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Secret Tribunals and the Limits of Sovereignty

This chapter will address two questions: (1) Can secret laws be valid?, and (2) Are secret courts justifiable? Answering the first question requires examining how much is needed to satisfy the promulgation requirement (the idea that laws have to be promulgated in order to be legitimate). Clearly satisfying the promulgation requirement does not require that every citizen has a copy of all of the laws to which they are subject. And it does not require that each citizen know the content of each law to which they are subject. Most of the literature on this topic concerns ex post facto laws. Secret laws might raise somewhat different issues, but they are also difficult to show to be valid. This chapter will argue that some secret laws can be valid. Answering the second question requires examining two issues: How important is the prohibition on trials where the defendant is in absentia, and how significant are transparency and publicity for the justification of tribunals? This chapter will argue that this question is considerably harder than the first to answer in the affirmative.