A bill of rights and the separation of powers have widely been accepted as two basic safeguards of constitutional liberty.1 Bentham, however, denounces both notions as nonsense. His criticism of the discourse of entrenched and inalienable rights is well-known and has been fully discussed.2 In contrast, his discussion of the principle of the separation of powers has not been as fully treated as it deserves. The conventional view is that Bentham in his constitutional design rejects the separation of powers and advocates instead the principle of the dependence of the governors on the governed and a supreme, omni-competent, and unicameral legislature.3 However, this view of Bentham’s position is imprecise and incomplete for at least two reasons. First, the phrase ‘the separation of powers’ was ambiguous. Bentham accepts the separation of powers in some forms and rejects it in others. Second, Bentham’s rejection of the separation of powers in certain forms is conditional, not outright: he admits that it might be useful and necessary in real politics.4

When God says ‘Let there be light’, the Old Testament refers to one of Earth’s greatest natural resources, but also the hope of human enlightenment itself. Light and heat come to Earth from our Sun. Heat differences create air pressure. Air pressure creates wind. And both light and wind can power the modern world a thousand times. With water, light gives life to plants, trees, algae, plankton and creatures including ourselves. Plants photosynthesise light, they live, they are eaten, they die, and over millions of years they become fossilised. Coal comes from ancient forests, which were buried and compressed before they decayed.

‘Restoration of a sick person to health’, wrote Lord Beveridge in 1942, ‘is a duty of the State and the sick person, prior to any other consideration.’ When the Minister for Health, Nye Bevan, introduced the National Health Service Act 1946, he said it was ‘repugnant to a civilised community for hospitals to have to rely upon private charity’, and that ‘money ought not to be permitted to stand in the way of obtaining an efficient health service’.

‘Dear Tony, I see the Russians have put a space vehicle on the moon’, wrote a voter to their MP in 1959. ‘Is there any chance of a better bus service in Bristol?’ Transport is a wonder of technology, giving us space travel, and sometimes even buses, but its use for good or ill depends on our law. An electric revolution is underway, yet the last shift took fifty years, for petrol motors to replace horses, and today we are out of time. Transport expels 27 per cent of UK greenhouse gas emissions, mainly by road and rail, and 24 per cent of global emissions.

My chapter examines a neglected feature of Bentham’s design for representative democracy in his Constitutional Code. This is the lengthy plan for the judicial branch of government, set out in the final volume of the three-volume Code. Of the many influential advocates for constitutional democracy of his era, Bentham was unique in devoting such systematic attention to courts and judicial procedure. His constitutional programme included a detailed system for a dense network of local courts providing free and rapid adjudication of legal disputes. At the same time, Bentham rejected judicial functions now associated with liberal constitutionalism, such as the protection of entrenched rights and the preservation of constitutional norms. Instead, he emphasized the institutions and public resources required to ensure equal access to justice for the weakest members of the community. This emphasis helps clarify Bentham’s larger political strategy for advancing the happiness of the community and the manner in which he understood the specifically democratic character of his judicial plan. The latter theme requires special attention since so much of Bentham’s designs for courts and judicial procedure long predated his embrace of democratic radicalism.

In my Utility and Democracy, I noted that an important difference between the pre-democratic and post-democratic Bentham consisted in his view of the relationship between property and the franchise. In the earlier phase of his career, he feared that the non-propertied, if given the vote, would in effect destroy civilized life by insisting on a redistribution of property, while in the latter phase he dismissed this threat as illusory and pointed to the United States of America as a functioning large-scale democracy where property was secure.1 While there is no reason to question this account, there is arguably more to be said about how Bentham regarded the problem of bad government, or misrule, and the solution, in terms of the possession of intellectual aptitude – in other words, the possession of knowledge and judgement – one of the branches of appropriate aptitude. An individual possessed intellectual aptitude when he had the relevant knowledge and judgement to promote the general or universal interest, moral aptitude when he was motivated to do so, and active aptitude when he performed the relevant actions.

This chapter examines the way in which, in his constitutional writings, Jeremy Bentham argues for democracy as the best form of government, while also analyzing his ability to envision the organization and structure of the state. In specific terms, a central theme of Bentham’s thinking is the management of functionaries. What is their role and to what end should they be managed? Functionaries are an integral part of the utilitarian state, which, as such, must maximize its efficiency and minimize its expenditure while also ensuring the greatest happiness for the greatest number. Therefore, one can speak of the state’s primary end, which is set by the principle of utility and concerns society as a whole, and of a secondary end, still set by this same principle but that has to do with a particular group of individuals: functionaries. Consequently, the latter are actors among others in the social theatre Bentham attempts to construct.

This book explores an other way of relating to land; a relationship to space and place that runs counter to property's (private) orthodoxy and its atomising, exclusionary ways. As set out in the Introduction, we use the metaphor of the lawful forest to describe this relationship. Like the forest, this relationship is ancient. Like the forest, this relational understanding of people, place and community seems peripheral to our modern, mostly urban lives, a wooded hideaway beyond our everyday experiences of concrete and steel. While the lawful forest is indeed extant, a literal place of trees, its presence also transcends the physical, evoking a figurative yearning for a spatial life lived better. Simultaneously physical and metaphysical, the forest emplaces us, creating contexts that weave together its remnant presents with a memory of forests past. We also describe this forest as lawful, drawing on critical property theorists and scholars of legal geography to derive its ground-up legitimacy from the many, not the few. Aspirations of common-wealth and spatial justice dwell in its shade, a space and place where the ‘wide-open synergies’ of the commons is a stark foil to the sequestering, controlling inclinations of private capital (and its private property alter ego). This chapter's ambitious task is to situate this vast, diverse (and mostly hidden) lawful forest in theory, and to explain why it remains so peripheral, and so overlooked.

What is remarkable about this lawful forest is its ubiquity. Equally remarkable is its near-invisibility. These observations are, of course, related. Making plain the latter renders obvious the former. It is a forest lost to plain sight, ancient woods that have seemingly disappeared amidst their (individual) trees. This chapter's task (and, indeed, the task of this book) is to reverse this skewed myopia, to identify why we see space in reverse, and to advance a theory of the lawful forest that marks its subtle outlines. Or, to imbue this task with a literary flourish, to reveal the forest's concealed glades and overlooked wood-pastures that subsist amongst us. In so doing, this task requires patience. It takes time to adjust one's vision from the harsh sunlight of the cleared private plains to the forest's dappled shadows. The rewards of patience lie in nuance and connectivity; subtle glimpses of the intricate relational practices and ancient propertied ways that this accustomed sight slowly reveals.