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The institutionalisation of public opinion: Bentham’s proposed constitutional role for jury and judges
Published online by Cambridge University Press: 02 January 2018
Abstract
Jeremy Bentham’s constitutional writings are innovative and radical. Unlike constitutional arrangements that sought to attain virtue though the institutional complexity entailed by the doctrine of Separation of Powers, Bentham’s constitution was socially dynamic and designed to facilitate constant and efficient interaction between amorphous public opinion and officials. Furthermore, it was in constant and free interaction between public opinion and officials that Bentham envisioned the determination and effectuation of constitutional limits, namely both the justification and limitation of coercion. The paper begins by outlining Bentham’s principles for a good constitution. It then discusses in detail Bentham’s proposals for incorporating public opinion into legal proceedings through radical reform to the jury. Such incorporation, he believed, would intensify and help to focus public gaze by which officials’ aptitude, and as a result a good government, would be attained with the minimal expense. The proposed institutionalisation of public opinion enabled Bentham to entrust the judiciary with a constitutional role. Judges were conceived as the interface between officialdom and focused manifestations of popular sovereignty. So entrusted, judges could determine constitutional limits, thus protecting against abuse of power. The reforms discussed in this paper are a testimony of the extent to which Bentham saw virtue both in the people and in free public debate.
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References
1. The presence of democratic thinking all along Bentham’s career constituted one of the main theses of my book Constitutional Limits and the Public Sphere: A Critical Study of Bentham’s Constitutionalism (Oxford: Hart Publishing, 2000). In this book I have argued that, contrary to conventional historical scholarship there were no ‘two Benthams’, namely the early legal and constitutional reformer and the later democratic radical. See section two of the book’s introduction.
2. For a detailed discussion of aptitude, see ibid, pp 136–143.
3. See Bentham, J An Introduction to the Principles of Morals and Legislation in Burns, JH and Hart, HLA (eds) (London: Athlone Press, 1970)Google Scholar (hereafter IPML) ch 3. IPML is a volume in the critical edition of the – in progress). Hereafter the series will be referred to as CW. For a discussion between the sympathetic and the moral sanctions, see (CW), discussed in detail by Ben-Dor, above n 1, pp 206–222.
4. For a detailed account of the POT, see ibid, pp 193–198.
5. See Bentham, J Political Tactics in James, M, Blamires, C and Pease-Watkin, C (eds) (Oxford: Oxford University Press, 1999)Google Scholar(CW) pp 29–42 and 143–147.
6. Above n 1.
7. See ibid, above n 1, chs 5 and 6. On ‘sinister interest’, see ibid, p 137.
8. Bentham chose the term ‘location’ and ‘dislocation’ rather than ‘appointment’. ‘Appointment’, he thought, was likely to cause confusion in the mind because of its opposite – disappointment.
9. Ben-Dor, above n 1, pp 143–160. Bentham discussed these special kinds of laws in his masterpiece Of Laws in General (hereafter OLG) in HLA Hart (ed) (London: Althone Press, 1970) (CW). See also Hart, HLA Essays on Bentham (Oxford: Clarendon Press, 1982) ch 9;Google Scholar
10. See Ben-Dor, above n 1, pp 160–172.
11. See ibid, p 140.
12. ‘Principles of Judicial Procedure’ (hereafter PJP) in The Works of Jeremy Bentham, Published under the Super-intendence of his Executor, John Bowring 11 Volumes (Edinburgh, 1838–1843) (hereafter Bowring) vol ii.
13. All three volumes are in Bowring, vol ix. However, as far as the first volume is concerned, reference is made to Bentham, J Constitutional Code vol 1 (hereafter Constitutional Code) in Rosen, F and Burns, JH (ed) (Oxford: Oxford University Press, 1983)Google Scholar (CW).
14. ’Draught of a Code for the Organisation of the Judicial Establishment in France’ (hereafter Draught) in Bowring, vol iv.
15. For attempts to construct such a theory, see Postema, G Bentham and the Common Law Tradition (Oxford: Oxford University Press, 1986) pp 403–439;Google Scholar JR Dinwiddy ‘Adjudication under Bentham’s Pannomion’[1989] 1 Utilitas 283; see also (CW) pp 354–355, and See, finally,
16. Bentham argued that the exclusion of evidence amounted to an exclusion of justice. For a detailed account of his views on evidence, see Twining, W Theories of Evidence: Bentham and Wigmore (London: Weidenfeld and Nicolson, 1985) ch 2.Google Scholar
17. Bentham preferred the term ‘judicatory’ to ‘court’ because the latter was prone to association with ‘Monarchical Court’: Bowring, vol ix, p 458.
18. Ibid, pp 457 and 471.
19. Ibid, p 481.
20. Ibid, p 494.
21. PJP in Bowring, vol ii, p 340.
22. There would be, of course, a great deal of friction in trying to transform theoretical arguments into practice. Two remarks can be made in this respect. First, Bentham would have preferred constitutional laws in principem to have been manifested in the code of law with as much exactitude as any other law, so that judges and people could refer to them easily. Secondly, as far as Bentham’s republic was concerned, all things being equal, in order further to interpret certain laws in a particular case, some institution, such as a judiciary, would have to interact with public judgement.
23. See Bentham, J First Principles Preparatory to Constitutional Code (hereafter First Principles) Schofield, P (ed) (Oxford: Oxford University Press, 1989) (CW) pp 141.Google Scholar 291–2; see also (CW) p 132, where Bentham specifically discussed the protection of individuals against oppression. Bentham stated that various protections afforded to individuals owed their existence exclusively to constitutional law. Again, these protections could be effected only by invoking the legal system, that is penal law and procedure.
24. The reason for this bizarre name was that the proposed body would retain some of the traditional jury’s characteristics.
25. PJP in Bowring, vol ii, p 118.
26. Bowring, vol ix, p 556.
27. PJP in Bowring, vol ii, p 149.
28. Bowring, vol ix, p 554. See also PJP in Bowring, vol ii, p 141.
29. PJP in Bowring, vol ii, p 149.
30. Ibid, p 141.
31. Ibid, p 144.
32. Bowring, vol ix, pp 561–562.
33. Ibid.
34. Ibid, pp 555–556.
35. Ibid, pp 43–44 and 556.
36. PJP in Bowring, vol ii, pp 159–161.
37. For Bentham the term ‘criminal’ did not the have the same meaning as ‘penal’. For Bentham, every individual law, which would include an individual constitutional law, would have both penal element (an act and an aspect of will with regard to this act), and civil matter (expository matter, qualifications and definitions).
38. PJP in Bowring, vol ii, p 145.
39. Ibid, p 147.
40. Ibid, p 119.
41. Bowring, vol ix, p 465.
42. For appointment and dismissal of judges, see the next section.
43. Bowring, vol ix, p 555.
44. PJP in Bowring, vol ii, p 125.
45. Ibid.
46. Ibid, p 137.
47. Ibid, p 127 (emphasis added).
48. Ibid.
49. Ibid, p 141.
50. Ibid, p 143.
51. Ibid, p 144.
52. Ibid, p 147.
53. Bowring, vol ix, pp 529–532.
54. For a useful summary, see First Principles, above n 23, pp 130–131.
55. PJP in Bowring, vol ii, p 8.
56. Bowring, vol ix, p 530; vol iv, pp 336 and 359.
57. Ibid, vol iv, p 362.
58. Ibid, pp 307–309.
59. Ibid, p 366.
60. Ibid, pp 372–375.
61. Ibid, vol ix, pp 521 and 529.
62. Ibid, pp 522 and 532.
63. See, for instance, J Bentham A Fragment on Government, in A Comment on the Commentaries and A Fragment on Government (hereafter Fragment) in Burns, JH and Hart, HLA (ed) (London: Athlone Press, 1977) (CW) pp 487–488,Google Scholarand OLG ch 15 and pp 232 and 239–242. For Bentham’s critique of the common law as well as his view of the judicial role under his complete code of laws, or Pannomion, see ch 11 and pp 280–282 and 289; see also Lobban, above n 15, pp 169–184.
64. Fragment, pp 487–488.
65. See Bowring, vol ix, pp 479–489 and 502–515. See also Rosen, F Jeremy Bentham and Representative Democracy (Oxford: Clarendon Press, 1983) pp 149–163.Google Scholar
66. Bowring, vol ix, p 455.
67. Ibid, pp 496–499; see also vol iv, 324–325 and 361.
68. In On the Efficient Cause and Measure of Constitutional Liberty Bentham Papers (London: University College London Library) pp cxxvii and 5, Bentham wrote: ‘in this sovereign power is essentially comprised that of making laws in all cases, that of judging in dernier resort whether they have been disobeyed in any instance, and that of providing for their being executed upon those by whom they have been disobeyed: and therefore in so far judicial power and executive’. For a detailed discussion of Bentham’s conception of sovereignty and the way it relates to contemporary debates in legal theory, see Ben-Dor, above n 1, ch 2.
69. Constitutional Code, p 45.
70. Bowring, vol ix, p 484.
71. Ibid, p 504.
72. Ibid, p 508.
73. This unique sense of alteration of the law which in fact harbours a direct utilitarian challenge to the law is discussed by Postema, above n 9, pp 434–349, in relation to law more generally, although at no time does Postema refer to the possibility of a declaration of anti-constitutionality or its meaning.
74. These minimal analytical characteristics of a law were an act and an expression of will in relation to this act – a command, a prohibition, permission or permission to forbear – see OLG, p 93. For a critical account of what Bentham called in OLG ‘the aspect of a law’, see Hart, above n 9, ch 5.
75. Ibid.
76. Bowring, vol ix, p 121.
77. Ibid, p 121.
78. Ibid, pp 120–121.
79. Ben-Dor, above n 1, pp 154–160.
80. Bowring, vol ix, p 120.
81. Hart, above n 9, pp 235–238.
82. See Ben-Dor, above n 1, pp 237–250.