," both ultimately from PIE *wid-tor-, from root *weid- "to see," hence "to know." (Etymology Online-history). Seeing and knowing, then, produce a complex interplay between the witnessing of events (which itself is the product of a judgment that an occurrence is worthy of noting) and its knowing (that is to recognize the event for what it is in relation to other events constrained by the structures of perceiving and of meaning making within a community).  

Leif Erickson Day

History, in this sense, is an act of creation in the image of its creators--the community that determines the values within which events are recognized and given meaning that in turn confirm the values around which the knowing of events is developed. It is in this sense that, especially where a community is in a dynamic stage of transforming its values, or where there is conflict among distinctive factions that view the world through different value measures, that history becomes both contested and political-cultural.  Yet what is contested at its core are the values that make it possible to see and know a thing in relation to the values around which seeing and knowing are given meaning. The search for historical truth, then, can be understood better as the search for the affirmation of values through the truth extracted from historical events which are acknowledged, and invested with moral, normative, political and cultural value.  Signification, then, is the way in which history is necessarily "curated"  (China to revise textbook language on anti-Japanese war ("To revise 'eight-year war of resistance' into '14-year war of resistance' not only is the consensus among Chinese historians, but also conforms to historical truth," said Wang Jianxue, vice chairman of the China Association of Historians Studying Modern Chinese Historical Materials)).

These are the States Ditching Columbus Day

Of course, those within the contests over history cannot see it that way--they are in history rather than beyond it.  And that history making is central to the core contest over the way in which meaning is made and values are legitimated and applied to the construction of communal self understanding. These contests over history occur everywhere today (e.g.,What Japanese history lessons leave out;  Vladimir Putin Wants to Rewrite the History of World War II). But they also touch on the way that historical events may themselves be manufactured to advance the legitimacy of the values they are meant to represent.  This continuum is possible only because of the relationship between seeing and knowing, between recognizing a thing and the context within which recognition is possible (for an interesting analysis of the continuum, see the Rand Corp's Truth Decay).  The problem of the manufacture of historical events is challenging enough; but the larger issue becomes clearer and more potent when the issue of "accuracy" is removed.  That is, what one sees and knows as history can be quite distinct eve when two or more communities are "seeing" the same thing but "knowing them" differently.

 The current contests over the "history" of Christopher Columbus provides a very clear example of this meaning making in periods of substantial instability in the underlying values from which stories may be "properly" related (for the challenge to the old orthodoxy, see reporting, eg here, here, here, and here). The competing ways of "seeing" and "knowing" the colonization and foreign settlement of the Western hemisphere (after its initial settlement much earlier) tell one as much about the state of shared history in the United States as it exposes the great incoherence in that sharing among the different sub communities in the nation. The nature of those rifts are nicely exposed by comparing President Trump's 2020 Columbus Day Proclamation with that of the Governors of Vermont and California proclaiming Indigenous Peoples' Day. (See also Archives of Indigenous Peoples' Day).

All three follow below.

Announcing Publication of "Flags, Color, and the Legal Narrative Public Memory, Identity, and Critique" (Anne Wagner and Sarah Marusek, eds, Springer 2021)

 

I am delighted to share the announcement of the publication of Flags, Color, and the Legal Narrative: Public Memory, Identity, and Critique. It will be published by Springer ad available in hardback in 2021 (ISBN )

The collection of essays provides a quite compelling approach on color-coded sign systems in flags, presenting a well developed cultural legal studies approach to the meaning of flags in the collective imaginary that cements a nation, and examining flags as a sense of uniqueness.

A brief summary of the work, short bios of the editors, plus a list of authors and essays follows. All may be accessed on line HERE.

House Permanent Select Committee on Intelligence: "The China Deep Dive: A Report on the Intelligence Community’s Capabilities and Competencies with Respect to the People’s Republic of China

 

Adam Schiff is no friend to the Trump Administration (e.g., here).  And yet it appears that the House intelligence Committee he chairs has now produced a Report that aligns quite nicely with President Trump's  National Security Strategy of the US with which the America First Initiative is conjoined (Ruminations 76: From Global to Fortress America; Thoughts on "National Security Strategy of the United States" (4 Dec 2017)). It also joins coherently with underlying policy development that has been produced over the last four years through the work of the  bipartisan Congressional-Executive Commission on China (CECC). One begins to see the alignment of views (belatedly) among all current American political factions at least with respect to the People's Republic of China.

The Report,  "The China Deep Dive: A Report on the Intelligence Community’s Capabilities and Competencies with Respect to the People’s Republic of China," has not received much attention. The Wall Street Journal provided perhaps the best summary: 

The report, most of which is classified, portrays the $85 billion-a-year U.S. intelligence community as overly focused on traditional targets such as terrorism and adversaries’ militaries. Pandemics, as evidenced by the coronavirus, and China’s technological prowess in areas like artificial intelligence present an equal threat, according to a summary of the report released Wednesday. The report recommends fundamental changes in the way intelligence agencies operate, including providing greater support to the Commerce Department, the National Science Foundation, public health organizations and other agencies outside the usual national security bureaucracy. (House Committee Says U.S. Spy Agencies Are Failing China Challenge).

The lack of attention is understandable given the tenor of the times. And yet The China Deep Dive is worth a careful reading if only for a sense of the almost inexcusable tardiness of the focus on a quite dynamic relationship with China that appears no longer driven by the United States, and for its continued evidence of a shallowness that ultimately will not serve the interests of the United States. The Report contained remarkably little finger pointing, and what there was (e.g., Report pp. 4-6 in summary) was well deserved.

The 37 page portion of the Report made public may be downloaded HERE and follows below along with brief reflections.  

Submission to the EU on the EU Regulation on Mandatory Human Rights and Environmental Due Diligence Made by the Professional Training for Lawyers & Barristers in the UN Guiding Principles in Business & Human Rights Working Group

 

I am delighted to pass along the "Submission to the EU on the EU Regulation on Mandatory Human Rights and Environmental Due Diligence" for the Professional Training for Lawyers & Barristers in the UN Guiding Principles in Business & Human Rights Working Group. We are grateful to Linda Wood for her leadership in the preparation and submission of this input.

Pix credit HERE

The submission emphasizes the importance of capacity building to any project of mandatory human rights and environmental due diligence.   While the West has cultivated a (self) conceit around its own capacity to robustly engage in human rights and environmental due diligence, the reality is that except for that small group of (mostly self selected) drivers of this project, the need for capacity building among members of the local legal establishments is as great in developed states as it may be in the "usual suspects" developing states. A greater challenge is the need to internalize the values  and principles around which due diligence is undertaken and the systems created for its implementation effectively used to measure compliance.  And the greatest challenge--to create a dynamic and well informed community clear in its driving principles but strong in its capacity to resist rigid and inflexible orthodoxy in pursuit of common goals centering around context based respect for the great principles of human rights and sustainability (including climate change) that have emerged in the first quarter of this century.

And that is where the hard work of implementation will begin. To move beyond the use of this regulatory project as something more than another contribution to fashionable virtue signalling--by states, international public and private organizations, enterprises, and individuals in academia, the bar and elsewhere--then sufficient resources will have to be devoted to internalizing the values represented by due diligence It will also require a sustained and coordinated program of teaching values and mechanics to its  gatekeepers, data collectors, code writers, analysts and modellers. The current generation of lawyers will require training not just on the mechanics of due diligence and its application to human rights and sustainability; it will require training in the values reflected in the due diligence, and ultimately, as envisioned in 2011 with the UN Guiding Principles for Business and Human Rights, with the incorporation of human rights and sustainability risks into the way in which economic actors price their activities and make choices among alternatives to the creation of wealth for humanity and the world that humans occupy. 

 

Data-Driven Values-Based Hedging in the Shadow of COVID-19: Cuba and Costa Rica Open their borders to Tourism

  

Pix Credit: (Marc Frank, Cuba opens most of country to tourism as enters "new normality", Reuters)

 

In a recent reflection (Simulating Politics in the Shadow of COVID-19: " 'like the school nurse trying to tell the principal how to run the school') I suggested the difficulties of generating consensus among national elites in meeting the challenge of COVID-19. That difficulty was not merely a matter (as has been the political line of the opponents of the current American Administration) of a refusal to conform policy to science and scientific knowledge expressed as the product of simulation models.  Rather, the challenge comes when competing simulations, grounded in quite distinct moral and policy measures of values, compete to serve as the basis for political, economic, and societal response to crisis. In the United States that expressed itself in the fight between those who advanced a medical and public health centering set of simulation models against those who advanced models that centered economic stabilization.  One model centered aggregated human life; the other centered the long term collective life of society. 

To choose a particular form of simulation is to choose a set of values that are to be advanced by the simulation.  But more than that, to choose a particular form of simulation is meant to foreclose any debate on the premises on which that simulation was chosen.  Choosing simulations is a form of choosing sides in a political contest. In the case of COVID-19, that necessary fragmentation was understood as separating out those who placed a greater value on economic simulation against those who would value health more. Both of course are after the same ultimate result--the maximization of the welfare of the American people--but each of their conceptual universes produce highly different pathways to that goal--and with those pathways quite different effects on individuals (e.g., Ruminations 90: Sacrificing the Most Humble on the Altar of Leadership). (Simulating Politics in the Shadow of COVID-19: " 'like the school nurse trying to tell the principal how to run the school')

This battle of the models has produced, in the absence of a string centralized response, an effective policy of hedging by states. That hedging differs, and sometimes substantially, form state to state.  Some states have "opened up" for business more than others.  But no state has either shut down as close to completely as possible, and none have opened  up as if the pandemic never occurred.  The battle of the simulations continues--and quite ferociously. It is a data driven policy argument with substantial political consequences to be sure.  At its core, however, it is a battle over values and valuation and reflects an ancient contest between the obligations of the states (and other institutions) to the individual or to the collective, or better said, a contest over where a society draws the line (that is gives effect to values  based on data driven consequences understood through the values based construction of predictive analytics).
 

Pix Credit here

This is not a challenge unique to the United States or even to developed states, though it manifests most prominently there because these places tend to be home to the great engines of social media (as well as of economic, social, and cultural power).  Indeed, the problem highlighted in the case of the United States plays an even more crucial role in developing states.

This post considers  the way this simulation hedging has been manifested in Cuba and Costa Rica.  It is read against growing controversy in developed states about the primacy of siloed medical modelling as the sole basis for the construction of responsive policy (Coronavirus: Health experts join global anti-lockdown movement).