Parallel Barking Podcast: "Three Ivy League Presidents Versus Congress on Antisemitism"

 

 Episode description: Presidents of Harvard, Penn and MIT were questioned about rising antisemitism on college campuses at a House committee hearing on Tuesday, December 5th. The
biggest backlash stems from the question that asked whether calling for the genocide of Jews would violate the university code of conduct. At Tuesday’s hearing Harvard president Claudine Gay said it depended on the context, adding that when “speech crosses into conduct, that violates our policies.” (AP).  While much of the discussion has focused on what was said--its text--what has been missed is any engagement with the collective belief that this context based discussion tmade plausible. Context provides a rationalizing veil for the translation of belief into action; it is a fundamental belief about the innocuousness of statements about exterminating Jews (in this case, and any other group in a different context) based on a belief system about the target of this contextualization that then drives a construction of plausibility about the effective innocuousness of the invitation.

I have written a little about the most remarkable testimony, followed by an even more remarkable colloquy, between high level functionaries of the leading forces of American Academic communities (all with deep ties to elite functionaries among the leading forces of other critical governance communities in the United States), and members of the U.S. House of Representatives (Contextually Relevant Discourse: Text of Statements Delivered by the Presidents of Penn, MIT, and Harvard for the U.S. House of Representatives Hearing-- "Holding Campus Leaders Accountable and Confronting Antisemitism").

What was most remarkable about those performances, was the exposition of a quite interesting discursive positioning advanced by the University Presidents. That positioning, which I call "contextually relevant discourse" appears to posit that words only matter when they matter to those functionaries presiding over structures of discursive expectations. Those expectations of speech and speech acts, then, render words and other performative manifestations of meaning, a meaning that can be assumed to fall within what is expected, approved, tolerated, or embraced, by those with the power to control place, time, and manner rules for such discursive performances. 

Performing meaning, then, is quite contextually relevant. And in the context of inviting individuals to consider the value and positive qualities of engaging in the genocide of Jews, that context provides a way of taking the sting out of that invitation, rendering it merely an expression of something else. The clear semiotics of that journey from invitation to polite, if robust and "symbolic", discourse, is, in a way, quite breathtaking. *   *    *  Context, then, becomes the core around which meaning making is to be undertaken among those who mean to control its content. Context is the object (the facts around which meaning can be informed); the objectivity of context then is signified by the application of presumptions and modes of translating facts to objects within a rationalized system of understanding the world; and thus signified, context provides the means of investing its text and performance with collective meaning. And yet what also appears is a power of belief to shape context shaping meaning, then reinforcing belief. That is the wheel that these functionaries (and their collectives) mean to strategically turn.  (Context and the Discourse of Discourse: UPenn and Harvard Presidents Re-Imagine the Meaning of their Speech-Acts as the Relevant Context Changes).

Access podcast  HERE. 

Pix Credit Here

"Artificial Intelligence Act: deal on comprehensive rules for trustworthy AI" : Text of European Parliament Press Release 9 December 2023

Pix Credit 'Variety' here

In earnest since 2021, officials within the European Union, and interested stakeholders worldwide, have been debating the parameters, and ultimately the text, of a comprehensive regulatory framework for the exploitation of generative intelligence systems (so called artificial intelligence). See Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL LAYING DOWN HARMONISED RULES ON ARTIFICIAL INTELLIGENCE (ARTIFICIAL INTELLIGENCE ACT) AND AMENDING CERTAIN UNION LEGISLATIVE ACTS COM/2021/206 final (Text Explanatory Memorandum) (Annex)

In its 2021 Explanatory Memo, it was explained that the reguñatory framework would be bent toward the following generalized core objectives:

· ensure that AI systems placed on the Union market and used are safe and respect existing law on fundamental rights and Union values;

· ensure legal certainty to facilitate investment and innovation in AI;

· enhance governance and effective enforcement of existing law on fundamental rights and safety requirements applicable to AI systems;

· facilitate the development of a single market for lawful, safe and trustworthy AI applications and prevent market fragmentation. (Memo, supra, at p. 3)

After much discussion, key political stakeholders have now reached agreement on the final form of the framework.

European Union officials have reached a provisional deal on a legal framework for the development and use of artificial intelligence within Europe, calling for greater transparency as well as setting parameters for high-risk AI. The political agreement, which has yet to be detailed and came together following 37 hours of debates within the European Commission, highlights what is prohibited when it comes to AI, key requirements for using high-risk AI and penalties. (Variety; here)

In its Press Release, the European Parliament stressed the boundaries of AI exploitation:

--biometric categorisation systems that use sensitive characteristics (e.g. political, religious, philosophical beliefs, sexual orientation, race);
--untargeted scraping of facial images from the internet or CCTV footage to create facial recognition databases;
--emotion recognition in the workplace and educational institutions;
--social scoring based on social behaviour or personal characteristics;
--AI systems that manipulate human behaviour to circumvent their free will;
--AI used to exploit the vulnerabilities of people (due to their age, disability, social or economic situation). (Press Release)

Some of these normative taboos are meant to protect the current state of EU human rights and constitutional principles, especially for example, the restrictions on biometric information that crosses ideological boundaries on politically sensitive classes of data. Others serve to reject contemporary Marxist-Leninist approaches to the nudging of behaviors through so-called social scoring mechanisms, including emotion recognition  (eg Chinese "social credit") systems. These are going to be much harder to actually implement given the insatiable appetite in the liberal democratic camp to use a variety of semiotically powerful modalities to nudge behaviors. Indeed, one already sees in the limitations of the restrictions on emotion recognition technologies (to workplaces and schools) a concession to its obliquity in the marketplace and in the marketplace of ideas (including those of interest to the state). Another limitation appears to restrict the restriction on European social credit systems ONLY to "scoring based on social behavior or personal characteristics." That produces a tension, for example, between the openness of emotion recognition, and the prohibitions against"AI systems that manipulate human behavior to circumvent their free will." On the other hand it is clear (no one reads Nietzsche anymore on the difficulty of contemporary ideologies of free will) that environmental, social, economic, cultural, political and other realities, all contextually framed, already circumscribe (and sometimes make virtually impossible) the exercise of free will in significant ways. On the other hand, it raises the question about what in the field of social relations does NOT manipulate free will. There is nothing in the emerging regulation that suggests that AI may not be used to manage he circumstances against which free will can be curated for individuals or classes of humans identifiable by certain characteristics or predilections.  Managing circumstances and the conditions around which "will" is exercised can be a quite powerful field for AI application--from traffic patterns to just transitions.  The battles over the meaning and application of "manipulation" will consume much human capital.

All of this provides much fuel for anticipation of the official text, and its journey towards adoption and then transposition into Member State legal orders. The full text of the EU Parliament Press Release follows.

Context and the Discourse of Discourse: UPenn and Harvard Presidents Re-Imagine the Meaning of their Speech-Acts as the Relevant Context Changes

 

Pix Credit Here

 

I have written a little about the most remarkable testimony, followed by an even more remarkable colloquy, between high level functionaries of the leading forces of American Academic communities (all with deep ties to elite functionaries among the leading forces of other critical governance communities in the United States),  and members of the U.S.  House of Representatives (Contextually Relevant Discourse: Text of Statements Delivered by the Presidents of Penn, MIT, and Harvard for the U.S. House of Representatives Hearing-- "Holding Campus Leaders Accountable and Confronting Antisemitism").

What was most remarkable about those performances, was the exposition of a quite interesting discursive positioning advanced by the University Presidents. That positioning, which I call "contextually relevant discourse" appears to posit that words only matter when they matter to those functionaries presiding over structures of discursive expectations.  Those expectations of speech and speech acts, then, render words and other performative manifestations of meaning, a meaning that can be assumed to fall within what is expected, approved, tolerated, or embraced, by those with the power to control place, time, and manner rules for such discursive performances. 

Pix Credit here (one of the first renderings of Ouroboros)

Performing meaning, then, is quite contextually relevant. And in the context of inviting individuals to consider the value and positive qualities of engaging in the genocide of Jews, that context provides a way of taking the sting out of that invitation, rendering it merely an expression of something else. The clear semiotics of that journey from invitation to polite, if robust and "symbolic", discourse, is, in a way, quite breathtaking. And its possibilities in other contexts, when judged to be similar by those given the authority to render such judgments and impose such meaning, quite broad. But for the moment such possibilities remain semiotically (that is in their power to impose public or communal meaning) locked within their potentials--except for the centering of context as the key to unlocking and managing meaning at a communal level. Context, then, becomes the core around which meaning making is to be undertaken among those who mean to control its content. Context is the object (the facts around which meaning can be informed); the objectivity of context then is signified by the application of presumptions and modes of translating facts to objects within a rationalized system of understanding the world; and thus signified, context provides the means of investing its text and performance with collective meaning. And yet what also appears  is a power of belief to shape context shaping meaning, then reinforcing belief. That is the wheel that these functionaries (and their collectives) mean to strategically turn.

These dialectics were most visible since the testimony and colloquy before the House of Representatives.  It appears that the greater context of public (or at least well reported elite reaction) has produced a context in which the meaning conveyed during the testimony has evaporated in favor of another.

Pix credit here

Facing heavy criticism, the University of Pennsylvania’s president walked back some of her remarks given earlier this week at a congressional hearing on campus antisemitism, saying she should have gone further to condemn hate against Jewish students. . . .In a statement posted Wednesday by Harvard on X, formerly Twitter, Gay condemned calls for violence against Jewish students. “Let me be clear: Calls for violence or genocide against the Jewish community, or any religious or ethnic group are vile, they have no place at Harvard, and those who threaten our Jewish students will be held to account,” Gay wrote Wednesday. White House spokesman Andrew Bates issued a statement Wednesday criticizing Gay, Magill and Kornbluth’s responses for not going far enough to condemn antisemitism on campuses.(Under fire, Penn and Harvard’s presidents walk back their comments about antisemitism and genocide: ‘It’s evil, plain and simple’; see also here, and here). 

The President of MIT remains unmoved--or at least still silent--the MIT President's testimony and answers provided continue to speak for themselves; that is they remain contextually relevant discourse. The semiotic dynamism of this quite remarkable and swift shift suggests the continued power of context. At the same time, the power of context remains untouched.  What remains, then, for discourse, are the inevitable battles over context, and with it, the ways in which speech can be signified in ways that accord with the manner in which people are encouraged to see and manifest  that "sight" in the world whose meaning is contextually relevant. The dialectics of the expression of meaning and belief remain untouched at the level of social relations except through the openings that context provides for nudging through narrative. Context changes meaning; it does not change belief. But belief can change context; which can then change meaning. The wheel turns; and it is not quite done here.

Contextually Relevant Discourse: Text of Statements Delivered by the Presidents of Penn, MIT, and Harvard for the U.S. House of Representatives Hearing-- "Holding Campus Leaders Accountable and Confronting Antisemitism"

 

Pix Credit New York Times

 

On 5 December 2023, NPR posted its reporting on a U.S. House of Representatives hearing that had produced national interest  and substantial coverage by U.S. press organs of a variety of distinctive grounding points of view.

Claudine Gay of Harvard, Elizabeth Magill of Penn and Sally Kornbluth of MIT spoke before the Republican-led House Committee on Education and the Workforce for several hours on Tuesday, condemning the rise in antisemitic incidents and defending their administrations' responses.  * * *  The hearing — which was titled "Holding Campus Leaders Accountable and Confronting Antisemitism" — turned combative at times. Republican lawmakers grilled the administrators on topics like ideological diversity, foreign university funding and specific disciplinary actions.  Committee chair Rep. Virginia Foxx, R-N.C., described the hearing in her opening remarks as an opportunity for leaders to "answer to and atone for the many specific instances of vitriolic, hate-filled antisemitism on your college campuses that have denied students the safe learning environment they're due."(Rachel Triesman, "Lawmakers grill the presidents of Harvard, MIT and Penn over antisemitism on campus," NPR 5 Dec. 2023).

Pix Credit Wall Street Journal

Most people might have focused on the performance of the testimony and the interactions that they produced.  See, e.g., here, here, here, and here. And, indeed, as expected, the exchanges were lively.

Opinions of course had likely hardened long before the delivery of the testimony and the performance of verbal exchanges that were video recorded and transcribed for the consumption of the masses, and toward the dueling constitution of narrative that might serve the interests and ideologies of the participants, stakeholders, and their respective circles (see, e.g., here, here).

Nonetheless, it is useful for those interested to consider the text of the statements crafted for delivery by the presidents of these institutions. Each of them follows below. They may also be accessed here: Penn; MIT; and Harvard.  

They are worthy of deep study for what they tell of of the discursive style of social leaders and high-level functionaries within the structures (in this case in the academic field) of national vanguard elites as they craft discourse  to serve ends and in the process shape and reshape both principle and the context (context was a critically important semiotic marker throughout the hearings) in which those principles might be manifested in the service of whatever it is that each of the statements identified. Indeed, in the fields of narrative curation and deployment, contextually relevant discourse appears to have assumed the role that administrative discretion has come to signify in the fields of public and private governance. That, in turn, permits a broad scope of choice in application of the principles, by those with the power to identify and signify context, subject only to the interpretation of the limiting principles themselves or discipline by a body with greater authority. Context can then represent a phenomenological engagement (we are the aggregation of our actions) with principle, an epistemological identification (we know what can be known in the way we can come to know it) of relevant spaces, or a dialectical embrace of something that is both emerging and as yet indeterminate in the fullness of its implications (the ontology of "semitism" and its semiotic synonyms, antonyms, homonyms, and homophones). What is certain is that one encounters here contextually relevant discourse within contextually relevant applications creating a continually relevant engagement of something that can be better understood through a dialectical process of oppositions. The result is the complicated inter-weaving, that weaving together, which lies at the heart of the origins of the term context, and which forms the essence of what was offered.  But at the same time the presidential texts also serve as an invitation (in their own context) to a contestation on the same basis as the one in which the statements were offered.

Consideration of all of these points are left to the reader. I offer no views on the text or the performances in the space in which they were presented; I offer only text within that con-text. Semiotics, however, suggests that a close reading, in context, will reward the reader with the signification of its object (there are multiple objects the balancing of which occupies much of the text of the statements) the interpretation of which provides the contextual foundations within which the sense attempted to be conveyed are deployed.  

Latin America and the Caribbean Invest in China: Just Published--(Enrique Dussel Peters (ed)) "Latin American and Caribbean Overseas Foreign Direct Investment in China in the 21st Century" (Unión de Universidades de América Latina y el Caribe, 2023)

 

Enrique Dussel Peters has announced the publication of an important book:  Latin American and Caribbean Overseas Foreign Direct Investment in China in the 21st Century (Unión de Universidades de América Latina y el Caribe, 2023; ISBN 978-607-8937-05-9), which can be downloaded at: https://dusselpeters.com/388.pdf.

Dussel Peters describes the project this way:

The book is an in depth analysis of Latin American and Caribbean (LAC) overseas foreign direct investment (OFDI) to China including macro, meso and micro (case studies) analysis. It includes a regional perspective (PRESENTATION/Enrique Dussel Peters), and the experiences of Argentina (Leonardo E. Stanley), Brazil (Celio Hiratuka), the Caribbean (Jevon Minto, Chevano Baker and Noel Young), Central America ( Rafael Arias-Achio and Rafael Arias Ramírez), Chile (Dorotea López, Andrés Bórquez, and Juan E. Serrano-Moreno), Mexico (Enrique Dussel Peters), and Peru (Alan Fairlie). An invitation by the Academic Network for Latin America and the Caribbean on China (Red ALC-China) to improve the examined countries and case studies, and to include new countries and case studies.

He offers 6 conclusions in his "Presentation" (Ibid., pp. 7-15): 

(1)  the methodological weakness of statistical production makes assessment difficult, especially as the major players have failed to coordinate their data production and reporting; 

(2) while LAC outbound investment in China has consistently grown, the trajectories may change as China and the West sort of their respective trade empires; 

(3) the rate of outbound investment into China varies considerably among states in the LAC region, with the usual suspects (Brazil, Mexico, Argentina) driving investment (along with special case Chile), while other states  the polarities of investment may be reversed; 

(4) the implications of rates and forms of outbound investment  beg further analysis especially with respect to LAC MNEs driving outbound investment that tend to be (a) experienced players in outbound investment; (b) long time investors in China; (c) most began investment through trade and representation offices; (d) all investors experienced periods of substantial learning and adaptation, including cases where outbound investment went badly; (e) pathways to investment were quite varied  reflecting experimentation and contextualization in overcoming entry barriers and included joint ventures; various forms of M&A,  and some greenfield investment; (f) the business case for outbound investment was fueled by cheaper labor and materials but has matured as Chinese markets have grown along with the capacity of partner firms; (g) successful experimentation in initial phases were followed by expansion especially through M&A; (h) success appeared to require inbound LAC firms to innovate global competition practices;  (i) inbound investment tended to avoid the larger cities in favor of small and medium sized urban centers; and (j) successful inbound investment has been leveraged by some firms to aid i development of further expansion into other Asian states;

(5) the trend appears to be for the imposition of increasingly higher entry barriers for new investment even as the overall investment climate in China has changed especially with respect to the costs and risks of investment;

(6) all  firms from the LAC region have been affected by the imperial maneuverings between the Chinese and the Americans; but rather than leave China LAC firms have adopted what is called a "China + 1" strategy--reasonably analogous to China's dual circulation policy as a means of promoting what the Europeans call "re-risking" strategies.

The work is well worth a read. Last point, and interestingly, while Brazilian firms might be sensitive to issues of sustainability (pp. 90, 94),  a reference to sustainability in Central American coffee production (pp. 162) is noted,  human capital (and resources) is mentioned several paces (eg pp. 18, 28, 49, 93, 116, 169, 196, 229, 252, 254, 271, 278); property rights are noted at pp. 111-112); the human rights landscape in investment did not play a prominent role in the analysis.

In Pictures--Automate and Delegate!: 制定实施"中央八项规定" [Formulate and implement the eight provisions of the CPC Central Committee]

 

 

The new trend of the times is around us

Doing things in one step

Formulate and implement eight central regulations. It is our party’s effort move to build trust in the new era. Over the past 11 years, we have persisted in upholding integrity and discipline. Correcting the "four winds" [or "four styles"] with the spirit of driving home nails has stopped some unhealthy tendencies that had not been confronted for a long time and corrected some stubborn social ills that have not been eliminated for many years. The eight provisions of the CPC Central Committee are iron rules and that provide strong leverage that are effective for the long term. We must constantly work hard and tirelessly until we can ensure that [these regulations] truly become custom.

十八届中央政治局关于改进工作作风、密切联系群众的八项规定，简称“中央八项规定”，是中共中央总书记习近平在2012年12月4日主持的第18届中共中央政治局会议 [The Eight Provisions of the Politburo of the 18th CPC Central Committee on improving work style and maintaining close contact with the masses, referred to as the "Eight Provisions of the CPC Central Committee", were issued at the 18th Political Bureau meeting of the CPC Central Committee chaired by Xi Jinping, General Secretary of the CPC Central Committee on December 4, 2012]. And, indeed, working style of cadres/functionaries has been an element of close supervision, and much discussion, from the time of the founding of PRC. Certainly since the leadership of Deng Xiaoping, it has been a periodic focus of the central Party leadership to focus on bureaucratization.

Some of our current systems and institutions in the Party and state are plagued by problems which seriously impede the full realization of the superiority of socialism. Unless they are conscientiously reformed, we can hardly expect to meet the urgent needs of modernization and we are liable to become seriously alienated from the masses.

As far as the leadership and cadre systems of our Party and state are concerned, the major problems are bureaucracy, over-concentration of power, patriarchal methods, life tenure in leading posts and privileges of various kinds.

Bureaucracy remains a major and widespread problem in the political life of our Party and state. Its harmful manifestations include the following: standing high above the masses; abusing power; divorcing oneself from reality and the masses; spending a lot of time and effort to put up an impressive front; indulging in empty talk; sticking to a rigid way of thinking; being hidebound by convention; overstaffing administrative organs; being dilatory, inefficient and irresponsible; failing to keep one’s word; circulating documents endlessly without solving problems; shifting responsibility to others; and even assuming the airs of a mandarin, reprimanding other people at every turn, vindictively attacking others, suppressing democracy, deceiving superiors and subordinates, being arbitrary and despotic, practising favouritism, offering bribes, participating in corrupt practices in violation of the law, and so on. Such things have reached intolerable dimensions both in our domestic affairs and in our contacts with other countries. (Deng Xiaoping, On the Reform of the System of Party and State Leadership (18 August 1980) § III).

Some of this has found its way into the concept of the "four winds" or "four styles" [四风] , a collective shorthand for formalism, bureaucracy, hedonism and extravagance, as working style errors for cadres/functionaries. While it is always easy to observe the movements around responses to bureaucratization and efficiency in the operations of Party cadres and especially when they are engaging in their administrative roles in the state apparatus at the national level--one can learn much by observing the way that trickles down to the local and provincial levels. To that end, sometimes one can glean much from education and working style  efforts directed downwards by central Party leadership.  

Recently the Central Commission for Discipline Inspection and State Supervision [中央纪公国家监委] has caused to be distributed a quite interesting illustrated lesson in the virtues of avoiding bureaucratization and delegating authority downward with respect to the management of operational level application of  policy. These are meant to show how “中央八项规定” ["Eight Provisions of the CPC Central Committee"] can be implemented in a common "retail level" administrative operation.  The illustrated lesson follows below (with crude translations from the original Chinese text in the pictures). 

What emerges from this is worth considering.  First the old lessons about the dangers of bureaucracy and concentration of power (especially with respect to line  management) remains a problem, but one that has again captured the attention of the central authorities. In a sense, the illustration suggests the new era path to the resolution of the problem distilled by Deng Xiaoping in the prior era of historical development:

The problem is that we have gone too far in these respects, and we have even failed to clarify what we mean by decentralism and assertion of independence in the first place. Now that ours has become the ruling party in the whole country, and especially since we have basically completed the socialist transformation of the ownership of the means of production, the Party’s central task is different from what it was in the past. Now that we are engaged in the extremely difficult and complicated task of socialist construction, over-concentration of power is becoming more and more incompatible with the development of our socialist cause. (Deng Xiaoping, supra, § III).

And that is the problem of cadre/functionary working style in ways that remain connected to the masses but coordinated from the center with contextual differentiation as one moves from central to locality.  The New Era answer lies in the proper application of technology.

Second, it follows that what is novel is the way that the problem of bureaucracy is effectively overcome (at least to some extent) by the automation of decision-making. In effect, a close observation of the illustrated lesson reveals that efficiency (and therefor better management of the deployment of mass productive forces at the retail level).  The lower level functionary/cadre becomes a service assistant, and the actual decision making (approval of business license in this case) is undertaken by inputting information into a receptacle which can then be processed through algorithms that have, it is assumed, been developed by higher authorities--and managed beyond the level of mass population points of contact.

And thus the Central Commission for Discipline Inspection and State supervision empathizes: "简化审批流程，优化营商环境需要干部放下架子、沉下身子 摒弃惯性思维，力戒官僚主义努力提升企业办事便利度、满意度和获得感 [(1) Simplify the approval process, (2) Optimize the business environment by requiring cadres to abandon pretensions and engage; (3) Abandon inertial thinking,(4)  Avoid bureaucracy and strive to improve business convenience, satisfaction and sense of gain]--a reworking for line cadres/functionaries of the formulation of the "four winds/four styles" [四风] error. Online processing “线上跑” serves both the purpose of avoiding bureaucratization and concentration of authority by (delegating contact to front line cadres while automating significant elements of what had once been within the scope of local level exercises of administrative discretion.  That n turn preserves  and augments central coordination (at the national, provincial and local levels, as determined by policy)  while leaving some space for local exercises of authority--though the later remains unspecified in the illustration. It is in this way, perhaps, that New Era operationalization seeks to move forward a tech based solution to the 2012 “中央八项规定”. The eight provisions also follow below. 

What may follow beyond automation is generative decision making.  It is not unlikely that, given enough data, it may be possible for processes like that described in the illustration may become not merely automated but also interactive. In that context, the program may not just process information and provide a yes-no result depending on satisfaction of all input requirements; it may also generate suggestions. In a sense, the program might become an assistant not just for the applicant, but more importantly, for the cadre/functionary who may now receive instructions on next steps or ordered alternatives where such may be necessary given either application irregularities, or implementation of other policy objectives grounded in the input entered.That may, indeed be the next era challenge for both  "four winds/four styles" [四风] error and “中央八项规定” (the eight provisions of the CPC Central Committee).

Parallel Barking Podcast: "Weaponizing Migrants--Russia Diverting Asylum Seekers to Finland"

 

 Episode description: In attempts to destabilize the West, Russia and its allies have been using migrants as pawns. After Russia invaded Ukraine and Finland joined NATO, it is clear that this "hybrid [type] warfare" combined with disinformation is becoming the norm. 

Although it has multiple uses, weaponized migration is often employed as an instrument of state-level coercion, undertaken to achieve a wide range of geopolitical and other foreign policy goals that have been frustrated by other means. States and nonstate actors have resorted to this tactic at least 81 times—and possibly many more—since the advent of the 1951 Refugee Convention, which granted those fleeing political persecution the right to seek asylum in states that are signatories to the agreement. Governments that weaponize migration to achieve foreign policy objectives are often, but not always, autocratic; their targets have disproportionately, but not exclusively, been advanced liberal democracies. (Kelly M Greenhill, "When migrants become weapons: The long history and worrying future of a coercive tactic," MIT Center for International Studies (March/April 2022))

While our focus is on the current use of the tactic by Russia in the context of its imperial adventurism; it ought to be considered as well as a tactic of equalizing power where smaller states seek concessions from larger and potentially opposing states (e.g., "Nicaragua is ‘weaponizing’ US-bound migrants as Haitians pour in on charter flights, observers say"AP (October 23, 2023), also here). While issues of state responsibility tend to be foregrounded usually those miss two significant points, (1) that exporting sates appear to be able to act with impunity and the receiving state appears to bear the greater responsibility to prevent-mitigate-or remedy (e.g. here; and here); and (2) little attention is paid to the micro-issues of human consequences (e.g., here).

Access podcast HERE.

For Additional background, see here for a classical perspective, and Sascha-Dominik Dov Bachmann & Anthony Paphiti, Mass Migration as a Hybrid Threat? - A Legal Perspective, Polish Pol. Sci. Y.B. 50 (2021) 119-145 , introduction below.

Pix Credit here

 

Brief Reflections on Guidance for "Foreign Related Legal System Construction" [涉外法制建设 营造] in the New Era: 习近平在中共中央政治局第十次集体学习时强调 加强涉外法制建设营造有利法治条件和外部环境 [During the 10th collective study session of the Political Bureau of the CPC Central Committee, Xi Jinping emphasized strengthening the construction of foreign-related legal systems to create favorable legal conditions and (harmonious) external environment]

 

Pix credit here ("Revolutionary friendship (Friends from Asia, Africa and Latin America visit the Museum of the Chinese revolutionary army), 1964")

推进涉外法治工作，根本目的是用法治方式更好维护国家和人民利益，促进国际法治进步，推动构建人类命运共同体。必须坚定不移走中国特色社会主义法治道路。["The fundamental purpose of promoting foreign-related legal work is to use the rule of law to better safeguard the interests of the country and the people, promote the progress of the international rule of law, and promote the construction of a community with a shared future for mankind. We must unswervingly follow the path of socialist rule of law with Chinese characteristics."] (Xi Jinping, here)

 

The issue of engagement with foreign legal systems that intersect with Chinese national socialist legalities has become an important element of the construction of the New Era Communist International in the post global era. It forms an intimate part of the development of New Era Socialist Internationalism (here; compare 1960s approach e.g., here), and with it, Socialist human rights (here and here).  That engagement requires a legal basis--that approach is consonant with New Era notions of Socialist rule of law and its core principle of shutting power within a cage (or system) or regulation (e.g., here). Socialist Rule of Law applied to the field of (and engagement with) international, transnational, and foreign law (that is to such law embedded in and operating as law systems (制) identifiable as distinct from the Socialist Law system of China) also required a cage or system of regulation.  

That cage or system acquired part of its form with the coming into force (1 July 2023) of the revised Law on Foreign Relations of the People's Republic of China [中华人民共和国对外关系法] (discussed briefly here). The most relevant provisions might be found in Articles 29-39 of the Revised Foreign Relations Law (The System of Foreign Relations).

Pix credit here

 These provisions are meant to sketch out the application of principles of Socialist Rule of Law from the national to the international sphere--and back again (article 29). The relationship between treaty and constitution is specified (Article 30) suggesting that treaty law is subject to both "the Constitution and other laws." Article 31 builds in a universal reservation to all of the Treaty law of China, as well as to the application of other international rules and laws within the Chinese domestic legal order: "The implementation and application of treaties and agreements shall not undermine the sovereignty of the State, national security and public interests." It is only within that reservation that China commits, in Article 32, to "strengthen the implementation and application of its laws and regulations in foreign-related fields in conformity with the fundamental principles of international law and fundamental norms governing international relations." Indeed, it is from that universal reservation that China grounds its right "to take, as called for, measures to counter or take restrictive measures against acts that endanger its sovereignty, national security and development interests in violation of international law or fundamental norms governing international relations." (Article 33). This provision will likely serve as a blanket authority for the exercise of discretionary and administrative counter measures to sanctions regimes and other measures taken by foreign states (and principally the United States and its allies). The only exception are UN mandated sanctions (again subject to the universal reservation) and only to the extent they have "binding force adopted by the United Nations Security Council in accordance with Chapter VII of the Charter of the United Nations" (Article 35). Foreign relations on the basis of the one China principle is specified in Article 34. Article 37 focuses on the protection of foreign diplomatic personnel and property; Article 38 focuses on the right of China to protect the interests of its citizens and its property abroad. Foreigners and foreign organizations "shall abide by its laws, and shall not endanger China’s national security, undermine social and public interests or disrupt social and public order" (Ibid.). Again exchanges are emphasized, this time in the context of rule of law, law enforcement and the judicial field (article 39) and international cooperation in the judicial, criminal and corruption fields (ibid.).   

Nonetheless, the Foreign Relations Law might be understood as the start, rather than an ends, of the rationalization of foreign related legal systems within or as they might affect or intersect with Socialist Legality and rule of law principles within China and affecting Chinese activities abroad. 

All of that might have provided the impetus for the object of the 10th collective study session of the CPC Poliburo, held 27 November 2023, one in which Xi Jinping was reported to have emphasized the strengthening the construction of foreign-related legal systems (涉外法制) to create favorable legal conditions and external environment after an in depth explanation of the issue by Huang Huikang, Distinguished Professor of Wuhan University ["武汉大学特聘教授黄惠康同志就这个问题进行讲解"] (Reported by Xinhua News Service on 28 November 2023 under the tile " 习近平在中共中央政治局第十次集体学习时强调 加强涉外法制建设营造有利法治条件和外部环境 [During the 10th collective study session of the Political Bureau of the CPC Central Committee, Xi Jinping emphasized strengthening the construction of foreign-related legal systems to create favorable legal conditions and external environment.]). 

The text of the Xinhua reporting in the original Chinese and in a crude English translation follows below. It is worth careful study for the further development of theoretical and discursive frameworks within which the development of Socialist Rule of law principles will be applied first to identify, and then engage with,  foreign-related legal systems (涉外法制)within the aegis of overarching New Era theoretical theoretical principles. A few brief observations drawn from the reporting text:

1. The further development of embedded and socialist positive foreign-related legal systems requires a complex balancing, grounded in the contemporary principal contradiction, and consistent with both domestic and foreign policy goals and objectives under the shadow of that contradiction and the necessity of its overcoming.

要从更好统筹国内国际两个大局、更好统筹发展和安全的高度，深刻认识做好涉外法治工作的重要性和紧迫性，建设同高质量发展、高水平开放要求相适应的涉外法治体系和能力，为中国式现代化行稳致远营造有利法治条件和外部环境。[From the perspective of better coordinating the domestic and international situations, and better coordinating development and security, we must deeply understand the importance and urgency of doing a good job in foreign-related legal work, and build a foreign-related legal system that is consistent with the requirements of high-quality development and high-level opening up capable of creating favorable legal conditions and external environment for the steady and long-term progress of Chinese-style modernization.] (习近平在中共中央政治局第十次集体学习时强调 加强涉外法制建设营造有利法治条件和外部环境 , supra)

Thus the balancing--(1) between the domestic and international situations (and with it the continued advantageous development of the dual circulation policy) AND (2) between development and security (implicating the recent construction of Socialist state secrets and anti-espionage laws, as well as the complicated structures of fostering development within Chinese domestic and international policy through the management of its productive forces; see, e.g., here). All of this aligns nicely, at least theoretically, with the overall policy challenges of navigating between development and security (between friendly and unfriendly forces) in an overall context in which the development of productive forces in advancing socialist modernization remains at the center (where modernization has been broadened to include cultural, political, moral, and cultural factors).

2. The fundamental ordering template remains the same even within the matrix from out of which the foreign related legal system is to evolve; that is that Socialist Rule of Law must serve national interests first, but within a context in which such national service may also produce value for foreigners of some sort (the win-win cooperation strategy) but now within the framework of rules. What the cage or system of regulation brings is socialist rationalization of relations within a rules based order: consolidating fundamentals and stabilizing expectations. It serves as the socialist globalization road--one that o necessity will have characteristics distinctive from that of liberal democratic post-1945 globalization.  It is likely then that such development of this system will be undertaken with an eye to difference as well as to alignment with domestic normative structures.  The challenges are already emerging--for example with respect to the alignment of foreign law based compliance regimes with Chinese anti-espionage, state secretes and data domestication law systems.; and now more pointedly, with the rules systems for the development and deployment of generative AI systems. 

3. As in many other objectives of national policy, the object of regulation is not merely to provide a basis for the rules-based management of the exercise of administrative discretion but also to develop deep structures of coordination. What was emphasized within the overall framework was first objectives of linkages ("是一项涉及面广、联动性强的系统工程" [It is a systematic project with wide coverage and strong linkage]). The other core objective is coordination in two forms. One focuses on and coordination between domestic and international spheres and their regulatory manifestations ("必须统筹国内和国际"); the other focuses on coordination between development and security ("统筹发展和安全"). Again the emphasis is on risk based balancing among objectives within a system of differentiated legalities with regulable domestic and international impacts. Connected with these overall objectives is the construction, yet to be achieved, of deeper systematic legality. What is anticipated and likely to proceed from the Foreign Relations Law, touch on "efficient foreign-related legal enforcement system, improve the judicial efficiency of foreign-related law enforcement, promote the reform of foreign-related judicial trial systems and mechanisms, and improve the credibility of foreign-related justice"["要建设协同高效的涉外法治实施体系，提升涉外执法司法效能，推进涉外司法审判体制机制改革，提高涉外司法公信力。"] the character of which remains uncharted in specifics. Except with respect to (1) the development of foreign related legal services [" 要积极发展涉外法律服务"]，and arbitration systems ["培育一批国际一流的仲裁机构、律师事务所"] though whether in opposition or as an alternative to ICSID and other lieral democratic infused systems remains unclear.

4. The legal structures of political objectives are also clearly delineated.  These center on the legal arrangements necessary to permit the projection of Chinese power to protect Chinese economic, political, and other interests undertaken through law-based inter-governmental and public-private relations globally through what is likely to be a re-imagined BRI system ("要深化执法司法国际合作，加强领事保护与协助，建强保护我国海外利益的法治安全链。"). That, in turn, is tempered by the further development of legal compliance systems, especially with local law (though there is no thing to suggest that local law cannot be made more flexible to accommodate Chinese interests in a "win-win" context (from the Chinese perspective certainly) ["要强化合规意识，引导我国公民、企业在“走出去”过程中自觉遵守当地法律法规和风俗习惯，运用法治和规则维护自身合法权益。"].   None of this is new and has been already in development with respect to the legal and political structures within which Chinese State Owned Enterprises have been engaging globally (see here).  

5. There is an element of integration as well.  This is directed toward the objective of bridging (but keeping separate) the domestic and the international/foreign within and outside China. This is connected with the re-imagining of the old "Reform and Opening Up" doctrines but now within the structures of New Era principles. 

 The rule of law is the best business environment. It is necessary to improve the open and transparent foreign-related legal system, strengthen the protection of intellectual property rights, safeguard the legitimate rights and interests of foreign-invested enterprises, make good use of both domestic and international rules, and create a market-oriented, legal and international first-class business environment. ["法治是最好的营商环境，要完善公开透明的涉外法律体系，加强知识产权保护，维护外资企业合法权益，用好国内国际两类规则，营造市场化、法治化、国际化一流营商环境。"]

In one sense, this says nothing new--it is well known in liberal democratic states that a sound business environment thrives on certainty and predictability, even if the measures are less than ideal for business, society or politics in any stage of historical development. The challenge, which is the object of the study session, is to provide context in which they predictability and certainty can be extended to the foreign but consonant with the objectives of security, and vanguard led socialist modernization. More to the point, that certainty and predictability must bridge both its projection inward (the domestic market) and outward (China's protection of objectives based activity in spaces where it is the "foreign legal system). To that end old wine will be put in new bottles--to link but not join domestic and foreign--to preserve dual circulation as an all around concept and in the process elevate systems of security centering development with the foreign was a necessary element, but one that can be managed. 

6. Nonetheless, the approach accords with the also linked development of Chinese internationalism. It is one based on a cage (system) of regulation, compliance with the legal requisites of which must be scrupulously observed. One points here to the development of the legalization of the policy of building a community with a shared future for mankind. To that end it is necessary to actively align the legalities of the international order with those of socialist rule of law. "Xi Jinping emphasized the need to firmly safeguard the international order based on international law, actively participate in the formulation of international rules, and promote the rule of law in international relations." [习近平强调，要坚定维护以国际法为基础的国际秩序，主动参与国际规则制定，推进国际关系法治化。]. The irony is that this is precisely the course set by liberal democratic vanguards guiding the international law project since the 1940s--juridification and legalization at the international level aligned with national constitutional frameworks--and changing them to reflect socialist sensibilities. 

7. The key to all of this, though, remains the greatest challenge--the transposition of rule of law discourse within this matrix of risk-reward structures into systems (and here liberal democratic governance is converging with Chinese Marxist-Leninist ones) with operational systems that are essentially driven by infinite iterations of exercises of administrative discretion.  The discourse of rule of law in Marxist-Leninist and in liberal democratic states continues to hold tight to the vision of law as a set of commands (or as the elaboration of the constituting structures for the execution of command and guidance). Yet law has increasingly been used to (1) set out sometimes broad and sometimes more targeted objectives, norms, or goals; and (2) constitute an administrative apparatus which is given authority (through systems of rules guiding the application of discretion) to direct productive forces (including natural persons) toward such gals, objectives, etc.  In states of administrative supervision, there is a disconnect between the idealization of law as means to construct a cage, and the nature of the cage (or system) articulated within structures of administrative supervision. Everyone must act within and comply with law.  But compliance itself may be beyond the reach of the cage--or better put--the cage of regulation constructs the administrative structures within which the directions that are provided by law may be converted into and applied to everyday life--not through law but through the decisions of supervisory personnel. This certainly has been the essence of the challenge in the New Era for Chinese rule of law socialist legality (as well as in its own variation for that of liberal democracy). It has now been transposed into the international arena as well in its socialist manifestations. For a more detailed discussion in the context of domestic law, see, The Imaginaries of Regulatory Spaces in an Age of Administrative Discretion: Social Credit ‘in’ or ‘as’ the Cage of Regulation of Socialist Legality.

8. That eaves for discussion the issue of legal systemicity (法制) in need of further exploration.  One begins to understand the concept of system (制) in a Leninist sense as object--a cluster of related instructions that are self-referencing in the sense that they over a self contained set of propositions from which questions can be answered by reference to the totality of the instruction system itself. Nonetheless, these objects become relevant in a Leninist sense when they can be utilized as another productive state asset.  That is, legal systemicity itself becomes an input in the operation of socialist modernization. At its highest level, it serves as a consumable, like labor or capital, the purpose of which is to enhance development (the key New Era normative foundation) which is in turn (the key Leninist focus) deployed toward the march along the "socialist path" that must lead to the establishment of a communist society--must lead there if the vanguard of progressive social forces organized as a communist party is to retain its legitimacy and authority. In that context, the development of foreign-related legal systems (涉外法制) serves as one element of a substantially growing and complex aggregation of legal objects, the coordination of which serves as the greater challenge for the managerial state. Liberal democracy also objectifies law, but uses it in a somewhat different sense (at least classically) to develop the space within which private actions may be aggregated toward welfare enhancing collective results (results the details of which are not necessarily driven by those who control the production and deployment f regulatory objects). That is changing now of course, as the evolution of the liberal democratic administrative apparatus shifts its role (in a compliance-delegation environment) from enforcer to manager of productive forces under the leadership of the state (exercised through norm directing objectives manifested as or in "law").

 

Just Published: (Anne Wagner and Sarah Marusek (eds)) Research Handbook on Legal Semiotics (Edward Elgar, 2023)

I am delighted to pass along the announcement of the publication of (Anne Wagner and Sarah Marusek (eds)) Research Handbook on Legal Semiotics (Edward Elgar, 2023).

This comprehensive Research Handbook explores the wide variety of work conducted in legal semiotics to provide a broad understanding of how the law works through signs and symbols. Demonstrating that law is a strategical system of fluctuating signs, contributors critically analyse the ever-evolving conceptualisations of law and legal discourse.

Contributors include: José Manuel Aroso Linhares, Larry Catá Backer, Kristian Bankov, Martin Belov, Patrícia Branco, John Brigham, Angela Condello, Marcel Danesi, Clara Chapdelaine-Feliciati, Peter Goodrich, Dariusz J. Gwiazdowicz, Nathalie Hauksson-Tresch, Paolo Heritier, Parineet Kaur, Miklós Könczöl, Anita Lam, Magdalena Łągiewska, Sarah Marusek, Aleksandra Matulewska, Rostam J. Neuwirth, Ahmad Pakatchi, Frank S. Ravitch, Mario Ricca, Elisabeth Roy Trudel, Michael Salter, Julia J.A. Shaw, Anita Soboleva, Amy Swiffen, Robbie Sykes, Mark Thomas, Kieran Tranter, Farid Samir Benavides Vanegas, Guilherme Vasconcelos Vilaça, Anne Wagner, Bartosz Wojciechowski, Youping Xu, Wei Yu, Kamil Zeidler, Marek Zirk-Sadowski.

Some colleagues have provided much appreciated endorsement:

‘This volume is an interdisciplinary tour de force. Scholars from around the world insightfully explore diverse signs and symbols of law. For those seeking to understand law in the evolving fullness of lived experience (including its cognitive, affective, social, cultural, and political dimensions) here is the place to begin.’ -- Richard K. Sherwin, New York Law School, US

‘This book provides new legal semiotics on the one hand, and fields of a deepened and revisited understanding of rules in law and legal thought formation on the other. It distances itself from traditional ideas, inviting the reader to wander in new dimensions of space, images and perspectives which were hitherto unknown in legal research.’ -- Jan M. Broekman, KU Leuven, Belgium

‘Law has not only a language but also a semiotics, a system of signs, texts and meanings that seek to bring order to the relationships among human beings. Never before this volume has an attempt been made to provide an all-encompassing tool for the study of such a system. Anyone working within the perimeter of linguistic, semiotic, and social studies of law will find this volume a distinctly useful starting point and reference.’ -- Massimo Leone, University of Turin, Italy

The Table of Contents (with links to some of the open access materials), along with the text (also open access) of Anne Wagner and Sarah Marusek's brilliant "Introduction: law as a strategical system of fluctuating signs" follows below.  Contributor bios may be accessed here. The submission draft of my own contribution, "Legal Semiotics, Globalization and Governance," may be accessed here.

Reflections on Brainstorming Roundtable Hosted by Surya Deva, UN Special Rapporteur for Development (29 Nov 2023): "business models for inclusive sustainable development"

 

Pix Credit here

 April showers bring may flowers, but what do brainstorm sessions bring? Organizations in the UK have the answer: offended reactions. Cities in both England and Ireland have banned the word “brainstorming” from use at various government agencies, asking their employees instead to use the term “thought showers.” (UK Bans The Word “Brainstorming,” Considered Offensive to Some Epileptics)

Surya Deva; pix credit here

 It was to my great delight that I received an invitation from from the UN Geneva Secretariat, on behalf of the UN Special Rapporteur fr Development (Surya Deva) to participate in "roundtable discussion on business models for inclusive sustainable development, which was held on 28 November 2023 from 09:00 am to 10:30 am at the Palais des Nations in Geneva in Room XXIII." The session is quite important for a variety of reasons: (1) building consensus among those who might influence everything from core normative principles to the application of those principles to regulatory systems at the local-state-international levels; (2) developing solidarity among stakeholders and identifying the breadth of the stakeholder community; (3) considering the scope of the interlinking between this project and a host of related initiatives around the broad theme of human rights (including development), sustainability, and climate change; (3) nudging consensus in a specific direction, the clues to which might be discerned from the questions that are to be the focus of the discussion. 

To that end, the in-person only brainstorming roundtable is to focus on a number of questions, some core sample of which include the following:  

1. Is a course correction required about the role and purpose of business in society? If so, how should this look like?
2. What changes are needed to the legal architecture concerning corporations such as corporate laws and international investment agreements?
3. How could people have an institutionalised say in corporate decisions making processes?
4. Are certain business models or business practices inherently problematic for being incompatible with the goal of realising all human rights or ignoring planetary boundaries?
5. Are there any good practice examples of business models that place people and the planet central to how business is run?

Pix credit here

 

The questions suggest the core of the inquiry, though additional questions may be welcomed in consultation with the secretariat before the start of the session. 

What is that core? The key terms define the trajectories of discussion: (1) course correction for business purpose; (2) changes in legal architecture for corporate law and investment treaties; (3) changing architecture of institutionalized say in corporate decision making; (4) identifying a range of organizational and practice taboos around the concept of forbidden private practices in business activity around principles of human rights/sustainability incompatibility and inherent problematics; and the (5)  modelling the ideal organization and operation of economic activity within institutions that aggregate productive forces. All of this makes perfect sense within the rationalized environment in which the discussion is to take place--

(a) one identifies a problem, business purpose, the core premise adherence to which is a necessary predicate for the discussion that follows; 

(b) one identifies the key current institutional forms, in this case law (broadly understood), that may be utilized toward the realization of the core premise (change business purpose); 

(c) one then identifies institutional transformations that might ensure the longevity of deployments of law toward definitively changing the permissible scope of business purpose, in this case de-centering investors (shareholders) to be replaced by stakeholders (the scope of the definition of which is a key subject of discussion); 

(d) in the manner of dialectical intersubjectivity, one then advances and refines the normative baselines as a consequence of the effects of realizing the objectives , in this case further advancing the normative development of human rights and sustainability principles in the forms of refinements of law and administrative supervision;

(e) and finally, in the course of this interactive process (premise/objective to implementation tool to institutional transformation to further development of normative premise--the fundamental process of normative intersubjectivity in human rights and sustainability) a disciplinary process grounded in iterative mimesis, in this case the development of toolkits and examples that serve both to guide actors toward compliance with new mandatory behaviors and to provide a basis for developing systems of accountability. 

The questions, then, are not focused on the core fundamental issues--should business purpose focus on development/innovation/production through private law rather than public policy (e-g-. Brief Thoughts on Martin Lipton: "ESG, Stakeholder Governance, and the Duty of the Corporation" (Harvard Law School Forum on Corporate Governance); to what extent is the premise of administrative supervision either a wise one (as norm or as applied) or one that complements the ideology of liberal democracy (e.g.,New From Shift: "Aligning the EU Due Diligence Directive with the International Standards: Key Issues in the Negotiations");  should private markets (and private production decision making) be abandoned in favor of a greater role for public authorities to guide macro-markets decision making (e.g., 对各类市场主体一视同仁 ["Treat All Market Players Equally"]: Developing the Formal Legal Framework for Markets-Based Activities in China) or perhaps better put, should privatized bottom up authority for economic production be abandoned or narrowed in favor of public institutional central planning (on the basis either of behavior norms, eg human rights/sustainability) or some other set of objectives, eg the development of social forces tp move toward the establishment of a communist society;Hold High the Banner of Anti-Globocolonization: "Que las ventajas de la globalización funcionen para las grandes mayorías de todos los países" ["May the advantages of globalization work for the vast majority of all countries"] Remarks by Miguel Mario Díaz-Canel Bermúdez, 1st Secretary of the Communist Party of Cuba (17 November 2023). 

 Given the unsettled nature of many of the underlying core premises of economic production, the state, and globalization, within a changing framework of behavior norm expectations, the governmentalization of private actors and the privatization of states, one can expect, and perhaps anticipate, the broad range of plausible responses but all as a  function of the guiding premises on which they are based. But that is not the object of the consultation or the questions generated around it. And thus some key core issues appear to emerge:

(1) should private markets, and with it, the core presumption of private gain with positive public collateral aggregate effects, be abandoned? More to the point, perhaps, should markets be understood as a complement to state authority--that is, as merely another means by which public policy may be translated into state directed action; or might markets continue to provide their own direction? 

(2) if private markets-driven economic activity is to be retained in some form, to what extent should the capital aggregating institution of economic activity be reformed to fair more robust direction by groups of actors other than investors--or put differently, should economic enterprises be subject to a democratic constitutional law of market actors?;

(3) if a larger regulatory space is to be created for public oversight of economic activity--including the scope, shape, and forms of economic production as well as favored or disfavored production, then what are to be its forms--classical mechanics of central planning; broad administrative supervision of every aspect of production but with private implementation mechanics; narrow administrative supervision focused on norms (human rights/sustainability) or norms and production ("just transitions" broadly understood);

(4) what may be the consequences of advancing broad theories of administrative supervision with respect to the laws of state owned enterprises; compensation for constructive nationalization; power to block foreign control; and the like;

(5) to what extent ought states to be stripped of a power to develop and apply macro-norms (development, climate change, just transitions, the extent of non-taboo markets); or where some national discretion is to be permitted, what would be the limits of national interpretive power;

(6) what is the role of transnational norm institutions, particularly religion and cultural institutions, to opt out of these systems at the national or international levels;More generally, to what extent are national conditions  to be a factor in the interpretation and application of the normative baseline premises of state supervision constituted, at their highest level of generality, within the sphere of international law/norm making?

(7) what role if any for risk taking and innovation--traditionally economic capital aggregation was grounded on a distinctive core premise, to encourage risk taking to enhance innovation through competition and private financial rewards; to the extent this premise is now to be discredited in favor of a more comprehensive application of prevent-mitigate-remedy risk adverse principles, how would innovation be (a) directed and (b) encouraged; and by whom?

Pix © Larry Catá Backer; Max Ernst, Celebes (1921)

The answers in Brussels, Washington, Beijing, and Geneva, even among their transnational elites, will likely tend to vary widely. Nonetheless, these are not the questions that are the focus of the roundtable; nor should they be, given the organizing premises of the meeting. Instead, and quite correctly given the nature of the meeting, it is focused on the means by which  a not-for-discussion set of core premises/goals can be most effectively fleshed out, and thus fleshed out, implemented, and from implementation, further refined. That is useful, to be sure. Nonetheless, it is important, given the context of the larger debates being undertaken around the questions and its guiding ethos, that a certain measure of normative transparency/agendas etc. be cultivated. 

Within those premises, central to the guidance provided by the form of the questions, answers become fairly straightforward, with lots of space to quibble around details. 

(1) Assuming that "capitalism" is to be discredited as a human rights compatible system of economic organization, and that markets must be viewed as suspicious in the absence of public guidance, then it follows that a "course correction" is both necessary and inevitable. Even if markets are reduced to a complementary instrument of public policy articulated or manifested through the process of the utilization of productive forces in economic activity, that course correction would have to follow the political line of public organization. It ought to be democratic (as that term might be understood in liberal democratic, Marxist-Leninist, or develping states); it ought to focus on the use of economic production to serve the political collective; and it ought to be guided in that respect by a political apparatus established for that purpose.  In effect, the idea of corporate purpose must be abandoned in its entirety in favor of a principle of productive responsibility to the political community.

(2) Assuming a "course correction" the legal consequences would be fairly easy to sketch out: (a) elimination of legal personality for economic aggregations; (b) elimination of the principle of asset partitioning (institutional autonomy or veil piercing) in favor of collective responsibility grounded in production chains; (c) institution of a legal principal of agency; that economic enterprises must be understood as an agent of the state; (d) reconsideration of the doctrine of sovereign immunity either to eliminate it entirely in the field of economic activity, or to extend sovereign immunity to all economic actors; (e) broadening the power of the state trough its functionaries to intervene in institutional production which are not directly undertaken by the state; (f) instituting systems of approvals and review of economic activity by public officials at the local, state, or national level. 

(3) At its limit, the process of democratizing corporate governance would  shift the power to appoint members of the board of directors ot the state through its designated administrative apparatus; at its limit the question suggests that the current classification that distinguishes between sate owned enterprises and private enterprises ought to be abandoned in favor of a principle that all economic actors operating in institutional forms are state owned or state directed enterprises. That would require substantial changes in the classical legal architecture of economic regulation. 

(4) here the old rules apply but under a new normative regime: states have always had the power to suppress certain forms of business organizations (for example private corporations in Europe in the pre-Modern period); states have always had the authority to suppress markets for certain goods (e.g., opium) or activities (e.g., prostitution). It would be an easy matter--CONCEPTUALLY AT LEAST--to transpose those old practices into the new normative orthodoxies of human rights/sustainability. That is not the problem: the issue is one of interpretation of those norms; application of those norms to specific behaviors and behavior expectations, and disciplinary regimes (what and by whom). It is here that the inherent contradictions of human rights and sustainability--and the inevitable ranking of such rights and objectives will re-produce a politics of operation now shifted from the market to markets in public policy. 

(5) practice examples, including mandatory practices, are growing. ESG sensibilities and toolkits provide a god example of practice oriented guidance models that can drive the transformations implied in the earlier questions; so can emerging human rights due diligence schemes mandated at the state level. Of course, the best model--given the core parameters around which the questions are built, would be the idealized state owned or state controlled enterprise. 

 The background text of the roundtable follows below.