Ratio Juris 22 (2):197-217 (2009)

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Abstract
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.
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DOI 10.1111/j.1467-9337.2009.00421.x
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References found in this work BETA

Leviathan.Thomas Hobbes - 1651 - Harmondsworth, Penguin.
The Concept of Law.Hla Hart - 1961 - Oxford University Press.
Summa Theologica.Thomasn D. Aquinas - 1274 - Hayes Barton Press.
Natural Law and Natural Rights.John Finnis - 1979 - Oxford University Press.
Plato: Complete Works.J. Cooper (ed.) - 1997 - Hackett.

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Citations of this work BETA

Secret Law Revisited.Benjamin L. S. Nelson - 2019 - Ratio Juris 32 (4):473-486.
Why States Have No Right to Privacy, but May Be Entitled to Secrecy: A Non-Consequentialist Defense of State Secrecy.Dorota Mokrosinska - 2020 - Critical Review of International Social and Political Philosophy 23 (4):415-444.
Secret Laws.Claire Grant - 2012 - Ratio Juris 25 (3):301-317.

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