Consumer Protection, the Limits of Nudging and Commercial Practices online: OECD Digital Economy Papers, "Dark Commercial Patterns"

 

 There is an intersection of digital commerce, consumer protection, and the nudging power of data driven digital interactions that remains both under explored and a potentially important area for management, perhaps even through regulation. In that connection the OECD has published (through its Digital Economy Paper) a quite interesting study: "Dark Commercial Patterns." The abstract nicely summarized the problem and approach.

There is mounting concern that dark commercial patterns may cause substantial consumer detriment. These practices are commonly found in online user interfaces and steer, deceive, coerce, or manipulate consumers into making choices that often are not in their best interests. This report proposes a working definition of dark commercial patterns, sets out evidence of their prevalence, effectiveness and harms, and identifies possible policy and enforcement responses to assist consumer policy makers and authorities in addressing them. It also documents possible approaches that consumers and businesses may take to mitigate dark commercial patterns.

The Table of Contents and Executive Summary follow.  The paper may be accessed HERE.

The Keys to the Ideological Kingdom; Great Rejuvenation of Socialist Modernization in the New Era: 以中国式现代化全面推进中华民族伟大复兴 ——对党的二十大报告中“中国式现代化”的学习体会 [Promoting the great rejuvenation of the Chinese nation in an all-round way with Chinese-style modernization ——The learning experience of "Chinese-style modernization" in the report of the 20th National Congress of the Communist Party of China] (27 October 2022)

Pix credit here ("To realize the great rejuvenation of the Chinese nation is presently the greates dream of the Chinese nation"

 

As is traditional in the aftermath of a National Party Congress, it is necessary to distill and to project outward, a common understanding of the key elements of the Basic Line of the Communist Party of China. That is, in part, the role of well distributed essays like  以中国式现代化全面推进中华民族伟大复兴 ——对党的二十大报告中“中国式现代化”的学习体会 [Promoting the great rejuvenation of the Chinese nation in an all-round way with Chinese-style modernization ——The learning experience of "Chinese-style modernization" in the report of the 20th National Congress of the Communist Party of China] (27 October 2022).

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That is an important exercise in a number of different ways.  

First, the official distillation gives some sense of the prioritization of the multiple elements of the Basic Line elaborated in the 20th Congress Work Report. In this case it has foregrounded socialist modernization. Distillation is esse4ntial for guidance not just of mass opinion, but especially for officials who must somehow digest the Work Report and internalize the details of the new CPC Basic Line as a predicate for policy elaboration and the exercise of administrative discretion.

Second, it suggests the official language of the provisions and objectives to be foregrounded.  It is, in this sense the production of an official language and an official vocabulary that can then be used as a proxy for the entire objective cluster. In this case around the concept of socialist modernization now clothed in the vocabulary of national rejuvenation.  

Third, it then produces a set of quite premises around the construction of the language of national rejuvenation as the expression of socialist modernization in the current era. This distinguishes it from its manifestation as a key element of the era of historical development now officially deemed historical--specifically the era of Reform and Opening Up. 

Fourth, it affixes to this language , its vocabulary and premises, a specific set of meanings that reflect the new era, and that converts the words into vessels of ideological impact beyond their customary meaning.  By managing meaning and capturing ideology within it the effort reinforces both movement, a policy friendly description of administrative responsibility, and the leading role of the CPC in the construction and shepherding of all of this.  

Fifth, the development of the vocabulary of national rejuvenation as the current manifestation of a now generalized premise of socialist modernization emphasizes the critical transformation in the ordering of functional and expressive hierarchy within the CPC.  The leading role of the Communist Youth League and its technocratic/pragmatic approach to socialist modernization that characterized the era of Reform and Opening Up has been superseded by the political wing. Technocracy and pragmatism is now to be bent to the needs of ideology overseen by uts leading forces within the CPC, rather than, as had been the custom through 2015, the other way around. 

Sixth,  the language and trajectories of this area now projects both outward and inward simultaneously in slightly different ways.  At the core of the internally applied socialist modernization/national rejuvenation for the new ear is a further elaboration of the core notion of development.  Development has now been  re-framed as a comprehensive project: political. economic, social, and cultural. These threads are all necessary to produce the integrated rejuvenation. At the same time national rejuvenation is a project that is available to all developing states, and perhaps best guided by the state taking a leading role in its development. The Chinese international project of " building a community with a shared future for mankind" then follows from and is intimated linked to socialist modernization as national rejuvenation--as a political, economic, social, and cultural project.

Each f threse points are nicely developed in the essay which follows in its original Chinese and in a crude English translation.

 

Claire Methven O'Brien and Daniel Schönfelder, "A Defining Moment for the UN Business and Human Rights Treaty Process" (VerfBlog, 2022/10/26)

 

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It's always nice to note the interest of high end mechanisms operating at the heart of the European heartland of  Mitteleuropa (though of course such terms are hardly used in polite society these days) in the business of human rights embedding, through law (however that is understood), within economic transactions--using as its vessel the contemporary corporation and its functionally related variations. Ir is even nicer when they host an import intervention one of the most under reported and yet vitally important policy issues  of its time--the regulation in international law (though at this point frankly within any legal regime) of the obligations of those natural or juridical persons (including states) with respect to human rights (how ever conceived).

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The intervention by Claire Methven O'Brien and Daniel Schönfelder  in Verfassungsblog (VerfBlog, 2022/10/26), A Defining Moment for the UN Business and Human Rights Treaty Process,  merits serious consideration in a now more than half decade process that has been more notable for its strategic political process authoritarianism, and its embrace of a form of Westernized democratic centralism, than for any sort of inclusive, open, and pragmatic debate/consultation from out of which a workable global consensus, memorialized in an international law instrument might actually be cobbled together. One understands the reason--rituals of purity require avoidance of contamination--and the draft meant to be offered up to the world is meant to distill in all of its glorious purity the quite specific view of a cluster of self-styled vanguard elements increasingly used to having their way in these matter--at least within the quite powerful circle of friends with whom they operate.

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Methven O'Brien and Schönfelder ask the right questions, and point us in a reasonable direction--reasonable given the tenor of the times, and the increasing divergence of the global community's once more solidly constructed consensus around key normative issues at the foundation of both business and human rights. (1) They provide a reasonably pragmatic rationalization for an international instrument, especially as a means of coordinating an increasingly baroque ecology of limited and functionally differentiated national regulatory schemes. (2) They make the case (again--John Ruggie would be pleased) both for the existence and importance of the governance gap the challenge of which provided a animating baseline foe the UN Guiding Principles and its three pillar structure. (3) They note both the process and normative disjunctions between the treat effort today and the realities on the ground around it (though in the process they far too casually downplay the quite deliberate revolutionary objectives barely hidden beneath the loquacious provisions of the current draft). (4) They note points of convergence in the embrace of the sensibilities and practices of compliance, and in the alignment of a fundamentally administrative approach to human activity embedded within compliance and the core risk avoidance principles on which it judges effectiveness--prevention, mitigation. and remedy. They then proffer an olive branch and fashions a gateway. (5) The olive branch takes the form of the the Chair’s latest informal cluster of new textual proposals (my views here and here). These are understood as opening the door to a more flexible, perhaps even framework, approach within which either managed divergence or convergence might be possible within the vessel of a single legal framework. (6) The gateway is the constitution of some sort of technical advisory committee within the friends of the chair mini-secretariat that might provide a face saving cover and through which a technical victory can be declared by all sides.

Bravo. 

There is, of course, an alternative vision.  It is one that would be most unpalatable to many of us who have devoted great efforts to rationalize human right legalities within the process of economic production globally (though why it still does not extend to all collective human activity, and why it is centered on the human rather than on sustainability remain core issues lurking on the sidelines).  It is simply this: bth the process producing the UNGPs (like those of a generation or more ago producing the great schism in international human rights conventions) suggest that any sort of unifying effort is premature, and that the legalization of those efforts in the face of a growing lack of convergence is not just foolish--but amounts to the stripping away of the legitimacy within which the UN system is built and its legalities honored. Unless one acknowledges international institutions as Leninist vanguard organizations, representing the leading social and political forces of the contemporary stage of human development, and unless one also acknowledges that such a vanguard now not just represents but embodies the coercive legalities of the masses for whom it is responsible on on whose behalf it acts, then ramming through an international instrument that reflects the will of that vanguard to be imposed on the masses will serve little purpose but to unmask the structures of power at work and the thinness of the legitimacy of its exercise.  It may also spawn backlash and reaction, and most importantly, perhaps, it will open the door to a more serious conversation about the anti-democratic operations of the international institutions and their relationship to the community of nations. 

Perhaps it is time for such a conversation.  Yet this is hardly the venue. And this is not the time. It is, instead, the time for diversity and the start of the process leading to solidarity through trust building and objectives based management. Perhaps it is also a time for a rules based international order to reaffirm its commitment to rules that reflect democratic deliberation and due regard for cultural, historical and contextual sensitivities. That, in turn, requires a return to common baselines, and a framework within which rules based variation may exercised within the normative and legal orders of democratic states. What the Treaty process suggests is that an age of margins of appreciation may well be best expressed through a framework structure.  That framework may need only provide the vessel within which the outer boundaries of variation can be described. It need only first create a space--a governance platform--within which key stakeholders may develop the deeper interlinakages that may eventually see the need for normative convergence to fall away in favor of objectives based solidarity. That task may be impossible as well--for it would require a release of ego, and of the need for leadership, that few are willing to concede. And it might require as well a better articulation of why and how abstractions like human rights (and its granular manifestations) are and ought to have value (or be valued) in their on right or as against other organizational fundamentals of collective human organization.  Until then, the avoidance of sloppiness and the use of human rights as a fetish and a mask to cover other desires may be too great a temptation to avoid.

The text of the intervention follows. It may be downloaded and accessed from the web pages of Verfassungsbolog. 

习近平在瞻仰延安革命纪念地时强调 弘扬伟大建党精神和延安精神 为实现党的二十大提出的目标任务而团结奋斗 [When paying tribute to the Yan'an Revolutionary Memorial Site, Xi Jinping emphasized to carry forward the great spirit of founding the party and the spirit of Yan'an, and to unite and strive for the realization of the goals and tasks put forward by the 20th National Congress of the Communist Party of China.]

 

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Members of the Standing Committee are elected every five years. In 2012, the newly elected members of the Standing Committee of the Political Bureau of the 18th CPC Central Committee paid their first trip to an exhibition titled "The Road Toward Rejuvenation." In 2017, the freshly elected members of the Standing Committee of the Political Bureau of the 19th CPC Central Committee paid their first visit to the site where the first CPC National Congress was held in 1921. . . . Less than a week after the conclusion of the 20th National Congress of the Communist Party of China (CPC), Xi Jinping, general secretary of the CPC Central Committee, president of the People's Republic of China, and chairman of the Central Military Commission, led the members of the Standing Committee of the CPC Central Committee Political Bureau to visit Yan'an, an old revolutionary base in northwest China's Shaanxi Province. (The first visit of the Party's leaders after the 20th CPC National Congress)

I suggested earlier that the most profound element of the 20th National CPC Congress  was to bring the Party (and the nation now) back to the spirit of Yan'an (see discussion here). The CPC core of leadership underscored this in their choice for their first visit after the end of the 20th Congress.

 It is important to recall the essence of Yan'an, extracted both from the problem of personal leadership, and the ideological instruments through which these battles were fought.  And then the irony, the battleground of ideology eventually consumed and transcended the personalities that unleashed it. 

Mao's Rectification Movement was aimed to attack two types of influence within the Party: the Stalin-style influence from the Russian trained intellectuals on the one hand, and the Western democratic liberalism among the May Fourth generation on the other. . . . How could Mao, who exercised little influence on either group win over the entire Party? Mao's solution was to create a brand new Maoist culture--a culture that was comprised of an entire set of concepts, models, and discourses--and in fact a culture that was later instilled into the Party and became an institution of the Party. (Kan Liang, 'The Rise of Mao and His Cultural Legacy: The Yan'an Rectification Movement (2003 12(34) Journal of Contemporary China 225-228, 225.26; reviewing Gao Hua, Hong taiyang shi zenyang qi de: Yan'an zhengfeng yandong de lailangqumai The Chinese UNiversity Press, 2000). m )

The sprint of Yan'an takes different form in different eras, though its recourse to the language of ideology--and the control of its vocabulary and meaning--remains very much the same, as does the object of recertification. For this New Era, the object of rectification again comes in two forms--on the one side the democratic liberalism of some of the intelligentsia and the leading forces of markets driven private development; on the other the technocratic elites that saw political philosophy as an impediment to the realization of socialist modernization measures in terms of wealth production and most recently centered in the Communist Youth League. What was required  was an ideological language that captured the spirit of the times to refashion the discursive tropes of Chinese Leninism  to break the power of both. 

The solution was as elegantly simple as it was effective. Its foundations were built on the necessity to put the party back in the center; a standard CPC position for many years.  What changed was the meanings and political culture within which that concept would be understood and applied. That change, in turn, require putting political philosophy at the center of the means by which new understanding Party centering could be accomplished.  It then produced a forward movement of ideology to capture the spirit of centering--the core of which now from the essence of New Era Thought, and the geographies of nation al rejuvenation, the principal contradiction of better distribution, the morality of socialist modernization, and the aligning of state, party, social, economic, cultural, political, and civil ideals.. 

At the core of the New Era innovations were what might be understood as an updating of the core innovations from the Yan'an period. Both were undertaken in an atmosphere of crisis--in 1942 the double battlefields of invasion and civil war; in 2022 the double threats of the corruption of the Reform and Opening Up period and the threat from the liberal democratic camp manifested in decoupling ( （二十大受权发布）习近平指出，新时代十年的伟大变革具有里程碑意). Perhaps the greatest innovation of New Era Thought was the elaboration of its premise of the foundational importance of the core-collective binary (the core guiding the collective) as the critical building block of nation and Party: with the Central Committee as the core of the CPC, and the Politburo at the core of the  core of the Central Committee, and its standing committee at the Politburo's core, and at the center--the secretary general.  Around these relationships--New Era reiterations of democratic centralism, of the mass line, and of the people's democratic dictatorship.  Around the core a series of spokes and rings--besides those of the CPC, there are those of whole process democracy, of one country two systems, and of the cage of regulations built into and through the state apparatus. ( 习近平强调，坚定不移全面从严治党，深入推进新时代党的建设新的伟大工程 ). 

习近平在瞻仰延安革命纪念地时强调 弘扬伟大建党精神和延安精神 为实现党的二十大提出的目标任务而团结奋斗 [When paying tribute to the Yan'an Revolutionary Memorial Site, Xi Jinping emphasized to carry forward the great spirit of founding the party and the spirit of Yan'an, and to unite and strive for the realization of the goals and tasks put forward by the 20th National Congress of the Communist Party of China] follows in the original Chinese and in a translation provided by Ginger Rver Review ((Jiang Jiang and Jinglin Gao (trans) with notes).

The Treaty Project May Not Exceed its Mandate, Must be Consensus Based, and Take into Account the Right to Development and the Protection of a Stable Business Environment: Statement of the Chinese Government Made at the 8th Meeting of the Intergovernmental Working Group on Business and Human Rights Treaty

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中方认为，法律文书谈判应该坚持公平原则，统筹兼顾发展权和其他人权，在切实保障人权、充分保护和救济受害者的同时，也要充分尊重各国司法主权，符合国际公认的法律原则，为跨国企业提供稳定可预期的营商环境。
在法律文书适用范围等核心问题上，各方应严格遵循人权理事会第26/9 号决议的授权，不宜超越授权范围。此外，为确保法律文书得到广泛支持和普遍遵守，法律文书谈判应坚持协商一致，充分尊重各国关切，最大程度凝聚共识。

[ The Chinese side believes that the negotiation of legal instruments should adhere to the principle of fairness, take into account the right to development and other human rights in a comprehensive manner, and fully respect the judicial sovereignty of various countries while effectively safeguarding human rights and adequately protecting and providing relief to victims. Enterprises provide a stable and predictable business environment.
On core issues such as the scope of application of legal instruments, all parties should strictly abide by the mandate of Human Rights Council Resolution 26/9, and should not go beyond the mandate. In addition, in order to ensure that legal instruments are widely supported and generally observed, the negotiation of legal instruments should adhere to consensus, fully respect the concerns of all countries, and build consensus to the greatest extent possible.] (Statement of the Chinese Government Made at the 8th Meeting of the OEIGWG)

Day 1 of the   Open-Ended Intergovernmental Working Group's (OEIGWG) 8th session was reserved for the formalities of opening and statements by participating states and permitted others. As reported by the  High Commissioner for Human Rights Resource Centre (Day 1: Monday 24 October 2022), "Volker Türk, of the importance of a binding treaty at this time. The morning session comprised of statements by member states. In the afternoon, civil society organisations (CSOs), NHRIs, and business and employers' organizations made statements. There was also a panel discussion on the binding treaty and the road ahead."

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This a Treaty process that for reasons of ego, and perhaps of calculation, has served as an example how how badly wrong a process of international agreement  can go when it is effectively captured by a small but powerful group of actors who are intent on producing revolution on the sly, who seek to run over the hard won space for sovereign expression of states long denied that authority, and which effectively obliterated any discussion or opposing points of view in a mad rush to put together what has become an unworkable monument the the  failures of transposing the brightest high ideals into a practical document that is meant to provide guidance to states, and the most humble of global rights holders (e.g., here). There is no shame in this.  But there ought to be transparency.  And there are consequences: in this case the preservation of factional purity thinly veiled by the appearance of robust consultation has preserved the purity of the vision which is embedded in the essentially unreadable text of what passes for an international instrument. In the process they give the impression that the draft of the legally binding instrument they concocted can obliterate traditional notions of sovereignty (especially as exercised by states still wrestling with the legacies of sovereignty disabling colonialism), that they can compost core principles of corporate governance and the ordering of legal personality for non state human collectives like spoiled food, and that they can treat the judicial mechanisms of states as a fungible consumable in the service of whatever it is they mean to do. (e.g., here). 

In the process, and as has become a very bad habit among the nomenklatira that insinuates itself into the working life of the UN's operations in Geneva, it has always been fashionable to condescending ignore the Chinese.  For many their system is opaque, their ideology unmanageable (by them), and in any case, China, for most of the traditional establish is a state in need of socialization into the ways and mores of the international community and its presumptions that have grown comfortable in and around the complex of buildings that present the physical manifestation of its points of view in Geneva. If the United States is the clueless patron, the China is the wild child in need of education, but one that can be ignored in the relentless march to develop a world in which (they believe) both the Americans and the Chinese will bend the knee.  

But China does not share these views (it is not clear at the moment what is oozing out of Washington)  and China is increasingly willing, if in the most polite way, to disabuse those who hold to presumptions and condescension of this sort. The Chinese have made clear that they have developed an internationalism that is not dependent on the approval of outsider, that they have now elaborated a more comprehensive conceptualization of socialist human rights (see here), and that they hold the values of sovereign rights and development at the center of the human rights and sustainability project.

The Opening Statement of the Chinese Mission at the beginning of the 8th OEIGWG Session brings these points home. But they do more than that.

The Chinese opening statement, as politely as possible, appears to make clear that in its current form, the Treaty Project is now dead.  It killed itself (but then martyrdom can be an important element in the human rights long game). Even if the Treaty project lurches forward, it will not find a warm welcome in China or likely in many of its Belt & Road Initiative partners.,  The Treaty fails to engage with the strongly held view that development (whether or not informed by sustainability principles) is a central element of any human rights projection into the management of economic behaviors.  And the Treaty is disrespectful of the sovereign dignity of nationally contextualized judicial systems.   The Treaty fails to aim for "adequate" protection and relief for individuals whose rights have been breached.  More importantly the Treaty fails to address at all a key component of development based human rights--the human right to a stable and predictable business environment.  None of these are or have been addressed.  And the result is a one sided effort that unbalanced will fall.  The coup de grace, though, is potent--as drafted the text of the 3rd draft appears to exceed the mandate under which it was to be developed--and the process  continues to avoid any connection with consensus building efforts.

In this respect the Chinese statement is worth careful consideration.  And it serves as a reminder that failures to develop consensus based broad and inclusive consultation--with a willingness to listen as well as to hear, can doom a project.  The Chair Rapporteur, Emilio Izquierdo (Ecuador) attempted gently to confront the issues and offer a pathway to consensus--but one that led from the present form of the document to something more like a framework arrangement (eg. here).  This was rejected by the alliance of CSOs strongly, and that strong rejection appears to have frightened the functionaries, most of them European, long used to basking in the stroking of these organizations and fearful of causing a (domestically potent) scene. 

The full statement, in the original Chinese and in a crude English translation follow. The lesson is apparent in any language.Statements by other states and additional resources may be accessed here.

Just Released: Text of the Constitution of the Communist Party of China Revised and Adopted 22 October 2022 at the 20th National Congress of the CPC

 

 

The Communist Party of China has now circulated its constitution as revised and adopted at the 20th National Congress of the Communist Party of China on 22 October 2022.

It follows below without comment in English and Chinese.  It may also be accessed HERE and HERE.  

For a comparison of old and new text, see the excellent materials on the website of Ginger River Review, What did the Party do to its Constitution?.

 

Summarizing the 20th National Congress of the Chinese Communist Party in One PowerPoint Slide

 

Academics, and officials tend to be loquacious; me included.  Loquaciousness can sometimes signal all kinds of things: erudition, authority, mastery of the language and forms of communication, status (or pretensions to status) with in a collective, (sometime servile) utility, and the like. And sometimes complexity cannot be reduced or communicated  except in detail and through a specialized language the control of which also signals control over its content and application. 

Nonetheless, sometimes it is a useful test of one's own understanding of a complex object, or ecology by attempting to reduce it to an essence.  Reduction, of course, is a set of complex valuations in its own right--choosing points of emphasis and centrality, and then shaping its essence. And thus my effort--to reduce the 20th CPC National Congress to an essence.

This reduction one that may reflect my own personal points of core interests rather than those of others.  The lens can change significantly depending on what perspective is more important--for example for some the core of the Congress might be the triumph of the political philosophers (and thus the political focus of the CPC and its core functions) over the long dominant technical engineers  long at home in the Communist Youth League. And so on.  

Other contributions of a one slide Summary all welcome.

"From 11 July 2021 to Hurricaine Ian in 2022: The Transformation of Mass Protests in Cuba and its Consequences"; Remarks Delivered Penn State Journal of Law & International Affairs Speaker Series 25 October 2022

 

 

I was grateful when the student editors of the Penn State Journal of Law & International Affairs extended an invitation to speak as part of their Fall Speaker Series. For my remarks I chose the topic of law, lawfulness, and direct mass participation in political orders, focusing on the example of Cuba, which I titled From 11 July 2021 to Hurricane Ian in 2022: The Transformation of Mass Protests in Cuba and its Consequences.

The topic is worthy of sustained examination beyond the usual discourse that is often seduced by the interests of great powers to use these as an instrument for the projection of power abroad, or as a discourse of insurrection, lies, hooliganism, and disorder when manifested internally. Cuba provides an excellent example in two respects. First it suggests the way that states can institutionalize and to some extent naturalize even a spontaneous explosion of popular expression. Second, it also suggests the ways in which such explosions, when ignored or suppressed, can produce instability, not for the nation, but for the operation of an inattentive state apparatus. There are lessons here for all states, including the great powers.

The abstract adds a little detail:

Abstract: On 11 July 2021 mass protests erupted across the country in ways that had not been seen since the success of what became the Marxist-Leninist revolution of 1 January 1959. The protests represented an important challenge to the inertia that had characterized Cuban Marxist Leninism since the start of the 21st century. It was forcefully suppressed. At the end of September 2022 Hurricane Ian plunged much of Cuba into darkness as the national electrical supply was compromised. Days later, without power restoration, mass protests erupted all over Cuba. This time the police and security services did not respond in the same way. While internet services were cut for a while, Luis Antonio Torres, the head of the Communist Party in Cuba was widely quoted as saying ""I believe that protesting is a right, but only when those responsible are not doing their jobs,” though he noted these protests might not rise to that level. This presentation considers the ramifications of potentially radical transformation protest Cuba. It weaves together a number of critical stands that now produce an effort to accept and internalize at least a limited role for popular protests, while suppressing the rest. To that end the presentation will consider interlinkages between the move to popular consultation and referendum in Cuba, the 11 July protests, and the reshaping of the cultures of protests in 2022. The implications of these changes remain contested—for the United States and the Cuban diaspora the changes point to the eventual triumph of some form of liberal democracy in Cuba; for the Cuban establishment, the changes point to a much needed reform of the political system.

The PowerPoint that accompanied the remarks follow and may also be accessed here.

 

Just Posted--Discussion Draft:" The Imaginaries of Regulatory Spaces in an Age of Administrative Discretion: Social Credit ‘in’ or ‘as’ the Cage of Regulation of Socialist Legality"

 

 

I am delighted to share with those interested a discussion draft of my essay: The Imaginaries of Regulatory Spaces in an Age of Administrative Discretion: Social Credit ‘in’ or ‘as’ the Cage of Regulation of Socialist Legality.   My object was to reconsider Chinese forms of data driven algorithmic governance, usually aggregated under the name "social credit" from a more fundamental perspective.  That is I have been exploring social credit as an expression of rule of law and the nuances of traditional rule of law notions as a cage of regulation  around which socialist legality can be contained, but also as itself as an object caged by the socialist legality it seeks to cage. That cage assumes a political dimension in New Era China through the cage of Whole Process Democracy that is also caged by the supervisory potential of SCS. 

The fundamental semiotic reality of this is embedded in the notion of supervision—transferred from its origins in the traditional institutions of the vanguard and its jiancha yuan, to that of data driven measurable assessment. SCS, like Whole Process Democracy, is grounded on the effectiveness of supervision guided by law and a function of the direction provided by ideological baselines. Chinese New Era Leninism may well understand and approach both SCS and Whole Process Democracy as supervisory vehicles with different but interwoven trajectories. Both look to Leninist ideology to guide their expression, but to markets to frame their operations 

The Abstract, perhaps, captures the flavor of this study:  

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 hope those interested may find something if interest.  Engagement always welcome. A version of this essay will be presented at the 2022 ASC Annual Conference: Information and Governance, Vienna, 3-4 November 2022 in the panel: Social Credit and the Law: Approaching a complex relationship through three discourses.

The Abstract and Introduction follow below.  The draft may be accessed HERE. 

The People's Daily 20th CPC National Congress Challenge--Test Yourself?: 党的二十大报告100题，快来自测吧！[There are 100 questions in the report of the 20th National Congress of the Communist Party of China. Come and test yourself!]

 

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Having been received at the 20th CPC National Congress,  Xi Jinping's 70+ page Work Report to the 20th CPC National Congress was widely distributed ( 高举中国特色社会主义伟大旗帜 为全面建设社会主义现代化国家而团结奋斗: 在中国共产党第二十次全国代表大会上的报告 [Hold high the great banner of socialism with Chinese characteristics Unity and struggle for the all-round construction of a modern socialist country: Report to the 20th National Congress of the Communist Party of China] English translation (unofficial) is also circulating and may be accessed HERE) must be studied.

But nothing studied is worth the effort unless the effectiveness of that study is tested.  That, certainly, has become a well established premises in liberal democratic education practice:

Testing is an invaluable opportunity for learning, in addition to its more commonly considered roles in evaluating student learning (ie, as summative assessments) and providing feedback to guide future learning (ie, as formative assessments). Thus, we argue that educators should elevate the role of testing in their course curricula, planning testing opportunities with an eye towards the potential of tests to spur learning. While we use the term “testing” in the present manuscript for simplicity and cohesion with existing research, a more accurate description of what we are referring to might be “retrieval practice.” (Yang, et al, Testing as a Learning Tool (2019))

Is there a value in extending the insight of testing to the national level, or to apply these insights to political, social, or cultural lessons distilling the guidance of the leading social forces as expressed in its periodic summary report? Even if it is merely a gesture, does the gesture have effect as object, or as a mechanism for transmitting the lessons sought to be embedded in the bodies of the masses?  The questions are important. The answers will suggest the strength of efforts to recast the successes of the Era of Reform and Opening Up as the source of the Current New Era principal contradiction (ironically applying a 70% right-30% wrong principle as a sub-textual discursive trope) by recasting its narrative  as a set of consequences (discussed here) that made a transition to  an intensification of the core Chinese Leninist principle of the core-collective binary as the basic building block of Party, state and nation, now arranged around the concepts of people-first and people oriented economy principles that itself is constituted on the foundation that the people lead but that this leadership is expressed through the leadership and under the guidance of the vanguard. The corollary is that the vanguard's leadership is itself a collective which is ultimately lead by its pinnacle core. These lessons, along with the elaboration of a territoriality based ethno-national conception of sovereignty and sovereign engagement with others. must be distilled and internalized  if they are to serve as a basis for projection abroad along China's silk roads.

We may all soon find out if testing has a value in the effort to internalize the core lessons of New Era Leninism.

Within days of the delivery of the General Secretary's Work Report to the 20th National Congress, the People's Daily widely distributed a 100 question exam (with answers).  It was designed to enhance "retrieval practice." At the same time it could serve as a badge of virtue or solidarity signalling.  Indeed, the importance of the exam may be more telling for the state and private organs that make the exam and its successful completion a matter of institutional policy, than for any individual enthusiasm for the exercise. But one must leave the auditing, or the sociology and politics, of the exam for another day. Still, its signification as an object--and the objectification of its learning, is an important bridge between the high level pageantry of the Congress and the everyday lives of the operational level institutions  that serve as the connecting point with mass socialization. 

And then there is the matter of meaning making. Of great importance are the contents of the exam itself.  The selection of questions (how they are used to distill key points), the choice of omission, and the construction of answers, all produce an operational level reconstruction of the Work Report that is quite important.  First it suggests priories and choices.  It also points to choices that produce an interpretation of the Work Report at the operational level  (one that invites comparison with both application, and the construction of interpretation at the highest levels of administrative and party organs). Third, the questions are set up in the form of memorization rather than a reasoning and interpretation format.  Each question is effectively a key statement from the Work Report which leaves a critical term blank, which must be supplied by the test taker.  In the process each question invites the test taker to commit the text to memory. Guidance remains a function of the vanguard and is realized through the organs of state and Party.  That, subterranean framework, is probably the most important lesson of the test.

So, take the test.  Consider each question, its role, and the answer. The questions and answers appear below in the original Chinese and my crude English translation.

 

 The Coalition for Peace & Ethics has undertaken a deep examination of the 20th National Congress and will make key documents and other resources available to those interested. Access the CPE 20th CPC Congress web resources here.

Teaching the Lessons of the 20th CPC Cpngress to Cadres and the Masses: 党的二十大报告学习手账+思维导图，收藏学习！ [The 20th National Congress of the Communist Party of China reports learning handbook + navigation chart, collected favorite lessons!]

 

 

 

Xi Jinping meant what he said in his Work Report to the 20th National CPC Congress when he emphasized the role of education, especially of  the nation's youth and lower level cadres. The Party and state apparatus are now trying to make good on that policy by producing and circulating a number of more or less easy to  read guides that are meant to help guide appropriate internalizaiton fo the ley points in the Work Report suitable for mass consumption.

One example follows below.  党的二十大报告学习手账+思维导图，收藏学习！i[The 20th National Congress of the Communist Party of China reports learning handbook + navigation chart, collected favorite lessons!]s quite cleverly presented in the form of a virtual notebook.  Here the symbols and objects of learning--from teacher to student, from core of leadership to cadres, from the party to the masses, is emphasized, and naturalized within the organizational order-universe of the New Era Chinese Marxist Leninist state.  The process of conveying collective meaning in this way, of shaping social thought, is worthy of substantial study both for its character in a Leninist institutional environment and for its effectiveness. It serves as a way of comparing similar (though usually muct more indirect processes of socialization to orthodox mandatory signs and utterances of loyalty in liberal democratic systems of which there are many examples now. 

Images of the "learning notebook" follows along with a quite detailed infographic mapping the main points of the 20th National CPC Congress.

 The Coalition for Peace & Ethics has undertaken a deep examination of the 20th National Congress and will make key documents and other resources available to those interested. Access the CPE 20th CPC Congress web resources here.

 

Mapping Xi Jinping's Work Report to the 20th CPC National Congress: The Structure of Meaning/The Meaning of Structure

 

Pix Credit here

 

Weighing in at about 72 pages in its original Chinese (and inexplicably) a shorter 63 pages in its unofficial English translation, the Work Report delivered to the 20^th National Congress of the CPC by its general secretary, is a monumental project to digest.  As an object, of course, it is meant to serve as a metaphor for the state, the enterprise of government and the role and talent of the CPC in building this massive object//Work Report, Party, State, Society, Global leader.  

But the Work Report is more than a semiotic object, the firstness of which—as an hours long read or a massive ecology of text—belies its signification (as the bedrock for leadership and guidance), and its role in rationalizing the universe within which it is only possible to function  in China and with the Chinese apparatus (and through it, Chinese economic, social, cultural and political collectives). This is not because it must invariably be so, but because it has been caused to be so by the assertion of leadership of the societal vanguard organized in a Communist Party for China. 

As such, it is important to read the Work Report for its effort to synthesize that reality ordering of the vanguard. That effort yields benefits for the reader, if only to acquire a sense of the vocabulary, and the structures of thought and the language through which reality is rationalized, and thus rationalized framed and constrained. This is the cage--not of regulation--but of  the premises and orderings of the mind on the basis of which key actors and institutions see and respond to the world around them.

To make that a little easier, it may be useful to map the Work Report to the 20^th CPC National Congress. The object is not to summarize but to develop expose the structure within which the discursive project of the Work Report is organized.

 The Mapping follows; Downloadable version here,

 The Coalition for Peace & Ethics has undertaken a deep examination of the 20th National Congress and will make key documents and other resources available to those interested. Access the CPE 20th CPC Congress web resources here.

Reflections on the Chinese Path Toward Enhanced Party and National Discipline--习近平强调，坚定不移全面从严治党，深入推进新时代党的建设新的伟大工程 [Xi Jinping emphasized that we will unswervingly and comprehensively govern the party strictly, and further advance the new great project of party building in the new era].

 

学习延安作风发扬革命传统 (Study the spirit of Yan'an, to develop a revolutionary tradition) Pix Credit HERE

 

 

Even before Xi Jinping's 70 page Work Report to the 20th CPC National Congress was widely distributed ( 高举中国特色社会主义伟大旗帜 为全面建设社会主义现代化国家而团结奋斗: 在中国共产党第二十次全国代表大会上的报告 [Hold high the great banner of socialism with Chinese characteristics Unity and struggle for the all-round construction of a modern socialist country: Report to the 20th National Congress of the Communist Party of China]) official press organs were distributing strategic summaries that sought to develop a summary base form which meaning could be readily extracted from that Work Report.  

These efforts are particularly useful because they provide a very important window into how the Chinese leadership core would like the very long and complex Work Report to be (1) distilled; (2) interpreted; and (3) applied.  It is for that reason that it is worth reading these much shorter narratives. These will likely serve as the basis for the explanation and justification of the many many new initiatives that are expected to be rolled out at every level of the administrative apparatus in the coming weeks before the coming Spring Festival.

This post considers 习近平强调，坚定不移全面从严治党，深入推进新时代党的建设新的伟大工程 [Xi Jinping emphasized that we will unswervingly and comprehensively govern the party strictly, and further advance the new great project of party building in the new era]. This is a particularly important element of the 20th National Congress Work Report because it is at the center of some of the most sensitive and far reaching governance transformations of the last decade.  Embedded within it are the construction of the notion of the leadership core, of the core-collective binary that serves as the basic building block of Chinese Leninism governmentality, and of the role of democratic centralism (again) as a core principle and method of discipline. 

The seven key elements distilled from the Work Report reflects on what is being built as the discursive theme of Party discipline and work style. They are built around the 7 pillars of Communist Party Discipline-Self-Discipline: (1) centralized authority; (2) the ideology of authority; (3) from criticism/self-criticism to self-revolution; (4) Team building toward the constitution of the ideal cadre; (5) effective shepherds attend to their flock; the centrality of the performance of the mass line; (6) the exorcisms of old demons and failures; and (7) corruption and self-revolution (自我革命). 

More substantial reflections follow below, along with my crude English translation of the summary.

The Coalition for Peace & Ethics has undertaken a deep examination of the 20th National Congress and will make key documents and other resources available to those interested. Access the CPE 20th CPC Congress web resources here.

 

 

Mirror, Mirror: 二十大受权发布）习近平强调，以中国式现代化全面推进中华民族伟大复兴 2022-10-16 11:56:35 (来源：新华网) [(20th National Congress authorized release) Xi Jinping emphasized that the great rejuvenation of the Chinese nation will be comprehensively promoted with Chinese-style modernization].

 

Pix credit here

 

Even before Xi Jinping's 70 page Work Report to the 20th CPC National Congress was widely distributed ( 高举中国特色社会主义伟大旗帜 为全面建设社会主义现代化国家而团结奋斗: 在中国共产党第二十次全国代表大会上的报告 [Hold high the great banner of socialism with Chinese characteristics Unity and struggle for the all-round construction of a modern socialist country: Report to the 20th National Congress of the Communist Party of China]) official press organs were distributing strategic summaries that sought to develop a summary base form which meaning could be readily extracted from that Work Report.  

These efforts are particularly useful because they provide a very important window into how the Chinese leadership core would like the very long and complex Work Report to be (1) distilled; (2) interpreted; and (3) applied.  It is for that reason that it is worth reading these much shorter narratives. These will likely serve as the basis for the explanation and justification of the many many new initiatives that are expected to be rolled out at every level of the administrative apparatus in the coming weeks before  the Lunar Festival.

This post considers （二十大受权发布）习近平指出，新时代十年的伟大变革具有里程碑意义 [ The 20th National Congress of the Communist Party of China is authorized to release) Xi Jinping pointed out that the great changes of the new era in the past ten years are of milestone significance] (English translation here). This is a particularly interesting summary of  the Work Report's self conception of the highlights of the proper 5 years.  It suggests, by its choices and emphasis what is considered (officially) to be both worth a mention, and woven nto the broader tapestry of a history of the CPC relentlessly marching toward its goals. In that sense it provides a small window of how the CPC sees itself in history. 

Brief reflections and the English translation follow below.

The Coalition for Peace & Ethics has undertaken a deep examination of the 20th National Congress and will make key documents and other resources available to those interested. Access the CPE 20th CPC Congress web resources here.

 

Socialist Modernization in the New Era; A Great Transformation? 二十大受权发布）习近平强调，以中国式现代化全面推进中华民族伟大复兴 [(authorized to release at the 20th National Congress of the Communist Party of China) Xi Jinping emphasized that the great rejuvenation of the Chinese nation will be comprehensively promoted with Chinese-style modernization]]

 

Even before Xi Jinping's 70 page Work Report to the 20th CPC National Congress was widely distributed ( 高举中国特色社会主义伟大旗帜 为全面建设社会主义现代化国家而团结奋斗: 在中国共产党第二十次全国代表大会上的报告 [Hold high the great banner of socialism with Chinese characteristics Unity and struggle for the all-round construction of a modern socialist country: Report to the 20th National Congress of the Communist Party of China]) official press organs were distributing strategic summaries that sought to develop a summary base form which meaning could be readily extracted from that Work Report.  

These efforts are particularly useful because they provide a very important window into how the Chinese leadership core would like the very long and complex Work Report to be (1) distilled; (2) interpreted; and (3) applied.  It is for that reason that it is worth reading these much shorter narratives. These will likely serve as the basis for the explanation and justification of the many many new initiatives that are expected to be rolled out at every level of the administrative apparatus in the coming weeks before  the Lunar Festival.

This post considers 二十大受权发布）习近平强调，以中国式现代化全面推进中华民族伟大复兴 2022-10-16 11:56:35 (来源：新华网) [ENGLISH TRANSLATION HERE and below--20th National Congress authorized release) Xi Jinping emphasized that the great rejuvenation of the Chinese nation will be comprehensively promoted with Chinese-style modernization]. This is a particularly important element of the 20th National Congress Work Report because it decisively announces the final break between the era of Reform and Opening Up  and the articulation of contemporary policy in one of the key elements of Chinese policy (and ideology) that characterized the Deng Xiaoping Era. 

Brief reflections follow below.

The Coalition for Peace & Ethics has undertaken a deep examination of the 20th National Congress and will make key documents and other resources available to those interested. Access the CPE 20th CPC Congress web resources here.

 

高举中国特色社会主义伟大旗帜 为全面建设社会主义现代化国家而团结奋斗: 在中国共产党第二十次全国代表大会上的报告 [Hold high the great banner of socialism with Chinese characteristics; Unite and struggle for the all-round construction of a modern socialist country: Report to the 20th National Congress of the Communist Party of China] and Links to CPE 20th CPC Congress Resources Website

 

 

On 16 October 2022 and at the opening of the 20th National Congress of the Communist arty of China, its general secretary delivered a 72 page Working Report:   高举中国特色社会主义伟大旗帜 为全面建设社会主义现代化国家而团结奋斗: 在中国共产党第二十次全国代表大会上的报告 [Hold high the great banner of socialism with Chinese characteristics Unite and struggle for the all-round construction of a modern socialist country: Report to the 20th National Congress of the Communist Party of China].

The full text of the general secretary's work report (without comment) may be accessed here (in Chinese): 高举中国特色社会主义伟大旗帜 为全面建设社会主义现代化国家而团结奋斗: 在中国共产党第二十次全国代表大会上的报告 . 

The shorter English translation (unofficial) is also circulating and may be accessed HERE. Commentary to follow. A brief taste follows below.

The Coalition for Peace & Ethics has undertaken a deep examination of the 20th National Congress and will make key documents and other resources available to those interested. Access the CPE 20th CPC Congress web resources here.

 

Reflections at the End of Hispanic Heritage Month 2022

 

Pix Credit NPR

 

 Culture is a fragile thing.  Its management cannot be left to its members, but like all other aspects of collective life, culture must be husbanded (and I note the gendered origins of the term here with some irony) as it morphs in its expression and forms.  Culture has been caged in the methods and technologies of its production, especially where that culture expressions its own self discipline in the zoo, in the museum, in the menagerie--and always with the gentle guiding hand of the curator, the shepherd--or in the terms of the movie 'The Matrix' the engineer.  But this i little more than the cultural expression of the fundamental contradiction of semiotics--meanings confined within cages--of text, of image, of language--and now of the abstracted spaces of the meta-verse created through the reconstitution of social collectives not in themselves but in digitized images of themselves.

Pix Credit here

The construction of the narratives of of the authentically Hispanic fits nicely within these meta-trajectories and is comfortably situated within the urtext of cultural expectation in which collective meaning making--the essence of the semiotic project--moves from the cages of text to that of cyberspace.  

At the same time that curation of the collective identification of meaning moves from the literary traditions of hispanicity to culture as a series of Tik-Tok moments, so many little beads in a complicated collar that speaks to many orishas--state, ethnos, religion, language, etc. and its hybridities. It speaks as well to the hybridity essential to the (re)construction of the disasporic.  Within those cages space must be allocated to all mass collectives--organized in forms that may be 'natural' or convenient to those tasked with the goal of inclusion within the curated spaces the detritus of which is understood as culture and its production. Thus beyond the discipline of cultural expectation (eg one cannot be a member of 'x' culture unless one conforms to 'p-q-z-s' opinions, behaviors and performances) comes the discipline of herding  (cultural discipline requires that all members be housed within the same cages for appropriate policing or in the language of the curator class, of monitored participation). And thus to the production of some essentialized amalgam presented to the outside and to each other--an object that is useful in the bartering among cultures for space on the even larger cultural checkerboard of cultural life in the United States.

This is not meant to suggest the dystopian; rather the reverse: cultural cohesion requires either its expression through the aggregation of practice erupting from the bottom--or its careful shepherding disciplined from the top. And therein the warning for those who seek empowerment through control of cultural tropes and the borderlands of the Hispanic in the Americas. Today in whatever form culture assumes, the taste for managing from the top is practically irresistible, and thus becomes a subject beyond debate. Within the cage there is the comfort of membership and inclusion; the outside is either populated by the disloyal, the betrayers, or those exiled  as heretics or cultural enemies.  These become invisible to the community--excised like a corrupting bacillus., and where necessary treated as dangerous aberrations What becomes unforgivable in this semiotically orthodox structuring universe is for otherwise conforming members to be left out of the cultural corral where they can thrive within the warm glow of the community and guided toward happy and healthy expressions of cultural alignment. The insinuation of the practices of cultural colonialism and the imperialism of meta cultural orthodoxies that freeze frame  cultural mapping in a vertically organized space then curated is something that those colonized from outside out to be sensitive to  when the impulse becomes irresistible translated within. Cultural policing, like morality policing in other cultures, can only end in oppression, exclusion, and sometimes in blood.