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Publicity is the very soul of justice – but not always. Jeremy Bentham and open justice

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by Daniel Clark

“Publicity is the very soul of justice. It is the keenest spur to exertion and surest of all guards against improbity. It keeps the judge himself while trying under trial”. 

So says Jeremy Bentham – quoted by Lord Shaw of Dunfermline in Scott v Scott.

Scott v Scott is a key judgment in the development of the open justice principle in common law.  In evoking Scott v Scott, judges often quote Lord Shaw citing Bentham. Here are just two examples: 

  • At paragraph 14 of Dring (a 2017 UK Supreme Court judgment): ‘It [the Media Lawyers Association]cites, among many other apposite quotations, the famous words of Jeremy Bentham, cited by Lord Shaw of Dunfermline in the House of Lords in Scott v Scott [1913] AC 417, the leading case on open justice, at p 477, “Publicity is”’, and so on. 

There are variations on the theme. In a 2024 judgment, a Deputy High Court Judge attributed the “observation” to Lord Shaw himself (see para 16). In 2006, in a moment reminiscent of Christopher Nolan’s Inception, a judge cited the Court of Appeal citing the Law Lords citing Scott v Scott citing Bentham (para 14). In 2002, Dame Elizabeth Butler-Sloss quoted the passage and simply attributed it to ‘(Bentham)’ (para 16). And of course some judges have cited the source material (to my knowledge, this was most recently done in a speech of Dame Victoria Sharp).

Notwithstanding the fact that the referencing style leaves a lot to be desired, I never doubted that Bentham did say publicity is the soul of justice. As I’ll show in section 2 of this blog, it’s very much in line with Bentham’s broader philosophical framework. 

What I did have doubts about is whether the surrounding material supported what has become the interpretation of Bentham’s words. As it turns out, I was right to have doubts.

Before explaining that, it’s worth recapping what Scott v Scott was about. I’ll then set out the exact source of this quote from Bentham, before explaining (in section 3) why I think Bentham was misapplied in Scott v Scott. 

1. Scott v Scott: the facts

Mrs Scott had filed a petition for nullity against her husband, Mr Scott, on the grounds that the marriage had not been consummated, which the judgment describes as being ‘by reason of the respondent’s impotence’. The case was heard in camera (i.e. in private with only the parties to the litigation present, which is sometimes referred to as being heard “in chambers”).  

The case is a good example of what we might now call the Streisand effect: where a person’s attempts to limit the circulation of information has the effect of maximising the reach of that information. But for what Mr Scott did next, it is likely that nobody alive today would know of his “impotence”. 

In August 1911, Mrs Scott and her solicitor sent shorthand notes of the proceedings to some of Mr Scott’s family in order to correct what they believed was an inaccurate report of the proceedings. 

As it is an offence to communicate information from a private hearing, Mr Scott applied to commit to prison Mrs Scott, and her solicitor’s business partner, for contempt of court. The first instance judge found them to be in contempt of court; appellate courts overturned that finding. 

As ‘the facts in this case [were] not in controversy, but questions of law of considerable public importance [were] raised’, the Law Lords considered the case with a particular focus on the fact that the initial hearing was in camera. They found it should not have been.

Throughout this judgment, the Law Lords considered the importance of publicity in court proceedings. It was during that analysis that Lord Shaw quoted Bentham describing ‘publicity as the very soul of justice’.

2. Bentham on publicity

Before looking into detail about what Bentham said about publicity, it’s worth explaining how these concerns fit into his wider philosophy[i].

Bentham is known to many people as the foremost utilitarian philosopher. His maxim that ethical and political decisions must be made for the greatest good of the greatest number has been hugely influential[ii], and heavily criticised[iii]. By the standards of the 1700s, and indeed much of the twentieth century, Bentham was a progressive thinker: he supported women’s suffrage, the right to divorce, and opposed the criminalisation of acts to which the participants consented (which included, but was not limited to, sexual acts between two people of the same sex). 

Bentham is also well known for his proposal of the Panopticon: a form of prison that would enable a single prison guard to observe prisoners but without each individual prisoner knowing whether they were (at that moment) being observed. This, said Bentham, would promote good discipline. Nowadays, the Panopticon is usually evoked not as a good idea but one emblematic of contemporary surveillance society (as characterised by Michel Foucault in Discipline and Punish). 

At one stage it looked like the Panopticon would be built but, in the early 1800s, it became apparent to Bentham that his hopes would come to nothing. This motivated his suspicion of those with power and influence (though it existed long before).

It was this suspicion of elites that – at least in part – motivated Bentham’s support for publicity as a safeguard against (broadly speaking) bad behaviour. Corruption could only flourish where secrecy commanded, thought Bentham, and so the surest guard against this was publicity. That extended to publicity in the political sphere, but I’ll only focus on publicity of the justice system. 

Thanks to Lord Shaw, one of Bentham’s most well-known claims about publicity is that it is ‘the very soul of justice’. However, Bentham is often quoted via Lord Shaw, meaning that this claim has become detached from the source material. 

In a magisterial lecture about family law and open justice, Sir Nicholas Mostyn attributes the quotation to Bentham’s An Introduction to the Principles of Morals and Legislation.

Unless we have access to different copies of the book (and I accept that may well be the case), and with all due respect to Sir Nicholas, that is incorrect. The Introduction is where Bentham sets out his utilitarian philosophy. While publicity is a key component of utilitarianism, Bentham does not consider the justice system in any great detail.  

After much searching (and, I admit, an enquiry made of the AI tool Microsoft Copilot), I found that the source of this quote is actually Bentham’s catchily titled Draught for the Organization of Judicial Establishments Compared with that of the National Assembly with a Commentary on the Same (for brevity’s sake, henceforth referred to as Draught).

Bentham’s Draught is quite typical of early modern philosophers in that it is unsolicited advice[iv]; on this occasion, to those restructuring the politico-legal structures of post-revolutionary France. He painstakingly goes through each proposed Article and makes his own amendments, followed by a justification. 

The Committee had proposed the following: 

Judgments, in what cause and in what form soever given, either upon argument, or upon the re-port and opinion of a judge-reporter, shall be given publicly: the examinations taken in the course of the procedure shall also be publicly taken in criminal causes. In all cases, the parties, or their defenders, shall have a right to be heard, and to make summary observations upon the opinion of the judge-reporter.

Bentham proposed something snappier:

Judicial proceedings, from the first step to the last inclusive, shall, in all cases but the secret ones herein after specified, be carried on with the utmost degree of publicity possible.

Why? Because,

Publicity is the very soul of justice. It is the keenest spur to exertion, and the surest of all guards against improbity. It keeps the judge himself, while trying, under trial.

Bentham returned to publicity a little later:

It is through publicity alone that justice becomes the mother of security. By publicity, the temple of justice is converted into a school of the first order, where the most important branches of morality are enforced, by the most impressive means: – into a theatre, where the sports of the imagination give place to the more interesting exhibitions of real life. 

Not only does publicity act as a safeguard against witnesses telling lies but it also keeps the judge in check, making it the most important ‘check’ on power. Subordinating judicial power – by, for example, constitutional checks – means nothing at all without publicity. In a similar way that democracy is the worst form of government apart from all the others, Bentham considered it is to publicity, ‘that the English system of procedure owes its being the least bad system as yet extant, instead of being the worst’. 

Bentham was at pains to stress that publicity is important in the civil, not just criminal, justice system because ‘if publicity is necessary in any one cause, so it is in every other’[v]. 

This does not mean, however, that Bentham thought everything should be public. 

3. Bentham’s exceptions

For Bentham, there were a few important exceptions to this support of publicity[vi].

First, he thought certain parts of the proceedings could be secret: namely, in ‘preliminary examinations in criminal causes and others’ and in circumstances ‘where there appears ground for suspecting a plan of concerted falsehood’. 

The exceptions, however, don’t stop there. 

Necessary again as it is that nothing should ever pass in justice which it should not be in the power of every one who had an interest in bringing it to light, to bring to light if he thought proper, it is not so that anything should be brought to light, the disclosure of which would be prejudicial to some and beneficial to nobody. It is on this consideration that I ground the three other divisions of the class of secret cases: causes to be kept secret for the sake of the peace and honour of families ; causes to be kept secret for the sake of decency ; and incidental inquiries to be kept secret out of tenderness to pecuniary reputation.

Much of this will be familiar in the sense that these exceptions, or some variation thereof, are evoked in contemporary case law to justify a derogation from open justice. 

Taken in the round, an application of Bentham’s argument in the Draught would lead us to conclude that there should be no general rule that a specific type of case is heard in private. That means there should be no general rule that nullity or divorce cases should be heard in private. 

However, on the facts of Scott v Scott, I think that Bentham would have disagreed with Lord Shaw’s application of his argument.

Central to the grounds for annulment was Mr Scott’s “impotence”. Historically, and certainly at the time of Scott v Scott, impotence had the potential to end a marriage and disturb the man’s status in society. This is one of the reasons, says Angus McLaren in Impotence: A Cultural History, that doctors recognised the need to discuss impotence during the Victorian Era. 

As sex took on ‘ever increasing importance’, ‘a successful sex and family life on which one’s identity was based and confirmed became, so sex experts claimed, the new criteria of status and well-being’ (p153). 

One can assume that, in the early 1900s, public knowledge of impotence would have offended both ‘the peace and honour of families’ and ‘decency’. Contra Lord Shaw, it is likely that a proper application of Bentham’s system would lead us to conclude that, on the particular facts of Scott v Scott, the circumstances of that case at that particular time mean that it should have been heard in private. 

Of course, the select quoting of a philosopher does not import into a judge’s analysis the whole of that philosopher’s system. Yet this is more than a point of scholarly interest or a cautionary tale against selective quoting. 

Rather, it is a reminder that, when it comes to open justice, we should take nothing for granted – and that includes the foundations of open justice itself. Open justice is a principle that requires constant cultivation, constant nurturing, and constant refinement. Without it, we risk open justice becoming received wisdom, to which it becomes easy to pay lip service. 

The open justice principle loses meaning when we begin to pay lip service to it rather than continually reviewing its purpose and scope. 

Note: I am grateful to the three people who provided feedback on an early draft of this blog. The views expressed, and any remaining errors, are entirely my own.
Contact: Daniel.Clark@sussex.ac.uk

[i] The source material for the description of Bentham’s position on other matters, as well as some biographical detail, is the Stanford Encyclopaedia of Philosophy.

[ii] For decades, utilitarianism provided a basis for the formulation of policy decisions. It has been applied in fields from health care resource rationing to philosophical work against the eating of animals.  

[iii] For a notable example, see G.E.M Anscombe’s Modern Moral Philosophy, in which Anscombe notes the difference between Aristotle and modern moral philosophers – but not in a way that is complementary to those modern philosophers. 

[iv] For a further example, see Machiavelli’s The Prince, in which Machiavelli appears to offer advice that certainly wasn’t asked for, and perhaps wasn’t even read. Similar to Bentham’s Panopticon, Machiavelli’s The Prince has received bad press; namely because of the perception that Machiavelli was promoting an amoral, or perhaps even immoral, politics. This isn’t a true reflection of the content of the book.   

[v] In a recent article about the decline of court reporting, Sian Harrison also stresses the importance of reporting from both the civil and criminal courts. 

[vi] Interestingly, just as with Scott v Scott, reason of national security (or a historically apt variation) isn’t one of the exceptions identified here. I don’t pursue the point except to note that reason of national security is now embedded as a justification for derogating from the open justice principle. This is an example of how the understanding of open justice, and its limitations, evolves. 

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