August 24, 2011


Janet Semple, Benthan's Prison: A Study of the Panopticon Penitentiary (New York & Oxford: Clarendon Press/Oxford U. Press, 1993) ("Bentham contemplated the legal profession in the 1770s with revulsion. In his view, the system was rotten to the very core; the interests of lawyers were in direct opposition to those of their clients and the general public. The greater the delay, obscurantism. and injustice perpetrated by the courts, the greater would be their remuneration; it was a conspiracy against the public weal; the structure of law sanctioned delays and denial of justice and covered its faults in a smug patina of mutual admiration. Given these feelings, it is hardly surprising that he could not bring himself to prostitute his talents in law practice. He gave advice on one brief, a suit in equity, to the effect 'that the suit had better be put an end to, and the money that would be wasted in the contest saved.' He preferred to pursue a life of study and writing, living on spasmodic earnings form journalism and an allowance form his father." Id. at 21. "By a strange irony, he who was so acutely aware of the delusive power of language, used words in such a way to create an impression of ossified, frigid, rule-bound bureaucracy. Words such as 'functionary', 'tribunal', 'dislocability', and 'melioration' do indeed evoke visions of totalitarianism. But this is a false impression. He did not stop thinking after the failure of his panopticon scheme. He went on to perfect his theory of institutions and in it there is no concept of the state as an entity separate or greater than the individuals who serve it. For almost twenty years he reflected and wrote on government, working out the ideas that reach their apogee in the Constitutional Code. . . . He took and transmuted the two fundamental principles of the panopticon, the junction of duty and interest and inspection and applied them to government. What emerged was a tough, realistic theory of democracy. Underlying it was his harsh belief that the interests of rulers are always and always will be in diametrical opposition to the interests of subjects. Whatever the rhetoric or ideology of these rulers, whether a paternal monarch, freedom fighters, or intellectuals, they will inevitably sacrifice the interests of their subjects. Whether they rule in the name of Marx, Allah, Christ, or the Market, they are men and will accumulate money and privileges for themselves They will, as night follows day, plunder and oppress their people. Bentham did not deny the possibility of the odd altruistic action, but he argued that it would be imprudent to found a system of administration on such an unlikely contingency. . . . Ruling elites would automatically close ranks to protect their own, to cover up mistakes, to spend money on schemes to their own benefit, to protect and extend their powers and privileges. Such corruption pervades all government and becomes so instinctive that it no longer seems corrupt. . . . " "Bentham came to believe that the only form of government that could safeguard the people against the exploitation and oppression was representative democracy, because only therein were subjects able to control their rulers. It was the only form of government that would consistently aim at the greatest happiness of all, for the people were themselves sovereign. . . . But democracy cannot in itself ensure good government, for the people's representatives would soon succumb to the temptations of power unless they were closely watched. . . . Open accountable administration under the constant scrutiny of the public could solve the age-old dilemma, 'Quis custodiet ipsos custodes'." Id. at 317-318. Food for thought in early twenty-first-century America, where even the virtues and ideals of representative democracy seem under constant attack.).