I was delighted to have been invited to be part of the Hybrid Workshop: Law and Social Credit in China (19 September 2022) University of Cologne (more about the event HERE).
My presentation is entitled "The Imaginaries of Regulatory Spaces in an Age of Administrative Discretion: Social Credit ‘in’ or ‘as’ the Cage of Regulation of Socialist Legality". The abstract suggests its theme and scope:
Social credit can be understood as the building blocks for a legality based on the quantification of objectives and expectations that target people, groups, activity, and their interactions in all spheres of human collective organization. Social credit functions as law as platforms serve as the institutional structures through which it is managed. Together, these serve as the mechanisms of an important sphere socialist legality in the new era woven into and through the traditional systems of law institutionalized through the organs of the administrative state. These are important enough but fail to capture the connection between these mechanisms for expressing political authority and their normative sources in a Marxist Leninist state. This paper focuses on these fundamental interlinkages. The research question is straightforward: in what ways are social credit systems embedded into the conceptualization, and implementation of socialist legality. Two sub-questions follow: (1) how does that embedding shape the character of social credit ‘as’ or ‘in’ the cage of regulation through which the rule of law structures of Chinese constitutionalism are ordered; and (2) in what ways does the implementation of social credit through platforms change or displace traditional forms of the administration of law. To that end, the contribution undertakes a close reading of the progression of State Council SCS White Papers in the context of the recent State Council White Papers on the construction and characteristics of Socialist Democracy and Political Parties in China. The object is to theorize ideologically authoritative Socialist Legality expressed as both the law of and a law for social credit under the leadership and guidance of the Communist Party of China. Lastly, the consequences of this interlinking are explored.
I take as my starting point the organizing principle of New Era Socialist legality, "Power should be exercised within the cage of regulations” [(把权力关进制度的笼子里]. The imagery of the cage is then used as the thread around which the development of Chinese social credit, as a regulatory object, as a regulatory methodology of interlinked technologies of management, and as an ideology is expressed. The cage provides a very useful mechanism for understanding the nuance of the evolution and deployment of SCS. While much analysis is undertaken at a granular level--to try to make sense of specific incarnations of SCS on the ground (and there IS a lot of ground to cover)--my object is to try to theorize the complexities of SCS around the imagery of the cage. In that way it is possible to suggest the deep alignments between the developments of SCS as ideology and the ideologies and practices of Chinese whole process democracy.
The PowerPoint of my presentation follows along with a very very rough discussion draft. In the PowerPoint the images play as important a role as text, in part to suggest the way that SCS itself is shifting language from its cage in and as text to other forms of expression.
Title: The Imaginaries of Regulatory Spaces in an Age of Administrative Discretion: Social Credit ‘in’ or ‘as’ the Cage of Regulation of Socialist Legality
Larry Catá Backer
Abstract: Social credit can be understood as the building blocks for a legality based on the quantification of objectives and expectations that target people, groups, activity, and their interactions in all spheres of human collective organization. Social credit functions as law as platforms serve as the institutional structures through which it is managed. Together, these serve as the mechanisms of an important sphere socialist legality in the new era woven into and through the traditional systems of law institutionalized through the organs of the administrative state. These are important enough but fail to capture the connection between these mechanisms for expressing political authority and their normative sources in a Marxist Leninist state. This paper focuses on these fundamental interlinkages. The research question is straightforward: in what ways are social credit systems embedded into the conceptualization, and implementation of socialist legality. Two sub-questions follow: (1) how does that embedding shape the character of social credit ‘as’ or ‘in’ the cage of regulation through which the rule of law structures of Chinese constitutionalism are ordered; and (2) in what ways does the implementation of social credit through platforms change or displace traditional forms of the administration of law. To that end, the contribution undertakes a close reading of the progression of State Council SCS White Papers in the context of the recent State Council White Papers on the construction and characteristics of Socialist Democracy and Political Parties in China. The object is to theorize ideologically authoritative Socialist Legality expressed as both the law of and a law for social credit under the leadership and guidance of the Communist Party of China. Lastly, the consequences of this interlinking are explored.
_________
"Power should be exercised within the cage of regulations” [(把权力关进制度的笼子里][1]
Under Xi, the rule of law has been partially subordinated to an agenda that seeks to contain power ‘within the cage of regulation’ (ba quanli guanjin zhidu de longzi li). It is not a tool that can rectify institutions. Instead, it is one of a series of tools that can rectify individuals.[2]
I. Introduction
Today I will speak to the issue and construction of cages. More specifically I will start with the imagery of the cage of regulation and the imaginaries or lifeworlds within which it acquires significance and meaning.[3] The cage of regulation was made famous by Xi Jinping in 2013—and widely reported both within and outside China. It was delightfully ambiguous—inviting people to read into it—to vest it with signification, and thus meaning—to suit their desires or conform to their world views and expectations. The cage image was, as Ewan Smith noted in the quoted language above, tied to an emerging socialist conception of rule of law, but at the same time was focused on its particular application to the challenge of administrative discretion in a legal system grounded in the constant exercise of such discretion. Legal cages in China, then, were to be bound up in the containment of officials and administrative constitutions—perhaps even of the apparatus of the vanguard itself—not in the scope of the exercise of their discretionary authority, but in the way that authority was exercised. And that constraint was to be measured against a set of idealized expectations. The cage, then, can measure even as it confines; and it always judges what is inside and what is outside, and how the cage is an essential instrument for the control of both.
Cages, though, comes in many configurations; and that is the great ambiguity. The etymology of the word in Indo-European languages is revealing, and its subtext still powerful. At its base a cage is a hollow space. That is the word focuses on the interior of the space rather than its borders. But it focused not just on the space but the objects it was intended to contain. Thus the Latin cavea was understood as indicating hollow place, as well as an enclosure for animals, coop, hive, stall, and dungeon. But it could also reference the space within which populations were contained for the transmission of specific activity, for example of spectators’ seats in the theater.[4] By the 12th century in its French form the cage described a broad range of enclosure—prisons, retreats, hideouts—spaces of confinement that was not normatively neutral. Modernity has reduced the core of the signification of the term to include a small subset of the objects within the spectrum of its description: to a focus on the borders rather than the space, and to focus on the objects contained within it. That concentration necessarily is meant to assign or signify meaning to objects and actions inside and outside the cage. That signification, importantly, is made by reference to the judgment inherent in the form of the cage and in the structures (normative and physical) of its judgments about what lies inside and outside its barriers.
And yet, post-modernity has seen a return to an older, broader, and more abstract signification of the term. Cages can be small and contain a small part of a larger space; or they can extend to the entirely of the space itself—like the rationalizing concept of rule of law itself. Cages can be constructed to separate—but separation may keep things out as well as confine what is within. Or they may be built to segregate spaces that have to be managed according to different regimes. Cages can be open—constraining with a set of bars inviting constant views of what lies outside-- or they can be closed, with no view of what lies outside. They may not even have bars—an abstract panopticon. The ‘bars’ of the cage of regulation may be constructed from out of traditional law/regulation. It need not be; the cage can be constructed out of a set of judgments and expectations activated through measurable action or inaction. That action or inaction defines both the means of constraint and the objects that constraint is meant to manage toward from set of macro-normative objectives. —or its confining structures may be a function of a construction of measures with consequences. Here, at last one returns to the hollow spaces of cavea.
Especially complicated has been the relationship between the inside and outside of the cage—especially when its mechanics of confinement are abstract. This brings one more specifically to the cage of regulation, perhaps now better understood as a regulation of cages. The move from cage to platform, from physical to abstract confinement, and to the cultivation of what has been corralled in each of these spaces destabilizes any sense of privileged perspective on the cage or its location within the meta cages of social collectives. These are cages, hollowed out spaces, arranged side by side or, like stacking dolls, within each other in orders of scope of confinement, —that is the implied relationship between the cage and thing caged may actually be inverted. The cage of regulation (笼子里) may actually be a representation of the vessel of state power (鼎)—the vanguard--within which everything exists.
Here, the hollow space of regulatory cages assumes the characteristics of a platform—or the platform the characteristics of a cage of regulation. The cage, then, does not merely develop a structure (law, walls, wires, data driven empirics, platforms, norms, expectations) of confinement, hiding, separation, identification, sorting and collectivization. It also serves to rationalize in distinct ways the space itself, and what lies on either side (the hollow spaces inside and outside a cage) by reference to the largest and most confining cage of all—the cage of the imaginaries of a society. One moves here from the conceptual universe of Foucault’s[5] And Bentham’s[6] panopticon to that of bordello in Genet’s “The Balcony”[7] now rewritten as “the Platform”[8] though the operator remains the same in the form of the legislator or the vanguard.[9]
I will explore the way this cage imagery defines both the project of legalization in China, and, more specifically, of its manifestation as, in and through the construction and operation of the social credit system (SCS) of China. The manifestation of SCS, in turn, represents the manifestation of a wider and more powerful cage. This paper focuses on these fundamental interlinkages. The research question is straightforward: in what ways are social credit systems embedded into the conceptualization, and implementation of socialist legality.[10] Two sub-questions follow: (1) how does that embedding shape the character of social credit ‘as’ or ‘in’ the cage of regulation through which the rule of law structures of Chinese constitutionalism are ordered; and (2) in what ways does the implementation of social credit through platforms change or displace traditional forms of the administration of law.
To that end, the contribution undertakes a close reading of the progression of State Council SCS White Papers in the broader context of the construction of whole process democracy as related in another set of State Council White Papers¡. The object is to theorize ideologically authoritative Socialist Legality expressed as both the law of and a law for social credit under the leadership and guidance of the Communist Party of China. Lastly, the consequences of this interlinking are explored.
II. The Semiotics of Social Credit System as Object, Interlinkages, and Ideology
The SCS can be understood in three distinct senses. And that is a cause of some confusion. These three senses of SCS are connected, to be sure, but they each reference different orienting through which the project can be conceptualized, and then embedded within the larger systems of governance in China. Together they constitute the regulatory imaginaries of socialist legality within the cage of whole process democracy, in which regulatory cages serve as the performative realization of the imaginaries of socialist legality.[11]
A. SCS as Object. Formally and at its most technical level of meaning, SCS references a set of interconnected state policies and measures. As Jamie Horsley nicely described recently on a visit to Penn State, there are three components to the SCS system. First, SCS can be understood as an information aggregation and sharing service where a social credit platform is developed to aggregate credit information, in the style of an API (application programming interface). These, in turn, come from three sources: central bank credit reporting, market regulator corporate credit information , and court judgment defaulter lists. The resulting public credit information posted to the China Credit platform is available for general consumption and furthers the core objectives of protecting the integrity of socialist markets.
Second, SCS can also be understood to operate as a regulatory enforcement instrument with the object of facilitating compliance. This is SCS as a formal disciplinary tool the manifestations of which are evident in its blacklists. Blacklists, of course, are judgments of behaviors that in their cumulative effect ought to have either negative or positive effect. But also redlists for conferring incentives and conveniences for those with good records. The innovation here is made possible by information aggregation and sharing. It is now possible to aggregate sub-systems of compliance so that compliance breaches in one subfield can cause penalties in another. But it also includes systems for credit appraisals of companies.
Lastly, SCS can be understood as the project of legalization of, or better put of legalization around, the projects of information aggregation and regulatory enforcement. These are meant to apply a legal superstructure to preserve the integrity and to rationalize the operation of the information aggregation and enforcement processes. It includes data protection rights, and rights to challenge judgments realized through placements on the black- or red-lists.
B. SCS as Systems of Interlinkages and Networks Rationalizing Data Driven Governance. SCS has come to signify something beyond its cage of technical meaning. More broadly it represents an impulse to nudge behaviors by rewarding behaviors and punishing misbehaviors through the coordination of behaviors that can be datified with positive and negative consequences that may not be directly connected to the activity. These systems interlink autonomous data producers and consumers in functionally distinct areas of activity and then build systems of consequences grounded in an analytics based on triggers applied to quantified behaviors. These are systems that can be coordinated but that do not exist in an integrated environment. It includes famous examples from the mundane—good credit ratings producing discounts on home mortgage rates, to the denial of rights to use high speed rail services for individuals who fail to pay court judgements.
The currency of these integrations is crude but somewhat effective—the black and redlists that are also well known and to some extent an object of farce, fear, and ridicule in the West. One speaks here, then, not of their legalization within systems of governmental administration Rather, here one speaks to the concept of ratings, of assessment, and of accountability measured by and through data, a system that when analytics are applied to clusters of data, produce essentialized points of conduct from which a judgment can be made and rewards and penalties assessed. It is in this context that one speaks to the technicalities of data driven governance rather than of the legalization of what can be done with these systems. In that context, data based analytics producing output that can be attached to actors and on which judgments can be made is detached from the state and can be transposed or delegated to non-state (though always state connected) actors.
SCS in this context can be understood as a more generalized effort by collectives to develop systems of data aggregation and compliance effectuated through the development of rewards and punishments for targeted behaviors. Here one exists in the quite publicized world of Didi, and of AliCredit and Tencent services. These interface with official social credit mechanisms and certainly are guided by relevant officials, but they represent parallel efforts and supplemental forms of SCS. These are efforts that also have a parallel to private sector institutions of data driven behavior management that have emerged within liberal democratic systems in the private sector. These are technically not part of the formally constituted SCS, but they operate in parallel.
C. SCS as Ideology. At its broadest, however, social credit serves as a shorthand for both a transformation in which governance is conceived and also for its expression as the building blocks for a legality based on the quantification of objectives and expectations. These quantified legalities of objectives and expectations target people, groups, activity, and their interactions in all spheres of human collective organization. It is an expression of two distinct ideological trajectories: the first is as a moral/cultural project; the second is as a political project. In both cases SCS serves both as a cage of regulation and as the object around which a cage of regulation is built. the
As a moral/cultural project, SCS is meant to rationalize and quantify , that is to model, the idealized socialist individual, collective, enterprise, official and the like. . This is the project with its genesis in trustworthiness, around which the now famous 2014 State Council Directive was framed. But trustworthiness ought to be understood as itself deeply embedded in the efforts to produce a socialist morality, which has been a longer term project foregrounded since the start of the leadership of Xi Jinping. Virtually every aspect of Chinese policy for the last several decades has sought to merge not merely politics and economics, but also legal, moral, and social relations, within the larger project of developing the socialist path toward the establishment of a communist society in China. That project, in turn, requires the development of moral-cultural structures that reflect this movement. . . and mechanisms for its measurement as against a socialist ideal type.
As a political project, SCS is meant to serve as a vehicle for realizing and perfecting socialist legality. Here the process of perfectibility is one that looks forward toward the evolution of political mechanisms that are wholly grounded in socialist political sensibilities. It is also one that looks back in the sense that forward movement requires an intense interrogation and stripping away of the vestiges of non-socialist politics, and especially of the modalities of its expression in state organs. SCS, then, in this sense can be understood as a mechanism for purging political society of the detritus of historical eras now receding into the past. It is, at its most advanced form, the incarnation of new forms of socialist legality. That legality does not strip away the traditional performative tropes of governance—law, administrative discretion, and the like. Instead, it serves as a template within which law becomes a mechanism for its realization. That, in turn, inverts the traditional way in which one understands legalities in political systems. Where in a law based system, quantitative measures might be understood as a mechanism for realizing law’s command; in an SCS system (theoretically at least) it is possible to understand traditional qualitative law as the mechanism through which SCS systems can be rationalized. The tension between these approaches have yet to be fully developed. That is in part because much of the conversation is focused on SCS as an object or a network. The idea appears to be that one can back into resolution of the fundamental issues by action rather than policy. This accidental, bottom up approach is itself consistent with the contained experimentation that marks much of the forward progress of Marxist Leninist systems in China.
III. The Cage Caged: The Cage(s) of Regulation and Regulation Caged.
Social credit functions as law in the way that platforms serve as the institutional structures through which it is managed. Together, these serve as the mechanisms of an important sphere socialist legality in the new era woven into and through the traditional systems of law institutionalized through the organs of the administrative state. These are important enough but fail to capture the connection between these mechanisms for expressing political authority and their normative sources in a Marxist Leninist state. Here one moves the from structuring notion of cages of regulation (笼子里) through the caging power of the vessel of state power (鼎)—the hollows of which are ministered to by the political vanguard and within which everything exists—to the rationalization of both the cages and their interior spaces. One moves here to the cage represented as stacking dolls, each in shape identical to the one that envelopes it, but each with distinctive superficial characteristics, and distinctive symbolic effects.
The resulting caging of the cage follows two orienting lenses. The first is of SCS within the cage of socialist legality. The second is of socialist legality within the cage of SCS. The first privileges the gaging power of text (qualitative signification). The second privileges the potentially more potent caging power of numbers (quantitative signification). Here the cages serve to identify objects of regulation or management, to signify these objects within a rational order, and to provide meaning-consequences to the objects so signified. Bound up in this is the drive not just toward rationalization of legality but also of the exercise of administrative discretion through law, and of the assessment and accountability of both through the functional lens of action—a datified reaffirmation and application of the principle to seek truth from facts (实事求是).[12]
A. SCS within the cage of socialist legality: The socialist legality here serves as a project of purification. Purification, however, is a multi-tiered endeavor. There is no question that it touches n purging/cleaning up the contradictions imported through the Era of Reform and Opening Up. This is SCS as an instrument directed (through its manifestation as socialist legality) toward the manifestation of law with Chinese characteristics, and of law that embodies the socialist path (under the guidance and subject to the imprimatur of the core of leadership of the vanguard). It is the use of text as a cage that is itself signified by politics—the politics and policy choices of the Communist Party Basic Line as amplified and operationalized through the administrative and Party organs.
The object has been often stated though as often not given much weight: Developing modalities of legality unblemished by liberal democratic ideologies, principles and operating styles. That, in turn requires a liberation for the cage of text that is imported—from law as a textual expression redolent with the premises of liberal democratic cultures and principles. Purging libera democratic principles form text may require the repurposing of text as a memorialization of a new mode of legality, one that described by text but operationalized by data and quantitative measures shorn of liberal democratic sensibilities.
One here moves toward an alignment of SCS with its expression as a brick along the Socialist Path. And the Socialist Path is understood, certainly since the 1980s and the time of Deng Xiaoping, as the way forward through distinct eras of historical development requiring meeting distinctive challenges of changing principal contradictions moving the nation (through the leadership of the vanguard) toward its reconstitution as a communist society. . . . eventually. What is often missed in reciting this core constitutional and rationalizing concept, is its consequence. In liberal democratic states the ultimate objective is the preservation of the equilibrium ecologies between the masses and their representatives constituted within organs of state to which specific powers have been vested, against which specific rights have been retained, and specific procedures ensure an accountability of legitimate action by both. This is assumed applicable to all constitutional systems. Yet the Socialist Path suggests that process, rights, privileges and authority are each merely instruments of a greater project under the stewardship of the leading social forces of society—the object is not the preservation of rights but the forward movement through principal contradiction in advancing eras of historical development. Everything must give way to that fundamental. SCS, then , provides a mechanism in which the detritus of liberal democracy inherent in the language and textual cages of law can be stripped away by the purging qualities of quantitative measures.
So purged, SCS serves as a useful vehicle for the articulation of mass line policies. It has the capacity of reaching directly to the people and of assessme4nt of effect directly on the people through the techniques of modeling and data harvesting for accountability and measurement. It has the capacity to build a quantitative model of the ideal individual, the ideal worker, the ideal cadre, the ideal judge, the ideal entity, etc. That quantification, then, serves to deepen the regulatory effects of the guiding principles of People’s Democratic Dictatorship. Those principles are grounded in the fundamental binary of Chinese Marxist-Leninism—reward the loyal and punish the reactionary or the deviant. The result, of course, is effectively a sort of legalization of self-criticism (检讨jiǎntǎo), now transformed from political principle to instrument of socialist legality. In SCS one can encounter—in its ideal state--quantitative self-reflection guided by the core of leadership. Together, these then point to the outer edges—the bars—of the cage of socialist legality—the realization of an all-around socialist collective.
B. Socialist Legality Within the Cage of SCS. But the converse is also true. SCS reflects the convergence of three fundamental trajectories of socialist legality: the first is the articulation of an objectives based legality; the second is the articulation of a guided system of administrative discretion under law (where law is SCS); and the third is devoted to the legalization of the vanguard at the core of the legalization of objectives and discretionary systems.
Objectives based legality is grounded in the well-known expectation that text (law) commands results (eg, wholesome food) or that text (law describes an ideal state (eg, trustworthiness). This, in turn, is realized through complex systems of exercises of administrative discretion. Officials exercise quasi-judicial, administrative and regulatory authority in the translation of the textual cage of socialist reality to the bodies of those subject to its requirements. These exercises in discretion is then assessed against commands and ideal state baselines. Well known now is the way in which quantitative measures are increasingly used, for example, to assess the quality of the discretionary judgment of judicial officials by reference to a modeled ideal based on data driven analytics of the copmprehe4nsive body of prior judicial decision-making.
The principal coder in this regulatory universe, one that is built around facts from which truth is assessed against an ideal type or a necessary objective, is the political vanguard. The vanguard serves as the source of normative legitimacy of socialist legality. Socialist legality, expressed through SCS quantitative measures, then, is meant to recast socialist legality as an expression of vanguard fundamental political line for which SCS provides a mechanics.
In this sense one can understand SCS as a mechanics of socialist legality that itself then provides the signification of socialist legality itself through its ability to model ideal states and objectives and assess deviations from that ideal by any data generating source (people, institutions, etc.). SCS becomes a form of quantifiable guidance and disciplinary mechanism. It is a means of (1) modeling objectives based legality; (caging exercises of administrative discretion; and (3) coordinating and rationalizing comprehensive state management system. Here, at last one understand the fundamental signification of socialist legality expressed as quality control.
It is only a small step then, from the transformation of SCS as the cage of regulation of Socialist reality (even as socialist reality cages SCS) to its role in the rectification of
C. SCS and the Rectification of 全过程民主(Whole Process Democracy). Three points are worth highlighting here.
The first touches on the attachments of socialist legality under SCS regimes. Socialist legality is attached to but not contained within the state apparatus. The realm of popularized credit histories operated through private entities, which has drawn much attention in the West, drives home the point.[13] The rectification here focuses on the modalities of nudging drawn from individual behaviors. Where whole process democracy produces convergence of objectives, goals and the articulation of the ideal, SCS serves as both quality control and delivery mechanisms for its realization with the coordinated institutional collective structures of society.- Ion effect, whole process democracy embeds the collectives charged with the operationalization of SCS within the consultative process, as well as the individuals subject to its nudging through their representation in mass political collectives and the CPPCC process.
The second touches ion the inward focus of cages of regulation. Integrity/trustworthiness of SCS, data protection, and measures relating to the robustness of (1) analytics and algorithms; (2) information sharing integrity all going to the integrity of the whole processes democracy system. They align as well with the integration of SCS modalities in the mass line and people’s democratic dictatorship principles. Ion each of these cases, SCS can be turned inward as well to whole process democracy—serving as a quantifiable measure of the comportment of all mass collectives against an ideal. And it can serve as well top rectify cadres and protect the integrity and trudstwor4thjiness of the Communist Party itself—though one suspects that this will be met with a certain amount of resistance—there is much room for ambiguity within the cages of text than are not as readily appare4nt within the analytics of data driven assessments.
The last touches on the effects of the differentiation of regulatory cages. Where the formal objectification of SCS focuses on administration and coordination, rectification focuses on the internal integrity of the systems themselves. It is here that SCS appears least involved, but where it might have its greatest effects. SCS in this sense can be used to further purge liberal democratic ideology from the textual legalities of conventional governance; it can serve to assess compliance; and measure deviation from ideal states. These in turn can serve to build a comprehensive system of rewards and punishments that are as seamless as the projected operation of smart cities—one uninhibited by the roadblocks of text and the temptations of administrative discretion based systems. The question remains whether the authorities will see this potential and then embrace it. It appears inevitable, but that failure of that vision may be itself the construction of the centra contradiction of the next era.
IV. Summing Up SCS in the Cage of its Imaginaries.
This brief exploration of the relationship between SCS and regulatory cages of power which mark the discursive trope of the new era in China reveals, at least in a preliminary way, a number of trajectories and insights that may help provide some order to more granular examinations of SCS. First, SCS is not a singular event or project. It is certainly an inter-governmental, and party-state coordinated project. But it also leaks outside the state as a matter of conventional legalization. In the process it develops concepts of caging in which it is not clear whether legality is caging SCS or SCS is essential for the caging of regulation. This is especially important in a context where power is always understood as legal authority, but is exercised through acts of discretionary judgment. SCS gets to those discretionary acts and guides, judges, and provides a means of accountability for this regulatory cage that harbors within it a measure of administrative impunity.
Second, SCS moves the project of government from its textual cage to the digitalized cages of platforms. Not just a change of language and sensibility, but a move from one regulatory space (physical and textual) to another (digitalized and cyber). SCS in this sense represents an alternative and potential socialist approach to the entire project of legality, of governance, and of the language and expression of power. SCS thus points away from institutionalism (bricks and mortar government) toward the simulated state (virtual, smart city type government).
Third, these movements can be understood within a number of movable and changeable cages. These can be rationalized as: (1) object; (2) network; (3) ideology. The resulting construction produces, through SCS, a dynamic relationship between cage and caged in which law and administrative decision-making (quantified through SCS) become each other’s cage
[1] An Baijie, “Xi Jinping vows ‘power within cage of regulation”,’ China Daily (23 January 20213).
[2] Elisa Nesossi (ed.), ‘Interpreting the Rule of Law in Xi Jinping’s China’ Made in China: Pie in the Sky (quoting Ewan Smith), available https://press-files.anu.edu.au/downloads/press/n2374/pdf/forum03.pdf (text is taken from Disturbances in Heaven: A Year of Chinese Labour, Civil Society, and Rights, Made in China Yearbook 2016, edited by Ivan Franceschini, Kevin Lin and Nicholas Loubere, (Canberra, Aus, ANU Press, The Australian National University, 2017
[3] An interesting discussion of the geminal work in Di Huang, ‘Accounting for Imaginary Presence: Husserl and Sartre on the Hyle of Pure Imagination,’ (2021) 27(1) Sartre Studies International 1-22; Jean-Paul Sartre, The Imaginary, trans. Jonathan Webber (London: Routledge, 2004); Edmund Husserl, Phantasy, Image Consciousness, and Memory, trans. John Brough (Dordrecht: Springer, 2005).
[4] Etymology Online “cage” available [https://www.etymonline.com/word/cage].
[5] Marco E.L. Guidi, ‘”My Own Utopia”. The Economics of Bentham’s Panopticon’ (2004) 11(3) European Journal of Economic Thought 405-431.
[6] Thomas Mathiesen, ‘The Viewer Society: Michel Foucault’s ‘Panopticon’ Revisited,’ (1997) 1(2) Theoretical Criminology 215-234; Michel Foucault, Discipline and Punish. The Birth of the Prison (New York: Vintage, 1979).
[7] The significs of regulatory cages, as imaginaries and disciplinary representations, were for the contemporary world perhaps most astringently mapped by Jean Genet. See Jean Genet, The Balcony (Bernard Frechtman (trans); NY: Grove Press, 1966)
[8] Manuela Farinosi, ‘Deconstructing Bentham’s Panopticon: The New Meta-phors of Surveillance in the Web 2.0 Environment,’ (2011) 9(1) triple 62-76.
[9] Gene A. Plunka, ‘Genet’s “Le Balcon” (2006) 36(1) Modern Language Studies 36-48, 44.
[10] The European and Soviet roots of this term ought not to be ignored, though it has been reshaped for better alignment with Chinese Marxist Leninism. Cf., Fruzsina Gardos-Orosz, ‘Two Influential Concepts: Socialist Legality and Constitutional Identity and Their Impact on the Independence of the Judiciary,’ (2021) 22(7) German Law Journal 1327-1343.
[11] Cf. Kathleen Lennon, ‘Judith Butler and the Sartean Imaginary,’ ((2017) 23(1) Sartre Studies International 22-37, 33-34.
[12] The traditional accounting resonates perhaps more even than its repurposing by later thinkers including Mao Zedong: “河間獻王德以孝景前二年立，修學好古，實事求是。從民得善書，必為好寫與之， 留其真，加金帛賜以招之。” [The Prince Xian of Hejian, Liu De, was made a prince in the second year of Emperor Jing the Filial; he enjoyed studying classics from earlier eras, and sought truth from facts. When he obtained a valuable book from the people, he always made a copy by transcribing it and returned the copy to them, keeping the original himself, and provided gold and silk to keep those guests coming] 漢書 卷五十三 【景十三王傳第二十三】 [The Book of Han vol 53; The 23rd Biography of King Thirteen Kings] (Project Gutenberg December 13, 2007 [EBook #23841]; available [https://www.gutenberg.org/cache/epub/23841/pg23841.html].
[13] The interest in this aspect may be due to its alignment with trajectories of data driven governance in liberal democratic states. See Larry Catá Backer, Next Generation Law: Data Driven Governance and Accountability Based Regulatory Systems in the West, and Social Credit Regimes in China,’
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