1 Secret Law, Normativity, and Rational Preference Revision Quinn Harrington 8/11/2013 PHIL 4120 In his Logically Private

Laws, Duncan MacIntosh offers a defense of the possibility that secret laws, in a democratic context, have the potential to be both legitimate and effective. This defense holds that, in principle, secret laws are not only capable of retaining existence, legitimacy, goodness and efficacy, but that the retention of these qualities is dependant, in certain cases, on the laws remaining secret (MacIntosh 1)1. For MacIntosh, secret laws potentially have a unique utility that public laws cannot achieve. Further, MacIntosh blurs the distinction between the knowability of private law in contrast to public law; in this view, public law is not explicitly known by the public, but rather is understood through the social effects and behavioural norms these laws affect in their implementation. MacIntoshs defense of secret laws stands in sharp contrast to the condemnation of them offered by Christopher Kuntz in his The Repugnance of Secret Law. Importantly, Kuntz posits that an integral part of laws identity and purpose is to provide an orientation for political actors in a normative space (Kuntz 1)2. Through the course of this essay, I intend to defend MacIntoshs position on the legitimacy of private laws, in part, through an appeal to Kuntz notion of law as an orienting social force. Having adequately demonstrated the specific dependency some political ends have on the secrecy of the laws intended to achieve them, MacIntoshs position, in its appeal to the Duncan MacIntosh, Logically Private Laws, Prepared for On the Very Idea of Secret Laws, University of Pennsylvania Law School, 2013. 2Christopher Kutz, The Repugnance of Secret Law, Prepared for On the Very Idea of Secret Laws, University of Pennsylvania Law School, 2013.
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2 inexplicit public preference for the outcomes afforded by laws hidden from them, supports Kuntz notion of law as an orienting force. When we introduce MacIntoshs notion of the rationality of preference revision, we can also see how, in order to maintain the political framework that permits the formation of public and private law (the most direct expression of public preference in government), it can be rational to temporarily influence the publics preferences through the introduction of secret law. In specific cases, the implementation and toleration of secret law is rationally optimal even when secret laws serves to temporarily undermine apparently democratic public preferences.

Legitimacy and Responsibility I will begin this discussion with a survey of both authors positions on the legitimacy of the authority of democratic lawmakers. For MacIntosh, it is the election process that affords legitimacy to these authorities (MacIntosh 5) members of society are elected according to some predetermined procedure, and tasked with upholding the public will (MacIntosh 6). This idea is present also in Kutz paper, albeit in a less direct way. Kutz, through a series of historical examples, attempts to demonstrate that it is the public aspect of the right to rule that legitimizes authority be it through a hereditary right to rule, the Hobbesian notion of a sovereign defender, or contemporary liberal democratic rule. Kutz extends this argument to require not only the publicity of the grounds upon which a ruler holds their authority, but also the publicity of the content of the actions bourn out of this authority, suggesting that even [an] absolutist sovereign must inform the

3 public about the content and grounds for the law he promulgates (Kutz 10). I will approach this question with a view of lawmakers legitimacy resulting from the synthesis of these two views specifically, that a publicly known and consented to3 process of authority granting is essential to the legitimacy of rulers, particularly in the democratic context we examine here. Having established an idea of how democratic authorities obtain legitimacy, we can now turn to the more interesting question of how they retain it. Kutz clearly argues that the retention of authority is dependent on the legitimacy of the actions of the legally empowered authorities can act illegitimately even if [they have] passed an electoral test in a host of ways, ranging from violation of basic rights, to corruption, to acting without due process (Kutz 28). For Kutz, it is the establishment of laws determining what qualify as legitimate actions that lend legitimacy to any action on the behalf of the public by a legal authority. Legally legitimate actions are those that are lawful, in this view and as a result, the law is always, in principle, open to scrutiny by the public. MacIntosh, on the other hand, seems to be more interested in an appeal to the responsibilities legal authorities are entrusted with as a test for the legitimacy of their actions. Recall that MacIntosh places the notion of democratic authorities duty to uphold the public will in a place of high priority. Although his paper does not go into a deep explanation of this position, I see such an analysis necessary not only to rightfully support his position over Kutz, but also to develop a notion of supporting secret law as rational for democratic subjects. MacIntosh rightfully argues that it doesnt follow that the best The problematic nature of the idea of true consent within a democratic context will be addressed in time.
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4 or only way to produce a law [reflecting the public good] is by public consultation in the deliberate production of law (MacIntosh 6). His argument for the specific utility of secret law namely, that sometimes, secret laws uniquely prevent the only people interested in violating them (and by extension, harming the public good) from being able to do so supports this position. Additionally, determining the public will, as he points out, can be achieved by indirect means general public polling (MacIntosh 6), or the observation and extrapolation of public behaviour and preferences, for example. What is most important in MacIntoshs claim of the inherent duty of lawmakers to uphold the public will, for this argument, is the notion of public preference. We must adopt two important assumptions about the nature of the public will before we can go further first, that the public will is independent (but not necessarily in disagreement), as Rousseau will argue in his On the Social Contract, from the wills of the individuals constituting the public, and second, that the preferences of the public are orderable by priority in the same way that that the preferences of individuals are. I will also suggest that the public will is synonymous with the publics preferences more specifically, the public will is the set of public preferences, with the ordering of independent preferences loosely expressed therein. It seems that, in this view, we can suggest the existence of one particular preference that is primary to the others the preference for a stable and legitimate democratic system. Evidence for the primacy of this preference is not hard to draw up in a given society where the democratic system is the norm, and the population

5 willingly relies on it4 as the avenue for the expression of political opinion, as well as the means of enforcing the dominant political opinion, other particular political preferences are dependent on the obtaining of this preference. In other terms, we cannot have a preference for, say, the ways in which crimes are defined and punished by a social authority without a preference as to identity of this authority. It is important to note that both authors appeal to the preferences of the public as an important component of legal legitimacy within the democratic context5. The differences in their views lie in how relevant the completeness of the publics knowledge of the law relates to the reflection of these preferences in the law as prescribed by the empowered.

The Utility of Secret Laws As the focus of this discussion is secret law, the concept of the completeness of public legal knowledge will be established primarily from a review of the nature of secret law and an attempt to draw distinctions, if possible, between secret law and public law. MacIntosh outlines two conditions in which he deems it reasonable to consider enacting secret laws: situations in which some set of arrangements whose existence would be best for everyone in a society (termed It would certainly be nave to claim that all members of a democratic society individually depend on, or even consent to the democratic system but we are here talking about the specifically public will, which, by virtue of that fact that it does not overwhelmingly call for the disruption of democratic lawmaking and law enforcement (read, revolution), does exhibit the type of consent and dependency we are discussing here. 5 Although Kutz appeals to historical non-democratic conceptions of law and legal legitimacy, I am concerned primarily with MacIntoshs claim, and will restrict the scope of my arguments to that which he adheres to.
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6 conditions of universal justice), and situations in which competitive factions, each interested the necessary defeat of the opposing side for the obtaining of their sides ends, enter into what he terms a state of war (MacIntosh 3-4). In the case of the former, MacIntosh suggests the possibility of conditions in which members of the general population of a given society might, due to a weakness of will (MacIntosh 3), might not support the implementation of laws necessary to achieve the aforementioned preferable set of arrangements. Additionally, he imagines a state of affairs where the public might desire the set of arrangements in question, but would be prevented from obtaining them by non-cooperative actors who could only prevent this obtaining if they knew of the measures put in place to bring it about, or measures intended to prevent the disruption of another public project meant to bring it about. The unique utility of secret laws, in these cases, is clear as MacIntosh says, [t]hese laws arelogically private: they cannot at one and the same time exist, have the foregoing virtues, and be public (MacIntosh 2). Even if these private laws have a unique utility, we do not yet have a conclusive argument for their legitimacy, nor the rationality of implementing and tolerating them. Kutz, in fact, attempts to make a case for the disutility of secret law, insofar as secret laws undermine what he sees as public laws ability to provid[e] an orientation for political actors in normative space (Kutz 2). He suggests that the normative aspect of law is bound up with the personal identity of the subjects of a given political authority. For him, [k]nowing who we are means knowing our relation to the norms that purport to apply to us (Kurtz 30). If this statement alone is not sufficient to establish a strong case for a preference-influencing aspect of law,

7 the examples he cites of ways in which subjects align their preferences to normative prescriptions encoded in law make the case even clearer he sees law, in its normative role, as influencing such disparate concepts as the identification of political enemies to aesthetic preferences (Kutz 30). With this in mind, we are forced to consider two ideas: first, whether or not we can refute Kutz claim that secret law disrupts the normative force of law, and second, whether or not the preservation of the normative aspect of law is cause for the implementation of secret law. It seems that if we can carry out both projects, we have an argument for secret law not based only on MacIntoshs arguments for increased utility and minimal risk, but also from Kutz own notion of laws normative social role.

The Normative Aspect of Law and Limits to Public Knowledge In the interest of satisfying the first goal, I will turn again to MacIntoshs article, this time examining his pragmatic understanding of law-following, which holds that knowing the rules/laws is just a matter of being disposed to carry on from the examples in ways to which the general community will not object (MacIntosh 10). For MacIntosh, the individuals that constitute the public do not know the laws, even if they are public. He tasks the reader (and himself) with reciting, verbatim, any law, supposing that this is a futile request. Even if we do know a handful of laws, in this view, it is highly improbable that any one individual knows all of the laws, and conducts her behaviour accordingly. True to Wittgensteins notion of rule following (MacIntosh 10), our supposedly legal behaviour is behaviour motivated by exposure to what the community deems

8 acceptable or, in Kutz terms, our behaviour is determined largely by the normative social forces we are exposed to. As established above, I see no reason to assume that legal behaviour (specifically, action driven from an interest in doing what is legal) is not influenced by the same normative forces as any other social behaviour. If we accept MacIntoshs suggestion that our knowledge of public law is, in practice, severely limited, and Kutz claim that the laws of a community are a behaviour directing normative force, we are forced to accept that secret laws, in practice, differ little from public laws. The normative effect they have is wholly dependent on the ways in which they influence behaviour through their implementation and agreement with established legal norms not a result of the publics knowledge of their existence as explicit laws. Having stricken down Kutz claim that secret laws have a normative effect (or lack thereof) different from that of supposedly public laws, we can turn to the second project outlined above: establishing a case for the rationality of implementing (and tolerating the existence of) secret laws in the interest of preserving the normative force of law. I again appeal to the notion of preference ordering, as well as MacIntoshs arguments for rational preference revision6 to make sense of this claim. Recall the earlier argument for the primacy of a public preference for the obtaining and protection of a stable and efficient democracy. Let us suppose a case in which a individual or group of individuals intend to act in a manner which would prevent the obtaining of this preference say, a movement, comprised of citizens of the a given democratic nation, seeks to stage a coup with See Preference-Revision and the Paradoxes of Instrumental Rationality D. MacIntosh, 1992.
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9 the goal of replacing the nations government with an absolute dictator. The government, through an anonymous tip, learns that this movement is in possession of some weapon against which the security forces of the nation could not defend. In order to stop this coup from occurring, the government must take drastic, even unconstitutional actions as MacIntosh suggests, this action might take the form of secret drone strikes, effectively the execution of a citizen without trial (MacIntosh 4). In this case we could simply see the government, in its role as an agent tasked with achieving the ends of the public as determined by their preferences, as making a simple choice based on preference ranking the public preference for the sustaining of democracy and the stability of the democratic state is primary to a preference for the fair treatment of criminals within that democracy. I suggest, however, that there may be cases in which the temporary suspension of components of democracy might be necessary to prevent its absolute destruction in effect, we may be confronted with paradoxical choice situations in which the implementation of secret laws are the optimal solution. The legitimization of this claim turns us back to the earlier discussion of the normative force of law. As we have established that secret laws are capable of influencing behaviour, I propose that we consider the introduction of laws (secret laws included) as a means of preference revision the public consents to the authority of lawmakers, and lawmakers, realizing that the public preference for absolutely nonhypocritical democracy might, in specific circumstances, be disastrous to the

10 sustained existence of such a state of affairs, attempt to incite a public preference7 revision through the establishment of some secret law. Consider a case where the anti-democratic movement mentioned above possessed not a physical weapon, but rather a means of influencing the opinions of the population in such a way that they a) had no means of resisting this influence and b) the new preferences of the population might appear to support democracy, but would, unbeknownst to them, have the effect of destroying the democratic paradigm they genuinely desired. The movement in question is, hypothetically, imposing their influence by some means (perhaps over the internet), and as in the cases provided by MacIntosh, would quickly find new means to carry out their project if they were aware of contrary governmental actions. The general population, unaware of the movement, intend to vote in the next general election according to the secretly anti-democratic preferences imposed on them by the movement. The lawmakers of the nation have already been tasked with ensuring the publics preferences are obtained in all possible circumstances, according to the publics ranking of their preferences it seems that, in this situation, there is a clear paradox the publics desire to elect their nations legal authorities at this time will have the effect of destroying that electoral process permanently. Appealing to MacIntoshs suggestion that it is rational to revise ones preferences in such a paradoxical choice situation, I propose that it might be rational for the legal It is extremely important that we view the public will as action in the form of a statement perceivable by the authorities of the day it is not, as Rousseau establishes, the sum of individual internal wills, but a statement from the public, arrived at collectively but expressed through the discrete actions of individuals even if they are banded together in political groups.
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11 authorities of the hypothetical nation to attempt to revise the preferences of the public, reducing the disutility of their actions. If the citizens of this nation, by acting on their preference for democracy and voting, accidentally undermine that preference, it would be reasonable for the legal authorities tasked with developing laws which, as we have established, have a significant effect on the development of these preferences through the normative effective of law to introduce secret legislation that temporarily undermines individuals ability to act on this preference through a subversive act of public preference revision. As the provided example is simply meant to illustrate the potential for the seemingly innocent preference for democracy to be self defeating in specific cases, I will not go so far as to suggest a specific secret law that could bring about this type of preference revision. What I do want to highlight, though, is the way in which, in the democratic context, notions of individual political agency commonly associated with democracy conflict with the public preferences necessary to sustain this political paradigm.

Conclusion Democracy is a political system in which the rightly elected legal authorities of a society are tasked with seeking the obtaining of the publics preferences, with respect to the manner in which the public deems them to be prioritized. The construction of political preferences, within this context, is dependent on a primary desire for there to exist a democratic framework in which these preferences can be articulated and satisfied. MacIntoshs pragmatic interpretation of the publics knowledge of law, when combined with Kutz notion of the normative force law has

12 on the public and the behaviour of individuals allows us to see the development and obtaining of public preferences in a democratic context as a process with legitimate risk for the development of paradoxical choice situations. As MacIntosh suggests, the public does not, generally speaking, know the law in any way other than its influence on social behaviour; we are also shown by Kutz that this influence is an integral component of law. Secret law, in light of MacIntoshs argument, does not hold a problematic position of knowability even if a private law is not explicitly known by the public, the general publics - or the laws target demographics interactions with its effects are sufficient to say that the law is known in the same way as public laws. When public preferences take the form of paradoxical choice situations, and particularly when these paradoxes threaten to undermine the process by which authority is established in democracy, it is rational not only for legal authorities to implement secret law for the benefit of its unique utility, but as a means of rational preference revision for the public over whom they hold authority provided the intention of this preference revision is the prevention of long-term threats to the primary preference of democracy supporting political agents the sustained existence of a democratic political framework in which to situate themselves.