David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Ezio Di Nucci
Jack Alan Reynolds
Learn more about PhilPapers
Ratio Juris 22 (2):197-217 (2009)
Abstract. Revelations in the United States of secret legal opinions by the Department of Justice, dramatically altering the conventional interpretations of laws governing torture, interrogation, and surveillance, have made the issue of "secret law" newly prominent. The dangers of secret law from the perspective of democratic accountability are clear, and need no elaboration. But distaste for secret law goes beyond questions of democracy. Since Plato, and continuing through such non-democratic thinkers as Bodin and Hobbes, secret law has been seen as a mark of tyranny, inconsistent with the notion of law itself. This raises both theoretical and practical questions. The theoretical questions involve the consistency of secret law with positivist legal theory. In principle, while a legal system as a whole could not be secret, publicity need not be part of the validity criteria for particular laws. The practical questions arise from the fact that secret laws, and secret governmental operations, are a common and often well-accepted aspect of governmental power. This paper argues that the flaw of secret law goes beyond accountability and beyond efficiency to the role that law plays, and can only play, in situating subjects' understanding of themselves in relation to the state. Secret law, as such, is inconsistent with this fundamental claim of the law to orient us in moral and political space, and undermines the claim to legitimacy of the state's rulers.
|Keywords||No keywords specified (fix it)|
|Categories||categorize this paper)|
Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
|Through your library|
References found in this work BETA
Thomas Hobbes (2012). Leviathan. Clarendon Press.
H. L. A. Hart (1994). The Concept of Law. Oxford University Press.
John Finnis (2011). Natural Law and Natural Rights. Oxford University Press Uk.
John Finnis (1980). Natural Law and Natural Rights. Oxford University Press.
Plato, John M. Cooper & D. S. Hutchinson (eds.) (1997). Plato: Complete Works. Hackett Publishing Co..
Citations of this work BETA
Claire Grant (2012). Secret Laws. Ratio Juris 25 (3):301-317.
Similar books and articles
Neil MacCormick (2007). Institutions of Law: An Essay in Legal Theory. Oxford University Press.
Jodi Dean (2001). Publicity's Secret. Political Theory 29 (5):624-650.
Desmond Lee (1977). The Secret of Crete Hans Georg Wunderlich: The Secret of Crete. Pp. Xv + 367; 90 Drawings and Photographs. London: Souvenir Press, 1975. Cloth, £4·50. [REVIEW] The Classical Review 27 (01):80-82.
J. W. Mackail (1928). Virgil's Secret Virgil's Secret and Other Plays. By Hugh Macnaghten, Vice-Provost of Eton College. Pp. 112. London: E. Arnold and Co., 1927. 5s. [REVIEW] The Classical Review 42 (02):81-82.
Vidyāprakāśānandagirisvāmi (2008). The Secret of Liberation: Secret of Achievement. Sri Sukrabrahmashramam.
Claire Colebrook (2010). The Secret of Theory. Deleuze Studies 4 (3):287-300.
Henry Bayman (2003). The Secret of Islam: Love and Law in the Religion of Ethics. North Atlantic Books.
Added to index2009-06-16
Total downloads22 ( #178,361 of 1,911,469 )
Recent downloads (6 months)1 ( #457,145 of 1,911,469 )
How can I increase my downloads?