Liberty, secrecy, and the right of assessment

Abstract

In this article we argue that governmental practices of secrecy threaten the epistemic dimension of rights. We defend the view that possessing a right entitles its holder to the largest extent of available knowledge of the cir- cumstances that may impede the enjoyment of that right. We call this the ‘epis- temic entitlement’ of rights. Such an entitlement holds in ideal conditions once full transparency is assumed. However, under non-ideal conditions secrecy is a fact that should be accounted for. We argue that, under such conditions, interference due to secrecy is legitimate when the circumstances under which it occurs are open to assessment by the right-holder. We call this the ‘right of assessment’. It ensures the ex-post fulfillment of the epistemic entitlement under non-ideal con- ditions of partial compliance where full transparency is unattainable due to the fact of secrecy. The right of assessment shields against arbitrary interference by imposing an obligation on the government to provide justification for any inter- ference in the sphere of fundamental rights.