《红旗文稿》2024年第23期 Red Flag Articles (2024:23): Understanding Socialist Modernization As an All Around Concept--Culture, Politics, Economics, and International Relations.

 

Pix credit here (Red loudspeakers are sounding through every home (1972))

 

Socialist (Chinese style) modernization has, in the new era of Chinese historical development, become a comprehensive subject. That is, socialist moderation has become an important means of rationalizing the entirety of the project, overseen by the Communist Party of China, to develop all of the productive forces of the Chinese nation toward the ends of establishing a communist society for the nation.  I have briefly suggested its constitutional dimensions (here), and also the fundamental importance of understanding modernization as a comprehensive approach to the understanding pf social forces, and its instrumentalization toward the fundamental goal (here, here, here, here, here, here, here, and here).

The current issue of Red Flag (or perhaps more comprehensively transliterated as Revolutionary Banner) Journal 《红旗文稿》2024年第23期 (on the semiotics of flags, banners and the like, see here),  includes a number of essays that again drive home this point. The table of contents (with links to the Chinese language essays) follows below. The issue starts with its key recommendations (本期重点推荐); it is then divided among the issue's key thesis (要论), and then its application to  three key areas of modernization; (1) politics (政治); (2) economy (经济); (3) culture (文化); and (4) international (国际).

There are four Key Recommendations 本期重点推荐 which are extracted from the essays published. First, Dong Yaopeng: New requirements of Chinese modernization for high-quality development of literature and art in the new era and new journey (董耀鹏：中国式现代化对新时代新征程文艺高质量发展的新要求); second Ren Youqun: Effectively promote the creative transformation and innovative development of China's excellent traditional culture (任友群：有效推动中华优秀传统文化创造性转化创新性发展); third, Xia Lixin: Strengthen the Party's overall leadership over education and build a high-quality party building system in colleges and universities (夏立新：加强党对教育工作的全面领导 打造高校高质量党建体系); and fourth Yin Qingshuang and Xiao Lei: Handle the relationship between government and market well (尹庆双 肖 磊：处理好政府和市场关系). Together they point to the focus of modernization which the issue emphasizes. These touch both on the rationalizing structures through which it is possible to frame modernization as a cultural artifact, but more important, as a language of perceiving and understanding the world the perfection of which must inevitably be framed within the discursive forms of modernization, and its consequences of the ordering of productive forces, including its fulfillment through markets and central planning. Of note is Dong Yaopeng ( 董耀鹏) and the application of the premises and style of high quality development at the heart of the 3rd Plenum's recommendations well beyond the traditional focus on economic activity traditionally understood. But also worthy of note is the importance of the modernization international that is increasingly subsumed within the discursive tropes of the concept of building a community of shared future for mankind and more recently of its fulfillment within the structures of the Global Development Initiative (以人类命运共同体理念引领“全球南方”团结合作 /赵恩德 韩海涛) [Leading the solidarity and cooperation of the "Global South" with the concept of a community with a shared future for mankind / Zhao Ende Han Haitao].

This is not the first time that Red Flag has emphasized the breadth of New Era Socialist Modernization with Chinese Characteristics (see, e.g., here (culture)). Nonetheless it is interesting for the effort to bring together--and order--several of the key functionally differentiated sectors around which New Era modernization is to be undertaken, and its emphasis on new or high quality production is developed and applied.

The table of contents, recommendations follow below in the original Chinese and in a cride English translation. 

Yang Chen, 'Is Chinese Law Prepared for AI Songs?”' (European Chinese Law Research Hub)

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 The folks over at the European Chinese Law Research Hub (with thanks to Marianne von Blomberg, Editor ECLR Hub, Research Associate, Chair for Chinese Legal Culture, University of Cologne) have posted  a marvelous new essay authored by Yang Chen (Assistant Professor, City University of Hong Kong, School of Law), Is Chinese Law Prepared for AI Songs?.' The paper is published in the Cardozo Arts & Entertainment Law Journal Vol. 42(2), 2024 (SSRN draft available here). 

Von Blomberg sets the stage:

You come across a new song, and the voice sounds familiar - is it a new piece of music by the artist you like, or is it AI improvising with the artist's voice? Yang CHEN from CityU Hong Kong inquires the Chinese Civil Code for the protections it offers to artists from being copied by AI. He then asks: Should not the co-producers of AI-generated "fan fiction" be protected, too?

The paper suggests the current conundrums of AI in the context of artistic production. This brings us squarely back to the first half of the 20th century, when the issue revolved around mechanical reproduction, and mechanical reworking of already produced artistic and creative work.   One finds oneself back in the world of Walter Benjamin (The Work of Art in the Age of Mechanical Reproduction), and of its late 1980s creative scream in William Gaddis, Agapē Agape (here).  Bug in virtual space the problem is compounded; one deals not merely with mechanical reproduction--for which the technologies of law were more or less put to the those of the reproduction technologies over which it sought to assert authority (of some kind)--but with a subjectivity that builds on itself virtually, a mimetic experience that starts with itself and goes elsewhere, either  through coded instruction or through the art of generative mimetic development. The technologies of law are not equipped for this exercise.  Still, human like to believe that it might be.  And because of the irrelevance of text to virtual spaces, law might still conceive itself an adequate tool for that effort. One one requires, and what Yang Chen makes inescapable, is a sense that virtual spaces will need coded law, and that this may in turn require a detachment of law from the human to match the detachment of the human from the virtual spaces within which it seeks to assert control (The Soulful Machine, the Virtual Person, and the “Human” Condition: An Encounter with Jan M. Broekman, Knowledge in Change: The Semiotics of Cognition and Conversion (Cham, Switzerland: Springer Nature, 2023)). The new frontier will require new technologies of law; and no one is really ready because those with authority remain comforted by the seeming stability, majesty, and power of a world that is quickly receding into an irretrievably dimming past. When all of this is wrapped in the language of property--and rights to its exploitation--the complications become more difficult. That difficulty is built, in turn, on the need to establish an edifice of a law of exploitation on a foundation of shifting multiple layers of virtual spaces that are themselves exploitable objects.

I am cross posting the essay below. The original ECLRH post may be accessed HERE. And as a plug for the marvelous work at the European Chinese Law Research Hub: if you have observations, analyses or pieces of research that are not publishable as a paper but should get out there, or want to spread event information, calls for papers or job openings, or have a paper forthcoming- do not hesitate to contact Marianne von Bloomberg.

Russians, "Settlers", and Corruption: The Norway Pension Fund Global Announces Three Decisions

 

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Recently, the Norway Pension Fund Global released its determinations involving three companies.  They are unremarkable other than as evidence of the consistency of the Norwegian state, through this instrumentality, of signalling its continued policies, under cover of international law and norms. Two recommendations were focused on facilitation of war or occupation with respect t which Norway chose this way to intervene--(1) Russia (facilitation of the Russian war effort through dual use goods), and (2) Jewish Israel (telecommunications that facilitate the Israeli war effort), One focused on the successes of the active shareholder principle in cases of corporate cultures of corruption (this time South Korea). These interventions do not break new ground but they are interesting all the same for the way in which they restate and apply the standards that have become part of the bedrock jurisprudence of the Ethics Council and its working style.

(1) Evraz Plc is excluded from the Fund’s investments due to an unacceptable risk that the company is contributing to serious violations of fundamental ethical norms. The Council considers that the risk that Evraz PLC is providing critically important steel to Russian weapon production to be unacceptable. The Council’s recommendation here:

Evraz PLC is listed on the London Stock Exchange with a major presence in Russia where the company, inter alia, produces steel. The Council`s inquiries have shown that Evraz PLC may be linked to the Russian defense industry as a supplier of steel which enables Russia to continue its unlawful war of aggression against Ukraine. The Council has therefore contacted Evraz PLC numerous times with questions concerning the company`s engagement with the Russian defense industry. The company has failed to reply to the Council`s queries. On this basis, and in light of the cases described, the Council considers that the risk that Evraz PLC is providing critically important steel to Russian weapon production, is unacceptable.

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Facilitation has become a potent theoretical vehicle for the rapid expansion of the concept of complicity from one narrowly constructed in law, to one that may reach to the ends of supply and production chains, and the regulator sees fit. In this sense there is a tight connection between compliance based regulatory structures like the EU Corporate Sustainability Due Diligence Directive and its related regulatory schemes with the notions of risk and responsibility crafted through an broadened notion of responsibility through facilitation. This connects Evraz to the Hyundai Engineering determination discussed below. The Council’s recommendation here. 

(2) Bezeq The Israeli Telecommunications Corp is excluded from the Fund’s investments due to an unacceptable risk that the company is contributing to serious violations of the rights of individuals in situations of war or conflict. Bezeq is an Israeli company that supplies telecommunications services to businesses and private individuals in Israel and the Israeli settlements in the West Bank.The Council's recommendation may be accessed here.

Bezeq is an Israeli company that supplies telecommunications services to businesses and private individuals in Israel and the Israeli settlements in the West Bank. The Council notes the company’s assertion that it also provides telecom services to Palestinian areas in the West Bank. However, the Council does not consider this to outweigh the fact that the company, through its physical presence and provision of telecom services to Israeli settlements in the West Bank, is helping to facilitate the maintenance and expansion of these settlements, which are illegal under international law. By doing so, the company is itself contributing to the violation of international law.

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This is perhaps the most interesting of the three cases precisely because of the way that the Ethics Council and the Norges Bank applied it balancing tests, in this case potentially creating greater challenges for the Palestinian households receiving service form Bezeq.  Much of the reasoning repeats the now well settled political decisions of the Norwegian state, translated, as is now expected ractice within the cultural realms of international relations, in a language of or subsumed within te linguistic patterning and meaning complexes of law One speaks most authoritatively nowadays when one invokes legal totems and wraps oneself within its constructed meanings (Ethics Council Recommendation, pp. 4-13). This os not to suggest right or wrong--only that this ritualization of legal invocation to leverage up political decisions has become the common parlance of public techno-bureaucratic elites , one that conveys a particular set of meanings and also of solidarity with a governance or elite community. ,In this case however this ritualized invocation becomes an essential element of the way in which the Norwegian state attempts to undertake, or better put, justify, a balancing that, in its own mind in aid of Palestinian liberation as they see it, they also are willing to tolerate a bit of Palestinian suffering. All for a good cause--to make the lives of demonized so-called settlers more uncomfortable (ibid., Section 5). The Jews have got to go for the preservation of a Jew free Palestine that as  a result of which will be incapable of being an apartheid State. The settlers, as a whole (for it seems Jews are incapable of individuality)  are no better than the liberation forces involved in "the terrorist attack on Israel on 7 October." To those grand ends in the service of a slew of international pronouncements around which the reasoning is wrapped, a bit of suffering for Palestinian may be a necessary predicate condition--at least from the comfort of Oslo. Who knows. perhaps this is a necessary tonic for a purified and Jew-free Palestine existing, in its own way, as a fully sovereign and autonomous State. alongside a multi-ethnic and multi-religious Israeli state.  That is a political decision well beyond my capacity to judge--and it certainly appears to be the consensus of those who are empowered to make good on their determination of the proper places and spaces for Jews and others in that small geographical space. What is interesting is the way in which law, legal forms, and the semiotics of their utilization in meaning making have become decisive elements in the transformation of the language of politics and policy. The rest is politics about which I have nothing to say here. Tthe Council’s recommendation here.
 

(3) The observation of Hyundai Engineering & Construction Co Ltd (HDEC) is discontinued, as the Council considers that the risk of gross corruption in the company’s operations no longer is unacceptable.
Please find the Council’s recommendation to discontinue the observation here.

HDEC is one of the largest construction companies in South Korea. In July 2021, the company was placed under observation based on allegations or suspicions of corruption in Algeria, South Korea and Indonesia in the period 2008–2018, as well as the company’s involvement in widespread bid rigging and illegal price collusion in South Korea between 2005 and 2013. The Council considered that HDEC had not taken the various allegations seriously enough and that much remained to be developed and implemented with respect to the company’s systems and procedures for the prevention and detection of corruption. Throughout the observation period, the Council has had the impression that HDEC’s efforts to prevent, detect and deal with corruption have steadily improved, and the Council’s assessment now is that the company seems to have put in place an anti-corruption system that, in most areas, aligns with internationally recognised recommendations. Also, during the observation period, the Council has not uncovered any new allegations of corruption relating to the company’s business.

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Here, compliance based monitoring is well illustrated.  Also well illustrated is the continuing merger of surveillance and compliance techno-bureaucracies within the administrative apparatus of states and the monitoring apparatus of large private companies.  This is a very necessary element, and a critical predicate, the successful transition from classical liberal democratic law state ideals, to those of the managerialism of micro-behaviors through interlocking networks of techno-bureaucracies, increasingly aided by machine learning, descriptive and predicative analytics (some of which increasingly self-generating). Agaun, there is no right or wrong, there is merely an inevitable movement that then challenges the very foundations of the idealized vision of liberal democratic accountability through other rituals (that of elections of representative with the authority to undertake effective governance), where the rituals of elections and representation become increasingly detached form the actualities of the exercise of power through discretionary decision making by techno bureaucrats, the foundational authority for which may lie in regulation, but the effective scope and parameters of decision making is embedded in the actualities of compliance.   The Council’s recommendation here. 

Just Released: "Transatlantic Relations Under the New European Commission"

 

 Happy to pass along the release of a new publication from the Wilson Center. This from Klaus Larres  who brought to to my attention:

The Global Europe Program of the Woodrow Wilson Center in Washington, DC, has just published a most interesting publication on "TRANSATLANTIC RELATIONS UNDER THE NEW EUROPEAN COMMISSION" with some very illuminating essays.
My own article deals with "EU POLICY ON CHINA." Please find the pdf attached and please see the link below.

In my column 'Understanding America', the German daily newspaper Koelner Stadtanzeiger has just published the essay "DIE HOFFNUNG AUF DAS ANDERE AMERIKA." Perhaps you'll find the op.ed. of interest. I have attached the pdf.

https://www.wilsoncenter.org/publication/transatlantic-relations-under-new-european-commission

 It includes a number of quite interesting essays. Robin Quinville's Introduction to the edition follows below.

"Investigating the Intelligence Community’s Conclusions on Anomalous Health Incidents: Is the Intelligence Community Hiding the Real Reason for This Phenomenon?" Interim Report by Chairman Rick Crawford of the Subcommittee on the Central Intelligence Agency of the House Permanent Select Committee on Intelligence U.S. House of Representatives

 

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 "The Subcommittee is aware that the IC continues to withhold valuable information from
the Subcommittee. For this reason, a final unclassified report cannot be issued at this time. In
addition, the Subcommittee plans to issue a classified report that explains why the Subcommittee finds the conclusions reached in the ICA dubious at best, and misleading at worst. It is not possible, in an unclassified format, to detail the full scale and scope of the Subcommittee’s investigation, as well as the findings that have resulted from this investigation. Nevertheless, it is the hope of the Subcommittee that this interim unclassified report will shed light on the need to better understand AHIs and the toll they have taken on the IC workforce. The Subcommittee will continue this investigation into the 119th Congress." ("Investigating the Intelligence Community’s Conclusions on Anomalous Health Incidents: Is the Intelligence Community Hiding the Real Reason for This Phenomenon?")

 

  I have been writing about so-called Havana Syndrome since shortly after it became a "thing" in 2017 (Cuba Sonic Weapons Affair). I have, from the first, suggested that the issue was far less about either the weapons (or as the Cubans euphemistically called them, the crickets when the issue caught the attention of the old press in the West) or their injuries, than it was about the autonomy of the security services of global players and their engagement with the possibilities of technology now updated from the crude Soviet weaponry of the 1960s. The problem with Havana Syndrome, then, wasn't about the syndrome itself, but about the relationship of collective global security apparatus to the political apparatus of state to which they at least have a nominal obligation. I assumed,that eventually something fit for consumption would be concocted as a delightful cocktail of facts and surmises that might be "truthy" enough to satisfy the press, serve as a basis for some sort of crude remedy for the victims of this inter-apparatus dueling, and that would get the political branches and their claques off  the backs of the security apparatus and their dependent vassals.

I had assumed that this might have been accomplished as a result of the decision ot leak this technology to the proxy armies maintained by security apparatus and their State masters as they would inevitably have been the most likely players to get careless--or mouthy. That indeed, would have been the better option to get rid of this fiasco of managing the sort of collateral damage that its users and developers were now more willing to tolerate.  One could have blamed everything on rogue elements, paraded a few selected for sacrifice around, and then resolve to be more careful in the future. That, however, was not to be. For reasons that are well above my pay grade, and apparently far above the pay grade of the leading forces of the political branches in the United States, the security apparatus continues to believe that a mixture of gaslighting and obfuscation will still serve its purposes and get annoying people and institutions off their backs. 

Perhaps they are right. That, at any rate, appears to be the substance of the conclusion reached by Interim Report by Chairman Rick Crawford of the Subcommittee on the Central Intelligence Agency of the House Permanent Select Committee on Intelligence U.S. House of Representatives. The Report, entitled, "Investigating the Intelligence Community’s Conclusions on Anomalous Health Incidents: Is the Intelligence Community Hiding the Real Reason for This Phenomenon?"is a tersely written none pages of frustration, one which neither Republican nor Democratic Administrations were at any pains to alleviate. Its contents suggest the problem: 

UNCLASSIFIED
3
Table of Contents
Executive Summary ...................................................................................................................... 1
Methodology .................................................................................................................................. 4
AHI: A Real Existential Threat to the IC Workforce ............................................................... 5
Overview ................................................................................................................................... 5
The NIC’s Updated Assessment of AHI .................................................................................. 6
IC Experts Panel........................................................................................................................ 6
Interim Findings............................................................................................................................ 8
Finding 1: The ICA on AHIs lacked analytic integrity and was highly irregular,
hindering the Subcommittee’s trust in the IC’s process and conclusions............................ 8
Finding 2: The IC’s response to AHIs has likely impeded collection. .................................. 8
Finding 3: Congress’s oversight and investigation must continue with support from the
Trump Administration. ............................................................................................................ 8
Interim Recommendations ........................................................................................................ 9
Recommendation 1: Implement changes to the IC’s analytic process. ................................ 9
Recommendation 2: AHI collection needs to be prioritized. ................................................. 9
Recommendation 3: Codify and establish clear, effective medical care, particularly long-
term care, for AHI-affected U.S. Government employees and their families...................... 9

And I think that is where the Americans will wnd up: (1) acceptance of the reality that the security services, when it matters to them, and protected by the administrative apparatus of the political branches, will be protected against disclosures (for national security purposes) of any detail of the programs or strategies connected to this, or other security related weapons apparatus; (2) the best that one can hope for, and this has proven to be a difficult task, is to seek some sort of remedy for its collateral damage--at least when they are US nationals  and more specifically when they are members of the governmental apparatus of the United States; (3) that remedy cannot and will not be connected in any material way to anything having to do with weapons and strategic deployments deemed essential to the missions or activities of the security services; and (4) independent research and advocacy will likely have to be well managed to avoid interfering with sensitive actions or technologies (though this will be more difficult as the science and information leakage increases). 

Beyond that there is little more than can or ought to be said.

The full Interim Report follows and may be accessed HERE. For commentary HERE.

Storytelling and the Cognitive Spaces of Politics and Culture; Congressional-Executive Commission on China (CECC) Program: "The Preservation of Memory: Combating the CCP’s Historical Revisionism and Erasure of Culture"

 

Pix Credit here: David plays for Saul 1 Samuel 16:14-23

 

On the eve of the mechanization of the story of humanity; at just the moment before humanity cedes its own stories, individually and collectively, to virtual incarnations of itself that can use its input to "think" for itself (as the manifestation of principles drawn from endless iterations of the objects from which principles are drawn) one can be witness to a marvelous revealing occurrence. In the singular and the plural, those who feel (and well may be) empowered to influence such things have been engaged in frantic and quite ostentatious rationalization of the human self, that self within a curated complex of social relations, and the signification of these self-selves into a basis for rationalizing not just the past but also making inevitable particular pathways into the future. What makes this interesting is that now, for the first time in a long time, those who seek to engage in such acts (for and to us) not not just self aware, they are also taking the masses along for a ride on the self-awareness adventure that are their conscious and deliberate  forays into narrative. Self-awareness appears to be both a necessary predicate for the democratization of storytelling as cognitive rationalization structures, but also for its transposition from humanity to its virtual self-construction and the detachment of that self-construction into the mechanisms of generative virtual intelligence created (perhaps) in our own image.

None of this is new, of course. Human have been rationalizing themselves and the world around them since the first sacrifices were offered to please whatever spirits were invested with authority to make the world work. The prize--the gathering of perception to construct, and support as natural the construction of a cognition of things "as they are", or "as they ought to be" or "as they function" and "as is natural" etc. has been an instrument of social relations from the time that human looked around and found themselves in such relations and then started to think about those relations as detached from themselves. The dialectics that followed haunt us still. And perhaps that is inevitable.  All of this is necessary, of course. Human collectivity, if it is to serve ends to which it is to be put, must be convinced that the structures and objectives of a particular collectivity at a particular point in time is "natural" or at least the accumulated expression of the wishes of is collectivity or the optimization of organization in the face of some danger--physical or spiritual.  And off one goes into the sacred lands of orthodoxy and hierarchy, as well as functional differentiation among the masses.  Even pre-historical humanity had its shamans, hunters, warriors, etc. and their narratives to hold it all together, along with the dialectics that such architectures inevitably bring as people are born and die and as circumstances change.   

Of course, all of this may be swept away as the mania for comprehensiveness, egged on by technological possibilities, will make it irresistible to detach stories (and their rationalizations) from human storytellers. Human collectives as virtual realities (even ones with quite unavoidable effects in the physical world) lend themselves not just to virtual representation (in the old school forms of text, performance, and the support of a storytelling caste within social relations),  lend themselves to virtual construction. And virtual construction, and its curation, lend themselves to virtual construction by virtual representations of human story makers. None of this is bad or good, new or old; it does however become more valuable as its content, practices, and construction, are better exposed. . . . or that exposure may destroy the enterprise down to its foundations. May believe requires believers; and believers do not necessarily like to see the mechanics making belief believable.

With this in mind it is almost nostalgic to watch, and watch with both wonder and admiration, the efforts of human communities to consciously develop and seek to naturalize stories that are not just stories, but are also critical signifiers of meaning, expectation, and the "right way" of approaching the world and the humanity within it. It is particularly useful to watch this production where not just the story making but the underlying rationalizing objectives are substantially transparent. That produces a bit of a nod toward the democratization of engagement in the construction of the instruments of collective social cognition through stories and invites a democratic engagement with its politics. It is even more interesting when these are utilized as part of a sometimes contentious dialectics among two social collectives bent of deploying their own stories in the service of their own cognitive rationalizations of the world around us. Its inter-subjectivities lend themselves both to politics, and to the construction of the iterative modalities through which self-referencing intelligence can undertake the task at a higher (and perhaps more detached) level of production.

A quite useful example of this late-human craft may be observed in the program held 5 December 2024 organized by the Congressional-Executive Commission on China, which was created by Congress in October 2000 with the legislative mandate to monitor human rights and the development of the rule of law in China, and to submit an annual report to the President and the Congress. The Commission consists of nine Senators, nine Members of the House of Representatives, and five senior Administration officials appointed by the President. For other essays around the CECC's work see here: CECC.

The Program,  The Preservation of Memory: Combating the CCP’s Historical Revisionism and Erasure of Culture, engages in the story making of one collective but developing counter stories either from out of parts of the story that they suggest ought to be included, or by drawing different significations from them, the result of which lends itself to the construction of a different cognitive structure on which a different sort of politics might be built. That, of course, is the nature of the beast; the lifeblood of politics, and the stuff of the contemporary entertainment of belief for the masses. Information about the event follows below. The hearing will be livestreamed on the CECC’s YouTube channel.  This impulse is not unique to this apparatus, or to this culture, or to this time; this is a global impulse with manifestations that differ only to reflect national characteristics within the stages of history in which such collectives appear to find themselves at any given moment.

Release of House Select Subcommittee on the Coronavirus Pandemic’s final report titled “After Action Review of the COVID-19 Pandemic: The Lessons Learned and a Path Forward.”

 

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The U.S.  House of Representatives Select Subcommittee on the Coronavirus Pandemic’s final report, titled “After Action Review of the COVID-19 Pandemic: The Lessons Learned and a Path Forward,” has been made available.

It will be controversial--certainly it genesis was substantially so.  And it will impact any number of relationships between the United States, its friends, competitors, and others. Its impact will operate on a number of levels--as narrative, as referent, as the articulation or affirmation of principles that may guide the ruling party and its friends, and that may enrage others. Its policy ramifications will yet to be seen. But there is no doubt its consequences will be felt with increasing intensity up to and through the third week of January 2025, and not just in the U.S. and China, but likely throughout the international institutional apparatus of health and health related bureaucracies. 

Or perhaps it will go nowhere.

The Press Release follows without further comment. It includes links to the 500+ page final report. Additional information at its website here. For a sampling of reporting here.

Jorge M. Magdaniel Manzur, 'Parole Under INA 212(D)(5)(A): Balancing Humanitarian Needs and Legal Boundaries' (2024)

 

I wanted to take this opportunity to re-post a quite marvelous short essay written by one of my students, Jorge M. Magdaniel Manzur. Entitled   'Parole Under  INA 212(D)(5)(A): Balancing Humanitarian Needs and Legal Boundaries' (2024), it first appeared on the Penn State Immigration Law Blog (December 2024). Its abstract gives a nice sense of its objective:

This article examines how various uses and interpretations of parole under INA § 212(d)(5) have shaped immigrants' access to benefits, highlighting the balance between executive discretion and statutory limits within recent political and humanitarian contexts.

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As a child I recalled adults invoking the word "parole" like some magical spell that made life possible where we were. In high school translating for the INS in one of its waves of Cuban "status adjustment" was itself also magical, a performance with its own incantations and ceremonies, one requiring a mysterious sacrifice of time in make shift offices put together for that purpose and enveloping oneself in the cour des miracles of the INS bureaucratic realms. its wizards and the grimoires to which they referred from time to time. It was, in a sense, something of a cour de miracles with its performers, charlatans and hangers on all seeking to help, entertain, or exploit the residents whose lives were in a sense wholly dependent on the operation s occurring in that space performed by some sort of abstraction in a bewildering process for transforming them from one word to another.  Still, the alternatives were worse, and one learned provide what was expected. That was the side I saw; one could look at the other side the equation--the army of officials--lawyers and others--deployed by the State to undertake the transformational tasks--some nice, many just  working, some less nice. But the rest of it--the magic--remained a mystery.  And it does so today--one that requires a whole society of actors hovering around and invoking weighty abstractions (that might as well have been cuneiform memorials of Babylonian rites) the effects of which on the paroled was mostly that they all eventually went away.

Jorge Magdaniel Manzur takes us behind the magic in a clear and straightforward way. What was magic turns out to be the structures of a system of discretionary decision making that is itself parsed among a hierarchically arranged techno-bureaucracy charged with implementing objectives and approaches that at least at some level, represent the wishes of the hierarchically arranged elected political element of the State. From the ground, this still sounds ike magic--like the stuff of immanent gods and spirits who must be placated or appeased through appropriate rituals and sacrifices. And, indeed, that certainly might please the lawyers and bureaucrats who increasingly style themselves the priests (some high, some less so) of the cult of law as it has come to be fashioned. That cult has its orthodoxies as well as its factional contests among the priestly castes and their claques, of course. And that is the subtext ably indicated in the essay. And, indeed, even those who work their magic on the object population, must make the necessary sacrifices and adhere to the orthodoxy of ritual. In the case of the modern American rules-driven textual-state over which judges perform feats miraculous from time to time (but then so does everyone else)the miracles occur within the camera obscura of text itself, which is as remote from its objects as the mysterious of sub-atomic particles.

The essay in its entirety may be accessed at the Penn State Immigration Law blog and follows below.

"Chinese Constitutionalism as Socialist Modernization" [中国宪政作为社会主义现代化] Remarks Prepared for the 10th Asian Constitutional Law Forum University of Hong Kong 10 December 2024

 

I was delighted to have been invited to participate in the  10th Asian Constitutional Law Forum University of Hong Kong 10 December 2024. My thanks to the Management Committee—Albert Chan, Cora Chan , and Stefano Osella, as well as to the University of Hong Kong Faculty of Law, its Centre for Comparative and Public Law, and  to the Association for Asian Constitutional Studies.

I was equally delighted with my task, to speak about Socialist constitutionalism in China.  To those ends I thought it might be useful to approach constitutionalism generally, and Chinese constitutionalism specifically, from outside of the confines to which jurisprudence may have inadvertently put it, if only because it fit nicely within its own self-conceptions and cognition rationalization systems.  That is, rather than focusing on constitutional issues starting from within the text of some document(s) labeled "constitution" within a document or otherwise discernible through whatever practice is used for that purpose, one might glean different and perhaps useful insights by considering constitutional cognition beyond or above whatever text is proffered as the signified object within which, and only within which the arts of constitutionalism might be practiced within the lifeworlds of jurisprudence. 

So rather than start from text, I started from the signification of text to work my way back to text, and thus to the sort f textual interpretation exercises that give jurisprudence comfort. To those ends I posited a framing signification from out of which it might be possible to understand the underlying principles within which Chinese (in this case) constitutions could be rationalized within its own normative constitutionalism. For that purpose I suggest that modernization--once imperial, then republican, eventually Socialist, and now Chinese style--might represent the apex rationalization, the foundation, of political authority grounded in a quite specific task toward the realization of which text, like other productive forces . were to be ordered and utilized.  And off I went.

 The remarks are quite short and the ideas still in a very preliminary state. But the idea of an inductive and iterative approach to constitutionalism, and thus to its expression and rationalization as constitutional text, may provide a rich source of insight into not just the meaning of text (the stuff from out of which the careers of lawyers, bureaucrats, judges and politicians are made) but also into generative normative spaces from out of which constitutional text is derived. In that respect these remarks build on a recently circulated earlier work on the way in which constitutions are meant to embed the performance of revolutionary impulses that gave rise to the constitutional order within its text and through its iterative mechanisms (both normative objectives and methodological systems).  For that see HERE (abstract, paper, remarks and PPT).

 I have uploaded both to my website (the remarks in both English and a crude Chinese translation) for those who might find accessing that way easier.

ACCESS REMARKS HERE: Remarks1.1_ACLF_Backer_12-2024; 

ACCESS PPT HERE Backer_Remarks_ConstitutionModernization-12-2024

Comments and engagement always welcome here or offline. 

庄 杰, 让基层干部轻装上阵 [Zhuang Jie, 'Let grassroots cadres go into battle lightly']; From Qiushi Journal 2024:23

 

Pix credit George Tooker (The Government Bureau, 1956)

 

Operational level governance has always been an issue.  It merely presents itself differently depending on the organization, its functional orientation, and the political-economic system from which operational level responsibility can be rationalized, and so rationalized, disciplined.  All of that is well and good--and indeed managers at higher levels have developed the skill of describing the challenge to an art form.  

 That art form itself is founded on and remains deeply attached to qualitative measures. Qualitative measures have the value of being tautologically self-referencing.  It transforms the noun form of governance (effectively the object or state to which action is directed) into a verb of itself (the action to be undertaken). That is, that governance, in its operational form, remains effectively stuck between an endless interplay between itself and the reflection of itself in action.  One undertakes the objective by effectively becoming the objective. The space between objective and becoming itself remains fundamentally undefined. 

This is not madness.  It is, in its own way, a sound modality of governance within multi-level objectives-based governance hierarchies. The reason is simple at its most general level of operational consciousness. Complex objectives-based systems are necessarily grounded in discretionary-based administration--rather than rules-based administration. In simple terms, these are systems in which administrators, up and down the hierarchy, are not tasked with meeting objectives but instead are expected to enforce rules (which may themselves be the embodiment of objective). That rules-enforcement-as-core-objective system is eventually a solid basis for governance  where the ultimate objective is the rule itself. Its danger is that it can becomes decrepit in the sense of reducing itself to dependence of rules application increasingly detached from the objects of rule application, ultimately transforming itself into  a mindless and eventually self-destructive approach where rules themselves are not capable of modification as iterative application suggests instability. That is the great challenge of rule of law based techno-bureaucratic liberal democratic systems--with the European states in the vanguard and the Americans not far behind.  

Instead, in systems like that of Chinese Marxist-Leninism, with strongly developed political-institutional hierarchies the legitimacy of which is dependent in large part on its ability to correctly articulate and fulfill progressive objectives along the socialist path, the opposite is true. In simple terms, these are systems in which administrators, up and down the hierarchy, are tasked with meeting objectives for which purpose rules and other instruments may provide instruction, guides or tools. Power is caged in regulation, but the reason for that is to manage discretion toward the fulfillment of objectives, which requires the overcoming of the contradictions that stand in the way of fulfillment. The construction, management, control, and alignment of discretionary authority, within cages of regulation, and undertaken primarily for the fulfillment of hierarchy-level appropriate objectives based tasks, remains the great challenge of Marxist-Leninist systems. It is one that the Soviet Union and its imperial dependencies failed in the 20th century; but one which is the underlying governance contradiction for vanguards of leading forces in the 21st century. 

As a result, the most logical approach to the measure of the work of operational level administrators and cadres must at least start with the identity of task and objective. In that construct, one measures the value of the work of administrators and cadres at the operational level as a function of result, and one develops disciplinary systems that reflect this self-referencing circularity. The result, often enough, then leaves operational level staff with little guidance about pathways toward objectives and little basis for determining even the way that objectives attainment will be measured--and their performance judged. As a consequence, there may be a tendency for operational level staff either to shift their focus to those tasks which can be easily measured (micro-objectives based work) or developing cultures of conservative approaches to decision making that effectively shuts down innovation (and thus reduces significantly the risk to operational level staff). Therein lies the great challenge for discretionary decision based objectives driven systems--that as constituted, it produces cultures of risk aversion that may stifle innovation because the risk of failure is too great. In extreme form one begins to approach the decrepitude of the Soviet Union, in milder forms, the paralysis of the Cuban Communist Party.

It might then follow that there my need to be a stronger focus not merely on the qualitative drivers in objectives-based discretionary decision making systems, but also to develop an aligned set of quantitative measures. Not just that, but also to develop qualitative analytics that may effectively tie upper level objectives and goal formation both to reality (that is the capacity of operational level cadres) and to effective planning for objectives formation an timelines. And, of course, those measures can be used to nudge innovation where innovation or new or high quality production (新质生产力), becomes a central objective itself. Interestingly enough, the principles apply as well to rules-enforcing systems as it does to objectives-meeting systems, both of which appear to be reluctant to develop robust quantitative measures in the service of either objectives.based or rule-enforcement-based systems. That, certainly has become a critical element of Chinese objectives with respect to the cultivation of productive forces, now well articulated since the 3rd Plenum of the 20th Party Congress in July 2024 (see, here and ere), and which are also well represented in the articles published in Qiushi 2024:23.

The problem is an old one, and the operational level objectives have been highlighted since the time of the leadership of Deng Xiaoping and well before that (eg here). That longevity of a challenge not yet overcome suggests both its complexity and its importance. A good example of the challenges, from the perspective of Marxist-Leninist operational level challenges within an objectives-based hierarchically arranged discretionary decision making systems, were nicely illustrated in a quite fascinating essay published in volume 2024:23 of Qiushi Journal. The article, in the form of a letter from Zhuang Jie [庄 杰] (General Office of the CPC Guizhou Provincial Committee), 让基层干部轻装上阵 ['Let grassroots cadres go into battle lightly'] highlight both the challenges of developing (or at least articulating qualitative measures) and perhaps as well, highlighting the spaces where quantitative measures might prove useful, at last at the operational level.Indeed, each of the three qualitative challenge points identified--(1) 强化源头治理 [strengthen governance at the source]; (2) 突出问题导向 [Focus on problem solving orientation]; and (3) 统筹好减负与赋能 [Coordinate burden reduction and empowerment]-- might all lend themselves to appropriate qualitative measures,  That, however, would require innovation, and new quality production of administration up from the grassroots.

The essay follows below in both the original Chinese and in a Crude English translation.