Part 24: (Self Love, Compassion and the Self): Dialogues on a Philosophy for the Individual

(Pix (c) Larry Catá Backer 2015)

With this post Flora Sapio and I (and friends from time to time) continue an experiment in collaborative dialogue. The object is to approach the issue of philosophical inquiry from another, and perhaps more fundamentally ancient, manner. We begin, with this post, to develop a philosophy for the individual that itself is grounded on the negation of the isolated self as a basis for thought, and for elaboration. This conversation, like many of its kind, will develop naturally, in fits and starts. Your participation is encouraged. For ease of reading Flora Sapio is identified as (FS), and Larry Catá Backer as (LCB).

The friends continue their discussion around the problem of the individual and the liberation project.  Here Flora Sapio (FS) responds to earlier provocations of Betita Horm Pepulim (BHP), Larry Catá Backer (LCB) and Paul Van Fleet (PVF). Her focus, compassion, narcissism and the self.

Contents: HERE. 

Venkatesh Nayak on Extra-Judicial Killings in India

(Pix (C) Larry Catá Backer 2015)

Venkatesh Nayak, Programme Coordinator, Access to Information Programme, Commonwealth Human Rights Initiative in New Delhi, has requested the circulation of the following essay, entitled, Recent extra-judicial killings in Andhra and Telangana: A compilation of norms regarding use of force and investigation and emphasising people's right to know the truth.

The essay was produced in the wake of two killing events, in the first police killed 5 people in their custody purportedly when one sought to grab a firearm with the intent to flee, and the second involved the killing of 20 people, alleged to be smuggling, in the course of their apprehension. The purpose of the essay is not to assess whether the use of lethal force by the police was justified, but rather whether these new killings suggest that the carefully built legal structures for managing the use of force may be undermined in a number of ways.

The essay follows. For those interested in the subject it provides a wealth of comparative and original source material.  It also throws an important light on the issue of the structures for constraining the use of police power in states that may be useful, especially perhaps for those confronting similar issues in the United States (see, e.g., here and here).

Investment Treaty Arbitration--A Step Forward Toward Global Trade Constitutionalism, a Fatal Erosion of Sovereignty and Democratic Order, or Something Else?

 (Pix (c) Larry Catá Backer 2015)

The move toward a global economic order, sitting atop and within the traditional system of states, one grounded on free movement of capital and investment, and constructed through a complex web of inter-state bi-lateral and multi-lateral agreements that have created a network of customary norms, has produced conflict and contradiction.  The conflict arises from the polycentricity (here, here, here, and here) that is produced when multiple systems of governance are established within a single territorial unit, a domestic legal order and an internationalized order grounded in the relationships between the state (as economic actor) and foreign enterprises (investors). The contradiction arises from the same source--states, according to their traditional organizational logic, may not be coherently governed where a constitutionally based domestic legal order is not placed atop a hierarchy of law and societal norms that also produce governance effects.  And yet emerging polycentric governance, represented both by the autonomy of corporate administrative structures across states, and of international legal regimes with binding effects on states and the individuals under their control, threaten not just that traditional structure of legal hierarchy, but with it the role of sovereignty (grounded in the principle of democracy, however that term is understood) as the basis of legitimate assertions of regulatory power.  (For more here).

Nowhere are these conflicts and contradictions more apparent (and more threatening) than in the context of international investment treaties and especially the systems of dispute resolution created to enforce their obligations on state and non-state parties.  These treaties, now creating an effectively coherent web of global regulation with its own substantive normative structures, is grounded on principles of legal internationalization, legal stabilization, guarantees, and autonomous institutions of dispute resolution, by their very nature  (and with the consent of the state parties) constrain the unimpeded authority of the state to exercise an unrestrained sovereignty, and frame the way that domestic legal orders are applied through the mechanisms of dispute resolution structures not attached to any state apparatus (usually in the form of their national judicial institutions). While states have been consenting to constraints on sovereignty for centuries through treaties, the sovereignty constraining (or directing) effects of these webs of international investment treaties appear to be a step too far for some.  Or, perhaps better put, they appear threaten the enterprise of legal power hierarchies and in that way diminish states in their ability to project their national political orders beyond or through their borders.

The conflicts and contradictions attendant on the construction of legal regimes of global trade (grounded in emerging consensus norms among states and other actors participating therein) ) atop (or beside or beyond) the traditional architecture of law (and its substantive constraints grounded in democracy, rule of law, etc.)   They have also have presented themselves full blown in the context if the battles over the nature, character and scope of a set of multilateral trade  agreements that the United States has been seeking to establish among the largest of its trading partners (and excluding China, India, Brazil and Russia, among others, political ramifications discussed here). These agreements, the the Trans Pacific Partnership (TTP and here) and the Transatlantic Trade and Investment Partnership (TTIP and here). These multilateral trade agreements would incorporate a form of the current approach to legal internationalization and dispute resolution through supra national mechanisms that already form part of the bi lateral trade agreements between most states (including the United States). "Such “Investor-State Dispute Settlement” accords exist already in more than 3,000 trade agreements across the globe. The United States is party to 51, including the North American Free Trade Agreement." (Jonathan, Trans-Pacific Partnership Seen as Door for Foreign Suits Against U.S.,  The New York Times, March 25, 2015). The expansion of that bi lateral trade  and investment model presents the United States with a set of hard choices  at the heart of the contradictions of emerging global systems within the traditional parameters of state ideology.  And those hard choices presented by the problem of investor state dispute resolution mechanisms are precisely that which has now generated a spirited debate within the United States.

At one end, a group of academics has released a letter through the Alliance for Justice directed to high United States officials (Law professors’ letter opposes potential trade agreement provisions that could allow multi-national corporations to bypass U.S. courts). The letter (available here) seeks to convince officials negotiating these agreements to oppose the inclusion of Investor-State Dispute Settlement (ISDS) provisions in these agreements.  "“It is fundamental to our democracy that our justice system treats all equally, regardless of wealth or power,” said AFJ President Nan Aron.  “When laws and regulations protecting everyday Americans are at issue, any challenge should take place in our courts, not before a private tribunal.”" (Press Release).

At the other, a responsive letter (An open letter about investor-state dispute settlement (April 2015)) was released shortly thereafter by another group of academics.  This letter urged caution in opposition and urged officials to avoid stripping ISDS provisions from trade agreements. "The counter‐point is not provided to provide a definitive conclusion about the proper form of dispute settlement. . . . Rather, the letter is designed to frame the discussion, to offer accurate information to inform the public, and to enable policy makers to make well‐informed choices." (Press Release). The letter noted: "Far from undermining the rule of law, investment treaty arbitration ensures that states honor their obligations, thereby reinforcing the rule of law." (Press Release).

For one side, emerging trade global trade and investment governance regimes, though spawned through states are now advanced enough to threaten sovereignty and pose a threat to the ability of states to protect their citizens and preserve the core values of their constitutional orders.  For the other, states remain intimately involved in the construction of systems of coherent  norms that make it possible to enhance the free movement of goods, capital and investment between them in which the core values of the constitutional traditions of participating states are preserved. 

Both letters are reproduced below.

Plugging Holes in Whistle Blowing Regimes--The SEC Moves to Protect its Own Turf

(Pix (c) Larry Catá Backer 2015)

I have been considering whistle blower statutes and the cultures they give rise to within structures of economic regulation in the United States. Several years ago I noted that "the most profound movement, at least in terms of the management of the culturally encouraged behavior norms among the "masses" within economic society, has been the move toward an informant culture. In terms of behavior expectations, governments have for some time been first been making a space for and now are encouraging employees to observe their colleagues and report bad behavior to superiors. Whistle blowing, at least in the economic sphere is viewed as relevant to the preservation and maintenance of the culture of the market. However, the approach to whistle blowing at the federal level has been somewhat tentative." (Are We Now a Nation of Informants? Deepening the Culture of Whistle-Blowing Through the Federal Securities Laws).

And not just at the federal level. For example, the Pennsylvania Whistleblower Law (43 P.S. Sec. 1421 to 28) protects employees against retaliation for good faith (understood as reasonable cause) reporting of waste or wrongdoing, but defines wrongdoing narrowly to include only violation of law designed to protect the public interest and not merely technical or minimal in nature. They offer less than perfect protection. See, Scott James Preston, Whistleblowing in Intercollegate Athletics, University Business, March 28, 2012, (discussing Glenn Hedden v. Kean University, Case No. L 002278-11 (N.J. Super. Ct., complaint filed June 13, 2011). Indeed, the tentativeness produces a regime in which whistle blower provisions assume the character of gesture more than of substantive protection. Thus, in the case of the transposition of federal whistle blower models to universities, the scope of such protection is deceptive for employees of universities who work on a federal grant, subgrant or subcontract, building traps for people who mistakenly believe they "whistleblow" under its protection. This suggests that while this provision serves as a lovely gesture, it provides substantially less robust protection for employees seeking to use its provisions. (On the Limited Promise of Whistle Blower Protection Statutes for University Employees--Narrow Scope and Traps for the Unwary).

The federal government has in place a host of whistle blowing provisions more of less drawn along similar lines. The whistle blowing provisions of federal securities laws, augmented with the passage of the Sabanes Oxly Act, provides a model of both its benefits and its substantial weaknesses and traps for the unwary. (Backer, Larry Catá, "The Sarbanes-Oxley Act: Federalizing Norms for Officer, Lawyer and Accountant Behavior." St. Johns Law Review 76:897-952 (2002) at 936, 939-40). But those provisions have proven to be as tricky as those developed for states and universities. (See here, here here and here). One of the most interesting set of traps of those that exist at the margins of the legal requirements and constraints written into the Whistle Blower provisions.

The SEC has begun to tackle some of the more obvious issues recently, the use of employee confidentiality agreements to chill the ability of employees to exercise whistle blowing powers. This post considers recent action by the SEC.

Announcing Publication of "Moving Forward The U.N. Guiding Principles For Business And Human Rights"

(Pix (c) Lartry Catá Backer 2015)

I am happy to announce publication of my article, "Moving Forward The U.N. Guiding Principles For Business And Human Rights: Between Enterprise Social Norm, State Domestic Legal Orders, and the Treaty Law that Might Bind them All," which appears in the Fordham International Law Journal 38:457-542 (2015).

The article may be accessed here.

The abstract follows.

Venkatesh Nayak on Increasing Government Resistance to Transparency in India Under India's Right to Information (RTI) Law

(Pix (c) Larry Catá Backer 2014)

Venkatesh Nayak, Programme Coordinator, Access to Information Programme, Commonwealth Human Rights Initiative in New Delhi, has requested the circulation of the following essay, entitled "CIC's latest Annual Report shows dwindling RTIs and increase in rejection rates in many Ministries under the Central Government." It treats ramifications of a more vigorous resistance of a large range of Indian ministries to reporting under the Right to Information Law.

The essay touches in a very useful way on the way in which even more broadly applicable efforts at transparency can be undermined by a concerted, even f uncoordinated, effort at resistance. The cost of resistance is usually much small on the state than the cost of vindicating rights to information on the large number of civil society elements seeking information. It is interesting to note that universities have been listed among those institutions not filing their RTI reports. The result is the appearance of transparency even as it is effectively undermined. The essay follows

Evolving Leninism in the Chinese Communist Party?: Reforming Mechanisms for Intra-Party Discipline

(Pix (c) Larry Catá Backer 2015)

The Chinese Communist Party (CCP) has been moving more aggressively against corruption within the Party and among officials. That effort has been greeting with substantial popular support (see here and here), but also generated some criticism (see here and here). 

The efforts at disciplining CCP members has followed a traditional form, substantially unchanged from its historical roots in the practices of European Marxist Leninist Parties.  But change has been coming to the CCP. And it appears that some of these changes are structural. The structures of reform, though, have been showing signs of potentially profound change for some time, representing a dynamic evolution of the Leninist model.  See Backer, Larry Catá and Wang, Keren, The Emerging Structures of Socialist Constitutionalism with Chinese Characteristics: Extra Judicial Detention (Laojiao and Shuanggui) and the Chinese Constitutional Order,  Pacific Rim Law & Policy Journal 23(2):251-341 (2014).

Recently the CCP announced a reorganization of the institutional structures of CCP discipline--moving from a hierarchical model to one in which the institutional hierarchy of the disciplinary apparatus appears to have become more autonomous and detached from the core structures of CCP hierarchy. 

This post considers the implications of this change for the evolution of the Leninist character of the CCP and its efforts to re-frame the structures of its vanguard role to better respond to Chinese conditions. 

Part 23: (Self Love, the Natural Master and the Natural Slave?): Dialogues on a Philosophy for the Individual

(Pix (c) Larry Catá Backer 2015)

With this post Flora Sapio and I (and friends from time to time) continue an experiment in collaborative dialogue. The object is to approach the issue of philosophical inquiry from another, and perhaps more fundamentally ancient, manner. We begin, with this post, to develop a philosophy for the individual that itself is grounded on the negation of the isolated self as a basis for thought, and for elaboration. This conversation, like many of its kind, will develop naturally, in fits and starts. Your participation is encouraged. For ease of reading Flora Sapio is identified as (FS), and Larry Catá Backer as (LCB).

The friends continue their discussion around the problem of the individual and the liberation project, and particularly the problem of the individual self in which the friends touch on the issue of narcissism and the self. Betita Horm Pepulim (BHP)  responds to the points made earlier.

Contents: HERE. 

Part 22: (Self Love, the Natural Master and the Natural Slave?): Dialogues on a Philosophy for the Individual

(Pix (c) Larry Catá Backer 2015)

With this post Flora Sapio and I (and friends from time to time) continue an experiment in collaborative dialogue. The object is to approach the issue of philosophical inquiry from another, and perhaps more fundamentally ancient, manner. We begin, with this post, to develop a philosophy for the individual that itself is grounded on the negation of the isolated self as a basis for thought, and for elaboration. This conversation, like many of its kind, will develop naturally, in fits and starts. Your participation is encouraged. For ease of reading Flora Sapio is identified as (FS), and Larry Catá Backer as (LCB).

The friends continue their discussion around the problem of the individual and the liberation project, and particularly the problem of the individual self in which the friends touch on the issue of narcissism and the self. Flora Sapio responds to the points made earlier and the friends are joined briefly by Yvonne Love (Penn State Abington) who comments on points mentioned earlier by Flora Sapio.

Contents: HERE. 

On the Importance of Ideology as a Constraint--Paper posted on "The Cuban Communist Party at the Center of Political and Economic Reform: Current Status and Future Reform"

The December 2014 announcement of the efforts to normalize relations between the United States and Cuba set off a flurry of speculation.  See here, and here.

(Pix (c) Larry Catá Backer 2015)

The efforts at normalization intensified analysis of the recent efforts at substantial reform of macro-economic policy in Cuba and the restructuring of its approach to the regulation of economic life on the Island.  The efforts to move from a comprehensive and tightly managed control economy to something else has proven difficult for the Cubans. 

In a paper to be published with the  Northwestern Interdisciplinary Law Review (vol. 8), The Cuban Communist Party at the Center of Political and Economic Reform: Current Status and Future Reform, I suggest  the ideological roots of the difficulty of Cuban economic reform and suggest the ways in which such reform might be deepened without abandoning the current political structure within which the state is organized.   The abstract follows. The paper may be accessed here.