6 Bentham's Jurisprudence and Democratic Theory An Alternative to Hart's Approach
Jeremy Bentham's democratic theory, as ultimately embodied in a proposed Constitutional Code designed for ‘all governments professing liberal opinions’,2 was a late development in his programme of reform, occupying his attention most intensely in the twenty-year period before his death in 1832. In contrast, the more general project of legislative codification, along with the jurisprudence developed in its support, had engaged Bentham from the very start of his career in the late 1760s. The process by which Bentham became committed to democratic radicalism has long served as a major theme of his intellectual biography, and a major area of disagreement among scholars of his thought.3 Less concentrated attention has been devoted the thematic relationship between his jurisprudence (on the one hand) and his democratic theory (on the other). This chapter seeks to explore this relationship.
I begin with the approach to this question developed by H.L.A. Hart in his deservedly influential studies of Bentham. More than any other modern scholar, Hart brought Bentham's legal theory to the attention of modern jurists, and established the value of his contributions for current debates in the philosophy of law. He also discussed Bentham's democratic theory and his Constitutional Code, although these were not leading topics for him. Nonetheless, he gave his 1982 collection of Essays on Bentham the subtitle, ‘Jurisprudence and Political Theory’, and the thirtieth anniversary of this publication provides an apt moment to consider the manner in which Hart drew a connection between his two subject matters. For Hart, Bentham's discussion of sovereignty earned special prominence and functioned as a shared foundational concept for both jurisprudence and political theory. As we shall see, Hart's handling of this topic was expressly shaped by his own celebrated revision of the tradition of jurisprudence he associated with Bentham and his successor, John Austin. As an interpreter of Bentham, Hart probed deeply and powerfully by focusing his analysis on a discrete set of central and contested questions in the philosophy of law. The approach, however, introduced an unfortunate and distorting narrowness into Hart's interpretation. I emphasize other important and alternative lines of continuity between Bentham's jurisprudence and his democratic politics. Much less weight should be placed on the concept of sovereignty, and much more attention devoted to Bentham's codification ideal.
Hart and Bentham
Essays on Bentham focused on those features of Bentham's thought that Hart judged of greatest philosophical significance, and his standard of significance was unabashedly set by then contemporary debates in Anglo-American analytical philosophy and jurisprudence. Numerous references appear regarding the manner in which Bentham's ideas anticipated later developments, as made by such luminaries as Wittgenstein and Russell, or provided better treatments of classical issues than those offered by better-known theorists.4 In the case of jurisprudence, the last six of the ten chapters comprising Essays on Bentham – which form the intellectual core of the collection – share a common intellectual strategy, best exemplified in the papers on ‘Legal Duty and Obligation’ and ‘Legal Powers’. Hart began with an illuminating explication of Bentham's contributions, drawn from the material Hart edited as Bentham's Of Laws in General (and since re-edited as Of the Limits of the Penal Branch of Jurisprudence),5 emphasizing the originality and richness of the discussion. He then proceeded to identify problems and omissions, bringing to bear the insights and arguments found in the work of contemporary legal philosophers, such as Raz, Dworkin, and especially Hart himself. The interpretative strategy placed Bentham squarely in the setting of the modern jurisprudence seminar, where Hart clearly believed he fully belonged. The ‘originality and power’ of Of Laws in General, Hart maintained,
certainly make it the greatest of Bentham's contributions to analytical jurisprudence, and I think it is clear that, had it been published in his lifetime, it, rather than John Austin's later and obviously derivative work, would have dominated English jurisprudence, and that analytical jurisprudence, not only in England, would have advanced far more rapidly and branched out in more fertile ways than it has since Bentham's days.6
Hart's approach always involved the risk of distorting Bentham's philosophy by making it speak to an audience that was not his own. In a recent article, Philip Schofield has directly engaged with this issue and offered a sweeping critique of Hart's interpretation, based on the argument that Hart's efforts to reclaim Bentham for modern discussions generated major misrepresentations at the foundational level. Whatever the valuable stimulation Hart found in Bentham's legal theory, Bentham – on Schofield's reading – did not embrace the version of jurisprudence which Hart attributed to him.7 For my purposes here, of equal significance is another shaping feature of Hart's approach. This concerns the particular path of discovery and exposition that attended Hart's own renowned reshaping of what he frequently termed the ‘utilitarian tradition in jurisprudence’. Hart identified Bentham and John Austin as his two most important predecessors within that tradition.8 In his 1961 The Concept of Law, the contribution which so powerfully shaped decades-long debates within and beyond analytical jurisprudence, Hart elaborated his theory of law through a critique of, and constructive response to, John Austin's Philosophy of Positive Law.9 Like so many others, Hart began with the ‘derivative’ Austin, rather than the superior Bentham, as his chief interlocutor. Later, when he came to examine Bentham, he valued and concentrated on those elements of Bentham's jurisprudence which seemed significantly stronger than the better-known treatments by Austin. His critical response to Austin thus provided a standard and a principle of selection for the discussion of Bentham, and this framework served to elevate the concept of sovereignty in the interpretation of Bentham's jurisprudence and political theory.
Hart characterized the ‘utilitarian tradition in jurisprudence’ in terms of three defining positions: the definition of law as a species of command; the distinction between law and morals; and the emphasis for jurisprudence on the conceptual clarification of basic legal terms and relationships.10The Concept of Law retained the latter two positions: the ‘separation thesis’ (whereby the morality of a legal provision was differentiated from the question of its status as law); and the use of analytical and especially linguistic techniques to clarify the concept of law. Hart's most influential revisions concerned the command theory of law.11 Austin dedicated his jurisprudence to the study of ‘positive law’, and he identified ‘positive law’ with a command issued by a sovereign in an independent political community. Hart endorsed the legal positivist understanding of law as a human artefact, whose identity and nature were to be explained in terms of human sources. But he rejected Austin's account of law as a species of sovereign commands. The command theory failed to capture the complexity and full normative dimensions of law as a social institution. The paradigmatic form of law as a command – a criminal law prohibition – scarcely exhausted the distinctive forms and functions of law in a modern legal system. The legal subjects’ understanding of the manner by which law guided social conduct went well beyond the Austinian discussion of obedience derived from threatened legal sanctions. And Austin's treatment of sovereignty – a legally unlimited source of those commands which constituted law in a given political community – failed to acknowledge the complex institutional reality in virtue of which specific rules and practices were recognized as law.
Having begun Concept of Law with a careful review and critique of Austin's version of the command theory, Hart next urged a ‘fresh start’ and elaborated the famous revisionist thesis that law comprised ‘the union of primary and secondary rules’.12 On this formulation, the idea of ‘following a rule’ replaced the idea of ‘obeying a command’ as the general phenomenon in terms of which the nature of law was elucidated. In a developed legal system, law involved the combination of two distinctive kinds of legal rules: primary rules directly guiding social conduct, and secondary rules that specified the ways in which the primary rules were introduced, modified, implemented, and confirmed. Among other functions, the secondary rules provided a ‘rule of recognition’, by which other rules and norms were validated as law for the community. This alternative formulation, for Hart, readily accommodated as law the various kinds of facilitative and regulative rules which did not take the form of commands backed by threatened sanctions. It better captured the normative dimensions of legal ordering by explaining the law's function in creating particular kinds of obligations, and in providing authoritative reasons for particular decisions and behaviour. Critically for Hart, the account of rules of recognition also explicated the institutional practices of judges and courts, as well as the operation of such constitutional restraints on public authority as judicial review, which typically involved procedures and methods for determining the validity and valid interpretation of legal rules.
Hart's critical engagement with Austin's jurisprudence fashioned the script for his later appreciation of Bentham. He treated the definition of law presented in Bentham's Limits – ‘an assemblage of signs declarative of volition conceived or adopted by the sovereign in a state’13 – as a version of the ‘command theory’, and focused on those elements of Bentham's theory which departed from the Austinian model. Bentham's jurisprudence valuably addressed features of law or conceptual challenges that Austin neglected. Among the leading examples for Hart was Bentham's ‘logic of the will’ (deontic logic), which elucidated the idea of ‘command’ by delineating the four basic modes by which law could attempt to order lines of conduct (command; prohibition; permission to act; permission to forbear). His treatment of ‘legal duty’ pushed beyond the Austinian simplification that reduced the idea of ‘obligation’ to a prediction relating future conduct to threatened sanctions. And in exploring at length the nature of ‘legal powers’, Bentham treated a central topic that had been largely and unwisely ignored by other jurists.14 In these discussions, Bentham could be thought to travel a path similar to Hart's own, correctly identifying and addressing conceptual problems that proved especially vexing to any command theory of law. Ultimately for Hart, Bentham's adherence to the command theory left him without the conceptual resources required fully to resolve these problems. Instead, one needed to abandon the command theory for the alternative model of Concept of Law and Hart's later elaboration of its major themes.15
The same pattern held when Hart turned to the discussion of sovereignty. The attention he devoted to the concept was scarcely surprising. In Austin's jurisprudence – and, for Hart, in the command theory more generally – the concept of sovereignty performed crucial double duty. Sovereignty was central to the definition of law, and it denoted the core relationship that constituted political society. ‘Every positive law, or every law simply and strictly so called’, Austin maintained, ‘is set by a sovereign person, or a sovereign body of persons, to a member or members of the independent political society wherein that person or body of persons is sovereign or supreme’.16 Political society itself existed in virtue of a stable structure of sovereign command and subject obedience; and law – ‘simply and strictly so called’ – was the institutional embodiment of sovereign command. It followed, for Austin, that as the ultimate source of law in an independent political society, sovereignty was necessarily without legal limit. ‘Supreme power limited by positive law’, Austin reported, ‘is a flat contradiction in terms’.17
Hart's Concept of Law contained a full chapter analyzing the inadequacies of Austin's account. Though this was not something to which Hart drew attention, such criticisms of Austin on sovereignty had been common in the scholarship and pedagogy of Anglophone jurisprudence, and much of Hart's critique echoed these established lines of criticism.18 Not every act of sovereign law-making could be reduced to the form of a command. The presence and importance to the legal system of rules of recognition rendered the idea of legally limited sovereign power fully coherent. Indeed, in the standard practices of modern constitutional government, legally limited law-making power comprised a familiar and valued norm.19
Against this background, Bentham's discussion proved something of a revelation. Bentham first discussed sovereignty in his earliest major publication, the anonymous Fragment on Government of 1776,20 where he criticized Blackstone's definition of sovereignty as the legally unlimited power to make and alter law. In the series of immediately following compositions – An Introduction to the Principles of Morals and Legislation21; Limits (Of Laws in General, in Hart's edition); Projet d'un corps complet de droit22 – he returned to the concept of sovereignty, refining and expanding his analysis in significant ways.23 Bentham defined political society in terms of settled social experience: a political society existed on account of a general ‘habit of obedience’ within a given community towards a structure of authority. Given variation across communities, habitual obedience could differ in degree (how stable and thorough was the obedience) and in extent (the range of practices for which the obedience held). When Bentham turned to sovereignty, he elaborated the implications of this variation. The bounds of sovereign authority in a particular political community would often be difficult to specify with precision. The same authority could be ‘supreme’ with regard to some groups, but subordinate to others. Commands concerning particular areas of conduct (such as religious observance) might fall outside the structures of habitual obedience even under very stable conditions of political authority. The counter-position adopted by Blackstone (and later by Austin) – that sovereignty was by definition without legal limit – was flatly contradicted by the political experience of many states, ancient and modern, where such limitations clearly and routinely functioned. Bentham's favoured illustrations were cases of federal political systems (the German empire; the Dutch Provinces; the Swiss Cantons; the Achaean league) and states where an ‘express convention’ served publicly to specify boundaries on the operation of sovereign power.24
In Limits, Bentham considered other practices that served to limit sovereignty. Among these were what he termed laws ‘in principem’. Unlike ‘express conventions’, which typically were addressed to the entire community, laws ‘in principem’ were legal limits on power which the sovereign law-maker imposed upon him- or herself. Bentham conceded the oddity of a form of law in which the commander commanded him- or herself. But he made sense of the paradox by explaining that these kinds of law obtained their efficacy not through the threat of a legal sanction (the sovereign punishing him- or herself), but through the operation of the religious and moral sanctions.25
Hart devoted an entire essay to Bentham on ‘Sovereignty and Legally Limited Government’. As in other areas of his jurisprudence, Bentham was praised for addressing issues that Austin and other versions of the command theory of law failed to resolve. At the same time, however, Bentham's own adherence to the command theory again left him unable properly to explain the nature of legally limited government. The key problem was the failure to distinguish the question of the validity or invalidity of law from the question of the effectiveness or ineffectiveness of law in securing obedience. In the modern constitutional system of legally limited government, courts routinely recognized constitutional provisions ‘as constituting authoritative reasons for judicial decision and action’, and the practice of judicial review revealed the legal system's distinctive concern with establishing the authoritativeness and validity of legal sources.26 Bentham failed to recognize the distinctiveness of these features of law. In a final chapter, Hart further explored this critical theme through an account of ‘the idea of an authoritative legal reason’ which, among other ‘important features of law’, included ‘the existence of the Constitution conferring legislative power and legally limiting its scope’.27
Hart's perspective – for all its striking insights and precision – generated several strained readings of Bentham's position, particularly as attention shifted from jurisprudence to political theory. The experience of modern constitutional practice and judicial review of legislation unsurprisingly loomed large in Hart's own jurisprudence, but distortions resulted from the decision to frame so much of the analysis of Bentham in terms of the conceptual challenges posed for the command theory of law by the modern experience of ‘legally limited government’. Hart was absolutely correct to emphasize the differences between Bentham and Austin, and Bentham's express concern to acknowledge and explain the political reality of limits to sovereign authority. Hart's discussion, in turn, stimulated further valuable commentary from other Bentham scholars.28 Still, the phenomenon of ‘legally limited government’ was never an organizing issue for Bentham in the early writings that occupied Hart. Hart's chosen focus imposed a quite narrow frame on these materials and excluded from view other prominent and relevant components of Bentham's jurisprudence, as well as his political theory.
A good example of the difficulty appears in the context of Hart's repeated emphasis on the need in jurisprudence to explicate the distinctive and established role of courts in determining the validity of legislation. He was particularly struck by a brief discussion in ‘Fragment’ in which Bentham, as part of the repudiation of Blackstone's claim that sovereign power was necessarily without legal limits, considered the situation in which ‘the judicial power’ might enjoy ‘a controlling power over the acts of the legislature’ by treating certain laws as ‘being void’.29 Hart observed of the passage ‘that Bentham contemplated the possibility that legal limitation on supreme legislative power might be secured by something like a system of judicial review’.30 Hart's gloss likely pushed the material too far towards this specific constitutional destination. The burden of Bentham's comments was to suggest that it would be less politically dangerous to assign a power to ‘void’ legislation to judges rather than to the community at large, though overall he also believed it unwise for the courts to exercise this power. Whether he contemplated ‘something like a system of judicial review’ is less clear. His examples and language in these paragraphs echo a somewhat different institutional context: the established rules adopted by the common law for the ‘construction’ of acts of parliament. Blackstone, in the Commentaries, presented ten such rules, which included those discrete situations in which the courts treated statutes as ‘of no validity’ because the law was ‘impossible to be performed’, or as ‘void’ with regard to ‘any absurd consequences’. Bentham, in his ‘Comment on the Commentaries’ (the unfinished parent-work from which ‘Fragment’ was extracted), undertook a sustained critique of Blackstone's treatment, and the passages in ‘Fragment’ that drew Hart's attention recall elements of this longer discussion. In both places, Bentham was especially concerned to establish the unhelpfulness of Blackstone's traditional reliance in these settings on appeals to ‘reason’ and ‘reasonableness’, as opposed to Bentham's own insistence on the standard set by demonstrations of utility.31 Even if we follow Hart in recognizing that in these passages Bentham delineated the space for ‘something like a system of judicial review’, to leave the topic there omits too much, given how extensively and deeply in his jurisprudence and political theory Bentham examined the relationship between legislation and judicial capacity. This was an issue that preoccupied Bentham throughout his career. But it was never an issue he principally pursued in terms either of ‘sovereignty’ or of ‘legally limited government’.
During the first phase of his career – roughly in the period preceding the belated 1789 publication of IPML – Bentham's leading project was the composition of a comprehensive theory and plan of legislation. What he described as a Pannomion – ‘a complete body of law’32 – served as the foremost institutional vehicle for his plans for systematic law reform and the promotion of human happiness. The setting in which he devoted most sustained attention to judges and courts was his critique of customary law (in England, common law), where his remorseless demonstration of the failures of judge-made common law always featured as a basic part of his positive case for legislative codification.33 Among the signal merits of his codification plan was its capacity ‘to check the license of interpretation’, and a major challenge for Bentham was to identify the institutional arrangements that would prevent adjudication under the Pannomion from becoming a separate source of rival customary law. An organizing goal was to preserve the legal certainty and resulting utility he ascribed to codification from the mystery, obscurity and abuses he treated as necessary features of judge-made law.34
With his conversion to democratic radicalism, Bentham's approach to judicial power acquired further urgency as he came to perceive ‘judge and company’ as a paradigmatic instantiation of an organized corporate elite that functioned to prevent government and law from advancing the greatest happiness of the entire community. In addition to being a potential source of legal uncertainty and confusion, lawyers and judges functioned as a powerful ‘sinister interest’ and source of political ‘misrule’.35 The plan for democratic government in his Constitutional Code contained elaborate provisions for the organization of courts and judicial procedure, designed to insure both the faithful implementation of the legislative code and effective security against the abuse of judicial power. These included a novel system of procedures that would enable the legislature to benefit from regular recommendations for the improvement of the law generated by the experience of the courts, while at the same time preventing the judiciary from operating as a rival to legislative power.36 Whatever the merits of these elaborate institutional designs, the lavish detail at least makes plain how much of the analysis of ‘judicial power’ for Bentham was not a question that turned on the nature of sovereignty and its potential forms of legal limits.
Other problems arise in relation to Hart's abrupt characterization of Bentham's position in his mature democratic theory. In Constitutional Code, Bentham identified sovereignty with what he termed the ‘the Constitutive Authority’ of the community. The community was sovereign in virtue of its power to elect legislative representatives and remove from office those who failed to fulfil their political responsibilities. Bentham distinguished this form of popular sovereignty from the ‘Operative’ authority of the state, which comprised the Legislative, Administrative, and Judicial bodies.37 Hart chose to exclude this material in his treatment of Bentham on sovereignty because he believed it marked such a clear departure from the approach Bentham adopted elsewhere. ‘The concept of popular sovereignty as developed in the Constitutional Code’, he maintained, was ‘not only a quite different concept’ from that Bentham considered earlier in connection with the ‘the possibility of limited sovereignty’, but equally involved ‘a quite different theory of law’. The Constitutional Code enjoyed the status of ‘law’, even though it was not the product of any sovereign command.38
Hart's argument concerning this rupture in Bentham's thought stimulated an important body of subsequent commentary. Although the scholarship in question is in no sense uniform in its objectives or findings, in various ways it warns against Hart's suggestion that Bentham's democratic radicalism entailed a ‘quite different theory of law’. As already seen in Bentham's handling of judicial power, his shift to democratic politics did indeed introduce major new priorities and orientations in his law reform project. The political practices he found relevant to explain the reality of limited sovereignty were quite different from the experiences of political power he chose to mobilize for a normative theory of democratic government. Nonetheless, important elements of continuity remained, though their observation demands a more expansive consideration of the Bentham materials than Hart allowed. Gerald Postema, a sympathetic critic of Hart, has offered the richest reconsideration of these materials in his masterful reconstruction of Bentham's legal theory. For Postema, Bentham's jurisprudence contained much better resources for dealing with the challenges to the command theory than Hart recognized, including resources for understanding the distinctive manner in which questions of ‘validity’ formed part of what was recognized as law in a given community. These overlooked strengths of Bentham's legal theory required a different reading of the development and content of his discussion of sovereignty from that presented by Hart. But once assembled, Postema concluded, the ‘democratic theory of sovereignty in the Constitutional Code’ proved ‘perfectly consistent’ with the earlier discussion and theory of law.39
Hart's discussion also attracted scholars concerned with development of Bentham's political thought, who also perceived elements of continuity as well as significant change in the democratic materials. The idea of ‘constitutive’ power as a dimension of sovereignty, as J.H. Burns emphasized, was first explored by Bentham in the 1780s in IPML, in a lengthy passage that distinguished between ‘investitive’ and other forms of political power. The account of popular sovereignty in Constitutional Code, and the more general distinction between ‘constitutive’ and ‘operative’ authority, thus involved a return to materials Bentham had developed much earlier. The key changes in Bentham's position owed less to the alterations in his theory of law and sovereignty than to the specific version of democratic statecraft he advanced.40 Frederick Rosen returned to the same issues of continuity and change in his influential study of Constitutional Code. He too stressed how the most important changes in Bentham's position reflected the terms of his democratic advocacy. His treatment of political power was no longer oriented to questions of ‘order, obligation, and law’, as in the earlier discussions of sovereignty. Instead, questions of political power were now firmly focused on the best forms of political rule.41
The contributions of Burns and Rosen raise a final issue which deserves much greater prominence. This concerns whether the concept of sovereignty – notwithstanding the key conceptual work with which it is associated in the command theory of law – can actually carry the interpretative weight assigned to it in Hart's fertile analysis. As Burns noted of Bentham's early discussions of sovereignty, these ‘themes’ were always ‘peripheral’ to ‘Bentham's main interests’ in the compositions in which they appeared, and typically received rehearsal in the digressive form of ‘an enormous footnote’.42 Rosen rightly explained that Constitutional Code ‘does not dwell on the problem of sovereignty’.43 In fact, in a massive and putatively comprehensive three-volume plan for democratic rule, the term effectively vanished. ‘Sovereignty’ appeared in only one three-sentence chapter, the briefest of the thirty-one chapters comprising the work.44 In other writings that accompanied the Code's composition, such as the 1823 Leading Principles of a Constitutional Code,45 or the papers now assembled as First Principles Preparatory to Constitutional Code,46 the term was simply absent. Of course, the omission of the term does not demonstrate the insignificance of the concept. But it does suggest that Bentham's concerns with law and public power in Constitutional Code were not framed in terms of the analysis of sovereignty. An alternative and sturdier bridge is required for connecting Bentham's jurisprudence and his mature political theory.
Codification and Democracy
As an alternative to Hart's approach, I propose to connect Bentham's jurisprudence and his democratic theory by emphasizing his codification ideal. This involves an account of Bentham's Constitutional Code as an exercise in codification, and an understanding of the manner in which Bentham sought to harness for democracy a logic of public power he elaborated in his legislative programme. Hart, whose knowledge of Bentham's writings was formidable, largely excluded the codification project from the discussion in Essays on Bentham. Given this, it is helpful to emphasize how much of the jurisprudence Hart so much admired was itself composed specifically for the sake of Bentham's legislative plan. Bentham did not develop a concept of law which he then applied to the task of legislative design. Rather, in seeking to produce a legislative code he encountered conceptual challenges which stimulated specific jurisprudential inquiries.
The material eventually published as IPML was initiated ‘as an introduction to a plan of a penal code in terminis, designed to follow…in the same volume’.47 The work that Hart praised as Bentham's greatest contribution, Limits (Of Laws in General, in Hart's edition), began as the continuation of the closing chapter of IPML, where Bentham tackled the distinction between the penal and civil branches of the law. This distinction, Bentham maintained, required an analysis of a more fundamental question. ‘It will be necessary’, he explained, ‘to ascertain what a law is: meaning one entire but single law’.48 The object of attention was not the frequently rehearsed modern question concerning ‘the concept of law’ or ‘what law is’. Instead, Bentham's question was ‘what a law is’. And the question of individuation – the challenge of determining what comprised ‘one entire but single law’ – again arose expressly in terms of his legislative project. As Bentham explained earlier in the same closing chapter of IPML, ‘it is evident enough that the notion of a complete law must first be fixed before the legislator can in any case know what he is to do, or when his work is done’.49 In completing the analysis and explaining its value, he again returned to his legislative programme. Among its several achievements, Bentham listed first and foremost its having established the foundation for ‘the plan of a compleat and regular body of statute laws: and thereby…a compleat body of law for every purpose’.50
In his jurisprudence, Bentham expressly adopted a capacious definition of the term law: ‘The latitude here given to the import of the word law is…rather greater than what seems to be given to it in common.’51 But in his utilitarian programme for law reform, he presented his codification plan as the sole form of law that could fulfil the institution's moral goal to promote the greatest happiness.52 In contrast to the reactive and ad hoc manner in which most laws were enacted, or which, in the case of customary law, had fashioned entire legal systems, Bentham's Pannomion was a prospective legislative design, whose detailed rules and procedures displayed the ‘dictates of utility in every line’.53 The principal branches of the Pannomion – the codes of penal, civil, constitutional, and procedure law – were each shaped by distinctive goals and organizing priorities. The Code's organizing divisions and categories were given a rigorously developed and maintained terminology designed to make clear the law's aims and functions. ‘Clearness, correctness, completeness, conciseness, compactness, methodicalness, consistency’, Bentham emphasized in characterizing his codification ideal.54
Among the distinctive features of Bentham's mature political theory was that his plan for democracy took the form of a legal code. Bentham's democratic theory was elaborated through a variety of writings, directed at a range of distinct audiences. But his plan for a democratic state was formulated as a three-volume Constitutional Code. In the sole part of the work Bentham managed to bring to publication within his own lifetime, the 1830 Volume One, Bentham chose to begin not with democratic government, but instead with his legislative plan. Thus, his Preface introduced the work by locating Constitutional Code as a component part ‘of my all-comprehensive Code’ or ‘say, in one word, of my Pannomion’.55
Like other advocates of democracy in his era, Bentham began with a comprehensive indictment of the then dominant state systems of monarchy and aristocracy.56 The political structures, procedures, and ideologies of these states all served what he termed the ‘sinister interest’ of ruling elites, according to which public power and wealth were deployed to enhance the welfare of the ‘ruling few’ at the expense of the subject many. The task of democracy was to combat ‘sinister interest’ by introducing a radically altered pattern of political life devoted to the welfare of the entire community. This, for Bentham, involved an extensive democratic electorate who (as we have seen) held sovereign ‘constitutive’ authority. This authority chose legislative representatives who exercised supreme ‘legislative’ authority. The elected legislature made law and chose the state's most important government officials. It appointed a Justice Minister, who was responsible for the operation of community's elaborate network of local and appellate courts, and a Prime Minister, who oversaw an ambitious structure of thirteen administrative departments. All the political structures were designed to make clear the specific duties of each government official, to identify individual responsibility for each government decision, and to make the functioning of the state fully known to the democratic community, whose members monitored its activities, and enjoyed wide powers to criticize its failings, to accuse and condemn government officials who were held to have failed in their public responsibilities, and to remove from office those elected representatives who violated its trust.
Bentham's political design eschewed those constitutional devices that had already become familiar in the liberal political experiments of the American and French Revolutionary era, and to which Hart referred in his discussion of judicial review. Legally limited government, as Bentham's early discussions of sovereignty explained, was a well-established feature of political practice. But it was not part of his radical democratic programme. Bentham rejected not only structural arrangements to secure constitutional ‘balance’, or a ‘separation’ of political powers, but also enacting and entrenching ‘declarations’ of irrevocable individual rights. For example, the Constitutional Code identified many laws and policies the state should avoid because these measures violated the general happiness of the community. A leading example was the insistence that there should be no established church, no public system of religious instruction, and no laws supporting religious orthodoxy.57 But this policy was not advanced through constitutional limitations on state authority or legislative capacity concerning religion. Rather, the legislature was ‘omnicompetent’, and there were ‘no limits’ to ‘its power’. To prevent the abuse of political power and the adoption of policies contrary to the general happiness, Bentham designed a system ‘checks’ and ‘securities’, including those which rendered effective the community's control over those who exercised political power.58
Chief among such securities against misrule, Bentham emphasized the power of critical public opinion. ‘Public Opinion’, he maintained, ‘may be considered as a system of law, emanating from the body of the people’.59 He gave institutional expression to this claim through a body he termed the Public Opinion Tribunal, which functioned analogously to a judicial body in airing charges concerning individual misconduct and in issuing penalties where such charges proved convincing. The Public Opinion Tribunal imposed moral sanctions, principally in form of the suspicion and lowered reputation it attached to those public officials it convicted of misconduct. This tribunal – and the operation of critical public opinion generally – furnished the most important resource against political abuse and sinister interest. ‘Of the aggregate mass of securities against the abuse of power…the greatest part…unavoidably depends upon the power of the Public Opinion Tribunal.’60
What does it mean to interpret this political programme as an exercise in codification? In its methods and presentation, the Constitutional Code displayed the general logic of the larger Pannomion. This part of the complete code distributed public offices and powers; and, as with the other principal parts, it was equipped with a defining set of subsidiary goals and priorities through which the foundational goal of general happiness was advanced. In the case of constitutional law, the unifying goals were ‘official aptitude maximized’ and ‘expense minimized’. In his codification proposals, Bentham insisted that legal systems which relied on unwritten and customary rules actually lacked systems of authentic law. Likewise, in his democratic writings, he argued that states lacking written and authoritative constitutional texts likewise lacked authentic constitutional law. Inherited and customary legal rules and maxims, as he insisted at length in his attacks on England's common law, routinely preserved abuses, and masked professional self-interest from public scrutiny. So, in the case of political practice, established legal structures and conventional constitutional pieties served to protect the abuses and sinister interest the ruling few.61 In the effort to achieve precision and clarity in his legislative programme, Bentham became notorious for his frequent word invention – his creation of novel terms and categories to denote more precisely and consistently the law's categories and designs. The practice was maintained in Constitutional Code, as Bentham developed a new terminology to describe the basic functions and responsibilities of government officials. Thus, for example, in delineating the administrative structure of the state under the direction of the Prime Minister, Bentham identified and described the principal functions assigned ‘collectively’ to all of the administrative departments – statistic function, requisitive function, inspective function, officially-informative function, information-elicitative function, melioration-suggestive function – and these novel categories in turn served as a terminological shorthand in the later treatment of the specific duties of the individual ministries.62
Constitutional Code, moreover, presupposed the operation of the larger Pannomion to support its felicific goals. This was the point Bentham emphasized in his published preface to the constitutional plan.63 The elaborate network of offices and routines that set out the organization of the judiciary presupposed the Procedure Code. The constitutional resources for combatting abuses of political power included the provisions of the Penal Code. Perhaps most revealing, Bentham made the maintenance of the Pannomion one of the major tasks for government in his design for a democratic community. The Constitutional Code included among its administrative structures the office of Legislation Minister. With the exceptions of the Prime Minister and the Justice Minister, Bentham devoted more space to this position than any other government office; and the discussion eclipsed his treatment of more familiar government departments such as the ministries of trade, finance, foreign relations, army, or navy.64 The Legislation Minister was assigned responsibility for ensuring that community's body of law maintained its required qualities of ‘clearness, correctness, completeness, conciseness, compactness, methodicalness, consistency’, notwithstanding the improvements that would be introduced in order to augment the happiness of the community. This, in part, involved a massive task of co-ordination and communication, since Bentham intended proposals for law reforms routinely to occur in the operations of courts, and of central and local government, as well as in the contexts of legislative debate and critical public opinion. Hence the need to publicize these proposals, bring them to the attention of the relevant government bodies, and identify the consequences for other areas of law of any proposed alterations of particular legislative rules. In addition, there was, for Bentham, the Legislation Minister's critical responsibility to help preserve the ‘symmetrical form’ of the Pannomion; such features as its systematic order, consistent terminology and methodical plan. It was the failure to attend to this task that rendered the frequently unco-ordinated and inexpert practice of modern legislation so often destructive of the goals of codification.65 Under the structures of the Constitutional Code, no changes to the law would occur outside the authority of the elected legislature. And any such changes that were so enacted would preserve the form and consistency of the Pannomion itself.
In addition to the manner in which the Constitutional Code was integrated into the broader structures of Bentham's codification project, the democratic plan embodied a technology of power which Bentham had previously elaborated in his theory of legislation. Here the codification ideal helps clarify Bentham's understanding of the beneficial dynamics between rulers and ruled made available through democratic structures. What made codification, for Bentham, such a powerful tool for the advancement of public happiness was not simply the substantive rules that comprised the content of the law. Of equal importance was the code's distinctive function and strengths as an instrument of communication and publicity.
The importance of communication and publicity followed directly from Bentham's understanding of law's institutional task of furnishing a structure of publicly articulated and maintained securities, which enabled individuals to chart their futures, undertake complex cooperative ventures, and realize their plans and expectations for happiness. But, crucially, law only produced these benefits on the basis of purposeful coercion and compulsion, which inevitably involved a sacrifice of happiness and liberty. Law created rights and promoted security by imposing duties and restraints; and law redeemed these duties and restraints by threatening and inflicting punishments for their violation. ‘To make a law’, Bentham maintained, ‘is to do evil that good may come’.66
The legitimacy of the law thus turned directly on its success in meeting the challenge of shaping conduct through the infliction of appropriate punishments. Success required high levels of certainty and promptness in the implementation of the law – a task for the Procedure Code. And it required publicity. Although it was possible to undertake law-making in a manner that showed little concern for the need for communication – England's common law was always, for Bentham, the nightmare example of abuse in this area – the Pannomion, in contrast, took this as a central and morally urgent institutional goal. In its internal ordering and expression, the Code was designed to maximize ‘cognoscibility’: that is, those qualities that rendered the aims and content of the law as easily understood by the community as possible.67 The Code's methodical arrangement and structures made clear the law's overall design and felicific goals. The use of a precise and consistent terminology gave new clarity to the specification of rights and duties. Under the general heading ‘Promulgation’, Bentham further identified a number of techniques to insure that this material was effectively conveyed to the members of the community.68
In addition to these devices, the Pannomion was equipped with what Bentham termed a ‘perpetual commentary of reasons’, through which the law's provisions received authoritative exposition and explanation. Throughout each of the main branches of the Pannomion, the required commentary or ‘rationale’ served the purposes of communication, since members of the community were now guided by rules whose meaning and purposes received comprehensive elucidation. This, in turn, enhanced the efficacy and thereby the legitimacy of the law, since it became easier for the members of the community to orientate their conduct to a law that had been formulated and presented with the express aim of aiding understanding. On this dimension, cognoscibility and publicity enhanced the power of public law. But the same technology of communication simultaneously served a regulative function against the abuse of legislative power. By requiring the law-giver to assign ‘a sufficient reason for every law’, the rationale provided a ‘preservative’ against ‘blind routine’ and a ‘restraint to every thing arbitrary’.69 Because of the need to explain specifically and in detail how each provision of the Code served to advance the general happiness, any misguided rules that failed this standard would be revealed. More importantly, by rendering the law a fully known and comprehensible entity, the Pannomion stood exposed to public comment and criticism. This made the Code a fully public resource: an institution of power that utilized methods which enabled the public to monitor and critique the exercise of that power.
Bentham captured this dynamic in one of the later statements of his codification ideal, his ‘Papers Relative to Codification and Public Instruction’, assembled in the 1810s. For the members of the community, he maintained, the Code functioned as ‘an anchor’ (imposing legal restraints) and as ‘a compass’ (orientating legally-guided social conduct).70 But for those who ruled, the Code's ‘perpetual commentary of reasons’ served as a ‘bridle’ on the ‘power of the constituted authorities’.71 ‘Conceive now the advantage’, Bentham reported, ‘with which, in his capacity of censor, every citizen will be enabled to act, while calling to account this or that member of the legislative body, in respect of the Code, or any part of the Code, to which his concurrence has been given’.72
Bentham's work on ‘Papers Relative to Codification and Public Instruction’ was roughly contemporaneous with his publications in defence of radical Parliamentary reform which first made public his own democratic commitments. In these ‘Papers’, he aligned codification with his developing democratic programme by viewing both as instruments to combat the abuse of power. Both functioned within a co-ordinated network of securities against misrule. The link was readily made because of the way in which Bentham's democratic design extended the logic of codification to the general operations of the state, and structured the same reinforcing dynamics of power operating between rulers and ruled. As codification made law legible and cognoscible, the Constitutional Code rendered the state and government power likewise legible and cognoscible. Publicity and transparency became the steady drum-beat of government routines. Politically, this was achieved through a variety of instruments. Chief among them were the elaborate mechanisms by which public officials assembled and disseminated an official archive of government power and community welfare. Through exacting provisions specifying what Bentham termed the ‘statistic’ and ‘recordative’ functions, Constitutional Code required those who exercised public authority to maintain a comprehensive, uniformly ordered and indexed, and cognoscible body of official records. Bentham designed a library's worth of materials to record which government official decided what and when; to record under what circumstances, to what purposes, and with what effects such decisions were made; to disclose any errant or fraudulent conduct; and to encourage proposals concerning how in future government activity might be improved.73 Accompanying this official archive was a separate structure of official ‘Registration and Publication’ by which this information circulated among government officials; was transferred upwards through a hierarchically structured network of government superiors, culminating in the Prime Minister; and was further conveyed to the community's elected legislative representatives and to the community at large.
On one dimension, official public records were instruments of power. The gathering and circulation of information served to enhance the efficacy and thereby the capacity of the state. Local government officials collected demographic and economic information concerning the districts in which they served; courts collected information concerning the implementation of the law, and identified areas which needed improvement; ministers assembled and analyzed information on the performance of their departments; the Prime Minister assembled and analyzed information on performance of ministers and their ministries; the Legislature assembled and analyzed its own information concerning government performance and the welfare of the community. The quality and availability of this information were a vital resource for ‘official aptitude’, and was critical to the state's successful promotion of general happiness. ‘As in all private so in all public business’, Bentham observed, ‘apt operation’ required ‘appropriate and correspondently extensive information’.74 Such ‘extensive information’ was particularly vital given the increased range of public responsibilities assigned to the state, as in the case of health, education, and indigence relief.
But at the same time that ‘extensive information’ increased the efficacy of the state, it also created instruments to thwart the abuse of public power. The public archive enabled the Prime Minister to analyze and evaluate the performance of the administrative officials under his or her authority; the elected representatives were better able to analyze and evaluate the performance of those charged to implement their legislative will; and, most important, the democratic populace acquired the information to analyze and evaluate the performance of all who ruled, elected representatives included. Thus, the dissemination of official records comprised a key element in what Bentham termed the ‘completeness of the subjection to the power of the Public Opinion Tribunal’. The activities of the rulers were archived so fully, consistently and legibly that the state itself became firmly placed ‘under the surveillance of the public’.75
Constitutional Code can be understood as the ultimate embodiment of Bentham's codification ideal as system of known and public law. In this setting, the law's required ‘perpetual commentary of reasons’ was supplied to the community through the body of the code itself. Each of Constitutional Code's elaborate provisions was identified and labelled according to its specific purpose as ‘Enactive’, ‘Instructional’, ‘Ratiocinative’, ‘Expositive’, or ‘Exemplificational’.76 Under these provisions, the democratic citizenry enjoyed sovereignty as a supreme ‘Constitutive’ authority. But the power so exercised operated within a field of publicity and criticism that simultaneously enhanced state power and stifled abuse. In designing democracy, Bentham drew on an institutional logic he had elaborated in his earliest writings on codification, and this approach served to bring into unity his legislative project and his democratic statecraft. Codification furnished a vital and foundational link between jurisprudence and political theory.
1 I am grateful to Professor Xiaobo Zhai for his welcome invitation to participate at the international symposium at the Law School of Zhengzhou University for which this chapter was first composed. I am further indebted to him, as well as to the other symposium participants, for their many questions and suggestions. In revising the paper, I benefited greatly from the detailed and probing comments furnished by Peter Niesen.
2 , Constitutional Code: Volume I (CW), eds. and (Oxford: Clarendon Press, 1983 (CW)), title page.
3 For a brief review of this scholarship, see my ‘Bentham's Democracy’, Oxford Journal of Legal Studies28 (2008), 605–26, at 608–14.
4 , Essays on Bentham: Studies in Jurisprudence and Political Theory (Oxford: Clarendon Press, 1982), 10–11, 43, 130.
5 , Of Laws in General, ed. (London: Athlone, 1970 (CW)); Of the Limits of the Penal Branch of Jurisprudence, ed. (Oxford: Clarendon Press, 2010 (CW)) (henceforth Limits (CW)).
6 Hart, Essays on Bentham, 108.
7 , ‘Jeremy Bentham and H.L.A. Hart's “Utilitarian Tradition in Jurisprudence”’, Jurisprudence1 (2010), 147–67.
8 See , ‘Positivism and the Separation of Law and Morals’, in Essays in Jurisprudence and Philosophy (Oxford: Clarendon Press, 1983), 49–87.
9 John Austin's Lectures on Jurisprudence or The Philosophy of Positive Law first appeared in 1861–3. The first part of Austin's jurisprudence had appeared in 1832 as The Province of Jurisprudence Determined (London: John Murray). This is the section of the work most relevant to Hart's discussion.
10 See Hart, ‘Positivism and the Separation of Law and Morals’, 57.
11 Among Hart's first publications in jurisprudence was an introduction to an edition of Austin'sProvince of Jurisprudence Determined, ed. (London: Weidenfield and Nicholson, 1954), vii–xviii) that presented several of the major critical themes later elaborated in The Concept of Law (Oxford University Press, 1961).
12 See Hart, Concept of Law, Chs. 5 and 6, which set out the core elements of Hart's ‘fresh start’.
13 Limits (CW), 24.
14 See Hart, Essays on Bentham, Chs. 5, 6, and 8.
15 Hart offered the following summary at ibid., 243: ‘A pervasive theme of the later essays in this book is that the central concepts of Bentham's imperative theory of law, viz. command and permission, habits of obedience, legality and illegality, are inadequate in the sense that there are important features of law which cannot be successfully analyzed in these terms and are distorted by Bentham's attempted analysis of them. These features include legal obligation and duty, legislative power, legally limited government, and the existence of the Constitution conferring legislative power and legally limiting its scope, and also the notions of legal validity and invalidity as distinct from what is legally permitted and prohibited. I have argued that to understand these features of law there must be introduced the idea of an authoritative legal reason: that is a consideration…which is recognized by at least the Courts of an effective legal system as constituting a reason for action of a special kind.’
16 , Lectures on Jurisprudence, 5th edn, ed. , 2 vols. (London: John Murray, 1885), i. 220.
17 Ibid., i. 263.
18 See , Legal Philosophy in the Twentieth Century: The Common Law World (Dordrecht: Springer, 2011), 7–13. These criticisms emerged in the earliest reception of Austin's jurisprudence; see, for a particularly influential example, , Lectures on the Early History of Institutions (first published 1875), 7th edn. (London: John Murray, 1905), 345–70.
20 , A Fragment on Government; Being an Examination of What Is delivered, on the Subject of Government in General, in the Introduction to Sir William Blackstone's Commentaries (London: T. Payne, 1776), published in the critical edition of Bentham's collected works in A Comment on the Commentaries and a Fragment on Government, eds. and (London: Athlone, 1977 (CW)), 391–551 (henceforth ‘Fragment’, in Comment/Fragment (CW)).
21 An Introduction to the Principles of Morals and Legislation, eds. and , with a new introduction by (Oxford: Clarendon Press, 1996 (CW)) (henceforth IPML (CW)).
22 For discussion of the composition of this unfinished and as yet unpublished work, see E. de Champs, ‘Utility, Morality, and Reform: Bentham and Eighteenth-Century Continental Jurisprudence’, Chapter 8 in this volume.
23 For a detailed discussion of the relevant Bentham texts and the development of his analysis, see , ‘Bentham on Sovereignty: An Exploration’,Northern Ireland Legal Quarterly24 (1973), 399–416.
24 See Bentham, ‘Fragment’, in Comment/Fragment (CW), 428–34, 485–90.
25 See Bentham, Limits (CW), 86–93.
26 See Hart, Essays on Bentham, 234–42, and 58–60.
27 Ibid., 243.
28 See the discussion at notes 39–41 in this chapter.
29 ‘Fragment’, in Comment/Fragment (CW), 487–8 (paras. 30–3).
30 Hart, Essays on Bentham, 231–2; and see ibid., 60, where Hart noted that Bentham wrote ‘twenty-seven years before Marbury v. Madison was decided by the U.S. Supreme Court’.
31 See ‘A Comment on the Commentaries’, in Comment/Fragment (CW), 1–273, at 137–61, esp. 157–61.
32 IPML, 305.
33 See my ‘Bentham on Codification’, in Jeremy Bentham: Selected Writings, ed. (New Haven and London: Yale University Press, 2011), 460–77, at 464–70.
34 See Limits (CW), 227–9.
35 The theme of ‘sinister interest’ and the importance of its emergence in Bentham's political theory receives valuable analysis and emphasis in , Utility and Democracy: The Political Thought of Jeremy Bentham (Oxford University Press, 2006), 109–36.
36 See Bentham, ‘Constitutional Code’, Bowring ix. 1–647, at 504–14. (This was material assembled by Richard Doane, who edited ‘Constitutional Code’ for the Bowring edition.)
37 Constitutional Code: I (CW), 25 (Ch. 3), and 27 (Ch. 4, Art. 6).
38 Hart, Essays on Bentham, 228–9.
39 , Bentham and the Common Law Tradition (Oxford: Clarendon Press, 1986), 261; and see the fuller discussion at 237–62. A more extreme critique of Hart is offered by Oren Ben-Dor. Ben-Dor finds in Bentham a ‘split concept’ of sovereignty, in which the community's habits of obedience operate in critical relationship to the practice of legislative supremacy. For Ben-Dor, Bentham's position on sovereignty meant that he never embraced the form of command theory of law which Hart attributed to him, and that the democratic potential of his approach was already present as early as ‘Fragment’: see , Constitutional Limits and the Public Sphere: A Critical Study of Bentham's Constitutionalism (Oxford: Hart, 2000), Chs. 2, 4–6.
40 See Burns, ‘Bentham on Sovereignty’, 403–5, 413–16. Hart responded briefly to Burns in Essays on Bentham, 229n.
41 See , Jeremy Bentham and Representative Democracy: A Study of theConstitutional Code (Oxford: Clarendon Press, 1983), 41–54.
42 Burns, ‘Bentham on Sovereignty’, 403, 404, 408. Burns's emphasis on the need for greater care in charting the development of Bentham's discussion of sovereignty over time and texts is reinforced by Schofield in ‘Bentham and H.L.A. Hart's “Utilitarian tradition in Jurisprudence”’, 164–5.
43 Rosen, Bentham and Representative Democracy, 41.
44 Constitutional Code: I (CW), 25 (Ch. 4).
45 ‘Leading Principles of a Constitutional Code, for any state’, The Pamphleteer, 22 (No. 44) (1823), [476]–86 (Bowring, ii. 267–74).
46 First Principles Preparatory to Constitutional Code, ed. (Oxford: Clarendon Press, 1989 (CW)).
47 IPML (CW), 1.
48 Ibid., 299.
49 Ibid., 283.
50 Limits (CW), 220.
51 Ibid., 25.
52 I draw here on my fuller discussion in ‘Bentham on Codification’, 464–70.
53 IPML (CW), 7.
54 , ‘Codification Proposal, Addressed by Jeremy Bentham to All Nations Professing Liberal Opinions’, in ‘Legislator of the World’: Writings on Codification, Law, and Education, eds. and (Oxford: Clarendon Press, 1998 (CW)), 241–384, at 268.
55 Constitutional Code: I (CW), 3. (The 1830 Constitutional Code Volume One included a detailed Table of Contents for the Penal Code, and made reference to the anticipated publication of similar Tables for the Civil and Procedure Codes.)
56 In surveying Bentham's democratic theory here, I draw on my fuller discussions in ‘Bentham's Democracy’, and ‘Economy and Polity in Bentham's Science of Legislation’, in Economy, Polity, and Society: British Intellectual History 1750–1950, eds. , , and (Cambridge University Press, 2000), 107–34, at 124–34.
57 See the extensive ‘Note’ on the ‘subject of Religious Establishment’ in ‘Constitutional Code’, Bowring ix. 452–3.
58 See Constitutional Code: I (CW), 41–2 (Ch. 6, Art. 1).
59 Ibid., 36 (Ch. 5, § 4, Art. 4).
60 Ibid., 125 (Ch. 6, § 31, Art. 33). On the importance of publicity in Bentham's jurisprudence, see Postema ‘The Soul of Justice’, Chapter 3 in this volume, and ‘Bentham on the Public Character of Law’, Utilitas1 (1989): 41–61; and in relation to Bentham's political theory, see Schofield, Utility and Democracy, 250–71, 293–6.
61 For brief presentations of these major themes, see: ‘Constitutional Code’, Bowring ix. 9–11; Official Aptitude Maximized, Expense Minimized, ed. (Oxford: Clarendon Press, 1993 (CW)), 30–7; and First Principles Preparatory to Constitutional Code (CW), 252–69.
62 See Constitutional Code: I (CW), 186–202 (Ch. 9, § 4, Arts. 1–70), and ‘Constitutional Code’, Bowring, ix. 428–53.
63 See the discussion at note 55 of this chapter.
64 See ‘Constitutional Code’, Bowring, ix. 428–37.
65 Ibid., Bowring, ix. 432, 437.
66 Limits (CW), 76.
67 For a summary rehearsal of this theme, see ‘Papers relative to Codification and Public Instruction’, in ‘Legislator of the World’ (CW), 1–185, at 8–12.
68 See ‘Essay on the Promulgation of Laws, and the reasons thereof; with a specimen of a Penal Code’, Bowring, i. 155–68. Bentham expected that the content of the Pannomion would be re-organized and published in the form of ‘particular codes’ (addressed to specific sub-groups within the community), and as separate ‘Promulgation-paper’ materials (that would facilitate the exercise of basic rights and powers, as in the case of conveyances, agreements, instruments of legal process, and so on): see, for example, ‘Papers relative to Codification and Public Instruction’, 9–10.
69 ‘Essay on the Promulgation of Laws’, Bowring, i. 161.
70 ‘Papers relative to Codification and Public Instruction’, 141; and see ‘Codification Proposal’, 248–9.
71 Ibid., 269.
72 Ibid., 270.
73 See the ‘Instructional’ discussion in Constitutional Code: I (CW), 222–5 (Ch. 9, § 7 (1st), Arts. 18–21).
74 Ibid, 283 (Ch. 9, § 10, Art. 1).
75 Ibid., 427–8 (Ch. 9, § 25, Art. 30).
76 See Bentham's discussion of this feature of the Constitutional Code in Official Aptitude Maximized (CW), 30–7.
