Chapter 4 - Publicity and the Rule of Law

Summary

Nearly all legal theorists agree that publicity is a key component of the rule of law, but they disagree over what this means. Some mean that persons must know the body of law they are subject to; others say that persons must simply be able to access what the law requires of them, even if they remain completely ignorant of it. Both accounts of legal publicity are deeply flawed, I argue. After establishing this, I develop a new way of understanding what legal publicity means. Legal publicity is not about persons knowing the law or having access to it. Rather, it’s about when persons are held accountable for violating the law. Publicity demands that persons be held accountable for violating a law only if they were aware this law regulated their conduct. This novel account of legal publicity revolutionizes how we should think about the rule of law and also how we should design our legal institutions.