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New Trajectories in Law

Rachel Adams

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New Trajectories in Law

Rachel Adams

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About This Book

This book critiques the contemporary recourse to transparency in law and policy.

This is, ostensibly, the information age. At the heart of the societal shift toward digitalisation is the call for transparency and the liberalisation of information and data. Yet, with the recent rise of concerns such as 'fake news', post-truth and misinformation, where the policy responses to all these phenomena has been a petition for even greater transparency, it becomes imperative to critically reflect on what this dominant idea means, whom it serves, and what the effects are of its power. In response, this book provides the first sustained critique of the concept of transparency in law and policy. It offers a concise overview of transparency in law and policy around the world, and critiques how this concept works discursively to delimit other forms of governance, other ways of knowing and other realities. It draws on the work of Michel Foucault on discourse, archaeology and genealogy, together with later Foucaultian scholars, including Gayatri Chakravorty Spivak and Judith Butler, as a theoretical framework for challenging and thinking anew the history and understanding of what has become one of the most popular buzzwords of 21st century law and governance.

At the intersection of law and governance, this book will be of considerable interest to those working in these fields; but also to those engaged in other interdisciplinary areas, including society and technology, the digital humanities, technology laws and policy, global law and policy, as well as the surveillance society.

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Part I
The discourse of transparency

1 A brief history of transparency’s entry into discourse


The word “transparency” first emerged in the 18th Century in relation to print and photography. It denoted the medium through which light refraction could take place in the production of an image. Those who spoke of it would have been small in number, engaged in what would then have been a highly technical endeavour. Today, transparency has become popularised and entrenched in modern discourse, spoken in almost every corner of the world, and in a broad range of settings. How did it get here? How did the idea of “transparency” come to represent an institutional value and a public good to trump all others? And how and why was the meaning of transparency displaced from its literal application as a see-through medium to a metaphor for political openness?
This chapter addresses these questions by tracing the evolution and diachronic rise of the concept of transparency, from the camera lens and the use of transparency in the designs for the Palace of the League of Nations, through to its association with human rights. This history is continued in Chapters 2 and 3 which examine in further detail the more recent formulations of transparency in terms of access to information laws (Chapter 2) and open government (Chapter 3). In doing so, I draw on the critical analytics developed by Foucault as tools for which to conduct alternative histories of an idea, which I set out in the first section below. I critique here the given history of the concept as an Enlightenment value, evident in scholarship on the history of transparency as well as implicitly embedded in the philosophical assumptions that underlie it. Yet, transparency’s alignment to notions of freedom and rights has allowed the concept to become naturalised, that is, accepted as fact; it is part of the way things are, and therefore unquestionable. Recall Laurence Lessig’s rhetorical question: ‘who can be against transparency?’ (2009: 1).
Moreover, transparency’s suggestion of being a neutral and universal idea is embedded within its present-day metaphorical construction. Having traced its history, this chapter turns to engage with the problematics of its metaphorical use today. I explore how, as a metaphor, the claims made by the transparency narrative are fundamentally rhetorical, bearing significance and meaning only within the logic of its own discourse, although with profoundly material effects. Moreover, through its metaphorical construction, transparency makes a critical claim to truth and to not altering the information it discloses. I explore how these claims work to heighten the position of transparency as a neutral value.


Foucault’s concept of archaeology, set out in detail in one of his earlier books Archaeology of Knowledge, can be understood as an analytical tool for uncovering alternative, interrupted, histories of systems of thought and knowledge – or, more generally, ideas (1972). The archaeological “method” suggests an unstructuring of accepted knowledge and the categories in which to describe its historical experience. Archaeology of Knowledge was not Foucault’s most well-received work, criticised for establishing in structural and positivist terms an approach which sought to vehemently reject such things. Nevertheless, the book dedicates significant space to questioning the propositions of traditional history, incessantly discarding the teleological efforts of traditional historians and rejecting historical narratives which seek to create linear continuities between past and present. Foucault critiques the search for affirmations of transcendental human consciousness (also spoken of as “urdoxa”), echoing a critique put forward by Friedrich Nietzsche on self-comforting narratives, that is, the idea that we create narratives about the world to reinforce our central place and purpose within it – an idea that becomes important for thinking about the strategic value of the discourse of transparency.
Instead, Foucault (like Georges Canguilhem and Gaston Bachelard before him) calls for the displacement of the subject as the object of history, proffering archaeology as an alternative mode of history that holds discourse (rather than man) as its object of study. Foucault substantiates his framework by defining and discussing a series of interrelated concepts that constitute the archaeological method of discursive investigation, including ‘commentary’ (as noted in the Introduction to this book), ‘statements’ – defined, in its simplest form, as a singular unit of discourse, such as “transparency leads to accountability”, and the ‘archive’, that constitutes the historical collective of statements and commentaries within a discourse and which becomes the focus of critique for the archaeologist. Thus, the archaeological method constitutes the uncovering of historical statements and an analysis of the rules and systems of thought which govern their coming into discourse, set alongside a critique of its given history. This “method” informs the approach to the analysis of the history of transparency set out below.

Transparency, the enlightenment and human rights

The given history of transparency – as set out by transparency scholars such as Meijer (2013) and Björkstrand and Mustonen (2006) – is that the concept arose from the Enlightenment ideals of the 18th century, and the way of ordering knowledge – what Foucault would call the episteme (a term he used to describe the structure of knowledge within a given historical period (1989)) – it ushered in. Stefanos Geroulanos, in his history of the concept of transparency in French thought, notes that Jean-Jacques Rousseau, one of the foremost thinkers of the Enlightenment, notably promoted what Geroulanos calls ‘the modern idealization of transparency’ (2017: 8) through his moralised commitment to the concept. But, in addition, one of the most significant consequences of the Enlightenment was the establishment of human rights as an ideal of human society.
In short, the Enlightenment can be understood as the Western period of discovery of pre-formed transcendental truths – a priori knowledge – which improved the life of humankind as a species-Being, occurring during the 18th Century in Western Europe. The Enlightenment rested upon the Kantian assertion that there existed regulative and pre-formed transcendental human ideas, revealed through the appropriation of reason, and providing the conditions for the possibility of all human knowledge, morality and freedom. More broadly, the Enlightenment is considered to have prompted our contemporary teleological modernity, and as noted above, notions of human rights and civil liberties. The first human rights declaration – Declaration of the Rights of Man and of the Citizen – arose in France in 1789 following the French Revolution. This formative human rights agreement incorporated two key provisions which related to ideas around transparency. These included the first human rights provision for a right to freedom of expression which stated that ‘the free communication of ideas and opinions is one of the most precious of the rights of man’ (Article 11), as well as Article 15 which read that ‘every community has a right to demand of all its agents an account of their conduct’.
The right to freedom of expression, and the corollary responsibility upon the press, as the fourth estate, to realise this right, forms a central part of the given history of the concept of transparency as denoting the right of access to information (see also Fenster, 2017). Article 11 of the Declaration of the Rights of Man and of the Citizen developed into Article 19 of first the Universal Declaration of Human Rights (UDHR) in 1948 and then Article 19 of the International Covenant on Civil and Political Rights in 1966. However, it was not until 2006 that the right of access to information was expressly recognised until international human rights law as distinct right, derived from the right to freedom of expression in the Inter-American Court of Human Rights judgement in the matter of Reyes v Chile. Despite this, the idea of freedom of information had received broad attention far earlier as a principle for healthy international relations. Following World War II, foreign state transparency was promoted for the benefit of global media reporting in an effort to ensure that the tragedies of the War could not happen again. In 1946 the United Nations held an International Conference on Freedom of Information, at which the establishment of a Convention on Freedom of Information was discussed. In the preamble to the UN General Assembly Resolution calling for the conference, the importance and meaning of freedom of information as a human right was laid out:
Freedom of information is a fundamental human right and is the touchstone of all the freedoms to which the United Nations is consecrated;
Freedom of information implies the right to gather, transmit and publish news anywhere and everywhere without letters. As such it is an essential factor in any serious effort to promote the peace and progress of the world;
Freedom of information requires as an indispensable element the willingness and capacity to employ its privileges without abuse. It requires as a basic discipline the moral obligation to seek the facts without prejudice and to spread knowledge without malicious intent;
Understanding and co-operation among nations are impossible without an alert and sound world opinion which, in turn, is wholly dependent upon freedom of information.
Embedded within this text, which notably came before the establishment of the UDHR, are some of the early normative assumptions and hopes for what transparency – at that point freedom of information – would engender. In particular, it was conceived of as a ‘fundamental human rights’ and, more so, as the touchstones of all the other freedoms and rights the UN at that point sought to enshrine. Moreover, freedom of information was decreed to be a ‘moral obligation’ upon which peace between nations is ‘wholly dependent’, suggesting that transparency was a central part of the new world order that international human rights – as a universal and moral legal code – sought to bring about. These are significant and far-reaching claims, and arguably the beginning of what was to become an evangelical campaign for transparency that characterised much of the 20th and early 21st centuries, as described by Mark Fenster (2017).
But, like the freedom-seeking narratives of the Enlightenment, human rights claim a particular inclusivity, universalism and morality that transcend both law and politics. Together with other related Enlightenment truths and values, human rights were considered a priori, universal, moral values: applicable to all humankind, everywhere. As will be discussed over the course of the next three chapter, in its alignment to human rights and Enlightenment values, transparency discursively sets itself outside of history, refusing to be assigned to any particular author or ideology, and in doing so, masking its political rationalities. Moreover, transparency’s claim to originate from the Enlightenment legitimises its modern construction, supporting its status as an indisputable public good and, in the words of Ann Florini, a ‘moral imperative’ (1999: 2).
The given history of transparency as arising from the Enlightenment is taken as unproblematic, presenting the concept as naturalised: part of the ways things are and should be. Foucault cautions us against ideas and values that have become too dominant, that are unquestioned and accepted within the social fabric as convention. For these values conceal their political construction and normalise society, excluding and delimiting other realities.
Indeed, uncritically aligning transparency to the Enlightenment fails to take into account one of the key problematics of this historical moment, that the Enlightenment was a distinctly Western historical moment. Not only did it centre in the West, but it was premised upon, and proceeded to consolidate and strengthen, a Western epistemology largely based on the immediacy between seeing and knowing. Transparency arises directly from this epistemology, for the etymological roots of the word ‘transparency’ can be traced to the Latin ‘trāns’ – through or beyond, and ‘pāreō’ – to appear, with transparency therefore denoting to appear through, or to make visible. Indeed, the early IMF Working Group on Transparency defined transparency as a mechanism for making institutions ‘accessible, visible and understandable’ (1998). And indeed, today, transparency falls within a broader semantic field of visibility and light, which includes: ‘sunlight’, ‘sunshine laws’, ‘oversight’, ‘observation’, ‘surveillance’ and ‘the invisible hand’ (see here Florini, 1999...

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