Post on 06-Mar-2015
Bentham and Information (Page 1 of 44)
Jeremy Bentham’s Constitutional Code and the Politics of Information
David LiebermanU.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 early-
17th century judgment, was “a man sent to tell lies abroad for his country’s 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
Bentham and Information (Page 2 of 44)
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 Atlantis’s “Solomon’s 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
Bentham and Information (Page 3 of 44)
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 Bentham’s own plans for the use of
information in a properly-functioning and morally-ordered political community. In
considering Bentham’s 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
1 Sir Henry Wotton, quoted Garrett Mattingly, Renaissance Diplomacy (1955;
Harmondsworth, 1965), p.228.
2 Mattingly, Renaissance Diplomacy, pp.102-111.
3 For a recent discussion of this theme, see Eric H. Ash, Power, Knowledge, and
Expertise in Elizabethan England (Baltimore and London, 2004).
4 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.
5 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.
Bentham and Information (Page 4 of 44)
“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 Bentham’s constitutional proposals.6 My aim here is to examine these neglected
features of Bentham’s 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: Bentham’s 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 Bentham’s projects
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 kingdom’s poor and indigent, including
individuals as well as families, some of whom potentially might remain resident in the
6 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 Halévy, The Growth of Philosophic Radicalism
(1901-4), trans. Mary Morris (London, 1972), pp.403-32.
7 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
Bentham’s 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).
Bentham and Information (Page 5 of 44)
company’s 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, Post-
obit-benefit Banks, Charitable Remittance Offices, Frugality Inns, Dispensaries, Lying-in
Hospitals, Midwifery Lecture Schools, Veterinary Lecture Schools, Military Exercise
Schools and Marine Schools.”8
Information – its collection and distribution – was central to the poor relief
project. As an application of Inspection House architecture, the Pauper Panopticons were
8 J.R. Poynter, Society and Pauperism: English Ideas on Poor Relief, 1795-1834
(London, 1963), pp.139-40. Bentham’s 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 Bentham’s Silent Revolution (Berkeley, CA., 1981).
Bentham and Information (Page 6 of 44)
themselves constructed as perfectly fabricated environments for the collection of
information about the population they housed. This feature went directly to the
Panopticon’s logic of surveillance and discipline (likely, best-known to a modern reader
through the vehicle of Foucault’s 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
9 Michel Foucault, Discipline and Punish, trans. Alan Sheridan (New York, 1979),
pp.200-9. For a fuller and more balanced treatment, see Janet Semple, Bentham’s
Prison: A Study of the Panopticon Penitentiary (Oxford, 1993).
10 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).
Bentham and Information (Page 7 of 44)
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
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
11 See Bowring, VIII: 424-8.
12 Bowring, VIII: 425.
Bentham and Information (Page 8 of 44)
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.
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 poor”14); 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 program’s assigned goals, which was to
13 Bowring, VIII: 364.
14 Bowring, VIII: 362.
15 Bowring, VIII: 365.
16 For details concerning the composition and publication of this material, see
Writings on the Poor Laws: Volume I, pp.xvi-xix.
Bentham and Information (Page 9 of 44)
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
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, Bentham’s 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 Bentham’s 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 state’s 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
17 Bowring, VIII: 398.
18 Bowring, VIII: 400.
Bentham and Information (Page 10 of 44)
Bentham’s 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
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 well-
established “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 Bentham’s 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 Bentham’s
design, we may recall, was to derive profits from the productive labor within the Pauper
19 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.
20 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).
Bentham and Information (Page 11 of 44)
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 Bentham’s 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
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
21 See, for example, Bentham’s comments in “Of Indirect Means of Preventing
Crimes”, Principles of Penal Law, Bowring, I: 536-8.
Bentham and Information (Page 12 of 44)
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 institution’s 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,
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 institution’s operations
22 Bowring, VIII: 381.
23 Bowring, VIII: 381.
24 Jeremy Bentham, Panopticon; or, The Inspection-House (1791), Bowring, IV:
46.
25 Bowring, VIII: 392.
Bentham and Information (Page 13 of 44)
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 Bentham’s 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
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
26 Jeremy Bentham, Political Tactics, eds. Michael James, Cyprian Blamires and
Catherine Pease-Watkin (Collected Works of Jeremy Bentham; Oxford, 1999),
p.37.
Bentham and Information (Page 14 of 44)
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
government itself.30 Bentham failed to coin a similar short-hand tag to highlight the
27 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.”
28 Bentham, Political Tactics, p.36.
29 Bowring, VIII: 380.
30 Constitutional Code, II.A.2 (p.19).
Bentham and Information (Page 15 of 44)
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
31 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).
32 J.S. Mill, “Bentham”, Essays on Ethics, Religion and Society, ed. J.M. Robson,
(Collected Works of John Stuart Mill; Toronto, 1969), p.79.
Bentham and Information (Page 16 of 44)
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
entire system of government, rather than for one of its component parts. In part, the
change bespoke Bentham’s 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.
Bentham’s 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
33 This is a major theme of Hume’s Bentham and Bureaucracy; see especially
chapter 8.
34 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).
Bentham and Information (Page 17 of 44)
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 “monarchico-
aristocratical despotism with a spice of anarchy”35 - served as Bentham’s 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
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. Bentham’s Constitutional
Code was an extended exercise in identifying, delineating, and defending these political
35 Constitutional Code, II.A24; and see the further discussion at IX.25.A38-58.
Bentham and Information (Page 18 of 44)
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 Bentham’s 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
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
36 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.
37 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!].
Bentham and Information (Page 19 of 44)
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
mass of securities against the abuse of power,” Bentham insisted, “the greatest part …
unavoidably depends upon the power of the Public Opinion Tribunal.”39
38 See Rosen, Bentham and Representative Democracy, chapter 8, and Hume,
Bentham and Bureaucracy, chapter 7.
39 Constitutional Code, VI.31.A33.
Bentham and Information (Page 20 of 44)
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
functionary’s 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
40 First Principles Preparatory, p.283; and see Constitutional Code, V.4-5 (pp.35-
9). According to the technical terms of Bentham’s 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.
41 Constitutional Code, IX. 3.A3. (p.174) and VI.25.A50 (pp.86-7).
42 Constitutional Code, V.6.A3-4.
Bentham and Information (Page 21 of 44)
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
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 Bentham’s 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 subject-
many “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
Bentham and Information (Page 22 of 44)
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
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.
43 Bentham’s 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.
44 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.
45 Constitutional Code, VI.20.A17.
46 Constitutional Code, IX.25.A54 (p.436).
Bentham and Information (Page 23 of 44)
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 England’s limited monarchy and
constitutional balance. He would leave talk of the kingdom’s “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
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
47 For a characteristic and polemical rendering of this analysis, see Bentham’s
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).
48 Constitutional Code, V.6.A9 (p.39). Also see the material on judicial office cited
above at n27. I explore further this area of Bentham’s democratic program in my,
“From Judicial Establishment to Democratic Statecraft: Sources of Jeremy
Bentham’s Political Radicalism”, forthcoming in Paul Brand (ed.), [get title!].
49 Plan of Parliamentary Reform, Bowring 3: 450.
50 See, for example, the discussion in First Principles Preparatory, pp.17-26, 151-
92.
Bentham and Information (Page 24 of 44)
“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.
*********************
Bentham’s 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
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
51 Constitutional Code, II.A24 (p.25).
Bentham and Information (Page 25 of 44)
where both officials served. The Registrar’s assembled data would be officially
displayed “the purpose of maximizing publicity.” 52
Bentham’s 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 Registrar’s “genealogical-recordation functions” captured the kinds of
basic social data Bentham found unavailable decades earlier in researching the problem
52 See Constitutional Code, chapter 25, section 28, and chapter 26, section 16;
Bowring, IX: 624, 635.
53 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 See Constitutional Code, chapter 26, sections 13-15; Bowring, IX: 634-5.
Bentham and Information (Page 26 of 44)
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 state’s 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 Bentham’s
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 Bentham’s 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, all-
comprehensiveness, non-redundance – thence, instructiveness and non-deceptiveness;”59
Bentham and Information (Page 27 of 44)
as well as uniformity of expression and organization, so that records could readily
communicate across the 13 major administrative departments, and from the
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 Bentham’s sincerity in his avowed aim
“to optimize the quality” and “to maximize the quantity” of government information.61
55 Constitutional Code, IX.7.1st.A1 (p.218).
56 Leslie Stephen, The English Utilitarians (3 vols., London, 1900), I: 283.
57 Bowring, VIII: 392.
58 See the “Instructional” discussion at Constitutional Code, IX.7.1st.A.18-22
(pp.222-5).
59 Constitutional Code, VI.27.A18 (p.98); and see IX.7.1st.A.9 (p.220).
Bentham and Information (Page 28 of 44)
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
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 60 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. Bentham’s detailed account of the “statistic
function” occupies Section 7 of chapter 9 of volume 1 of the Constitutional Code
(pp.218-67).
61 Constitutional Code, IX.7.1st.A.4 (p.219).
62 Constitutional Code, IX.11.A1. (I note below Bentham’s treatment of exceptions
to this general “information-elicitative function”.)
Bentham and Information (Page 29 of 44)
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 state’s 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
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
63 See Constitutional Code, IX, sections 10, 19, 20 (pp.283-90, 366-89).
64 See Constitutional Code, VIII.11.A1, and see sections 10 and 11 generally.
65 Constitutional Code, VIII.3.A10 and also see VIII.12.A1.
Bentham and Information (Page 30 of 44)
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 state’s 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”,
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”
66 See Constitutional Code, VI., section 27, especially VI.27.A1, A15, A39, A49-
53.
67 Constitutional Code, IX.23.A16.
68 Constitutional Code, IX.25.A30-31.
Bentham and Information (Page 31 of 44)
until he had progressed far into the drafting of the Constitutional Code. 70 The expansion
of the discussion over the course of the Code’s 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 Bentham’s 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 Bentham’s 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. Bentham’s 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
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.
*********************
69 Constitutional Code, IX.10.A1.
70 Constitutional Code, IX.10.A9 n(a) (p.285n).
71 See Rosen, Bentham and Representative Democracy, chapter 7.
Bentham and Information (Page 32 of 44)
In treating many features of Bentham’s 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 European-
wide 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 Britain’s political
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 Bentham’s
Bentham and Information (Page 33 of 44)
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 Bentham’s 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
“constitutional meanings” of the Founders. And this neglect reflects quite reasonable
72 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.
73 See, for example, the discussion of bicameral legislative assemblies in First
Principles Preparatory, pp.109-12.
74 Constitutional Code, IX.25.A38.
Bentham and Information (Page 34 of 44)
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 Bentham’s most distinctive contributions to liberal
constitutional theory.
The preoccupation with information additionally provides insight into broader
features of Bentham’s 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 Europe’s 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
75 Official Aptitude Maximized, Expense Minimized , p.360.
76 Official Aptitude Maximized, Expense Minimized , p.254. (The “Leadenhall
Street Proprietors” is a reference to the stockholders of the East India Company.)
Bentham and Information (Page 35 of 44)
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.
77 See Thomas Paine, Rights of Man (1791-2), especially Part 2, chapters 3 and 5.
78 See Constitutional Code, IX.1.A2, p.170. For Bentham’s 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).
Bentham and Information (Page 36 of 44)
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 pre-
publication 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
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
79 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 Jürgen Habermas’s 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.107–34.
80 Jeremy Bentham Manuscripts, University College London: cxlix.7; cited in
Semple, Bentham’s Prison, p.57.
81 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.
Bentham and Information (Page 37 of 44)
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. Bentham’s 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
government materials that otherwise would remain closed. Instead, Bentham’s guiding
principle that “publicity will at all times be maximized”83 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
Bentham and Information (Page 38 of 44)
justification and care. Bentham’s 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 state’s obligations to display itself so thoroughly
to the community was the state’s power to collect and record the information it was
required to publicize. Scholarly discussion of the liberal and authoritarian elements in
Bentham’s program, and the interpretative debate over which of these elements was 82 Constitutional Code, VII.13, (p.146).
83 Constitutional Code, VIII.11.A2 (p.162).
84 See Constitutional Code, VIII.11.A7-8.
85 See Constitutional Code, VIII.11.A14-16.
Bentham and Information (Page 39 of 44)
dominant, has tended (unsurprisingly) to emphasize his treatment of law and legal
institutions. On the one hand, there is the liberalizing thrust of Bentham’s rejection of
various forms of paternalist legislation. On the other is Bentham’s 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 Code’s 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
86 Halévy 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).
87 Compare, for example, Constitutional Code, IX.11.A1 and IX.21.A7.
Bentham and Information (Page 40 of 44)
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
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 state’s 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 citizen’s “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 88 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.
89 Constitutional Code, IX.11.A4.
90 See Constitutional Code, IX.11.A9, A12-13.
Bentham and Information (Page 41 of 44)
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
material thus secured.92 And in considering the government’s 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
91 See Constitutional Code, IX.11.A11; VIII.11.A6; IX.16.A34.
92 See Constitutional Code, IX.21.A2, A7.
93 Constitutional Code, IX.20.A10. Also see Constitutional Code IX.9.A1-A9, for
Bentham’s general explanation of this “inspective function” of government.
Bentham and Information (Page 42 of 44)
“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
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
94 Constitutional Code, V.5.A1, A5 (pp.36-7). Bentham refers to this service
generically as the “Statistic or say Evidence-furnishing function.”
95 Constitutional Code, V.6.A2 (pp.39-40).
96 Constitutional Code, VII.1.A1n.
97 Constitutional Code, IX.7.1st.A22 (p.225).
98 Constitutional Code, V.6.A2 (p.40).
Bentham and Information (Page 43 of 44)
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
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.
99 Constitutional Code, IX.25.A30, and V.6.A2.
100 Fragment on Government, p.399.
Bentham and Information (Page 44 of 44)