Now Available : Telos 215 (Summer 2026): China and Sovereignty

 

 I am delighted to pass along the announcement of the availability of Telos 215 (Summer 2026): China and Sovereignty. Thj media release had this to say about its theme:

Telos 215 (Summer 2026): China and Sovereignty continues our series of issues on contemporary Chinese politics and thought. In this issue, we examine how Chinese engagement with Western thinkers such as Marx, Foucault, and Schmitt has shaped competing visions of sovereignty and world order. We also feature a special section on China and Taiwan, drawn from a recent symposium at the University of California, Irvine, on the nature of the Chinese government and the appropriate U.S. response to China’s rise.

Links to the contributions in the Issue, along with David Pan's Introduction, with a discussion of the contributions, also follow below and may also be accessed HERE. The essays are quite interesting in themselves and also for the broader issue of the way in which China encounters, digests, absorbs and naturalizes foreign thought. That fruitful and dialectical encounter with semiotic irritation provides a very useful glimpse at the way in cognitive systems are both open and closed and the way in which the protection of the solidarity of a cognitive system (especially in this case one that is manifested in and through the language of vanguardist politics) requires an openness to the environment in which it exists as a necessary element in enhancing its closure. 

 

 

A Self-Reflection on Pedagogy in an Era of Human-Machine System Interactions in the Classroom-- Test Driving the New Knowledge Transmission and Knowledge Production in Three of My Courses

Pix created with Grok

This self-reflection examines the pedagogical framework underlying three law and international affairs courses taught during AY 2026-2027: Corporations, Constitutional Law of Religion, and Actors, Institutions, and Legal Frameworks in International Affairs. Drawing on classical instructional design and the critical pedagogy of Paulo Freire, the author articulates a dual commitment: integrating students into existing field orthodoxies while cultivating their capacity for critique and transformation. The central operational principle is student ownership of materials, realized through problem-based learning, collaborative group work, peer teaching, and individually authored scholarship. In Corporations, a client-centered pedagogy emphasizes statutory construction, risk assessment, and the mediating role of law. In Constitutional Law of Religion, students engage with textual jurisprudence through litigation strategy and cascading precedent. The reflection develops an ethical pedagogy rooted in classical conceptions of ēthikos and moralis, connecting professional responsibility to collective meaning and global practice. The integration of artificial intelligence is grounded in a four-part research program on AI governance in legal education, yielding a policy template whose operative principle—"AI assists; you think, you analyze, you write, you take responsibility"—preserves student intellectual sovereignty through structured conditionality, deliberate interpretive ambiguity as pedagogy, and disclosure as professional habit formation. The author acknowledges the structural tension between collaborative pedagogy and institutional demands for individual assessment as irreducible but capable of being softened, and identifies group work mechanics as the first-order evaluative site for inclusive pedagogy. The reflection positions teaching as dynamic, iterative practice—its AI policy explicitly framed as a testable first iteration designed to generate data rather than claim finality.

* * *

For AY 2026-2027 I taught three courses: (1) Corporations (Law 3 Credits Fall 2026; Spr 2027); (2) Constitutional Law of Religion (Law 3 Credits Fall 2026); and (3) Actors, Institutions, and Legal Frameworks in International Affairs (SIA 3 Credits Spr 2025). Discussion follows in the style of a critical  “self-reflection.”

(1) Effective Design

(a) Foundational Principles. Instructional materials draw on both classical theories of instructional design and those of the school of Paulo Freire and critical pedagogy, shorn of its contextual ideological predilections that bind the  trans-temporal insights to a specific time, place and space. That is, instruction has as its twin goals first, to facilitate the integration of students into the logic of the present system and understand the essence of premises and principles that in the aggregate constitute the practices of conformity with its expectations, and second to understand the capacity of those principles and premises to serve as the means of transformation, both in its classical and critical forms, or to enhance the reform necessary to move it closer to its ideal state.

(b) Operationalization Principles. The core object of the courses, the fundamental operational principle that structures faculty-student interaction in knowledge production and transmission, is to focus on the creation of pathways for student ownership of the materials. That requires in the first instance an openness to the debates within the fields of knowledge that are the object of each course. It also requires developing the forms by which students can become active learners. Most important, perhaps, is that this sort of collaborative learning ought to have as its twin goals first, to facilitate the integration of students into the ruling ideologies of the field and understand the essence of premises and principles that in the aggregate constitute the practices and expectations of orthodoxy, and second to understand the capacity of those principles and premises to serve as the means of transformation, both in its classical and critical forms, or to enhance knowledge of the ways in which structural elements of the field can be understood in a dynamic sense. The choice is the students', in accordance with their own values, politics, and views. We start from the assumption that everything is new and then the student is guided critically through layers of knowledge, each building on what came before, to become able, at a rudimentary level, to perform as a young lawyer in the corporate field. Each syllabus includes both a detailed discussion of pedagogical approaches, goals and methods, and a careful description of normative goals. The learning trajectory of the materials is explained as well. Students are exposed to and encouraged to discuss both knowledge and the pedagogy of knowledge.

 

(2) Effective Instruction

Effective instruction is intimately contextually based. In Corporations, I continue to move away from Socratic instruction toward a problem based approach to the materials. I remain committed to a client centered approach and focused on the interaction between statute, common law gap filling, and judicial statutory construction. A client centered pedagogy was emphasized along with learning through problems approaches. The principal orientation of my pedagogy continues to move away from the introduction of abstract concepts to the development of a sense of the relationship between corporate law, the objectives of clients, risk and risk assessment elements on the application and development of law (including the new emphasis on ESG compliance and reporting requirements), and the mediating role of law in defining the space within which legal risk can be identified, prevented, or otherwise mitigated or remedied. In the Constitutional Law of Religion the focus was on the development of a sophisticated approach to textual jurisprudence intimately tied to historical context, social temporal trajectories, and the craft of lawyering. The object was to place the students in the midst of the litigation and in the client engagements in which both litigation strategy and the underlying "great principles" in the field meet, engage, and contribute to strategies for court and norms for society. In "Actors, Institutions, and Legal Framework, students approach the materials from the perspective of the roles they will undertake in public and private institutions. The framework is built around ideological analysis requiring the student to become familiar not just with liberal democratic but also post-colonial and Marxist-Leninist frameworks as they engage with the structures, institutions and policy at the international level.

 

(3) Inclusive and Ethical Pedagogy

(a) Conceptual baselines. I continue to develop a more rigorous focus on issues of ethics and inclusion. I mean ethics in its older senses—ēthikos "ethical, pertaining to character," from ēthos "moral character." By moral I stress the marvelous and self reflexive understanding at the foundations of the socio-culture of the Republic at its origins: "from Latin moralis 'proper behavior of a person in society,' literally 'pertaining to manners,' coined by Cicero (De Fato, II.i) to translate Greek ethikos from Latin mos (genitive moris) 'one's disposition,' in plural, 'mores, customs, manners, morals,' a word of uncertain origin." And from that back to a more generative sense of justice tied to law, and thus the education of lawyers—as "the set and constant purpose which gives to every man his due. Jurisprudence is the knowledge of things divine and human, the science of the just and the unjust." (Justinian, Institutes, Bk 1, tit. 1.1 (J.B. Moyle (trans, 1913); in the original: IMPERATORIS IVSTINIANI INSTITVTIONVM LIBER PRIMVS: Iustitia est constans et perpetua voluntas ius suum cuique tribuens. Iurisprudentia est divinarum atque humanarum rerum notitia, iusti atque iniusti scientia.) Moral character deeply bound up in mores, customs and manners of collectives and sub-collectives from which justice can be developed as a collective concept that can then be studied in its manifestation in the law systems with the state at its hub.

(b) From concept to action, the phenomenology of the moral-ethical expressed in action by design. Here one must turn to the action of instruction, to transmission (from the perspective of the instructor) and owning, acquiring, making something one's own (from the perspective of the student). The two must align for instruction to be effective and not merely the performance of roles empty of any connection with effect other than with the performance itself (sitting in the class, performing the exam, giving lectures, etc.). Instruction, then, is crafted on several levels. The first is on ethics (lawyer ethics both as counsel to an enterprise and as a member of the bar in the law classes; the ethics of institutional actors understood and transmitted in the sense developed above). The second touches on the ethics of decision making and counseling within an ecology of market norms and social expectations. The third is within the ecologies of national law and international norms. I continue to develop an ethical and inclusive pedagogy on the basis of the goal that within that multi-layered behavior expectation universe, students are taught to recognize issues of ethics as a function of ideals, and ideals as a function of their grounding ideologies. At the same time students understand the sociology, and semiotics of ethics as communal expressions of "right", its contestations, and its dialectics—a moving target that is both individually embedded and an expression of collective meaning and solidarity (even within its most profoundly disruptive dialectics). They are exposed not just to the plausible range of interpreting the governing ideology of this nation, but also the sometimes quite distinct governing ideologies of other places and peoples. The context is global corporate activity, with an emphasis on mediating ethical decision making between Global North and South. But more than that, ethics and inclusion is performed. And in each of the courses, student performativity—in group work, presentations, and engagement becomes an integral part of the learning universe.

(c) Evaluation of inclusive and ethical pedagogy. The primary site where inclusive and ethical pedagogy is practiced and can be evaluated is group work. Both law courses require collaborative production of reports, PowerPoints, and oral presentations across multiple iterations over the semester (six group presentation cycles in Corporations; at least six in Constitutional Law of Religion), creating observable dynamics: internal deliberation, equitable distribution of intellectual labor, negotiation across difference, and collective accountability. These group mechanics constitute the first-order evaluative terrain for assessing whether inclusive pedagogy is realized in practice rather than merely theorized in aspiration. In this first iteration, evaluation is qualitative: How do groups function internally? Do patterns of dominance or marginalization emerge along lines of identity, language proficiency, or prior experience? Does the oral presentation reflect genuine collective production or the work of one or two members with others performing scripted roles? Does group performance improve across the semester's multiple presentation assignments? From this foundation—group work mechanics as first-order data—further measures (peer evaluations, structured self-reflection on collaboration, quantitative participation metrics) may be developed in subsequent iterations as the data from this approach matures.

 

(4) Reflective and Evolving Practice

Nothing stands still; not even elements of effective teaching. As has been my practice since I started teaching, I test course materials, and the effectiveness of its conveyance to students on an annual basis. It follows that the specifics of course materials and delivery changes from year to year. Each year every class is new, sometimes in larger respect than in other years. For example the Actors, Institutions, and Legal Frameworks was reworked in real time to reflect the sometimes substantial changes that have been occurring since January 2025. The Constitutional Law of Religion was reworked to recognize the effects and challenges to the significant turn in jurisprudence since 2022 in both the U.S. and beyond its cultural-jurisprudential limits. The point is to be nimble, and prepared to change materials, approaches, emphasis to suit time, space, and place. I continue to refine my practices in light of the changing nature, capacities, socio-cultural baselines of students and will continue to emphasize respect both for one's own cultural imperatives and those of others. Active learning will continue to be emphasized and the cultivation by students of their own ethical and values based relationship to the materials presented will be encouraged.

Image generated with ChatGPT

  

(5) The Challenge of Technology

All of this is now mediated through, and perhaps increasingly as, technology and technologically enhanced (or substituted) expression. And yet the production and dissemination of knowledge must persist among humans. A new semiotics of the human-machine system interaction is now required (my preliminary effort here; On the Nature of Human-Machine System Interaction: A Conversation with Claude, Harvey AI, Gemini, ChatGPT and Grok) as a basis for exercising autonomy (on the human side, one can hardly speak for or to machine systems, which are both opaque and indifferent to the human condition as such). As I gear up for teaching the basic course in corporations this coming term, I have been reviewing and modifying both pedagogy and substance. This year will introduce a number of changes, starting with a pedagogy that creates strong incentives for the use of AI and machine systems in approaching learning and in learning how to learn while using technology to enhance output and test knowledge. I have already introduced my Instructor's Model AI Policy Template (see here, English and links to versión en Español).

 

The AI Policy Template is not merely a compliance instrument; it is the operational expression of the broader commitment to student autonomy within the emerging techno-legal order. It emerged from a four-part research program on AI governance in legal education: first, a consolidated analysis of how U.S. law schools have approached generative AI in coursework and exam policies, identifying structural variation and opacity across institutions (Structure, Opacity, and Convergence, SSRN July 2026); second, a consultation with five machine systems themselves on what law schools should do, yielding five distinct archetypes of response (Five Machines, One Question, No Consensus, SSRN July 2026); third, an attempt to construct machine-centric governance frameworks unconstrained by the requirement to remain human-centric; and fourth, the drafting of the template itself as what I have called "a first step toward its own phenomenology"—designed to be tested in an actual course setting and refined based on what that experience reveals, rather than adopted as a final, fully closed rule.

The policy's governing principle is captured in a slogan suggested by one of the machine systems consulted: "AI assists. You think. You analyze. You write. You take responsibility." This formulation establishes a hierarchy: technology as instrumental means, human judgment as sovereign, accountability as the binding principle. The policy's architecture enacts this hierarchy through specific mechanisms. A default of independent work (Section 1), with AI use permitted only under conditions that preserve student intellectual sovereignty: substantive legal analysis, arguments, and conclusions must originate with the student. The boundary between permitted and prohibited uses is deliberately framed as illustrative rather than bright-line—a design choice whose justification is itself pedagogical. A precise mechanical line would produce either false confidence (anything not listed as prohibited is safe) or a chilling effect on legitimate uses near an artificial boundary. The deliberate ambiguity creates an occasion for direct interaction between instructor and student before the fact, in which the instructor can both assess a proposed use and steer the student toward a better one—a teaching moment in its own right, and one worth the friction that ambiguity introduces.

 

Disclosure and certification serve not merely as enforcement but as normalization of professional habit—consistent with the emerging expectation that attorneys disclose AI use to clients, courts, and regulators. The appendix-and-certification regime creates a contemporaneous record, shifts the practical burden toward compliance, and converts disclosure obligations into an affirmative representation whose falsification is itself a separate violation. Numerical limits on incorporated AI content (100 words per quotation; 10% per tool; 30% aggregate across all tools) are acknowledged as necessarily arbitrary but chosen because a fixed number is easier for a student to self-apply before submission and easier for an instructor to verify after.

 

The policy is explicitly framed as a testable first iteration—a companion piece to the broader scholarship, designed to generate data from its first deployment with students. The equity differential in AI fluency among students is acknowledged as both a problem to be managed and a potential teaching opportunity: made transparent through mandatory disclosure, it suggests a pathway toward using those differences as a subject of classroom discussion about competent and equitable use, rather than only as a risk to be suppressed. Whether the working hypothesis holds—that the disclosure-and-certification regime raises the cost of evasion enough, at the margin, to shift the balance of compliance meaningfully in the right direction—is a question for the data, not for the drafting table.

But new technology also appears to make inevitable the need to revise pedagogy (the mechanics of the transmission of knowledge) and using that to reconsider the way we approach the production and application of knowledge in the substantive field of U.S. law courses, and especially those which—one that in parts will include a strong comparative element.

 

So, the cascade effect of change has produced a new basis for the project of justice encased in the science of jurisprudence and tasked with its own production and dissemination of knowledge to the community of believers and to those who must be taught, those who must teach, and those who must internalize both in their societal roles and within structures of social solidarity in political communities.

 

(6) The Structural Tension in Assessment

Lofty language, indeed, as the basis for introducing my own modest contribution in the form of my course syllabus for two quite different courses: an advanced introductory course to the law and jurisprudence of the corporation, and an advanced course in the constitutional law of religion (mostly US but with a substantial peek at the goings on elsewhere and beyond the state).

 

A word on assessment is warranted, because the assessment structures of the courses embody a tension that is structural rather than inadvertent. In Corporations, the course grade is based on Group Presentations (15%), submission of assigned problems (15%), and an in-class final examination (70%). In Constitutional Law of Religion, the grade is based on Group Presentations (25%) and a final paper (75%). In both cases, the collaborative components constitute the minority of the grade, and the individual assessment dominates. This reflects a tension between two competing institutional logics that I cannot overcome, though I can soften it. On one side: the collaborative work models the professional reality in which lawyers work in teams, produce jointly, negotiate collective outputs, and learn through the give and take of practice—the core of future professional life. On the other: institutional custom, tradition, and expectation—reinforced by bar examiners, accreditors, and grading norms—demand that students demonstrate individual competence through individual assessment. The two are not reconcilable at the course level; they coexist as expressions of competing demands on legal education.

The softening occurs in two ways. First, by ensuring that the collaborative components carry sufficient weight to be taken seriously as integral elements of the course rather than ornamental additions. Second, and more important, by designing the individual assessments to draw upon and reward the habits developed through collaborative work: the Corporations final exam is patterned on the problems discussed collaboratively in class throughout the semester—practice with those problems aids immeasurably in preparation for the exam; the Constitutional Law of Religion final paper explicitly invites students to weave together relevant themes raised in each of the presentations and reports produced by the groups during the course of the semester. Individual assessment thus becomes, in part, the site where the student demonstrates capacity to marshal what was produced collectively into individually voiced analysis. The assessment structure mediates between collaborative pedagogy and institutional grammar, and the mediation is deliberate.

 

(7) The Courses in Practice

 

The corporate law students will be engaged in working through increasingly more sophisticated problems, analyzing statutes and cases in the context of human "puzzles." Their technology focus will be on the production of group reports and the presentation of approaches to counseling clients related to the "problem" they bring to the lawyer. The constitutional law students will wrestle with the semiotics of a jurisprudence that is deeply interlinked with some of the most interesting political, social, moral, and collective debates that have generated tremendous interest and action in the Republic, in present form, from the 1940s. The narratives of cases, their "flow"—sequential, sometimes multi-tracked, dialectic, and inherently a textualization of the structures and framework of the Republic as a cascading phenomenology—is realized through group wrestling with issues, cases and flows, as students teach themselves, teach each other in groups to arrive at a joint position, and then engage in the dissemination of the knowledge they have produced in their exposition of the product of their work to the class. The performance—group presentations—can aim to something more than its sometimes justified caricature. And then all of this leads to the production of a paper that represents the essence of the knowledge the student has acquired in class and its dissemination to the group.

 

Or, as I put it to my students:

Those of you who have looked at the syllabus know that we will be experimenting this year by permitting (I don't want either to encourage or discourage) the use of AI for the production of "course related output" (I believe that is the current administrator-speak). There is a pedagogy here—you will be increasingly expected to have a facility with output production that involves, to some degree or other, use of AI and machine system tools and capabilities. We will chat about the mountain of helpful materials that Penn State has produced for your use. But also, to those ends I have been trying to develop some materials (apologies they are fairly abstract but necessarily so to prove my point) to give students a better sense of what they are dealing with with AI, even those who now feel themselves competent and adept in the "AI arts"). The best teacher, though, is experience, and experimentation. And we will be doing both this semester in pursuit of knowledge using contemporary tools in a contemporary environment in which the hope is that you become more autonomous actors in the emerging techno-legal order.

The Syllabus for both courses have been posted for those interested (they may be found HERE); along with an Executive Summary for the General Reader and Policymaker and a Note on Student Group Assignments, Teaching Notes, and Infographics. The relevant language relating to AI Instruction and grading may be found below. Further engagement with hopes of refinement is always welcome off line!

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

 

Pix credit here 

(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.

---

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). 

 

Faquan-in-Motion: Larry Catá Backer’s (白轲) Modernization and the Lebenswelt of Chinese Constitutionalism Read Through Tong Zhiwei's Faquanism 法权运动中：(Larry Catá Backer中文名：白轲) 现代化与中国宪制的生活世界 ——通过童之伟的法权主义加以阅读

 

Pix credit here 

(Ying Yeping (应野平), Wang Huanqing (汪欢清) - An Arduous Journey (1961))

I have been thinking through the fundamental role of modernization in Chinese constitutionalism and its proper cognitive framing of constitutional theory (or at least of a theory of the way in which collectives approach cognitively rational self-constituting) ((1) "Modernization (现代化) as the Lebenswelt of Chinese Constitutionalism" [现代化作为中国宪政的生活世界 ]; (2)  Discussion Draft Posted: "Education as Productive Force and Ideological Apparatus: A Dialectical Analysis of China's Modernization-Driven Knowledge System" [作为生产力与意识形态机制的教育：中国现代化驱动型知识体系的辩证分析] ). 

I have also been engaging in the quite exciting and insightful project of Tong Zhiwei (童之伟) and his elaboration of a theory of fundamental jurisprudence. In the form of his Right, Power, and Faquanism: A Practical Legal Theory from Contemporary China (Boston, Brill, 2018) Tong develops  what may emerge as a new general theory of law. I wanted to start to consider the relation between the way that Tong and I saw the world and its theoretical framing. The product of that exploration, at least the first of what may become a fruitful dialogue, is an essay entitled Faquan-in-Motion: Larry Catá Backer’s (白轲) Modernization and the Lebenswelt of Chinese Constitutionalism Read Through Tong Zhiwei's Faquanism [法权运动中：(Larry Catá Backer中文名：白轲) 现代化与中国宪制的生活世界——通过童之伟的法权主义加以阅读], which follows: 

 

Abstract / Summary — For Policymakers and General Audiences

How does China's legal system actually work on its own terms—and what theories do Chinese scholars themselves use to explain it? This essay brings two independent Chinese intellectual projects into conversation for the first time. The first is Tong Zhiwei's "Faquonism," a comprehensive theory that treats the total field of social interests and property (quan) as the raw material from which law carves recognized rights (for individuals) and powers (for the state), leaving the remainder unsettled. The second is Larry Catá Backer's (白轲) phenomenological-semiotic account of Chinese constitutionalism, which treats "modernization" not as a policy slogan but as the cognitive horizon—the deep, historically layered framework—within which Chinese constitutional language acquires its meaning, periodically recalibrated by the Communist Party's diagnosis of the nation's "principal contradiction."

Reading these two frameworks against each other yields a striking finding: each can, to a significant extent, be restated in the vocabulary of the other. Modernization, translated into Faquonism’s terms, names two things at once: the long historical process by which unsettled interests become legally recognized rights and powers, and the external criterion that periodically fixes what ratio between them counts as appropriate. Conversely, Faquonism’s core category—faquon—functions within legal theory in much the same way that modernization functions one level higher in constitutional discourse: as a master-organizing term (a “metasignifier”) that gives all the surrounding concepts their relational meaning. The two projects share structural common ground: both treat law as historically indexed rather than timelessly fixed; both locate the authority to recalibrate legal meaning in the Party’s periodic diagnosis of national conditions; and both imply that the absorption of popular claims into settled legal form proceeds through structured consultation rather than adversarial litigation.

This mutual translatability reveals a further practical insight: Tong’s own methodology already ties the essence of law to whatever China’s current stage of modernization requires. His theory is not timeless philosophy; it is explicitly calibrated to the Party-state’s developmental agenda. This means that shifts in China’s legal order—between more individual rights and more state power—are best understood as responses to changing official assessments of national development, processed through the consultative machinery of Whole-Process People’s Democracy rather than through courts adjudicating individual rights claims.

Important divergences remain. Faquonism’s conception of justice is distributive—each person receiving exactly the legal share due—yet the Chinese constitutional order actually legitimates itself not through fair allocation but through developmental and civilizational achievement: the Party’s claimed capacity to lead modernization. Both theories also rely on the image of a rationally self-transparent vanguard that surveys and directs the entire system from a position of comprehensive knowledge—an image that none of the available mediating idioms (systems theory, biopolitics, indigenous Chinese rhetoric) can fully accommodate without denying something both Chinese source texts insist upon. The essay identifies these and other unresolved tensions—including Faquonism’s lack of a category for Party-internal normativity—not as theoretical failures but as indicators of what remains genuinely open in our understanding of China’s constitutional order, and where future institutional and conceptual evolution may prove consequential.

摘要——面向政策制定者与普通读者

中国的法律体制究竟按照何种内在逻辑运行？中国学者自身又以何种理论加以解释？本文首次使两个彼此独立的中国理论项目展开对话。第一个是童之伟的"法权主义"：一套完整理论，将社会利益与财产的总体场域（"权"）视为法律从中划定权利（面向个人）与权力（面向国家）的原材料，其余部分则保留为未决状态。第二个是Larry Catá Backer（白轲）对中国宪制的现象学—符号学论述，该论述将“现代化”不是视为政策口号，而是理解为中国宪制语言借以获得意义的认知视域——一个深层的、历史层累而成的框架——由共产党对“主要矛盾”的诊断周期性地加以重新校准。

将两个框架相互对照，可得出一项引人注目的发现：二者在相当程度上可以用对方的词汇加以重述。现代化经由法权主义的术语进行转译，同时命名了两件事情：未决利益被吸收为法律上已确定的权利与权力的长时段历史过程，以及周期性地确定二者之间何种比率被视为“适当”的外部标准。反之，法权主义的核心范畴——“法权”——在法学理论内部发挥的功能，与现代化在更高一层宪制话语中所发挥的功能具有结构同源性：二者均作为赋予周围概念以关系性意义的主组织术语（“元能指”）而运作。两个项目共享结构性的共同基础：二者均将法律视为具有历史索引性而非永恒固定的；二者均将重新校准法律意义的权威定位于党对国情的周期性诊断；二者均暗示民众诉求向已决法律形式的吸收，是通过结构化协商而非对抗式诉讼加以实现的。

这种相互可转译性揭示了一项进一步的实践洞见：童之伟自身的方法论已明确将法的本质与中国当前现代化阶段的要求相联结。其理论并非超越时空的哲学抽象，而是被明确校准于党—国家的发展议程。这意味着，中国法律秩序在个人权利与国家权力之间的消长，最适宜被理解为对国家发展阶段官方诊断变化的回应，其制度路径是全过程人民民主的协商机制，而非法院对个人权利主张的裁判。 重要的分歧依然存在。法权主义的正义观是分配性的——每个人恰好获得其应得的法律份额——然而中国宪制秩序实际上并非通过公平分配来自我正当化，而是通过发展性与文明性的成就：即党声称能够领导现代化的能力。与此同时，两种理论都依赖一个具有理性自我透明性的先锋队形象，该先锋队从全面知情的位置审视并指导整个体系——而现有的任何中介性话语（系统理论、生命政治、中国本土修辞策略）都无法在不否定两个中国源文本所坚持的某些内容的前提下完全容纳这一形象。本文将这些及其他未解张力——包括法权主义缺乏对党的内部规范性的范畴性语汇——不视为理论缺陷，而视为我们对中国宪制秩序的理解中仍然真正开放之处的指标，也是未来制度与概念演进可能具有实质后果的领域。

The text of the draft essay follows below and may be accessed  ENGLISH  /  中文版本 HERE

 

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

Pix credit here

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.