Saturday, January 30, 2021

On the Re-Appropriation of Traditions of Candomblé in Brazil: Film: "Afro-Atlantic Memories" Now Accessible on YouTube

I am delighted to share with you the announcement recently circulated by Xavier Vatin, Ph.D.
Associate Professor of Anthropology at the Universidade Federal do Recôncavo da Bahia, Brazil

Compartilho com vocês o nosso filme "Memórias Afro-Atlânticas" (2019, 76'), que acaba de receber quatro prêmios no festival Cine-PE 2020: prêmio da crítica de melhor longa-metragem, prêmio do Júri Popular, Melhor Direção e Melhor Roteiro. "Memorias Afro-Atlânticas" é o resultado de 8 anos de pesquisa dedicadas ao estudo do acervo (gravaçoes sonoras, fotografias) em terreiros de candomblé, na Bahia, em 1940/41, pelo linguista negro estadunidense Lorenzo Dow Turner e o processo de reapropriaçao deste acervo pelas comunidades de candomblé na Bahia, inclusive os descendentes de Menininha do Gantois, Joaozinho da Goméia e Manoel Falefa. Vocês podem assistir o filme (legendado em inglês) no Canal Youtube do Caribbean Cultural Center African Diaspora Institute (CCADI, NY), com apresentação do Prof. Ken Dossar e seguido de uma discussão comigo sobre o filme e a nossa pesquisa.
I share with you our film "Afro-Atlantic Memories" (2019, 76 '), which has just received four awards at the Cine-PE 2020 festival: critical award for best feature film, Popular Jury award, Best Direction and Best Script. "Afro-Atlantic Memories" is the result of 8 years of research dedicated to the study of the collection (sound recordings, photographs) in candomblé terreiros, in Bahia, in 1940/41, by the American black linguist Lorenzo Dow Turner and the process of reappropriation of this collection by the candomblé communities in Bahia, including the descendants of Menininha do Gantois, Joaozinho da Goméia and Manoel Falefa. You can watch the film (subtitled in English) on the Youtube Channel of the Caribbean Cultural Center African Diaspora Institute (CCADI, NY), with a presentation by Prof. Ken Dossar is followed by a discussion with me about the film and our research.
For anyone intersted in Brazil and in the cmpex interplay of its peoples and religions, the video is worth watching. MOre importantly, perhaps, is the power of communities to recapture their own heritage and to manage it from within and share it. But always the problem of translation.   Ther are profound lessons to be learned here in this year of Olokún.

Thursday, January 28, 2021

Brief Consideration of the Report: "How are European financial institutions addressing human rights in their activities?" Prepared by the Geneva Center for Business and Human Rights and Team Löning


The Geneva Center for Business and Human Rights and the Löning Consultancy  have recently released a report: How are European financial institutions addressing human rights in their activities? (January 2021) which they describe in their January 2021 Newsletter this way:

We completed a baseline study on human rights in the finance sector together with Team Löning. The study was supported by Luxembourg for Finance (LFF). Our findings were summarized in this report and we presented them at LFF’s Sustainable Finance Forum.

The Report strikes a hopeful note--a strategically necessary choice. Writing the Report's foreword, Nicolas Mackel (Luxembourg for Finance, CEO) explains: "Finance is at a watershed moment. .  . . The study shows that while the ‘S’ in ‘ESG’ has not yet taken off fully, financial services’ awareness of these factors are growing and it is increasingly being incorporated into business decisions." (Report, p. 3).
The Report is quite welcome for at least two reasons.  The first is that, especially for both qualitative but especially quantitative projects, the development of a baseline study is essential for measuring.  That measuring can be qualitative--in the style of traditional human rights and sustainability analysis,.  It can also serve as  useful purpose for measuring quantitatively.  For data driven efforts this is essential--whether these efforts are directed at compliance measures, at developing models for purposes of predictive analytics, or for the purpose of developing ratings systems from which punishments and rewards systems may be created and imposed.  In the case of financial institutions and their clients, the punishments and rewards are likely pricing and market oriented--and it may well focus on using these measures to align the cost of capital with the quantum of harm measured.  The second is that it points to the regulatory trajectories of business and human rights.  These suggest the ways that an effective regulatory system for economic activity within global production is impossible relying solely on one governance actor, or targeting one factor (or one institutional element)  of global production.  Rather global production regulation is necessarily a composite of private law, of the embedding of delegated public governance objectives in the relations among institutions that function along the production chain but in different roles, and that such governance is ineffective in the absence of strong data based foundations. 

At the same time it provides a template for the development of conditions based lending that better aligns the practices of the private sector financial institutions with that of public sector international financial institutions--particularly the world Bank and IMF.  In this way, the GCBHR project nicely aligns with the general trajectory of convergence between public and private governance organs in their cultures and practices.  It also aligns with local cultural characteristics, the continuing movement toward social credit and data driven governance rounded in modeling against an ideal type and based on the regulatory effect of rewarding or punishing acts that are counted towards achieving or deviating from that ideal.  In this sense, then, the project also contributes to the greater alignment between Chinese social credit regimes and its liberal democratic markets driven privatized administrative compliance but analogues. 

Brief additional comments along with the Executive Summary, Key Findings,  and Recommendations of the Report follow.

Wednesday, January 27, 2021

Chris Jochnick on Eight Breakthroughs for Land Rights in 2020


Très Riches Heures du Duc de Berry (June) c. 1412


Land rights are a tricky business.  These categories of rights are tied to ideology as well as to the cultural practices and traditions of peoples.  Ownership itself is to some extent a product of the accretion of historical practice bent to the realities of contemporary society.  Ownership is a cornerstone of the construction of the way in which some societies understand and allocate  rights to exploit and exclude.  For other societies very different sensibilities about ownership may be important. Ownership itself is an even trickier business. The "right" to own may not be perfectly aligned with the right to exploit, or with rights to the ownership of what may be produced by or harvested from the land. " Land has often been at the root of revolutions, but the coming land revolution is not about overthrowing old orders. It is based on the basic fact that much of the world has never gotten around to legally documenting land rights. According to the World Bank, only 10 percent of land in rural Africa and 30 percent of land globally is documented. This gap is the cause of widespread chaos and dysfunction around the world." (Chris Jochnick, 10 Signs of an Impending Global Land Rights Revolution (2017)).

None of this has slowed the development of an international consensus on the shape and character of land rights that further both the projects of human rights and sustainability.  Much of it is based on rights to access and to exploitation of land, not necessarily on its ownership.   The fundamental approach, then, is on  legal rights over the land people use to survive. Chris Jochnick, the CEO of Landesa has written a very useful summary of the trajectories of those movements in 2020.  It follows below.


Tuesday, January 26, 2021

ASCE Interview Series: Methodological and Technical Challenges for Normative Change in Cuba's Economic Reforms, A Conversation with José Gabilondo


The Association for the Study of the Cuba Economy (ASCE) with the support of the Coalition for Peace and Ethics (CPE), has undertaken 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 José Gabilondo.  Born in Santiago de Cuba, José Gabilondo joined the Florida International University College of Law after working in financial market regulation at the U.S. Department of the Treasury, the U.S. Securities and Exchange Commission, and the Office of the Comptroller of the Currency. He teaches corporate finance, banking regulation, and tax. His scholarship focuses on financial markets and Cuba studies. His work has appeared in the Harvard Latinx Law Review, the Journal of Corporation Law, Wake Forest Law Review, Catalejos, and UNIjuris (Cuba), among others. He is the author of Bank Funding, Liquidity, and Capital Adequacy: A Law and Finance Approach and co-author of Corporate Finance: Debt, Equity, and Derivative Markets and their Intermediaries, in the American Casebook Series. He has been a featured speaker at meetings of the Association for the Study of the Cuban Economy, Organización Nacional de Bufetes Colectivos (Cuba), the American Society for International Law, the American Association of Law Schools, the American Association of University Professors, LatCrit, and the Latin American Studies Association. He is a nationally recognized commentator in the Spanish-language media on financial and economic matters.

Our topic for this conversation centered on core issues of Cuba's economic reforms which were announced toward the end of 2020.  Key elements of that conversation centered on the end of the dual currency system, and perhaps as important, on the methodologies for monitoring and assessing the state of the Cuban economy and implementation of its reforms. Our conversation revolved around a number of thematic questions: (1) how did you become interested in studying the Cuban economy? (2) are there methodological challenges involved? (3) as a legal academic, how do you deal with the politics of U.S.-Cuban relations, which can be quite polarized? (4) what is the academic/theoretical value of studying the Cuban economy? and (5) what are you working on now?
Pix Credit HERE
The conversation was wide ranging.  We started with a more detailed discussion of the nature of the economic reforms in Cuba.  That is, as is common in these somewhat extraordinary circumstances, a complicated thing. It is a concoction cooked in a large pot of of Cuba's history, which shapes the forms and provides the space within which reform is conceivable. Ideology provides the sauce, that which makes what is being cooked palatable to the cooks. And then there are the objects placed in the pot for cooking.  But what happens when this is undertaken blindfold, where the blindfold consists of the methods and approaches that are used for the cooking, the tasting, and the serving up of what is ultimately boiled enough for eating? That imagery provides  the backdrop to the hard business of reform  Several aspects were discussed.  The first was on the difficulty of reform in a pragmatic sense where data may be hard to acquire, judge or apply. That conversation lead seamlessly to the pragmatics of reform, and the interconnection between monetary reform, and economic reform.  We focused on the issue of subsidy and its distoring effect on economic planning and control. Professor Gabilondo is cautiously optimistic about the reforms precisely because of its nature.  Here, he emphasized, it is not necessarily the ideologues but rather the technicians, who may be guiding its trajectories.

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.

Sunday, January 24, 2021

Syllabus and Course Concept Statement for Teaching a Course on "Actors, Institutions, and Legal Frameworks in International Affairs"



I have been teaching the class on  "Actors, Institutions, and Legal Frameworks in International Affairs" off and on for a number of years since I helped develop the course  as part of the committee that was tasked with a role in the establishment of the School of International Affairs of Penn State University. The course was meant as a hybrid of sorts. Its objective was to move beyond (and perhaps through) the traditional courses in international organizations, or law or the traditional courses in international affairs.  Each, of course, is deeply embedded in its own core ideology.  The law courses are constructed from out a world view that centers law as the authoritative expression of social order and principles. The international affairs courses share with law a deep commitment to the ideologies of the state, at least in the form in which they have emerged for what are now the liberal democratic orders of developed states. That is an ordering of the world that (like every other) believes in a a place for everything/everyone and everything/everyone in its place in which there are vertical orderings of authoritative connection to political and economic power (public and private orderings, and to its expression (law, contract, custom, etc.). 

Indeed, it is possible to suggest that these traditional courses, as conventionally structured, serve more as an apologia for a constructed world view and as the instrument for its rationalization in ways that then naturalize the subject and treat it as inevitable and incontestable. In a sense, that framing premise well serves the core objective of education, where education is understood primarily as a means of socializing the young, the untrained, and the community. Education embeds societally important values and perspectives to ensure that the existing political, economic, religious, etc. structures  are carried forward.  There is nothing wrong with that.  Education in that sense, as indoctrination, as a societal and political catechism, has a long pedigree. Education as indoctrination been used by communities of believers for a very long time, whether those communities are political, economic, societal or religious.  They have ended to raise objection mostly when elements of a community (either within or outside of it) object to  a catechism or portions of it.  Ironically even rebellious education int he West is a form of (counter) indoctrination where its critical approach serves other but equally potent ideological masters. 

Education can also serve as a means of lifting the gaze from out of the premises within which it is located.  Education might, for some, serve a useful purpose, not as indoctrination, but rather as the space of greater enlightenment--an enlightenment that can then be taken back within the ideologically constrained worlds in which we must make our lives. One lifts the gaze in two senses.  First it is possible to do so within an ideological community to try to better see the way that its orthodoxies are being challenged and with that challenge the way that ideology either drives or is driven by change or events.  Second, it is possible to do so between self-referencing ideological systems, of distinct and self contained ways of seeing and ordering the world. Taken together it may be possible to reverse the study of the way the world is ordered by starting with the characteristics of that ordering and then attaching to it the systems of filtering those characteristics in ways that make it possible to squeeze "useful" meaning from them.  The object would be to attach an ideology to characteristics last, and to engage in the study of the characteristics first.

This is not to suggest the criticism-self criticism exercises of systems by their own followers, which is what tends to pass for analysis in may quarters.  Instead, it is to suggest thee exercise of moving beyond ideological perspectives in the study of human behaviors organized through the language of law or the structures of political, economic, or societal communities. It is an effort to engage, in as clear eyed an examination as possible, in identifying the characteristics, misalignment, and challenges of these communities as they seek to engage others while also meeting internal challenges to their own orthodoxies.   This is not an easy task.  One is always deeply embedded in one's own way of seeing and understanding the world.  Even efforts to see the world as other "naturally" see it may  be affected by one's own "home" view. Yet it is an effort worth making, if only to better understand the realities of the complexities of the world in which one operates, in order to better understand other when they seek to speak across ideological communities. One can do this and remain loyal to one's own world view "home base."  

In any case, I thought it was worth the effort to be guided by these ideas in the preparation of a class ostensibly focused on three of the key critical elements of international affairs--its actors, their institutions, and legal frameworks (the language of such affairs).  The object of instruction would be on meaning making, that is on the ways in which communities create and impose coherent systems of meaning on their surroundings and on their sense of themselves as themselves and in the world. Success or failure? Only time (and my students) will tell, It was worth the effort, and I invite those interested to have a look and share their thoughts.

What follows is the application of these ideas in the the form of the course on ""Actors, Institutions, and Legal Frameworks in International Affairs." The Course learning outcomes objectives and grading, plus the course concept statement and syllabus follow.  


Wednesday, January 20, 2021

"Weeping may Endure for a Night, but Joy Cometh in the Morning:" On President Biden's Inauguration Address Through its Biblical Lens


 Americans have a taste for drama.  With every change of political party the Manichean struggle between the forces of light and those of darkness appears ready for the final confrontation.  And yet it is a society in which the forces of light are also dark, and those of darkness shed light.  The Manichean quality of American discourse is most sharply drawn at those moments of political transition from one aggregation  of forces to the other. And yet, both oppositional forces--as much as they despise the other--tend to draw from the same well, and feed on the same founding vision--even if to opposite effect. And that well, that source--the Jewish and Christian Bibles (I refrain from the more judgemental appellations Old and New Testaments)--remains very much  source of guidance in times of trouble in the United States. Nowhere is this more apparent than in the inaugural speeches of Presidents, especially those who appear to incarnate a clear triumph of one vision (if only narrowly triumphant as is customary within the legal structures under which American politics is managed) over the other.  (Ruminations 69/Democracy Part 38: "Behold, how good and how pleasant it is for brethren to dwell together in unity!": On President Trump's Inaugural Speech)
In this spirit, and with the intent of seeking the moral vision of the person assuming office I considered each incoming President's choice of guiding or emphasized biblical passage for clues about the person and the possible tone of that administration. What the inevitable choice of the key Biblical passage might reveal is something of the moral view of the person who would occupy the presidency. "President Lincoln had a preference for the Evangelists. President Obama chose Paul, that great Jewish architect of Christianity." (Democracy Part XIV: “For Now We See Through A Glass, Darkly). 
That exercise proved useful. The examination of  of Biblical reference at the start of the Presidency of Donald Trump (Ruminations 69/Democracy Part 38: "Behold, how good and how pleasant it is for brethren to dwell together in unity!"), offered a very different starting point from that chosen eight years earlier at the start of a far different Presidency (Democracy Part XIV: “For Now We See Through A Glass, Darkly; But Then Face to Face”; On President Obama's Inauguration Speech). President Trump chose the Prophets and Psalms. and specifically Isaiah 42:6, Jeremiah 31:31-33, and Psalm 133. Both were quite revealing of the moral temper of these two quite different presidencies--one who sought to see in us, though darkly, the city on a hill, the other who gave us a prolonged Jeremiad.

This year that process of drawing at the Biblical well ("There cometh a woman of Samaria to draw water: Jesus saith unto her, Give me to drink." John 4:7), of pointing us to the incarnation of the the values of the next four years ("whosoever drinketh of the water that I shall give him shall never thirst; but the water that I shall give him shall be in him a well of water springing up into everlasting life." John 4:14), started early. But then this was an unusual election cycle. (Discussed in Ruminations 97: "The LORD is my strength and my shield. . . and with my song will I praise him"; Joe Biden's Thanksgiving 2020 Address ). For his Thanksgiving address, "Mr. Biden chose Psalms 28. This is a plea, a supplication; it is the earnest surrender to a higher power from one seeking a return from exile, and fearful of straying, but one that centers communication, between the divine and the human whose existence manifests a spiritually correct course."
For his inaugural address delivered days after the events of 6 January 2021 in the Capital, Mr. Biden again turned to Psalms.  This time Psalm 30. More specifically he referenced one key passage from Psalm 30:5: "weeping may endure for a night, but joy cometh in the morning." Here is the cry of the exile returned.  It is the perfect complement to the Thanksgiving Day speech as he is "brought home" after a passage through darkness. It is a song of triumph. . . . but whose? That, of course--the march from supplication to triumph after a dark night of the soul hints at a mystical fulfillment and union with the divine (and perfect) source once best expressed by San Juan de la Cruz in his poem Canciones en que canta el alma (Song sung by the soul) having passed a dark night of faith  and into a union with the beloved (San Juan de la Cruz,Vida y obras completas (Madrid Biblioteca de autores Christianos1972) poesias  o. 6, pp. 407-408) [online HERE].

 ¡Oh noche, que guiaste! [Oh guiding night]
¡Oh noche amable más que la alborada! [Oh night lovelier than the dawn]
¡Oh noche que juntaste [Oh night that hasjoined]
amado con amada, [lover and beloved]
amada en el amado transformada! [lover into beloved transformed]

"My whole soul was in it today. On this January day, my whole soul is in this, bringing America together, uniting our people, uniting our nation, and I ask every American to join me in this cause." (J. Biden, Inauguration Address, 1-2021). And, indeed, one sees woven into this inaugural address both the ululations of triumph after a dark night  of trail, and the strains of the great tasks of union to which past trials point.

I note that this is not meant to be the sort of conventional analysis about the use of Biblical quotations of references in speeches, one that tends to be rather indifferent to the specific meanings, focusing instead on the history of the invocations or its relation to an assessment of the religious fervor of the nation of the speaker. That is not my intent here, rather the intent of what follows is an engagement with those references themselves.  For those with more conventional tastes and a desire for instruction in the use of such references in speeches, see, e.g., Tevi Troy and Stuart Harpern, "God at the Inauguration," The Wall Street Journal (21 January 221).

The text of the inaugural address follows along with brief reflections. It stands in marked contrast to the farewell address of President Trump, distributed the day before (discussed at Mr. Trump's Farewell Address). 


Mr. Trump's Farewell Address


As the 45th President of the United States, twice impeached, leaves office to an uncertain future, he was kind enough to have delivered a farewell address.  The text of that address follows.  While it serves many purposes (some of them quite salutary from the perspective of those who rule) to continue the process of transforming Mr. Trump from his human form into the incarnation of the demon prince of American politics, there is still value in taking a moment to consider the last words Mr. Trump will deliver in his role as U.S. President.  It is likely that Mr. Trump may well disappear from the scene, or at least be tasked with an altogether different role in the tragedy that is American politics at the first third of this century. Either way, these are the words that may play a role among those who are in the business of using them to press their own objectives (and with that move the nation in one direction or another). 

The text of the address follows preceded by brief reflections--reflections about the text, not about the human being who delivered them (this later task will likely consume many others for a long time to time). The transcript may be accessed HERE and was posted by Newsweek.


Monday, January 18, 2021

Birgit Spiesshofer: "Twitter & Trump - the spirits I called forth?" -- English Translation of Article published first (in German) in the Frankfurter Allgemeine Magazine Einspruch! (online) 16 January 2021


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)"Responsible Ownership" or "Benefit Corporation"; (2)  "And Who Asks the Supply Chian"; (3) "Fridays for Future, Siemens or the Australian Government - who decides?"; (4)  "Green monetary policy - "whatever it takes"?"; (5) "What is "sustainable"?" ; (6) "The Hour of the Nation-State" (see also here).

Dr. Spiesshofer has now agreed to the translation of a recent essay--Twitter & Trump - the spirits I called forth? , published originally in German in the Frankfurter Allgemeine Magazine Einspruch! (online).  The essay considers an important issue, one quite politically sensitive at this moment in the United States. Essentially the question can be reduced to an essence, one which is only a small slice of the many essences contained in this drama that are the forms of American politics at the start of the third decade of this century: what does a liberal democracy do about the speech of its elected officials when an important faction of the electorate finds  it unacceptable and an even smaller portion of that electorate, through the institutions they control, can manage or in the case of the 45th President of the United States, amplify or shut down the vehicles through which such speech is now conveyed in (otherwise) ordinary course.  Americans are incapable of this discussion now; emotions are too raw, too many political agendas are still in play; and too much realignment of political partnerships and battle lines are still being drawn. From outside the U.S., certainly, it highlights not merely the special character of law and politics in crisis, but also the way in which networks of law and norms enmesh key actors--in this case economic enterprises and political officials, in quite distinct webs of law, of norms, and of expectations well beyond the local and the contextual (e.g., here).  In this case human rights expectations appear to cut in all sorts of directions simultaneously for key participants.

I have no view on these matters; it is, as mentioned above, still far too early to have anything of value to add about the march of historical forces that are even now constructing the contours, founding premises, expectations,  the assessments of history, and the rectification of now fatally deviant and reactionary elements of society that are even now being deployed by the nation's vanguard elements to propel the state forward into what is likely the new era of American political development. But perhaps Europeans have something that might be worth considering, at one's leisure, once passions have died down, and the new master narrative is more decisively articulated for the United States.   Whatever it is that is decided by those who control American political culture it is not enough to dismiss the vents of the last several years as exceptional, as sui generis and something that will never recur.   But what is seen can not be unseen; what is done cannot be undone; what is The United States, since its founding, has been the incarnation of the constant state of exception.  The exception is the ordinary in this place.

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

Saturday, January 16, 2021

Law is What It Says It Is. . . Thoughts on Weaving the Strands of Emerging Systems of Enforceable Expectations in the Contemporary Global Order(ings)


Pix source HERE


Lawyers--and especially legal academics--have been very jealous guardians of the ancient cult of "Law," which has been all nicely dressed up in a quite particular way over the last several centuries. 


That particularity is also peculiar--for it is meant in the first instance to ensure a community of meaning around the term in a way that aligns law with the state.  That is, these priests of the worship of the divine qualities of (old) law never tire of repeating its credo: law must be understood as a manifestation of the state; law and the state are aligned, each sharing the other's authority, legitimacy, and power.  Law is the state and the state is the institutionalized aggregation of its law, that is of its own production of ist own system of coercive expectation made legitimate and authoritative precisely because it is the product of the genius of the people embedded within the institutions of the state and operated in accordance with the rules they produce for themselves. 

Perpetual Stew
Yet the business of law, and the construction of its divinity (understood here in the sense that it is manifested as a thing that is acknowledged as superior, powerful, authoritative, and that can have consequences if crossed, and as a process that manifests order) has moved far beyond the temples of the acolytes of the High Churches of (Old) Law.  It is not so much that communities have lost faith in (old) law, Rather, and acknowledged or not by the high priests of the old legal orders comfortably ensconced in their high level academic or administrative perches, it is that this (old) law has now descended back into the space from where it emerged  several centuries ago. It has rejoined the pantheon of methods, habits, customs, and practices, as (one) part of a large stew pot of expectations that have consequences precisely because a community has invested it with meaning and thus invested  creates methods of rewards and punishments for those who meet or fail these expectations
The extent of these consequences (the "application" of "law") are highly relational and contextual.  They are relational in the sense that expectations can have consequences only to the extent they might apply to the relations among actors and, more importantly, only to the extent they are understood as affecting or relating to each other producing clusters of expectations that must be balanced by the parties subject to them. . The are contextual in the sense that the relationships of the ingredients in our legal stew pot will manifest itself differently depending on who is "eating" law, where and when.   

All of this is very abstract, and thus of little interest to people fully engaged in the world. However, the ideas are worth considering precisely because it is those who are n the world, who do not think about these things, who do not act consciously to transform societal instruments of management to one ends or another--these are the people who are actually driving the changes. They drive by doing rather than by speaking or theorizing.  They are the people--practicing lawyers, clients, NGOs--who by their actions, and by their incessant need to confront the expectations imposed on them without regard to their theoretical character, and to align them to best advantage in the context of decisions or choices that have to be made, who are driving the keepers of the purity of the old way of protecting and practicing law out of the temples of managing communities.  

Practitioners are not spending a tremendous amount of time hand wring about the nature of law. They worry about weaving those expectations with "bite" into something that is coherent enough to advance the interests of their clients. This weaving of "law" provides the front lines of truth from facts and is worth unpacking at least a little.

Friday, January 15, 2021

Just in Time for the Biden Administration to Digest: CECC Commissioners Release 2020 Annual Report


I have been following the work of the Congressional-executive Commission on China (CECC) for some time.  It represents an important source of emerging priorities for policy making, and certainly an important space where constraints on such policy making is developed, for the President in the exercise of his (and eventually her) executive authority over foreign policy.

The trajectories of the CECC, and the framework for the political constraints it will present the incoming Biden Administration appear at the very start of the Report

Over the last year, the Congressional-Executive Commission on China (Commission) found that the Chinese government and Communist Party have taken unprecedented steps to extend their repressive policies through censorship, intimidation, and the detention of people in China for exercising their fundamental human rights. Nowhere is this more evident than in the Xinjiang Uyghur Autonomous Region (XUAR) where new evidence emerged that crimes against humanity—and possibly genocide—are occur-ring, and in Hong Kong, where the “one country, two systems” framework has been effectively dismantled. (2020 Report Executive Summary, p. 3).

But it does more than that here.  It suggests that the practice of the US Congress to engage more directly and more often in shaping and constraining US policy space with China through lawmaking.  The The Uyghur Forced Labor Prevention Act (H.R. 6210 / S. 3471); the Uyghur Human Rights Policy Act (P.L. 116-145); the  Tibetan Policy and Support Act; and the Hong Kong Human Rights and Democracy Act  (P.L. 116-76), all point to the new forms of the partnership between legislature and executive branches ow at least formally controlled by a single political party.  Note as well the emerging forms of policy moving forward contained in the "General Recommendations to Congress and the Administration." These suggest a more coordinated and networked approach of response that indicates the return of the United States to global institutions (e.g., World Bank accountability drivers; working through international organizations, and the development of "creative human rights programs" (p. 28).

Of course it does not factor in the important role of the vanguard elements of social power, a source of policy affecting elements that have been recognized in a more transparent way by the Chinese core leadership (e.g., Xi asks Starbucks' Schultz to help repair US-China ties (15 Jan 2021).

The full test of the Press Release announcing the publication of the CECC 2020 Report follows with links to the Report.


Tuesday, January 12, 2021

Virtual Conference: Multiple Legalities: Conflict and Entanglement in the Global Legal Order. (13-15 January 2021); Along With My Contribution; The Principle of Perfection, the Entanglements of Social Credit and Conventional Plural Legalities

I am delighted to be a part of the upcoming Virtual Conference, Multiple Legalities: Conflict and Entanglement in the Global Legal Order. It takes place 13-15 January organized by the Graduate Institute Geneva, and Humboldt University Berlin,  as part of the research group OSAIC (Overlapping Spheres of Authority and Interface Conflicts in the Global Order) with special thanks to the organizational genius of Hannah Birkenkötter and Nico Krisch.  The conference is supported by the European Society of international law and funded  by the Deutsche Forschungsgemeinschaft and the Swiss National Science Foundation.

The conference brings together a remarkable group of scholars who together will consider the many ways in which thr proliferation of multiple legal orders--conventional, public, private, legal, regulatory, data driven--are effectively reshaping the regulatory net in which we are all caught. The group will consider issues of navigating these multiple legalities, of their ecology as systems of collision or as tapestry, of post colonial encounters, and of its weaving the law. The group will examine cyberlegalities, competing and intersecting legalities, and networks as the space within which multiple legalities exist, as well as its implication for the foundations of conventional law. The group will lastly consider the invisible drivers behind formal law, issues of verticality and hierarchy in the organization of multiple legalities, and its imagery as entanglement and hybridity. More on the Conference at the Verfassungsblog where the organizers have posted an excellent short introductory post, and the conference program also on on Verfassungsblog may be accessed here. It will be live-streamed on Verfassungsblog on January 13-15, 2021.

My contribution, Entangling the Legalities of Utopia may be accessed here.  I have also prepared a short think piece that seeks to distill the arguments of the paper  into a roughly 3,000 word summary "think piece" that follows below. My object was to provide a short accessible explanation of emerging social credit systems and their relations (entanglements, collisions, and effects) on conventional forms of legalities (domestic legal orders, international law and norms, societal governance and all of the other emerging forms of modern legalities).

Monday, January 11, 2021

From Human Rights to Development: China State Council White Paper; "China’s International Development Cooperation in the New Era" (January 2021)



I have been writing about the fundamental shift in the focus of human rights and human rights discourse, from one framed in the discursive tropes of liberal democratic ideology to one framed in an emerging Marxist-Leninist discourse (Backer, Larry Catá, ‘By Dred Things I am Compelled’: China and the Challenge to International Human Rights Law and Policy (January 15, 2020). Penn State Law Research Paper No. 06-2020). The shift is occurring even as those who think themselves the high priests of the cult of traditional internationalist human rights ideology continue to thin themselves completely in control of both ideology and discourse. This reframing of human rights has been underway for a few years as the United States has  withdrawn form active engagement in global human rights discourse, and as liberal democratic states themselves confront unresolved issues of managing civil and political rights  within a political context in which internally bitterly divided factions themselves push for different variations about the meaning and application of these principles.

What is this shift and why is it important? Traditional human rights and human rights discourse takes as its starting point the key premises of the ideology on which liberal democratic social-political-economic orders are organized and through which they understand both themselves.  That human rights discourse is centered on the individual.  It speaks to the relationship between the individual and centers of power that affect the individual as an autonomous being and within collective organization.  Individuals have rights--states and other organs of power have duties and responsibilities.  Most of these are negative (limitations of authority) though increasingly some of these are positive (protect life, including life on the planet).   The principal positive responsibility of organs of power is to preserve to the individual effective spaces for the exercise of civil and political action, including the right to agitate for the transformation or abandonment of specific systems of governance or the authority of people to exercise authority (though even here political systems sometimes reach their limits as the tragic agitation of 6 January 2021 in the United States is now suggesting). Those rights also include protection of opportunity for and the preservation of dignity sufficient to permit individuals to enjoy a certain basic level of economic, social, and cultural rights. The extent of these protections is understood as a function of the popular exercise of civil and political rights.

Marxist-Leninist States, first in a crude way in the 1960s-70s, and now in a much more sophisticated way are driving a quite distinct vision of human rights.  These take as their starting point the key ideological baselines of emerging (Chinese) Marxist-Leninism and the way n which they understand themselves and the world around them.  That discourse is centered on the collective.  Better put, it is centered on a pyramidal systems of rims of collectives all tied by the spokes of obligation to a leadership core.  Individuals have expectations; collective authority has rights, duties,  and responsibilities. The betterment of the welfare of the individual collectively is the primary duty of the state.  The state itself is guided in that duty by the vanguard elements of society, organized as a collective to which all political authority is vested.  The primary right of the individual is to receive the benefits of collective betterment through the development of productive forces in the economic, social and cultural spheres.  The primary human right of society s development; the primary duty of the political leadership is the augmentation of economic, social, and cultural rights.  It is the duty of the individual to ensure that they contribute to this collective effort. And thus the core framework within which human rights can be understood and elaborated are through the principle that the state's primary duty is to ensure the prosperity and stability of the collective (discussed, e.g., in the context of the situation in Hong Kong HERE). Civil and political rights are understood as necessarily constrained by and proceeding from the overall imperative to ensure prosperity and stability. 

This new language of human rights requires, in turn, a new vocabulary.  It requires a vocabulary that shifts the emphasis of discourse (and thus the way that terms are understood and applied as policy and rules and norms) from the language and vocabularies of human rights (of the individual) to that of  development (of society and collective institutions). The language of development fits in quite nicely within a meaning universe grounded in core Marxist-Leninist principles. It is especially appealing to (and here a fortuitous mirroring of language) developing states, for which the elaborate notions of detachable individual rights within robust and fractious political engagement may conflict with the necessity of or desire to increase (or develop) collective  welfare. It has the disadvantage of insulating leadership cores from the instability of popular dissatisfaction but carries with it the conclusion that the value of prosperity (assuming it can be delivered) and stability (assuming it can be maintained) exceed that of accountability and protection against the corruption and self serving temptations to a leadership core (assuming such temptations are indulged).

China, as a vanguard Marxist-Leninist state, has accelerated efforts  from 2012 (and the 18th Communist Party Congress) and especially since 2018, to develop a Marxist-Leninist approach to human rights and to develop a Leninist vocabulary around which to frame its approach through a discourse grounded in the core concepts of prosperity and stability rather than of rights. This is an important project.  Given the way that narratives are constructed and people (including influential collective leadership groups) embrace a way of seeing the word and investing it with meaning they can then naturalize within their subject populations, China must both develop a new vocabulary and new framing for those core matters traditionally monopolized by the discursive tropes of liberal democratic ideologies (the authority of which had been virtually undisputed since the fall of the Soviet Union and its dependencies in the late 1980s). They understand that it is impossible to acquire influence over meaning making unless one can exercise some control over the ideological perspectives from out of which objects, thoughts, and actions can be invested with meaning. 

To that end, the State Council of the Peoples Republic of China released in January 2021 a White Paper:  China’s International Development Cooperation in the New Era. Prosperity and stability features tellingly  in this White Paper (e.g., "Agriculture is the foundation of economic growth and social stability" ibid., Chp IV.2; "Confronted by acute global challenges, no country can achieve lasting stability and development without solidarity, cooperation, and a partnership featuring peaceful and mutually beneficial cooperation, equality, openness, inclusiveness and shared growth" (ibid., conclusion). The term "economic and social development" appears as well. and "economic and social order" also appears (e.g., " We will increase the supply of global public goods, channel more resources to developing countries to support their sustainable economic and social development, and do more to help them remove development blockages").  Rights are mentioned in connection with women's rights and interests (ibid., p. 26). The document is rich with a vocabulary of building a world of collective development, one in which individual welfare is the measure against which the state's task of building prosperity and stability is assessed. A key framework for the elaboration of this Marxist-Leninist development internationalism is its alignment with the core principles and operating patterns of China's Belt and Road Initiative. One speaks here of programs built on policy coordination, and trade integration as well as integrated connectivity through infrastructure projects that build the spokes of a  system of mutual inter-connection, improving trade capacity, deepening financial integration, and fostering closer ties among the populations of participating states. Here is the crux o the human rights project: "China has launched a series of people-oriented projects in Belt and Road countries to address such issues as housing, water supply, health care, education, rural roads, and assistance to vulnerable groups, helping to fill gaps in infrastructure and basic public services" (Ibid., p. 21).

The reface and Chapters I (International Development Cooperation in the New Era and a Global Community of Shared Future), and III (Boosting International Cooperation on the Belt and Road) follow below.  All chapters are worth reading.  Together they suggest the emerging vocabulary and discursive tropes of a human rights regime deeply embedded within development models and grounded in the animating principle of prosperity and stability rather than the protection of individual autonomy and rights as the basis for the protection of the rights of people and groups.  Leninist vocabularies, along with Leninist sensibilities have now returned to the discourse of human rights. But it is important, as well, to begin to understand the gaps between this new approach and the traditional orthodox approach--it is even more important to begin to develop bridges between them to ensure what Chinese authorities call the "win-win" approach to international relations.


Thursday, January 07, 2021

Sneak Peek"Hong Kong Between 'One Country' and 'Two Systems': Essays from the Year that Transformed the Hong Kong Special Administrative Region (June 2019 – June 2020)" Chapter 9: "Thoughts on Violent Popular (Mob?) Action Against the Solid Virtues of Prosperity and Stability; Considering Albert Chen Hung-yee 陳弘毅 Essay on the Situation in Hong Kong Part 2: 一國兩制的博弈 ["The Game of One Country Two Systems"]



I have been sharing sneak peeks of a book to be published in early 2021"Hong Kong Between 'One Country' and 'Two Systems':  Essays from the Year that Transformed the Hong Kong Special Administrative Region (June 2019 – June 2020) " (Little Sir Press).   In an effort to avoid the prohibitive cost of hard copies, the book will be made available first as an EPub (iBook, Kindle, Amazon) (ISBN: 978-1-949943-03-0 (ebk). My thanks to the Coalition for Peace & Ethics for making this possible. I have previously shared an early draft of the preface (here).  Here I wanted to share a draft of Chapter 9 ("Thoughts on Violent Popular (Mob?) Action Against the Solid Virtues of Prosperity and Stability; Considering Albert Chen Hung-yee 陳弘毅 Essay on the Situation in Hong Kong Part 2: 一國兩制的博弈 ["The Game of One Country Two Systems"Saturday 15 June 2019 The Clash of Empires? ).

As we get closer to publication summaries of each of the 29 essays will be posted along with the table of contents.


Wednesday, January 06, 2021

Video Recording of Panel 6 (Contemporary Crises in Cuba and Venezuela) and Conference Closing Remarks Now Available--ASCE 2021 Conference (4-6 January 2021)--"Caught in a Perfect 'Storm': Are Havana's Responses Sufficient?


I am delighted to be able to share with you the video recording of the Sixth Panel (Contemporary Crises in Cuba and Venezuela) (along with the marvelous discussion that followed).


Wednesday, January 6, 2021

2:00 pm-4:00 pm

6.     Contemporary Crises in Cuba and Venezuela


Chair: Beatriz Casals, Board of Directors, Bacardi Family Foundation and Board of Advisors, Georgetown University, School of Government, Democracy and Governance Program 

Silvia Pedraza, University of Michigan, "Contemporary Crisis in Cuba"
Carlos A. Romero, Universidad Central de Venezuela, "Contemporary Crisis in Venezuela" 
José Manuel Puente, Instituto de Estudios Superiores de Administración (IESA), Caracas, and Oxford University, London, "Venezuela in the Stage of Macroeconomic Collapse: A Historical and Comparative Analysis." 
Domingo Amuchastegui, Former Intelligence Analyst, Historian, and Professor of International Relations, "Venezuela's Elections, the Fragmented Opposition, and the United States" 

Discussant:  Efraín Velázquez, Presidente, Consejo de Economía Nacional de Venezuela

Conference PPTs and other materials may be accessed HERE.
Closing Remarks: Gary Maybarduk, ASCE President

All video recordings of the Conference ASCE 2021 may be found on the YouTube Channel of the Coalition for Peace & Ethics HERE: 

There is still time to register (free) and participate in the remaining panels which will be held  through 6 January.

 Reminder-- registration is now open for the 2021 ASCE Conference--Caught in a Perfect Storm: Are Havana's Responses Sufficient?, which is scheduled to take place 4-6 January 2021.

Conference Website may be accessed here: With information about participants, registration, and useful inks.

Pre-Conference Interview Series These may be accessed via CPE YouTube Channel. Follow the link above for the listing of all interviews and links to your favorites.
Concept Note: The theme of ASCE’s January conference will focus on Cuba’s current economic problems and the Cuban governments announced responses (reforms). The focus will be on analysis of policies and suggested policies that improve those reforms. Indeed, the issue of Reform, yet again, as it has so many times over the long arc of the history of post “revolutionary” Cuba, has been one of developing elegant statements of idealized objectives and then offering what in retrospect might be characterized second or third best solutions; and that might be the only thing on offer now. Yet even these second best solutions can be used to bring significant improvements to the Cuban economy.
The Conference Program may be accessed HERE. The Conference extends over three days and offers six exciting events. They include five panels: They include (1) Cuba's Economic Situation and Strategy; (2) Cuba's External Relations; (3) US-Cuba Economic Relations; (4) Cuban Agricultural Challenges; an (5) the Cuba-Venezuela Crisis. In addition Jorge Dominguez has organized a marvelous discussion around the book La Cuba que quisimos: Essays on the New Cuban Constitution.