Arranging State Institutions: Distrust Required

That institutional design calls for distrust is a conviction running through Bentham's entire corpus. In Political Tactics, it colors his reflections on the proper organization of a legislative assembly, in which the very first “tactic” Bentham recommends is publicity (Reference Bentham, James, Blamires and Pease-Watkin1999, 29). As we have already seen, this instrument is said to embody distrust even as it serves to win public confidence. But just whom should we distrust, according to Bentham, and on what grounds? How sweeping, and how stable over time, should our suspicions be?

In answering these questions, it is crucial to keep in view that Political Tactics is a handbook for framing legislative assemblies. The text is animated by the following thought: institutional designers should adopt a posture of distrust because it is only by distrusting the hypothetical legislator—by remaining alert to the temptations she will face, by understanding her incentives to self-dealing, by foreseeing her opportunities for corruption—that adequate safeguards can be devised. In this way, the assembly-maker's attitude of distrust motivates a prudent approach very much like the careful reckoning of any good architect (see Lieberman Reference Lieberman, Collini, Whatmore and Young2000, 120–1). To avoid collapse, the framer must know her materials and foresee the forces that will act upon them. Her building will stand only if she opposes buttresses or arches or lintels to gravity's pull. Likewise for Bentham's institutional designer: the careless assumption that every legislator will be like iron, impervious to pressure, could spell disaster.

The concern is not idle. Legislators frequently face pressures to neglect or even to betray their public duty. Absenteeism will be tempting simply because “the objects of their duties . . . are . . . the affairs of others, comparatively indifferent to them, very difficult, very complicated” (Bentham Reference Bentham, James, Blamires and Pease-Watkin1999, 37). More profitable pursuits will be a constant enticement. As for betrayal, Bentham remarks of members’ personal interests that “you will often find them in opposition to the interests confided in them,” while these members “possess all the means of serving themselves at the expense of the public, without the possibility of being convicted of it” (37). Here are conditions ripe for corruption (and other forms of mischief). The point for Bentham is not that all legislators are vicious but that, for structural reasons, legislators will face relentless temptation and will have every opportunity to fall short in the execution of their duties. This will remain the case until adequate safeguards are established. Just as the architect must oppose the force of gravity, so Bentham's institutional designer must neutralize the allure to legislators of neglecting or abusing their office. What is needed is “an interest of superior force,” so that such betrayals may cease to promise any net benefit (37).

According to Bentham, the interest in question is afforded by publicity. This measure alone can activate members’ “respect for public opinion—dread of its judgments—desire of glory” (37). Publicity works by “the dread of shame,” which can be expected to bridle the majority of members, and by “the fear of being removed” in a subsequent election, which ought to restrain the rest (149). Its “grand antiseptic effect” (149) is so potent against the misuse and neglect of authority that “under the auspices of publicity, no evil can continue” (37).Footnote ⁵ As Bentham makes clear in later writings, of course, this assumes the active participation of citizens in an imaginary “Public Opinion Tribunal,” which keeps watch and sits in judgment upon the conduct of political officials (Reference Bentham, Rosen and Burns1983a, 35–39; Lieberman Reference Lieberman, Collini, Whatmore and Young2000, 129–34).

Bentham's is a very peculiar sort of distrust, then. It is recommended to the institutional designer as the proper mode in which to regard all would-be officials. In this perspective, distrust should be stable, and applied in all circumstances. But it should not be so caustic as to undermine the practice of authorizing officials to exercise power in the first place, precipitating a rejection of the state or withdrawal from organized politics. Distrust is warranted not by any particular malevolence in the corps of such officials, but by a sober assessment of their vulnerability to the pressures that will inevitably be brought to bear upon them. Thus Bentham asks whom we should distrust not on account of any native treachery, but on account of their being given “great authority, with great temptations to abuse it” (Reference Bentham, James, Blamires and Pease-Watkin1999, 37).

In the background here is Bentham's conviction that all of the “springs” or sources of human action—even sympathy and benevolence—are properly understood in terms of interest (Reference Bentham and Goldworth1983b, 99–101). Strictly speaking, “no human act ever has been or ever can be disinterested,” though it may manifest a regard for others (99). “In the case of a public functionary,” Bentham explains, “the will acts on each occasion under the pressure of two opposite and conflicting interests—his fractional share in the universal interest, and his own particular and personal interest,” where the latter is ordinarily the much greater force (Reference Bentham and Schofield1989, 276). This circumstance leaves officials ever tempted to consummate a “sinister sacrifice” of public to private or sectional interests (Reference Bentham and Schofield1989, 276; cf. Rosenblum Reference Rosenblum1978, 118–50).

What Bentham came to understand as “sinister interest” was therefore central to his vision of the design (and reform) of political institutions (Schofield Reference Schofield2006, 109–36). Beginning with The Elements of the Art of Packing, his trenchant critique of special juries in English legal procedure, Bentham would discern in entities prone to betray the public trust not mere carelessness, but a kind of interest-driven malformation and maladministration (Reference Bentham and Bowring1843, 5: 89–91; Schofield Reference Schofield2006, 131–6). The common interest office-holders share in thwarting constraints upon their self-enrichment generates a temptation, all but irresistible, to entrench the very arrangements that tend to sacrifice public to private interests. This makes resistance to reform an enduring feature of politics, and reinforces the grounds for distrust of authorities when political institutions are framed.

In rejecting the “uncensorial perspective” (Schwartzberg Reference Schwartzberg2007, 566) that would treat public authorities as infallible in judgment or impervious to self-interest, Bentham's concern is primarily with political structures—with the proper arrangement of public and private interests—and not with the construction (or reconstruction) of human character.Footnote ⁶ The notion that Bentham assumes the worst of prospective office-holders (Elster Reference Elster2013, 165–6) is therefore liable to mislead. If knaves to Hume, such officials are to Bentham but naturally inclined to respond to pleasure and pain, and to the diverse motives arising from their desire to obtain the one and avoid the other (Reference Bentham and Goldworth1983b, 98–9). This is not to deny the possibility of virtue. Bentham reflected explicitly on what he called “virtuous disposition,” whereby some “exertion in the way of self-denial” secures the greater good (99). This disposition becomes “probity” (99) when practiced by officials duty-bound to serve the public interest. Such “extra-regarding virtue” (154) Bentham had no difficulty conceiving (Crimmins Reference Crimmins2011, 77; cf. Hulliung Reference Hulliung1994, 9). Yet, because the participation of self-interest in the general interest is “comparatively latent” (Reference Bentham and Goldworth1983b, 195), and because “intellectual weakness” and “interest-begotten prejudice” (111–2) are so common, the probity of officials cannot be assumed, but only promoted. And this requires political framers to adopt the distrustful attitude that Bentham recommends.

Substantially the same position can be discerned in several of Bentham's other writings. In Panopticon, or, the Inspection House, for example, written just a few years before Political Tactics, Bentham dwells again on the safeguard of publicity (1843, 4: 39–172; see Engelmann Reference Engelmann and Engelmann2011, 12–5). Even as the Panopticon exposes inmates to the superintendent's vision, so its doors should be “thrown wide open to the body of the curious at large—the great open committee of the tribunal of the world” (Reference Bentham and Bowring1843, 4: 46). This precaution assumes no irresponsibility on the part of Panoptical officials. Rather, as in Political Tactics, Bentham's claim is that we should honestly acknowledge that such officials will have motives and opportunities to abuse or neglect their authority. Yet public oversight can protect against these unwanted outcomes. To the superintendent of Bentham's Panopticon, public visitors are “assistants, [and] deputies, in so far as he is faithful, witnesses and judges, should he ever be unfaithful, to his trust” (4: 46). As that final word makes clear, officials such as the superintendent are properly entrusted with public authority, on Bentham's understanding. This is of course a juridical concept first, but it has political and psychological dimensions, as well. While the institutional designer should not be paralyzed by distrust, she needs a stable and sober suspicion, grounded on the recognition that—absent reliable safeguards—officials will face unavoidable structural pressures to violate the trust we nevertheless reasonably place in them. This is fruitful distrust, because it motivates the development of checks and controls, rather than teaching citizens that corruption is resisted in vain.

In his later works, too, such distrust remains the foundation of Bentham's approach to institutional design. In the Plan of Parliamentary Reform, in the Form of a Catechism, for instance, Bentham's chief concern is to devise some means of preventing the “constant sacrifice . . . of the interest of the people” to whatsoever private, “sinister interest” may prove most tempting to their representatives (1843, 3: 451). The point, in short, is to stop corruption. Bentham's primary strategy is to bring the two sets of interests just mentioned—the public's and their legislators’—into alignment. This means ensuring “the virtual and effective ascendency of the democratic interest” in Parliament, where the democratic interest is nothing but the “universal” aggregate interest of the public (3: 446–47). Doing so would promote in members the three elements of official “aptitude” Bentham here identifies—namely, “appropriate probity” (the consistent pursuit of the public interest), “appropriate intellectual aptitude” (the exercise of sound judgment upon questions of public import), and “appropriate active talent” (the skillful undertaking of legislative activities) (3: 539–40).Footnote ⁷

Yet Bentham had no illusions that even the best electoral arrangements would eliminate corruption wholesale. He saw that just by virtue of their positions legislators would frequently be tempted to profit at the public's expense. And England's experience taught Bentham that they ought not simply be trusted to resist those temptations, just as trust should not extend to inherited systems actively promoting such “sinister sacrifice” (see Schofield Reference Schofield2006, 135). Additional safeguards were in order. Alongside fundamental electoral reform, then, Bentham's Plan recommends a series of institutional devices for guarding against legislative corruption. It proposes, for example, excluding “placemen” appointed by the Crown from voting (1843, 3: 542), and requiring a “universal constancy of attendance” so that absences might not be used to evade responsibility (3: 457; emphasis omitted). Most importantly for our purposes, Bentham recommends the instrument of publicity: Parliament should provide for “the correct, complete, authentic, and constant taking down, and regular publication, of all speeches made in the House” (3: 543). This will help to secure members’ probity by ensuring that public judgment extends to “everything which [each legislator] has said, and not . . . [to] that which he had not said” (3: 543).

The thread running through each of these precautions is that stable, sober, generalized distrust described above, and urged again in Bentham's unfinished magnum opus, the Constitutional Code. In this text the temptation to misuse public authority is analyzed in a characteristically matter-of-fact mode (see Engelmann Reference Engelmann2003, 81). Bentham observes that in every person is found both “self-regard” and “extra-regard” or sympathy (Reference Bentham, Rosen and Burns1983a, 119). Yet it is the former which “in the general tenour of human conduct” takes precedence (119). Consequently, and though there will be exceptions, it is prudent to assume “with a view to practice”:

Even recognizing that virtuous individuals might resist the temptation to profit from their offices, the only responsible stance for purposes of institutional design is distrust (415). And in the spirit of that distrust, “obstacles” should be placed along every pathway of official misconduct (120). In Fred Rosen's helpful summary, “the primacy of self-regard and the tendency towards self-aggrandizement are the main assumptions which [framers] should bear in mind in devising constitutional arrangements” (Reference Rosen1983, 181). Indeed, legislators themselves should bear these tendencies in mind, and struggle against them. The Code prescribes that each deputy should make an “inaugural declaration” (Bentham Reference Bentham, Rosen and Burns1983a, 133–46) promising to guard against all of those interests “to which the inalterable nature of my position keeps me so constantly and perilously exposed,” including the desires for wealth and power, for “factitious honor and dignity,” and for “ease at the expense of duty” (137–8).

To recapitulate, the perspective of institutional design implicit in Bentham's account of publicity (and of political and constitutional safeguards more generally) evinces a special form of distrust. It evinces generalized distrust of state officials and institutions, grounded not on a critique of human character, so much as on the conviction that without adequate prophylactics, the institutions of government will expose even the best officials to constant, all but irresistible temptations to betray the public good.

Practicing Popular Oversight: Vigilance and Confidence

Designing institutions is one thing; evaluating the officials who act within well-designed institutions is another. As we have seen, for Bentham the former demands genuine distrust. The latter, on my reading, invites something more. Citizens’ attitudes should account for a new context in which (ex hypothesi) institutional safeguards now protect against the sacrifice of public interest. Officials are constrained where before they were free to follow every blandishment of self-enrichment. This does not mean that the risk of abuse is entirely eliminated. Misconduct may still occur. But the risk is now better managed, and citizens’ stance toward public officials should reflect this reality. It should recognize, in effect, that “the less deeply men are led, or lead themselves, into temptation, the more likely they will be to be delivered, or to deliver themselves, from evil” (Reference Bentham and Bowring1843, 3: 548).

Nevertheless, distrust is not simply eliminated in the perspective of popular oversight. It only ceases to be self-sufficient. In motivating citizens to engage in supervision of public officials, it actually makes space for the development of provisional, particularized trust in individual officials and institutions whose records suggest they are worthy of it. In other words, stable distrust comes to support both vigilance and (the possibility of) confidence.

We have already noted that for Bentham political trust is apparently not without value. In Political Tactics, for example, he argues that legislative assemblies should adopt “an inflexible law” prohibiting members from withdrawing their proposals and motions once “inscribed in the register,” because that practice would tend to precipitate “the destruction of public confidence,” creating the constant appearance of neglect (Reference Bentham, James, Blamires and Pease-Watkin1999, 117). The implication is that such a loss of confidence would be undesirable not only because it would be unwarranted, but also because it would interfere with the public-interest-seeking activity of government.

It is suggestive, in this connection, that in the Constitutional Code Bentham seems to limit the purposes for which public trust should be discouraged. At the beginning of a section in which he sets out to develop various “securities for appropriate aptitude” in public office-holders, Bentham remarks that “[f]or this purpose, and on these several occasions, confidence (it cannot be denied) may with truth be said to be minimized: distrust and suspicion maximized” (Reference Bentham, Rosen and Burns1983a, 118). For this purpose—not for all purposes—should confidence be minimized. Indeed, just a few pages before this comment appears, we find Bentham portraying public confidence as a valuable political resource, the preservation of which is one aim of a proposal to subject high officials to prosecution for grave public wrongs (113).

That Bentham believed such confidence could arise from an assessment of institutional “securities against misrule” (Reference Bentham and Schofield1990, 23) is evidenced by his commentary on the Greek Constitution of 1822. In a revealing passage, Bentham contrasts that instrument's design of legislative and executive branches:

Given that the power of the legislature is substantially checked, and its members constrained by the safeguard of publicity, it is reasonable, Bentham says, to place provisional trust in them. By contrast, the members of the constitution's executive panel are completely unrestrained, and utterly at the mercy of every temptation to corruption and self-dealing. As such, it is only reasonable to regard them with what Bentham calls “complete distrust—a complete withholding of confidence” (241). Here I am not so much interested in the particularities of this judgment as in its more general implication. What it shows is that, for Bentham, the appropriate stance to take toward public officials who act within a defined institutional structure is determined (in part, anyway) by the presence or absence of meaningful safeguards within that structure.

Yet the safeguard of publicity cannot hope to enable the development of warranted trust unless it gains strength from the exercise of “popular vigilance” (Bentham Reference Bentham and Schofield1990, 131), that first fruit of citizens’ generalized political distrust. Throughout his political writings, Bentham envisions citizens who are motivated to supervise the conduct of public authorities, and who do so frequently and faithfully (De Champs Reference De Champs2015, 88–90). Their work proceeds through the “Public Opinion Tribunal,” that imaginary “Committee of the whole” composed of all citizens who take an interest in public affairs (Bentham Reference Bentham and Schofield1990, 28). The activity of this panel provides “the only remedy” for the constantly threatening disease of “misrule” (28), defined elsewhere as official conduct producing anything less than the greatest happiness of the greatest number (Reference Bentham and Schofield1989, 270). Only by its supervision and judgment can the responsibility of public officials be ensured. Indeed, Bentham writes, “[t]hose who desire to see any check whatsoever to the power of the government under which they live . . . must look for such check and limit to the power of the Public Opinion Tribunal,” and to this body the people “must on every occasion give what contribution it is in their power to give” (Reference Bentham and Schofield1990, 125). The impetus of every such contribution is distrust. “Jealousy,” writes Bentham, “is the life and soul of government” (Reference Bentham and Bowring1843, 4: 130). Thus, the public cannot simply rest on its laurels once a system of safeguards against official misconduct is established. Citizens have a critical role to play within that system. And the propriety and efficacy of any endeavor of government depends, according to Bentham, “upon the spirit, the intelligence, the vigilance, the alertness, the intrepidity, the energy, the perseverance, of those of whose opinions Public Opinion is composed” (Reference Bentham and Schofield1990, 139).

Of course, the work of the Public Opinion Tribunal begins with the instrument of publicity, whereby citizens are assured access to reliable information about the goings-on of government. As early as Political Tactics, Bentham was drawing attention to this crucial advantage of publicity. There he explained that it would not suffice to require a legislative assembly to publish its own journal. In addition, “non-authentic” publications should be permitted in order “to prevent suspicion” of the official version's truthfulness (Reference Bentham, James, Blamires and Pease-Watkin1999, 40). For the same reason, members of the public should be permitted to attend the legislature's sessions. Under a contrary rule prohibiting such attendance, the public “would always be led to suppose that the truth was not reported, or at least that part was suppressed, and that many things passed in the assembly which it did not know” (40). Such suspicions would undermine the Public Opinion Tribunal's crucial evaluative work. Publicity is therefore requisite, and its most basic product—the reliability of public information—lays the foundation for all subsequent public judgment of government action (1843, 3: 543).

In addition, Bentham makes clear, the supply of political information depends on the freedom of the press (Reference Bentham, Rosen and Burns1983a, 86–7; Reference Bentham, Pease-Watkin and Schofield2012, 12–3; Niesen Reference Niesen2015, 293–5), and, relatedly, on the existence of a rich ecosystem of political newspapers (Reference Bentham, Rosen and Burns1983a, 427; Reference Bentham and Schofield1990, 45–6, 61–3; Lieberman Reference Lieberman, Collini, Whatmore and Young2000, 127, 133). Indeed, Bentham goes so far as to declare newspaper editors more essential to the health of representative democracy than any minister of state save a prime minister (Reference Bentham and Schofield1990, 45). Thus, the publicity he champions does not only entail voluntary disclosures by officialdom, but a robust public sphere in which political information is ferreted out, disseminated widely, and discussed in the light of day.

Once the public has access to such information, the hard work of oversight begins. Importantly, the burdens of vigilance can be shared, in Bentham's account, through a division of supervisory labor. It is enough that we can expect some subset of the public to fulfill its watchdog role in any given case, acting as a special “Committee” on behalf of the larger Public Opinion Tribunal (Reference Bentham and Schofield1990, 121). There may be as many such committees as there are issues to be judged. In practice, presumably, shifting groups of citizens will at various times oversee the particular policy questions or institutions that most concern them. In each case, the subset of individuals “by whom actual cognizance is taken of the matter in question” expresses an opinion, and the remaining members of the Public Opinion Tribunal either concur, or else decide to study the relevant issue themselves (121). Whatever the details of this operation, the important point for Bentham is that the Tribunal as a whole remains ever vigilant.

Bentham might have taken a different tack here. He might have argued that publicity bears fruit even without genuine watchfulness. Some interpreters have read Bentham in just this way. Most influentially, Michel Foucault portrayed the Panopticon as a means of internalizing the disciplinary force of publicity, so that the warden's oversight ultimately becomes superfluous (Reference Foucault1995, 200–9). On this view, it is simply because a superintendent could be watching that the institution's prisoners (or patients or pupils) feel an inner compulsion to behave as if one were watching. According to Foucault, “the major effect of the Panopticon [is] to induce in the inmate a state of conscious and permanent visibility that assures the automatic functioning of power” (Reference Foucault1995, 201; emphasis added). Thus, “what matters is that [the prisoner] knows himself to be observed . . . [but] he has no need in fact of being so” (201). It must be said that Foucault's gloss encourages a rather egregious misreading. With due respect for the intellectual horizons it opened up, the notion of automatic power distorts a point that Bentham took pains to make clear. “You will please to observe,” he begged:

The internal restraint cannot stand alone. It depends on regular enforcement of the relevant standards of behavior. Absent this, inmates’ internalized compunction will be no more reliable than a house of cards—for as soon as a few infractions are ventured and go unnoticed or unpunished, inward restraints are bound to fall away. Bentham understood that there could be nothing automatic about publicity's effects: a foundation of active vigilance was always necessary. As he so memorably put it, “[e]ven transparency is of no avail without eyes to look at it” (4: 130).

If the distrust animating safeguards such as publicity can motivate vigilance, might political trust, too, be among its fruits? Although interpreters have rarely noted this point, Bentham clearly believed so. In the first place, the guarantee of publicity eliminates a common impediment to trust simply because “[s]uspicion always attaches to mystery” (Reference Bentham, James, Blamires and Pease-Watkin1999, 30). But there is a deeper argument suggested here. If what publicity reveals is encouraging—if it consistently brings forth evidence of government officials or institutions acting with all “appropriate probity, appropriate intellectual aptitude, and appropriate active talent” (Reference Bentham and Bowring1843, 3: 535) to secure the public interest—then, with time, these indicators may well inspire affirmative trust in the officials or institutions in question. That is, the judgments of the Public Opinion Tribunal may well teach the public to trust those officials who prove themselves to be trustworthy (5: 323).

Bentham does not offer a highly developed account of the value of such trust. What he does offer is the suggestion, peppered throughout his writings, that when the government has citizens’ trust, its efforts to advance the public interest flourish more fully. Thus in Political Tactics he notes that “the confidence of the people” promotes in turn “their assent to the measures of the legislature” (Reference Bentham, James, Blamires and Pease-Watkin1999, 30). And assent means successful implementation and therefore greater happiness for the greatest number: “for the government is much more assured of the general success of a measure, and of the public approbation, after it has been discussed . . . while the whole nation has been spectators” (31). What is more, trust can provide a measure of needed stability when citizens are dissatisfied. “Even in circumstances when discontent most strikingly exhibits itself, the signs of uneasiness will not be signs of revolt,” Bentham writes (31). Instead, “the nation will rely upon those trustworthy individuals whom long use has taught them to know; and legal opposition to every unpopular measure, will prevent even the idea of illegal resistance” (31; cf. Reference Bentham and Schofield2015, 97). Both of these ideas are consistent with Bentham's later remark, in the Constitutional Code, that while public opinion is “the only check” we have upon “the pernicious exercise of the power of government,” it is also “an indispensable supplement” when that power is exercised well (Reference Bentham, Rosen and Burns1983a, 36).

There is also a more direct sense in which political trust might contribute to citizens’ welfare.Footnote ⁸ The sense of security is itself a component of human happiness, while the unease that Bentham calls “alarm” is a pain arising from the apprehension of possible future harm (Reference Bentham, Burns and Hart1996, 34, 144). To the extent that warranted trust imparts such security, or mitigates that feeling of alarm, it has direct utilitarian value. Bentham invokes this very logic to explain why judges need the public's confidence in order to serve effectively: the absence of such confidence necessarily leaves citizens feeling insecure, and “insecurity perceived or supposed is a fund of actual and present uneasiness to the many” (Reference Bentham and Bowring1843, 4: 359).

Even as Bentham entertained the possibility of particularized political trust within the perspective of popular oversight, he placed severe limits on the acceptable scope and objects of such trust. To begin, his theory categorically rejects so-called “[b]lind confidence” (Reference Bentham and Bowring1843, 5: 88), approving of political trust only when it enjoys some warrant in the known prior actions of the officials or institutions in whom it is placed (Reference Bentham, James, Blamires and Pease-Watkin1999, 31). Thus Bentham pillories the “lazy and stupid confidence” of citizens who entrust their welfare to a professional legal class utterly at odds with the public's own interest (Reference Bentham, Schofield and Harris1998, 34). And he insists that “unbounded confidence . . . is more than human nature can ever, in the instance of any individual, much more in any large class of individuals, lay claim to” (Reference Bentham and Bowring1843, 5: 167). For precisely this reason, trust earned by one set of officials, or by an institution operating under one set of conditions, must not be transferred to “an indefinite line of successors,” but reassessed at regular intervals (Reference Bentham and Bowring1843, 6: 366).

Moreover, political trust must never be taken to excess, even when it is limited to those particular individuals or institutions “whom long use has taught [the public] to know” (Reference Bentham, James, Blamires and Pease-Watkin1999, 31). Specifically, it should never lead to the conclusion that watchfulness is no longer necessary, or—yet more unthinkable—that institutional and constitutional safeguards are now superfluous. Such thoroughgoing trust would be a form of “imbecility,” Bentham writes (Reference Bentham and Bowring1843, 3: 456). “[T]he danger is—lest, by gratitude, the people should be betrayed into a greater degree of confidence, than, even under the best possible form of Government, can find a sufficient warrant” (Reference Bentham and Goldworth1983b, 87; cf. Reference Bentham, Pease-Watkin and Schofield2012, 285). As this makes clear, particularized trust should never simply replace or “dissolv[e]” distrust, as some readings have suggested (Baume Reference Baume, Baranzini and Allisson2014, 430; cf. Van De Walle and Six Reference Van De Walle and Six2014, 164). Instead, the two must come together. Though particular institutions or officials prove themselves trustworthy, and confidence grows accordingly, still the people's foundation of generalized political distrust should remain stable.Footnote ⁹

A System of Trust and Distrust

By now it should be clear that Bentham's slogan is something of an oversimplification. He does not only want a “system of distrust” (Reference Bentham, James, Blamires and Pease-Watkin1999, 37). What this article has shown is that he recognizes the roles of distrust and trust alike in maintaining responsible, effective government. The instrument of publicity is connected to both attitudes. It reflects the distrust proper to institutional design, while promoting a measured political trust in those circumstances, and only those circumstances, in which (reliable) public information suggests it is warranted.

Suppose we asked Bentham whether state officials are basically trustworthy, whether we have reason to trust that they will act in the public interest, and avoid self-dealing. I have been arguing that his political theory advances a subtle answer to this question. In the first place, Bentham answers in the negative. Just as public officials are fallible in their judgments (Reference Bentham and Bowring1843, 7: 388), so they are subject to all manner of temptation to act for their own private benefit, at the public expense (Reference Bentham, Rosen and Burns1983a, 137–8). This does not mean that office-holders will always abuse their positions. But some will, at least some of the time. Whatever their virtues and excellences, no officials are so trustworthy that it would be rational to place the public business in their hands and assume reliance. No—safeguards are always in order.

Yet there is more to the story. Ask whether public officials are trustworthy and Bentham answers no, but with qualifications. We have reason to distrust them, and such distrust motivates institutional safeguards of the kind Bentham proposes throughout his political writings—not least the safeguard of publicity. Once those safeguards are in place, however, the appropriateness of trust looks somewhat different. Now we are dealing with self-interested officials operating within a system of “securities against misrule” (Reference Bentham and Schofield1990, 23). When they function effectively, these securities significantly reduce the likelihood of the “sinister sacrifice,” and simultaneously increase the likelihood of detection in cases where it does occur (Reference Bentham and Schofield1989, 17). Outside this system, officials are highly vulnerable to the temptations of self-dealing; inside it they are much less vulnerable. Vigilance remains necessary, because misconduct remains possible; but under a framework of effective checks, it is reasonable to place measured trust in institutions or officials who have built up records of responsible conduct.

How might such trust develop? First, Bentham's system of (institutional) safeguards generates confidence in the accuracy and integrity of the records of public proceedings. This is very close to what Mark Warren calls “second-order trust” (Reference Warren2006, 161). As he puts it, “citizens should not (necessarily) trust representatives with their interests, but citizens should be able to trust their representative's veracity so they can judge where their interests lie, and thus determine whether their first-order trust is warranted” (161). As I have tried to show, Bentham envisions a system of publicity in which officials’ testimony about their activities in office can be regarded as factual and complete, because citizen witnesses (and newspaper accounts) of the relevant proceedings would detect any adulterations or omissions.

Next, reliable public records can ground particularized trust in those institutions or officials who demonstrate their probity by acting in service of “the only right and proper end of social action—the greatest happiness of the greatest number” (Bentham Reference Bentham and Schofield1990, 53). Admittedly, the available evidence will sometimes prove inconclusive, failing to provide a basis for political trust.Footnote ¹⁰ Suppose, for example, that Legislator X and Legislator Y both appear to have acted responsibly in the previous parliamentary session. What cannot be seen, however, is that a variety of institutional checks effectively constrained X to vote in the public interest, whereas Y's own probity ensured his support of those measures most conducive to the general welfare. Y is trustworthy, X is not; but this truth eludes even the most vigilant citizen.

To my knowledge, Bentham does not address this concern. Nevertheless, two possible responses suggest themselves. First, Bentham's account does not give trustworthy officials or institutions any entitlement to public confidence. In the scenario described, Y is not wronged when the people decline (reasonably) to venture trust in him. As we have already seen, Bentham categorically opposed both unbounded and unfounded confidence in politics, and although citizens would be better off if they knew the truth of Y's trustworthiness—after all, the moderate trust they could then place in him would contribute to a sense of security, and allow the redirection of their (limited) supervisory energies toward more threatening objects—still they ought to remain agnostic in this circumstance.

Second, there is no reason to assume that the scenario described is prototypical. It may happen that in other cases, evidence of trustworthiness abounds. Suppose, for example, that while some officials rely on pretexts to adopt apparently publicly-interested policies that are in fact self-serving, this or that incumbent consistently avoids such tricks. In such cases, citizens have evidence sufficient to ground the limited sort of trust I have described. Moreover, that trust does real political “work”—not only by contributing to citizens’ security and enabling the redirection of vigilance, but also by underwriting the public's cooperation with these trusted institutions or officials, in future circumstances in which new regulations are proposed, or new initiatives undertaken, though their tendency to promote the general interest is not yet demonstrable.

This account helps to resolve the “paradox of trust and democracy” considered at the outset (Lenard Reference Lenard2012, 67–8). The distinction implicit in Bentham's theory between the perspective of institutional design and the perspective of public scrutiny (of officials acting within well-designed institutions) sheds light on how distrust and trust can be combined without contradiction. Briefly, Bentham's system achieves two things: it supports stable, generalized political distrust, which motivates the creation of institutional safeguards and the practice of vigilance; and in so doing, it enables citizens to develop particularized trust toward those institutions and officials who prove themselves worthy of it. Neither attitude can suffice on its own to ensure good government.

Earlier, I portrayed the shift between Bentham's two perspectives as occurring in time. First the institutional designer distrusts, then watchful citizens trust (or decline to), on the basis of officials’ particular track records. In fact, Bentham recognizes that these two perspectives are dialectically related, so that citizens must frequently shift between them. Institutional “securities against misrule” (Reference Bentham and Schofield1990, 23) are not established definitively at one founding moment, but are always subject to revision. Their recalibration and reform is a perpetual labor (see Ben-Dor Reference Ben-Dor2000, 31, 146–52, 246). In Bentham's vision, then, citizens must constantly judge both the strength and reliability of existing safeguards, and the (un)trustworthiness of individuals who exercise power within the limits of those safeguards.Footnote ¹¹ This dual judgment is precisely what occupies Bentham in his review of the Greek Constitution (Reference Bentham and Schofield1990, 207–56), or in his assessment of the existing checks and influences upon members of Parliament at Westminster (Reference Bentham and Bowring1843, 3: 428–552). The twofold character of this responsibility—to assess officialdom from both perspectives—explains why distrust is never simply “dissolved” on Bentham's account (Baume Reference Baume, Baranzini and Allisson2014, 430). It endures in the minds of the people, motivating every effort to renew institutional checks against abusive government, even as particularized trust becomes possible beyond some minimum of precaution-taking.

In this connection, Bentham was especially well-attuned to the danger of “sham securit[ies],” institutional arrangements that appear to prevent the sacrifice of public to private interest, but in reality fail to do so (Reference Bentham and Bowring1843, 5: 58). He is adamant that such devices are “worse than useless,” because they traffic in “delusion, producing confidence where confidence has no ground to stand upon” (5: 427; cf. 5: 94). They end by facilitating the very corruption they purport to oppose. Citizens assessing the robustness of existing institutional safeguards must therefore seek out evidence that they are more than window-dressing.

Crucially, in this task (as in the more general Benthamic mission of promoting responsible government) the burdens of evaluation may be shared. One can imagine, for example, a model in which experienced institutional designers devise and evaluate “securities against misrule” (Reference Bentham and Bowring1990, 23) in the first instance, while other citizens attend to the particular power-wielders on whom their own interests most immediately depend. Each contributor is situated in the most epistemically advantageous way. The resulting assessments of official (un)trustworthiness could then be deliberatively exchanged in the public sphere, producing a dynamic system of trust and distrust in which threats to the public good are detected and neutralized, while government actions conducive to it are supported by citizens’ warranted confidence.Footnote ¹² Such a model extrapolates from Bentham's own writing, but fits comfortably with his account of the operation of the Public Opinion Tribunal, discussed above.