I first met Jeremy Bentham as a newly arrived philosophy student walking through the South Cloisters of University College London. Behind the plate glass of a huge mahogany case, I looked in upon a seated life-size wax figure of a man in an 18th Century coat and knee britches, happily wearing a straw hat. Only it was not Bentham’s wax figure; it was his embalmed corpse – his “auto-icon.” Apparently, Bentham’s will left his executor no choice but to have his body stuffed and placed on public display. There he has been ever since.
Bentham famously believed that publicity was the key to truth. His ideal was a Panoptic universe, where all in the world would believe themselves to be constantly observed, listened to, and monitored. Thus all would become good — or at least would behave (which, for Bentham, amounted to the same thing). Bentham felt that claims to privacy were no more real or substantial than claims to natural rights, which he despised as pernicious fictions. Both were harmful beliefs that entrenched privilege and maintained humankind in its misery. Publicity was the key to truth and human happiness.
It is easy to make fun of Bentham’s ideas. But much of what Bentham meant to address in the context of his Panoptic structures we now take for granted. In Bentham’s lifetime, Parliamentary deliberations were confidential. Bentham’s arguments forced them into the sunlight. Legal decisions and statute books were accessible only to lawyers and judges. Bentham’s arguments led to codification of the law, and increasingly accessible legal rules. Bentham was far ahead of his time — the first modern information theorist. The idea that all actions of government would be presumptively available for public review did not become part of U.S. law until the passage of the Freedom of Information Act (FOIA) in 1967. As we speak, it appears the English parliament is only now learning Bentham’s message about publicity.
Bentham’s contemporary William Blackstone celebrated the fact that “private vices” were beyond the jurisdiction of the state. Privacy for him was an organizing principle of civilized society. But Blackstone believed in an all-seeing God to whom we would be accountable even for our private sins and thoughts. Bentham, a thoroughgoing atheist, hated Blackstone and all he stood for. For him the logical truth remained that people who believed themselves to be monitored behaved more responsibly than those who believed themselves to be alone. So Bentham asked himself: in the absence of God, how can a secular society operate without perpetuating Panoptic structures of surveillance? When Michael Foucault argued that Bentham’s Panoptic structures had become essential to the functioning of a modern secular state, he did not claim originality for the insight.
But why do our intuitions revolt? What can our brains say to explain this revulsion? What is so important about privacy? Judge Posner has pointed out that when people are given a right to privacy, they use it to conceal discrediting information about themselves from others – and consequently mislead and defraud them. In a world increasingly characterized by exchanges of information, should we not all just abandon the attempt to maintain privacy, and embrace the Panopticon? We are, of course, all familiar with the dark side of the Panopticon – the fictional surveillance state of George Orwell’s 1984, or the actual surveillance states in Eastern Europe in the second half of the last century. But as Bentham knew, and his modern disciple David Brin has explained at greater length, the Orwellian nightmare state is impossible when the Panopticon works both ways – when the government itself is watched – when the surveillor knows himself to be surveilled. Still, our intuitions rebel, but we are unable to respond to Bentham’s utilitarian logic.
So let us return again to the South Cloisters of University College and the question we began with: what could have possessed Bentham to do what he did with his last remains? The answer seems to be compelled by the same bloodless logic the man applied in all other aspects of his life. Bentham, the great apostle of publicity, rejected even the privacy of the grave – he remains the eternal observer, continuing his surveillance of the living from his perch among the dead.
OF PUBLICITY AND PRIVACY, AS APPLIED TO JUDICATURE IN GENERAL, AND TO THE COLLECTION OF THE EVIDENCE IN PARTICULAR. – Jeremy Bentham, The Works of Jeremy Bentham, vol. 6 
Peter A. Winn has served as an Assistant U.S. Attorney in the United States Department of Justice since 1994. He is also is an part-time lecturer at the University of Washington Law School where he teaches privacy law and health care fraud and abuse, and is a Senior Fellow at the University of Melbourne where he teaches cybercrime. The views represented in this article are Mr. Winn’s personal views and not those of the United States Department of Justice.
VoxPopuLII is edited by Judith Pratt.