Bring Back Bentham: 'Open Courts,' 'Terror Trials,' and Public Sphere(s)

Law & Ethics of Human Rights, Forthcoming

Yale Law School, Public Law Working Paper No. 221

89 Pages Posted: 17 Nov 2010 Last revised: 4 Feb 2011

Date Written: November 17, 2010

Abstract

The identification of courts as “open” and “public” institutions is commonplace in national and transnational conventions. But even as those attributes are taken for granted, the privatization of adjudication is underway. This paper explores how - during the last few centuries - public procedures came to be one of the attributes defining certain decision-making institutions as “courts.” The political and theoretical predicates for such practices can be found in the work of Jeremy Bentham, a major proponent of what he termed “publicity,” a practice he commended for various entities from the Panopticon for prisoners to the Parliament and courts for legislators and judges. Bentham argued the utility of publicity in enhancing accuracy, public education, and judicial discipline.

Moving forward in time, I examine various contemporary techniques in several jurisdictions that shift the processes of adjudication toward privatization. Included are the devolving adjudication to less-public government entities such as administrative agencies; outsourcing to private providers; and reconfiguring the processes of courts to render them more oriented toward settlement. For those appreciative of the role courts play in developing and protecting human rights, these new practices are problematic because adjudication can itself be a site offering opportunities to engage in democratic practices.

The odd etiquette entailed in public adjudication under democratic legal regimes imposes obligations on government and disputants to treat each other - before an observant and often times critical public - as equals. Public and private power can be constrained by such performative requirements. When decision making takes place in public, the application of law to fact can engender normative contestation predicated on popular input. This claim of public adjudication’s democratic potential and utilities is, however, not an argument that the judgments provided and the norms developed will necessarily advance a shared view of the public welfare. Hence, while eager to re-engage Bentham, I offer different claims for publicity and less optimism about its consequences.

Suggested Citation

Resnik, Judith, Bring Back Bentham: 'Open Courts,' 'Terror Trials,' and Public Sphere(s) (November 17, 2010). Law & Ethics of Human Rights, Forthcoming; Yale Law School, Public Law Working Paper No. 221. Available at SSRN: https://ssrn.com/abstract=1710640 or http://dx.doi.org/10.2139/ssrn.1710640

Judith Resnik (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-1447 (Phone)
203-432-1719 (Fax)

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