Logically Private Laws: Legislative Secrecy in "The War on Terror"

In Claire Finkelstein & Michael Skerker (eds.), Sovereignty and the New Executive Authority. New York, USA: Oxford University Press. pp. 225-251 (2019)
Download Edit this record How to cite View on PhilPapers
Abstract
Wittgenstein taught us that there could not be a logically private language— a language on the proper speaking of which it was logically impossible for there to be more than one expert. For then there would be no difference between this person thinking she was using the language correctly and her actually using it correctly. The distinction requires the logical possibility of someone other than her being expert enough to criticize or corroborate her usage, someone able to constitute or hold her to a standard of proper use. I shall explore the possibility of something opposite- sounding about laws, namely, that there could in principle be laws whose existence, legitimacy, goodness, and efficacy depend upon their being private, in this sense: their existence is kept secret from those who legitimately benefit from the laws and yet who would misguidedly destroy them were they to come to know of them; and it is kept secret from those who would illegitimately benefit from being able to circumvent the laws, and who could circumvent them if they knew of them. The secrecy of the laws increases their efficacy against bad behavior, and since were the public to come to know of these laws the public would lose its nerve and demand that the laws be rescinded, it prevents the public from destroying laws that are in fact in the public interest. These laws are therefore in a way logically private: they cannot at the same time exist, have the foregoing virtues, and be public. After proposing conditions under which such laws ought to be enacted, I moot logical objections to the very idea that there could be such laws, practical objections to their workability, and moral objections to their permissibility. I conclude by suggesting that, while we normally think of secret laws as creatures of the executive branch, things functionally equivalent to secret laws could also be created by other branches of government and societal institutions, and that all of this would be compatible with the form of sovereignty that is democratically grounded in the will and interests of the people.
PhilPapers/Archive ID
MACLPL
Upload history
First archival date: 2018-10-21
Latest version: 2 (2018-10-21)
View other versions
Added to PP index
2018-10-21

Total views
61 ( #43,983 of 54,461 )

Recent downloads (6 months)
12 ( #42,656 of 54,461 )

How can I increase my downloads?

Downloads since first upload
This graph includes both downloads from PhilArchive and clicks on external links on PhilPapers.