“中国共产党创造出世界上最活跃的发展体制” (CCP Created the World’s Most Dynamic Development System”, interview with Zhao Yining, 决策与信息（Decision and Information), 2012 Vol.12, December 2012, ISSN 1002-8129.
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Abstract: 作为一名古巴裔美国人,Larry CatáBacker 教授一直对社会主义体制有着浓厚的兴 趣。之前他曾经对古巴社会主义制度所带来的经济
与政治问题做过研究。正是在研究社会主义制度的 过程中他认识到了中国政治体系的独特性。他认 为,在诸多信奉马克思列宁主义的国家中中国是最 成功的一个。“如果要想充分理解马克思列宁主义 在当代所面临的种种问题,必须首先关注中国的政 治制度发展”他说,令人遗憾的是,当下很多欧美学 者单凭他们自身的西方意识形态去理解中国政治。 所以他决定走出这种西方中心视角,通过接触大量 来自中国的信息获得全视野,结合中国内外的观点 去研究中国的政治体制。在中共十八大召开前夕, 作为对外国学者的专题报道,我采访了 Larry Catá Backer 教授。
The Structural Characteristics of Global Law for the 21st Century: Fracture, Fluidity, Permeability, and Polycentricity, 17(2) Tilburg Law Review 177-199 (2012).
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Abstract: Global law can be understood as the systematization of anarchy, as the management of a loosely intertwined universe of autonomous governance frameworks operating dynamically across borders and grounded in functional differentiation among governance communities. More conventionally, global law can be defined as the law of non-state governance systems. Global law posits a stable universe of objects of regulation around which governance systems multiply, the inverse of the traditional approach to law grounded on the presumption of a dynamic population bound to static and stable systems. The essay considers the structure of global law in this context, understood as an amalgamation of four fundamental characteristics that together define a new order in form that is, in some respects, the antithesis of the orderliness and unity of the law-state system it will displace (though not erase). These four fundamental characteristics—fracture, fluidity, permeability, and polycentricity—comprise the fundamental structure of global law. These also serve as the structural foundations of its constitutional element, its substantive element, and its process element. The essay considers each in turn in the construction of global law.
Party, People, Government, and State: On Constitutional Values and the Legitimacy of the Chinese State-Party Rule of Law System, 30(1) Boston University International Law Journal 331-408 (2012).
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Abstract: The Chinese constitutional order is grounded in the distribution of popular sovereign power between the Chinese Communist Party and the administrative apparatus of the government of the state, privileging the political authority assigned to the Party over the administrative authority vested in the government. For those who embrace the order- ing framework of western style constitutionalism, this organizational model poses novel questions about the legitimacy of the system itself. This article addresses those questions and attempts to articulate a basis for a legitimizing constitutionalist theory for states, like China, organized on a State-Party model. Since the establishment of the Soviet Union, constitutional theory has tended to look suspiciously at the constitutionalization of Marxist governments under the control of a single party in power. Such arrangements, even when clothed in the formal language of written constitutions, are generally considered ille- gitimate, especially in regimes in which the state’s power is vested in a government that is itself subject to the direction of an extra-constitutional power. In this context, constitutionalism is incomprehensible. These judgments have formed the basis of analysis of Chinese constitutionalism, serving as the foundations for critique of the reforms of Deng Xiaoping and his successors since the 1980s. This article examines whether these criticisms are inevitably correct in general, and wholly applicable in the current Chinese constitutional context. The relationship of constitutionalism to the Chinese constitutional system is examined. The article asserts that in order to understand Chinese constitutionalism, it is not sufficient to equate the constitutional system with the written constitution alone. Instead, China has moved toward a legitimately constitutionalist governance system in which power is divided between a vanguard party, which serves as the repository of political power, and the administrative organs of government. Thus understood, the Chinese constitutional system is both unique and legitimately constitutionalist.
From Institutional Misalignments to Socially Sustainable Governance: The Guiding Principles for the Implementation of the United Nation’s “Protect, Respect and Remedy” and the Construction of Inter-Systemic Global Governance, 25(1) Pacific McGeorge Global Business & Development Law Journal 69-171 (2012).
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Abstract: Once upon a time, and for a very short time, there was something that people in authority, and those who manage collective memory, considered a stable system of political and economic organization. It was grounded on a complex division of authority between states, economic entities and social collectives. Contemporary economic globalization has destabilized this traditional system. Corporations are no longer completely controlled by the states that chartered them or within complex enterprises, even by those in which they operate. Social collectives now operate to change the political cultures that affect the public policy of states and the economic behavior of companies. These changes have produced a dynamic state in governance, one which has been characterized as furthering misalignment among governance regimes. These misalignments have the potential to detrimentally affect the welfare of individuals and groups. Over the last decade a number of efforts have been made to offer a new context for stability in the relationships between the political, economic and social orders at the national and international levels. Among the most valuable proposals, one most likely to contribute significantly to the new governance order, has been efforts to elaborate a transnational regulatory framework for transnational corporations and other business enterprises – the United Nations’ ‘protect, respect, and remedy’ framework. This framework system has been developed to reframe the way in which the political, economic and social governance orders work together. Now reduced to a set of Guiding Principles, this framework seeks inter-systemic harmonization that is socially sustainable, and thus stable. The framework both recognizes and operationalizes emerging governance regimes by combining the traditional focus on the law systems of and between states with the social-systems of non-state actors and the governance effects of policy. This paper critically analyzes the Guiding Principles and its three key parts – the state duty to protect, the corporate responsibility to respect and the access to remedies. Part One provides a short introduction to the problems and issues that led to the movement toward the development of a framework for governance regimes for business and human rights. Part Two then focuses on the development of the Guiding Principles from conception to articulation. Part Three examines the Guiding Principles in detail. The examination starts from the report introducing the Guiding Principles, and then turns to a section-by-section analysis of the Guiding Principles themselves. These serve as a basis for an overall assessment of the Protect, Respect and Remedy framework as a viable, coherent and comprehensive effort to frame a governance regime for business and human rights. The Protect, Respect and Remedy Framework operationalized through the Guiding Principles presents an innovative approach to governance. But its most forward looking and valuable characteristics are also ones that make the project vulnerable – for states there is too great a recognition of the autonomy and power of social-norm systems. The GP framework represents a microcosm of the tectonic shifts in law and governance systems and the organization of human collectives confront the consequences of globalization.