Ruminations 52: Surmizing Liberty and Equality in American Political Ideology

(Pix from Great Seal of the United States, State Symbols USA)

For American Independence Day I started considering the essence of American ideology.  (Democracy Part 28/Ruminations 51: On the Contradiction of Voting, Democracy and Revolution in the U.S. and Egypt).  But Americans don't think much in ideological terms; Americans think even less in historical terms, except perhaps to the extent necessary to reach back to a term useful in new ways for current debates. Americans invoke ideology instrumentally, especially in defense of their customs and traditions, or sometimes against them, in either case with sometimes profound effects.

So I have wondered how I might answer the following question were it ever posed by an individual who is not a U.S. national: What is the original American ideology? Equal opportunity (to become rich, important, or whatever one wishes to be) or equality (equal rights, or "deserving-ness") among people?  It is to an attempt to briefly answer this most profound set of hypothetical questions that this post now turns. The post is provided in English and Chinese.

Sara Seck on "Kiobel and the E-word: Reflections on Transnational Environmental Responsibility in an Interconnected World"

Sara Seck is an Associate Professor at the University of Western Ontario. Professor Seck's research interests include corporate social responsibility, international environmental, human rights, and sustainable development law, climate change, and indigenous law. She is particularly interested in international and transnational legal theory, notably the relationship between Third World Approaches to International Law (TWAIL) and international legal process theories that are informed by constructivist understandings of international relations.

Professor Seck has recently been considering ramifications of Kiobel v Royal Dutch Petroleum 569 U. S. ____ (2013) and the ways in which, for me, sheds light on a reality of the structure of international human rights and business that may be belied by the torrent of lofty language churning out of elite state and non-state actors. Professor Seck's essay, "Kiobel and the E-word: Reflections on Transnational Environmental Responsibility in an Interconnected World," follows.

 (Pix Reuters from Armin Rosen, "How Suing Shell Could Backfire on Human Rights Activists," The Atlantic, Nov. 17,  2011 "The U.S. court system is an imperfect recourse for human rights advocates, but if the Supreme Court affirms the ability to sue multinational corporations, it could become an important one. . . . If the Supreme Court sides against Kiobel, the scope of the Alien Tort Statute could severely narrow. " Id.)

Democracy Part 28/Ruminations 51: On the Contradiction of Voting, Democracy and Revolution in the U.S. and Egypt

Form my American Independence Day post seven years ago I noted:

Every Independence Day, many Americans take their Declaration of Independence out of its shroud, admire it, proclaim their allegiance to its principles, congratulate themselves on their constancy in applying those principles, and then put the document away for another year. Many other Americans wrap themselves in the language of the Declaration, or at least in well chosen selected portions of that language, to push any one or more projects of change to the structure of the Republic or its policies. The Declaration of Independence remains one of the great revolutionary documents of our time. Its ideas remain as dangerous as they have been useful. (Some Thoughts On The American Declaration Of Independence And Its Irish/European Connections At Century's End, Law at the End of the Day, July 4, 2006)

I meant to reconsider the dynamic revolutionary potential of the Declaration of Independence and its tension with the stability producing Constitutional instrument adopted in 1789 that I had considered in an earlier essay: Larry Catá Backer, “Some Thoughts on The American Declaration of Independence and the Irish Easter Proclamation,” 8 Tulsa Journal of Comparative & International Law 87 (2000). 

(Pix From Scott Long to Facebook who wrote: "View of the approach to Tahrir by Qasr al-Nil bridge (from Cairo Tower) about an hour ago. I was on this thing an hour before that, and you could barely move or breathe." June 30, 2013)

For this 4th of July, I thought it useful to consider the dynamic and revolutionary foundations of the American Declaration of Independence on the day after the duly elected leader of the Egyptian state was removed by the military with the approval of masses assembled in urban public squares but against the will of others. ("President Morsi Overthrown in Egypt: Morsi Reportedly Being Held With Top Aides at a Military Facility After Army Suspends Constitution," Al Jazeera, July 4, 2013)).

Ordering Markets for Academic Knowledge Goes Global: Pablo Lerner on "Foreign Influences and 'Law Reviews Rankings' in Israeli Legal Scholarship "

The production of knowledge, especially among academics, is not simply offered for consumption.  Like all consumables, it is judged and valued in the market within which it is offered.  And again, like other consumables, the judging of academic knowledge products has become standardized, and its assessment routinized in ways that  both make it easier to understand what one is buying and also makes it more likely that all products will resemble each other. 

(Pix (c) Larry Catá Backer 2013)

One of the principle external consequences of this market for academic production, is that much of what is produced is predictably the same--and the market likes it that way.  Another is that producers are judged  (tenure and promotion) by their fidelity to the packaging (law review articles and books) and content standardization (its fidelity to the generally shared normative presumptions of the leading practitioners in the field) features of  knowledge commodities.  To that end, assessment structures are required not merely for the academic, but also for the secondary structures within which her status is itself assessed. (Cf. Backer, Larry Catá, Global Panopticism: States, Corporations and the Governance Effects of Monitoring Regimes. Indiana Journal of Global Legal Studies, Vol. 15, 2007). Within the law academy, principal among these are  systems for the review and ranking of law reviews--the publication spaces which serve as the market space within which legal academic knowledge is proffered for consumption. (Backer, Larry Catá, “Defining, Measuring and Judging Scholarly Productivity: Working Toward a Rigorous and Flexible Approach,” Journal of Legal Education 52(3):317-341 (2002)).

Pablo Lerner on the faculty at the College of Law and Business- Ramat Gan, School of Law will be presenting a very interesting paper, "Foreign Influences and "Law Reviews Rankings" in Israeli Legal Scholarship" at the Legal Education Mini Conference of the 10th Annual International Conference on Law 8-11 July 2013, Athens, Greece. Lerner suggests both the power of ranking in the construction of hierarchies of knowledge production and the disciplining of academics.  More importantly he suggests the way in which these systems are going global.  His suggestion for a "critical pluralist policy" is well worth considering carefully.

This post includes the Abstract, Background and Conclusion of that excellent paper. 

International Conference on “The Rule of Law with Chinese Characteristics in Transition”: Abstracts of Conference Papers

It was my great pleasure to participate in the City University of Hong Kong's Centre for Comparative and Chinese Law International Conference on “The Rule of Law With Chinese Characteristics in Transition” held 5-7 June 2013 at the Connie Fan Multi-Media Conference Room, 4/F Chen Yick-Chi Building on the campus of CUHK.  My great thanks to the Centre's director, Dr. LIN Feng, for organizing a great conference on a very current and important project. Co-organizers included the Chinese Journal of Law, Institute of Law, Chinese Academy of Social Sciences, Beijing.

(Pix (c) Larry Catá Backer 2013)

As described by Professor LIN,

The objectives of the conference include three facets generally. The first objective is to provide a platform for scholars from different areas, and make the dialogue much more diverse and fruitful. Accompanied with much more openness of Greater China, more and more dialogues are needed for understandings and agreements among one another. The theme on the rule of law with Chinese characteristics is such a one needed to be explored and discussed for the future of China.

The second is to focus on this theme from comparative perspectives, get consensus on the pros and cons of the features of the rule of law with the so-called Chinese characteristics in transition so as to keep these characteristics, follow the track of the rule of law and arrive at Chinese rule of law eventually.

The third is to bridge the communications between China (including Hong Kong, Mainland China, Macau and Taiwan), North America, Europe, Australia and other countries and regions, so as to make Hong Kong academia know much more about the recent intellectual developments in these relevant areas.

This post includes the abstracts of the papers presented at that conference and short bios of the conference participants.

Ruminations 50: Edward Snowden and Polycentric Global Governance Orders Beyond the State

The last several weeks have brought much attention to issues of the cyber warfare that governments have been waging  amongst themselves and with a in increasingly larger set of non state actors--individuals and organizations, whose interests the state deems threatening it its interests. 

(Pix ("Edward Snowden and the NSA files – timeline," The Guardian, June 23, 2013).)

What started as a concerted effort by Western States to discredit Chinese cyber espionage activities against public and private targets ("China's Cyber Hacking: Getting Ugly," The Economist, Feb. 23, 2013; Shane Harris, "China's Cyber Militia", The National Journal, May 31, 2008, updated May 29, 2013; David E. Sanger, David Barboza and Nicole Perlroth, "Chinese Army Unit Is Seen as Tied to Hacking Against U.S.," The New York Times, Feb. 18, 2013; Michael Riley & John Walcott, "China-Based Hacking of 760 Companies Shows Cyber Cold War,"  Bloomberg, Dec. 14, 2011) took an unexpected turn at the beginning of June 2013 when Edward Snowden fled to Hong Kong after revelations of massive United States programs of cyber monitoring by the US National Security Agency of activities of public and private institutions and individuals through its Prism program, among others (Glenn Greenwald, Ewen MacAskill and Laura Poitras, "Edward Snowden: the whistleblower behind the NSA surveillance revelations," The Guardian, June 9, 2013; "Edward Snowden and the NSA files – timeline," The Guardian, June 23, 2013).

Most analyses tend to fall within the ancient framework of state based international relations and law (e.g., Matthew Belvedere, "McCain: Russia's Denials on Snowden Like Cold War," CNBC, 25 June 2013; Rob Quinn, "US, China, Russia Brawl Over Snowden," Newser, 25 June 2013; Max Boot, "Snowden's Quest Isn't About Civil Liberties," Commentary, 12 June 2013).  Lost in the two dimensional and anachronistic traditional analysis is the role that may have been by non-state orders in developing a normative framework within which Snowden made his decision to leak, and the support network that was critical to the success both of the disclosures and to his avoidance, at least for the moment, of capture.  This essay suggests that the real lesson of the Snowden affair has little to do with leaking the Prism program, something that people with no access to official documents could have easily surmised in any case.  The real revelation of the Snowden affair is the power and scope of non-state actors on the international stage.  

Beth Farmer on the Chinese Commerce Ministry's Interim Regulations on Standards for Simple Mergers

My colleague, Beth Farmer has written an excellent analysis of the new Chinese interim regulations on standards for simple mergers. S. Beth Farmer, "MOFCOM Publishes Interim Regulations on Standards for Simple Mergers and Requests Public Comments,"  Competition Policy (June 18, 2013).

 (Pix from Penn State Law Website.)

Professor Farmer’s research interests include U.S. and foreign antitrust and trade regulation law, issues of federalism, and comparative competition policy. She has served as a non-governmental advisor and rapporteur for the International Competition Network annual conferences in 2010 (Istanbul) and 2009 (Zurich) and is currently working the Agency Effectiveness Working Group on a chapter for the Competition Agency Practices Manual that will address agency prioritization and strategic planning, project management techniques and project evaluation. has written an excellent analysis of the new Chinese interim regulations on standards for simple mergers.

I have included the Introduction, and Background Sections.  The entire essay may be downloaded through the Social Science Research Network website: HERE. 

The Role of the Chinese Communist Party in Business Enterprises--Law, Politics and Policy in the Construction of a Global Political Economy With Chinese Characteristics

I am starting research on the role of the Chinese Communist Party within private and public companies in China, and eventually, on the role of the CCP in Chinese companies operating abroad. The object is to try to understand the way in which the separation of powers within the Chinese constitutional framework--administrative power in state organs and political authority in the CCP--may be contributing to a distinct evolution of relationships between traditionally constituted private and public power. This has implications both for the interactions between public and private regulatory systems but also to the evolution of connections between global and domestic regulatory regimes.

 

(Pix (c) Larry Catá Backer 2013)

 This post includes a report by Shan Gao, an SJD candidate at Penn State that proposes some preliminary ideas about the connection between state, Party and business in China as a matter of law and policy. .

On the Relationship Between the Chinese Communist Party and Non-State Enterprises--Translation of CCP Central Committee Policy “Opinions on Improving and Strengthening Party Organization’s Construction in Non-SOEs (Temporary)”

The relationship between Communist Party and State has been the object of substantial work among Chinese and foreign academics.  But perhaps more interesting is the emerging relationship between the Chinese Communist Party and private enterprises operating within the parameters of Chinese socialism.  This presents not merely another facet of law with Chinese characteristics, but also another aspect of the way in which polycentricity has become more naturalized even within the domestic legal orders of strong states.

(Pix (c) Larry Catá Backer 2013)

I have posited that the old boundaries between public and private law have been giving way to new and more complex polychromatic relationships between state and other transnational enterprises, principally those operating in corporate form. (Backer, Larry Catá, "The Structure of Global Law: Fracture, Fluidity, Permeability, and Polycentricity," 17(2) Tilburg Law Review 177-199 (2012). Chinese state and Communist Party authorities have begun to act on this understanding, both in the construction of internal policy and in the development of policy for the effective intervention int he construction of mulch-sourced governance frameworks.Patrick Boehler recently reported that "Beijing has for the first time established an advisory council of multinational heavyweights to help the leadership keep a finger on the pulse of major corporations in vital industries. . . .  The mechanism will gove Bejing a platform to directly lobby influential multinational leaders across different sectors in future trade disputes."  Patrick Boehler, "Beijing Sets Up Multinationals Advisory Body," South China Morning Post, June 7, 2013.

This approach stands in marked contrast to similar efforts to leverage international softy power by Norway. (Backer, Larry Catá, Sovereign Investing and Markets-Based Transnational Legislative Power: The Norwegian Sovereign Wealth Fund in Global Markets 29 American University International Law Review – (forthcoming 2013)(November 18, 2012). Yet in both cases, the state is seeking to leverage public power through private markets.  In China, as in Norway, that leveraging involves active participation i corporate governance. While the Norwegians pursue this goal through their active shareholder policy, the CCP has deepened their policy of integrating Party work and education within corporate governance.  In this way, state and enterprise are connected seamlessly through the mediating force of the CCP, the way in which the Party stands as the nexus poiint between domestic and foreign policy. (Backer, Larry Catá and Wang, Keren, 'What is China's Dream?' Hu Angang Imagines China in 2020 as the First Internationally Embedded Superpower (February 23, 2013). Consortium for Peace & Ethics Working Paper No. 2013-2). But in the case of enterprise power within globalization, that seamlessness requires recognition of distinct governance spheres, one public and the other private.

I will be writing more about this in the context of the Chinese system in future posts.  In this introduction, I present a translation of a basic document of CCP policy--the “Opinions on Improving and Strengthening Party Organization’s Construction in Non-SOEs (Temporary)” People’s daily 2012 May 25th.

New Paper Posted: "State and Party in the Scientific Development of a Legitimate Rule of Law Constitutional System in China: The Example of Laojiao and Shuanggui"

The City University of Hong Kong's Centre for Comparative and Chinese Law is hosting an International Conference on “The Rule of Law With Chinese Characteristics in Transition” to be held 5-7 June 2013 at the Connie Fan Multi-Media Conference Room, 4/F Chen Yick-Chi Building on the campus of CUHK.  My great thanks to the Centre's director, Dr. LIN Feng, for organizing a great conference on a very current and important project. More on the conference in a future posting.

(Pix (c) Larry Catá Backer 2013)

I will be presenting a paper at that conference, co-authored with Keren Wang, a PhD candidate at  Penn State, which we have titled "State and Party in the Scientific Development of a Legitimate Rule of Law Constitutional System in China: The Example of Laojiao and Shuanggui," which considers the constitutionality of extra-constitutional or extra-legal detentions undertaken by the state (in the case of laojiao “劳动教养”) and by the Chinese Communist Party (in the case of shuanggui "双规").

The conference draft is now available through the Social Science Research Network (SSRN) HERE and the abstract follows below. We would be grateful for comments and suggestions. 

The PowerPoint of the presentation (in English and Chinese) is available HERE or HERE.