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Village cadres are important agents for the state yet disciplining them has been difficult. There are few disciplinary tools that can easily hold them to account. Prior to 2018, Party discipline did not apply to non-Party cadres. Legislation was ambiguous in relation to these grassroots agents and had to rely heavily on legal interpretation. The impact of the cadre evaluation system on village cadres, who are not considered to be public servants on the state payroll, was limited. This situation has changed since 2018. The party-state has consolidated and institutionalized ways in which grassroots cadres are checked and disciplined. Instead of relying on policy regulation, which had been the dominant disciplinary method since 1949, village cadres are now fully subject to Party rules and state laws. These changes have been accomplished through the application of three measures. First, village Party secretaries are to serve concurrently as village heads, and members of village and Party committees are to overlap, thereby making them subject to Party discipline. Second, village cadres are now considered to be “public agents” and are on an equal legal footing with other state agents. Finally, a campaign waged by the criminal justice apparatus cleaned up village administration and prepared it for upcoming village elections in a new era.
Law is a powerful commitment device. By entering into a binding contract, a contracting party can invoke the coercive law enforcement powers of states to compel another party to perform. Many, if not most, contracts are carried out without ever invoking these coercive powers; they operate in the shadow of the law. Less attention has been paid to the flip side of law’s shadow: the possibility of relaxing or suspending the full force of the law, or making law elastic. While this may seem anathema to the “rule of law”, it is not an infrequent occurrence, especially in times of crisis. The elasticity of law should be distinguished from the incompleteness of law, that is, the inherent limitation lawmakers face in trying to anticipate all future contingencies. In this paper I will offer two tales of the American Insurance Group (AIG) to illustrate the elasticity of contracts as well as of law.
The chapter concentrates on the intellectual and social identity of the author of the late twelfth-century English law book known as Glanvill, by examining his context, formation and outlook. The method is twofold: first, close engagement with the text, not just what it says, but also how it says it, not just content, but also form and language; secondly, comparison, especially with Richard fitzNigel’s Dialogue of the Exchequer, but also with works from the learned law tradition, in particular the procedural manuals known as Ordines. The chapter explores the processes of composition of the treatise; the significance of its form and style as a means of establishing authority; the ways in which the author identifies with particular courts and particular sources of law; the standing given by specialist knowledge and legal authority; and finally the possible audiences, imagined and real.
This article develops a typology of historical and archival gaps—physical, historiographical, and epistemological—to consider how non-existent sources are central to understanding colonial law and governance. It does so by examining the institutional and archival history of a court known as the Chaudrie in the French colony of Pondichéry in India in the eighteenth century, and integrating problems that are specific to the study of legal history—questions pertaining to jurisdiction, codification, evidence, and sovereignty—with issues all historians face regarding power and the making of archives. Under French rule, Pondichéry was home to multiple judicial institutions, administered by officials of the French East Indies Company. These included the Chaudrie court, which existed at least from 1700 to 1827 as a forum where French judges were meant to dispense justice according to local Tamil modes of dispute resolution. However, records of this court prior to 1766 have not survived. By drawing on both contemporaneous mentions of the Chaudrie and later accounts of its workings, this study centers missing or phantom sources, severed from the body of the archive by political, judicial, and bureaucratic decisions. It argues that the Chaudrie was a court where jurisdiction was decoupled from sovereignty, and this was the reason it did not generate a state-managed and preserved archive of court records for itself until the 1760s. The Chaudrie’s early history makes visible a relationship between law and its archive that is paralleled by approaches to colonial governance in early modern French Empire.
This article studies the promulgation of law in Qin and Western Han China (221 b.c.e.–9 c.e.) based primarily on excavated legal and administrative texts. It shows that a new law was handed down from the emperor to the relevant offices on the day of enactment. The article argues that, to an extent, the subject matter and function of a law determined for whom it was passed and promulgated. Depending upon the location, rank, and official duties of the offices, the laws known and used could be quite different. Although it was required that documents of imperial decisions be forwarded swiftly and safely by courier at the prescribed speed, delays in forwarding such documents to distant local offices were probably common in Qin and Western Han China. Evidence indicates that district- and prefecture-level officials publicized laws that needed to be made known by the common people, by reading them aloud in local gatherings, for example, or posting them in conspicuous places. The article further argues that a law came into effect in offices on the day it arrived at local courts or on the day it was enacted in the central court, depending on the existence of related extant laws. It concludes that a new law in Qin and Western Han China was ex post facto, as it reached backwards to a past action and retroactively attached liabilities to the action at the point when it was performed.
Inside the information industry, management leverages the tools of coercive bureaucracies to routinize work that serves data-extractive ends. Corporate bureaucracies work subtly to set privacy discourses among company employees, inculcating corporate-friendly understandings of privacy as frontline workers approach their work. Organizations hobble privacy offices and amplify voices that interpret privacy law in ways that serve corporate interests. Management also constrains designers in the design process, feeding software engineers’ ambivalence toward privacy and using organizational structures to make it difficult for anyone to build better privacy protections into the designs of new technologies.
Privacy’s performances begin with discourse. This is an important step. By influencing how we think about privacy, by inculcating definitions of privacy that are so narrow, outdated, and corporate-friendly, tech companies can ensure that even those employees who consider themselves privacy advocates will nevertheless end up serving data-extractive business models in the end.
The information industry’s discursive performances have influenced everyone, including policy makers, privacy professionals, and ordinary users of technology. The campaign has seen its greatest success in the United States, where tech companies and their allies are actively undermining the push for a comprehensive national information privacy law, where studies show many people have given up on the hope that they can adequately protect their privacy online, and where many privacy professionals see corporate-friendly privacy discourses as ordinary, routine, and common sense.1
This book has been about the tools the information industry uses to routinize an antiprivacy ethos and practice through its organizations. Of course, not all tech companies use all of these tactics: some use a few, some use more, some use none. But these strategies are in use, and they have the effect of marginalizing privacy throughout the everyday work of law and design. More than just a collection of strategies, they are features of informational capitalism. They help explain how data-extractive capitalism persists.
Through a long campaign to inculcate corporate-friendly discourses about privacy, the information industry tilted our legal consciousness away from privacy and enlisted even those employees who see themselves as privacy advocates in their data-extractive missions. This softened the discursive ground on which we think and talk about privacy and weakened the privacy laws we manage to pass. Technology companies then took advantage of public-private partnerships explicitly built into those privacy laws to undermine their effectiveness. They used coercive bureaucracies and took advantage of power asymmetries to develop compliance programs that reoriented and recast privacy laws in ways that served their surveillant interests. As a result, the information industry undermined the institutions that are supposed to protect our privacy.
How can privacy law and corporate commitments to privacy be on the rise without it having a significant effect on the designs of new technologies? Tech companies use the tools of coercive bureaucracies to routinize antiprivacy norms and practices in privacy discourse, compliance, and design. Those bureaucracies constrain workers directly by focusing their work on corporate-friendly approaches to privacy. As information industry workers perform these antiprivacy routines and practices, those practices become habituated, inuring employees to corporate surveillance even as they earnestly profess to be privacy advocates. The result is a system in which the rank and file have been conscripted into serving the information industry’s surveillant interests, and in which the meaning of privacy has been subtly changed, often without them even realizing what’s going on.
We are told that accepting widespread corporate surveillance is a natural progression for human civilization. Peter Schwartz, a senior vice president at Salesforce: “Gradually, we will accept much, much greater surveillance. And in the end we won’t be too bothered by it.” Thomas Friedman in 2014: “Privacy is over.” Mark Zuckerberg in 2010: “The age of privacy is over.” Sun Microsystem’s former CEO Scott McNealy in 1999: We “have zero privacy anyway. Get over it.”1
In Industry Unbound, Ari Ezra Waldman exposes precisely how the tech industry conducts its ongoing crusade to undermine our privacy. With research based on interviews with scores of tech employees and internal documents outlining corporate strategies, Waldman reveals that companies don't just lobby against privacy law; they also manipulate how we think about privacy, how their employees approach their work, and how they weaken the law to make data-extractive products the norm. In contrast to those who claim that privacy law is getting stronger, Waldman shows why recent shifts in privacy law are precisely the kinds of changes that corporations want and how even those who think of themselves as privacy advocates often unwittingly facilitate corporate malfeasance. This powerful account should be ready by anyone who wants to understand why privacy laws are not working and how corporations trap us into giving up our personal information.
Citizenship is not a neutral and stable status upon which to base rights, freedoms, and protections. It is also not a status available to all. As this chapter illustrates, citizenship is precarious and has never been a secure foundation upon which to base human rights. In the securitized world of the twenty-first century, this instability has heightened, especially for minorities. To make this argument, the chapter is divided into three sections. The first section explains how citizenship arose in international practice and law and how states translated international practice into defined nationality laws in the domestic sphere. This section highlights how before citizenship became a status to which human rights attached, it was, first and foremost, an international ordering principle. The second section demonstrates how states have historically excluded various groups, typically minorities, from enjoyment of full citizenship status, thereby endangering said groups’ access to human rights. The third section provides contemporary examples of citizenship deprivation and denial, highlighting the myriad justifications that states use to deny and deprive people of citizenship.
Harsh migration enforcement has sparked courageous humanitarian reactions and hundreds of criminal prosecutions. Such prosecutions ostensibly seek to vindicate the power of governments to control nation-state borders. But they seem, ironically, to have achieved the opposite: They have vindicated, reinvigorated – and even inspired new forms of – basic human rights. This chapter examines three cases: Cédric Herrou, a French olive farmer who was criminally tried for assisting unauthorized migrants in France; German “rescue” ship captains, Carola Rackete and Pia Klemp, prosecuted for rescuing distressed migrants at sea and bringing them to Lampedusa, Italy; and Scott Warren, prosecuted after allegedly providing food, water, beds, and clean clothes to undocumented immigrants in Arizona. The verdict in Herrou’s case was overturned because fraternity was recognized as a constitutional value. Captains Klemp and Rackete appealed to the ideal of “solidarity.” Warren’s attorney intoned to the jury, “Being a good Samaritan is not against the law ….” These encounters implicate deep questions of constitutional legitimacy and migrant rights, involving the presence of migrants with definable – if not yet enforceable – rights claims. They illustrate a dynamic process of mediating tensions between “sovereign” power and human rights, an essential revitalizing project for constitutional democracy and human rights law.
Though months have passed since the Trump administration ruthlessly enacted a “zero tolerance” family separation policy at the US–Mexico border, punitive deterrence policies remain the dominant governmental response to humanitarian emergencies. These policies violate longstanding constitutional values and institutional norms as well as national and international legal obligations to non-citizens. This chapter outlines these obligations; details the inhumane, futile, and violative policies deployed by the Trump administration to block or otherwise deter the entry of humanitarian migrant children and families; and proposes several alternatives to achieve a more equitable, effective, efficient, and law-abiding immigration policy. Key recommendations include increasing regional economic and civic collaboration; reinstituting supervised family release and legal representation to families and unaccompanied children; establishing special immigration policies that prioritize credible and well-regulated refugee status reviews particularly for children and families fleeing violence and persecution; expanding refugee resettlement programs at the federal, state, and local level; and subsidizing scholarship programs for at-risk children and adolescents. Reforms that protect the health and human rights of non-citizens not only advance equity, but also benefit the economic, social, and political interests of United States.
Legal advisers working in the institutions of the European Union exercise significant power, but very little is known about their work. Notwithstanding the handful of cases where legal matters find their way into the news, legal advice remains invisible in EU policy making. For more than ten years Päivi Leino-Sandberg was a part of the invisible community of EU legal advisers, and participated in the exercise of their power. In this book, she shares her insights about how law and lawyers work in the EU institutions, and what their role and impact is on EU decisions from within the decision-making structure. She draws on interviews with over sixty EU lawyers and policymakers: legal experts who interpret the Treaties within the Institutions, draft legislation and defend the Institutions before the EU Court. Telling the true stories behind key negotiations, this book explores the interplay and tensions between legal requirements and political ambitions.
Chapter 8 focuses on a second interaction between Gukurahundi history, law and citizenship by looking at the trial of visual artist Owen Maseko. For his exhibition on the experiences of Gukurahundi, Maseko stood accused of ‘inciting tribal hatred’. In their courtroom narratives, prosecutors elaborated on this accusation to communicate ZANU-PF’s continued control over instruments of coercion to a ‘Matabele’ audience. Maseko and his defence team, in turn, performed in a rule-bound manner to draw attention to Maseko as a citizen with the freedom to express his interpretations of history, and to put these in the public domain for debate, rather than as a ‘criminal’ for failing to align with ZANU-PF’s historical narrative. These different forms of courtroom performance highlight how the Gukurahundi as a violent historical event continued to inform negotiations over citizenship, and the understandings of law’s legitimacy and state authority that they encompassed, in this region.
Chapter 2 demonstrates how, after 2000, ZANU-PF extended its political control over the judiciary by staffing its institutions with political appointees. Within the attorney general’s office, such political interference ran from the attorney general himself down to prosecutors working on ZANU-PF’s ‘instructions’. It argues, however, that when we look at the working conditions in the Attorney General’s office more closely, the fragmented hegemony of law within the Zimbabwean state becomes evident. ZANU-PF-instructed prosecutors – the ‘good boys’ – who were willing to set aside their professional conduct to toe the party political line, sat side by side with ‘rebel’ prosecutors, individuals who conducted themselves impartially and did their job ‘professionally’ in an effort to safeguard ‘substantive justice’. In its attempts to exert political control over the attorney general’s office, the ZANU-PF-led government had to contend with historical debates over state professionalism, which rooted law’s legitimacy in legal institutions’ capacity to deliver justice, and tied state authority to the protection of this capacity. In their performances, ‘rebel’ prosecutors positioned themselves as actors within a wider community of judicial officials, human rights lawyers, activists and citizens that shared this consciousness of the value of professionalism.