The Soul of Justice: Bentham on Publicity, Law, and the Rule of Law

Abstract

Publicity is a central concept of Bentham’s theory of law and governing. In Bentham’s view, security of society and its individual members is the focal aim and fundamental task of law. But law must be made, administered, adjudicated, and enforced; so if law is introduced into a political community, human beings must be entrusted with making, applying, and enforcing that law. Although law is the primary mode or instrument of governing, law governs only through the efforts of those who govern with it. But then, even as it seeks to secure us against the abuse of power, it creates new opportunities and resources for such abuse. Who is to guard the guardians? In Bentham’s view, the only effective solution to this problem lies in publicity, a robust and comprehensive system of public oversight of public power in all its forms.

The rule of law is robust in a political community only when law rules, and law can only when there is among officials and law-subjects a rich ethos of reciprocal responsibilities and commitments to holding each other accountably under that law. This view articulates an ethics of the rule of law, but we also need an articulated account of the infrastructure of the rule of law, of the social conditions in which it thrives and the institutions that enable and empower it. Bentham’s reflections on publicity and “securities against misrule” promise to address this need and offer something of value to the long tradition of thinking about the rule of law. They offer not an alternative to the idea and ideology of the rule of law, but rather than an elaborated conception of the rule of law.

Keywords: rule of law, publicity, Bentham, securities against misrule, public opinion tribunal, accountability