According to an attractive and widely held view, all practical reasons are explained in terms of the (instrumental or final) value of the action supported by the reason. I argue that this theory is incompatible with plausible assumptions about the practical reasons that correspond to certain moral rights, including the right to a promised action and the right to an exclusive use of one’s property. The argument is an explanatory rather than extensional one: while the actions supported by the relevant (...) reasons (e.g. keeping a valid promise or respecting property) can be argued to have a certain kind of value, I argue that this value presupposes a moral right, and therefore cannot explain the reason. Reflection on such cases suggest the conclusion that reasons that are subject to normative powers are generally not value-based. This also has important implications for the dialectic between ‘value-first’ and ‘reasons-first’ approaches to normativity. (shrink)

This paper investigates whether different philosophers’ claims about “normativity” are about the same subject or (as recently argued by Derek Parfit) theorists who appear to disagree are really using the term with different meanings, in order to cast disambiguating light on the debates over at least the nature, existence, extension, and analyzability of normativity. While I suggest the term may be multiply ambiguous, I also find reasons for optimism about a common subject-matter for metanormative theory. This is supported partly by (...) sketching a special kind of hybrid view of normative judgment, perspectivism, that occupies a position between cognitivism and noncognitivism, naturalism and nonnaturalism, objectivism and subjectivism, making it more plausible that radically different metanormative theories could be about the same thing. I explore three main fissures: between (i) the “normativity” of language/thought versus that of facts and properties, (ii) abstract versus substantive senses, and (iii) formal versus robust senses. (shrink)

Authority consists in having standing to make a claim on another person’s actions. Authority comes in degrees: persons have the authority to make moral demands on each other, but if they participate in close relationships, such as friendships or love relationships, their authority over each other is greater, compared to the authority of strangers to make demands, as participants in personal relationships can demand more from each other than can strangers. This paper discusses the phenomenon of a relationship-dependent greater authority (...) on a conceptual level. It thereby fills a gap in the literature on the proper theory of authority : while being a common part of our moral practice, relationship-dependent authority has mostly been neglected in this context. It is even doubtful whether the most influential contemporary accounts of authority can accommodate it. As will be argued, neither Joseph Raz’s service conception nor Stephen Darwall’s second - personal conception of authority are able to. The trig. (shrink)

Purpose of this article is to assess the validity of the Razian conception of the rule of law by subjecting it to the acid test of Michel Troper's 'realist theory of interpretation'. The author argues that, in light of the Wittgensteinian view of rule-following, a serious indeterminacy can be seen as inherent in both this conception of the rule of law and Troper's theory of interpretation.

Constitutional democracies unilaterally enact the laws that regulate immigration to their territories. When are would-be migrants to a constitutional democracy morally justified in breaching such laws? Receiving states also typically enact laws that require their existing citizens to participate in the implementation of immigration restrictions. When are the individual citizens of a constitutional democracy morally justified in breaching such laws? In this article, I take up these questions concerning the justifiability of noncompliance with immigration law, focusing on the case of (...) nonviolent—or mere—noncompliance. Dissenting from Javier Hidalgo’s view, I argue that the injustice of an immigration law is insufficient to make mere noncompliance justified. Instead, I contend that only if an immigration law lacks legitimate authority are individuals justified in breaching it, since the subjects of an institution with legitimate authority are under a content-independent moral duty to comply with its rules. I further argue that a constitutional democracy’s regimes of law regulating immigration and requiring its citizens’ participation in implementing these regulations have legitimate authority. Nevertheless, when a particular immigration law is egregiously unjust, its legitimacy is defeated. (shrink)

Philosophical anarchists claim that all states lack political authority and are illegitimate, but that some states are nevertheless morally justified and should not be abolished. I argue that philosophical anarchism is either incoherent or collapses into either statism or political anarchism.

Abstract.Although the Hart/Dworkin debate has as much to do with Dworkin's affirmative theory of judicial discretion as with Hart's more comprehensive theory of law, the starting point was of course Dworkin's attempt to demolish the “model of rules,” Hart's alleged analysis of legal systems as collections of conclusive reasons for specified legal consequences. The continuing relevance of this attack for the prospects for any theory of law is the subject of the present essay.

It is widely believed that the nature of love and friendship precludes them from being bought or sold. It will be argued in this paper that this view is false: There is no conceptual bar to the commodification of love and friendship. The arguments offered for this view will lead to another surprising conclusion: That these goods are asymmetrically alienable goods, goods whose nature is such that separate arguments must be provided for the views that they can be bought and (...) sold. The possibility of asymmetric alienability has not yet been recognized in the literature on commodification. (shrink)

Conventionalists about promising believe that it is wrong to break a promise because the promisor takes advantage of a useful social convention only to fail to do his part in maintaining it. Anti-conventionalists claim that the wrong of breaking a promise has nothing essentially to do with a social convention. Anti-conventionalists are right that the social convention is not necessary to explain the wrong of breaking most promises. But conventionalists are right that the convention plays an essential role in any (...) satisfactory account of promising. A new conventionalism can explain this by appealing to special features of social conventions. Two of these special features have important implications for any moral requirements they mediate, such as the requirement to keep one's promises and the moral requirements attached to social or occupational roles. First, these requirements will not depend on features of a situation that are inaccessible to typical participants in the convention. Second, these requirements often cannot be tailored to fit the overly unusual circumstances of participants. (shrink)

El artículo explora las relaciones entre el derecho, la democracia y el imperativo del trato igual, deteniéndose en el desarrollo de nociones como “comunidad política”, “actos políticos” o “derechos”, y proponiendo un entendimiento específico de los “derechos democráticos” en cuyo contexto el derecho de igual acceso a la protección judicial juega un papel crucial. El análisis combina exploraciones en el plano del lenguaje jurídico dogmático con acometidas filosóficas, filológicas, históricas y sociopolíticas, en consonancia con la idea de que las fuentes (...) históricas son las coordenadas que rodean la experiencia jurídica y el juego democrático. (shrink)

This essay argues for a conception of law as a normative practice, a conception which departs from traditional, particularly positivist, conceptions. It is argued that Dyzenhaus's book (Dyzenhaus 1991), with its fascinating case study of unjust judicial decisions in South Africa, makes a compelling argument for such a conception. However, the essay takes issue with Dyzenhaus for romanticising the liberal tradition, and inflating the power of law and legal theory. Nonetheless, the essay agrees that positivist accounts tend to downplay the (...) emancipatory promise of law, and ends with some remarks about promise. (shrink)

According to the received opinion there is a theoretical incompatibility between Herbert Hart's The Concept of Law and Alf Ross's On Law and Justice, and, according to the received opinion, it stems above all from Hart's emphasis on the internal point of view. The present paper argues that this reading is mistaken. The Concept of Law does not go beyond On Law and Justice in so far as both present arguments to the effect that law is based on a shared (...) understanding between participants in a project perceived by every participant to be a project in common. The paper demonstrates that there are substantive parallels between Hart's combination of “acceptance” or “acknowledgement” and a “critical reflective attitude” and Ross's combination of “motivation” or “feeling” and a “coherent whole of meaning and motivation.” The main conclusion is that the views of norms and normativity put forward in The Concept of Law and On Law and Justice are very close in essential respects, and, more specifically, that the two works are at root identical in their representation of the basis of normativity in reality. (shrink)

I argue in this article (i) that Karl Olivecrona's legal philosophy, especially the critique of the view that law has binding force, the analysis of the concept and function of a legal rule, and the idea that law is a matter of organized force, is a significant contribution to twentieth century legal philosophy. I also argue (ii) that Olivecrona fails to substantiate some of his most important empirical claims, and (iii) that the distinction espoused by Olivecrona between the truth and (...) the correctness of legal statements is problematic but not needed in Olivecrona's legal philosophy. (shrink)

The Scandinavian Realist Karl Olivecrona did not pay much attention to questions of legal reasoning in his many works. He did, however, argue that courts necessarily create law when deciding a case. The reason, he explained, is that judges must evaluate issues of fact or law in order to decide a case, and that evaluations are not objective. Olivecrona's line of argument is problematic, however. The problem is that Olivecrona uses the term "evaluation" in a sense that is broad enough (...) to cover not only evaluations, including moral evaluations, but also considerations that are not evaluations at all, and therefore his claim that judges must evaluate issues of law or fact in order to decide whether a case is false. (shrink)

The Scandinavian Realist Karl Olivecrona did not pay much attention to questions of legal reasoning in his many works. He did, however, argue that courts necessarily create law when deciding a case. The reason, he explained, is that judges must evaluate issues of fact or law in order to decide a case, and that evaluations are not objective. Olivecrona's line of argument is problematic, however. The problem is that Olivecrona uses the term “evaluation” in a sense that is broad enough (...) to cover not only evaluations, including moral evaluations, but also considerations that are not evaluations at all, and therefore his claim that judges must evaluate issues of law or fact in order to decide whether a case is false. (shrink)

This article focuses on questions of pure fact-of-the-matter and asks whether two omniscient judges may disagree over the legal answer to a straightforward question of a matter of fact. There are approaches to legal theory among some western and Jewish philosophers of law whereby at least superficially it is possible that two or more contradictory legal statements regarding a given reality can be equally correct. The article provides a critical analysis of three different models derived from the Jewish legal literature, (...) and reviews the contributions of Jewish sources to the understanding of the phenomenon of disagreements concerning matters of fact. (shrink)

It will be argued, firstly, that there is a link between the legal validity of a norm and the rational justifiability of a requirement that judges should apply this norm, based on a normative conception of legal validity and the postulate that judges should act as rational persons; secondly, that rational justifiability of legal norms requires the construction of a legal system in a model of principles that differs from theories, e.g., of Kelsen, Hart, Dworkin and Alexy, which are not (...) fully adequate for a normative conception of law. (shrink)

The paper describes at length and then discusses critically Frederick Schauer's analysis of rules in his recent book Playing By the RuZes. For most of the book Schauer discusses rules in general, and only at the end talks about legal rules in particular. The chief message of Schauer's analysis is that rules permit, and even constitute, a particular kind of decision‐making, one that quite deliberately insulates the decision‐taker from considerations of what would be in the circumstances the best justified decision (...) to take. Rules are thus for Schauer devices for the allocation of decision‐making power: The effect of A delegating to B the power to decide by a set of rules devised by A is that A retains much control over B 's decision‐making. Schauer canvasses the claims of what he calls “presumptive positivism” to be a theory of law which embodies such a view of legal rules. In his criticism, the author compares Schauer's view with Joseph Raz's notion of legal rules as exclusionary reasons. The author then compares “presumptive positivism” with some other recent versions of positivism and the idea of rules as devices for the allocation of power with theories of law in the Critical Legal Studies movement. (shrink)

Abstract.Legal philosophy must consider the way in which laws function as reasons for action. “Simple positivism” considers laws as merely reasons in the balance of reasons. Joseph Raz, as a representative of “sophisticated positivism,” argues that laws are exclusionary reasons for action, not merely reasons in the balance of reasons. This paper discusses Raz's arguments for his view. The Functional Argument provides no more reason for positivism than against it. The Phenomenological Argument is best supported by an account of how (...) character traits function in explaining behaviour. But then the distinction between exclusionary reasons and expressive reasons is obliterated. Legal positivism cannot absorb laws as expressive reasons for action. Raz's positivism implies the correctness of an anti‐positivistic legal theory. (shrink)

Anglo-American authors have paid little attention to a subtle distinction that has important jurisprudential implications. It is the distinction between sources of law and the legal norms which can be derived from sources by means of interpretation. The distinction might also be rendered as a threefold one, separating sources of law from legal norms and both of these from that which mediates their relation, namely, methods of legal interpretation. This paper intends to state the “source-norm” distinction clearly and to give (...) examples of jurisprudential insights that are missed, and mistakes that may be made if the distinction is not given its due. (shrink)

This essay argues that legal efficacy understood as existent binding force and as dominance of a system of coercion vis-à-vis competing systems is not strictly a matter of fact, but involves what can be termed justified normativity in a factual context. The argument is divided into four sections. The first three sections describe different dimensions of a normative concept of legal efficacy applied to legal systems: efficacy as persuasiveness, as indirect communication, and as constitutive obedience. The final section focuses on (...) the efficacy of individual norms and adds a new criterion – membership – which establishes a multi-layered test of efficacy. (shrink)

Like many people these days, I believe there is no general moral obligation to obey the law. I shall explain why there is no such moral obligation – and I shall clarify what I mean when I say there is no moral obligation to obey the law – as we proceed. But also like many people, I am unhappy with a position that would say there was no moral obligation to obey the law and then say no more about the (...) law's moral significance. In our thinking about law in a resonably just society, we have a strong inclination to invest law with a sort of moral halo. It does not feel right to suggest that law is a morally neutral social fact, nor to suggest that law is merely a useful social technique. In this essay, I shall try to account in part for law's moral halo. Because I share the widespread inclination to invest law with this halo, I shall not be interested in a merely historical account of how we come to see law with a halo – a pure “error theory” of law's halo, if you will. I want to justify the halo. On the other hand, the main way to justify the halo is to get clear just what law's moral significance is. It is unlikely that at the end of the process of clarification the halo will have exactly the shape or luminance that it had at the beginning. (shrink)

The article reviews several books on the rule of law, including "International Justice in Rwanda and the Balkans: Virtual Trials and the Struggle for State Cooperation," by Victor A. Peskin, "Civil War and the Rule of Law: Security, Development, Human Rights," edited by Agnes Hurwitz and Reyko Huang, and "Plunder: When the Rule of Law Is Illegal," by Ugo Mattei and Laura Nader.

El problema de los desacuerdos jurídicos puede ser planteado de diferentes modos. En una de sus versiones, el problema viene dado porque el positivismo asume que los conceptos jurídicos son criteriológicos, por lo que el desacuerdo entre juristas carece de sentido al ser una disputa meramente verbal. Plunkett y Sundell han ofrecido una respuesta novedosa a esta crítica que sostiene que no hace falta compartir un concepto para discrepar con sentido. En este trabajo analizaré esa respuesta y ofreceré una serie (...) de críticas contra ella. (shrink)

Bentham belongs to a long tradition of reflection on law according to which the nature of law can best be understood in terms of its distinctive contribution to the solution of certain deep and pervasive problems of collective action or collective rationality. I propose to take a critical look at Bentham's unique and penetrating contribution to this tradition. For this purpose I will rely on the interpretation of the main lines of Bentham's jurisprudence and its philosophical motivations which I have (...) developed inBentham and the Common Law Tradition. will not attempt further to defend it here. I wish, rather, to reflect on themes and arguments which this interpretation of Bentham's jurisprudence has uncovered. (shrink)

The essay discusses the import of the separability thesis both for legal positivism and for contemporary legal practice. First, the place of the separability thesis in legal positivism will be explored, distinguishing between “standard positivism” and “post‐Hartian positivism.” Then I will consider various kinds of relations between law and morality that are worthy of jurisprudential interest, and explore, from a positivist point of view, what kind of relations between law and morality must be rejected, what kind of such relations should (...) be taken into account, and what kind of such relations are indeed of no import at all. The upshot of this analysis consists in highlighting the distinction between two different dimensions of legal validity (formal validity and material validity respectively), and in pointing out that the positivist separability thesis can apply to formal validity only. On the other hand, when the ascertainment of material validity is at stake, some form of moral reasoning may well be involved (here and now, it is necessarily involved). The essay concludes with some brief remarks on the persisting importance of the positivist jurisprudential project. (shrink)

In this article I discuss a number of issues raised by Professor Jules Coleman's recent article "Beyond the Separability Thesis." I suggest, to begin, that Coleman is correct that neither a narrow nor a broad formulation of the separability thesis takes us very far towards a robust distinction between legal positivism and legal non-positivism. I then offer a brief discussion of methodology in jurisprudence, suggesting that Coleman accepts, at least implicitly, what I call a "methodology of necessary features." Since there (...) is reason to think that law possesses some necessary features that are non-normative (or descriptive) and others that are moral in character, the promise of this pluralistic approach is that it will be capable of bridging the gap between so-called "descriptive" and "normative" theories of methodology in jurisprudence. Since the distinction between descriptive and normative methodological theories is sometimes taken to be one way, among others, of drawing a distinction between positivist and non-positivist theories of law, the pluralism of the "methodology of necessary features" gives us yet one more reason to think that the distinction between positivism and non-positivism is not a theoretically fundamental one. Finally, I discuss Coleman's "moral semantics claim," i.e., the idea that "legal content is best understood as moral directives about what is to be done and who is to decide what is to be done." Coleman acknowledges that the moral semantics claim, when taken together with the social facts thesis, raises a well-known problem: How can social facts create content-independent reasons for action? I suggest that we are most likely to find the answer to this question by focusing directly on whether or not law's claimed moral authority—meaning its claimed moral power—can be justified, rather than by focusing indirectly, as many theorists have done, on the existence or non-existence of a general obligation to obey the law. (shrink)

The separability thesis claims that the concept of law can be explicated independently of morality, the normativity thesis, that it can be explicated independently of fact. Continental normativism, prominent above all in the work of Hans Kelsen, may be characterized in terms of the coupling of these theses. Like Kelsen, H. L. A. Hart is a proponent of the separability thesis. And–a leitmotiv–both theorists reject reductive legal positivism. They do not, however, reject it for the same reasons. Kelsen's reason, in (...) a word, is the normativity thesis. Hart, however, grounds his theory in social fact. In place of the reductive thesis of the legal positivist tradition, and in sharp contrast to Kelsen's normativity thesis, Hart defends a non‐reductive version of what the author terms the facticity thesis. (shrink)

Traditionally legal theorists, whenever engaged in controversy, have agreed on one point: legal norms are par excellence rules which impose obligations. The author examines this assumption, which from another perspective (that of constitutional law, for instance) appears less obvious. In fact, constitutional rules are commoniy empowering norms, norms which do not create duties but powers. To this objection many theorists would reply that empowering rules are incomplete and that they are to be understood as parts of duty‐creating rules. A different (...) position from this traditional stance is that defended in Kelsen's later writings, according to which the fundamental type of norm is the empowering norm. The author discusses Kelsen's three theories on the “ideal form” or structure of the legal norm, with special attention to the third of these, the empowerment theory. (shrink)

Traditionally, acts of civil disobedience are understood as a mechanism by which citizens may express dissatisfaction with a law of their country. That expression will typically be morally motivated, non-violent and aimed at changing their government’s policy, practice or law. Building on existing work, in this paper we explore the limits of one well-received definition of civil disobedience by considering the challenging case of the actions of animal activists at sea. Drawing on original interviews with advocates associated with Sea Shepherd, (...) Greenpeace and Humane Society International we find that even if animal activists are morally motivated and civil, the transnational nature of their activity makes it difficult to assess their intention to bring about a change in law or public policy. This means that a civil disobedience defence may not be available to activists operating across international borders. This raises important questions about the usefulness of the civil disobedience concept within the context of a globalised world. We conclude that while the actions of some anti-whaling activists may not meet definitions of civil disobedience as conventionally understood, this says more about the narrow way in which that concept has been traditionally defined, than it does about the type of activity some anti-whaling activists have undertaken in the Southern Ocean. Finally, we argue that activists wishing to make a stand against whaling may have no choice but to act as global citizens because policy change within a single nation-state is unlikely to lead to the cessation of this inherently transnational activity. (shrink)

There are two possible ways to understand form and substance in legal reasoning. The first refers to the distinction between concepts and their applications, whereas the second concentrates on the difference between authoritative and non-authoritative reasons. These approaches refer to the formalistic and positivistic conceptions of the law, the latter being the author's point of departure. Nevertheless, they are both helpful means of analysis in legal interpretation. Interpretation is divided into formal and substantive justification. They have certain functions and they (...) are utilized in interaction. Authoritative reasons and formal reasoning constitute the necessary point of departure. However, substantive reasons are also necessary in order to justify choices included in interpretation. In addition to formal and substantive reasoning, the role of legal concepts is analysed. (shrink)

In this paper I explore the concept of tolerance and suggest a description of that concept that could be accepted regardless of the political theory one supports. Since a neutral perception of the limits of tolerance is impossible, this paper offers a guideline for a substantive-liberal or a perfectionist-liberal approach to it. The limits of tolerance are described through the principles of reciprocity and proportionality. The former explains why intolerance should not be tolerated whereas the latter prescribes how and to (...) what extent it should be tolerated. The cumulative effect of these principles is that apart from extremely rare occasions intolerance should not be tolerated at any time. (shrink)

I consider a puzzle that arises when the logical principle known as “deontic detachment” is applied to the law. It is not possible to accept the principle of deontic detachment in a legal setting while also accepting that the so-called “social facts thesis” applies to all legal propositions. According to the social facts thesis, the existence and content of law is determined by the attitudes or practices of legal officials. Abandoning deontic detachment is not an appropriate solution to the problem—the (...) puzzle can be recreated with other plausible closure principles. The problem can be solved by restricting the social facts thesis to legal rules, rather than applying it to all legal propositions. Properly construed the social facts thesis does not apply to facts about what legally ought to be the case. (shrink)

En este trabajo sostengo que el alterum non laedere es el principio rector de la responsabilidad civil, y sin él muchas de las características de nuestros sistemas de derecho de daños se tornan ininteligibles. Una vez que se aprecia el rol que cumple el alterum non laedere en el razonamiento jurídico puede comprenderse que la práctica de la responsabilidad civil está articulada sobre la evitación de daños y solo subsidiariamente sobre la reparación. Esta tesis, además, tiene importantes consecuencias dogmáticas.

Este artículo analiza las principales aportaciones de Ronald Dworkin a la filosofía del derecho y a la filosofía política mostrando que provienen de una visión más amplia que integra el derecho y la moral. La exposición se divide en dos partes. La primera aborda los argumentos de Dworkin para rechazar el positivismo jurídico y presenta su idea de derecho. La segunda se centra en la fundamentación ética del liberalismo y en el criterio distributivo que propone Dworkin.

Faced with a choice between escaping without consequences and submitting to a democratic decision, Socrates chooses the latter. So immense is Socrates’ duty to obey law, we are led to believe, that even the threat of death is insufficient to abrogate it. Crito proposes several arguments purporting to ground Socrates’ strong duty to obey, with the appeal to the Athenian system’s democratic credentials carrying most of the normative weight. A careful reading of the dialogue, in conjunction with the ‘Apology’, reveals, (...) however, a more complex picture. If Crito sets the conditions that render a regime legitimate, and therefore warranting of obedience, the Apology reveals a legal system’s shortcomings that justify disobedience. This article substantiates this position by delineating circumstances that can justify resistance. Contemporary forms of political resistance can also rely on similar conditions. Plato’s texts anticipate the current democratic turn of civil disobedience. (shrink)

Acts of civil disobedience are undertaken in defense of a variety of causes ranging from banning GMO crops and prohibiting abortion to fighting inequality and saving the environment. Recently, Brownlee has argued that the merit of a cause is not relevant to the establishment of a moral right to civil disobedience. Instead, it is the fact that a dissenter believes his cause for protest to be morally right that is salient. We may term her and similar such theories belief-relative theories (...) of civil disobedience. In this paper, I first argue that Brownlee’s important argument from conscientious conviction fails in its aim to establish a belief-relative moral right to civil disobedience. I then provide a more general argument that no purely belief-relative theory of civil disobedience grounded in a basic moral value will be tenable. Any moral warrant of civil disobedience that is derived from a value must be limited by the value from which it is derived, as well as by other similarly weighty values. If the moral warrant of civil disobedience is derived from the value of autonomy, then the warrant does not extend to acts of civil disobedience that violate the autonomy of others, or other similarly weighty values. Furthermore, granting a right to disobey in promotion of a grossly unjust view is problematic because civil disobedience ought to serve the role of promoting justice. (shrink)

This article summarizes the theory of federalism as non-domination Iris Marion Young began to develop in her final years, a theory of self-government that tried to recognize interconnectedness. Levy also poses an objection to that theory: non-domination cannot do the work Young needed of it, because it is a theory about the merits of decisions not about jurisdiction over them. The article concludes with an attempt to give Young the last word.

This article summarizes the theory of federalism as non-domination Iris Marion Young began to develop in her final years, a theory of self-government that tried to recognize interconnectedness. Levy also poses an objection to that theory: non-domination cannot do the work Young needed of it, because it is a theory about the merits of decisions not about jurisdiction over them. The article concludes with an attempt to give Young the last word.

In this paper, the author suggest that the historical and institutional conditions of existence of the concepts which animate legal argumentation – like the historical and institutional conditions of existence of certain forms of law – are of interest not only in their own right, but also because they raise methodological issues for jurisprudence. These include questions about the relationship between concepts and the social phenomena which they purport to categorise; about the relationship between philosophical and other forms of legal (...) theory; and about how a jurisprudence largely dominated by philosophical methods may be brought into productive dialogue with other forms of theoretical analysis. Only by broadening both its horizons and its methods, the author argues, will jurisprudence be capable of illuminating not only doctrinal analysis within particular jurisdictions at particular times, but also comparative and historical scholarship. (shrink)

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. (shrink)