This book examines the concept of publicity from a philosophical perspective. Nearly all our time will be spent on work that has been written in the past fifty or so years. By focusing almost exclusively on contemporary writing, I do not mean to suggest that the idea of publicity does not appear in the history of political thought. Quite the contrary. Among the many things the great political thinkers disagree about is the importance of transparency in government. To offer a taste of this debate, this chapter develops a selective genealogy of the concept of publicity as it appears throughout the history of political thought, beginning with Plato and ending with Henry Sidgwick. The story unearthed is a complicated one. Theorists that many likely suspect find no role for transparency in government actually embrace openness to a considerable extent. Other thinkers who are often held to be champions of publicity actually allow for considerable degrees of secrecy.
Beyond its intrinsic interest, there is instrumental value to tracing a genealogy of publicity. Two benefits stand out in particular. First, by looking to what the giants of the past had to say about transparency in government, we find a greater diversity of positions than we currently see. Today, the value of publicity goes almost unquestioned by philosophers. A look to history shows that this was not always so. Some flatly reject openness in government, embracing opacity in its place. Second, looking to the past shows how the concept of publicity can take on many different forms. Sometimes it refers to being offered justifications for the laws one lives under; sometimes it means that persons must have access to the philosophical theories inspiring the political systems they inhabit; sometimes it is used as a kind of test to probe the morality of public policies; sometimes it means that persons should be able to carefully monitor what public officials are up to; and so on. The historical overview thus sets the stage for our broad survey of publicity as it appears in several different forms and contexts among contemporary political philosophers.
Political philosophy arguably began with Plato’s Republic, so it is a fitting place to start our examination of publicity. The vision of society presented in the Republic is not friendly to our liberal sensibilities. There is talk of a hierarchical social order governed by philosopher-rulers, state censorship of poetry, an absence of private property, and the abolition of the family, to name a few striking features. Though the exercise is certainly hyperbolic, it is understandable that some have traced the roots of fascism back to Plato’s sketch of utopia (e.g., Reference HayekHayek 2007: 174; Reference PopperPopper 2013: 132). It should thus be no surprise that openness and transparency do not play a large role in Plato’s major work. Quite the opposite. One of the central ideas at the heart of the Republic is the “noble lie.”In Book III of the Republic, Socrates and Glaucon discuss the rearing of the guardian class and their separation from the other inhabitants of the city. Worried that citizens might reject such a stratified social order, Socrates proposes the inhabitants of Kallipolis be told a “noble falsehood” that will generate support for the city (414c). Writes Plato:
“All of you in the city are brothers,” we’ll say to them in telling our story, “but the god who made you mixed some gold into those who are adequately equipped to rule, because they are most valuable. He put silver in those who are auxiliary and iron and bronze in the farmers and other craftsmen. For the most part you will produce children like yourselves, but, because you are all related, a silver child will occasionally be born from a golden parent, and vice versa, and all the other from each other. So the first and most important command from the gods to the rulers is that there is nothing that they must guard better or watch more carefully than the mixture of the metals in the souls of the next generation. If an offspring of theirs should be found to have a mixture of iron or bronze, they must not pity him in any way, but give him the rank appropriate to his nature and drive him out to join the craftsmen and farmers. But if an offspring of these people is found to have a mixture of gold or silver, they will honor him and take him up to join the guardians or auxiliaries, for there is an oracle which says that the city will be ruined if it ever has an iron or a bronze guardian.”
There are three things to note about the noble lie. First, the noble lie is not told by the rulers of Kallipolis to the people. Indeed, the rulers themselves believe it to be true (414d). Accordingly, it is not totally clear who is telling the noble lie in the first place. It might be that those leaders who founded the city tell the noble lie to all the inhabitants, including the city’s future leaders. After the founders pass on, there is no one left who knows that the noble lie is a lie.
Second, it can be reasonably debated whether the noble lie is actually a lie in the first place. It might instead be interpreted as a founding myth.Footnote 1 To give a familiar example, the story of George Washington cutting down the cherry tree is false, but the point of telling the story is not its veracity. Rather, the fable of the first president serves as an important homily for young children about the value of honesty (Reference JayJay 2010: 7–8). The same may be true with the noble lie. Perhaps it is intended not to deceive but to communicate an important lesson about the nature of leadership and accepting one’s place in society for the greater good. This interpretation may be correct, but Plato endorses clearer examples of government deception later in the Republic. For instance, when discussing how sexual relationships and the rearing of children are to proceed, he suggests that the city’s leaders will need to set up a rigged lottery that selects sexual partners (459d–460b). The lottery will be rigged to ensure genetically desirable sexual partnerships without letting the citizenry learn that marriages have been arranged along such lines. The undesirables who don’t get to mate will think it’s just bad luck. This is a clear case of deception.
And third, the conditions under which rulers may permissibly deceive the citizenry are quite narrow. As Reference DombrowskiDaniel Dombrowski (1997: 575) points out, “Plato is clear, however, that what it would take to justify a ‘noble’ lie would be to establish as fact that the rulers are a superior sort of people. It is crucial to notice that for Plato it is right for the ruler to tell the gennaion pseudos… because of the kind of individual the ruler is.” To put it another way, it is not just any government official who may tell noble lies to the populace; only those who have proven themselves to be virtuous may engage in deception. David Lay Williams agrees. He interprets Plato as holding that the power to deceive “can only be entrusted to those who have demonstrated their immunity to the temptations of power through decades of challenges. Only then can he authorize a radical power like the Noble Lie – one rich in potential for spectacular abuse” (Reference WilliamsWilliams 2013: 375). Plato’s endorsement of deception and opacity is thus not indiscriminate. Only the leader who is proven excellent may spread lies.
That only virtuous rulers may deceive allows Plato to avoid obvious objections. For instance, Reference BokSissela Bok (1978: 169) criticizes Plato because “we cannot take for granted either the altruism or the good judgment of those who lie to us, no matter how much they intend to benefit us. We have learned that much deceit for private gain masquerades as being in the public interest. We know how deception, even for the most unselfish motive, corrupts and spreads.” Bok points out how opacity in governance can often go astray because we cannot trust the motives of the rulers who perpetuate it. But Plato, we have seen, is only comfortable permitting rulers to deceive in cases in which we can take for granted the leader’s motives. Plato says that only the leader who is proven virtuous and excellent may deceive; Bok worries about deception used as a tool among the flawed and corruptible.
In fact, Plato is against deception in government once we assume a more realistic picture of political leadership. Here we can turn our attention to the Laws, a later piece in which Plato sketches the rough outline of a social order he calls Magnesia. There are many important differences between the Republic and the Laws that scholars have meticulously dissected. The institutions constituting Magnesia are far different from those found in Kallipolis. Gone are philosopher-rulers and the rigid class structure. Instead, we see the presence of democracy, an increased role for political freedom, and a reliance on the rule of law (Reference WilliamsWilliams 2013: 366). Important for our purposes, there is no mention of opacity or deception in the Laws. Of course, the absence of such discussion in the sketch of Magnesia does not imply that Plato was against those things. Perhaps we find here an omission rather than a rebuke.Passages from the Laws suggest otherwise. Plato, for instance, tells us that “every citizen of every state should make a particular effort to show that he is straightforward and genuine, not shifty, and try to avoid being hoodwinked by anyone who is” (738e). Moreover, when citizens “have no insight into each other’s characters and are kept in the dark about them, no one will enjoy the respect he merits or fill the office he deserves or obtain the legal verdict to which he is entitled” (738e). As a final example, Plato tells us that
truth heads the list of all things good, for gods and men alike. Let anyone who intends to be happy and blessed be its partner from the start, so that he may live as much of his life as possible a man of truth. You can trust a man like that, but not the man who is fond of telling deliberate lies.
What accounts for the change between the Republic and the Laws? There are two general answers. One is that Plato has a heightened understanding of the capacities of citizens in the latter work. Because the general population is more capable of virtue, we can have more democratic institutions and publicity in government. Reference SamarasThanassis Samaras (2002: 341), for instance, argues that in Magnesia, virtue “becomes a quality which can be achieved even by common people.”Footnote 2 A quite different answer is that Plato adopts a more pessimistic understanding of the human condition in the Laws. As Reference KloskoGeorge Klosko (1986: 243) writes, “In the Laws, his disillusionment was all but complete. Human beings are yanked about like puppets on strings, and all of their lives, beginning before birth, must be dedicated to training them to resist.”
Reference WilliamsWilliams (2013: 378) thinks there is truth in both answers: “For while [Plato] apparently inflates his assessment of humanity in general, he simultaneously deflates his estimate of humanity when in possession of political power.” That is, Plato has an exalted understanding of the capacities of citizens but a more pessimistic view of rulers. Indeed, Plato tells us in the Laws that “human nature, as we’ve explained, is never able to take complete control of all human affairs without being filled with arrogance and injustice” (713c). Such remarks suggest that Plato is working with a less idealized, more realistic picture of political leadership in the Laws. The leaders of Magnesia do not possess the exalted capacities those in Kallipolis do. We cannot assume they will be virtuous and excellent. Instead, they are people like you and me, subject to corruption and abuse of power.
The role of transparency and opacity in the political thought of Plato is thus far more nuanced than many critics let on. The case for deception at the foundations of government is restricted to an incredibly narrow set of idealized conditions. And, when thinking about more realistic circumstances, Plato seems to embrace transparency. It would thus be a mistake to think that Plato endorses deception as a principle for actual governance. Contra the critics who focus on the noble lie, deception in governance certainly plays a much smaller role in Plato’s thought than might initially seem to be the case, and there is indeed a Platonic argument to be made for transparency.
Few would be surprised if Thomas Hobbes was an enemy of publicity. After all, Hobbes’s proposed system of government – in which unlimited power is vested in an absolute sovereign – strikes many as illiberal, and we do not typically associate illiberal governance with openness and transparency. This initial impression is mistaken. Reference Waldron and RortyJeremy Waldron (1998, Reference Waldron2001) convincingly argues that there is an important role for publicity in Hobbes’s political thought. Waldron further argues that the presence of publicity shows Hobbes to be a protoliberal thinker who embraces Enlightenment ideals, as other scholars have suggested (e.g., Reference LloydLloyd 2009: 376–381).
Waldron begins by introducing two conceptions of publicity, what he calls wholesale and retail. According to the less demanding retail conception, publicity requires that “particular laws always be accompanied by reasons which show why exactly the law is justified – that is, reasons which show what its purpose is, and what are the assumptions, facts and moral, that underlie it” (Reference WaldronWaldron 2001: 448). The basic idea is that all laws must come packaged with an explanation of the law’s rationale, given to those who are subject to the law. Perhaps surprisingly, Hobbes embraces the retail conception of publicity. When describing the duties of the sovereign, he tells us that the sovereign must pass laws that are “perspicuous.” Perspicuity is to be found “not so much in the words of the law itself” as in the “declaration of the causes and motives for which it was made” (Reference Hobbes and CurleyHobbes 1994: 229). The sovereign, in other words, must explain the purpose and motivation behind each law. Perspicuity is important for Hobbes because it helps citizens understand what the law demands. When “the meaning of the legislator is known, the law is more easily understood by few than many words” (Reference Hobbes and CurleyHobbes 1994: 229). This reduces the likelihood of conflict grounded in interpretive disagreements.
More demanding is the wholesale conception of publicity, which requires that citizens be given reasons explaining the entire apparatus and foundations of their government. In Hobbes’s case, persons living under the absolute sovereign must know why they live under this form of government rather than another; they must know the powers of the sovereign; they must know the powers they themselves retain; and so on. Hobbes also embraces the wholesale conception of publicity. Indeed, ensuring wholesale publicity is one of the most important duties of the sovereign. Reference Hobbes and CurleyWrites Hobbes (1994: 220), “It is against his duty to let the people be ignorant or misinformed of the grounds and reasons of those his essential rights … the grounds of these rights have the rather need to be diligently and truly taught.” To ensure citizens are properly educated, Reference Hobbes and CurleyHobbes (1994: 496) thinks Leviathan itself “may be profitably printed, and more profitably taught in the Universities.”
This insistence that persons be informed about the true foundations of their system of government might strike some as puzzling. What about Hobbes’s overall theoretical apparatus requires such a demanding account of publicity? If anything, there seem to be good Hobbesian reasons to reject wholesale publicity. Hobbes is typically understood as a theorist of stability. What matters most is avoiding the state of nature, in which life is solitary, poor, nasty, brutish, and short. It is plausible to think there will be cases in which deception about the true nature of the state could advance this goal. The ignorant are often more docile. And, if such is the case, then wouldn’t Hobbes embrace secrecy?
Waldron addresses this puzzle by first noting that questions of politics concern matters of life and death, war and peace. Because this is so, “it is a domain of reasoning in which individual men have the strongest possible incentive to be as careful as they can” (Reference WaldronWaldron 2001: 456). That is, given what’s at stake in politics, persons have a strong incentive to acquire true beliefs. That being the case, it is unlikely that misleading statements issued by the sovereign will survive scrutiny from those subject to her demands: “People have greater reason to be diligent in seeking the truth where their survival interests are at stake, and … this is why Hobbes’s sovereign should not be in the business of misleading them about the ground of his authority” (Reference WaldronWaldron 2001: 456). To put it another way, given the incentive persons have to inform themselves about politics, it is simply impossible for the sovereign to persistently fool her subjects. Honesty becomes the best policy.
Hobbes’s argument for wholesale publicity is thus ultimately pragmatic. This may seem like an uninspiring defense of openness, but Waldron does not see it like that. According to him, “The political force of Enlightenment consists in the fact that it is too much of a risk to try telling lies to people who can reason about something they have reason to regard as important” (Reference Waldron and RortyWaldron 1998: 143). The idea here is that through Hobbes’s insistence on publicity we find an exalted understanding of the reasoning capacities of individuals. People are not dumb enough to be tricked by the sovereign. To respect these capacities, the sovereign must tell the truth. This reverence for the reasoning capacities of ordinary citizens seemed absent in our overview of Plato’s Republic, though perhaps it was present in the Laws.
The retail and wholesale conceptions do not exhaust the role of publicity in Hobbes’s thought. Also important is the idea of public worship. According to Reference Hobbes and CurleyHobbes (1994: 242), the commonwealth “ought also to exhibit to God but one worship,” the main “property whereof is to be uniform.” Hobbes’s insistence on public and uniform worship is puzzling for a few reasons. First off, Reference Hobbes and CurleyHobbes (1994: 337) is quite clear that the sovereign cannot command a person’s faith: “Faith hath no relations to, nor dependence at all, upon compulsion or commandment.” Beyond this, Hobbes allows for private worship, in which individuals can honor God in any way they please, so long as it is done behind closed doors. He tells us that worship “is in secret free,” and by “free” he means that worship is done in a way “such as the worshiper thinks fit” (Reference Hobbes and CurleyHobbes 1994: 238–239). Indeed, some think Hobbes’s remarks on private worship suggest that he was more friendly to religious toleration than might initially seem to be the case (e.g., Reference RyanRyan 2012: ch. 10; Reference AbizadehAbizadeh 2013; Reference BejanBejan 2017: ch. 3).So, if the sovereign cannot command religious beliefs, and if persons can worship privately in any way they see fit, why then insist on public worship done in a uniform manner? Reference WaldronWaldron (2008a) once again offers insight. The general idea is that, as a conceptual matter, worship in public fails to be worship at all if not done uniformly. This requires some explanation. As a starting point, worship can be understood as a form of honoring God. But the very idea of honoring, for Hobbes, requires a public element. He writes:
Worship consists in the opinion of the beholders; for if to them the words or actions by which we intend honour seem ridiculous, and tending to contumely, they are no worship, because no signs of honour; and no signs of honour, because a sign is not a sign to him that giveth it, but to him to whom it is made (that is, to the spectator).
According to Waldron’s reconstruction, honoring is a three-person relation: there is person A (who is doing the honoring), person B (who is honored), and person C (an onlooker). As Reference WaldronWaldron (2008a: 37) puts it, “Honor, Hobbes implies, is a matter of A offering to B signs which any other person, C, looking on will understand as signs of high regard.” Filling in the variables, if a citizen is to properly honor God, then other public observers must recognize the citizen’s honoring as a genuine sign of esteem.
This is why public worship must be uniform and directed by the sovereign. If persons worship publicly in a manner not intelligible to observers, then they have failed to honor God. To avoid this, the sovereign dictates public worship so it is done in a uniform manner that is intelligible to all. Waldron’s solution also explains why private worship, according to Hobbes, can be done in any manner the worshiper sees fit. When we worship in private and others cannot observe us, we cannot fail to honor God through others’ failing to understand our form of worship, for by hypothesis there is no observer. But as soon as others can observe us, when our worship is “in the sight of the multitude,” we are “never without some restraint, either from the laws or from the opinion of men” (Reference Hobbes and CurleyHobbes 1994: 239).
When it comes to publicity, Hobbes was ahead of his time. In the retail and wholesale conceptions, he seemed to embrace liberal ideals of transparency before there was even a liberalism. Indeed, Hobbes’s work on publicity anticipates two conceptions of publicity found in the contemporary political-philosophy literature. John Rawls’s notion of “full publicity” requires that persons be educated concerning the true foundations of their government, to the point that they must know the theoretical and philosophical literature that informed the establishment of their government. This is similar to Hobbes’s wholesale conception of publicity and his imperative that Leviathan be taught in the universities. I examine this account of publicity in Chapter 8. Another conception of publicity found in the work of Rawls requires there be mutual knowledge that everyone accepts the same theory of justice. Some hold that this knowledge is established through public reasoning, which is akin to a kind of public worship. I examine this account of publicity in Chapter 7.
Immanuel Kant is typically understood to be the first theorist of publicity. When Rawls introduces the idea of publicity in A Theory of Justice, it is Kant whom he cites. He tells us that “publicity is clearly implied in Kant’s notion of the moral law, but the only place I know of where he discusses it expressly is in Perpetual Peace” (Reference RawlsRawls 1971: 133n8). Reference Luban and GoodinDavid Luban (1996: 154–157) also thinks the idea of publicity originates with Kant. Though there certainly is a discussion of publicity in Kant, he means something quite different by the term than what is typically meant. Indeed, publicity for Kant does not require any kind of actual transparency in government. Rather, publicity only requires a kind of hypothetical transparency. And as we shall see, hypothetical transparency is quite consistent with actual secrecy. So though the idea of publicity does appear in Kant, it lacks the bite it carries when wielded by other philosophers. Nonetheless, it is worth exploring more carefully the idea of publicity as it appears in Kant’s political thought.Let us begin by turning to Perpetual Peace. Here publicity is meant to serve as a test for determining the moral status of legislative acts. If a legislative act passes the publicity test, then it is just; if it fails to pass the publicity test, then it is unjust.Footnote 3 Quite explicitly: “One can call the following proposition the transcendental formula of public right: ‘All actions that affect the rights of other men are wrong if their maxim is not consistent with publicity’” (Reference Kant and HumphreyKant 1983: 135). What, though, does it mean for a maxim to be “consistent” with publicity? A maxim is consistent with publicity if it can be revealed to the public without being opposed by the public and without frustrating its central aims. A maxim fails to be consistent with publicity if it violates at least one of these conditions: if its revelation would induce the public’s opposition, or if its revelation would result in its own failure. In Reference Kant and HumphreyKant’s (1983: 135–136) words,
If my maxim cannot be openly divulged without at the same time defeating my own intention, that is, must be kept secret for it to succeed, or if I cannot publicly acknowledge it without thereby arousing everyone’s opposition to my plan, then this necessary and universal, and thus a priori foreseeable, opposition of all to me could not have come from anything other than the injustice with which it threatens everyone.
According to Kant, it is unjust for legislator L to propose policy p if persons would oppose p, or p would fail to achieve its aims, if the maxim that legislator L acts upon in proposing p were made public. On the flipside, legislator L’s proposal of policy p is just if persons would not oppose p, and p would still succeed in its aims, if the maxim L acts upon in proposing p were made public. We thus have an account of the justice and injustice of legislative acts in the form of a hypothetical publicity test.Footnote 4 Though I think it is reasonably clear what Kant means, several nuances deserve careful discussion.
As a point of departure, Kant’s publicity test is clearly hypothetical in nature. It says that if one publicizes one’s maxim, then one must not encounter opposition or sabotage one’s ends; it does not say that one must, in fact, publicize one’s maxim. Accordingly, governance institutions in the real world can be perfectly consistent with Kant’s publicity test while nonetheless operating in complete secrecy. This will come as a surprise to many, especially the followers of Rawls who, inspired by Kant, insist on actual transparency in government. Nonetheless, this is consistent with a literal reading of Kant and is consistent with how the secondary literature interprets the publicity test. In the words of Kant scholar Reference DavisKevin R. Davis (1991: 409), “As a consequence of making publicity a transcendental condition of justice, Kant actually permits extreme degrees of secrecy and suppression in politics. This consequence will come as a surprise to those who are accustomed to reading Kant’s work as a cornerstone of liberal thought.”
As an example of this, suppose Althea the legislator supports the policy of raising taxes. She supports this policy so that degrading public infrastructure can be repaired. If the public were to learn this maxim, then no one would oppose the tax hikes and her policy ends would not be frustrated. Her actions thus pass the publicity test and are just. Yet, as it happens, no actual justification is given to the public concerning why its taxes have increased. Althea keeps secret her motivation for passing the law. What is more, when citizens ask for a justification of the tax increase, they are met with silence. Here we find what seems to be a classic case of opaque government, but the relevant legislative act nonetheless passes Kant’s publicity test.
As a second point, Kant’s focus is on whether the maxims public officials act on are consistent with public scrutiny. A maxim is typically understood as one’s reasons or intentions. Thus, Kant’s publicity test focuses on whether the legislator’s intentions behind the law can be made public without arousing opposition or frustrating the legislator’s ends. As Reference García-MarzáDomingo García-Marzá (2012: 105; emphasis mine) articulates, “The principle enables me to know … whether I can rely on the support of others, or whether my action will meet with resistance and opposition, to the point that by making my intentions public I would only succeed in frustrating my own purposes.”
Kant’s focus on maxims leads to implications some might deem counterintuitive. To see this, suppose Althea the legislator supports policy p, which is a prohibition on the sale of alcohol, for sinister reasons. Her friend Bertha is in the bootlegging business, and Althea wants to grant Bertha monopoly prices. If such a maxim were made public, then surely the public would oppose Althea’s action, which is sufficient to render it unjust. Now suppose that Althea’s colleague Cassidy also supports p. But Cassidy does so for very different reasons. She supports p in order to prevent a public health crisis and lower health care expenditures, as alcohol has well-documented negative health outcomes. As a result, were the public to learn of Cassidy’s maxim, it would not stand in universal opposition. Moreover, public acknowledgment of her maxim would not frustrate Cassidy’s goals. Cassidy’s actions are thus just. This leaves us with the conclusion that Althea’s policy proposal is unjust whereas Cassidy’s proposal is just, even though they are the same proposal. This is not a contradiction, but some might find it counterintuitive.
Finally, it is worth asking who Kant refers to when he invokes the “public.” Kant is characteristically unclear about this. In a careful piece, Reference DavisDavis (1992) distinguishes between several different ways the term “public” is employed throughout Kant’s corpus. Sometimes Kant refers to the reading public by the term “public”; sometimes to university scholars; sometimes strictly to philosophers; and sometimes to the population of a society more generally. These definitions of the public will not do for Kant’s publicity test, argues Reference DavisDavis (1992: 179), because “no actual public will necessarily oppose injustice,” as the “standards of any empirical agent can fail to measure up to the demands of the moral law.”
Davis proposes we understand Kant’s publicity test as referring to a hypothetical public consisting of ideally rational agents. Such a group of individuals is “ideal in that it is thought necessarily to be rational, to uniformly oppose unjust action, and to have the power to prevent actions which it deems to be unjust” (Reference DavisDavis 1992: 181). The key here is that such an idealized public opposes all and only unjust actions. In the words of Reference DavisDavis (1992: 181), “Since this public is thought to be able to recognize and successfully oppose unjust actions, any intended unjust action would not succeed were it announced to the public in advance. Since the public would oppose and prevent only unjust actions, any such action which is not capable of publicity fails because of its injustice.” Davis’s solution is, I think, unsatisfying. It removes Kant’s understanding of publicity even further from the actual world. The principle is removed from the world in one sense in that it does not require actual transparency but only hypothetical transparency. Davis’s interpretation removes it even further by saying that it is not our hypothetical outrage that would dismiss a policy but the hypothetical outrage of a hypothetical population. Of course, Davis is correct that if Kant’s publicity test refers to some actual public, then there will indeed be cases in which policies that are intuitively just are deemed unjust, and vice versa. It is beyond the scope of this section to resolve these deep issues in Kantian political philosophy.
This is all to say that, though publicity certainly plays a role in Kant’s political thought, its presence is both mysterious and underwhelming. It is mysterious in that it is unclear when exactly a legislative act will violate this test; as a tool for appraising actual policy decisions, it stands radically underspecified. And it is underwhelming in that publicity can seemingly be satisfied without any actual government transparency; all that matters is hypothetical transparency, which is perfectly consistent with actual secrecy. This is typically not what we mean by publicity, and it is surely not what Kant’s followers (such as Rawls) mean when they deploy the concept. When Rawls and others insist on publicity, they want to know how our government actually operates. This is not, however, what Kant meant.
Most contemporary political philosophers who embrace publicity find inspiration in Kant. By contrast, Jeremy Bentham’s work on the subject often goes unappreciated. This is a shame because Bentham wrote more on transparency than any other figure in the history of political thought. Not only this, but Bentham was a fanatic for publicity. Many of his proposals for increasing transparency in government strike us as revolutionary, even today. But though publicity plays a deeply important role in Bentham’s political theory, he is at other times an advocate of secrecy. Indeed, Bentham was an influential defender of the secret ballot, which was finally introduced in Britain in 1872.Footnote 5
To begin, recall an important distinction between Plato’s Republic and the Laws. In the Republic, Plato adopts an optimistic picture of political leadership, in which the rulers of Kallipolis are virtuous and excellent. By contrast, he assumes that in Magnesia leaders are corruptible. This difference plausibly explains why Plato embraces the noble lie in the former, but not the latter, work. Bentham follows the Plato of Magnesia, not the Plato of Kallipolis. That is, when theorizing about politics, he adopts a pessimistic view of human nature, in which public officials are constantly up to no good. In his own words, “In the framing of laws, suspicion can not possibly be carried to too high a pitch … every man ought to be presumed disposed to be guilty and endeavouring to be guilty to the purpose of legislative enactment” (Reference Bentham and SchofieldBentham 1989: 15). According to Reference BenthamBentham (1977: 24), the guiding assumption for the student of politics should be that “men acting as representatives of all the people have a private and sinister interest, and sufficient power to gratify that interest, producing a constant sacrifice of the interest of the people.”
According to Bentham, publicity is what disciplines corrupt politicians, incentivizing them to serve the public interest rather than their own selfish ends. He tells us that “those who desire to see any check whatsoever to the power of the government under which they live, or limit to their sufferings under it, must look for such check and limit to the power of the Public Opinion Tribunal” (Reference Bentham and SchofieldBentham 1990: 125). That is, if one wants to successfully safeguard against government wrongdoing, then one must subject politicians to the tribunal of public opinion. This can only be done, though, by allowing the public to observe its government, which requires transparency. Indeed, Reference Bentham and BowringBentham (1843b: 494) seems to suggest that publicity is the only possible check that will succeed as a security against misrule: “Without publicity, all other checks are fruitless: in comparison of publicity, all other checks are of small account.” As he writes in another place, “Without publicity, no good is permanent; under the auspices of publicity, no evil can continue” (Reference Bentham, James, Blamires and Pease-WatkinBentham 1999: 37).
Bentham’s discussion of publicity as a tool for better governance occurred not only at an abstract, theoretical level. He offered several institutional and policy proposals for increasing transparency in government. Many of these seem unexceptional to us today. For instance, at a time of deep government opacity, Bentham argued that people ought to be able to observe their legislature when it is in session; moreover, the speeches of representatives ought to be published in newspapers. I examine the wisdom of greater transparency in legislatures in the next two chapters. Other ideas have yet to come to fruition. For instance, Reference Bentham and BowringBentham (1843a: 284) proposes the “quasi-jury” as a way of checking bad judicial behavior. The quasi-jury’s job is to watch the judge as she oversees the trial, to ensure there is no judicial misconduct. The main accountability mechanism here is increased publicity: “The jury will form of themselves a committee of the public-opinion tribunal; and from its several members the information respectively possessed by them radiates out the doors through so many circles of indefinite extent, of which they are respectively the centres” (Reference Bentham and BowringBentham 1843a: 294). So detailed are Bentham’s institutional prescriptions that Reference Postema, Zhai and QuinnGerald Postema (2014: 47) calls him “an engineer of publicity, and, even more, he was literally an architect of publicity.”Footnote 6
It is also worth noting that publicity does not merely keep self-serving public officials in line, though this is what is most important for Bentham. Publicity also does much to increase the trust persons have in their government.Footnote 7 Several political scientists and philosophers have noted that, in order to operate effectively, there must be trust between citizens and their government (e.g., Reference FukuyamaFukuyama 1995; Reference VallierVallier 2019a). Bentham’s emphasis on securities against misrule, though, seems grounded in a lack of trust. He writes, “Is it objected against the regime of publicity, that it is a system of distrust? This is true; and every good political institution is founded upon this base” (Reference Bentham, James, Blamires and Pease-WatkinBentham 1999: 37). While distrust inspires publicity, Bentham believes that increased transparency results in greater trust in one’s government.Footnote 8 Publicity can “secure the confidence of the people” (Reference Bentham, James, Blamires and Pease-WatkinBentham 1999: 30). This is because “suspicion always attaches to mystery… . The best project prepared in darkness, would excite more alarm than the worst, undertaken under the auspices of publicity” (Reference Bentham, James, Blamires and Pease-WatkinBentham 1999: 30). So not only does publicity restrain the self-interested political actor, but it also increases citizens’ trust in their government, allowing government to be more effective.
Publicity plays a deeply important role in Bentham’s political thought. But there are limits to its dominion. Indeed, Bentham was one of the most important and influential agitators in defense of the secret ballot. When it comes to the citizen-voter, he speaks of “the necessity of secrecy, for securing freedom, and preventing spuriousness of suffrage; and also the security it gives against all seductive influence operating from without, whether as terrorism or bribery” (Reference BenthamBentham 1977: 65). Why, though, argue in defense of the secret ballot after spending a career arguing in defense of the desirable effects of transparency in government? After all, it is at least prima facie plausible to think the desirable effects of increased publicity among politicians also apply to individual citizens voting in democratic elections.The key is that Bentham wants the citizen-voter to behave in a manner that is entirely different from how he wants public officials to behave. More specifically, it is important for citizens in a democratic society to vote in a way that is free, and by this Reference BenthamBentham (1977: 25) means that
the will expressed by [the vote] ought to be the very will of the person by whom it is so expressed – the will of that person and of that person only – his self-informed will – the product of his own judgment – not produced by the belief or the existence of any will or wish considered as entertained by any other person.
Roughly, we can understand Bentham as saying that persons should cast their vote in their own interests. The reason why is grounded in his utilitarianism (Reference TheunsTheuns 2017: 501–502). Justice demands maximizing utility, according to Bentham. It is a puzzle for legislators to figure out what people’s preferences are so they can then select the policy that will produce the greatest happiness. Bentham’s bet is that preferences are more likely to be honestly revealed through the secret ballot, as the external pressures that plague voters in a system of open voting are eliminated. Reference BenthamWrites Bentham (1977: 65), “By terror may a man be driven to the place of Election – true: but, under the shield of secrecy, it is not by terror, that, when he is there, the direction given to his vote can be determined.”
Bentham’s insistence that voting among citizens be free – that is, reflective of the citizens’ true judgments and interests – explains how he can consistently endorse secret voting for citizens but public voting for representatives in a legislature. For Bentham does not want representatives to vote freely in the legislature. That is, he does not want them to vote in accordance with their own interests. Rather, a politician’s votes should reflect the interests of her constituents. Indeed, recall that for Reference BenthamBentham (1977: 24) the core problem with politics is that “representatives of the people have a private and sinister interest, and sufficient power to gratify that interest, producing a constant sacrifice of the interest of the people.” When designing a legislature, the goal is to get representatives to not vote in their own interests. The goal instead is to get them to vote in the public interest.
There is thus no contradiction here. Publicity and opacity play different roles in Bentham because they serve different masters. When we want people to vote their own interests – as is the case of citizens when voting in elections – we give them the veil of secrecy, as this shields them from external influence. And when we want people to serve the public interest – as is the case of representatives in a legislature – we expose their actions to the light of publicity to better align their incentives. So though publicity does play an important role in Bentham’s thought, it is not all encompassing. Publicity is a tool that serves an end. In the hands of Bentham, it is an incredibly powerful tool serving a deeply important end.
Following Bentham’s lead, John Stuart Mill was an advocate of transparency in government. Though both philosophers emphasized publicity’s importance, there are significant disagreements between the two that should not be overlooked. Mill thought publicity was key for good government. But he was less optimistic than Bentham that publicity, on its own, can effectively check government malfeasance. Also necessary is an attentive citizenry. More strikingly, Mill thought the case for publicity carries over to the citizen-voter’s participation in the democratic process. While Bentham was a defender of the secret ballot, Mill argued in favor of open, public voting.
Many of Mill’s remarks on publicity come in his neglected treatise Considerations on Representative Government. Channeling Bentham, he argues that “unbounded publicity” coupled with “an ever present newspaper press” will “give the representative assurance that his every act will be immediately known, discussed and judged by his constituents, and that he is always either gaining or losing ground in their estimation” (Reference Mill, Philip and RosenMill 2015: 323). This fear of constant monitoring disciplines the representative to act in the public interest rather than her own selfish interests. More generally, “publicity and discussion … are a natural accompaniment of any, even nominal, representation” (Reference Mill, Philip and RosenMill 2015: 227).
Not only does transparency keep public officials in line, but Mill’s preferred system of representative democracy itself induces greater publicity. Mill thinks that elected representatives are “radically unfit” to govern and legislate, because of a lack of expertise; these tasks are better left to a professional bureaucracy (Reference Mill, Philip and RosenMill 2015: 246). Instead of governing and legislating, the “proper office of a representative assembly is to watch and control the government: to throw the light of publicity on its acts: to compel a full exposition and justification of all of them which any one considers questionable” (Reference Mill, Philip and RosenMill 2015: 246). That is, the most important task for representatives is to make transparent what the professional bureaucrats are up to. We see something like this in the legislature of the United States, where congressional oversight of the executive branch is an important part of Congress’s implied powers. Publicity thus plays a double role in representative government, according to Mill. Publicity constrains representatives by incentivizing them to serve their constituents; and representatives induce greater publicity by exercising oversight of the bureaucracies.Though the points of agreement are clear, Bentham and Mill disagree over the conditions under which publicity acts as an effective security against misrule. Bentham is optimistic that transparency will always induce desirable outcomes, Mill less so. Indeed, Mill raises an important point: publicity only matters if citizens examine what is brought to light. But if citizens don’t pay attention to what publicity exposes, then they will fail to check government misconduct. In his words,
Publicity, for instance, is no impediment to evil nor stimulus to good if the public will not look at what is done; but without publicity, how could they either check or encourage what they were not permitted to see? The ideally perfect constitution of a public office is that in which the interest of the functionary is entirely coincident with his duty. No mere system will make it so, but still less can it be made so without a system, aptly devised for the purpose.
Mill makes an important point here, one that I think is not present in Bentham’s work on the subject. Publicity is necessary but not sufficient for good government. Also necessary is that people use the information transparency reveals to monitor and sanction their representatives. If, for some reason, persons are unable to consume this information, then publicity will not act as an effective check on government misconduct. This point plays a key role in the analysis of the next chapter. Some persons don’t have time to effectively consume the information publicity makes available. When this is the case, secrecy may be better than transparency.
Mill’s biggest departure from Bentham concerns how voting should proceed among individuals in democratic elections. Mill holds that voting ought to proceed publicly rather than by the secret ballot.Footnote 9 The argument is grounded in the psychological effects secret voting has on the electorate. When voting is done in secret, “the immediate interpretation which [the voter] is almost sure to put upon secret voting, is that he is not bound to give his vote with any reference to those who are not allowed to know how he gives it; but may bestow it simply as he feels inclined” (Reference Mill, Philip and RosenMill 2015: 308). In other words, when the citizen has the privacy of the voting booth, she is likely to cast her vote with an eye toward her own interests instead of thinking of the public good. But when voting is done out in the open, the calculus of the voter changes, as she is now accountable to her fellow citizens. The voter must think “what he shall say if called to account for his actions,” which forces him to discount his own selfish interests and weigh more heavily the interests of the public (Reference Mill, Philip and RosenMill 2015: 313).Footnote 10
One might worry that in a system of open voting, the voter would be bound to the whims of more powerful interests. This was Bentham’s main concern. Reference Mill, Philip and RosenMill (2015: 309) agrees that this would be catastrophic for democracy: “When the voters are slaves, anything may be tolerated which enables them to throw off the yoke. The strongest case for the ballot is when the mischievous power of the Few over the Many is increasing.” Reference Mill, Philip and RosenMill (2015: 310), however, believes that this is not descriptively accurate of England at the time of his writing: “But in the more advanced states of modern Europe, and especially in this country, the power of coercing voters has declined and is declining.” We now have empirical evidence detailing, in the pre-secret-ballot days of Europe, precisely when powerful interests could in fact influence how persons voted. In her masterful work of political economy, Reference MaresIsabela Mares (2015) argues that when labor markets were sufficiently competitive (i.e., when firms were not monopsony buyers of labor), there was less pressure on citizens to vote in the interests of big business, for persons could switch jobs if they were unduly influenced by their employers. Yet, in areas where firms were monopsony buyers of labor, they did in fact exercise undue influence. The citizen, with no good exit option, was bound to the whims of his employer.
What explains the disagreement between Bentham and Mill on open and secret voting? On one interpretation, perhaps they simply disagree about the empirical realities these institutional arrangements produce: Mill is optimistic about the effects of open voting, whereas Bentham is pessimistic. On closer inspection, however, there is a more fundamental, normative disagreement. Recall that for Bentham, voting is supposed to be free among citizens, which means that the voter expresses her own interests when she casts her vote. This ensures that voting serves an aggregative utilitarian function. Mill disagrees with this thesis. It is certainly not the case that the citizen should vote her own interests when casting her ballot. For Reference Mill, Philip and RosenMill (2015: 309), “The voter is under an absolute moral obligation to consider the interest of the public, not his private advantage, and give his vote to the best of his judgment, exactly as he would be bound to do if he were the sole voter, and the election depended on him.”
It is this normative disagreement concerning how the voter is obligated to cast her ballot that best accounts for the disagreement between Bentham and Mill. For Bentham, the individual’s vote should reflect her own interests; this is best served by the secret ballot. For Mill, the individual’s vote should reflect the public interest; this is best served by a system of open voting. Mill, I think, does in principle agree that if you wanted someone to vote in her own private interests, then the secret ballot would be optimal; this is why he is against the secret ballot in the first place. And Bentham could in principle agree that if you wanted someone to vote in the public interest, then perhaps the secret ballot would be deleterious to this end. So it is not an empirical disagreement over the effects of institutions. It is a disagreement over the normative purpose of voting in the first place. This more fundamental disagreement is reflected in diverging institutional proposals.
Publicity thus occupies an important place in Mill’s thought, as it did in Bentham’s, though there are central differences. For Mill, publicity is required for representative government to function well, and representative government itself can increase publicity. Yet, even so, publicity alone is not sufficient for good government. We also need an attentive citizenry willing to bear the costs of monitoring, something Bentham does not emphasize. Moreover, Mill extends publicity to the citizen-voter in democratic elections, in which Bentham finds an important role for secrecy. This, however, is due to Mill’s unique views on how citizens should cast their vote. Just like public officials, citizens should have the public good in mind. And just like public officials, this is best accomplished through transparency.
Our discussion of publicity in the history of political thought highlights a clear trajectory. Plato’s views on publicity are complicated, but we saw that, at least in the Republic, he was an enemy of transparency. Then publicity finds advocates in Hobbes and Kant, though Kant’s account of publicity is not as strong as many seem to think. Bentham and Mill were then fanatical on the side of publicity. Both proposed levels of transparency currently unknown to most existing liberal democracies. This might suggest that thinkers even later than Bentham and Mill also embraced publicity as an important political value. Henry Sidgwick falsifies this Whig history. Here we find a reversion back to the Plato of the Republic, where at the heart of government lies a noble falsehood.
Sidgwick’s views on publicity and opacity are found in his discussion of common sense moral rules and how they relate to utilitarianism as a moral theory. It is quite clear that many of the moral rules we live by will, all things equal, tend to contribute to overall happiness; think here of imperatives that forbid lying, stealing, and killing. Yet we can of course think of cases in which select violation of these rules will result in greater utility. For instance, Robin Hood might steal from a very wealthy person and give to the poor. Given the fact of decreasing marginal utility, Robin Hood maximizes happiness by violating common sense morality. Of course, total happiness would be diminished if theft was pervasive, but that is not what we are considering. We are considering the case in which theft is uncommon yet Robin Hood selectively engages in it for the sake of distributive justice.
What does the utilitarian say about exceptions to common sense morality that will lead to greater overall happiness? Sidgwick considers two kinds of exceptions. The first kind is moral rules that it would be beneficial for all persons to deviate from in certain circumstances. An example here is the prohibition on lying. Overall, we want persons to be forthright with one another. But if a lie can help avoid a great harm – say, lying about Anne Frank, who is hiding in the attic – then clearly one should lie. In these sorts of cases, Sidgwick argues that we are not actually talking about exceptions to moral rules at all. What we are instead doing is constructing a more complicated rule for persons to follow: “The admission of an exception on general grounds is merely the establishment of a more complex and delicate rule, instead of one that is broader and simpler” (Reference SidgwickSidgwick 1981: 485). What we thought were exceptions to the moral rule are really just components of a more complicated rule. In these cases, there really aren’t exceptions to common sense morality that lead to greater overall happiness.
More interesting are exceptions that we only want some people to follow – cases “where the agent does not think it expedient that the rule on which he himself acts should be universally adopted, and yet maintains that this individual act is right, as producing a greater balance of pleasure over pain than any other conduct open to him would produce” (Reference SidgwickSidgwick 1981: 486). Consider an example. Suppose Althea is an enlightened utilitarian. In her society is a set of laws against murder. These laws are generally – but not always – conducive to greater happiness. For instance, Althea might kill off society’s pariahs in secret and harvest their organs for the sick. Since it is pariahs that are being killed off, no one will miss them; and, moreover, many lives can be saved with the organs harvested off one body. Such an action is likely to maximize total happiness, compared with the case in which the pariahs continue living and sick people die while waiting for organ transplants.
At the same time, Althea knows that we don’t simply want to add an exception to our moral rule that prohibits killing, where the new rule would say something like: “Don’t kill, unless you can kill someone who will not be missed so you can harvest their organs to save others.” For starters, Althea does not think the average person has the cognitive capacity to judge when the relevant circumstances obtain and trigger the exception. The average person will likely misjudge this, thereby killing more than is socially optimal. Moreover, Althea worries about the overall effects such an ethic might have. Those who are not committed utilitarians might be disgusted by the rules of their society. There may also be a lack of trust between persons, as everyone is now a potential executioner. Finally, people will live in fear, as at any moment their life may be taken. All these effects will lead to a reduction of total happiness.So we have a case in which Althea’s violation of the moral rule prohibiting murder would maximize utility, yet if such exceptions were included in the original rule prohibiting murder, then overall utility would decrease. In these circumstances, Sidgwick says the utilitarian is obligated to violate common sense morality while shrouding herself in secrecy. She must follow the more complicated rule admitting exceptions, so long as she hides this from the masses. Quite famously:
Thus, on Utilitarian principles, it may be right to do and privately recommend, under certain circumstances, what it would not be right to advocate openly; it may be right to teach openly to one set of persons what it would be wrong to teach others; it may be conceivably right to do, if it can be done with comparative secrecy, what it would be wrong to do in the face of the world; and even, if perfect secrecy can be reasonably expected, what it would be wrong to recommend by private advice or example.
Here is Sidgwick’s embrace of deception. The enlightened Althea may adhere to a certain set of rules while inculcating in others a quite different set; so long as this maximizes utility, such behavior is not only permissible but required. We thus find in Sidgwick a role for government opacity similar to that found in Plato’s Republic. So long as the lie is told for the greater good, such a lie ought to be told.
There are a few things to note about Sidgwick’s embrace of secrecy. First, such deception assumes nonideal conditions, in that some people are not what he calls “enlightened Utilitarians” (Reference SidgwickSidgwick 1981: 489).Footnote 11 In the ideal case in which everyone is an enlightened utilitarian, there is no need for deception: “If therefore we were all enlightened Utilitarians, it would be impossible for any one to justify himself in making false statements while admitting it to be inexpedient for persons similarly conditioned to make them; as he would have no ground for believing that persons similarly conditioned would act differently from himself” (Reference SidgwickSidgwick 1981: 488). The general idea is that if everyone were a perfect utilitarian, then there would be no need to hide the rules on which one acts. That is, we could be completely transparent about the rules we follow.Footnote 12
To see this, consider why Althea felt the need to hide her complicated rule permitting exceptional murder in the first place. To begin, she worried the average person would not be able to properly calculate when to trigger the exception. But if we only have enlightened utilitarians, then they will be able to properly perform this calculus. Second, Althea worried that those who are not committed utilitarians might be disgusted by the rules of their society. Yet, by hypothesis, everyone is a utilitarian in the ideal society, so this cannot happen. As a third concern, there may be a lack of trust between persons, as everyone is everyone else’s potential executioner. But in an ideal utilitarian society, whether persons trust one another is itself subject to the utility calculus and thus independent of the rules people act on. Finally, such a rule might make people uneasy, as at any moment their life can be taken so their organs can be harvested for others. But in a society of enlightened utilitarians, everyone is perfectly beneficent and does not hold special regard for their own well-being. It is thus only when we encounter the unenlightened that the utilitarian needs to mask her morality in secrecy.
Sidgwick endorses a system in which the enlightened must sometimes hide the moral rules they operate by. But, even though the unenlightened do not know the rules by which the enlightened operate, they might know that it is generally speaking permissible for the enlightened to operate by a different set of rules. Yet if they did know this, Sidgwick worries about the negative impact it might have. People might no longer express disapprobation when ordinary rules are broken (for perhaps the rule breaker is one of the enlightened who is allowed to break the rules). Moreover, there might be breakdowns of trust if citizens know that some unknown persons in their society operate according to a different set of rules than they themselves do. Such considerations could reduce overall happiness.
This requires yet another layer of secrecy. Not only must the enlightened hide the moral rules they adhere to, but they must also hide the philosophical theories that encourage them to embrace esoteric political moralities. Reference SidgwickSidgwick (1981: 490) writes, “The opinion that secrecy may render an action right which would not otherwise be so should itself be kept comparatively secret; and similarly it seems expedient that the doctrine that esoteric morality is expedient should itself be kept esoteric.” This leads to the thought that “a Utilitarian may reasonably desire, on Utilitarian principles, that some of his conclusions should be rejected by mankind generally” (Reference SidgwickSidgwick 1981: 490). In other words, Sidgwick is committed to the possibility that the moral theory presented in The Methods of Ethics might best be served if the book were banned or perhaps never even published in the first place. Compare this to Hobbes’s wholesale conception of publicity, in which Leviathan is to be taught in the universities.
Some react quite negatively to Sidgwick’s embrace of secret morality. Most forceful is Reference WilliamsBernard Williams (1995: 166), who calls Sidgwick’s opaque utilitarianism the “morality of an elite.” Modern utilitarians are quite mixed on Sidgwick’s approach to utilitarian governance. Some are decidedly in favor (e.g., Reference Lazari-Radek and SingerLazari-Radek and Singer 2010), while others are against it (e.g., Reference HookerHooker 2000: 85). Some try to remain noncommittal on this point (e.g., Reference SchefflerScheffler 1994: 52; Reference GoodinGoodin 1995: 62), and others simply doubt that utilitarianism will in fact require the kind of secrecy Sidgwick presumes (e.g., Reference BrinkBrink 1989: 260). Perhaps the most famous response to Sidgwick comes from John Rawls, who takes Sidgwick as one of his main targets in A Theory of Justice. Rawls’s rejection of Sidgwick’s esoteric political morality is the subject of Chapter 5.
This chapter has offered an overview of the concept of publicity as it appears throughout the history of political thought. The reception was mixed: some philosophers were fanatical on the side of transparency; others balked. Moreover, publicity means many things to many people. While Bentham and Mill were concerned with the capacity to monitor public officials, Hobbes was worried about persons’ understanding of the philosophical foundations of their system of government and Sidgwick focused on obscuring the intentions of enlightened legislators from the unwashed masses. Examining the diverse ways publicity can manifest in politics and government is one of the central goals of this book. We begin by looking to how publicity can inform the theory of institutional design and reform.