Sunday, July 31, 2022

Jan Hendrik Ritter on "Inspiration, Revaluation, Revolution: Symbiotic pluri-disciplinary ecologies between economics, sociology and socio-legal research"


Jan Henrik Ritter delivered a marvelous presentation at the recently concluded annual meeting of the Law & Society Association held this year in Lisbon, Portugal.  The Panel session, Re-Imaining Legal Technique: The Place of Social Theory in Current Socio-Legal Research, explored "the place of social theory in relation to a range of settings, from climate change, gender identity, law’s ecological orientation, corporate personhood and relations between humans and machines. Questions of how law constructs subjects and objects are prominent, as well as the relationship between conceptual and empirical exploration in law."

Ritter's presentation was entitled "Symbiotic pluri-disciplinary ecologies between economics and sociology and socio-legal research"  and explored the questions: Do social theories matter for law? If the answer to that question is yes, which social theories? And how can social theories be operationalized in law? The abstract elaborated:

The first question is convincingly answered in the form of a legal concept of justice as ‘ecological orientation of law’ developed by G. Teubner. He argues that in order to fulfil the promise of justice law needs to be oriented towards adequacy with its environment. This conceptualization of justice only seemingly turns law towards its environment. As the fluidity of modern society precludes a stable and adequate relationship between law and its environment Teubner’s concept of justice really refocuses law on itself and releases what Teubner calls ‘juridical creativity’ through self-transcendence.
This contribution draws on the observation that Teubner’s concept of justice would be unthinkable outside the framework of systems theory. It argues that if the fundamental legal concept of justice and social theories are closely intertwined, the questions on the just social theories for law as well as their operationalization in law are themselves reconfigured as a matter of interdisciplinarity.
The contribution examines contemporary approaches to interdisciplinarity that draw on a comparative methodology. The latter aims at using multi-disciplinary perspectives in a complementary way by integrating social theories under a common framework. It then problematizes these approaches by analyzing how these strategies risk establishing a hegemonic relation among compared social theories. Against this backdrop the contribution contrasts comparative methodologies to an approach that conceives of the relation between social theories as parasitic. This approach centers on the notion of noise inherent to any social theory and is inspired by the imaginary of ‘parasite’ (M. Serres) as subversive and disruptive force.

Ritter has been kind enough to share both his panel PowerPoint, and brief thoughts on the issues. These follow below.  Both are rich sources of a critical conversation about the state of knowledge and its rationalization. It is a reminder of the ongoing transformation of the disciplines, once founded on what had been understood as solid verities. As these verities have weakened new verities, and a new ecology of knowledge must emerge.  Or it need not and the structures of knowledge will ossify in endless self reference in which the new is consumed and transformed into the old, and the old  becomes more and more detached from the present, and disconnected from the future. It is in this formative stage of change--and choice--the choice to stand still in the present, wander back into the embrace of the past, or embrace what is emerging, will be made. See also Ritter's excellent lecture, Normativity Reconsidered - From Laws of Form to the Form of Law — Jan Hendrik Ritter (28 October 2019). .

Saturday, July 30, 2022

玩火必自焚 (When you play with fire you will get burned)--The Ritual Performance of US-China Core of Leadership Chats


President Joe Biden and his Chinese counterpart Xi Jinping held a lengthy and candid discussion about Taiwan on Thursday as tensions mount between Washington and Beijing, despite Biden's onetime hope of stabilizing the world's most important country-to-country relationship. The two leaders did agree to begin arrangements for a face-to-face summit, their first as Xi resists travel amid the Covid-19 pandemic. And certain areas of cooperation, including climate change, were hashed out. But the Taiwan issue proved among the most contentious. The issue has emerged as a serious point of conflict, as US officials fear a more imminent Chinese move on the self-governing island and as a potential visit by House Speaker Nancy Pelosi prompts warnings from Beijing and a concerted effort by the Biden administration to prevent tensions from spiraling out of control. The matter was discussed at length in the two-hour-and-17-minute phone call Thursday. Xi offered an ominous warning to Biden, according to China's version of events. (Biden speaks with China's Xi as tension grows over Taiwan)

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This is the way that CNN, a US press organ, reported the quite public encounter between the core of leadership of China and of the US (each incarnating their respective national systems in very different ways).  "This was the fifth time the two presidents have spoken since President Biden came into office. . . The National Security Advisor proposed that the two leaders speak in the near future when he met with Director Yang Jiechi in Luxembourg in mid-June. The PRC side followed up on that when Foreign Minister Wong met with Secretary Blinken in Bali, with Foreign Minister Wong proposing a date for the call." (here). The ritual was necessary if only because human collectives needs the reassurance of the performance of leadership especially when they have been managed into a fear of instability or danger--usually by the apparatus that these core leaders guide. These performances, in a way, remind one of the closed loop cycle of pharma--one builds on the efforts top cure ill health which prior efforts to cure other forms of ill health helped cause; one pill to cure ailments produced by a pill designed to cure a different ailment.  The pills are always needed. 

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In this case, those pills produce two different but related effects.  That is necessary because while the core of leaderships in this ritual performance appear to be speaking to each other, they are in fact speaking to virtually everyone else on the planet other than the person to whom they appear to be addressing.  Both cores of leadership are speaking to their internal supporters and enemies; they are projecting speaking onto the apparatus used to mold and manage collective opinions; they feed the propaganda organs of their respective systems; and they seek to reassure friendly states and other other (while threatening enemies). In this case the central issue is the shape of the Taiwanese front in the current Russo-Ukrainian war. The current triggering event is the threatened visit of Mrs. Pelosi--a high ranking legislative official.  At the same time, it is necessary to continue to refine and contain the theatres of conflict which may be connected to the Russo-Ukraine war but which may also detract from other areas where mutual competition, cooperation, or other objectives must be pursued. 

One gets a better sense of these multi-communication pathways, and perhaps even a sense of what is being actually discussed, by a careful reading of the summaries of the discussion produced by leading organs of each side: (1)  习近平同美国总统拜登通电话 [Xi Jinping Speaks on the Phone with U.S. President Biden] (original Chinese and crude English translation); and (2)  White House Briefing Room: Background Press Call on President Biden’s Call with President Xi Jinping of the People’s Republic of China.

Pix Credit here; more here
These follow below.  On the Chinese side there was a focus on the effects of the process of de-coupling, and of the economic Great Wall built around China, a policy shift that became visible under the Trump Administration, along with its rhetoric and legislative implementation through incentives to reroute supply chains and to isolate inbound Chinese foreign investment.  Buried within that  are the still important project of Chinese internationalism and narrative control, as well as dual circulation strategies that suggest a Chinese version of engaged decoupling--a manage Great Wall. And there was Taiwan: 玩火必自焚 (When you play with fire you will get burned) (here; see also here for Chinese English language analysis). On the US side, the emphasis was on what they described as the three aims of the encounter: "First was a detailed discussion of areas where the two countries can work together, with particular focus on climate change and health security, as well as counternarcotics. . . Second, the two leaders exchanged views on Russia’s war in Ukraine and the global impacts it is having. Third, they had an in-depth discussion of Taiwan" (here). These suggest the way that the American Administration dances on a sword's edge--on the one hand to use these performances for maximum effect on the upcoming critical domestic elections. On the other to refine and apply the American strategic vision largely visible in its current forms since 2016--another well managed great wall. The key spaces that divide are at the periphery of empire--Russia, Ukraine, Taiwan, and on the rationalization of the rational partition of the world between their respective visions--the issue of the terms of a modern day Treaty of Torresillas.

The differences suggest the spaces within which the most potent interactions occur. . . . or ought to.  And yet there appears to be a commonality both share--each is playing with fire. The rest is management. 

Friday, July 29, 2022

Self-Centered Human Rights: UN General Assembly Adopts Resolution Declaring Access to a Clean, Healthy, and Sustainable Environment is a Universal Human Right


On a vote of 161 in favor and eight abstentions, the UN General Assembly adopted a historic resolution on Thursday, declaring access to a clean, healthy and sustainable environment, a universal human right (document A/76/L.75). The eight abstaining states included: China, Russian Federation, Belarus, Cambodia, Iran, Syria, Kyrgyzstan and Ethiopia. China, in particular sought to make a case for delay to more decisively incorporate its own path into the document (China "requested more time, patience and efforts to avoid undue haste, expressing concern that a reference to common but differentiated responsibilities was not included in the text." here).

The UN Press Release stated:

The text, originally presented by Costa Rica, the Maldives, Morocco, Slovenia and Switzerland last June, and now co-sponsored by over 100 countries, notes that the right to a healthy environment is related to existing international law and affirms that its promotion requires the full implementation of multilateral environmental agreements.

It also recognises that the impact of climate change, the unsustainable management and use of natural resources, the pollution of air, land and water, the unsound management of chemicals and waste, and the resulting loss in biodiversity interfere with the enjoyment of this right - and that environmental damage has negative implications, both direct and indirect, for the effective enjoyment of all human rights.

The Resolution adopted  is based on a similar text adopted last year by the Human Rights Council

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In a sense, the Resolution marks a marvelous step forward.  It firmly positions sustainability and environment within the great construction that is human rights.  This ends a very long and quite distinctive merger of what had for a long time been seen as two different worlds.  That, in turn, reflected an even older tradition of seeing the human, and human concerns, as autonomous of the environment in which humans lived. In a sense, humanity viewed the environment as a toilet that emptied into an ever self repairing septic system of no real concern to their central focus--the proper management of human self-interaction and the construction of the objectives of human individual and social life. This was, in turn, characterized on one side by an boundless individualism expressed in part by a freedom to interact with the world around the individual only as a function of its effects on the individual.  On the other side it was characterized by a mania for development that took only collective human objectives into account.  In both cases the environment was a residuary  element the value of which was only in its management and preservation for the enhancement of human self love (see here). This represents the very selfish side of the human rights enterprise understood in its liberal democratic (markets driven) and Marxist Leninist (development driven) ideologies. 

To some extent this self-centered human rights project constituted the heart of the Resolution. A clean, healthy, and sustainable environment is to be understood--and measured--as a function of its effects on humans, individuals and collectives.  The rights and responsibilities (of states and others) with respect to the clean, safe, and sustainable environment, is understood to extend only as far as human needs take it--and no further. Thus, the environment can remain, to some extent, dirty, unhealthy, and unsustainable for itself, or for the creatures (flora and fauna) other than humans) as long as the rights of humans within it are maintained. And yet that is the fundamental paradox of this marvelous effort--the more the focus is selfish, the more the valuation is centered on the human, the less likely it is that it will be possible to attain a clean, healthy, and sustainable environment. It follows that the human right to a clean, healthy, and sustainable environment is itself self defeating, precisely because it overvalues in an unsustainable way the unchecked desires of one element of the equation through which it is possible to maintain the desired state of cleanliness, health and sustainability. 

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That moves one to the next step forward--the inversion of the common formula for understanding and valuing environmental issues in the constellation of human rights frameworks. To that end a revaluation of values is required.  One starts by changing the vectors of measurement.  Human rights is to be understood--and measured--as a function of its effects on the attainment and management of a clean, healthy, and sustainable environment. That measurement is not to be understood by its effects on human, but rather by its collective effects on all living organisms. One might better understand this as a shift to the embrace of the fundamental obligation of human society to preserve and enhance a sustainable state of bio-diversity in all its senses. The rights of humans, and of human society, would then be measured by its contribution to the preservation of the bio-diversity within which it forms a part and from out of which it can thrive in the long term. Notice that the object is not to erase humans from the equation in measuring clean, healthy and sustainable environments, but rather to embed humans within the measure.

The effect is subtle but significant.  One shapes an object by the way one conceives of it. And one conceives of an object by the way it is measured.  And one measures an object by projecting a belief of its place among other objects and by the construction of an ideal state within which objects interact. Measuring human rights by its contribution to a clean, healthy and sustainable environment reshapes the human rights enterprise. One reshapes the character of the human rights project from a self-serving one in which the effects of human activity is viewed as a consequence that ought to be mitigated if necessary (to the extent it suits the human condition) to one in which the rights of humans are deeply embedded in and expressed as actions contributing to the right to a clean, healthy, and sustainable environment for all. That, in a sense returns human rights to its origins--and amplified the traditional and valuable reflect of human rights as it has sought to remake the shape of economic activity from a selfish self-centered one (limited to the production of wealth narrowly understood) to a contribution to the welfare of humans and human collectives.  It is now time for the medicine that human rights applied to economic activity top be applied to human rights activity itself. This is the great and difficult task of humanity for this century--for humanity to reshape the way it conceives of itself and its place in (and not on) the world.

The 'minutes' of the General Assembly Session follows. (see also here)  It is, in some ways, far more interesting and enlightening, than the text of the Resolution adopted. 

Thursday, July 28, 2022

Frank Ravitch and Larry Catá Backer Discuss Kennedy v. Bremerton School District, 597 U.S. ___ ( No. 21-418, 27 June 2022): Murder in the Cathedral--The Lemon Test is Dead, Establishment Reduced to Spectre; Long Live Free Exercise as a Jurisprudence of History


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 Frank S. Ravitch and I have just published the 4th Edition to our casebook, Law and Religion: Cases and Materials (West Academic, 2021; ISBN 978-1-64708-764-7). The Preface nicely describes our aims for the book:

This book focuses on Law and Religion. The book covers three general topics: 1) Church/State Law (issues arising under the First Amendment to the United States Constitution and statutes such as the Religious Freedom Restoration Act); 2) Religious Law (the role and substance of law in various religious traditions); and 3) Comparative Law and Religion (the law relating to religious freedom in other countries). Most books in this field have little or no material on the latter two topics. The bulk of this book is devoted to First Amendment Law, but the book also provides an overview of Jewish Law (Halakha), Islamic Law (Shari’ah), Buddhist conceptions of law, Catholic Canon Law, Protestant conceptions of law, and Hindu law as well as significant background on comparative Law and Religion. The discussion of First Amendment law integrates cases, questions and narrative to provide an in-depth understanding of the Religion Clauses of the United States Constitution.

Each topic in this book begins with a brief narrative discussion of the topic, followed by relevant cases and articles, and finally notes and questions. The goal of the narrative is to provide students with context (the forest) so that they can grapple with the many complex issues that are raised in the cases and articles (the trees). The sections on religious law and comparative law will follow a similar format.

We have tried to add a comparative law element to the study of the jurisprudence of religious liberties in the United States by tying that study to the broader global conversations and currents in the development of legal frameworks for the protection of religious liberty. We hope all of this can be accomplished in ways that are useful for law students not just in the US (though US students are our principal audience) but elsewhere as well. 

To enrich the casebook materials Frank and I have started producing a series of video discussions of key cases from the jurisprudence. We hope students and faculty may find the discussions of some use as they consider the casebook materials or as a springboard to deeper discussion of themes and complications raised in the cases.   These may be used by faculty and students to enrich their consideration of the casebook materials or as a springboard to deeper discussion of themes and complications raised in the cases.  

We discuss the pedagogy of the casebook here: Frank S. Ravitch and Larry Catá Backer Talk Pedagogy and Approach as they Introduce the 4th Edition to their Casebook, Law and Religion: Cases and Materials (West Academic, 2021)

 To date we have videos discussing the following cases: 

1.  Fulton v. City of Philadelphia, 593 U.S. -- (2021)

2. Everson v. Board of Education of Ewing Tp., 330 U.S. 1 (1947)

3. Engle v. Vitale, 370 US 421 (1962), and Sch Dist Abington Twnshp v. Schempp, 374 US 203 (1963).

4.  Lee v. Weisman, 505 U.S. 577 (1992).

5.  Student Initiated Prayer and Moment of Silence Cases (Santa Fe Independent School Dist. v. Doe, 530 US 290 (2000); Wallace v. Jaffree, 472 US 38 (1985).

6.  Creationism, Intelligent Design, and Evolution; Reading Edwards v. Aguillard 482 US 578 (1987) and Kitzmiller v. Dover Area Sch. Dist, 400 F.Supp.2d 707 (2005).

7.  Ceremonial Deism, the Role of Custom and Tradition, Marsh v. Chambers, 463 U.S. 783 (1983), and Town of Greece v. Galloway, 572 U.S. 565 (2014).

8.  Free Exercise, Establishment and the Mandatory Funding of Religious Education, Carson v. Makin, --- U.S.  (No. 20–1088; June 21, 2022)

9.  Kennedy v. Bremerton School District, 597 U.S. ___ ( No. 21-41827 June 2022): Murder in the Cathedral--The Lemon Test is Dead, Establishment Reduced to Spectre; Long Live Free Exercise as a Jurisprudence of History (27 June 20229.

The 2021-2022 Term of the Supreme Court produced three important Religion Clause decisions. For this conversation we focus on what may be one of the most interesting, and perhaps important,  cases of the last several years: Kennedy v. Bremerton School District, 597 U.S. ___ (No. 21-41827 June 2022).
(Slip op p. 9 Sotomayor dissenting)

The case concerned the challenge by a high school football coach  of his termination after repeatedly kneeling at midfield after games to offer a prayer in accordance to his personal belief system. This asserted individual devotion soon attracted followers in the form of some of his players, and then sometimes members of the opposing team as well.   Eventually this personal devotional with followers morphed into a program incorporating short motivational speeches (slip op. at 2). Team members were also engaged in their own prayer rituals--something described by the majority opinion as something of a tradition at the school by whatever standard the notion of  tradition is measured in that place. No one complained for a number of years until the practice was damned by the strong praise  by praise from the employee of another school to the superintendent of Mr. Kennedy's school district. Eventually Mr,. Kennedy was told to stop the practice out of concern that such practice appeared as a governmental endorsement of religion (a practice and standard long applied under traditional Establishment Clause jurisprudence). Mr. Kennedy at first complied, and then driven by remorse over breaching his personal contract with his ruling divinity (slip op. at 4) he resumed his on field devotions and after some back and forth, including failed efforts at accommodation, he was terminated (slip op. pp. 6-8). He challenged the termination.

That termination provided the majority with the opportunity to undertake a jurisprudential transformation (revolution?; too early to tell) of sorts.  First the majority appeared to substantially rewrote the law of Free Exercise, effectively creating from out of the Lukumi Babaluaye case a presumption that statutes with secular exceptions are nether of general application nor neutral.   It continued the process of changing the  approach to the Religion Clauses from one driven by the Establishment Clause (from 1947) to one driven by the Free Exercise Clause. In the process the court appeared to constitutionalize the idea that the concept of French style laïcité must be rejected (in which it is expected that individuals enter the public space without their religion) in favor of a religiously infused but neutral public space, one in which individuals are expected to bring their religion bit in which all religions must be given neutral space. One now brings history and tradition into the mix.  But what history and what tradition? At its best the test would seek to generalize the accommodations Protestants made among themselves in the 17th century--now applied to all religions and non-religious moral systems. But the focus on Christian prayer as the exemplar of Free Exercise friendly performance suggests the challenge and the corrupting element.

Second, such a vision makes both Establishment Clause supremacy (Everson 1947) inconvenient and untenable. To kill any unhealthy tendency toward a state of laïcité it was necessary to find a way of killing Lemon v. Kurstzman and its progeny--the coercion test, the endorsement test, and its variations.  This had been on the radar of the majority for some time--and this was a good a space as any to kill that case and its universe of more or less settled jurisprudence. In the process they made a mess--one that was meant to be swept under the jurisprudential rug of a constitutionalized history (perhaps along the lines of cruel and unusual punishment jurisprudence).  Ironically there was no discussion of the sophisticated standard the Court had just days earlier adopted in the connected of overturning precedent (Dobbs).  In its place the majority conjured an exception to Lemon into the test in chief--elevating the Galloway history and tradition standard into what appears (although the opinion was murky here; but see the discussion in Carson v. Makin, --- U.S.  (No. 20–1088; June 21, 2022)) the "go to" standard in Establishment Clause analysis and perhaps as well in Free Exercise balancing. In the process the old special protections applied to primary schools (through high school)and children  appear to have been weakened or made less relevant.

Third, the case appeared to have created an interesting marriage between Free Exercise and Free Speech rights under the Federal Constitution.  A broad reading might suggest that neutrality principles now seep into Free Speech analysis where the speech at issue (whether spoken or performed) is religious. In this case if one can walk onto midfield and shout Yippeee(!), then one ought to be allowed to kneel and shout aloud "Que viva Shangó!"--an invocation reflecting fidelity to Western African and Caribbean religious traditions. At the same time the opinion appears to do the opposite--this neutrality principle appears to apply only where the form of the performance is something that the justices understand (or engage in themselves)--thus the emphasis on private individual devotion.  In a sense the opinion appears to suggest that as long as one is engaging in mainstream, religious devotion then balancing will be in favor of religion--but minority religious expression may be balanced out of the constitution--with a loud ululation to the neutrality principles which now produce a hierarchy of protected religions and practices. The possibilities for murder in the cathedral grow as justices bring their own quite focused perspective to their administrative decision making in the form of constitutional balancing.

There is much more.  The case is quite rich. And the conversation is a little longer than our usual.  Among other issues we discuss are the ethics of fact spinning, and of ghosting key cases--something that might be reputation risking were counsel to engage in that practice in brief or argument. The opinion provides challenges to both traditionalists and to those who seek to defend the prior jurisprudence.  Frank and I agree that while it might have been possible to arrive at the result through an application of the traditional endorsement test, or to use the case to more carefully and openly consider the relationship between Free Exercise, Establishment, neutrality, and the protection of minority religions, those are issues that will have to be revisited in the coming years.  

The Video recording of  this conversation may be accessed HERE.

 It is also available on the Coalition for Peace & Ethics YouTube Channel HERE.

Wednesday, July 27, 2022

Personhood and Genocide: Essays in Combined Special Issues International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique VFol 35(4)


 I am pleased to inform you that issue 4 of volume 35 of the International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique is now available online. 

It comprises two Special Issues:

First Special Issue: Personhood (Guest Editors: Jenny Ponzo and Gabriele Vissio)

Second Special Issue: Multifaceted Aspects of Genocide – Law, Discourse and Infodemic (Guest Editors: Aleksandra Matulewska and Dariusz J. Gwiazdowicz)

Many of the essays are open access and may be accessed HERE.  The table of contents with links follows below.

Monday, July 25, 2022

Cuba's New Family Law (Proyecto Código de las Familias) Draft is Approved and Debated Before a Popular Referendum is held on 25 September 2022


Cuba's National Assembly on Friday approved a sweeping update of its family law which opens the door to allowing gay marriage, greater women's rights, and increased protections for children, the elderly and other family members. The new Families Code will be put to a referendum vote on Sept. 25 after being debated in community meetings earlier this year, where organizers said 62% of participants expressed their support. That is relatively low by Cuban standards, where the recently-passed new constitution was approved with 86% of the vote. Policy proposals in previous referendums have seen support of around 95%. (Cuba approves law change that opens door to gay marriage, other family rights).

The text of the new Family Law (Código de las Familias) may be accessed in the original Spanish HERE. The background (fundamemntación) provided by the Asamblea Nacional follows below.  The Press Release and summary may be accessed here.

Beyond its substance, the most notable aspect to this reform is its process.  While Chinese Leninism has developed the concept of whole process democracy, the core of which is the utilization of an extensive formal system, of comprehensive consultaiton, Cuban Leninism has, with equasl enthusiasm, embraced the mechanism of ad hoc consultation tied to national plebescite. Especially since the start ofg the lead4rship of Raúl Castro, this mechanism has been used extensivelñy on especially important or significant  governmental policies ort law reform. This represents a most interesting development of Western Hemispher and developing state Leninism, the transposibility of which remains uintested. The theory of Leninist popular referendum is discussed in Backer & Sapio, Popular Consultation and Referendum in the Making of Contemporary Cuban Socialist Democracy Practice and Constitutional Theory (2020) 27(4) University of Miami International and Comparative Law Review 37-130.

"The war did not break Ukraine and will not break or stop life in our country – address of President Volodymyr Zelenskyy at the second Summit of First Ladies and Gentlemen" and the Conduct of Functionally Differentiated Multi-Generational Warfare

 The war did not break Ukraine and will not break or stop life in our country – address of President Volodymyr Zelenskyy at the second Summit of First Ladies and Gentlemen

The Russo-Ukrainian War has proven to be a tremendously important event for the development and clarification of the characteristics of functionally differentiated multi-generational warfare (see eg, Functional Differentiation in the Projection of Multi-Generational War Techniques--A New Front in the Russo-Ukrainian War; Russia in Nicaragua).  The important transformation of warfare now suggests the refinement of a number of parameters. These are not new, in the sense that each can be traced to conflict especially from the time of the breakup of Yugoslavia. But to see them all deployed simultaneously in one conflict is to some extent new, and the possibilities of experimentation irresistible. 

Among the emerging structures are these: (1) that war is not a binary event, one is either all in or all out--states and other actors can choose to engage in some but not all fronts in the the war; (2) that conflict in any of the functionally differentiated front are open to all individuals and collective actors with the capacity to engage effectively; (3) that what was understood as multi-generational part of warfare is now better understood as the way in which conflict has now been functionally differentiated--combat, societal, economic, cultural, or political disruptions, etc.; (4) that the modalities of combat have become much more variegated and targeted--killings, economic, social, criminal, and political effect, etc.; (5) that neutrality no longer exists; what has replaced it is the ability to engage in quite precise ways ion different theaters of operation without provoking loses from an opposing side; and (6) that technology can drive both these theaters and their coordination in new and quite powerful ways, especially those technologies that employ AI, big data, and predictive modeling.  

None of this is new; all have been the subject of substantial analysis--plus the theater of covert operations that are veiled. Nonetheless, the after action reporting of this conflict--built around thje traditional centering of combat, will point more specifically to the transformation of the art and scope of war, as well as its management. In this respect Sergio Marlotti's recent essay ought to be carefully considered (A warning from the Russian–Ukrainian war: avoiding a future that rhymes with the past).

As the combat front of the Russo-Ukrainian war drags on, it may be useful to recall that substantial energy is also belong devoted to other key fronts in the war, fronts in which allies and enemies can take a more robust and open role.  President Zelenskyy has served as an effective representation of Ukrainian efforts to better marshal the private power of financing conflict and the process of developing public and private networks of decision makers in a number of functionally differentiated fronts. The forms of this marshaling of forces, and the efforts to coordinate them for the benefit ogf Ukrainian war efforts, was  very much in evidence in President Zelenskyy's 23 July remarks: The war did not break Ukraine and will not break or stop life in our country – address of President Volodymyr Zelenskyy at the second Summit of First Ladies and Gentlemen

The subject was post war recovery. That in itself was an excellent positioning of the  remarks, as it sought to emphasize the commitment of those in attendance to aid of a sufficient quality and scope to assure Ukraine of the capacity to rebuild.

Why are we talking about reconstruction now, when the war is not yet over? So that on the first day of peace you can feel it fully. So that there was already a systematic reconstruction of everything that was destroyed by the Russian army. So that there are already security guarantees for our people. So that people already know where and how they can return if they went abroad to escape hostilities. So that the medical system restores its strong capacity. So that parents do not have any unanswered questions about education, first of all for their children. So that people know for sure that there are jobs for them in Ukraine and there is a choice of how to express themselves. And that all our respectable men and women veterans, who have gone through the hell of battles, really feel the gratitude of our state. (The war did not break Ukraine )
That lens also provided the opportunity to describe what are victories in the diplomatic front of the war.  Ukraine has gone from the status of a backwater to that of a more front line state with respect to which global diplomatic networks make sense.  Ukraine has the world's attention and they have been good  at deriving positive benefit through the extension of diplomatic efforts that in turn serve as the bridge to other less public interactions. They have also used the opportunity to innovate: "We started a new form of diplomatic activity – systematic and large-scale appeals to the parliaments and peoples of the world. And they showed that it can be more powerful than all other forms of conventional diplomacy." (The war did not break Ukraine). This is not new in the sense of never tried before (China's BRI includes a strong government to government network system, and it has been common fo0r heads of state to deliver speeches to foreign parliaments); it is new in the sense of its weaponization in the context of hot conflict. Lastly, the innovation in the coordination of non-public support is worth a much more careful consideration.

We also launched a fundamentally new public charity platform, UNITED24, which helps to unite the potential of different societies, civic activism on different continents of the world, efforts of business and the cultural sphere to implement specific projects for the protection and restoration of our state, which we now very much need. Outstanding people have already become Ambassadors for the UNITED24 platform, outstanding athletes Andriy Shevchenko and Elina Svitolina, actor Liev Schreiber, and now it is also the Imagine Dragons band – I spoke with them last night.  Over UAH 5 billion have already been raised during the existence of our charity platform. (The war did not break Ukraine).

Again, this is not new. Its coordination and instrumentalization suggests innovation of interest to other states  considering functionally differentiated multi-generational conflict scenarios with or without hot war.  It also suggests the ways that either countermeasures may be deployed by hostile actors, and the innovation in terms of countermeasure workarounds. 

The speech follows below.


Sunday, July 24, 2022

Reflections on "Meta Human Rights Report: Insights and Actions 2020-2021", 14 July 2022


 Meta recently delivered its quite polished "Human Rights Repoirt: Insights and Actions 2020-2021" (Meta Report), which it made available to anyone interested in delving through its 83 pages of polished text and even more polished photos. 

In March of 2021, Meta adopted its Human Rights Policy in which we commit to reporting annually on how we are addressing our human rights impacts, including relevant insights arising from human rights due diligence, and the actions we are taking in response. This is our first annual report, covering our learnings and progress from January 1, 2020 through December 31, 2021. The scope of this report is Meta Platforms, Inc. (formerly known as Facebook, Inc.) and our assessment of what we consider to be the company’s salient human rights risks, defined by the scale, scope, irremediable character and likelihood of impact. Our salience assessments are complemented by an additional materiality assessment included in Meta’s 2021 Sustainability Report. This report is inspired by Principle 15 of the UN Guiding Principles on Business and Human Rights which makes it clear that companies must “know and show” that they respect human rights.

 The reaction from important sectors of the non-governmental community was  not unexpected. It had that rehearsed quality of an opinion merely waiting for the predicate action to occur in order for it to be delivered.  "After the publication of Meta's report, digital rights defenders and the media outlets criticised the company for failing to address key human rights concerns around content moderation, hate speech and misinformation." (here) In this case, though, the tepid response may serve as a window to larger issues in the context of human rights engagements by business within the structures of current expectations. These are not issues of or  critiques about  the way that Meta may have deviated from one form of another of an ideal human rights report, even one adhering to the letter and spirit of the UN Guiding Principles (as they attempted here). Instead they point to a more fundamental set of challenges--semiotic challenges--about the way that human rights  is now performed within chains of global production. 

"Awesome collectibles" Pix Credit here
1. Human Rights Reports as objects. The essence of corporate human rights engagement is bound up in the production of objects.  The object centerpiece is the Human Rights Report along with reports of other kinds. These are understood in their semiotic sense of firstness--they are the thing that is the palpable manifestation of the alpha and omega of the project of human rights. Reports are the objectified ends of the human rights due diligence project--the thing that stands for the memory of what is, was, happened, was done, must be done, and the like. But what is important is the thing itself--the report--for its very "thingness." One values a Human Rights Report because it exists. That value is independent of what lies within its pages. And value exists beyond the realities, histories, which are the objects of its text and images. The Human Rights Report is a valuable object for its heft, for its cover, and as the concretization of ideas that it represents. In this sense, the value of the Human Rights Report is not within its pages; one does not necessarily read these Human Rights Reports. . . . one collects them. The Meta Report is a long essay or small book at 83 pages. It has heft as an object; its weight may indicate its value. This is not uncommon in human approaches  to objects--one values them by the characteristics of the vessel first; and perhaps last. Like a reliquary, it is the container that may be more valuable than the sacred object it is meant to house.

Foot Reliquary of St Blaise; pix credit here
The Human Rights Report as object, then, is itself a sign, but one that requires signification. It must produce a reaction in those who chance upon it, or who have been looking for it, with signals of what it stands for. It signifies an embrace of a particular activity (human rights reporting and perhaps even its substantive compliance, for example). It represents a chronicle of engagement and the proof of the resources lavished on and the good faith of the entity producing it.  It's signification then invites meaning-making: what it means within the meaning expectations of the communities to which it is directed (for other communities it is either a threat or incomprehensible since there is no basis for approaching its signification and as a result, of providing the object with meaning).  Here the object is enough to produce both significance and meaning.  One does not have to take the trouble  open its pages (or scroll down a pdf on one's computer) to understand what is meant ot be conveyed in its many. . . . many. . . pages: concern, compliance, fidelity to community expectations. . . .success, or at least good faith striving. 

Once that rationalizing premise is accepted one is sucked into the lifeworld of the Human Rights Report. And that is where most people start and stop.  One engages with the object as object, and one thus becomes bound within the rules and expectations of its "objectivity"--one does go beyond the object--rather one approaches the object to judge it as against some conception of the perfect object it ought to have been.  And one does that within the logic that produced the object itself.  These are then "inside" jobs the value of which is to protect the sensibilities and lenses through which the analytic exercise is undertaken. And one can almost program a system to write a critique simply by imputing the critical elements of the ideal embraced by a critical community and them measuring the distance between that ideal and what is preferred in the Human Rights Report object.  While is binary is critically important in defining the relationship between large entities producing Human Rights Reports as defensive objects, and human rights collectives seeking to project their vision of perfection within the operational life of the defensive entity, it may be less useful for any other objective.

2. Human Rights Reports as text and image. The Human Rights Report, then, is a reliquary object.  It0's essence, as object, is to contain something greater, and in that containment to become itself greater in the glory of the object contained. "Believers in the miraculous power of relics promoted a sumptuous form of artwork by commissioning resplendent cases to surround the often minuscule fragments. Sometimes the framework would echo the source of the relic (an arm, a foot, a head). In other instances, relics were preserved in containers of more traditional form" (here). The objects of power in the Human Rights Report Reliquary are sacred text and images.  Text and images acquire their sacred character by a connection of the sources of holy power--in this case for Meta in the form of the UN Guiding Principles and along with it, a host of named and unnamed international normative rules and law. Here one notes that one not only collects Human Rights Reports--one situates them (virtually) within a cathedral of reporting museum of reporting. But in the first third of this century it has also become a doorway to other (usually virtual) containers. The hyperlink becomes the thread that connects one container to another.  This aggregation of containers than becomes even grander for the connections. 
Pix Credit here

Nonetheless, the principal content of the vessel are text and pictures--the representation of thoughts, analysis and facts (producing an image of the past, the present, and the future).  They are meant to evoke response as well as to give meaning. They are the objects that reassure, excite, comfort, enrage, enlighten, and describe a meaning universe within which they are situated and within which they situate the reader/viewer. 

The character, and power, of these pictures and text are evident from the first (cover) page of the Human Rights Report. The images are meant to reassure, to show concern, to create feelings of safety, warmth and protection.  The graphics are meant to reassure--to explain, and to guide the reader to appropriate ends. It almost doesn't matter what is depicted--it is the emotive response that is important.  And indeed, from the perspective of the content of the Human Rights Report, the images do appear delightfully random. But to students of visual stimulation, to Nietzsche's prototypical "psychologist"--they are potent objects, the signification of which is meant to reinforce  the undertones of meaning conveyed in the text and info-graphics conveniently provided. 

If the imagery is emotive, the text is not.  If one could sum its direction, that sum would approach zero. The text both is suggestive but also cautious.  It makes statements that it then suggests have precisely little effect. It gives the appearance of certainty and direction and then walks that back in provisos, exceptions, and ambiguity. It is meant to evoke compliance without giving a potential litigant much to draw on for the interposition of a lawsuit. . . anywhere. Text is object and process of mummification. It is the linen that is used to wrap the body of information after the vital organs have been extracted and placed in the ceremonial vessels depicted in the imagery. 

pix credit here
This sentence is typical: "Most of all, we strive for our efforts to make a difference, and for our human rights commitments to be reflected in today’s technologies and in the metaverse to come."  (Meta Report, p. 13).  Read as a whole the sentence evokes strength and a willingness to move forward decisively to further human rights in business operation.  It draws on common catch phrases in English that have become part of the mantra's of the human rights NGO communities. But parsed, the meaning changes.  First, "we strive for our efforts to make a difference." The company strives only. It fulfills its commitment by striving, in the way that would be impossible if one merely strives to pay workers at the end of every pay period.  Striving reduces risk of liability while appearing to convey positive trajectories of action. Second, the striving has an objective, "to make a difference." But that phrase is meaningless, even in context.  How does one measure or value difference?; difference from what? and in comparison to whom? These and other questions reduce the phrase to a textual emoticon.

Beyond that, there are general statements of overarching goals, and a limited number of heroic examples.  Text and image here assume a wholly qualitative character.  But that is what the underlying ideology values--a textual expression of fidelity to the governing ideology and its key texts; statements expressing the way in which such textual declaration of fidelity are them transposed to operational text; and examples of the way that it can work. Text provides another form of imagery.  They describe in very general terms the translation of ideology and principles into goals.  in the process text becomes as emotive as the images that accompany it.  One is invited to infer; and one is managed into a positive state of mind by the detailed histories of triumph. Nonetheless, operational systemic is not very much on display.  It is technical; it is boring; and its precise description can produce a basis for liability. Consider in this light footnote 5 on Meta Report page 24 with respect to HRIA's (human Rights Impact Assessments, especially purchased from 3rd party providers):

05. For more on HRIAs, see Part 02.II of this report. Meta’s reference in this Report to third party diligence assessments cannot be construed as admission, agreement with, or acceptance of any of the findings, conclusions, opinions or viewpoints identified in those assessments, or the methodology that was employed to reach such findings, conclusions, opinions or viewpoints. Likewise, while Meta references steps it has taken, or plans to take, which may correlate to points assessors raised or recommendations they made, these also cannot be deemed an admission, agreement with, or acceptance of any findings, conclusions, opinions or viewpoints.

pic credit here
3. Due Diligence as a performative act. Due diligence is at the center of the human rights performativity of the Meta Report, its bio-politics.  It must be understood, however, that the performance is directed inward, at the self-reflexivity of the performance circling in on itself--and outward, not to operations, but to conformity with what Meta assumes are the requirements of the UN GPs as they relate to diligence in its 2nd Pillar (¶¶16-21). The object appears not so much to embed human rights through a due diligence process, but to use due diligence as a quality control device that minimizes exposure to liability or threats to its products.  That is perfectly sound policy.  But it represents an interesting twist on the use of due diligence in the service of current forms of order in production. That is also perfectly reasonable, but it is in tension with the inference that due diligence is meant to operationalize transformation in the way in which product production and consumption is meant to be structured within the Meta platforms. It is, indeed, the way one can talk revolution as an exogenous variable or object while creating those structures that are meant to reduce its endogenous effects. One uses tools on others, not on oneself.  And Meta is right to approach due diligence in this way.  It is precisely what Meta has been taught by those who presume to guide the operationalization of the UNGP, at least as they are embraced by states.  In some ways, indeed, the Meta report reflects the sensibilities of state National Action Plans--as a tool by which one can express fidelity to international human rights but apply that commitment outward, not inward (see here).

So, what precisely does Meta have to say about human rights due diligence (Meta Report, p. 24)? First, that HRDD reflects the suggestion of the UNGPs (¶17) and that it instructs companies creating regimes of HRDD to prioritize their actions. One can infer from that Meta will strive to adhere to the formal structuring of HRDD, but that it assumes flexibility in its implementation grounded in company specific assessments of priority, and sensitive to the need to avoid actions that produce liability (an intimation discussed above). Second, HRDD is a historically evolving process reflecting Meta's assessment of what pinches most. Third, that the modalities of human rights due diligence can be procured by vendors better able to  provide the service.  The current high end form of this procurement policy are HRIA--a methodological baseline that also evolves as priorities and technology changes.  The most interesting aspect of that, of course, is that human rights is disaggregated from other parts of the production process.  It remains exogenous--an effect that must be prevented, mitigated, and remedies, rather than one that must be embedded as a component in the production of the goods and services that Meta sells. Meta is not wrong--and the NGO community has itself, in part, to blame for the strategic exploitation of this approach.  Having made human rights special, companies cannot be faulted for treating it as special.  And in this case special means something that sits outside of production though with effects on it and its consumption. The resulting interaction, of course, ought to be frustrating to those who wish for embedding but who  cannot grasp the relationship between embedding and the commodification of human rights in the way that labor is commodified. This is a conundrum that merits substantial discussion and reform--but that is hardly to be undertaken on the pages of the Meta Report. 

pix credit here
Third, the exogenous process of HRDD involves the transformation of the stakeholder engagement model into a human rights focus group model.  One can hardly blame Meta.  Focus groups have become central to the politics of liberal democratic states; as consultation has become an important element of Leninist whole process democracy.  Consultation and focus grouping also suggest something more interesting still--the move toward modeling and simulation--to descriptive and predictive analytics as a substitute for or the overlay of real time communication with the entirety of affected communities.  Clearly such a broad stakeholder engagement is impossible--but modelling it is not: and what better way for an American enterprise than through the new technologies of focus groups? And yet there is a tension here between the implications of of a stakeholder approach to due diligence and the substantially qualitative approach to due diligence itself. Moreover, focus groups work both ways: in one sense it is a vehicle for assessing sentiment from the focus community, in another it provides a vehicle for the proper training  and socialization of the community itself by the way that the focus group is used. 

Fourth, HRDD appears to be organized  territoriality.  That is useful, for example, when one must deal with states with quite different legal regimes affecting human rights.  But it also provides a way of disaggregating human rights so that what is important in one place becomes impossible in another--the universality of human rights is lost--except in the rhetorical flourishes of parts of the Meta Report. Fifth, HRDD is also an alert system used to detect potential crises. That is precisely how the system is supposed to work, of course. Yet it does not suggest the sensitivities involved in the construction of such systems based on the devouring and analysis of data. And, indeed, one of the most interesting aspects of the Meta Report is the way that the quantitative measures that must underlie much of the system it speaks to lies beneath the qualitative text of the Meta Report itself. One has very little sense of the quantitative measures used, the systems for data protection and integrity, and the assumptions and use of data analytics.  It is there, to be sure, in part--but one must follow the right hyperlinks. Sixth, transparency and assessment is incorporated in Meta's HRDD.  That is necessary and important to be sure. The machinery for transparency is complicated--and requires substantial investment in technology and in the capacity to use it--beyond the ability to write on someone's "wall" in "Facebook." That no doubt is a future challenge.  More pressing, though, may be the difficulty of penetrating the immense bureaucratic structures built around the projects of monitoring, and assessment--either of substantive assessment within the operation of the operations of the company, or assessment of the ways in which those processes function. As a result--both assessment and accountability--internal and external--remain an elite project and one  populated by insiders.  It is thus no surprise that the entirely of the HRDD process might be challenged as captured in the sense that a small group of highly networked individuals operating in the same socio-political space seem to be the key or only participants in the process.  


These are the impression that may be possible as one reads through the Meta Report.  At least those are the impressions the Meta Report made on me.  Others may read the Report differently.  If read like I have, one comes away from the Meta Report visually stimulated ans textually dulled.  One appreciates the extraordinary attention to formal constitution of systems and the veiling of the quantitative measures tat may or ought to be used to drive the system.  The human rights due diligence system conforms to expectation.  It supplies exactly what its outside stakeholders crave--stories.  HRDD within the parameters if qualitative structures of transparency and compliance is ultimately reduced to storytelling; and the spinning of stories is precisely the great task to which the Meta Report is pointed. Not that storytelling is unimportant--quite the opposite: storytelling is the way in which societal structures and self knowledge are built. It is the way that the great movements in social expectations--in its consciousness and valuation of its components and in the construction of its behavior taboos are built--one story at a time. Courts tell stories (discussed here). And the lessons of stories are the building blocks for legitimate exercises of administrative discretion.  That is the essence of a qualitative system built on the exercise of discretionary authority by an agent outside of the processes that are to be examined and judged and against which the authority of the administrator-prosecutor--judge, is to be applied.

One understands that the bedrock of the system is qualitative.  And that qualitative systems rely on the ancient administrative-bureaucratic model of operation.  The Facebook Oversight Board is one such incarnation of that ideology. These entities are constituted to serve as  Chroniclers in the Field of Cultural Production. That such a system relies on the production of large vats of rules which are then administered by a system of external (that is of external to users) officials.  These officials include regulators, investigators, assessors, judges and enforcers. It works the way the modern bureaucratic administrative state operates--but one designed to maximize administrative measures and minimize liability.  That is reassuring but also frustrating.  Operating a platform, and embedding human rights into systems, may not be particularly successful, where it is based on a system that externalizes human rights. But that is a choice that appears to have been embraced by key actors on all sides of the issue.  As a consequence, one can expect HRDD to reflect this externalization.  It follows that the criticisms of the Meta Report are both unremarkable but also inevitable given the guiding principles within which such systems are built.  One is then left with production values--emotive images, careful text, and an object that is meant symbolically to declare fidelity to a project the implementation of which is constrained by its own framework.  One goes back to the human rights report as a ritual vessel--a reliquary for human rights

 The Executive Summary follows: