Larry Catá Backer, “Chinese Constitutionalism in the ‘New Era’: The Constitution in Emerging Idea and Practice,” Connecticut Journal of International Law 33(2):163-213 (2018).
DOWNLOAD HERE: Backer 33(2)UConnJIntlL6.13.18
Abstract: The 19th Congress of the Chinese Communist Party concluded at the end of October 2017. It set the fundamental policy positions of China’s leadership for the next five years with particular emphasis on its approaches to constitutionalism, law, and the political theory of the state. These internal political changes will have substantial effects on China’s external relations and on the ways in which Western liberal democracies engage with China. In that context among the most important questions for law revolve around the extent and character of the evolution of CPC thinking, and the CPC Basic Line, with respect to Socialist Rule of Law and Socialist Constitutionalism now bound up in the adoption of “Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era.” The question is central to a consideration of the Work Report delivered by Xi Jinping reflected in the resulting final Resolution of the 19th Congress to amend the Constitution of the Chinese Communist Party and thereafter in 2018 to amend the State Constitution to reflect the advances in political principle and the CPC political framework embedded in the CPC Constitution. A key element of that question involves constitutional trajectory: to what extent did this report reflect an official downshifting of the importance of the state constitution and constitutionalism within the construction of Chinese notions of Constitutionalism, and if so, what variation on constitutionalism is likely to emerge? If so, what are the effects of any such downshift on the relation between the state and the political constitutions of China. To that end, it is worth considering whether principles of constitutionalism for the “New Era” may be extracted from Xi Jinping’s Report to the 19th Congress. And if they can, to try to extract a sense of the likely characteristics of emerging structures of Chinese constitutionalism. What follows, then is a preliminary report and assessment of Constitutionalism with Chinese Characteristics in the New Era from Out of the 19th CPC Report. After this short introduction to the issues and context of Chinese constitutionalism before the 19th Congress, Section II provides a contextual framework for situating the constitutional work of the 19th CPC Congress within contemporary Chinese currents of constitutional theory. Section III then explores the references to notions of constitution in earlier CPC Congress Reports. Section IV then turns to the consideration of the constitution project for China in the “New Era.” It first considers in more detail the understanding of constitution and its role in politics and governance within the 19th CPC Congress Report itself. It then explores the role of constitutionalism within the structures of the 19th CPC Congress Report through a close reading of the specific references to constitutions in the Report (state, political and mixed). Lastly, it provides a concise consideration of the connection between constitutionalism and the emerging characteristics of Chinese consultative democracy.
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白 轲 [Larry Catá Backer], 测度、评估和奖励：中国和西方建立社会信用体系的挑战？ (Measurement, Assessment and Reward: The Challenges of Establishing a Social Credit System in China and the West?) ( “互联网金融法律评论（jiflsjtu）”微信公众平台。前沿栏目·第三季第21篇（总第182篇）. (Shanghai Jiaotong University “Internet Financial Law Review (jiflsjtu)).
DOWNLOAD HERE: 独家_21(182)InternetFinanceLawRev2018
[English Language Summary: Social credit can be understood in two senses. First, Social Credit itself references the specific project of the Chinese state to create a comprehensive legal and regulatory mechanism that they have named “social credit.” Second, it refers generally to a new mode of governance that recombines law and governance, and the public and private spheres in new and hybrid ways that will likely transform the structures and principles on which legal, governance, and societal regulatory systems are now understood and through which they acquire their legitimacy. In both senses, the structures of social credit are similar. In each case the system seeks to rate or score or assess the object of regulation through a process that requires the acquisition of specific and relevant data, which is then interpreted through the application of an algorithm to produce an assessment or a score or a measure which can be used to assess compliance with underlying objectives. Those scores than serve to guide the application of legal or administrative decisions—they can trigger rewards or suggest punishment. The triangular relationship between governmentalization (of both public and private institutional actors with managerial power), the mass of the population (which is its object and now its foundation), and the ‘statistics’ (that both define and serve to manage the mass of the population) is the essence of the problem of transparency in the twenty-first century. (Backer 2013). At its limit, the enterprise of social credit suggests both the emergence of a new field of law as well as the negation of the privileging of law within economic and political structures. On the one hand, one might be tempted to see in the social credit enterprise a notion of the dissolution of the constitution of law within itself; that is that the structures of legality, and its constitution, will have consumed itself. What will emerge from that self-consumption will be the methods and systems that it had once generated and which had been deployed in the service of the constitutional project—that the success of the constitutional notion will ultimately consume it so that where once there was constitution there will only be mechanics; where once there was principle, there will only be data; and where once there were norms, there will be “statistics.” This is bound up in the more fundamental idea of the end of law and the irrelevance of lawyer except as technician of a new system the lawyer no longer controls. On the other hand, the success of social credit may require and indeed may be dependent on the simultaneous development of a law for the digital and data age. That is, in the digital age, society (however constituted) is even more in need of law’s nomos and narrative. That nomos and narrative may vary depending on the societal and political context, but it must nevertheless develop alongside the re-constitution of the principles, customs and manners of governance. To understand social credit, one must understand the evolving structures of the relationships, in law and politics, of the relationships between states, its masses, and the institutions through which it operates.
This short essay has two objectives. The first is to examine the challenges that social credit, ratings or assessment systems pose for effective implementation. To that end, Section II considers first the difficulties of separating the role of social credit as a set of techniques and as a means of advancing ideological principles and objectives. It then considers social credit as a project of informatics. It then examines the control element of social credit systems, and ends with a consideration of social credit as governance. To understand the shaping of law today (and soft law as well) one must understand social credit. Section III then considers some of the ways in which Western efforts at social credit institutions have sought to meet these challenges. It considers the context of social credit systems in the West, and its operationalization, principally in the private sphere. It examines the use of asocial credit as a technique of governance and as a means of embedding international standards in domestic behavior.]
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Larry Catá Backer, “Theorizing Regulatory Governance Within its Ecology: The Structure of Management in an Age of Globalization,” Contemporary Politics 24(5):— (Special Issue (online, 2018; print forthcoming)).
DOWNLOAD PRE-PUBLICATION VERSION HERE:REV_12-2017BackerV5_CLEAN
FINAL VERSION MAY BE PURCHASED HERE: https://www.tandfonline.com/doi/full/10.1080/13569775.2018.1452108?needAccess=true.
ABSTRACT: This paper examines regulatory governance within its own ecology. It considers regulatory governance as an ideology of governance, as its own set of techniques to that end, as a methodology and psychology of the relations of regulatory organisms to one another and to their physical surroundings. The object is to seek to chart the structures and modalities of this ecology to understand the character that makes it both coherent (singularly as the method of regulating a field, and in the aggregate, as a means of structuring regulation as an exercise of ordering power). After a brief introduction, the essay identifies the ecology within which regulatory governance arises. The context is Bangladesh and global supply chains in the garment sector. The paper then seeks to theorize the meta structures of regulatory governance within this ecology.
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白 轲 [Larry Catá Backer], 西方反腐领域新举措，从“各自为政“到“一股合力“ 58(2):17-30 吉林大学社会科学学报 — [Sword One Thrust Strategy” to Combat Criminal Corruption: Corporate Compliance, Prosecutorial Discretion, and Sovereign Investor Oversight, Jilin University Journal of Social Science] 58(2):17-30 (2018) (ISSN 0257-2834; DOI 10.15939/j.jujsse.2018.02.fx2).
DOWNLOAD MANUSCRIPT HERE: 从“各自为政”到“一股合力”，（西方）反腐领域新举措：企业合规法律制度，公诉人自由裁量权以及国家主权投资人制度
摘要：近些年来，政府机关、国际组织以及企业对打击腐败犯罪所做的承诺不断加强。政府机关和社会组织似乎同时形成了两股打击腐败犯罪的力量：这些努力体现在政府机关通过利用、发展和实施公法权力，而社会组织通过利用、发展和实施私法制度来对抗腐败犯罪。然而这两股力量却未能相互配合共同打击腐败。最近西方社会上出现了打击腐败犯罪的新模式，“双剑反腐，同时出力”，以补充传统的反腐手段。这一模式融合了国家司法人员拥有执行反腐败法律的自由裁量权和金融机构控制企业投资融资渠道以及施加股东权利来制约和规范市场交易行为。本文通过介绍西方国家经验向中国反腐制度发展提出新的思路以及思考。首先，本文将介绍西方国家通过实施公诉人自由裁量权制度来迫使企业革新内部管理，进行自我约束、避免腐败。其次，本文将介绍另一种约束腐败的举措：即在公诉人向企业施压的同时，通过主权投资人的资本权力来加强和影响企业的内部管理。最后，本文将讨论中国结合公诉人追诉权和主权基金投资人资本权力规范和制约企业交易行为，形成反腐“组合拳”。[Abstract: In recent years, government agencies, international organizations, and businesses have been increasingly committed to fighting corruption. Government agencies and social organizations seem to have simultaneously formed two forces to fight corruption crimes: these efforts are reflected in the use, development and implementation of public law power by government agencies, while social organizations use corruption, crime, through the use, development and implementation of private law systems. However, these two forces have failed to cooperate with each other to fight corruption. Recently, a new model for combating corruption crimes has emerged in Western society. This model combines the discretion of national judicial personnel to enforce anti-corruption laws and financial institutions to control corporate investment financing channels and impose shareholder rights to restrict and regulate market transactions. This paper proposes new ideas and reflections on the development of China’s anti-corruption system by introducing the experience of Western countries. First of all, this article will introduce the Western countries to enforce the public prosecutor’s discretion system to force enterprises to innovate internal management, self-discipline and avoid corruption. Secondly, this article will introduce another measure to constrain corruption: that is, while the public prosecutor puts pressure on the enterprise, it strengthens and influences the internal management of the enterprise through the capital power of sovereign investors. Finally, this paper will discuss China’s combination of prosecutors’ right of prosecution and sovereign fund investors’ capital power regulation and restricting corporate transactions, and form a “combination boxing” against corruption.]