Secret Law Revisited

• Published date: 01 December 2019
• DOI: http://doi.org/10.1111/raju.12260
• Author: Benjamin L. S. Nelson
• Date: 01 December 2019

© 2019 The Author. Ratio Juris © 2019 John Wiley & Sons Ltd.

Ratio Juris. Vol. 32 No. 4 December 2019 (473–486)

Secret Law Revisited

BENJAMIN L. S. NELSON*

Abstract. What follows is an attempt to do some conceptual housekeeping around the notion

of secret law as provided by Christopher Kutz (2013). First I consider low-salience (or merely

obscure) law, suggesting that it fails to capture the legal and moral facts that are at stake in

the case which Kutz used to motivate it. Then I outline a theoretical contrast between mere

obscurity and secrecy, in contrast to the “neutral” account of secrecy provided by Sissela Bok

(1989). The upshot of the two sections is that low-salience law is neither secret law nor neces-

sarily problematic, though it closely resembles a kind of law that is both secret and problematic,

namely, those legal obscurities that subvert manifest interests related to the informational needs

of citizens. The ensuing argument undermines the fiction of constructive presence found in

Austin and Blackstone.

1. Introduction

Secret laws are legal rules which ostensibly bind us even when we are ignorant of

them. Thus, in principle, secret law is a legal curiosity, since it pits two platitudes

concerning the nature of law—the promulgation requirement and ignorantia juris non

excusat—against one another. In that light, secret laws seem to undermine our capac-

ities both as knowers and as citizens. Secret law is also pertinent in practice. For if we

occupy an era of the secret state, as Elizabeth Goitein (2016) has suggested, then the

notion of “secret law” is at the core of our lives as subjects. The news cycle raises the

salience of the issue to heightened levels, e.g., in the United States, the infamous

Bush-era “torture memo”; and in Canada, the secret tribunal system in Canada’s

security certificates program, or the poorly promulgated regulation of the Public

Works Protection Act at the 2010 Toronto G20 Summit (Marin 2010).1 Yet few recent

philosophers have discussed the concept of secret law directly. We have not been

given the intellectual resources to think and talk about how to distinguish secret law

from near-miss cases, namely, those that involve substandard advertising instead of

actual secrecy. An ameliorative explication of the concept would be helpful.

Christopher Kutz (2013) is among the few philosophers who have tackled the

issue head-on. He suggested a taxonomy of secret law which was fixed around prop-

erties he considers worthy of disapprobation. His primary aim is to group together

laws that are at odds with our duties to obey, owing to an asymmetry of information

1 See also Charkaoui v. Canada (Minister of Citizenship and Immigration), 2007 SCC 9 (case nos.

30762, 30929, 31178).

* I would like to thank Matt Grellette, Sari Kisilevsky, and the audience at the European Society

for Analytic Philosophy for helpful comments on earlier versions of this paper.