On the Very Idea of Secret Laws:  Transparency and Publicity in Deliberative Democracy

In Philosophical Investigations, the
philosopher Ludwig Wittgentein famously suggested that language is a public, shared phenomenon, and accordingly, that there is no such thing as a “private language.”  A similar doubt might be raised about the possibility of a “private
law”:  Is a law that is not publicly shared a conceptual contradiction, in the way a private language might be?  What are the publicity conditions on the concept of law? How much transparency does the notion of deliberative democracy
itself require?

The conference will consider the topic of private laws in light of the recent controversy over secrecy, surveillance, and national security.  Of particular recent interest are the debates surrounding the conduct of Edward Snowden and the
policies of the National Security Agency (NSA).  We will also consider the secret orders of the Foreign Intelligence Surveillance Court, as well as the secret memos authored by lawyers in the Office of Legal Counsel during the Bush and Obama
Administrations, and will compare different methods of maintaining secrecy and their impact on individual privacy rights and on rule of law values more generally.

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