Ruminations 59: On the Follies of Using Criminal Contempt Against Religious Dissenters; Ought this to be a Question of Legal Capacity?

(© Carter County Detention Center via AP This Thursday, Aug. 3, 2015 photo made available by the Carter County Detention Center shows Kim Davis. From  Adam Beam, Kentucky clerks to license marriages as their boss is jailed, AP through MSN, Sept. 3, 2015)

It was expected that the U.S. Supreme Court decision in Obergefell vs. Hodges would produce push back along religious lines.Many across the globe have been following what has become the spectacle of an elected official of the state of Kentucky refuse to abide by the Supreme Court's interpretation of the scope of her duties--in this case to issue marriage licenses to same sex couples (see here).   

Most people seem to agree that the county clerk, Kim Davis, ought to be required to fulfill the functions of her office.  Many probably believe that the contradictions between the duties of the office and her religious beliefs should have been resolved by her resignation--thereby preserving her beliefs intact and not interfering with the beliefs of others now entitled to protection.  

But that is not the way events have progressed.  Having been abandoned by the courts to which she turned for the vindication of her substantive right to either (1) assert a duty to avoid application of a constitutional interpretation and any law grounded therein which she believes is unconstitutional (compliance with which would force her to violate her oath of office); or (2) assert a right to dissent from the law as interpreted by the Supreme Court, absolving her from issuing marriage licenses that violate her religious beliefs, Ms. Davis chose to engage in an act of civil disobedience.  She chose to defy court orders to do her duty as the elected clerk and issue marriage licenses. 

To no one's surprise, this has infuriated the judge whose order she defies now on religious grounds. Because she both refused to issue licenses or to allow officials in her employ to do so, the judge incarcerated Ms. Davis. (Adam Beam, Kentucky clerks to license marriages as their boss is jailed, AP through MSN, Sept. 3, 2015). 

This post considers the consequences  for the continuing national discussion about the relationship between the state, the individual, religious belief, and religious institutions. My sense is that the court, while technically within its authority to use its power of contempt, undermined its authority by doing so.  It might have been better, and especially in cases involving religious dissent, to consider the legal capacity of the actor in her ministerial role rather than asserting a power of contempt over the person for the exercise of her personal religious convictions. 

New Paper Posted: Regulating Multinational Corporations--Trends, Challenges and Opportunities

(Pix © Larry Catá Backer 2015)

I have been considering issues of globalization as it affects governance of multinational or transnational enterprises. The issue presents complexities not merely because regulation requires coordination among states seeking to regulate the transnational activities of enterprises. Problems are compounded because the object of regulation--entities--may prove to be less useful targets of regulation than the processes of which they form a part. But states do a poor job of regulating production chains or of treating the issue of regulation as one of systems management. More importantly, perhaps, the logic of the state system itself likely dooms substantially coordinated or unified approaches to regulation unlikely.

I have prepared an essay that considers some of these issues: Regulating Multinational Corporations--Trends, Challenges and Opportunities (Coalition for Peace & Ethics Working Paper 8/1 (August 2015).

The abstract follows and may be accessed via SSRN HERE.

Comments and discussion welcome. 

The Chinese Communist Party in Chinese NGOs

(Pix © Larry Catá Backer 2015)

We have been considering the regulatory universe for civil society in China in light of recent efforts to modify regulation of foreign NGOs operating  in Mainland China /(see, here, here, here, and here). 

But much of this analysis, as is customary in the West, sometimes stubbornly refuses to acknowledge the importance of the role of the Chinese Communist Party (CCP) within this architecture.  That stubbornness, and the analytical blindness that follows, is deeply rooted in the conceptual framework of western analysts, who may transpose their own ideological framework when considering Chinese approaches to law and governance.  That transposition makes assigning a role for the Chinese Communist Party in the structure of the administrative apparatus difficult conceptually.  That difficulty, in turn, flows both from an inability to understand an apply Chinese Leninist notions and to reject the legitimacy of those notions (and thus the value of considering them in analysis). What ever one thinks of Party-State systems, and whatever one thinks of Leninist organizational principles, the construction and operation of constitutional states, that is the reality of China, one one that requires acknowledgement even by those whose personal or national political preferences run in other directions. 

This is especially the case, when considering the organization and operation of Chinese civil society.  Conceptually, civil society necessarily must flow from, and be legitimated only in connection with, the leadership of the vanguard Party (the CCP). Since collectivity is central to Leninist notions of democracy (see here, discussed here), and since the collective is represented by  the CCP, no civil society organization, under this theory, may exist autonomously of the CCP, at least to the extent of the power of the CCP to assert its leadership role in their activities.  These principles apply as well to the organization of other autonomous collectives--for example corporations, which can exist apart from, but still connected with, the CCP (see here and here). The principle is political--grounded on the core ideal of the CCP as representative of the state, people and society (e.g., Sange Daibiao 三个代表 (the CCP as the representative  for the development of productive forces, advanced culture, and the fundamental interests of the broadest masses of the people) discussed here).

These ideological foundations have also found their way into the management of Chinese civil society.  This post considers some of the ways in which the CCP asserts its leadership authority within Chinese civil society organs.  Prepared by my graduate student Shaoming Zhu (Penn State SJD expected), in a Coalition for Peace and Ethics Working Paper (No. 8/3 (August 2015), entitled, The Chinese Communist Party in Chinese NGOs. Considered are (1) the Regulation of Leading Party Members' Groups of CCP (Trial Implementation) 中国共产党党组工作条例（试行 ); (2) Opinion on strengthening negotiation in urban and rural communities 关于加强城乡社区协商的意见; (3)   Overall Programme of the Separation of Administrative Organs and Industry and Business Association  行业协会商会与行政机关脱钩总体方案; (4)  nterim Provisions on the Management of Leading Personnel in Public Institutions 事业单位领导人员管理暂行规定； and (5） Guidance to the Pilot Work of Further Promoting the Construction of Rural Community 关于深入推进农村社区建设试点工作的指导意见； 安定.

Portions of the Working Paper and some comments follow. The full Working Paper may be accessed here.

Posted to SSRN: "Essay: Considering a Treaty on Corporations and Human Rights"

(Pix © Larry Catá Backer 2015)

In the run-up to the 2015 United Nations Forum on Business and Human Rights to be held this November in Geneva, the issue of a comprehensive treaty for business and human rights will no doubt be at the center of discussion.      

The  discussion around the current effort to think through a framework for approaching a comprehensive Business and Human Rights Treaty is engaging key stakeholders in a high stakes struggle over the narrative of business and human rights and the course of development of governance structures relating to the human rights related conduct of business within global production chains. Most discussions start from the premise that a treaty is either essential or that it is not.  These then center issues of treaty content or treaty alternatives. On the one hand, many important civil society actors, and a group of developing states, have invested a tremendous amount of effort to move the discussion of the regulation of MNEs back into the public sector, and within that sector, to discipline that discussion through the mechanics of international lawmaking.  On the other are those, developed states and MNEs along with other stakeholders, who have invested efforts in the construction of multiple but coordinated governance systems in the public, private, legal and societal spheres, and these around the UN Guiding Principles. 

It might be useful, before we are plunged back into those frameworks for discussion to take a step back and consider the idea of the treaty itself. It is in that context that I examine the current move toward treaty making as the means for structuring MNE governance beyond but also within states in a public law framework. 

The paper, Essay: Considering a Treaty on Corporations and Human Rights: Mostly Failures But with a Glimmer of Success, may be accessed here.  The abstract follows.

Refusals to Issue Marriage Licenses to Same Sex Couples on Religious Grounds--An American Constitutional Conundrum and the View From the European Court of Human Rights

(Pix © Larry Catá Backer 2015)

The U.S. Supreme Court decision in Obergefell vs. Hodges has produced an expected push back along religious lines. And it once again pushes the political organs of society to examine the elasticity of the U.S. Constitution's Free Exercise Clause. The problem, of course, arises from the judicial determination, made nearly a generation ago, and written into some federal law, that effectively provides religious dissidents an "opt out" of civil law on the basis of religious objection. Not that this somewhat organic effort to create a workable settlement for sectarian differences and ambitions (that is for ambitions to control the societal conversation about conduct management through law) is necessarily wrong or wrongheaded (though many object to the form, scope and direction of the settlement). But it does present the government with a series of conundrums, especially relating to its own internal operations. In that sense it touches on a very delicate point--the power of religious free exercise to affect the order, organization and operation of the state. To the extent it does, it appears to invite objection on the grounds that such accommodation effectively establishes religion within the heart of the state--in its government. And thus the American conundrum.

The setting for the resolution of this conundrum arises from within the lower and most ministerial of the rungs of government administration within the States of our federal union. The clerks of several jurisdictions, most famously now those of the state of Kentucky, has declared their refusal to perform their obligations to issue marriage licenses to same sex couples. That objection is not grounded on the power of the state to issue such licenses, or of the right, under the secular laws of Kentucky (now mandated in a sense by federal constitutional guarantees) of same sex couples to marry. Rather is is grounded int he personal right of individual clerks to avoid complying with their duties of office on the basis of personal religious objection.

Rowen County clerk Kim Davis, who objects to gay marriage for religious reasons, asked the nation's highest court Friday to grant her "asylum for her conscience." . . . . She stopped issuing all marriage licenses in the days after the Supreme Court's landmark decision. . . . A federal judge ordered Davis to issue the license and an appeals court upheld that decision. . . . Forcing her to abandon her Christian principles and issue licenses could never be undone, her attorney, Jonathan D. Christman, with the Christian law firm Liberty Counsel, wrote the court. (Kentucky Clerk Asks Supreme Court to Intervene in Gay Marriage Case, Associated Press via NBC News, September 1, 2015)

That plea was rejected by the Supreme Court on August 31, 2015. "Davis is now faced with a lower court order that her office begin issuing licenses effective Monday. The order marks the first time the issue of same-sex marriage has come back to the justices since they issued an opinion last June clearing the way for same-sex couples to marry nationwide" (Ariane de Vogue and Jeremy Diamond, SCOTUS: Kentucky clerk must issue same-sex marriage licenses, CNN Politics, August 31, 2015). She continues to refuse to issue marriage licenses as of September 1, 2015 (Kentucky Clerk Again Denies Gay Couples Marriage Licenses, The New York Times, Sept. 1, 2015 ("According to news reports on Tuesday, Ms. Davis has again refused to issues marriage licenses to same-sex couples.").

Whatever the decision of the courts, the European Court of Human Rights has also recently had cause to consider similar claims under the protections of the European Convention for the Protection of Human Rights and Fundamental Freedoms. This point includes relevant text of a recent decision of the European Court of Human Rights, Eweida and Others v. The United Kingdom (May 27, 2013). In which the Court rejected, under the European Convention, similar claims on the part of government employees.

The Regulatory Architecture of Civil Society and NGOs in China

(Pix © Larry Catá Backer 2015)

The regulation of NGOs in China has tended to be a backwater in the consciousness of Westerners; unless foreign NGOs are the target of regulation.  And indeed, Western civil society became quite animated in the wake of Chinese proposals to substantially amend their foreign NGO regulations.  I have been considering both Western reaction to Second Draft  of the  People's Republic of China Foreign Non-Governmental Organizations Management Law (Draft) (Second Reviewed Draft) (中华人民共和国境外非政府组织管理法（草案）（二次审议稿）, and comments thereto (see here, here, and here).

But the draft Foreign Non-Governmental Organizations Management Law (Draft) (Second Reviewed Draft) (中华人民共和国境外非政府组织管理法（草案）（二次审议稿) is only the tip of an administrative and regulatory architecture that has been built for the management of civil society in China.  

Shaoming Zhu (绍明) (Penn State SJD expected) has prepared a working paper that examines this regulatory architecture and points to recent changes--Shaoming Zhu, "The Application of Laws against Chinese NGOs --Research on NGO in China, Coalition for Peace & Ethics Working Paper 8/3 (August 2015).  As one considers the role of NGOs in China, and not just that of foreign civil society within that country, this Working paper may prove useful.  Portions of the working paper follow.  The paper may be accessed here. 

On Building Vanguard Party Organization--Thoughts on "Several Provisions on Advancing Capacity To Promote And Demote Leading Cadres (Provisional) 推进领导干部能上能下若干规定（试行）"

(Pix © Larry Catá Backer 2015)

In an earlier post (Evolving Leninism in the Chinese Communist Party?: Reforming Mechanisms for Intra-Party Discipline) I considered the evolution of intra-Party disciplinary mechanisms in China. The changes are interesting not merely from the technocratic perspective (that is do they make good governance sense?) but also from the theoretical perspective (are the changes consistent with and advance the development of Marxist Leninist thought and practice consistent with Chinese characteristics?).

These changes are part of a comprehensive reform plan laid out at the third plenary session of the 18th CCP Central Committee in 2013 which reflected earlier actions of the Central Commission for Discipline Inspection. Among the most important of these organizational developments has been the  Several Provisions on Advancing Capacity To Promote And Demote Leading Cadres (Provisional) 推进领导干部能上能下若干规定（试行）.  CHINESE ORIGINAL HERE. These were unveiled and to be made effective July 31, 2015. 

The policy underlying these provisions are old--they can be traced back to Deng Xiaoping's statement, "Questions Concerning Cadres of the Party in Power," The Selected Works of Deng Xiaoping Vol. I (Nov.29, 1962).  This post includes a translation of Several Provisions on Advancing Capacity To Promote And Demote Leading Cadres (Provisional) 推进领导干部能上能下若干规定（试行）and commentary.

Part 50: (The Self Coupled and Satan, The Tree of Knowledge, and the Education fo 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 in which  Flora Sapio responds and considers the Devil and the constitution of free will.  Larry responds in turn, suggesting that the Devil is, indeed, in the apple consumed in the Garden of Eden, or that ignorance is bliss in the sense that it permits a communally constituted individualism..


Contents: HERE.

2015 United Nations Forum on Business and Human Rights: Draft Programme Outline Posted

I have been writing about the United Nations Forum on Business and Human Rights. (see here, here, here, and here). The Forum has been an important site for the meeting of key international stakeholders who tend to control the discussion about business and human rights in the international sphere. If for no other reason, that is reason enough for sustained attention to its proceedings.

The Secretariat of the Forum on Business and Human Rights has recently announced the publication of the draft program for the 2015 Forum on Business and Human Rights to be held in Geneva on 16-18 November 2015.  The announcement in English, French and Spanish follow. 

Part 49: (The Self Coupled and Satan--Harm, Pragmatism and the Social 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 in which  Betita Horn Pepulim responds to Flora Sapio and  Larry Catá Backer on pragmatism and the societal self, and Larry responds in turn, suggesting that even the most personal acts of the self, selfishness, can be understood as a societal concept not arising from but only through the self.


Contents: HERE.