Bentham and Information (Page 1 of 74) Jeremy Bentham’s Constitutional Code and the Politics of Information David Lieberman U.C. Berkeley [Work-in-progress; December 2007] The acquisition and deployment of useful information long formed a basic part of state-building in the early- modern and modern west. Humanist scholars debated the proper forms of education for princes and their counselors, and they, in turn, sought to cultivate various forms of expertise and knowledge in their statecraft. The office of resident ambassador – an innovation of the Italian Renaissance that proved enduring – offers an illustrative example. The ambassador, according to one, well-informed early- 17 th 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
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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,
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
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