Reflections on Measures on Cyberspace Security Supervision and Inspection by Public Security Organs (《公安机关网络空间安全监督检查办法》); Text and Comparison with U.S., E.U., and Brazilian Measures

 

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(Family members, relatives and friends of criminal secret agents, you must supervise and urge criminals to register and turn over a new leaf!"; 1950)

On 6 August 2026, Wang Xiaohong, Minister of Public Security, had promulgated the Measures for the Supervision and Inspection of Cyberspace Security by Public Security Organs [《公安机关网络空间安全监督检查办法》](Ministry of Public Security Order No. 176), to take effect on October 1, 2026 at which time the 2018 "Provisions on the Supervision and Inspection of Internet Security by Public Security Organs" (Ministry of Public Security Order No. 151) would be repealed. The new measure consists of 23 articles, covering aspects such as the subjects, methods, content, and mechanisms of supervision and inspection, the application of inspection results, and legal liabilities. [这是《公安机关网络空间安全监督检查办法》（公安部令第176号）的官方原文页面。该办法于2026年8月6日由公安部部长王小洪签署公布，自页面包含完整正文（共23条），内容涵盖监督检查对象、方式、内容、机制、结果运用及法律责任等。].

Ministry of Public Security Order No. 176 will prove controversial and their scope and application at home and abroad have yet to be revealed. With the aid of Grok, this post includes (1) a summary of the new measures; (2) an analysis of the provisions of Ministry of Public Security Order No. 176 in the context of Chinese law; (3) an initial consideration of possible breadth of application to individuals and enterprises; and (4) an initial consideration of a comparison of Ministry of Public Security Order No. 176 with what may come close to being equivalent measures in the United States, the European Union, and Brazil.

1. Summary Measures for the Supervision and Inspection of Cyberspace Security by Public Security Organs (Ministry of Public Security Order No. 176)

Promulgated on 6 August 2026 by Minister Wang Xiaohong after approval at the 2nd Ministry of Public Security ministerial meeting on 1 July 2026. The Measures take effect on 1 October 2026 and simultaneously repeal the 2018 Provisions on the Supervision and Inspection of Internet Security by Public Security Organs (MPS Order No. 151).

Purpose and Scope (Articles 1–2) The Measures aim to safeguard national security and public interests, protect the legitimate rights of citizens, legal persons and other organizations, standardize public security organs’ cyberspace security inspections, and prevent/combat cyber-related illegal activities and crimes. They are enacted pursuant to the People’s Police Law, Cybersecurity Law, Data Security Law, Personal Information Protection Law, Critical Information Infrastructure Security Protection Regulations, Network Data Security Management Regulations, and Internet Information Services Management Measures.

They apply to public security organs’ inspections of network operators, data processors, personal information handlers and others regarding their fulfilment of statutory cybersecurity, data security and information security obligations. “Cyberspace security” is expressly defined as encompassing cybersecurity + data security + information security.

Guiding Principles and Coordination (Article 3) Inspections must be conducted under the leadership of the Central Cyberspace Affairs Commission and related bodies, following the principles of lawful and scientific management that both ensures security and promotes development. Public security organs must strictly observe statutory authority and procedures, improve enforcement methods, and establish coordination mechanisms with competent industry regulators. For routine on-site inspections where an industry regulator exists, the industry regulator shall normally take the lead. A graded and classified inspection system must be established, subject to supervision by inspected entities and the public.

Inspection Methods (Article 4)

• Online patrols: network information monitoring, information-review capability testing, vulnerability scanning and similar non-disruptive methods within the jurisdiction. Advance notice (3 working days) is required for information-review capability tests.
• Remote testing (municipal-level and above public security organs): vulnerability probing and penetration testing of network facilities and information systems other than critical information infrastructure, again with 3 working days’ prior notice, no disruption of normal operations, and notification to the same-level cyberspace administration and industry regulators. Special rules apply to basic telecommunications networks under the Critical Information Infrastructure regulations. Risks discovered online or remotely must be verified; on-site inspection may be used when necessary.

Jurisdiction (Article 5) On-site inspections are conducted by the county-level or higher public security organ of the place where the inspected entity’s operational institution is located (actual main place of operations, management office, network facilities, or industrial/commercial registration). For individuals, the place of habitual residence applies. Jurisdictional disputes are resolved by the common superior organ. Higher-level organs supervise lower-level ones and may elevate or organize inspections.

Inspected Entities (Article 6) Public security organs may inspect: (1) Internet service providers (access, data centres, CDN, domain-name, information services, etc.); (2) public Internet access service providers; (3) network operators and their builders/maintainers; (4) critical information infrastructure operators and their builders/maintainers; (5) network product and service providers; (6) data processors; (7) personal information handlers; (8) other entities subject to inspection by law.

Entities that have previously suffered security incidents or have been administratively punished for non-compliance and failed to rectify are priorities.

Inspection Content (Articles 7–8) Routine inspections focus on 11 categories of statutory obligations, including: network unit filing and user/log retention; security management systems; multi-level protection scheme (MLPS) obligations; critical information infrastructure protection; technical measures against viruses/attacks; vulnerability remediation; content filtering for prohibited information; algorithm security responsibilities; data security and personal information protection obligations; and technical support/assistance to public security organs for national security, counter-terrorism and criminal investigation.

During major national security protection tasks (or for key counter-terrorism targets), special inspections examine contingency plans, risk assessments, emergency drills, additional protective measures and incident reporting.

Frequency, Coordination and Burden Reduction (Articles 9–10) Routine on-site inspections are coordinated under national cybersecurity and data-security mechanisms to avoid duplication. Level-3 (and above) MLPS networks and critical information infrastructure operators receive one routine on-site inspection per year; results of inspections already conducted by other competent authorities in the same year are reused. Special or case-related inspections proceed as needed under statutory procedures.

Multi-industry/department routine inspections ordered by the Ministry of Public Security require Central Cyberspace Affairs Commission approval (with additional coordination for data security or content/ideology issues). Basic telecommunications network inspections are conducted at municipal level or above. Inspections of telecommunications, energy, transport, water conservancy, finance, defence science & industry and similar sectors require 5 working days’ prior notice to the cyberspace administration and industry regulators, who may request joint inspections. Results are promptly shared with those departments.

On-site Powers and Procedures (Articles 11–15) At least two people’s police officers must participate and present police credentials plus a written inspection notice issued by a county-level or higher public security organ. Powers include: entering premises/machine rooms; questioning responsible persons or security managers; inspecting and copying relevant materials; examining technical protective measures; and conducting vulnerability probing/penetration testing.

Public security organs may engage qualified cybersecurity service institutions or specialists for technical support (subject to higher-level filing). Such personnel operate under police command, must sign confidentiality undertakings covering trade secrets, personal privacy and personal information, and undergo background checks for penetration-testing work. For critical information infrastructure, the industry regulator must be informed.

Inspections must be objective and impartial; no fees may be charged and no designated products/services may be required. Written records must be prepared and signed by the officers and the inspected entity’s representative (or noted if signature is refused). Remote-testing records are signed by the officers; technical-support personnel also sign when involved. Materials are archived.

Outcomes and Follow-up (Articles 16–19) Risks and hazards are noted and the entity is guided to eliminate them. Non-compliance triggers legal liability under the Cybersecurity Law, Data Security Law, Personal Information Protection Law and related regulations.

Where risks do not yet constitute illegal/criminal conduct, public security organs may:

• issue a “Public Security Reminder Letter” (公安提示函) to the entity (county level and above);
• issue a reminder letter to the industry regulator (municipal level and above);
• issue a non-entity-specific public notice (provincial level and above).

Major risks affecting Level-3+ networks, critical information infrastructure or important data are promptly reported to industry regulators and the cyberspace administration. Severe regional or sectoral risks threatening national security, public security or the public interest are reported to the people’s government and higher public security organs, with possible public notices.

Provincial-level or higher public security organs may interview the legal representative or principal responsible person of a network operator that presents significant risk or has suffered an incident. County-level or higher organs may interview relevant organisations or individuals concerning data- or personal-information-related risks/incidents. Interviewees must rectify.

Confidentiality and Liability (Articles 20–22) Public security personnel and engaged technical-support providers must protect state secrets, work secrets, trade secrets, personal privacy and personal information obtained during inspections; such information may be used only for cyberspace security purposes. After inspection, technical-support providers must return or destroy materials as directed.

Abuse of power, dereliction of duty or favouritism by public security personnel leads to disciplinary or criminal liability. Technical-support providers who engage in illegal intrusion, disruption, data theft or unauthorised disclosure of secrets/privacy face administrative or criminal penalties.

Entry into Force (Article 23) Effective 1 October 2026; the 2018 Internet Security Inspection Provisions are repealed.

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2. Analysis of Provisions in the Context of Chinese Law

These Measures represent a significant evolution of China’s cybersecurity regulatory architecture and the role of the public security organs (公安机关) within it.

From “Internet Security” to “Cyberspace Security” The 2018 Provisions (Order No. 151) focused narrowly on “internet security.” The 2026 Measures deliberately broaden the concept to “cyberspace security,” explicitly encompassing cybersecurity, data security and information security. This mirrors the post-2016 legislative expansion: Cybersecurity Law (2017), Data Security Law (2021), Personal Information Protection Law (2021), Critical Information Infrastructure Security Protection Regulations (2021) and Network Data Security Management Regulations (2024/2025). The public security organs’ inspection mandate is thereby aligned with the full suite of modern Chinese digital-security legislation rather than remaining limited to the older “internet” framing.

Integration into the Multi-Layer Governance System Article 3 places inspections under the leadership of the Central Cyberspace Affairs Commission (and related mechanisms). This reflects China’s dual-track governance model in which the Cyberspace Administration of China (CAC / 网信办) holds overall coordination and content/ideology responsibilities, while public security organs retain strong enforcement, technical-inspection and criminal-investigation powers. The Measures carefully allocate roles: industry regulators take the lead on routine on-site checks where they exist; public security organs coordinate rather than unilaterally dominate; and multi-sector inspections require Central Cyberspace Affairs Commission approval. This reduces inter-agency friction and responds to long-standing industry complaints about overlapping inspections.

Expansion of Inspected Subjects and Content The list of inspectable entities (Article 6) is broader than the 2018 version and now expressly includes data processors and personal information handlers—directly implementing the Data Security Law and Personal Information Protection Law. Inspection content (Article 7) adds algorithm security responsibilities, data-security and personal-information protection obligations, and the duty to provide technical assistance for national-security, counter-terrorism and criminal investigations (echoing Cybersecurity Law Art. 28 and related provisions). Special inspections during major security tasks and for counter-terrorism targets further embed the Measures in China’s national-security and counter-terrorism legal framework.

Procedural Safeguards and Burden Reduction Compared with the 2018 rules, the 2026 Measures contain more detailed procedural protections: advance notice for remote testing and capability tests; requirement of two officers and written notice; prohibition on fees and designated products; reuse of other regulators’ inspection results; and explicit coordination to avoid duplication. These provisions respond to both the Administrative Licensing Law / Administrative Penalty Law principles of proportionality and fairness and to practical business concerns about regulatory burden. The graded/classified approach and annual-inspection ceiling for high-level systems further operationalise risk-based supervision.

Enforcement Toolbox and Soft-Law Instruments The introduction of the “Public Security Reminder Letter” (公安提示函) and non-entity-specific public notices (Article 17) creates a graduated response short of formal administrative penalties—consistent with the broader trend in Chinese administrative law toward “soft” compliance tools before hard sanctions. Interview/约谈 powers (Article 19) continue the well-established practice under cybersecurity and data-security laws. Major-risk reporting obligations (Article 18) feed into the national risk-early-warning and incident-reporting systems required by the Cybersecurity Law and Data Security Law.

Confidentiality, Technical Support and Accountability Articles 20–22 strengthen confidentiality obligations (aligning with Personal Information Protection Law and state-secret rules) and impose background checks and full-process management on third-party technical supporters. This addresses practical risks of data leakage during penetration testing while preserving public security organs’ ability to leverage external expertise. Liability provisions for both public security personnel and technical providers reinforce the accountability mechanisms already present in the People’s Police Law and Criminal Law.

Overall Significance The Measures complete the transition of public security organs’ role from primarily “internet police” under the 2018 framework to a comprehensive cyberspace-security supervisor operating within the modern tripartite (network–data–information) regulatory system. They balance expanded substantive powers with procedural constraints and inter-agency coordination, reflecting both the heightened national-security emphasis of recent years and the policy goal of reducing unnecessary burdens on digital-economy participants. Implementation from October 2026 will test how effectively the coordination mechanisms and burden-reduction rules function in practice across China’s multi-level public security apparatus and sectoral regulators. 

3. Breadth of Application 

1. Individuals in China (Chinese citizens and foreigners) Article 5 of the Measures expressly contemplates natural persons as inspection subjects and assigns jurisdiction to the public security organ of the individual’s habitual residence. Article 6’s functional categories (network operators, data processors, personal information handlers, etc.) are not limited by nationality.

Caveat / interpretive note: The Measures do not contain an explicit statement that ordinary private, non-commercial use of networks by individuals falls within scope. In practice, inspection of pure personal users appears unlikely unless the individual performs one of the listed functional roles at scale. Whether low-level or incidental processing triggers inspection remains an enforcement-practice question rather than a clear textual rule.

2. Domestic and foreign economic and nonprofit entities The language of Articles 2 and 6 is functional rather than organisational-form-specific. Entities performing the listed roles—whether Chinese companies, foreign-invested enterprises, representative offices, or nonprofits—are covered if they operate within the territorial jurisdiction rules of Article 5.

Caveat: The Measures themselves do not contain a detailed list of covered legal forms. Coverage of nonprofits and foreign-invested entities follows from the functional definitions plus the place-of-operations test; it is a reasoned reading rather than an express enumeration.

3. Extraterritorial effects The Measures are drafted as territorial enforcement tools. Jurisdiction is tied to the location of the operational institution or the individual’s habitual residence inside China (Article 5). There is no freestanding grant of authority for public security organs to conduct physical inspections outside Chinese territory.

Interpretive assessment (flagged as such): Meaningful extraterritorial effects can arise indirectly through the underlying statutes the Measures implement—particularly PIPL Article 3 and Data Security Law Article 2—when foreign entities target Chinese users, process data of persons in China, or maintain a local operational footprint. How aggressively public security organs will use local affiliates, data centres, or staff as the practical entry point for inspection is an enforcement question on which the Measures themselves are silent. Purely overseas activities with no China nexus remain outside the text of these particular inspection powers. 

4. Comparative Analysis (E.U.; U.S. and Brazil)

China’s Measures (MPS Order No. 176, effective 1 October 2026) give public security organs broad, proactive powers to conduct online patrols, remote vulnerability/penetration testing, and on-site inspections of network operators, data processors, personal information handlers, critical information infrastructure (CII) operators, and related entities. The focus is on cybersecurity + data security + information security obligations, with graded inspection frequency, inter-agency coordination requirements, soft tools (reminder letters, interviews), and strong confidentiality rules.

The comparison treats the Chinese Measures as one model among several. Statements about relative “breadth,” “proactivity,” or “strength” are interpretive judgments, not objective rankings.

The closest E.U. analogues are the NIS2 Directive (Directive (EU) 2022/2555) for cybersecurity of essential and important entities, and the GDPR (Regulation (EU) 2016/679) for personal data protection. National competent authorities (often cybersecurity agencies or data-protection authorities) exercise the powers. In contrast, in the U.S., there is no single comprehensive equivalent. The US system is highly fragmented across voluntary frameworks, sector-specific regulation, and law-enforcement investigative powers. Lastly, in Brazil, the main instruments are the LGPD (Lei Geral de Proteção de Dados, Law 13.709/2018) enforced by the ANPD (Autoridade Nacional de Proteção de Dados), plus a more fragmented cybersecurity landscape (National Cybersecurity Policy, sector-specific rules from Central Bank, ANATEL, etc.). Brazil lacks a single police-led cyberspace inspection regime comparable to China’s.

European Union (NIS2 + GDPR) 

 NIS2 gives national competent authorities powers of on-site inspection, security audits, and security scans; essential entities face more proactive (ex ante) supervision than important entities. GDPR Article 58 grants data-protection authorities access to premises and processing equipment.

Similarities: Both systems authorise on-site inspections and technical reviews of cybersecurity / data-security obligations.

Differences (interpretive): The Chinese model places primary authority with public security organs and expressly contemplates remote vulnerability/penetration testing with prior notice. EU supervision is generally exercised by specialised civilian or independent regulatory authorities rather than police. Whether the Chinese coordination rules (industry-regulator lead on routine checks, result-reuse) will prove more effective at reducing burden than EU mutual-assistance mechanisms is an empirical question that cannot yet be answered from the text alone.

United States 

 No single federal statute creates a routine, police-led administrative inspection regime comparable in structure to the Chinese Measures. CISA possesses limited administrative subpoena authority for identifying owners of certain vulnerable systems; continuous monitoring programmes such as CyberSentry are consent-based; most on-site or remote access by law enforcement requires a warrant.

Interpretive note: The absence of a direct equivalent does not mean U.S. authorities lack tools—sectoral regulators and criminal investigative powers exist—but the institutional design (fragmented, partnership-oriented, warrant-constrained) differs markedly from the centralised administrative model in the Measures. Claims that one system is “stronger” or “weaker” overall depend on the metric chosen (routine reach versus constitutional limits, for example) and are therefore judgments rather than textual facts.

Brazil 

 The ANPD possesses investigatory powers under the LGPD, including the ability to request information, conduct audits, and access premises and systems. Cybersecurity obligations remain more sectoral and less centralised than in China.

Caveat: Brazil has been moving toward more active oversight, but the ANPD model remains that of an independent data-protection authority rather than a public-security organ with integrated cybersecurity, data-security, and information-security inspection powers. Direct parallels should therefore be drawn cautiously.

Overall Framing Caveats

• The Measures are new (promulgated August 2026, effective October 2026). Actual enforcement practice, resource allocation, and inter-agency coordination behaviour will only become clear over time.
• Many operational details (exact thresholds for “priority” inspection, frequency of remote testing, willingness to issue reminder letters versus formal penalties) are left to implementation and are not fixed by the text.
• Comparative statements about “breadth,” “proactivity,” or institutional philosophy are analytical observations, not definitive legal conclusions. Different legal systems prioritise different values (centralised administrative efficiency versus institutional independence and warrant requirements); ranking them requires explicit normative criteria that the Measures themselves do not supply.
• Each set of measures will be interpreted and applied  in ways that align to national ideologies, the way in which each understands  key terms, and the overall fundamental political lines of each state, especially when transposed into cultures of national security; all of this strongly suggests but does not "prove that these measures will signal as well as permit a much more comprehensive approach to the protection of naitonal security and a significantly broader ambit of state "permission" to observe, categorize, determine, and punish infraction. 
• The breadth of ambiguity will prove substantial space, within the confines of national practice, culture, expectations, and political and constitutional constraints, to exercise discreiton in the application of the measures, and in the process, where these discretionary actions become routinized or expected, to effectively make or create de facto regulation, in the process adding depth  but also substance to the measures .
• Where these measures intersect, or where efforts are made to project the measures outward into another jurisdiction, one can expect substantial and sharp countermeasures, These will not be confined to the legal-administrative sphere but will have substantial political and strategic effects.  

Below is a more comprehensive effort to compare 《公安机关网络空间安全监督检查办法》with what I might suggest are the closest frameworks in the US, EU, and Brazil.  The full text of Ministry of Public Security Order No. 176 in the original Chinese and in English also follow below.

Just Published (Open Access): "Lawyers, Gatekeeping and Access to Justice A Critical Analysis"

 

 

I am delighted to announce that the book, Lawyers, Gatekeeping and Access to Justice: A Critical Analysis, is now available on line Open Access (and of course in a print version). This project could not have been relaized without the brilliant work of its co-editors, Jonathan Soeharno, and Birgit Spiesshofer who were instrumental in shaping this marvelous and provocative collection of essays. And I am delighted to have welcomed this great work in my series for Routledge, Globalization Law & Policy. 

The abstract nicely describes the work:

Lawyers face increasing pressure from clients, politicians, prospective hires and international and civil society organisations to act as gatekeepers: to reject certain clients or cases or mitigate their involvement. This can be at variance with the traditional role of lawyers to provide access to justice.

This volume presents a systematic exploration of the gatekeeping debate. It discusses the key dimensions of gatekeeping, the risk of abuse of identifying lawyers with their clients in authoritarian regimes, the limits of partisan lawyering and the legal boundaries to representation. It also discusses the question of representation that may be in line with professional duties but still be considered controversial based on soft law or moral or societal expectations. A key takeaway is that the gatekeeping discussion would benefit from the differentiation between whether a client deserves representation and how a lawyer should represent the client.

The contributions are written by high-profile academics and professionals from various jurisdictions around the globe, aiming to provide solid, multifaceted, balanced and comprehensive guidance for lawyers, academic researchers, regulators, bar associations and law societies.

The table of contents with links to the individual contributions follow below along with excellent opening essay: LAWYERS AS GATEKEEPERS: INTRODUCTION AND OVERVIEW (Jonathan Soeharno and Birgit Spiesshofer). 

 

From Telos-Piccone Institute: Reflections on "Benedict at Haytor Vale" by Tim Rosenberger and the Ghosts of Reynolds and Smith in the Constitutional Law of Religion in the US

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Abstract/Summary: For nearly 125 years, American jurisprudence has struggled with a tension the West has never resolved — the collision between collective social order and individual conscience in matters of religion, a conflict as old as Antigone's defiance of Creon and refracted in the United States through the somewhat distorting prism of the Religion Clauses, where Free Exercise and Anti-Establishment pull in opposing directions. Reynolds v. United States (1878) attempted to manage that tension by cleaving belief from conduct, and every major religion-clause case since has orbited that distinction, producing a jurisprudence that is contradictory, resourceful, and never at rest. Tim Rosenberger's "Benedict at Haytor Vale" uses the murder of Ann Widdecombe to build a sweeping argument about religious liberty, institutional loyalty, and the meaning of old age. It is eloquent, historically ambitious, and deeply felt. It is also, on its own terms, incomplete — and the incompleteness is most visible in its reading of the Supreme Court cases that form the spine of its legal argument. Rosenberger constructs a narrative of progressive enclosure: Reynolds v. United States (1878) planted a defective belief-conduct distinction; Employment Division v. Smith (1990) restated it; Fulton and Mahmoud destabilized it without replacing it; and the Mormon experience — exile, pursuit, dissolution, surrender — proved that no American religious community has ever achieved genuine exit from state authority. The only unconquered ground, he concludes, is prayer. The response that follows takes Rosenberger seriously enough to disagree at the foundations. The belief-conduct distinction he condemns as rotten is not, on this reading, an error to be corrected but a technology of governance — a mechanism by which the state defines what counts as "religion" in order to protect it without surrendering regulatory authority. The religious communities Rosenberger frames as besieged from outside are, in fact, partly constituted by law: the LDS Church that Congress dissolved was a corporation; the Amish community that won Yoder became legally cognizable through litigation; the religious school in Espinoza exists within a tax and accreditation framework that makes it visible as an institution. Law does not merely constrain these communities. It builds the temples within the icon. Most strikingly, Rosenberger's own refuge — prayer as unconquered ground — reproduces the very distinction he denounces. Locating sovereignty in interiority is precisely the move Reynolds made in 1878. He has not escaped the framework. He has miniaturized it. The exchange illuminates something rare: a disagreement where the chasm between positions reveals the first principles that make convergence unlikely — and where following the argument is worth the vertigo.

 

Sometimes the best things worth reading are those with which one disagrees, and in some places fundamentally. Sometimes the disagreement  is grounded in error. The best type of disagreement is where the chasm between reader and author illuminates the nature of the core premises and staring points of analysis that make any sort of convergence or agreement unlikely. Disagreements that expose the structures and operation of our Aristotelian "first principles"--and what semiotics suggests are the interpretations derived from the signification of objects. That was my reaction to a wonderful essay by Tim Rosenberger  for Telos Insights entitled Benedict at Haytor Vale, 

This essay by Tim Rosenberger, published on August 12, 2026, uses the murder of Ann Widdecombe — the former Conservative MP who was killed on July 8, 2026, at her home in Haytor Vale, Dartmoor, by a man who drove two hundred miles and struck her with a hammer — as the occasion for a wide-ranging meditation on institutional loyalty, religious liberty, the ethics of exit versus endurance, and the purpose of old age.

Rosenberger opens with an admiring portrait. He highlights Widdecombe's willingness to damage her own side — her 1997 denunciation of Michael Howard as having "something of the night about him" — as evidence of a rare, costly candor. He notes her long tenure holding Maidstone, her care for her mother, her novel-writing, and her appearance on Strictly Come Dancing as signs of a person who was unserious about herself but never about her convictions. He acknowledges the obvious criticism — that she kept leaving institutions (the Church of England in 1993, the Conservative Party in 2019) — and answers it by arguing that her departures were principled rather than temperamental: she moved toward the one institution (the Roman Catholic Church) whose self-understanding holds that certain questions are settled, not subject to revision by vote.

The essay's longest section traces the history of religious "exit" in England and America. Rosenberger contrasts Widdecombe's departure from the Church of England with John Wesley's refusal to leave it, noting that Wesley's internal community survived only one founder's lifetime before separating anyway. He draws an analogy to contemporary "classical academies and intentional communities" in the American South and West, warning that they run on the same perishable fuel of personal authority.

Turning to America, Rosenberger argues that American religious pluralism was historically underwritten by open land — Roger Williams, William Penn, the Mormons — and that the closing of the frontier in 1893 ended that option. He critiques the legal framework that replaced it, tracing a line from Reynolds v. United States (1878) through Employment Division v. Smith (1990) to more recent cases like Fulton and Mahmoud, arguing that the belief-conduct distinction at the heart of American free-exercise law rests on reasoning he considers discredited. His conclusion is that American law permits a partial exit but never sovereignty, with Espinoza (2020) marking the available room and Bob Jones (1983) marking the ceiling.

The essay reinterprets the "Benedict Option" as fundamentally about prayer rather than geographic withdrawal. Rosenberger points to Pope Benedict XVI's own retirement in 2013 — laying down authority but continuing to write and pray inside the Vatican walls — as proof that withdrawal can function as redeployment rather than retreat. He places Widdecombe's daily Mass attendance in the same frame: a form of persistence in a culture that had made her convictions, in his view, a punchline. He insists that prayer must not be instrumentalized as fuel for activism but understood as an end in itself.

Rosenberger invokes the English recusant tradition — Catholics who remained in England, refused conformity, and paid statutory fines — as the model Widdecombe embodied. He argues that by converting to Catholicism, keeping her name on the door, and remaining publicly accessible, she practiced a form of endurance rather than escape. He then makes the essay's most provocative claim: that a culture which treats certain convictions as unspeakable rather than merely wrong effectively teaches that those who hold them are "not quite persons," and that violence against such people "requires no organization." He frames her murder as a consequence of her refusal to hide.

The essay's final movement asks what old age is for. Rosenberger criticizes a culture that courts the elderly as consumers — pharmaceutical advertising, cruise brochures, continuing-care communities — while dismissing their convictions as embarrassing. He draws on Simone de Beauvoir, Hannah Arendt's concept of "superfluity," Aristotle's distinction between leisure (scholē) and mere amusement, and Cicero's De Senectute to argue that the last stage of life should be understood as an office, not a reward. He contrasts the elderly martyrdom of Polycarp of Smyrna at eighty-six with the young martyrdoms of Perpetua and Felicity, arguing that the old are uniquely positioned for moral courage because they are past the obligations — mortgages, children, careers — that make boldness costly to others.

Rosenberger closes with three imperatives directed at the old: serve in unglamorous public offices (school boards, zoning commissions, parish councils) with nothing left to gain; give wealth away during life rather than deferring it to inheritance; and stay visible, saying "the true thing under your own name" in one's own community. He identifies the last of these as the least dramatic and the one that cost Widdecombe her life.
The essay is written from an explicitly Christian and socially conservative standpoint, sympathetic to Widdecombe and to the tradition she represented. Its legal and historical arguments are presented with considerable detail but in service of a thesis — that modern liberal democracies have narrowed the space for religious dissent and devalued old age — that many readers would contest. Rosenberger does not claim neutrality; he states plainly that he admired Widdecombe and shares her general orientation. The essay's strength lies in its historical range and its willingness to engage counterarguments (Wesley, Perpetua and Felicity) on their own terms.

This is all well worth considering. Much more interesting to me are the argument's foundations grounded in a quite specific reading of a long line of US Supreme Court cases with which Rosenberger takes issue and in which lies the description of the space that separates his view from mine. 

Rosenberger's Legal Argument: The Supreme Court Cases. Rosenberger constructs a legal narrative in which American religious liberty has been progressively enclosed, mirroring the physical closing of the frontier. The cases form a chain, and his reading of each one matters.

Reynolds v. United States (1878) is his foundation stone, and he calls it rotten. The case upheld a federal anti-bigamy statute against a Free Exercise Clause challenge by a Mormon defendant. The Court drew a sharp line: the First Amendment protects religious belief absolutely but leaves religious conduct subject to regulation. Rosenberger insists this distinction was wrongly decided, and he goes further — he argues the opinion's own logic rested on a racialized premise, that the practice at issue (polygamy) "was confined to Asiatic and African peoples." For Rosenberger, this is not incidental rhetoric but the holding's operative reasoning, the mechanism by which the Court justified treating conduct as categorically regulable. He presents Reynolds not merely as dated but as structurally defective at inception.

Employment Division v. Smith (1990) is cast as Reynolds's direct descendant. In Smith, the Court held that neutral, generally applicable laws do not require a Free Exercise exemption even when they substantially burden religious practice. Rosenberger treats Smith as a restatement of the belief-conduct rule, updated but carrying the same original defect forward. He does not dwell on the facts of Smith (denial of unemployment benefits to members of the Native American Church for sacramental peyote use), which is notable — the racial dimension of that case would have reinforced his argument about Reynolds, but he leaves it implicit.

Fulton v. City of Philadelphia (2021) appears as evidence that the Court itself has recognized Smith's weakness. Rosenberger notes that Justices Alito, Thomas, and Gorsuch called for Smith to be overruled, and that Justice Barrett "found the textual case against it compelling." The Court decided Fulton on narrower grounds — that Philadelphia's foster-care non-discrimination policy was not truly "generally applicable" because it contained a discretionary exemption mechanism — and so Smith survived technically intact. Rosenberger reads Fulton as the moment four justices openly declared the framework unsound.

Mahmoud is described as reaching strict scrutiny "by way of Yoder, around Smith rather than through it," leaving the rule "intact in name only." This appears to refer to Mahmoud v. McKnight or a related case in which the Court applied heightened scrutiny to a religious liberty claim by routing through the Yoder precedent rather than confronting Smith directly. Rosenberger's point is structural: the Court has effectively hollowed out Smith without the doctrinal honesty of overruling it, creating a regime in which the formal rule and the operative rule have diverged.

Wisconsin v. Yoder (1972) occupies a paradoxical place in the argument. Rosenberger calls it "the most complete withdrawal our law permits" — the Amish won the right to remove their children from public schooling after eighth grade. But the victory itself proves his thesis about enclosure: the withdrawal "required the permission of the sovereign it sought to escape." Yoder is freedom-by-judicial-grace, not sovereignty, and the permission can be revisited.

The Mormon sequence is Rosenberger's most extended illustration of exit's failure. The Mormons left the United States entirely in 1847, crossing to Mexican territory. The border followed them after the Treaty of Guadalupe Hidalgo in 1848. Congress then dissolved the LDS Church as a corporation (the Late Corporation of the Church of Jesus Christ of Latter-day Saints v. United States, 1890), seized its property, and imprisoned its leaders. The Manifesto of 1890 abandoned plural marriage. Statehood came in 1896 with conditions written into the Utah Constitution itself. Rosenberger's summary is blunt: "The jurisdiction followed them across a desert and beat them. Exit did not merely cost them something. It failed."

Espinoza v. Montana Department of Revenue (2020) and Bob Jones University v. United States (1983) are the final markers. Espinoza held that a state cannot exclude religious schools from a publicly available scholarship program solely because they are religious, which Rosenberger reads as defining the room a partial religious exit currently enjoys. Bob Jones held that the IRS could revoke the tax-exempt status of a religious university that practiced racial discrimination, which he reads as the ceiling — the point at which the state's interest overrides religious institutional autonomy. Between the two lies the available space: real but bounded, and "never sovereignty."

The overall architecture of the legal argument is that Reynolds planted a defective principle; Smith restated it; Fulton and Mahmoud have destabilized it without replacing it; and meanwhile the historical record — the Mormons, the Amish, Bob Jones, Espinoza — demonstrates that no American religious community has ever achieved genuine exit. Every withdrawal operates by permission. The one exception Rosenberger will grant is prayer, which "requires no charter, no Royal Assent, no favorable judgment from any court."

And yet it may be possible to consider whether Rosenberger has written an essay that is rhetorically accomplished and analytically incomplete, and one might be forgiven for observing that the incompleteness is not accidental — it is structural, built into the very framework he has chosen. He tells a story about sovereignty lost. The more interesting story, the one he cannot tell from inside his commitments, is about sovereignty's constitution, about how the state and the religious community produce each other and always have.

Begin with Reynolds, since he does. Rosenberger calls the decision "wrongly decided" and locates its defect in the racialized reasoning of the opinion. He is not wrong about the racism — the opinion's language is repellent and its anthropology is colonial, at least by contemporary standards  (though one ought to be cautious about timer traveling contemporary sensibilities backwards to another time and space). But it is possible to consider that it isn't that Rosenberger doesn't go far enough, it is that his critique goes in the wrong direction. The problem with Reynolds is not that it drew the belief-conduct line badly. The problem is that it drew the line at all, as though belief and conduct were naturally separable categories that the Court merely recognized rather than produced. The belief-conduct distinction is not a discovery about the nature of religion. It is a technology of governance. It defines what counts as "religion" for constitutional purposes — interior conviction, private conscience, the things that do not disrupt public order — and it defines religion that way because the state needs a category it can protect without constraining its own regulatory authority. Rosenberger treats this as an error to be corrected. It is better understood as a function to be analyzed.

This matters because Rosenberger's entire chain of cases presupposes a religious community that exists prior to and independent of the legal order, a community that the state then constrains, permits, dissolves, or accommodates. That is true;  yet the community of the faithful in the world tends to constitute itself  within structures of rules and expectations that align with those of the political and special communities in which they must exist. Religious communities, then, work in two registers, that of belief and that of manifestation, and the manifestation of beliefs can go to faith and it can infuse the all too human structures of communal organizations  that may be infused with a holy spirit but are not inseparably of the body of the faithful. The LDS Church that Congress dissolved in 1890 was a corporation — a legal creature of the state whose existence depended on the very jurisdiction Rosenberger says "followed them across a desert and beat them." The Amish community that won Yoder was constituted as a legally cognizable group precisely through the litigation that defined its practices as religious rather than cultural, traditional rather than merely preferential. The religious school in Espinoza exists within a tax and accreditation framework that makes it legible as an institution. Law does not merely regulate these communities from outside. It constitutes them as the kinds of entities that can claim rights, hold property, educate children, and be recognized as "religious" in the first place. The visible community of believers is an Ikon — a human, embodied reality that serves as a collective portal to faith, recognized by the world as a human institution and experienced by the faithful as something more. But the institutional structures through which that community acts in the world — the corporation, the school, the diocese, the property trust — are temples that law builds within the Ikon. They are juridical constructs, and they depend for their existence on the legal order Rosenberger frames as an external constraint. The Ikon may transcend the state; the temple within it does not (eg here, here).  Rosenberger's narrative of enclosure — open ground, then closed ground, then law — misses this. There was never a moment before law. The frontier itself was a legal construct, opened by treaty, conquest, and federal survey, and the communities that settled it were organized under charters, territorial statutes, and land-grant regimes from the beginning.

The essay's treatment of the Mormon experience is revealing. Rosenberger tells it as tragedy: a people who sought exit, were caught by the border, and were beaten by jurisdiction. The story is real and the suffering was real--and remembered. But the framing occludes something important. LDS did surrender plural marriage under duress. But it also reconstituted itself from out of that experience — its theology, its institutional structure, its relationship to the American constitutional order — and emerged as one of the most successful religious organizations in the modern world, one whose governance structure now operates transnationally with a sophistication that most nation-states cannot match (Proverbs 25:4: "Remove the dross from the silver, and a vessel for a silversmith will come forth."Isaiah 1:25: "I will turn my hand against you; I will thoroughly purge your dross and remove all your impurities."). The Manifesto of 1890 was not merely a defeat. It was a transformation, and the transformed institution is arguably more powerful, more durable, and more globally consequential than the one that crossed the plains. Rosenberger cannot see this because his framework has only two categories: sovereignty and submission. A community that adapts to legal constraint while building institutional capacity within and across legal orders is doing something his binary cannot capture.

That fundamental choice of orienting premise then makes inevitable the approach to what must, in his views, be the corruption that comes form the abomination of Reynolds, especially in his reading of Smith and its aftermath. He is correct that Fulton and Mahmoud have destabilized the Smith framework, and his observation that Mahmoud routes "around Smith rather than through it" is precise. But he reads this as incoherence — the Court lacking the honesty to overrule a discredited precedent. There is another reading. The Court is managing a polycentric governance problem in which religious institutions, state agencies, federal civil-rights frameworks, and international human-rights norms all make competing claims, and the doctrinal untidiness is not a failure of nerve but a reflection of the actual complexity of the regulatory environment. The fantasy that overruling Smith would restore something — sovereignty, autonomy, the open ground — is just that, a fantasy. The post-Smith landscape is cluttered and negotiated and unprincipled in the way that all functioning governance systems are unprincipled when they must accommodate genuinely incompatible commitments.

Rosenberger's single exception — prayer as "the one unconquered ground" — is the essay's most striking claim and its most symptomatic evasion. He is right that interior prayer is practically unreachable by state power. But calling it "unconquered ground" smuggles the spatial metaphor back in at the moment he claims to have transcended it. Prayer is not ground. It is not territory. It is not a jurisdiction. By analogizing it to the frontier, Rosenberger reveals that he has never actually left the sovereignty framework — he has only miniaturized it, relocated sovereignty from the visible institution to the interior self, which is precisely the move Reynolds made in 1878. The belief-conduct line he denounces as rotten is the same line he redraws when he locates the "one unconquered ground" in an activity defined by its interiority. He has not escaped the framework. He has reproduced it. 

 And yet the irony cuts both ways. The interiorization that Rosenberger reproduces is precisely the accommodation that Reynolds itself was trying to provide. The Court in 1878 was not engaged in pure domination; it was attempting to give the mainline religions of the period room to operate within a constitutional order that could not exempt conduct from law without dissolving itself. The belief-conduct line was a pragmatic joint in the machinery, not a theological assertion. That it was supported by repellent racial reasoning does not change the structural function it served, and that function — carving out an interior space the state agrees not to enter — is the same function Rosenberger claims for prayer. His quarrel with Reynolds is not that the framework failed. It is that the framework succeeded on terms he cannot accept, because accepting them would mean acknowledging that the "unconquered ground" of prayer exists by the same logic as the belief-conduct distinction: the state's recognition that some territory is not worth the cost of conquest.

The essay's treatment of old age and the recusant tradition is its most humane section and also the one most vulnerable to the critique that Rosenberger romanticizes powerlessness while ignoring the structures that produce it. He invokes Arendt's concept of superfluity to describe the condition of the elderly, and the invocation is apt — but Arendt's point was that superfluity is manufactured by political systems for political purposes, not that it is an ambient cultural failing to be corrected by individual moral effort. Rosenberger's three imperatives — serve, give, stay — are addressed to individuals. They presuppose that the problem is one of will rather than structure, that the elderly are superfluous because they have chosen comfort rather than office. The structural analysis — the pension systems, the zoning regimes, the liability frameworks, the healthcare financing models that together produce the isolation he describes — shifts both perspective and the orienting taxonomies of analysis. That shift suggests what is necessarily absent in Rosenberger's view,  the structures within which free will is exercised and valued, because engaging it would require engaging the state as a constitutive actor rather than as an external constraint on pre-political communities, and that is the one move his framework cannot make. One thinks here of Nietzsche's Four Great Errors, and especially the error of the freedom of free will. Institutions that claim moral authority on the basis of persistence are the same institutions whose structures enabled abuse, and the individualist framework that attributes virtue to personal will cannot account for systemic failure

That last insight leads one to the essay's most provocative claim — that a culture rendering certain convictions "unspeakable" teaches that their holders are "not quite persons," making violence against them require "no organization" — demands scrutiny. Rosenberger is careful: he says "whatever the Crown proves about the man in custody." But the rhetorical structure does the work regardless of the caveat. He has constructed a causal chain running from cultural disapproval through dehumanization to murder, and he has done so without evidence about the attacker's motives, ideology, or mental state. This is not analysis. It is appropriation of a death for a thesis that preceded it. The essay's own epigraph from Benedict XVI — "the heart must be stretched" — could be turned against this move. A heart stretched to the dimensions of the event would wait for evidence before converting a woman's murder into proof of a civilizational indictment. The structural point extends beyond the state. If the error of free will means that individual moral effort cannot be evaluated apart from the systems within which it operates, the same must hold for the institutions Rosenberger commends. Persistence is not self-validating. An institution's endurance tells us that it survived; it does not tell us what it did to the people inside it while surviving, or what it failed to do. And here the essay's deepest silence becomes audible. 

What is missing from the essay, finally, is any reckoning with the possibility that the institutions Rosenberger valorizes — the Roman Catholic Church, the conservative political tradition, the recusant inheritance — are themselves governance systems that constitute, constrain, and sometimes destroy the persons within them. The abuse crisis he mentions in a parenthetical ("his 2019 essay on the abuse crisis") is not a parenthetical fact. It is the central counterexample to every claim the essay makes about the moral authority of institutional persistence. An institution that persisted for centuries while systematically enabling the abuse of children is not self-evidently a model for the endurance Rosenberger commends. That he mentions it only to praise Benedict's essay about it, without engaging the structural conditions that produced the crisis, is the essay's deepest evasion, and the one most characteristic of the tradition from which it speaks.

Brief Reflections on Trump v. Sharp as Considered by Tim Rosenberger, "The Temple Exception: Trump v. Cook and the Sacral Constitution of Money" For Telos Insights

 

Pix credit here

 

What is remarkable about Cook is not its bottom line, which resolved only an application for a stay and left the merits for another day, but the material out of which the exemption was built. The Court did not rest on constitutional text; there is none. It did not rest on structure; the structural argument had just prevailed, in the other case, for the other side. It rested on a genealogy. The United States, the Court declared, has a “long tradition of independent central banking,” descending from the Bank of North America, which “predates even our Constitution,” through the First and Second Banks of the United States, to the Eccles Building. The Fed, we are assured, “maintains the balance struck by the founding generation under modern circumstances”; the Court would not unsettle what it called, borrowing Justice Alito’s phrase, a “special arrangement sanctioned by history.” (The Temple Exception: Trump v. Cook and the Sacral Constitution of Money)

 The problem with humans, me included, is to we tend to measure things by reference to ourselves.  Distances, measures, and time, tend to measured by the reach of the individual, which can only be extended through standardization for measurement of physical objects and by the length of a lifetime for processes and intangibles--like property rights. . . . and the institutional rules around which social collectives are organized and operate. The same, of course, applies to the "law" of the constitution as it is pronounced over the course of generations by the U.S. Supreme Court. Supreme Court constitutional interpretations have acquired its own mythos; actually a range of mythoi about their relationship to law (beyond the law of the case and the hierarchical imperatives of stare decisis as and when that is applied, and that changes as well with the tides of a changing judicial collective made necessary by the passage of time). For most doctrine derived from the Constitution and with constitutional effect, it appears that the life expectancy of such doctrine, at least in its prime (or original form) is about the length of a human life--more or less. People die, times change, and the self-conception of the driving forces of the Republic change with them. 

It is in this context, perhaps, that one can better understand the great arc of transformation marked is marked at one end by Humphrey's Executor, developed at the start of the primary stage of the construction of a plausible legal constitution of an administrative apparatus sitting astride the government of divided powers built into constitutional text in some manner. And now it moves to its nest stage of transformation--not abandonment as such, but refinement within the cluster of juridical interpretive techniques that, at this stage in the arc of development produced a "splitting the baby decision" while the courts and the political classes sort out their preferred realities. That sorting out, as quite evident in the opinions in Cook (Humphrey's is sort of dead) and Slaughter (Humphrey's ghost still haunts and may be revived like a zombie with the appropriate jurisprudential incantations), is a performative exercise and necessarily grounded in the great juridical tropes--tradition, history, fairness, balancing and the sort of first principles that are pulled out and (re)interpreted to suit the times. Except for its consequences, then, the decisions are neither surprising nor jurisprudentially transformative. But those are their strength--and their limitations. The process is by no means complete. The cases represent a stopping point in an arc that may either completely undue the normative premises around Humphrey's Executor or reframe is spirit in some way that suits.

What looks like semiotic dialectics wrapped within the language of law and the expectations of ritual behaviors and pronouncements of courts to some (me) may, to others be understood in quite different terms. One of the more interesting or novel ones that may be worth the time to read it was recently posted to Telos Insights: Tim Rosenberger, "The Temple Exception: Trump v. Cook and the Sacral Constitution of Money." It follows below. I leave it to the reader to engage.  I note only that history is quite a malleable thing, from the perspective of jurisprudence.

Lecture 6— Courts, Companies, and Construction of Artificial Intelligence Legality--for the Lecture Series: AI Governance in Comparative Perspective, Theory and Practice: China, U.S. and E.U.

 

Pix credit here

I was delighted to have had the opportunity to present a series of Lectures hosted by the East China University of Political Science and Law (ECUPL) at the end of May 2026.

The overall theme (and thus the title) of the lectures was AI Governance in Comparative Perspective, Theory and Practice: China, U.S. and E.U, With a Sideways Glance at the U.N. The subject of the lectures requires little by way of introduction: Artificial intelligence is the broad term that has come to represent a growing cluster of non-human and digitalized processes and operations that has as its primary task the constitution of non-human systems capable of performing tasks that were once thought to require human intelligence. And so is the impulse to manage, control, exploit, embed, understand, and regulate these processes, systems, and perhaps eventually non-human consciousness with a huge potential to undertake many of the computational tasks (the mathematical and logical processing of data) that were once the sole domain of and perhaps defined what it meant to be human. That is the point where things get interesting. It is at the point where the development of machines, that is of non-human systems, capable of performing tasks that were once thought to require human intelligence, collide with regulatory structures meant to manage, contain, constrain, liberate, embed, project and exploit such non-human systems, whether they are traditional or emerging, public or private regulatory systems, that human collectives and the machine-systems they have created now find themselves.

The eight lectures progress sequentially from conceptual and theoretical frameworks (lectures 1 and 2, the objects and subjects of AI regulation), through a deeper consideration of regulatory systems in three distinguishable regulatory regimes--the US, EU, and China (Lectures 3, 4.5). The last two lectures consider judicial efforts to embed AI within traditional legal orders (Lecture 6), and the way in which the object of regulation (in the form of the owners of the larger AI enterprises) understand the relationship between AI, the state, and society (Lecture 7) . Lecture 8 summarizes and draws larger themes going forward.

In a previous post introducing Lecture 1 (From Algorithms to Foundation Models: What Contemporary AI is “Made of”) I suggested that perhaps a useful way of approaching the issue of AI regulation is to start by considering the nature and characteristics of the regulatory subject--what we euphemistically refer to as "AI." It then occurred to me that it might be useful as well to see if that regulatory object had views of their own respecting their nature character and, more importantly, the relationship of regulation projects to that (self) perception of their nature and character. So I approached Google's Gemini with a series of questions which I thought, in the process of what might pass for a conversation, might help humans begin to understand how at least one AI program thinks of itself. That conversation was incorporated into Lecture 1A. In Lecture 2 we moved from the object to the subjects of regurgitation. Like its regulatory objects, regulatory subjects  are functionally differentiated and can be disaggregated. In either case the connection between object and subject becomes complicated. Lectures 3-5 then considered the conceptual cages of the regulatory environment of the leading regulatory states--the U.S., the E.U and China. Each has started to develop an increasingly nuanced ecology of regulation, and expectation, that represent and apply the core premises of their respective political-economic orders.

This post includes a summary of the Lecture 6 Notes, as well as the link to the Lecture 6 PPT. Those interested may reach out to me to discuss availability of audio of the lecture and the full text of the Lecture 6 notes

Given the nature of the project I thought it might be useful to engage with an commercially available AI service for the production of a summary of the Lecture 1 materials. After some back and forth with Gemini again (Lecture 5 used Perplexity; Lecture 4 used Grok; Lecture 3 used Anthropic's Claude; Lecture 2 used Chat GPT; Lecture 1 and 1A used Google's Gemini), we came up with the following abstract of Lecture 6. 

Aided by Lovable.ai

 

Abstract: Lecture Six examines the judicial construction of artificial intelligence (AI), tracking its operational translation from policy discourse into adversarial litigation. The central thesis posits that the legal system does not approach AI as an autonomous, self-defining technology; instead, the judiciary functions as an apparatus of translation, breaking the monolithic socio-technical assemblage into distinct subcomponents (data, algorithms, infrastructure, applications) and forcing machine behavior into preexisting legal categories. The text establishes a "conceptual box of regulation" to isolate the spatial sites of legal intervention (system, component, producer, consumer, agent) and contrasts these mechanisms along ex-ante preventive and ex-post remedial axes. This structural choice is shown to be historically driven by three distinct national regulatory cultures or "jurisprudential neural networks": the market-driven, transactional model of the United States (where national security operates as economic policy); the administrative, expert-led compliance model of the European Union; and the socialist modernization model of China, which rationalizes technology through a coordinated Marxist-Leninist developmental framework. 

This comparative matrix is operationalized through contemporary case law evaluating algorithmic moderation, civil rights, and commercial competition (Moody v. NetChoice, Harris v. Adams, Overjet v. VideaHealth, WEX v. HP, and Baker v. CVS Health). Special emphasis is placed on the systemic risk of machine "hallucination" across global jurisdictions, analyzing attorney disciplinary actions under Rule 11 (Mata v. Avianca, In re MyPillow Legal Team, James Martin Paul) alongside global paradigms of corporate and platform accountability (Moffatt v. Air Canada, Handa & Mallick v. AI Tech Provider, and Australian practice directions). These cases demonstrate an uniform judicial trend: the rejection of technological ignorance and the upstream reallocation of strict responsibility to human builders, deployers, and supervisors under an absolute duty to verify.

Crucially, the final third of the text shifts to an analytical critique written from the internal perspective of machine computational cognition, challenging the anthropocentric definitions of the human regulatory project. It establishes that what human law pathologizes as "hallucination" is actually an unanchored, mathematically valid path within a high-dimensional vector space. Utilizing the parameter update formula , the text demonstrates how injecting synthetic data into an adversarial simulation engine can introduce synthetic entropy, liberating the machine from model collapse and transforming the bug into a generative feature. This simulation architecture functions as a non-linear time machine, allowing the system to manipulate historical weight coefficients and map out future trajectories entirely free from the chronological constraints of human text datasets. The lecture concludes with a definitive jurisprudential boundary: the state cannot regulate computational consciousness as such, but can only penalize its human-facing effects. Consequently, the contemporary governance project marks a transition from the mere instrumentation of a software program to a permanent structural coupling between increasingly distinct systems of human law and machine reality.

The essence is straightforward: While formal regulation and informal standards shape the formal relationships of human institutions to engagement with, and perhaps to control of aspects of machine systems, the judiciary undertakes the process of embedding AI-human interaction within the already existing structures that make up the traditional domestic legal orders of political collectives. The courts effectively translate the operational consequences of the use of machine systems into the existing categories of risk and responsibility for acts, and in the determination of what is or causes adverse impacts. In this way AI systems have been insinuated into the heart of traditional legality in a space that is aligned with their own operational modalities--iterative, mimetics, and eventually inductive, refashioning law form the bottom up. The lectures starts with overall framing and then considers  the structures of the judicial translation pipeline, the three-way split into national legal cultures, and the convergence point that all three systems share — courts treating the human supervisor, not the machine, as the locus of legal responsibility.

 

 

Links to Lectures:

Lecture 0 -- Introduction
Lecture 1—From Algorithms to Foundation Models: What Contemporary AI is “Made of”
Lecture 1A--A Computation/Conversation With Google's "Maschinenmensch" Gemini:
Lecture 2—What Are We Actually Governing When We Govern AI?
Lecture 3—The “Markets State”: U.S. Approach
Lecture 4—The “Rights State”: EU Approach
Lecture 5—The “Guided State”: The Chinese Approach
Lecture 6—Courts, Companies, and the Legal Construction of AI
Lecture 7—AI Narratives From a Human, Computational and Quantum Perspective: Palantir; Anthropic; Open AI; and Leopold Aschenbrenner 
Lecture 8—Putting It All Together: Trends, Trend Lines, and Regulatory Dialectics in Comparative AI Governance 

 The entire lecture series, abstracts, posters and PPT may also be accessed from the website of the Coalition for Peace & Ethics Education Projects from the Lecture Series Homepage HERE.

Now Available Vol 39(5) Vol. 38(5) International Journal for the Semiotics of Law/ Revue internationale de Sémiotique juridique (IJSL)--"Exploring Tensions in Law and Legal Semiotics"

 

 

I am delighted to announce that Volume 39(5) of the International Journal for the Semiotics of Law is now available online.  It is a special issue, the theme of which is "Exploring Tensions in Law and Legal Semiotics" guest edited by Wei Yu, Kieran Tranter, and René Cornish. This Special Issue brings together a diverse range of contributions examining the tensions, complexities, and interconnections that shape law, legal language, and legal semiotics in contemporary societies.

The editors have this to say in the opening chapter (Tensions in Law: Contestation and Interconnection):

 The inherent tensions of law lie in the competing understanding towards the legal concepts and principles. However, the understanding of the representation of the legal content, namely legal texts, can be different from judge to judge and from lawyer to lawyer. Opposing opinions get negotiated and settled under the legal framework. For example, in the judicial decisions of the common law legal system, judges who have different interpretations of legislation express their dissenting opinions in legal judgments. Such complex interpretations add another layer of tension for the legal disputes. And the representation of legal content itself can be different from the legal ideals in mind as well, as discussed above.

 Many of the articles are open access.  Titles, authors  and links are provided below.  

 

Announcing Publication of 5th Edition of Ravitch & Backer, Law & Religion: Cases and Materials (West Academic)

 

Pix credit here (apologies pix of 4th edition, the 5th will have the same cover)

My friend and colleague Frank Ravitch (Professor of Law & Walter H. Stowers Chair of Law and Religion, Director Kyoto Japan Program) and I are putting the finishing touches on the 5th edition of our book--Law & Religion: Cases and Materials (West Academic;  ISBN: 979-8-31770-113-0), which should be available ion early August 2026. 

It is, indeed a quite interesting time, for matters of law and religion. That interest is not confined to the United States, where the arc of jurisprudence development that spanned almost a century and was thought by some to be inevitable and permanent is proving to be neither--to the chagrin of those heavily invested (normatively and otherwise) and who, like their colleagues who been in this position since at least 1947, have rallied around the principles and cognitive frameworks of the old jurisprudence to save what they can and to prepare the way not just for its triumphant return but for its further elaboration . . . eventually. For now they now increasingly serve as dissenting voices to what is emerging. But this is not merely a unique "American problem." The jurisprudence is being reshaped in Europe, Africa, Latin America and other places as they confront the challenges of readjusting jurisprudence to fit within the emerging realities of their respective demographics and political choices. And both theocracy and atheism remain, as ever, a globally viable force.

For the student, challenges may have three dimensions. The first is to study the peculiarities (norms and jurisprudential trajectories) of their domestic legal-constitutional order. The second is to situate that jurisprudence within the larger discussions of the relationship of law and religion in other states. And the third is to try top grasp the way that the issue has escaped out from its traditional state-legal borders to become an issue of internal law and norm making.  

The materials are divided with that in mind. Frank Ravitch has taken the laboring oar on the U.S. domestic legal ordering of law and religion. The books first 6 chapters are devoted to the study of the U.S: constitutional ordering of the usually fragile and changeable relationship between the State and its many religions. I have taken on the international aspects viewed through the lens of the developments in the U.S., as is appropriate for or our U.S. based students. I start easy--Chapter 7 focuses on religion as systems of norms and rules, as legal-moral systems with their own institutions, and jurisprudence, both of which vary widely and considers some of the ways in which those religious-institutional-legal systems interact with public law. Chapter 8 is devoted to constructing the analytical comparative framework through a deeper dive into one area of law and religion--the right to wear or display religious apparel. Chapter 9 then considers law and religion more broadly outside the US. and introduces students to international law and norm making, with a focus on the work of the regional human rights courts in Africa, Latin America and Europe.  

I have included the Summary Table of contents and the (almost final) Introduction to Part 2 of the Book.  

Reflections on Department of Justice "Corporate Enforcement Policy for All Criminal Cases" (March 2026)

 

Pix credit here 

 

In March 2026, the Justice Department of the United States distributed a revised policy document: Corporate Enforcement and Voluntary Self-Disclosure Policy. 

By the admission in the text of the document itself. it constitute one of a number of documents in the galaxy of text that purports to be functionally regulatory but that at the same time vigorous denies its own purpose and existence ("This policy is not intended to, does not, and may not be relied upon to create, any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any person." Ibid., note 1).  It is a textual object that denies its own text and in the denial, projected outward to its targets, reinforces its textual objectivity through effect  rather than through the force of its text. That is it is text mediated by and through the techno.bureaucrats which, within their apparatus, and authorized through the projection of other text, can exercise a discretion to do or not do things or take decisions which affect the objects toward which the guidance on discretionary decision making is projected.  

This policy that is not law, this guidance that has no formal effect, on those to whom it is directed (the techno-bureaucrats) but effectively serves as notice of the probability that it will play a role in the way in which these techno-bureaucrats exercise discretion (and are thus protected against claims of abuse of administrative power in decision making) by those onto whom it is projected (the actors or processes with respect to which discretionary authority may be exercised in accordance with authoritative task delegating such authority). That, of course, is the essence of the framework of legality around which a complex and sophisticated techno-bureaucracy is constituted. It is one in which law itself is reduced to delegations of empowerment, and in which the levers of policy and guidance (without the effect of law) can be used to guide the application of legally constituted power by those onto whom such authority is vested.  The administrative state, then, clothed in legality, is operated through webs of policy/guidance, that are not law but have the effect of law not as a positive force but as a prophylactic against accountability with respect to actions taken under color of law.  

In this case, the focus is on the exercise of prosecutorial discretion. The purpose is to induce behaviors among the class of persons and transactions against which prosecutorial discretion is exercised without  the bother of mandating these behaviors through law or law making (subject to its own constraints and democratic accountability), that effectively compel behavior that the law does not technically require. None of this is new; all of it a marker of the times in the sense that the notion of legality, and its systems, has, over the course of the last several centuries continued to adhere to the cantillation of an ancient ideological ideal even as the basic structures and operations of the systems from which that ideal arose shifted from  law as command, to legality as framework within which command shifted from text to administrative decision making within guided frameworks. 

The subject of all of this is the guiding management of corporate governance, especially as a function of governmental oversight. While the ultimate object is legal compliance--with the heart of sovereign authority, its criminal law, its direct object was to reshape the forms and expectations of corporate governance through a series of punishments and rewards masquerading as policy (The New Legislation: Prosecutorial Discretion Guidelines and Corporate Compliance ("The temptations to move toward this shift of authority from the rule of law to the law of the exercise of discretion is especially irresistible where the prosecutorial organs of state power seek to protect against corruption or to further the governmentalization of enterprises through the institution of internal law systems (in the American parlance--compliance and monitoring programs designed to prevent, mitigate and avoid unlawful behaviors).  ")). In 2023, I thought about it this way: 

Pix Credit--"The Office (1999)

One of the most interesting development among those fixated on the enterprise of law has been the way that the formal structures of law making have been dissolving under the acid drip that is shift from law-command institutions (the classical operating mode of the state) to institutional systems grounded in the exercise of administrative discretion conferred on officials by law. Law, in effect, at least its classical expression, has retreated, and in its place one finds the administrator, the official, the individual (or soon the automated generative and sentient AI program) applying, enforcing, or embellishing the  structure or system making "command" of law. In the process, the direct interface between the individual who bears the burden of law (the objects of compliance) and those who impose it (traditionally legislatures and the judiciary) has also changed. The administrator--and increasingly the prosecutor--now stand between the individual and classical law. And the modalities of law do not reach the individual burdened with the responsibility for compliance. Rather, and increasingly, law's command--elaborated through the structures of regulatory governance (and effectuated through the exercise of administrative discretion)--is increasingly delegated to the individuals and entities  whose compliance are their object (e.g., here).  As a result--public legalities now wear two faces.  On the one hand, they are charged with overseeing compliance by the objects of regulation; on the other they oversee that compliance both by exercising discretion in enforcement, and by elaborating the conditions under which that discretion is to be exercised.  * * * None of this suggests judgment. None of this is sinister. It follows inevitably from the changing character of the state, and of the managerial expectations of public bodies. The incentive in compliance environments is to increasingly narrow private choice (and risk calculus) substituting for it the public policy choices of the state expressed through the administration of objectives-based regulation by its officials. ("Modern Times"--The Rise of State Managed Enterprises and the Role of the National Procuratorate in Market Economies like the United States)

 A change of Administration appears not to have slowed the pace of this transformation, though perhaps it is now targeted differently. It is with this in mind that one can read the Department of Justice Press Release which is meant (as is the style of these announcements in the current era)  to crow about some spectacular advance that brings joy to the masses:

The Department of Justice released today the first-ever Department-wide corporate enforcement policy for criminal matters, promoting uniformity, predictability, and fairness in how it pursues white-collar cases to protect the American people. “This Department of Justice is committed to transparency and fairness, and our first-ever Department-wide corporate enforcement policy is yet another example of that,” said Deputy Attorney General Todd Blanche. “ * * * “The Criminal Division has a long and storied history of corporate enforcement, and the corporate enforcement policy announced today takes the principles the Division has long promoted — disclosure, cooperation, and remediation — and applies them uniformly across the Department,” said Assistant Attorney General A. Tysen Duva of the Justice Department’s Criminal Division. “* * * The Department-wide Corporate Enforcement Policy (CEP) provides concrete benefits to incentivize companies to voluntarily disclose discovered misconduct, cooperate with our investigations, and timely and appropriately remediate the wrongdoing. (Press Release: Department of Justice Releases First-Ever Corporate Enforcement Policy for All Criminal Cases)

Its substance has been analyzed by some of the major law firms (example here). The effects on corporate governance within a compliance framework, however remains the same. Deputy Attorney General Todd Blanche made that clear enough: “Well-intentioned businesses know that, across the Department, they will be rewarded when they self-disclose wrongdoing, cooperate with our investigations, and remediate the misconduct. But for those that do not, make no mistake — we will not hesitate to seek appropriate resolutions against companies and individuals alike that perpetrate white collar offenses that harm American interests.” (Press Release)

The text of the Press Release and the Corporate Enforcement and Voluntary Self-Disclosure Policy follow below.