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Jeremy Benthams Constitutional Code and the Politics of Information

David Lieberman U.C. Berkeley [Work-in-progress; December 2007]

The acquisition and deployment of useful information long formed a basic part of state-building in the early-modern and modern west. Humanist scholars debated the proper forms of education for princes and their counselors, and they, in turn, sought to cultivate various forms of expertise and knowledge in their statecraft. The office of resident ambassador an innovation of the Italian Renaissance that proved enduring offers an illustrative example. The ambassador, according to one, well-informed early17th century judgment, was a man sent to tell lies abroad for his countrys good.1 But he was equally valued as a source of purposefully acquired intelligence about foreign courts and their political ambitions. The ambassadorial Report and Dispatch along with an advice literature concerning their correct content and form quickly became stables of early-modern diplomacy and international competition.2 Scholars of modern intellectual history are well familiar with the manner in which the mainstream social sciences of the nineteenth-century political economy, sociology, political science, criminology developed in close connection with the perceived needs of the state, gaining authority through their advertised capacity to offer guidance over such matters as poverty and prosperity, social conflict and political stability, public welfare and individual security. But this experience conformed to a much earlier pattern, where organized forms of knowledge likewise took shape in close connection with

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political imperatives and government support: mathematics and cartography in service to navigation and trade; chemistry and metallurgy in service to mining and armaments; engineering in service to royal fleets and naval installations, canals and ports.3 In his posthumously-published New Atlantis of 1627, Francis Bacon presented a Utopian society in which social harmony and political power of imperial proportions resulted from the generous royal patronage of scientific inquiry and experimental knowledge. The New Atlantiss Solomons House advanced knowledge by supporting separate teams of researchers, some of whom sail into foreign countries to acquire the learning of other communities; others who collect the experiments of all mechanical arts or who try new experiments; and others who assembled such materials into titles and tables, to give the better light for the drawing of observations and axioms.4 Later in the century, Sir William Petty advocated and helped pioneer the new genre of political speculation he termed political arithmetic, which revealed how the data contained in urban bills of mortality, or rent and wage rates, could be examined and manipulated to measure the strength of a political community and its competitive advantages over rival polities.5 In the case Political Arithmetic in England, as in the case of French physiocracy or German cameralism, or other older modes of political theory that competed for attention when Jeremy Bentham, in the 1760s, began his career as the self-described Newton of the legislative sciences, the point of information was to enhance the capacity of the state usually, in the person of an hereditary monarch. Theorists offered competing accounts concerning which information deserved the highest priority, and concerning which methods of study would yield the most reliable guidance from this

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material. But the shared purpose was to cultivate knowledge that would assist public goals, and equip the sovereign with levels of intelligence unmatched by foreign and domestic rivals. In these settings, information typically was harnessed in the service of state power. In this paper I explore some of Jeremy Benthams own plans for the use of information in a properly-functioning and morally-ordered political community. In considering Benthams program of reform, we tend (I think) first to recall his large, substantive schemes for institutional renewal: the calls for legislative codification and the systematic reordering of criminal sanctions; his innovative designs for prisons and schools; the radical plans for democratic representation and the destruction of aristocratic privilege. Rather less familiar are those elements of his political program that he himself, in his late constitutional writings, described under such headings as the statistic and information-elicitative tasks of public administration, or the registration and publication systems of the state. And these elements have likewise received limited attention in long-influential treatments of the utilitarian theory of democratic government and of Benthams constitutional proposals.6 My aim here is to examine these neglected features of Benthams democratic program and to explain the central importance he ascribed to what I am terming the politics of information.7 It is helpful to begin with what might be considered the more conventional aspects of this engagement: Benthams concern with information and its analysis as a resource for making government more effective. There are numerous cases to illustrate this theme. A convenient example is provided in the 1797 plan for poverty relief in England entitled, Pauper Management Improved. As with many of Benthams projects

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of this period, there was a healthy dose of opportunism in his decision to devote attention to this scheme for the construction, under joint-stock company management, of a national network of 250 industry-houses (or, work-houses) that would house and maintain an initial population of a half-million of the kingdoms poor and indigent, including individuals as well as families, some of whom potentially might remain resident in the companys houses from birth till death. In promoting the plan, Bentham sought to take advantage of, by contributing to, a contemporary debate over rural poverty and poor law reform that was itself a response to the social problems created by bad harvests and the economic dislocations of the early wars against revolutionary France. And he sought at the same time to advertise another valuable potential use for his Inspection-House architectural design the Panopticon which he earlier introduced and promoted in the shape of the Panopticon Prison. The schemes central mission was to provide subsistence and housing for the indigent, while using the profits derived from the rigorously-supervised labor of the resident able-bodied poor to help defray the costs of this support. But, as was no less typical, as Bentham worked on the project, his plan for a co-coordinated system of Pauper Panopticons accumulated so many possible functions and anticipated collateral benefits, that the industry-house scheme mushroomed into an institution providing, Register Offices, Loan Offices, Frugality Banks, Superannuation-Annuity Banks, Postobit-benefit Banks, Charitable Remittance Offices, Frugality Inns, Dispensaries, Lying-in Hospitals, Midwifery Lecture Schools, Veterinary Lecture Schools, Military Exercise Schools and Marine Schools.8

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Information its collection and distribution was central to the poor relief project. As an application of Inspection House architecture, the Pauper Panopticons were themselves constructed as perfectly fabricated environments for the collection of information about the population they housed. This feature went directly to the Panopticons logic of surveillance and discipline (likely, best-known to a modern reader through the vehicle of Foucaults discussion).9 Owing to its architecture, the behavior of each inmate was transparent to those who managed the institution. Knowing that complete information about his conduct was available to outside inspection at any given moment, and not knowing at any given moment whether in fact he was being observed, the inmate became the self-monitor of his own behavior, conforming to the all-embracing regimen of tasks and routines crafted for him. In this case, the industry-houses could be operated for profit because of the effectiveness with which productive labor would be extracted from the able-bodied paupers. The Panopticon worked so efficiently to transform conduct and to perfect labor productivity precisely because of the intensity with which it rendered available information about those it inspected. Every circumstance, by which the condition of an individual can be influenced, Bentham explained, being remarked and inventoried, nothing being left to chance, caprice or unguided discretion, everything being surveyed and set down in dimension, weight, and measure.10 But in addition to its disciplinary purposes, the Pauper Panopticons as purposefully designed environments for observation - could also serve as laboratories for what Bentham termed the augmentation and dissemination of Useful Knowledge.11 Hitherto, he reported, the stock of relative data or known facts relevant to a wide range

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of important arts and sciences, comprised little more than the scattered fruit of the uncombined exertions of unconnected individuals. In contrast, the resident paupers and the programs undertaken for their care, education and industry, would afford the first opportunity ever presented to mankind, of enriching the treasury of useful knowledge by contributions furnished on a national scale, and on a regular and all-embracing plan.12 Thus, medicine would be served by the information compiled concerning the treatment of the sick and the provision of the paupers diet; domestic economy would be enriched by the experience of maintaining the pauper homes and supporting the pauper children; manufacturing and husbandry would be advanced by the accumulated record of pauper labor and production; education would be served by the program for training pauper youths; and so on and on. The circulation of information that Bentham described here chiefly addressed the internal operations of the Pauper Panopticon scheme. But Bentham equally recognized that the success of the enterprise required additional networks of information, which served to connect the Pauper Panopticons to their larger social environment. Among his first contributions to the poor law debate of the 1790s was a brief essay concerning the Situation and Relief of the Poor that made clear the difficulties Bentham encountered in determining the extent of the problem his program was designed to address and the budgetary calculations upon which its business plan was formulated. Available legal records and published surveys of the poor failed to provide complete or uniform data concerning the numbers and distribution of indigent requiring relief or entitled to receive relief under the framework of the English poor law. Available demographic data failed to provide adequate information concerning the subgroups composing the poor population.

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Available poor law practice failed to generate sufficient data concerning the current costs of poor relief. I am unable to conceive, Bentham reported, how any plan of general economy in this line can rationally be attempted, without something like an estimate of the mouths to feed, as well as of the hands to work with.13 To remedy the situation, he constructed a series of Tables (essentially, elaborate survey forms) whose completion by local parish officials would furnish the necessary data. These included a comprehensive Pauper Population Table (whose stock of information constituted an indispensable groundwork to every well-digested plan of provision that can be framed in relation to the poor14); a Table of Cases Calling for Relief (which catalogued the circumstances that led individuals into poverty); and a projected Non-Adult Value Table that aimed to determine the annual monetary value of the pauper population (costs of maintenance measured against potential earnings), by year of age, from birth to twenty-one years complete.15 Bentham published the material in the periodical, Annals of Agriculture, in the hopes of eliciting from readers the data upon which his own pauper-relief scheme could be accurately planned.16 Later, in the Pauper Panopticon program itself, Bentham sketched another system of communication that would facilitate one of programs assigned goals, which was to help the indigent out of public support and into gainful, independent employment. This was the publication and national distribution of a state-subsidized periodical, The Employment Gazette, which would function as a channel of intelligence by collecting and reporting employment opportunities throughout the kingdom. The existing structure of English settlement and apprenticeship laws frustrated the mobility of the laboring poor. But independent of these obstacles, Bentham explained, the demand for labor

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could be of no practical benefit to the unemployed unless information about this demand became known to those who have the labour to bestow.17 The Employment Gazette organized a stock of intelligence expressly for the benefit of the poorest classes,18 and created an inexpensive instrument for the routine circulation of information between the market economy and the Pauper Panopticons. In many ways, Benthams treatment of Useful Knowledge in the context of the Pauper scheme might be characterized as a kind of thorough systematization of common sense and even predictable approaches to a substantial and, of course, still-unmastered - social problem. According to Benthams utilitarian calculus, the state had a moral responsibility to provide subsistence for its subjects. If the state was to respond effectively to the challenge of poverty, it required better information concerning the nature and extent of the problem it sought to alleviate. And if the states response to this social problem was to secure its fullest possible benefit, it needed to convey the lessons of its experience and successes to the widest possible audience. But at this latter point, it is important to pause and reflect more fully on an important organizing feature of Benthams approach: his commitment to a full public disclosure of the operations of the Pauper Panopticons. Early-modern reformers, as noted earlier, standardly hoped to make government more effective by equipping it with better and more reliable sources of information and forms of knowledge. But in many instances diplomacy and warfare furnish obvious examples acquired intelligence served this function not by being shared with the larger community, but by being monopolized by the hand of government. By converting purposely-acquired information into state secrets, the sovereign hoped to gain

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competitive advantage over other powers; and this principle applied equally in domestic settings, as when a sovereign sought to combat sedition and treason, or less momentously, to maintain order in urban spaces or prevent crime. In many of its leading operations, secrecy was the expected norm in the conduct of early-modern governance.19 As Bentham himself later observed in his constitutional jurisprudence, it was a wellestablished sinister policy with legislators to obtain for themselves the information necessary for their own particular and sinister purposes, while the information serving the benefit of the community at large, has been studiously kept concealed.20 Such instances of state secrecy may seem far removed from Benthams concerns in Pauper Management Improved. But even in this exercise in social welfare, the case for full disclosure might appear less than obvious. A fundamental feature of Benthams design, we may recall, was to derive profits from the productive labor within the Pauper Panopticons, so as to help defray the cost of providing housing and subsistence for the indigent. To this end, the Pauper Panopticons were encouraged to experiment with new technologies and work practices in both agriculture and industry. Would not the scheme and the anticipated profits be better served by keeping control over these successful innovations, rather than having to publicize them beyond the walls of the industry houses? Yet Bentham was emphatic. The success of the pauper program was directly tied to the public distribution of information concerning its operations. One reason for this position has been considered already. This was Benthams belief that the experience of caring for the pauper population would yield Useful Knowledge in a number of important fields medicine, education, agriculture that would realize social benefits

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well beyond the walls of the Pauper Panopticons. As Bentham insisted in many settings, social progress and public welfare were most likely to be advanced in an environment of open discussion, critical judgment and informed debate. Constraints of the circulation of information, much like restraints on public debate, naturally hindered institutional reform and the promotion of public utility.21 In addition and more distinctively Bentham viewed this circulation of information as a vital tool to insure the integrity of the pauper program itself. Information concerning the experience of the Pauper Panopticons needed to be shared precisely because its disclosure furnished a powerful security against potential abuses of power on the part of those who administered the program. Among the several, linked principles of management he developed for Pauper Management Improved, Bentham specified what he termed the Principle of Publicity, or Transparent-management principle which ensured that the conduct of the managers was readily held up to view.22 As in the case of the Panopticon Prison, transparent management was first promoted through the technology of Inspection-House architecture. The design rendered the conduct of the inmates transparent to those who managed the institution. But the design also rendered the success and failures of the managers transparent to those members of the public who came to visit and observe the institutions operation. In the case of both Panopticon schemes, Bentham specifically encouraged, and indeed relied upon, this kind of routine public scrutiny to function as a spur to improvement and a check to abuse.23 As he put it in the context of the plan for the Panopticon Prison, I take it for granted as a matter of course, that the doors of these establishments will be,

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as the doors of all public establishments ought to be, thrown wide open to the body of the curious at large the great open committee of the tribunal of the world.24 Supplementing this mechanism of direct observation was a further set of provisions concerning the comprehensive written records the administration was required to maintain and, again, make available to public inspection. In a chapter devoted to Book-Keeping, Bentham explained that while book-keeping generally focused on matters of pecuniary economy, record keeping here will be nothing less than the history of the system of management in all its points.25 Such records would capture the information that would enable the administrators to improve the institutions operations and would expose their past practices in a manner that inhibited abuse and malfeasance. (Bentham characteristically anticipated that these innovations in Book-Keeping would constitute yet another significant contribution to the fund of Useful Knowledge derived from the disseminated experience of the Pauper Panopticons.) I have dealt at some length with the Pauper Panopticon plan because it seems to capture so neatly the approaches to information that pervade Benthams reform program generally. The last theme information and its distribution as a resource against the abuse of authority discloses another critical manner in which Bentham connected the collection and analysis of accurate information to the achievement of institutional efficacy. As a project in relieving pauperism, the program of Pauper Management Improved relied upon better statistical information concerning the societal problems it addressed and the record of its own institutional performance. And the same body of information provided it was properly assembled and disseminated separately served the cause of institutional efficacy in a contrasting manner, by preventing the improper use

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of institutional capacity. For Bentham, publicity operated powerfully and generically in political life as a resource against the abuse of power. The efficacy of this great instrument, he maintained, extends to everything legislation, administration, judicature. Without publicity, no good is permanent; under the auspices of publicity, no evil can continue.26 Thus, in examining the exercise of judicial authority, he explained the force of publicity in preserving the integrity of adjudication. Publicity acts as a check, restraining [the judge] from active partiality and improbity and urging him to that habit of unremitting exertion in the performance of his duty. It keeps the judge himself, while trying [others], under trial Without publicity all other checks are insufficient: in comparison of publicity, all other checks are of small account.27 And publicity, again in general, only produced these powerful benefits to the extent that the information being publicized proved reliable in content and readily understood. As Bentham noted in a quite different setting, if the community failed to judge accurately the conduct of its rulers, it is because it is ignorant of the facts because it does not possess the necessary particulars for forming a good judgment.28 In his political theory, Bentham frequently deployed short-hand formulas to identify the organizing principles of his reform program or the instrumentalist calculations framing his institutional designs. Thus, the Duty and Interest junction principle announced the logic of administrative structures that mobilized self-interest to secure public goods.29 And the means employed formula aptitude maximized; expense minimized signaled the need in constitutional arrangements to coordinate two distinct goals: the positive aim of advancing government performance and the negative goal of reducing the burdens (both monetary and non-monetary) of maintaining

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government itself.30 Bentham failed to coin a similar short-hand tag to highlight the paired functions in terms of which information enhanced government efficacy. Public institutions achieved their goals in part because of the improved information with which they worked. And the proper dissemination of this information, in turn, helped preserve the proper use of this enhanced institutional capacity. Bentham seems often to have conceived this dual use of information in terms of force and counter-force: information increasing power; disclosure checking the potential abuse of power. But we also can discern a reinforcing dynamic operating here. A successfully operating Pauper Panopticon succeeded because of the information it knew how to utilize and increase. And this very institutional success would heighten its notoriety and visibility, thus exposing it to greater publicity and outside scrutiny, which in turn would strengthen the forces that inhibited potential abuse and deterioration.31


In the final phase of his long career as the father of English innovation,32 roughly the period from 1820-32, Bentham devoted himself to the composition of a Constitution Code that embodied the radical democratic principles he had publicly avowed in the 1817 publication, Plan of Parliamentary Reform, and which he privately embraced many years earlier. The Constitutional Code adopted the same logic concerning information developed in earlier reform projects. But here the scale and the institutional design were enormously more complex and ambitious. In part, this simply reflected the larger task of the Constitutional Code itself to provide the program for an

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entire system of government, rather than for one of its component parts. In part, the change bespoke Benthams greater confidence in constructing large government institutions that could fulfill their public goals reliably and cost-effectively.33 But, additionally and critically, Bentham had come to understand that the political forces obstructing the greatest happiness of the greatest number were more entrenched and powerful than he earlier acknowledged. In the Constitutional Code, information and publicity had more work to do. Benthams constitutional design was based on a broad theory and sociology of politics that it is helpful to outline skeletal form.34 The moral goal for all political systems was the promotion of the greatest happiness of the entire community. But the structural conditions of organized political rule created two distinct groups, the ruling few and the subject many. The great danger in political life elaborately rehearsed in the republican political thought of the early-modern and modern periods - was that political power would be used by the ruling few to further their own interests at the expense of the general public interest. This danger had been abundantly realized in the unreformed states of contemporary Europe, for which the British polity a monarchicoaristocratical despotism with a spice of anarchy35 - served as Benthams favored example of corruption and sinister interest. In these polities, entrenched elites comprising hereditary wealth and privilege (such as crown and peerage) or comprising tight professional monopolies (such as law and state-sponsored church establishment) acted in concert to capture state patronage and policy on behalf of their sectional or, for Bentham, sinister interests. The impacts of such successful sinister interests could be perceived not only in the specific institutional forms and processes of government, but

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also in the conventional normative order of political life, that worked to mask the mechanisms of corruption and exploitation through a dense fabric of interest begotten prejudice and authority begotten prejudice. The resulting challenge for utilitarian political reform was to overcome both these ruling government structures as well as the supporting ideology of political delusion or false belief. Like all other political forms, representative democracy created a ruling few with the potential to use its authority to advance a sinister interest to the detriment of the subject many. What distinguished representative democracy was its capacity to adopt institutions and practices that hindered this occurrence. Benthams Constitutional Code was an extended exercise in identifying, delineating, and defending these political mechanisms. In his lifetime what was always most controversial about his own democratic theory and that of his circle of philosophic radicals was their extreme position on the franchise: full manhood suffrage and the secret ballot (in Benthams case in certain settings, full adult suffrage and the secret ballot). As the future Lord Chancellor, Henry Brougham, memorably explained to his fellow legislators in the House of Commons, Mr. Bentham would give the vote to any person of either sex [who] was able to put a pellet into a box, no matter whether he were insane and had one of the keepers of a mad-house to guide him.36 But the democratic franchise was but one of many structural devices Bentham himself regarded as vital to the prevention of sinister interest under conditions of democratic rule. Indeed, for Bentham, there was no parsimony in mobilizing resources to combat sinister. In a program Bentham described as Economy as Applied to Office, he looked to market competition and open examinations to help regulate the costs and quality of state

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service. As in the earlier Panopticon prison and poor law projects, he turned to architecture and engineering innovations to encourage the reliability and integrity of government performance. He specified areas of expertise and forms of knowledge required of specific government ministers and ministries: medicine for Health; political economy for Finance, Trade and Indigence Relief; and so on.37 The Constitutional Code specified a hierarchically-ordered series of public authorities: a popular Constitutive Authority that elected an omni-competent Legislative Authority, which in turn authorized and monitored a Judicial and an Administrative Authority to implement its legislative will. State administration adhered to a uniform, centralized bureaucratic structure which emphasized easily-recognized chains of command and individual decision-making. And the state was given a wide range of public charges, extending well beyond such established public functions as military defense and the administration of justice, to include several much less settled government fields, such as public health, social welfare and education.38 Bentham described the instrumental logic informing his design through two summary rules: maximize appropriate official aptitude (that is, maximize the capacity of each public official to advance the general happiness) and minimize official expense (that is, minimize the burdens introduced by public authority). Each branch of the state was furnished with its distinctive mechanisms to secure appropriate aptitude, but the lynch-pin of the whole was the aptitude of the democratic electorate to judge critically and actively the state that was intended to promote its welfare. More than the discrete moments of democratic election, the practice of regular and unrestrained public opinion secured the democratic state from deteriorating into a sinister interest. Of the aggregate

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mass of securities against the abuse of power, Bentham insisted, the greatest part unavoidably depends upon the power of the Public Opinion Tribunal.39 Bentham gave constitutional expression to this idea through the institution he styled, the Public Opinion Tribunal. The Public Opinion Tribunal constituted a fictitious tribunal or imaginary tribunal or judiciary which applied the punishments and rewards of the popular or moral sanction.40 In function, the Tribunal was similar to a judicial body, receiving accusations of official misconduct, weighing the evidence in favor or against, reaching verdicts about which officials had failed the community, and imposing the penalties of the moral sanction by lowering the prestige and influence of those accused and convicted. More concretely, the Tribunal was identified with the newspaper press and related forms of uncensored political publication that helped focus and maintain public scrutiny of government activity. Appropriate moral aptitude, Bentham reported, must be considered as exactly proportioned to the strictness of the functionarys dependence on public opinion; and the efficiency of this dependence, in turn, was dependent upon the degree of liberty possessed by the press.41 Accordingly, any government effort to restrict the newspapers and printed media which sustained the Public Opinion Tribunal constituted a breach of trust; and any effort to weaken [its] effective power furnished evidence of hostility to the greatest happiness of the greatest number: evidence of the worst intentions, generated by the worst motives.42 As a mechanism of democratic power, the Public Opinion Tribunal was even more inclusive than the electorate. Membership was largely self-determined, the result of any individual choosing to participate in the processes of public debate and critical discussion. The Public Opinion Tribunal thus included groups such as foreigners and

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minors who were excluded from the franchise. The sole exclusion which, by implication, operated was illiteracy, since Bentham viewed print media as the dominant vehicle of public debate.43 Admittedly, there are aspects of Benthams account of Public Opinion Tribunal that deserve more clarification than I shall attempt to give here, particularly his claim that the content of public opinion, over time, came more and more to coincide with the dictates of the greatest happiness principle.44 But his confidence in the momentous power of public opinion is readily explained, given his understanding of the systematically corrupt nature of most existing political systems. Where unreformed government practice managed to advance the interests of the subject many, it did so not as the intended result of institutional design, but rather on account of what Bentham styled the healing hand of Public Opinion.45 Under current political arrangements, if the whole system of intercourse between the ruling-few and subjectmany is not one unvaried scene of oppression, it is owing - not assuredly to the state of the law, but to the species and degree of good morals and good manners, which, - under the fostering care of the popular or moral sanction, as applied by the Public Opinion Tribunal, - has been nurtured and kept on foot, in spite of the law, and of whatever has the force of law.46 Thus, when Bentham considered the case of English Judicature a case upon which he devoted lavish attention at several stages of his long career in law reform he emphasized the extent to which existing institutional structures were the source of systemic abuse and oppression. A process of adjudication based on court fees inevitably produced that system of expense, vexation and delay which thwarted the interests of litigants and the welfare of the community. A procedural process that rewarded lawyers

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and judges on the basis of the number of document filings, court appearances and professional advisors, naturally generated endless complexity, technicality, delay and costs. Lawyers and judges promoted their sinister interest against the community because the structure of professional reward and authority encouraged them to do so. Given this structure, they could advance the interest of the entire community only through a sacrifice of their own interests. And while Bentham believed such sacrifice could certainly occur episodically in individual cases, it would not occur readily or systematically. Instead, Judge and Co. could be relied upon to defend those institutional abuses that advanced their power and wealth.47 In contrast, where English justice achieved a more systematic capacity for integrity and rectitude, it did so as the result of publicity and the operation of the moral sanction. For all their failings, English courts were most often open courts and English judges were expected to give explicit reasons to explain their particular judicial decisions. As a result, English judges routinely stood exposed to public scrutiny and censure. The institutional design of the Constitutional Code sought to take full advantage of this potent and salutary public resource. On the tutelary influence of the Public Opinion Tribunal, Bentham explained, this Constitution relies for the efficiency of the securities which it provides, for good conduct, on the part of the Judiciary Department.48 Again, in treating the political capacity of the English crown, Bentham displayed no patience for established conventions concerning Englands limited monarchy and constitutional balance. He would leave talk of the kingdoms mixed and balanced constitution to Mother Goose and Mother Blackstone.49 In fact, the English king functioned as the Corrupter General, the apex of a political system that exploitatively

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utilized government office and public resources to enrich the royal family and the aristocratic interest.50 Where the English form of government achieved appropriate moral responsibility, it (once again) did so on account of the influence of public opinion. For example, according to established constitutional orthodoxy, the English monarch could do no wrong, which Bentham tendentiously formulated as meaning that he may kill any person he pleases, violate any woman he pleases or destroy any thing he pleases. Yet, in the absence of any legal or constitutional constraint, he did nothing of the kind. Why? Because by the power of the Public Opinion Tribunal, though he could not be either punished or effectively resisted, he might be, and would be, more or less annoyed.51 The democratic structures of the Constitutional Code provided the opportunity to extend and perfect the efficacy of a Public Opinion Tribunal that already provided such important utilitarian benefits in so much less promising institutional settings. To help realize this goal, Bentham sought to insure that the Tribunal commanded the materials it required to maximize its own official aptitude. And this brings us back to the politics of information.


Benthams equipped his democratic state with two distinct networks for the gathering and recording of information. One of these figured as part of the organization of local government and centered on the functions of a local administrative official (styled, Local Headman) and another local official (styled, Local Registrar). The

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Local Headman enjoyed a wide range of responsibilities for enforcing legislative policy on the ground, and compiled written public records of his own activities. The Local Registrar likewise recorded information about the performance of the Local Headman (including his evaluation of this performance), and also about events in the community where both officials served. The Registrars assembled data would be officially displayed the purpose of maximizing publicity. 52 Benthams account of the information government was to collect about the community it served largely conformed to a discussion he earlier treated in the 1827 Rationale of Judicial Evidence under the category pre-appointed evidence. In this context, he explained the need for a system of officially-registered information that could be utilized by courts for the settlement of numerous private disputes concerning such matters as property and title.53 (In the Constitutional Code, the function of the Local Registrar was closely coordinated to the local branch of the judicial establishment (styled, Immediate Judge) which similarly relied on the pre-appointed evidence organized by the Registrar.54) Included here were records concerning contracts, property transfers, wills and testaments, as well as demographic and genealogical data concerning births, deaths, marriages, divorces, adoptions, guardianships, and other social conditions. The latter information enabled the Local Registrar to compile population and mortality tables, and to furnish to the central government information relevant to policies concerning public health, labor markets, crime prevention, and so on. What Bentham inelegantly described as the Registrars genealogical-recordation functions captured the kinds of basic social data Bentham found unavailable decades earlier in researching the problem

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of pauperism. His projected state in the Constitutional Code would routinely generate and analyze a detailed statistical profile of the community whose happiness it advanced. Far more elaborately specified was the registration system Bentham designed for documenting the activities of states administrative departments, which he described as the statistic and recordative functions. 55 Leslie Stephen, the great Victorian chronicler and heir of the English utilitarian tradition, sagaciously noted that Benthams Constitutional Code cannot be recommended as light reading.56 I like to think he especially had in mind this lengthy and forbidding account of government book-keeping. It is easier to convey Benthams general goals than to describe succinctly the instruments through which these goals would be realized. In the Pauper Panopticon project (as we have seen), he had sought a method of record-keeping that achieved nothing less than the history of the system of management in all its points.57 And likewise here, the statistic and recordative functions served to capture the detailed record of government activity in all its branches. Bentham developed a body of government records to report systematically which government official decided what and when; under what circumstances and to what purposes and with what effects were such decisions made; to disclose any errant or fraudulent conduct; and to encourage proposals concerning how in future government activity might be improved.58 The collected information, as Bentham observed in a related context, required clearness, correctness, impartiality, allcomprehensiveness, non-redundance thence, instructiveness and non-deceptiveness;59 as well as uniformity of expression and organization, so that records could readily communicate across the 13 major administrative departments, and from the

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administrative departments to the legislature and judiciary, and ultimately to the Public Opinion Tribunal. The more concrete terms, Bentham designed a library-worth of official Register Books, containing inventories of government assets and expenditures, organized separately according to the type of property that comprised the assets in question and according to the time and date when changes occurred. Supplementing these was another set of Register Books that contained diaries of transactions and decisions in narrative order. The principal kinds of Register Books were, in turn, subdivided into more exacting sub-categories; and the entire apparatus was equipped with a uniform system of abbreviation and cross-reference, and furnished with a special nomenclature, generating a combined stockpile of Register Books (2 kinds); Outset Books (2 kinds); Specific Books (4 kinds: Personal, Immoveable, Moveable, and Money); Generic Books (again, 4 kinds); Subspecific Books (3 kinds: Entrance, Continuance, and Exit); and so on.60 As is not uncommon to such instances of Benthamic inventiveness, there is a distinct mad-scientist quality to the unfolding layer upon layer of administrative records. None the less, the detail pays ample testimony to Benthams sincerity in his avowed aim to optimize the quality and to maximize the quantity of government information.61 The Registration systems provide one measure of the importance Bentham placed on providing the polity with comprehensive information systems. Another, no less revealing measure, is the care he took to specify in detail the authority government officials held to command information from others and their obligations to produce the intelligence elicited from them. In these settings, he made clear the extent to which in the Constitutional Code the control of information was tied to the exercise of political

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power, and the open circulation of this information was tied to the prevention of the abuse of political power. In treating each of the principal sites of political authority operating within the Code Constitutive; Legislative; Administrative; Judicial - Bentham specified the pathways through which information was gathered, registered, utilized and publicized. The resulting scheme provides clear illustration of the hierarchies of power through which democratic rule was sustained. Within the 13 main administrative departments and their various subdepartments, every functionary enjoyed a general authority, limited only by legislative provision, to collect information from other officials and from the public in so far as the receipt of the information was necessary or useful to the performance of his office.62 The data collected through the exercise of this information-elicative function was appropriately analyzed, registered and prepared for subsequent distribution to other administrative departments. Officials in administrative sub-departments were required to supply this information to their ministerial superiors, who in turn were required to move the data further upstream through the administrative hierarchy.63 The compiled archive was placed under the authority of the Prime Minister, whose own areas of general responsibility included the maintenance of the states Registration and Publication System, in such a manner that the record of government activity was at all times present to the minds of every person for whom such information was likely to be of use.64 The Prime Minister was assigned more particular responsibilities to convey this information regularly to the Legislature, under whom he served, along with an annual report that assessed the general state of the community and identified areas deserving improvement.65

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The Legislature, in turn, was assigned its own original powers to subpoena information and receive testimony from members of the public and from government officials, along with the accompanying responsibilities to produce a written record and analysis of these investigations. Writing in a period when theories of democratic empowerment through elected representatives focused overwhelmingly on the legislative and executive functions of government, it is striking that Bentham should have elevated the investigative responsibilities of an elected legislature to constitutional prominence. The Legislation Enquiry Judicatory and Legislation Enquiry Report, as Bentham termed these functions, represented potent elements of legislative authority that had been but poorly realized in existing state practices.66 In additional, the Legislature like the Administrative Departments under the Prime Minister and the Prime Minister himself was required to register and publish the detailed record of its own performance. And, finally, all this information-gathering and written publication fell under the jurisdiction of the popular Constitutive Authority, operating as we have seen - through the vehicle of the Public Opinion Tribunal. The Public Opinion Tribunal relied on the states Registration and Publication Systems for the materials on which to base its on-going assessment of official aptitude, while its critical judgment of government performance anchored the complex of securities against misrule. By the united powers of recordation, publication and unrestricted interrogability, Bentham maintained, major forms of government abuse would be thwarted, and specific kinds of corruption such as graft and embezzlement might be eliminated entirely.67 More generally and more significantly, what he termed the completeness of the subjection to the power of the Public Opinion Tribunal,

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functioning through the medium of the press, meant that this copious documentation effectively placed, and was recognized to place, all government activity under the surveillance of the public.68 As in all private so in all public business, Bentham observed, apt operation required appropriate and correspondently extensive information.69 Bentham reported that he did not achieve this all-comprehensive view of the information necessary to the apt exercise of the functions of government and of the means of its being obtained until he had progressed far into the drafting of the Constitutional Code. 70 The expansion of the discussion over the course of the Codes composition is indicative of the political importance he ascribed to these constitutional features. In his 1983 study of the Constitutional Code, Frederick Rosen emphasized that Benthams program for representative democracy featured a system of political communication.71 My own emphasis here concerns the literal volumes of information that formed much of the content of what was being communicated. In Benthams constitutional system, there was no political decision without its proper basis in social information; no government action without its appropriate registration; no written record without its specified range of distribution and publication. Indeed, the Constitutional Code at times (almost weirdly) seems to give clearer direction concerning how a particular government official was to document and publicize his activities than concerning the activities themselves the official was charged to undertake. Benthams state was as much an information state as it was a democratic state. His constitutional program was as much a campaign against government secrecy as it was against aristocratic privilege and sinister interest. Remove

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publicity and political journalism, and Benthamic democracy collapses every bit as much as it would through the elimination of popular sovereignty and the democratic franchise.


In treating many features of Benthams reform program, we have (I believe) a good sense of the intellectual background and political contexts that helped frame his proposals how (for example) his ideas on punishment related to the broader Europeanwide movement for criminal law reform, or how his proposals for the democratic franchise compared to early-19th century advocacy for Parliamentary reform. My own tribe of intellectual historians has done less to explore those debates over public records or the fiscal reform of the Hanoverian state that Bentham himself followed so closely in his radical polemics of the 1810s and 1820s.72 Admittedly, the Constitutional Code is not an easy project to bring into interpretative focus. Terminology and syntax aside, its cumbersome make-up of Instructional, Ratiocinative, Expositive, Exemplificational as well as Enactive provisions, rendered the Code as much a contribution to normative political theory as an exercise at constitutional draftsmanship. Yet, the work was intended as a code of constitutional law, available - in the words of its 1830 title - for the use of all nations and all governments professing liberal opinions. Bentham was well-studied in the constitutional development of the European states and was fully familiar with the many new constitutions adopted in Europe and the Americas during the eras of the American and French Revolutions and in the post-Napoleonic period.73 His Constitutional Code routinely invoked the example of Britains political

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system an aristocracy-ridden and corrupt mixt monarchy - as the model of corruption and ineptitude against which to measure his alternative designs.74 The constitutional system that earned his most consistent praise was that of the United States, or as he preferred to style it, the Anglo-American United States. The U.S. constitution provides an obvious point of departure for comparing Benthams program. The comparison, of course, is scarcely straightforward. The U.S. Constitution structured a federal government in a political environment where most of the government activity specified in Benthams Constitutional Code occurred at the state level. Again, the U.S. Constitution left for later federal legislation the establishment of much of the government apparatus such as the lower federal courts - that Bentham included within his Constitutional Code itself. Still, exceptions excepted (as Bentham frequently put it), it is plain that information and its circulation likewise figured often in the U.S. constitutional design. A census of the population was required every ten years to maintain the distribution of representation in the House of Representatives and in case of a federal capitation tax (Article I, sections 2 and 9). Each branch of Congress was required to keep and publish written records of its proceedings (Article I, section 5). The President was placed under a looser mandate from time to time to supply Congress with Information of the state of the Union (Article II, section 3). And the Federal Government was authorized to develop rules to authenticate the acts and records of the separate state governments and to insure that each state gave these materials full faith and credit (Article IV). None of these provisions and the examples could be extended - earn headlines in current scholarly discussion of the U.S. Constitution or in debates over the

Bentham and Information (Page 29 of 44)

constitutional meanings of the Founders. And this neglect reflects quite reasonable judgment that these provisions do not directly concern major organizing features of the U.S. Constitution, equivalent in importance to the federal design or the theory of the separation of powers. What the U.S. federal constitution does not do, in other words, is to make information and its circulation a systemic or unified object of political attention. And it is precisely this elevation of information to the level of constitutional significance and priority that comprises one of Benthams most distinctive contributions to liberal constitutional theory. The preoccupation with information additionally provides insight into broader features of Benthams democratic theory, such as his understanding of the scale of the democratic state and of its reach into the society it governed. Like other political radicals of his era, Bentham understood the historical form of Europes ancien regime states, whose abuses and failures he so copiously condemned, to be the product of hereditary entitlement, monarchic power and aristocratic privilege. Unreformed governments supported such elephantine bodies of needles offices, useless offices, overpaid offices, and sinecure offices in their civil and military establishments precisely because such bloated structures served the sinister interest of the ruling few.75 To expect these political forms directly to promote the interests of the entire community, as well might you suppose, thundered Bentham, that it is for the happiness of negroes that planters have all along been flogging negroes; for the good of Hindoos that the Leadenhall Street Proprietors have all along been squeezing and excoriating the sixty or a hundred millions of Hindoos.76

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Given this diagnosis, it followed for democrats such as Thomas Paine, in the 1791-92 Rights of Man, that once monarchy and aristocratic entitlement were eliminated from the constitutional order, the state itself would necessarily and immediately shrink in scale and cost. Existing government size and function, on this analysis, reflected corruption and abuse rather than authentic political need.77 Bentham certainly concurred that the reformed democratic state would operate far more efficiently and cost-effectively than the corrupt polities that preceded it. Among the explicit goals of the Constitutional Code, was the systematic minimization of evil of delay, vexation, and expense that served as the hallmark of government process shaped by sinister interest.78 But Bentham scarcely sought to replace a corrupt and bloated state form with a slight or weakened structure. One important indication, then, of the substantial public tasks he continued to assign to law and government was the amount of collected and analyzed information he believed government required to fulfill its public purposes, just as one leading measure of the potency of this state was its need to publicize its activities so as to hinder the potential abuse of its power. In this sense, the politics of information reveals the democratic state to be far removed from the notion of a minimal state. Bentham in his democratic program also joined other commentators in emphasizing the efficacy and beneficial impacts of print journalism and critical public opinion on the political practices of his own era.79 In Britain especially, the end of prepublication censorship, the growth and extension of print media, the newspaper coverage of Parliamentary debates, all contributed to an eighteenth-century political culture in which political intelligence disseminated beyond the traditional arenas of Court and Parliament, and in which the ruling few presumed their authority to operate under the

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observation of a reading public. For an English Minister to neglect the Newspapers, Bentham noted in a manuscript comment of the 1770s, is for a Roman Consul to neglect the Forum.80 And already at this very early stage of his career, he had come to see liberty of the press and liberty of public association as constitutive features of a free government.81 The Constitutional Code operated well within the conventions of liberal constitutionalism by giving such weight and prominence to freedom of thought and publication. For the Public Opinion Tribunal to perform its constitutional role, the community needed these protections so that open and aggressive criticism of public authority and administration was sustained. But the program of information and publicity set out in the Constitutional Code made clear that freedom of thought and association were insufficient to secure the political benefits their advocates celebrated. No less critically, the Public Opinion Tribunal required information from the state in order to fulfill its critical tasks. Benthams legislators, in their constitutionally-mandated Inaugural Declarations, abjured insincerity and pledged to conduct their activities with the greatest degree of transparency possible.82 As he revealed throughout the body of the Constitutional Code, state secrecy posed as much a threat to democracy as state censorship. To adopt the categories of contemporary constitutional practice, he was as much devoted to the norm of freedom of information as to the norm of freedom of speech, and much of his constitutional design involved the construction of a technology to realize this norm. Indeed, his program of information and publicity went beyond the modern mechanisms of freedom of information, as they often operate in settings, such as the U.S., where freedom of information enables a private party to gain access to

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government materials that otherwise would remain closed. Instead, Benthams guiding principle that publicity will at all times be maximized83 placed the burden on public authority to assemble and distribute this information in advance of any specific private request, and treated departures from the general norm as always requiring special justification and care. Benthams understanding of the dynamic between state power and critical public opinion thus rendered political transparency a defining element of democratic rule. Bentham allowed two important limitations on the presumption in favor of publicity. There was the general limitation of expense, which meant that publicity should not to be promoted without any regard to the resources its promotion absorbed; and there were the various special situations such as the secret ballot, or military and diplomatic secrecy where publicity was abandoned in order to keep information closed to those with interests hostile to the community. Yet even in cases where secrecy was warranted, it was always costly, since such secrecy directed thwarted the tutelary power of the Public Opinion Tribunal which, for Bentham, never cease[d] to be needed. 84 Given this cost, Bentham conceived of government secrecy as a temporary arrangement, which required periodic review and justification. The Constitutional Code thus required both the Prime Minister and the Legislature annually to review the archive of closed records, to release those that no longer merited secrecy, and to announce publicly which previously concealed information was now available to the community through the normal mechanisms of registration and publication.85 The other face of the democratic states obligations to display itself so thoroughly to the community was the states power to collect and record the information it was

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required to publicize. Scholarly discussion of the liberal and authoritarian elements in Benthams program, and the interpretative debate over which of these elements was dominant, has tended (unsurprisingly) to emphasize his treatment of law and legal institutions. On the one hand, there is the liberalizing thrust of Benthams rejection of various forms of paternalist legislation. On the other is Benthams impatience with so many of the traditional procedural safeguards for the protection individual rights in legal process and trial. Again, on the one hand, is the unequivocal priority given to personal security in the calculation of social utility. On the other is his notorious repudiation of rights-based approaches to the protection of the individual from legal and political tyranny.86 In treating publicity and public opinion in the Constitutional Code, Bentham pursued the felicific potential of the moral - as opposed to the legal - sanction; and this line of discussion offers less well-explored indications of his understanding of the scope and limits of political power. As we have seen, the Constitutional Codes Registration systems captured information concerning the community at large as well as concerning the conduct of state officials. The general rule was that such officials enjoyed broad authority to acquire all the information necessary or useful to their public tasks. Bentham plainly recognized the danger that such information-gathering might itself become an instrument of government abuse and oppression.87 In analyzing the danger, he distinguished the situation of the functionary (that is, a government official) from the non-functionary (that is, a member of the general public), though both groups faced similar exposure. His failure to complete the Penal Code that was meant to accompany the Constitutional Code makes it difficult to know fully all the measures he envisaged for the prevention of this

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kind of abuse, since some of these measures presumably comprised legal securities against certain kinds of invasion and accusation. In his earlier discussions of penal law, Bentham identified a general category of offences against reputation, and we can imagine this category of legal harm functioning to protect individuals from some potentially abusive uses of the information acquired through the states administrative operations.88 Bentham also anticipated situations in which a non-functionary might resist efforts by the state to supply requested information and acknowledged the difficulty these cases posed. It fell to the Judiciary Establishment to determine the particular cases when a private citizens non-compliance had to be overcome, and these decisions formed the most difficult of the tasks imposed upon the judicial branch.89 At the level of constitutional design, it was the responsibility of the Legislature to establish the general rules concerning which administrative departments were entitled to receive which kinds of information, and under what kinds of situations (such as imminent military threat or impending calamity) the government had authority to require unwilling subjects to supply requested intelligence.90 Certain specific kinds of information were explicitly protected from public notice. The state could not require disclosure of religious opinions; the Health Subdepartment could not release the identity of persons who have been labouring under any disease to which disrepute is attached; and aspirants for government appointment were not be questioned regarding any irregularities of the sexual appetite.91 But these exclusions were scattered in a random and ad hoc manner through the text of the Constitutional Code. In protecting the public from oppressive government demands for information, Bentham appeared more concerned with the administrative processes by which evidence was gathered than with the content of the

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material thus secured.92 And in considering the governments authority to monitor the activities of private associations operating within the community, he displayed little inclination to shield such bodies from public scrutiny. Whatsoever be the establishment, institution, or foundation, - and howsoever private, he maintained, in no way can any interest which is not sinister be served, by screening it from public inspection.93 For the government functionary, the situation was more stark. Here the obligations to provide information to superiors and to other administrative departments formed part of the general purposes of information-gathering itself: to enhance the effectiveness of government in realizing public goals. And here the obligation to publicize this information formed part of the basic machinery for securing official aptitude through the moral sanction. As Bentham explained in first introducing the functions of the Public Opinion Tribunal, private citizens faced a general moral obligation to make available to the community information that was relevant to the interests of the public at large. But for government functionaries such services were not only morally but legally obligatory, as required by the terms of their public appointment.94 By design, government functionaries stood wholly exposed to the judgment and censure of the Public Opinion Tribunal, and fulfilled their public tasks in a manner that facilitated this exposure. Officials did not lose their legal securities upon taking up government office; and those general provisions of the penal law designed to prevent reputational harms functioned to protect state functionaries as well. Defamation, if mendacious or temeracious, Bentham reported, remained at the hands of the Penal Code.95 But at the same time, Bentham was even more emphatic that critical public

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opinion was not to be constrained for the sake of reputation, civility or presumptions of innocence. The Public Opinion Tribunal, Bentham explained, neither is, nor ought to be, nor can be, fettered, by those formalities that properly restricted the exercise of the power of the legal sanction.96 Disclosed evidence concerning official misconduct that was not sufficient to warrant legal punishment at the hands of the Constituted Judicatories, might still and correctly be sufficient to produce and warrant censure, or at least tutelary suspicion, at the hands of the Public Opinion Tribunal.97 The military functionary is paid for being shot at, he concluded, the civil functionary is paid for being spoken and written at Better he be defamed, though it be ever so unjustly, than that, by a breach of official duty, any sinister profit sought should be reaped.98 The power of critical public opinion that Bentham both championed and relied upon in the Constitutional Code thus expressly included the capacity by the democratic public to abuse and misuse the information that had been so carefully organized and publicized for its benefit. For those wrongly accused or mistakenly censured by members of the Public Opinion Tribunal, the chief security was located in the self-regulating promise of critical public opinion itself. For expressions of vague vituperation, the Public Opinion Tribunal would provide appropriate and sufficient punishment in the form of the appropriate disrepute directed at the vituperator. In the case ungrounded accusations, the vituperation will be regarded as groundless. But for the servants of the demos, there would be no release from what Bentham termed the completeness of the subjection to the power of the Public Opinion Tribunal. 99 In his very first major publication, the anonymous 1776 Fragment on Government, Bentham proclaimed that the motto of the good citizen under a

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government of Laws was to obey punctually but to censure freely.100 His mature democratic theory reveals the momentous political purpose and practical challenge he came to perceive in the civic task to censure freely. His constitutional jurisprudence reveals just how much statecraft, administrative machinery and political resources were required to transform this adage of Enlightenment into a potent and routine feature of democratic practice.

Sir Henry Wotton, quoted Garrett Mattingly, Renaissance Diplomacy (1955; Harmondsworth, 1965), p.228. Mattingly, Renaissance Diplomacy, pp.102-111. For a recent discussion of this theme, see Eric H. Ash, Power, Knowledge, and Expertise in Elizabethan England (Baltimore and London, 2004). Francis Bacon, The Advancement of Learning and New Atlantis, ed. Arthur Johnston (Oxford, 1974), pp.245-6; and see Julian Martin, Francis Bacon, the State, and the Reform of Natural Philosophy (Cambridge, U.K., 1992), especially chapter 5.

2 3

See Political Arithmetick (1690), in The Economic Writings of Sir William Petty, 2 volumes, ed. Charles Henry Hull (Reprints of Economic Classics; New York, 1963), I: 233-313; and see Theodore M. Porter, The Rise of Statistical Thinking, 1820-1900 (Princeton University Press), pp. 18-23, and Peter Buck, People Who Counted: Political Arithmetic in the Eighteenth Century, Isis 73 (1982) 28-45.

See, for examples, the treatment of utilitarian democratic theory in Joseph A. Schumpeter, Capitalism, socialism and democracy (19??), and the discussion of the Constitutional Code in Elie Halvy, The Growth of Philosophic Radicalism (1901-4), trans. Mary Morris (London, 1972), pp.403-32.

My phrase is borrowed from John Brewer, The Sinews of Power: War, Money and the English State, 1688-1783 (New York, 1989), chapter 8. My approach to Benthams Constitutional Code in this paper is especially indebted to the scholarship of L.J. Hume, Bentham and Bureaucracy (Cambridge, 1981); Frederick Rosen, Jeremy Bentham and Representative Democracy (Oxford, 1983); and Philip Schofield, Utility and Democracy: The Political Thought of Jeremy Bentham (Oxford, 2006).

J.R. Poynter, Society and Pauperism: English Ideas on Poor Relief, 1795-1834 (London, 1963), pp.139-40. Benthams writings on pauperism are further discussed in the editorial introduction to Jeremy Bentham, Writings on the Poor Laws: Volume I, ed. Michael Quinn (Collected Works of Jeremy Bentham; Oxford, 2001), pp.xi-li, and in Charles F. Bahmueller, The National Charity Company: Jeremy Benthams Silent Revolution (Berkeley, CA., 1981).

Michel Foucault, Discipline and Punish, trans. Alan Sheridan (New York, 1979), pp.200-9. For a fuller and more balanced treatment, see Janet Semple, Benthams Prison: A Study of the Panopticon Penitentiary (Oxford, 1993).


Jeremy Bentham, Outline of a Work Entitled Pauper Management Improved, in Works of Jeremy Bentham, ed. John Bowring, 11 volumes (Edinburgh, 1838-43), VIII: 428. (Works of

Jeremy Bentham hereafter cited as Bowring).

11 12 13 14 15 16

See Bowring, VIII: 424-8. Bowring, VIII: 425. Bowring, VIII: 364. Bowring, VIII: 362. Bowring, VIII: 365. For details concerning the composition and publication of this material, see Writings on the Poor Laws: Volume I, pp.xvi-xix. Bowring, VIII: 398. Bowring, VIII: 400. See the helpful discussion of Secrecy and Privilege in David Zaret, Origins of Democratic Culture: Printing, Petitions, and the Public Sphere in Early-Modern England (Princeton, 2000), pp.44-67.

17 18 19


Jeremy Bentham, Constitutional Code: Volume 1, eds. F. Rosen and J.H. Burns (Collected Works of Jeremy Bentham; Oxford, 1983), IX.10.A7 (p.284). See, for example, Benthams comments in Of Indirect Means of Preventing Crimes, Principles of Penal Law, Bowring, I: 536-8. Bowring, VIII: 381. Bowring, VIII: 381. Jeremy Bentham, Panopticon; or, The Inspection-House (1791), Bowring, IV: 46. Bowring, VIII: 392. Jeremy Bentham, Political Tactics, eds. Michael James, Cyprian Blamires and Catherine Pease-Watkin (Collected Works of Jeremy Bentham; Oxford, 1999), p.37. Jeremy Bentham, Rationale of Judicial Evidence, ed. John Stuart Mill (1827), Bowring, VI: 355. Also see Constitutional Code, Book II, chapter 12, Section 14, Art. 1 (Bowring, IX: 493): In the darkness of secrecy, sinister interest and evil in every shape, have full swing. Only in proportion as publicity has place can any of the checks, applicable to judicial injustice, operate. Where there is no publicity there is no justice.


22 23 24 25 26


28 29 30 31

Bentham, Political Tactics, p.36. Bowring, VIII: 380. Constitutional Code, II.A.2 (p.19). Bentham provides an example of this dynamic in the Constitutional Code, where he explains that the partisan competition among members of the legislative assembly naturally invites

appeals and greater scrutiny by members of the Public Opinion Tribunal; see Constitutional Code, VI.31.A.37 (p.128).

J.S. Mill, Bentham, Essays on Ethics, Religion and Society, ed. J.M. Robson, (Collected Works of John Stuart Mill; Toronto, 1969), p.79. This is a major theme of Humes Bentham and Bureaucracy; see especially chapter 8. In addition to the Constitutional Code, Bentham developed his theory of democratic government over a series of works that accompanied his work on the code itself. My summary here draws heavily upon his First Principles Preparatory to Constitutional Code, ed. Philip Schofield (Collected Works of Jeremy Bentham; Oxford, 1989). Also see Official Aptitude Maximized, Expense Minimized (1830), ed. Philip Schofield (Collected Works of Jeremy Bentham; Oxford, 1993); Colonies, Commerce, and Constitutional Law: Rid Yourselves of Ultramaria and Other Writings on Spain and Spanish America (1820-22), ed. Philip Schofield (Collected Works of Jeremy Bentham; Oxford, 1995); ); Securities Against Misrule and Other Constitutional Writings for Tripoli and Greece (1822-3), ed. Philip Schofield (Collected Works of Jeremy Bentham; Oxford, 1990).

33 34

35 36

Constitutional Code, II.A24; and see the further discussion at IX.25.A38-58. Speech to the House of Commons, June 1818; quoted in Jeremy Bentham, Codification Proposal, in Legislator of the World: Writings on Codification, Law and Education, ed. Philip Schofield and Jonathan Harris (Collected Works of Jeremy Bentham; Oxford, 1998), p.303.


Details of these provisions are presented in Hume, Bentham and Bureaucracy. I attempt to explore this administrative design in my, Jeremy Bentham Economy as Applied to Office, forthcoming in Philip Schofield (ed.) [get title!].


See Rosen, Bentham and Representative Democracy, chapter 8, and Hume, Bentham and Bureaucracy, chapter 7. Constitutional Code, VI.31.A33. First Principles Preparatory, p.283; and see Constitutional Code, V.4-5 (pp.35-9). According to the technical terms of Benthams theory of language and fictions, the Public Opinion Tribunal was a fictitious tribunal in the sense that it was linguistically constructed on analogy to other tribunals. Its status as a fictitious entity did not imply for Bentham that its political functions and impacts were in any sense less real or efficacious.

39 40

41 42

Constitutional Code, IX. 3.A3. (p.174) and VI.25.A50 (pp.86-7). Constitutional Code, V.6.A3-4.


Benthams position on the franchise was notoriously radical by early-19th century standards, but he consistently insisted on the (for him, temporary) exclusion of non-readers from the vote. Moreover, his privileging of written political debate implicitly served to repudiate alternative and more volatile forms of popular protest from the conduct of democratic censure of political rule.


Constitutional Code, V.4.A4 (p.36). I explore some of these questions in a forthcoming essay, Bentham and Democracy, Oxford Journal of Legal Studies. Constitutional Code, VI.20.A17. Constitutional Code, IX.25.A54 (p.436). For a characteristic and polemical rendering of this analysis, see Benthams discussion in Indications Respecting Lord Eldon, Official Aptitude Maximized, Expense Minimized, pp.203-89, 307-41. Bentham briefly invokes the same charge in Constitutional Code, at IX.25.A55-A58 (pp.436-7).

45 46 47


Constitutional Code, V.6.A9 (p.39). Also see the material on judicial office cited above at n27. I explore further this area of Benthams democratic program in my, From Judicial Establishment to Democratic Statecraft: Sources of Jeremy Benthams Political Radicalism, forthcoming in Paul Brand (ed.), [get title!].

49 50 51 52

Plan of Parliamentary Reform, Bowring 3: 450. See, for example, the discussion in First Principles Preparatory, pp.17-26, 151-92. Constitutional Code, II.A24 (p.25). See Constitutional Code, chapter 25, section 28, and chapter 26, section 16; Bowring, IX: 624, 635. See Rationale of Judicial Evidence, Book IV; Bowing , VI: 508-85, especially pp.508-13. (The Rationale of Judicial Evidence was first published in 1827 under the editorship of J.S. Mill. Bentham had written most of the material on which this edition was based in the first decade of the 19th century.)


54 55 56 57 58 59

See Constitutional Code, chapter 26, sections 13-15; Bowring, IX: 634-5. Constitutional Code, IX.7.1st.A1 (p.218). Leslie Stephen, The English Utilitarians (3 vols., London, 1900), I: 283. Bowring, VIII: 392. See the Instructional discussion at Constitutional Code, IX.7.1st.A.18-22 (pp.222-5). Constitutional Code, VI.27.A18 (p.98); and see IX.7.1st.A.9 (p.220).


See the overview summary at Constitutional Code, IX.7.1st.A11-12 (p.221), and the clarifying discussion in Rosen, Bentham and Representative Democracy, pp. 121-9, to which I am much indebted. Benthams detailed account of the statistic function occupies Section 7 of chapter 9 of volume 1 of the Constitutional Code (pp.218-67).

61 62

Constitutional Code, IX.7.1st.A.4 (p.219). Constitutional Code, IX.11.A1. (I note below Benthams treatment of exceptions to this general information-elicitative function.) See Constitutional Code, IX, sections 10, 19, 20 (pp.283-90, 366-89). See Constitutional Code, VIII.11.A1, and see sections 10 and 11 generally. Constitutional Code, VIII.3.A10 and also see VIII.12.A1. See Constitutional Code, VI., section 27, especially VI.27.A1, A15, A39, A49-53. Constitutional Code, IX.23.A16. Constitutional Code, IX.25.A30-31. Constitutional Code, IX.10.A1. Constitutional Code, IX.10.A9 n(a) (p.285n). See Rosen, Bentham and Representative Democracy, chapter 7. A cogent instance is found in the general lack of scholarly commentary on the polemical writings on administrative reform that Bentham included in his 1830 Official Aptitude Maximized, Expense Minimized.

63 64 65 66 67 68 69 70 71 72


See, for example, the discussion of bicameral legislative assemblies in First Principles Preparatory, pp.109-12. Constitutional Code, IX.25.A38. Official Aptitude Maximized, Expense Minimized , p.360. Official Aptitude Maximized, Expense Minimized , p.254. (The Leadenhall Street Proprietors is a reference to the stockholders of the East India Company.) See Thomas Paine, Rights of Man (1791-2), especially Part 2, chapters 3 and 5. See Constitutional Code, IX.1.A2, p.170. For Benthams general analysis on the relationship between administrative expense and political corruption under existing constitutional arrangements, see his polemical essays on Defence of Economy Against the Right Honourable Edmund Burke, Defence of Economy Against the Right Honourable George Rose, and Indications Respecting Lord Eldon, in Official Aptitude Maximized, Expense Minimized. For a discussion of these writings, see my Jeremy Bentham: Economy as Applied to Office (forthcoming).

74 75 76

77 78


There is now a large and important body of scholarship devoted to the processes and understandings of public opinion in the political culture of the ancien regime, much of it inspired by and reacting to Jrgen Habermass thesis in The Structural Transformation of the Public Sphere (1962; English translation, 1989). For a fuller discussion and overview of the historical themes introduced in this paragraph, see Part 3 of my, Economy and Polity in Bentham's Science of Legislation, in Stephan Collini, Richard Whatmore and Brian Young (eds.) Economy, Polity and Society: British Intellectual History, 1750-1950 (Cambridge, 2000), pp.10734.


Jeremy Bentham Manuscripts, University College London: cxlix.7; cited in Semple, Benthams Prison, p.57. A Fragment on Government (1776), in A Comment on the Commentaries and A Fragment on Government, eds. J.H. Burns and H.L.A. Hart (London, 1977), p.485. Constitutional Code, VII.13, (p.146). Constitutional Code, VIII.11.A2 (p.162). See Constitutional Code, VIII.11.A7-8. See Constitutional Code, VIII.11.A14-16. Halvy famously concluded that Bentham provided at best an uncertain answer to the question of whether individuals have an equal need of liberty comparable to their acknowledged equal need for happiness; see Growth of Philosophic Radicalism, pp.506ff. For more recent considerations of this interpretative question, see Douglas G. Long, Bentham on Liberty. Jeremy Bentham's idea of liberty in relation to his utilitarianism (Toronto, 1977), and Paul J. Kelly, Utilitarianism and Distributive Justice: Jeremy Bentham and the Civil Law (Oxford, 1990).


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Compare, for example, Constitutional Code, IX.11.A1 and IX.21.A7. See, for example, An Introduction to the Principles of Morals and Legislation (1789), eds. J.H. Burns and H.L.A. Hart (London, 1970), pp.193-4, 225-6. Constitutional Code, IX.11.A4. See Constitutional Code, IX.11.A9, A12-13. See Constitutional Code, IX.11.A11; VIII.11.A6; IX.16.A34. See Constitutional Code, IX.21.A2, A7. Constitutional Code, IX.20.A10. Also see Constitutional Code IX.9.A1-A9, for Benthams general explanation of this inspective function of government.

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Constitutional Code, V.5.A1, A5 (pp.36-7). Bentham refers to this service generically as the Statistic or say Evidence-furnishing function. Constitutional Code, V.6.A2 (pp.39-40). Constitutional Code, VII.1.A1n. Constitutional Code, IX.7.1st.A22 (p.225). Constitutional Code, V.6.A2 (p.40). Constitutional Code, IX.25.A30, and V.6.A2. Fragment on Government, p.399.

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