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.
2022 ASC Annual Conference: Information and Governance, Vienna, 3-4 November 2022
Panel: Social Credit and the Law: Approaching a complex relationship through three discourses
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
W. Richard and Mary Eshelman Faculty Scholar; Professor of Law and International Affairs
Pennsylvania State University
239 Lewis Katz Building, University Park, PA 16802
1.814.863.3640 (direct) || lcb11@psu.edu
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]
1. Introduction
This essay wrestles with the notion of regulatory spaces as object, as spaces, and as systems that afford meaning to what fall within and outside of it, even as it gives meaning to itself.[3] This touches on both the core insights of phenomenology,[4] and semiotics,[5] but animated within the bodies (cages) of systems.[6] That requires wrestling with the governing ideologies—the structing and rationalization of the space within which all of this is to occur, and the institutionally cognitive element of normative subjectivity,[7] and reflexivity.[8]
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.[9] 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.[10] 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 that is also caged; 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. [11]
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[12] And Bentham’s[13] panopticon to that of bordello in Genet’s “The Balcony”[14] now rewritten as “the Platform”[15] though the operator remains the same in the form of the legislator or the vanguard.[16]
These are the cages that perhaps best describe the project of data driven governance in China. 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 (社会信用体系shehui xinyong tixi, hereafter SCS) of China.[17] The manifestation of SCS, in turn, represents the manifestation of a wider and more powerful cage. This study focuses on these fundamental interlinkages and their interconnections with the discursive and structural characteristics of the legal order in which they operate.[18] The research question is straightforward: in what ways are social credit systems embedded into the conceptualization, and implementation of socialist legality.[19] 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, in Section 2, the contribution first undertakes a close reading of the progression of State Council SCS White Papers[20] in the broader context of the construction of whole process democracy as related in another set of State Council White Papers.[21] That examination provides the discursive, theoretical, and ideological framework within which it may be possible, in Section 3, to theorize an 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. Section 4 then focuses briefly on some of the more interesting consequences of this interlinking are explored, focusing primarily on its expression as the data driven legality of Chinese Communist legal internationalism along its Silk Roads. To emphasize a point: this is not a granular or technical examination of some or all of the manifestations of data-driven, quantitative regulatory measures, or the administrative law of their coordination (or their respective successes, challenges and implications), or on their utility for narrative and counter-narrative construction in the competition between the emerging Marxist Leninist and liberal democratic imperial systems. The focus is SCS as an expression of Chinese legality within emerging conceptions of Socialist democracy.
[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] See, e.g., Joni J. Young, ‘Outlining Regulatory Space: Agenda Issues and the FASB,’ (1994) 19(1) Accounting, Organization, and Society 83-109 (“shape of this space and the allocation of power within the space are affected
by the political and legal setting, history, organizations and markets” Id., 84) (citing Leigh Hancher and Michael Moran, ‘Organizing Regulatory Space,’ in Leigh Hancher and Michael Moran (eds) Capitalism, Culture, and Regulation (Oxford: Clarendon Press, 1989), pp. 271-300.
[4] Cf., Edmund Husserl, The Crisis of European Sciences and Transcendental Phenomenology (Evanston, IL: Northwestern University Press; 1970 (originally published in 1939; Martin Heidegger, Being and Time (NY: Harper & Row, 1977); M. Merleau-Ponty, M., Phenomenology of perception (London: Routledge & Kegal Paul, 1981 1945); Karl Mannheim, Ideology and Utopia: An Introduction to the Sociology of Knowledge (Louis Wirth and Edward Shils (trans) Martino Fine Books, 2015 (1929));
[5] Le Cheng, and Winnie Cheng,’ Legal interpretation: Meaning as social construction,’ (2012) 192 Semiotica 427-448; Webb Keane, ‘On Semiotic Ideology,’ (2018) 6(1) Signs and Society 64-87.
[6] Kevin McG. Adams et al., ’Systems Theory as the Foundation for Understanding Systems,’ (2014) 17(1) Systems Engineering 112-123;
[7] Cf. Wolff Michael Roth, ‘Cognitive Phenomenology: Marriage of Phenomenology and Cognitive Science,’ (2004) 5(3) Forum Qualitative Sozialforschung article 12; available [https://www.qualitative-research.net/index.php/fqs/article/view/570/1237]; Anne Wagner, Anne, ‘The European cultural ecumene, legal pluralism,’ In (Bartosz Wojciechowski, Marek Zirk-Sadowski & Mariusz Golecki (eds.)) Multicentrism as an emerging paradigm in legal theory (London: Peter Lang; 2009), pp. 29-50.
[8] Karl Popper, The Poverty of Historicism (NY Routledge, 1994 (1957)); Gunther Teubner, Reflexive law: Autonomy and regulation (Berlin: Walter de Gruyter.1986)); H.L.A. Hart, ‘Self-Referring Laws,’ in (H.L.A. Hart (ed) Essays in Jurisprudence and Philosophy ((OUP, 1983, pp. 145-158.Cf., Michael Lynch, ‘Against Reflexivity as an Academic Virtue and Source of Privileged Knowledge (2000) 17(3) Theory, Culture & Society 26-54.
[9] 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).
[10] Etymology Online “cage” available [https://www.etymonline.com/word/cage].
[11] Larry Catá Backer, ‘The Flower of Democracy Blooms Brilliantly in China [中国的民主之花绚丽绽放]: The Chinese Communist Party and the Chinese Constitutional Order’ in Ngoc Son Bui, Stuart Hargreaves, Ryan Mitchell (eds), Routledge Handbook of Constitutional Law in Greater China (Routledge: 2023).
[12] Marco E.L. Guidi, ‘”My Own Utopia”. The Economics of Bentham’s Panopticon’ (2004) 11(3) European Journal of Economic Thought 405-431.
[13] 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).
[14] 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)
[15] Manuela Farinosi, ‘Deconstructing Bentham’s Panopticon: The New Metaphors of Surveillance in the Web 2.0 Environment,’ (2011) 9(1) triple 62-76.
[16] Gene A. Plunka, ‘Genet’s “Le Balcon” (2006) 36(1) Modern Language Studies 36-48, 44.
[17] The literature on social credit systems is as large and ambiguous as the system each seeks to understand. A small number of points unite this academic literature with the realities of the construction of the systems now aggregated together as Chinese social credit. “The SCS poses significant challenges to researchers not only because it is an ongoing endeavor, but also due to the heterogeneous and experimental nature of the vastly different initiatives operating in both public and private sectors that loosely fall under its purview.” Chenchen Zhang, ‘Governing (through) trustworthiness: technologies of power and subjectification in China’s social credit system,’ (2020) 52(4) Critical Asian Studies 565-588.
[18] For the start of this project, see Larry Catá Backer, ‘Next Generation Law: Data Driven Governance and Accountability Based Regulatory Systems in the West, and Social Credit Regimes in China,’ (2018) 28 Southern California Interdisciplinary Law Journal 123-172.
[19] 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. In liberal democratic constitutional orders the term is aligned with that od rule of law principles, see, e.g., Jason Varuhas, ‘The Principle of Legality,’ (2020) 79(3) The Cambridge Law Journal 578-614.
[20] Though SCS can be traced back to the late 20th century, this examination treats two State Council documents as the germinal documents framing later contributions, These consist of State Council (2007) 国务院办公厅关于社会信用体系建 设 的 若 干 意 见 [Opinions of the state council concerning the construction of the social credit system]. Available at: http://www.gov.cn/zwgk/2007-04/02/content_569314.htm (accessed 10 September 2022); and State Council (2014) 国务院关于印发社会信用体系建设规划纲要(2014–2020年)的通知 [Notice of the state council on the planning outline of the construction of a social credit system (2014–2020)]. Available at: http://www.gov.cn/zhengce/content/2014-06/27/content_8913.htm (accessed 16 September 2022; English translation China Copyright & Media; available [https://chinacopyrightandmedia.wordpress.com/2014/06/14/planning-outline-for-the-construction-of-a-social-credit-system-2014-2020/]). The regulatory pronouncements that these, in turn, birthed, has produced its own complex eco-system of regulatory interlinkages that themselves now require regulatory management for coordination.
[21] Discussed in Larry Catá Backer, ‘Linking People to Governing Institutions: 全过程民主 (Whole Process Democracy) Leninist Political Parties, Socialist Constitutional Democracy and 《中国新型政党制度》 (China's New Political Party System)’)
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