Reality and Illusion

It is difficult to argue with the ideal of transparency in law. Transparency in the operation and effects of legal rules is essential if we are to evaluate the legal system under which we live. In his book, Hanoch Dagan sets forth a particularly compelling case for legal realism and its transparent approach to law. As compelling as this case is, however, I shall argue that it is not complete. Paradoxically, there are situations in which transparency in law— or the simple acceptance of realist insights—is neither practical nor wise. Indeed, I shall argue, there are situations in which subterfuge and illusion are vital, and are in fact what the public interest (if not the Constitution, or other iconic public documents) demands