Larry Catá Backer, The Trans-Pacific Partnership: Japan, China, the U.S., and the Emerging Shape of a New World Trade Regulatory Order, 13 Wash. U. Global Stud. L. Rev. 049 (2014),
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ABSTRACT: The role and shape of international trade agreements is changing. No longer simple devices for easing the movement of goods across borders, it is becoming both an instrument of integrated economic regulation at the supra national level and a tool of international relations within the emerging global economic order. The recently expanded scope of negotiations over the Trans Pacific Partnership (TPP) serves as a case in point, one that focuses both on the trilateral relations between Japan, the United States and China, and on the form of competition for control of the language of supra national economic regulation. The focus of this paper is on one critical new aspect of Japanese trade relationships that is likely to have significant economic and geo-political effects — the decision by Japan to join the U.S. led negotiations for a Trans Pacific Partnership (TPP), even as it pushes ahead with a Free Trade Agreement with China and Korea. I will first describe the TPP from its genesis as an effort by Brunei, Chile, New Zealand and Singapore to better integrate their economic relationships into current efforts to create a powerful free trade area of the Pacific that excludes China. I will then suggest some important strategic considerations that may follow from this important decision in the relationships between Japan, the U.S. and China, with emphasis on the way in which this affects contests for control of international rulemaking within the structures of economic globalization. For Japan TPP may represent containment within complex networks of multi lateral arrangements that protects its sizeable investment in China, at least temporarily, and permit it to leverage its power to influence global trade rules. For the U.S. TPP presents an opportunity to leverage power as well, by creating an alternative to WTO for moving trade talks forward in ways that serve U.S. governance interests in a more comprehensive way. For China, TPP represents an additional layer of containment, meant to constrain its economic power and to limit the value of its form of state capitalism. TPP represents the next wave of plurilateral comprehensive agreement that will shape the framework of global economic governance. It also suggests the growing importance of international agreements as the space within which the structures of economic regulation will be determined, to the detriment of state power. Within these structures TPP also reaffirms that Japan stands uncomfortably close to the fissure that separates U.S. from Chinese interests, and must continue to rely on the internationalization of rulemaking to protect its interests. An independent path for Japan is unlikely to be an option worth considering.
Larry Catá Backer, Crafting a Theory of Socialist Democracy for China in the 21st Century: Considering Hu Angang’s Theory of Collective Presidency in the Context of the Emerging Chinese Constitutional State, 16(1) Asian-Pacific Law and Policy Journal 29-82 (2014). blog.hawaii.edu/aplpj/files/2015/01/APLPJ_16.1_Backer.pdf
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ABSTRACT: In the West democratic constitutionalism is grounded on the premise that democracy occurs outside of the organs of state, through elections and discourse. Chinese constitutional theorists have begun to elaborate a distinct view — that democratic constitutionalism may also be grounded on the premise that democracy occurs within the organs of state and the political apparatus of the nation, through collective and representational decision making. Hu Angang has most recently expressed a theory of socialist democracy around the notion of a collective presidency. This essay considers Hu Angang’s theory and defense of the role of the CCP in China’s constitutional system, with particular focus on the evolution of the premises of collective action merged with democratic theory and applied to the operations of a party-state system. Its object is to theorize internal democratic structures of the CCP, and through them, of the government as a whole. Its focus is on the development of collective leadership. Part I first considers the theoretical underpinning of the theory of collective presidency — grounded in China’s history, context and its political ideology. The object is to better situate the history and utility of a collective presidency within the political structures and ideological premises of Chinese constitutionalism, and then to consider the connection between that construction and global principles of constitutional democracy. Part II then considers the arguments advanced for the efficiency and representation-reinforcing elements of the collective presidency — collective succession, collective labor division and cooperation, collective learning, collective research, and collective decision-making. Part III briefly considers the work that remains to be done as the CCP continues to scientifically develop the theory of democratic socialism and attends to the harder task, not of drawing theory form facts, but of living theory through practice. The essential insight of the Chinese move toward a distinct socialist democracy is not that that there can only be one best approach, but its opposite — that it is not which state is more democratic in accordance with a singular formula, but whether every state develops democratic structures effectively responsive to its own conditions. It is only in this context that comparison becomes useful.
Larry Catá Backer, The Emerging Structures of Socialist Constitutionalism With Chinese Characteristics: Extra-Judicial Detention (Laojiao and Shuanggui) and the Chinese Constitutional Order, 23(2) Pacific Rim Law & Policy Journal 251-341 (2014) (With Keren Wang). https://digital.lib.washington.edu/dspace-law/handle/1773.1/1365
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ABSTRACT: This paper considers the development of constitutional rule of law theory with Chinese characteristics by considering its application in two related but distinct legal contexts – laojiao (the system of administrative detentions, re-education through labor, or “劳动教养”) and shuanggui (the system of intra-Chinese Communist Party (CCP) discipline of its cadres 双规). China is developing its own distinctive path towards socialist constitutionalism and rule of law. Socialist constitutionalism with Chinese characteristics reflects China’s history and its unique circumstances, but also conforms to the general principles of transnational constitutionalism. The Chinese constitutional order is grounded on a principal of separation of powers that distinguishes between an administrative power assigned to the government and a political authority assigned to the CCP. Administrative constitutional power is organized within the State Constitution; the authority of the CCPis acknowledged in the Constitution but framed by the ideological premises on which the political order is founded — under the guidance of Marxism-Leninism, Mao Zedong Thought, Deng Xiaoping Theory the important thought of ‘Three Represents’ and the concept of scientific development. The paper will first briefly review the emerging framework of the Chinese constitutional order, represented by the respective roles of the state apparatus and the CCP. The paper then will review the laojiao and shuanggui systems, the former applicable to all individuals and the later applicable only to CCP members. It will suggest why laojiao is constitutionally problematic but shuanggui is constitutionally sound under the current Chinese constitutional framework. Shuanggui deals with political, rather than administrative breaches that touch on the integrity of the role of the CCP as Party in Power. It is in this sense beyond the competence of the administrative authorities represented by the government apparatus and relates to the constitution of the CCP rather than the constitution of the state and its administrative authority over the people. As a consequence, the shuanggui system is not subject to the same constitutional difficulties as laojiao. The paper ends with a suggestion of the ways in which shuanggui might benefit from scientific development under China’s rule of law constitutional system in the way it is administered, that is the ways in which shuanggui might be reformed to better conform with CCP constitutional principles.