Larry Catá Backer

Pennsylvania State University | Penn State · Penn State Law, School of International Affairs

Cambridge Core - Human Rights - The Future of Business and Human Rights - edited by Jernej Letnar Cernic

This article examines regulatory governance (‘RG’) within its own ecology. It considers RG as an ideology of governance, as its own set of techniques to that end, and as a methodology and psychology of the relations of regulatory organisms to one another and to their context. The object is first to chart the structures and modalities of this ecolog...

Though operating in some form or another for over half a century, sovereign wealth funds (SWFs) did not become an object of general attention until the early part of the 21st century when a combination of the need of developed states for investment and the growing acceptability of state investment in private markets abroad made them both threatenin...

China's new Charity Law represents the culmination of over a decade of planning for the appropriate development of the productive forces of the charity sector in aid of socialist modernization. Together with the related Foreign ngo Management Law, it represents an important advance in the organization of the civil society sector within emerging str...

Recent efforts have sought to theorize the legalization of the social and economic sphere that is undiminished by time. Though the context has changed over time, the project remains the same—to embed behavior control within a network of mandatory proscriptions attached in some authoritative way to the state. Corporate social responsibility has been...

This collection of innovative contributions to the study of legal pluralism in international and transnational law focuses on collisions and conflicts between an increasing number of institutional and legal orders, which can manifest themselves in contradictory decisions or mutual obstruction. It combines theoretical approaches from a variety of di...

The problem of representation has become a central element for the development of human rights norms, not just within international organizations, but within states as well. The problem has been made acute by two significant changes in the organization of power that became visible after the 1950s. On one hand, the idea of the individual became more...

Globalization has produced a wealth of writing that seeks to theorize the emerging relationships between states, non-state actors (especially multinational corporations), and international organizations. For lawyers, the relationship among these actors through law is especially meaningful. What has been emerging in recent years with greater clarify...

Regulatory governance is sometimes seen as a thing apart, as another framework within which individuals, and productive forces, may be managed, and through which the institutions of a governance apparatus can be legitimated and deployed. It is a technique — replacing the command imperative of law with the sensibilities of management. It is a form o...

What is the scope and nature of judicial reform? To what extent does borrowing from Western models also suggest an embrace of the underlying ideologies that frame those models? It is a common place in the West, whether in Common Law or Civil Law states, that the integrity of the judiciary depends on their authority to interpret law and to apply tha...

Religion has returned to the secular state; does crisis result? Conflating variations of Marxist-Leninist states, whose godless communism" of the 20th century sought to marginalize religion as a political adversary, with the Westphalian state that sought to avoid sectarian Conflict by separating the institutional state from the apparatus of religio...

The adoption of the United Nations Guiding Principles on Business and Human Rights in 2011 marked a watershed moment, establishing the first global standards for preventing human rights abuses by business. In light of this paradigm shift, The Business and Human Rights Landscape offers the most comprehensive analysis to date of the current legal fra...

Eco in the Manifesto follows some of the cultural factors that determine the text at hand, its style, its rhetoric, its many historical evolutions included—such cultural events function as words when reading in a semiotic mode. We read the Manifesto appreciating its rhetorical gags, and forget how these are carefully prepared signs that unfold in w...

This 5th editorial text introduces a never observed but most striking parallel between the ways of thinking and thought formation of Lady Vistoria Welby and her significs project, and the French psychoanalyst and philosopher Jacques Lacan. The major focus in those parallels is on their ideas about the human Self and the Occidental culture, which ch...

This chapter and the two next chapters are texts of the first legal semiotician in the world: the Dutch poet, novelist, politician, lawyer and legal scholar Jacob Israel de Haan, who lived until 1919 in Amsterdam and until 1926 in Jerusalem. The editorial focuses primarily on the inaugural lecture, held on October 31, 1916 and translated in English...

This second editorial of this book is on the importance of the correspondence between Charles Sanders Peirce and Lady Victoria Welby—their letters show many aspects of an evolving philosophical insight that centers (in hindsight) around the issue of meaning. The two letters, which are introduced here, form as it were an autobiography of Peircean ph...

Legal semiotics has its problems with semiotics in general in so far as law is in many regards and very much despite the urgent need to change this feature, a static discourse. It is only since Russian structural linguistics, Greimas and Kristeva, that this need to further a dynamic semiotics is registered. That urge is described in the 4th editori...

Lawyers read and write texts, interpret and give priority to what others wrote and decided before. Awareness of the dynamics of these semiotic activities would improve the humane character of law and enrich its notion of justice. A dynamic semiotics with understanding meaning as an issue of constant flow will become visible so that the task of a la...

Greimas’s essay is semiotics at its best, situated between a politically and philosophically static approach which is too often rather conservative, and a full-fledged dynamic profile which criticizes the foundations of (corporate) law from a semiotic viewpoint and puts the legal use of the concepts ‘person’ or ‘subject’ in perspective. As a conseq...

The purpose of this book is not to produce a (hitherto unwritten) history of semiotics in the 20th century, nor to describe the applicability of semiotics in law and legal discourse. The text focuses on a deeper problem. Semiotics, daughter of linguistics at the end of the 19th century, still suffers from predominantly static features—those static...

A text has, not unlike a word, never one meaning and in particular never one forever fixated meaning, as lawyers experience often against their desire when they would like to find an “originalist” ground for their determination of text-meanings in law. Reading legal texts in the semiotic mode is reading sign meanings in connection with their social...

This part of the Source Book focuses on trends to develop semiotic awareness in legal education and law’s practices. Its texts could be understood as presenting the ultimate goal of positioning the semiotics of law in legal education. Their broadening knowledge might bring a deeper understanding of legal practice, and a heightening semiotic awarene...

Justinian (482–565 BC), a Roman Emperor residing in Constantinople with the strong desire to re-unite the Roman Empire with Rome as its capital, ordered a new body of law, called the Corpus Iuris Civilis, long before the diversification between Civil- and Common Law. He wanted to establish a re-ordering of centuries old Roman Law, to eliminate what...

Firstness has a great quality in Peirce’s philosophy. This editorial shows that position and relates to a few lines of particular interest to lawyers: “A court may issue injunctions and judgments against me and I not care a snap of my finger for them. I may think them idle vapor. But when I feel the sheriff’s hand on my shoulder, I shall begin to h...

Legal semiotics in the guise of legal significs was for the first time exposed in the PhD dissertation of De Haan in Amsterdam, 1916. That publication can in hindsight be seen as the first work on legal semiotics, and the same year the first inaugural lecture took place at the University of Amsterdam, as translated in this volume. De Haan underline...

It seems rather challenging: persons, things and obligations do not exist in the sense of ‘natural’ entities. So, how do we come to appreciate their diversification and the order they suggest to represent? A first answer to this question is, that persons, things and obligations are elements embedded in the history of Occidental culture. The period...

Especially since the start of the second decade of the twenty-first century, once more we have seen more focused interest in the use of SWFs by home states—less as a means of projecting sovereign financial power outwards and more as a means of internal financial management, and development. What makes this interesting from the perspective of SWF de...

The debate over competing conceptions of juridical persons still shows life today in terms not much removed from those of a century ago. At the core of the “juridical personality” debate are two views of the critical nature of economic organizations. For one, economic organizations are property in the hands of their owners. This property might be g...

This volume provides a critical roadmap through the major historical sources of legal semiotics as we know them today. The history of legal semiotics, now at least a century old, has never been written (a non-event itself pregnant with semiotic possibility). As a consequence, its sources are seldom clearly exposed and, as word, object and meaning c...

The problem of representation has become a central element for the development of human rights norms, not just within international organizations, but within states as well. The problem has been made acute by two significant changes in the organization of power that became visible after the 1950s. On one hand, the idea of the individual became more...

This article considers the evolution of governance standards for determining the extent of an enterprise’s responsibilities to protect human rights in weak governance zones. The article briefly describes the development of the standard and then evaluates the standard as it has been developed and framed within the U.N. Guiding Principles for Busines...

The state of constitutional theory is in flux. What was once the preserve of those who organized the state became the expression of mass democracy and the popular will, one that has been increasingly constrained by international consensus on the limits of political will within national borders. The stakes are high-constitutional legitimacy is funda...

This paper considers the conception of constitutionalization as a structure for theorizing a space within which constitutionalized entities may interact in accordance with the ideological principles of legitimizing constitutionalism. Constitutions have been the means through which states have expressed their organization and ruling ideologies. Cons...

Global human rights NGOs evidence the power and temptations of the great normative institutional forces that affect the governance projects of transnational society in the early 21st century. These forces — (1) the drive for order and rationality even within emerging polycentric orders beyond the state, and (2) the transformation of the individual...

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 a...

Globalization has produced a growing number of governance regimes beyond the reach of the domestic legal orders of states. These systems sometimes collide when their overlapping areas of competence lead to contradictory decisions or mutual obstruction. Is it possible to manage these collisions to produce order among colliding systems with no normat...

From its from its inception, the Guiding Principles for Business and Human Rights (GPs) have occupied a contentious and dynamic space — at once setting the framework for operationalization of regimes of business and human rights by states and enterprises, and simultaneously posing as either as a gateway or obstacle to the production of internationa...

This chapter shows how the social and institutional organization and political culture of China have affected how Chinese corporations approach the issue of corporate social responsibility (CSR) in general and CSR-based human rights responsibilities in particular. Part I examines the global context in which Chinese CSR is framed. Part II analyzes t...

The purpose of this essay is to discuss the viability of the shangfang system within the Chinese historical, political and legal context, and to suggest ways in which shuanggui might benefit from further institutionalization under China’s constitutional framework and its emergent socialist rule of law. To do this, we must first think through what s...

Under the leadership of Raul Castro, Cuba has embarked on a series of changes that have focused on internal institutional reforms and their impact on the Cuban economy. These reforms have proven perplexing both for their ambitions and their limits. The usual explanations prove disappointing. This paper suggests that no consideration of these reform...

While its importance in domestic law has long been acknowledged, transparency has until now remained largely unexplored in international law. This study of transparency issues in key areas such as international economic law, environmental law, human rights law and humanitarian law brings together new and important insights on this pressing issue. C...

Structuralism, although widely neglected in many philosophy encyclopedias, is one of the major foundations for semiotics and has in that context the same importance as phenomenology or analytical philosophy. Structuralism focuses on elements of structures within which the relationships of individuals can function in the boundaries of the structural...

Structuralism appears to remain one of the basic philosophies that come nearest to the semiotic understanding of reality and the many movements of the human psyche. Already Paracelsus mentioned how the signatura is an expression for a scientific approach to order what is hidden as the constitutive secret of things, denotes the science of understand...

The following are some of the most predominant concepts that can be found in a vocabulary of legal semiotics in practice. Semioticians debate the meaning and definition of these concepts inspired by linguistics, medicine, social sciences, politics and law. Notice, that those of them who focus on law and legal discourse do in the overwhelming majori...

The book shows lawyers how semiotics leads to an untraditional and in-depth understanding of legal practice and law’s discourse, in essence to law as a system of specific meanings and signs. Semiotics in general is part of Peirce’s ‘evolutionary cosmology,’ an all-embracing world-view, which plays its role in legal discourse. His anthropological in...

Nobody ever raised the question about who was the initiator of semiotics of law. The chapter answers that question and researches contextual critical approaches. The first forty or so publications on legal semiotics appeared under the name: ‘significs’ in the social and scientific context of the Amsterdam Signific Circle between 1915–1925, in Dutch...

Identities evaporate or concentrate in the intertwinements of Self and State all along the lines of changing depressions or other atmospheric conditions. Today more than in earlier times, those same identities—experiencing the innermost tensions between Self and State, which are driven by an unperceived dynamics like clouds at the blue sky—display...

Three critical positions of legal semiotics in the waning of the CLS were highlighted as discussions within US Common Law legal scholarship. They all focus on a lawyer’s attitude: (1) one in so far as legal meanings are installed in the lives of ordinary citizens, (2) a second on a lawyer’s possible connection between a progressive standpoint in po...

The word semiotics comes from the Greek seme for ‘sign’, so that semiotics should be understood as “the science of signs”, which always comes with parallels like symbols, meanings or significations. Modern literature shows a rich use of the term, as do social sciences and since almost a century also law. Anglo-Saxon legal theory emphasizes implicit...

Jacques M.E.Lacan (1901–1981), the third godfather of semiotics, is the Parisian psychologist/psychoanalyst who wrote his 1932 PhD dissertation on the “délire à deux”, a clinical picture that describes the inability to develop an established identity and to create the awareness of a single individual. That is the supreme nightmare for a lawyer: a f...

As a most stimulating example, we quote here from the prize-winning article of Michelle Wirth JD some considerations related to the above steps. The article applies semiotics to the Pennsylvania Supreme Court case Ferguson v. McKiernan to reveal the shift in social context that made the lines of legal reasoning behind the outcome appear “self-evide...

Important focus on signs in law are the result of (a) the concept of a sign itself, (b) the importance of culture in this context, (c) signs as a power of merging law and semiotics, and (d) the community as a precondition for signs.Law refers to Peirce’s definition of a sign and should therefore accept its triple relationship as constitutive: the “...

The three godfathers differ in scholarship, philosophy, cultural backgrounds and types of insights. All have a peripheral knowledge and experience of law, but greatly delivered to the lawyer’s toolkit because they focused on language, the major instrument of lawyers. Peirce’s interest and feeling for law has been underestimated. Greimas was interes...

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 with the general principles of transnational constitutionalism. The Chinese constitutional order is grounded on a principa...

The state of constitutional theory is in flux. What was once the preserve of those who organized the state became the expression of mass democracy and the popular will, one that has been increasingly constrained by international consensus on the limits of political will within national borders. The stakes are high — constitutional legitimacy is fun...

Societal constitutionalism presents us with alternatives to state-centered constitutional theory. But this alternative does not so much displace as extend conventional constitutional theory as a set of static premises that structure the organization of legitimate governance units. Constitutional theory, in either its conventional or societal forms,...

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 (TTP), even as it pushes ahead with a Free Trade Agreement with China and Korea. I will first describe t...

Since the 1970s, the relationship between productive property, and the state and individual has been contested in Marxist-Leninist nations. Though China has moved to permit robust private activity and the private aggregations of capital in corporate form, Cuba has strictly adhered to traditional communist principles. In the face of recent financial...

HU Angang, one of this generation’s most influential academic thinkers, has applied his considerable analytic skills to theorize the future of China in his most recent book, China in 2020: A New Type of Superpower. The book represents an effort to add authoritative Chinese voices to the Western debates about China, written to observe China as an in...

This essay is an edited text of a presentation made by the incoming chair of the University Faculty Senate of Pennsylvania State University to a conference co-sponsored by the American Association of University Professors and faculty at the Pennsylvania State University. The topic of these remarks is shared governance. I will consider shared govern...

Chinese constitutionalism is usually analyzed and found wanting in the West. The deficiencies of Chinese constitutionalism stem in part from its differences from the forms and sensibilities of governmental organization common in the West. But constitutionalism ought not to be reversed engineered to support a particular approach to its operationaliz...

From the middle of the last century, socio-economic rights have been bound up within the ideology of the state within national legal orders and through the construction of an important edifice of public international law and institutions. Globalization may be changing both the focus and locus of socio-economic rights. The state, and public internat...

With the June 2011 endorsement of the U.N. Guiding Principles for Business and Human Rights by the U.N. Human Rights Council, the international community entered a new phase in the approach to the important work of developing global norms for economic activity with human rights impacts, irrespective of the states in which these occur. But the busin...

Peirce, introduced here as the first godfather of semiotics, claims (like de Saussure) that signs—strung together in a manner prescribed by rules—communicate meaning.Coded texts are thus signs to decode for a reader, and the decoding touches the essence of the magic of legal language.Kevelson gave law a Peircean frame when highlighting in various p...

Important focus on signs in law are the result of (a) the concept of a sign itself, (b) the importance of culture in this context, (c) signs as a power of merging law and semiotics, and (d) the community as a precondition for signs. Law refers to Peirce’s definition of a sign and should therefore accept its triple relationship as constitutive: the...

This book present a structure for understanding and exploring the semiotic character of law and law systems. Cultivating a deep understanding for the ways in which lawyers make meaning—the way in which they help make the world and are made, in turn by the world they create—can provide a basis for consciously engaging in the work of the law and in t...

A central theme of the book is the question how to proceed practicing the law when a lawyer has acquired semiotic knowledge and skills. The very same issue is also a direct effect of considering the legal semiotic modus operandi. Semiotic steps in legal work are steps to take in texts. Before lawyers write, they read. What they read, even if it is...

Two intertwining characteristics form the basis of today’s semiotics of law, especially in US legal semiotics. The first can be found in the work of Peirce who developed in the late 1860s a general theory in which he forwarded the view that ‘man is a sign’—an observation immediately relevant in law and legal discourse. The second is in the use of l...

The Swiss linguist Ferdinand de Saussure (1857–1913) and the Lithuanian linguist Algirdas Julien Greimas (1917–1992) are proposed here: the latter as the second godfather of semiotics. Saussure made clear how structural properties of a language sustain its social functions—an important issue for legal semiotics. His famous differentiation of langue...

Two semiotic regions of importance are opened for legal semiotic approaches: person and personhood, or: legal subjectand legal person; individual and corporation. They are keys to modern politics in relation (as the CLS movement correctly understood) with the understanding of an engenderment of the self, as Kant, Hobbes and others initiated, and wi...

States, like non-state actors, are increasingly participating in markets. In the form of sovereign wealth funds (SWFs), states have project economic power beyond their borders. But some states are also using private market activities abroad to transform the way they can project their own legal regimes power beyond their territories, and in the proc...

This article will look at globalization in the context of higher education and, in particular, higher legal education. The object will be to think about the ways in which non-U.S. based law schools are now offering US style legal education to (1) supply the U.S. legal market or (2) produce U.S. trained lawyers in the home state market or for other...

In The Law of Sovereign Wealth Funds. Fabio Bassan has taken on a very great challenge. He would provide a legal structure for sovereign wealth fund regulation, and simultaneously, he would interrogate the consequences of the sovereign character of projections of private power between states. But the world he describes is both unified by the logic...

Since the 1970s, the relationship between productive property, the state, and the individual has been contested in Marxist-Leninist states. While China has moved to a more managerial form of relationship, states like Cuba continue to adhere to stricter principles of state control of productive property. In the face of recent financial upheavals and...

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 system...

Societal constitutionalism presents us with alternatives to state-centered constitutional theory. But this alternative does not so much displace as extend conventional constitutional theory as a set of static premises that structure the organization of legitimate governance units. Constitutional theory, in either its conventional or societal forms,...

This essay considers the tension between public and private governance in the emerging transnational legal order. The focus of examination is the corporation, which is where this tension is most in evidence. The analysis starts with the greatest structural impediment to the consideration of the tension between public and private in the transnationa...

The convergence of public and private law has emerged as one of the great legal issues of the 21st century. It touches everything from the regulation of state activity, to the character and effect of the activities of non-state actors — and particularly those amalgamations of authority organized as juridically distinct persons. At its core, it impl...

This essay considers transparency and business in international law as a matter of the dynamic tension between norm and technique in the management of systems and the masses of the population they serve. It is divided into two parts. After this Introduction, Part II critically examines transparency in international and transnational regulatory and...