Laws govern everything from how we drive to how we conduct business, but what happens when a law exists that no one knows about? The fundamental principle of legal systems worldwide is that laws must be made public so that citizens can comply with them. The idea of being bound by an unknown law seems absurd, yet history has shown that governments have passed laws in secrecy or without proper publication, raising serious questions about fairness, legality, and accountability.
In democratic societies, laws are typically published in government records, official gazettes, and legal bulletins. This ensures that citizens, businesses, and legal professionals are aware of new regulations. However, there have been cases where laws were either not made public, not widely circulated, or intentionally classified, leading to legal confusion and controversy.
The Legal Principle of “Ignorance of the Law Is No Excuse”
One of the oldest legal principles is “ignorance of the law is no excuse” (ignorantia juris non excusat). This means that individuals cannot defend themselves by claiming they didn’t know a law existed—they are expected to follow it regardless. This principle exists to prevent people from selectively obeying laws based on their knowledge.
However, this principle assumes that laws are publicly accessible. If a law is never published, does the same rule still apply? Legal systems have struggled with this question, especially when secret or unpublished laws have been used to prosecute individuals.
Historical Cases of Unpublished or Secret Laws
Throughout history, governments have enacted laws without properly informing the public. Some of these laws were kept secret intentionally, while others were lost in bureaucratic confusion.
- Soviet-Era Secret Laws – The Soviet Union was notorious for creating laws that were never publicly disclosed, yet people were still expected to follow them. Some citizens were arrested under “state security laws” that were classified, meaning they had no way of knowing they had broken a law.
- Post-9/11 U.S. National Security Directives – In the aftermath of 9/11, secret government policies and executive orders were enacted in the U.S., allowing for increased surveillance, secret detentions, and legal interpretations that were not disclosed to the public.
- Hidden Executive Orders and National Defense Laws – Some governments have emergency powers that allow them to issue laws or directives without public disclosure. These laws only become known when enforced.
In these cases, people were legally bound by rules they had no way of knowing, which challenges the basic concept of fairness in law.
Secret Laws and National Security
Governments often justify secret laws and classified regulations by citing national security concerns. Intelligence agencies, military operations, and anti-terrorism measures frequently involve legal frameworks that are not publicly disclosed.
- Secret Surveillance Laws – Many countries have secret court orders that allow for mass surveillance. Citizens are unaware that their emails, phone calls, and online activities are being monitored under legal rulings that have never been published.
- No-Fly Lists and Secret Travel Bans – Some travelers find themselves unable to board flights due to being on a “no-fly list”—a legal mechanism often based on undisclosed rules and undisclosed reasons. Individuals have been banned from flying without being told why or what law they allegedly violated.
- Covert War Powers – Military interventions, drone strikes, and targeted assassinations have been authorized under classified executive orders that bypass normal legal oversight. These orders often remain secret for years.
While governments argue that secrecy is necessary to prevent threats, these laws and policies create a legal black hole where citizens and even lawmakers are unaware of the rules being enforced.
The Problem with Laws That Aren’t Clearly Defined
Even when laws are not fully secret, some are written so vaguely that their actual meaning is unclear. This is another form of legal opacity that allows governments to apply laws arbitrarily.
- Vague National Security Laws – Some laws are worded so broadly that they can be interpreted in multiple ways, allowing authorities to decide when and how they apply.
- Undefined Speech Restrictions – Many authoritarian governments have laws against “offending the state” or “spreading misinformation”, but these offenses are not clearly defined, meaning citizens never truly know when they might be violating the law.
- Emergency Powers That Aren’t Clearly Explained – Some governments declare states of emergency that grant them expanded legal authority without explaining what specific laws apply. This creates legal uncertainty where enforcement is inconsistent and unpredictable.
A law that is so vague that it cannot be understood functions similarly to an unpublished law, as people cannot be expected to follow something they don’t comprehend.
Unpublished Corporate and Tech Laws
It’s not just governments that enforce hidden rules—private corporations and tech companies also create secretive legal policies that affect millions of people.
- Algorithmic “Laws” of Social Media – Platforms like Facebook, Twitter, and YouTube enforce community guidelines that are often not fully disclosed. Users can be banned or censored without ever knowing what specific rule they violated.
- Hidden Terms of Service Changes – Many digital services change their terms of use without notifying users. In some cases, this leads to people losing access to their accounts, funds, or data without warning.
- Financial Blacklisting – Banks and payment processors sometimes freeze or close accounts based on unpublished policies. Customers are given vague explanations like “violation of terms” but are never told what rule they broke.
These corporate policies create a shadow legal system where rules are enforced without transparency—similar to how governments use secret laws to control behavior.
The Danger of Secret Laws in Authoritarian States
In authoritarian regimes, secret laws are often used as a weapon against political dissent. Citizens can be arrested, detained, or disappeared under laws that are never made public.
- Retroactive Criminalization – Some regimes arrest activists and journalists for actions that were not illegal at the time, only for a new law to be retroactively applied.
- Secret Bans on Books, Movies, and Speech – Governments often prohibit books, movies, and websites based on undisclosed censorship laws, meaning people never know what content is illegal until it’s already banned.
- Undisclosed Criminal Charges – Political dissidents are sometimes charged under “national security laws” that are so classified that even the accused does not know the charges against them.
These examples show how secret laws are not just a legal technicality—they are a tool for oppression.
How Courts Have Ruled on the Legality of Secret Laws
In some cases, courts have ruled that laws must be published to be valid. However, other cases have upheld secret laws under certain conditions.
- U.S. Supreme Court Cases on Secret Surveillance – In some rulings, courts have argued that national security justifies keeping legal rulings classified. This has led to the expansion of secret courts like the Foreign Intelligence Surveillance Court (FISC).
- European Courts and the Right to Know the Law – The European Court of Human Rights has ruled that laws must be accessible and understandable for them to be valid. Some countries have been forced to revise secretive legal practices as a result.
- Legal Challenges to Secret Policies – Whistleblowers and journalists have exposed classified laws and programs, leading to lawsuits challenging their legality. However, governments often invoke state secrecy privileges to avoid disclosing details in court.
Even when courts acknowledge that laws must be made public, national security and executive power often override transparency, allowing secret legal systems to persist.
Laws that are never published, vague, or selectively enforced create a system where power is unchecked, and citizens are subject to rules they can never truly understand or challenge.
