Jeremy Bentham’s Constitutional Code

Bentham and Information ( 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


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


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.


“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).


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).


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).


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.


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




16 For details concerning the composition and publication of this material, see

Writings on the Poor Laws: Volume I, pp.xvi-xix.


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




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).


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.


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



24 Jeremy Bentham, Panopticon; or, The Inspection-House (1791), Bowring, IV:

46.



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.


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.


30 Constitutional Code, II.A.2 (p.19).


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.


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).


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.


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!].


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 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.


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


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).


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.


“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).


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.


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


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.


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).


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”.)


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.


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.


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.

*********************


70 Constitutional Code, IX.10.A9 n(a) (p.285n).

71 See Rosen, Bentham and Representative Democracy, chapter 7.


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


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.



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.)


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 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.


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


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.


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.


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.


90 See Constitutional Code, IX.11.A9, A12-13.


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.


“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).


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.

Jeremy Bentham’s Constitutional Code

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Transcript of Jeremy Bentham’s Constitutional Code