Transparency in the Handling of Public Affairs.
Origins and Meaning of a Requirement
Sandrine Baume (University of Lausanne)
Contact : [email protected]
1st Global Conference on Transparency Research
Rutgers University
May 19-20, 2011
In the darkness of secrecy, sinister interest and evil in every shape, have full swing.[…] Where
there is no publicity there is no justice.
1
Abstract
Over the past few decades, transparency in the handling of public
affairs has become a requirement. This overt interest in transparency has
yielded numerous scholarly works, which, however, fail to take two particular
aspects of the question into account.
First, academics only sporadically examine the doctrinal roots of the
transparency concept. Second, the use of transparency as a metaphor has rarely
undergone semantic analysis.
This article is developed along these two axes: on the one hand, it
identifies the doctrinal breach that coincided with transparency becoming a
requirement and the tradition of State secrecy being put aside. For doing so,
the period that saw the rise of representative governments constitutes a
decisive turning-point. On the other hand, the article examines opinions
favourable to the notion of transparency in order to grasp the intricacy of this
concept. Four essential authors, namely Rousseau, Kant, Bentham and
Constant, each representative of this time, is the focus of this investigation.
1
Jeremy Bentham, ‘Constitutional Code’, John Bowring (ed.), vol. 9 (New York: Russell &
Russell, 1962), p. 493.
1
Having conducted an analysis consisting of making an inventory of both the
positive and negative associations of the transparency concept stated by these
authors, it will appear that transparency can be divided into six dimensions,
that of legality, virtue, veracity, responsibility/accountability, honour and
control. The concluding section reconsiders these component aspects of
transparency in order to postulate on their current validity.
Introduction
Over the past few decades, transparency in the handling of public
affairs has become a requirement, greatly spread by political speeches and
contemporary literature about the supervision and accountability of political
leaders. What is more, recent legislation runs parallel to this movement.2 This
overt interest in transparency has yielded numerous scholarly works, which,
however, have not taken into account two particular aspects of the question,
whose very absence justifies a new in-depth look at transparency.
First, academics only sporadically take into consideration the genesis of
the concept of transparency3. Yet the principle of transparency regarding
public affairs is not a new social phenomenon. Transparency in the handling of
public affairs constitutes a politico-legal project in itself, proving itself to be a
requirement, well ahead of actual legislations and recent scientific literature.
2
In the last decade over 50 countries have issued right to information laws. For example,
Switzerland passed a law on transparency in government in 2004 and Germany in 2006. In the
European Union, the right of access to documents is now guaranteed by the Charter of
Fundamental Rights, and inrpoved regulations for access to EU documents were adopted in
2001; see Charles F. Sabel and Jonathan Zeitlin, ‘Learning from Difference: The New
Architecture of Experimentalist Governance in the EU’, in C.F. Sabel and J. Zeitlin (eds.),
Experimentalist Governance in the European Union (Oxford: Oxford University Press), p. 19.
3
With the notable exception of Jürgen Habermas and Christopher Hood, whose works are
mentioned in this paper.
2
The enthusiasm this “ideational image” conveys should, in our opinion, be
investigated at the level of its doctrinal roots.
Second, this “ideational image” has rarely undergone a semantic
analysis. The concept of transparency in itself leads to a particular fascination
that often prevents any inquiry into its meaning, or any examination of its
content. Today, the notion of transparency in the handling of public affairs has
reached a quasi-sacred status, but it is yet unclear as to what is its exact
meaning.
The concept of transparency, when applied to public affairs, poses the
complicated question of the dimensions and values that are associated with it
and which, in themselves and according to a particular point of view, define
what it means to be transparent. Thus, in order to cancel out the fascination
that the metaphor of transparency contains, one must dissect its different
meanings. In order to be understood, the notion of transparency must then be
broken up into separate dimensions or facets. This undertaking is, in our
opinion, unprecedented within the existing scholarship on the subject.
First, we have identified the temporal breach coinciding with the
formulation of very developed discourses on the notion of transparency (or of
publicity)4. The departure of these discourses from the philosophic tradition of
the State secret (or of the reason of State) was explicit. This temporal break
coincides with the period that saw the rise of representative governments in
Europe (taking place from the end of the eighteenth to the beginning of the
nineteenth century). We have then studied in detail these pleas for transparency
in order to understand the complexity of this notion, notably through the study
4
Please refer to the preliminary note below.
3
of its different dimensions (or connotations). Following this, we have focused
on four fundamental authors, representative of the period, namely Jean-Jacques
Rousseau, Immanuel Kant, Jeremy Bentham and Benjamin Constant, in whose
work the notion of transparency (or of publicity) is very richly represented and
articulated in many different ways. We will return to these different aspects in
the last section of this article to outline several hypotheses regarding their
current relevance.
The point of departure
Transparency establishes its legitimacy in Europe during the second
half of the eighteenth century. It is at this particular point in time that an
important step is taken, diverging from previous theories of the State, which
were until then upheld by the idea of secrecy: both the birth of contemporary
States and their development were underpinned by the practice of secrecy. It is
only when representative governments begin to emerge in Europe that a
discourse articulated around the norm of transparency is truly developed. This
concept becomes a political, legal and moral project. Marc Richir reminds us
that ‘it is the whole “revolutionary” thought that is animated by a belief in the
transparency of society towards itself’.5 According to Richir, the failures of
past revolutions can be assessed by their incapacity to achieve transparency. In
‘The Eye and the Power’, Michel Foucault persuasively describes the dread
that opacity instilled at the time:
5
‘[C]’ est toute la pensée “révolutionnaire” qui est animée de la croyance en une transparence
de la société à elle-même’, Marc Richir, ‘Révolution et transparence sociale’, in J.-G. Fichte
(ed.), Considérations sur la Révolution française [1793] (Paris: Payot, 1974), p. 10 (my
translation).
4
A fear haunted the latter half of the eighteenth century: the fear of
darkened spaces, of the pall of gloom which prevents the full visibility
of things, men and truths. It sought to break up the patches of darkness
that blocked the light, eliminate the shadowy areas of society, demolish
the unlit chambers where arbitrary political acts, monarchical caprice,
religious superstitions, tyrannical and priestly plots, epidemics and the
illusions of ignorance were fomented.6
In the course of the eighteenth century, as Jean Starobinski notes, the rejection
of opacity coincides with the denunciation of appearance, lies and social
masks: ‘In the theatre and the Church, in novels and in newspapers, sham,
convention, hypocrisy, and masks were denounced in a variety of ways.’7 Such
a stigmatisation of the mask, the appearance of the “costume”, marks a new
turn from the culture of court society, a ‘society of representation where
everyone had to keep his place, [...it] was the ideal stage for this kind of roleplay’.8
The necessity of transparency, as an emerging value, coincides with a
questioning of and an objection to absolute authority, whose strength lay in
part in State secrets – arcana imperii. Transparency also calls for a rational
legislation as a requirement, comprising general and abstract norms. Jürgen
Habermas highlights two essential features in The Structural Transformation
of the Public Sphere (1963): the practice of secrecy that serves ‘sovereignty
6
Michel Foucault, ‘The eye of power’, in C. Gordon (ed.), Power/Knowledge: Selected
Interviews & Other Writings 1972-1977 (New York: Pantheon Books, 1980), p. 153.
7
Jean Starobinski, Transparency and Obstruction (Chicago; London: The University of
Chicago Press, 1988), p. 3.
8
‘[S]ociété de représentation où chacun devait tenir sa place, [...elle] était la scène par
excellence de ce jeu de rôles’, Sophie Wahnich, L’impossible citoyen. L’étranger dans le
discours de la Révolution française (Paris, Albin Michel : 1997), p. 32 (my translation).
5
based on voluntas [arbitrariness]’ on the one hand, and publicity that aims to
serve ‘the promotion of legislation based on ratio [reason]’ on the other.9 If
secrecy is the prerogative of sovereignty, publicity is the distinctive feature of
‘legislative States’:
In the “law” the quintessence of general, abstract, and permanent
norms, inheres a rationality in which what is right converges with what
is just; the exercise of power is to be demoted to a mere executor of
such norms. […] Historically, the polemical claim of this kind of
rationality was developed, in conjunction with the critical public debate
among private people, against the reliance of princely authority on
secrets of State. Just as secrecy was supposed to serve the maintenance
of sovereignty based on voluntas, so publicity was supposed to serve
the promotion of legislation based on ratio.10
The link that emerges between the necessity of publicity and that of a
rational legislation, embedded in general and abstract norms, is important
while investigating most of the pleas for transparency that arose during the
eighteenth century. It then seemed crucial that this study include authors,
Immanuel Kant and Jeremy Bentham in particular, who partly found their
considerations of the notion of publicity (or transparency) on an examination
of the law. However we will later see that legal conformity is far from being
the only dimension of transparency.
9
Jürgen Habermas, The Structural Transformation of the Public Sphere. An Inquiry into a
Category of Bourgeois Society (Cambridge: MIT Press, 1991), p. 53.
10
Jürgen Habermas, op. cit., 1991, p. 53.
6
Transparency: a multidimensional concept
The appeal that the notion of transparency had during the second half
of the eighteenth century is founded on several representations, which each
constitute its different connotations. To be understood properly, transparency
must be broken down into its different components. The rich philosophical
contributions of Jean-Jacques Rousseau, Immanuel Kant, Jeremy Bentham and
Benjamin Constant are an invaluable resource, for they each feature a different
plea for transparency. Transparency is often best defined by its opposites. Evil,
arbitrariness, deception, irresponsibility and disgrace: these are the reverse
images these authors sought to fight. To understand the conceptual richness of
the concept of transparency as well as its complexity, we have divided it into
its different dimensions. To fulfil this purpose, we have resorted to what we
have termed the “positive and negative associations’ signification test”. By
thoroughly examining the texts of the cited authors, we chose to draw up a
catalogue of what transparency is opposed to, and to create a record of what its
associations are.
Preliminary note
In the course of the eighteenth century, the concepts of transparency
and of publicity do not differ widely in their meaning. Bentham best illustrates
this. In an excerpt from First Principals Preparatory to Constitutional Code,
he examines the evils that affect public life: opacity and lack of transparency
7
feature amongst them.11 He will use the term ‘publicity’ as its equivalent in
later passages.12 If Rousseau speaks of transparency, he seldom discusses
publicity. Both Kant and Constant only use the concept of publicity. However
similar these notions are, publicity seems to belong more exclusively to the
public sphere, whereas transparency can equally refer to private and public
experiences. We have considered these concepts as quasi-synonymous in our
study.
An author-by-author analysis that we cannot render here due to a lack
of space, enabled us to identify six dimensions linked with the concept of
transparency:
•
Technico-legal dimension,
•
Moral dimension,
•
Veracity or truthfulness13,
•
Responsibility,
•
Honour,
•
Control.
The next step was to give each of these dimensions a more specific content.
It should be noted that they are not mutually exclusive: links can in fact be
traced between them.
11
“Opakeness. Want of transparency, disturbance given [to] the transparency of the whole
business: hence facilities afforded throughout for the secret and successful operation of sinister
interest”, Jeremy Bentham, in P. Schofield (eds.), First Principles Preparatory to
Constitutional Code (Oxford: Clarendon Press, 1989), p. 102.
12
See note 1.
13
The dimensions of legality, morality and veracity are distinctively mentioned by
Christopher Hood in ‘Transparency in Historical Perspective’, in Christopher Hood, David
Heald (eds.), Transparency: The Key to Better Governance? (Oxford: Oxford University
Press, 2006), pp. 3-24.
8
The technico-legal dimension
The foreseeable nature of the law and its application, embodied by the
stability of the legal system, originate in a particular conception of
transparency, which in turn refers to the necessity of a codification that is
precise, coherent, and above all, public. This particular dimension can be found
in Immanuel Kant’s work, and will be reworded by theoreticians of the
Constitutional State in nineteenth-century Germany. Transparency, as it is
understood here, focuses on the normative rule with a regard for how it is
respected, as well as its accessibility. Resisting the arbitrary, it belongs to a
constitutional regime, and corresponds to a specific idea of freedom: that of a
juridical State. For Immanuel Kant, publicity represents a distinctive criterion
to assess the legal nature of a norm; it endows this norm with a ‘legalising’ and
‘legitimating’ dimension.14 Publicity, in the philosopher’s work, rises to the
level of a transcendental formula in public law: ‘All actions that affect the
rights of other men are wrong if their maxim is not consistent with publicity’.15
Bentham also mentions the requirement of legality in the practice of
authority, notably in Principles of Penal Law, where it becomes a measure
against misuse of authority. The rules which subordinates are subjected to must
be clearly defined in the legislation. Legal security relies in part on the
broadcasting of those rules:
14
‘Every claim of right must have this capacity for publicity, and since one can easily judge
whether or not it is present in a particular case, i.e., whether or not publicity is compatible with
the agent’s principles, it provides us with a readily applicable criterion that is found a priori in
reason; for the purported claim’s (praetensio iuris) falseness (contrariness to right) is
immediately recognized by an experiment of pure reason.’ Immanuel Kant, Perpetual Peace
and Other Essays on Politics, History, and Moral, translated with an introduction by Ted
Humphrey (Indianapolis; Cambridge: Hackett Publishing Company, 1983), p. 135.
15
Ibid., p. 135.
9
The laws which limit subordinate officers in the exercise of the power,
may be distinguished into two classes: - To the first belong those which
limit the causes with regard to which they are permitted to exercise
certain powers; to the second, those which determine the formalities
with which they shall exercise them. These causes and these formalities
ought to be all specifically enumerated in the body of the law: this
being done, the subjects ought to be informed that these are causes, and
these the only causes, for which an attack can be legally made upon
their security, their property, their honour.16
The virtuous or moral dimension
This particular dimension is readily accessible in Jean-Jacques
Rousseau, Immanuel Kant and Jeremy Bentham. Rousseau links the absence of
transparency to the question of evil. By opposing transparency to opacity, the
philosopher identifies two relational models: transparency characterises an
immediate relationship with the self or with others, where ‘nothing comes
between one mind and another’.17 This immediacy encourages benevolence
and reverence. On the other hand, relations where personal interest interferes
lose this immediate quality; they move away from transparency, which
remains for Rousseau the virtue of ‘beautiful souls’.18 If this is valid on an
individual level, it is also relevant from a collective perspective. It can for
instance explain Rousseau’s preference for small States: ‘Almost all small
States, republics as well as monarchies, prosper simply because they are small,
16
Jeremy Bentham, ‘Principles of Penal Law’ in John Bowring (ed.), op. cit., vol. 1, p. 575.
Jean Starobinski, op. cit., 1988, p. 23.
18
See note 67. In Les Confessions, Rousseau re-examines the issue of the heart’s transparency:
in Œuvres complètes de Jean-Jacques Rousseau I (Paris: Gallimard, Bibliothèque de la
Pléiade, 1981), p. 446.
17
10
because all their citizens know and watch one another, because the chiefs can
see for themselves the evil being done, the good they have to do; and because
their orders are carried out within their sight’.19
When we consider Immanuel Kant, we can see that publicity takes on
an ethical and legal dimension, most fully developed in Perpetual Peace.20
Kant considers that publicity guarantees a political and moral unity. Public
opinion, publicity’s analogue, is indeed ‘aimed at rationalizing politics in the
name of morality’.21 As a result, if a political action or a maxim cannot be
revealed or ‘divulged’ it is detrimental.
If my maxim cannot be openly divulged without at the same time
defeating my one intention, i.e., must be kept secret for it to succeed, or
if I cannot publicly acknowledge it without thereby inevitably arousing
everyone’s opposition to my plan, then this necessary and universal,
and thus a priori foreseeable, opposition of all to me could not have
come from anything other than the injustice with which it threatens
everyone. Further, it is merely negative, i.e., it serves only as a means
for recognizing what is not right in regard to others. 22
In Kant’s view therefore, transparency’s virtuous dimension is always
linked to an absence of duplicity and to the requirement of truthfulness, a point
we will develop further on.
19
Jean-Jacques Rousseau, ‘Government of Poland’, in The Social Contract and other Later
Political Writings, edited and translated by Victor Gourevitch (Cambridge: Cambridge
University Press, 1997), p. 193.
20
Immanuel Kant, op. cit., p. 135.
21
Jürgen Habermas, The Structural Transformation of the Public Sphere. An Inquiry into a
Category of Bourgeois Society (MIT Press, Cambridge Mass.: 1991), p. 102.
22
Immanuel Kant, op. cit., 1983, pp. 135-136.
11
In Jeremy Bentham’s understanding, publicity, through the surveillance
it facilitates, fosters integrity in both the legal and political spheres. Publicity is
the staple of the ‘Tribunal of Public Opinion’; public opinion here becomes a
moral safeguard against improbity. Those legal procedures that thrive on
concealment “authorize” despotism, procrastination, precipitation, whims and
negligence.23 Bentham argues that ‘publicity is the very soul of justice’.24 The
visibility of procedures does not only guarantee legal security: it also offers
virtue a ‘theatre’, where morality is put into practice and witnessed by all.
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.
Nor is publicity less auspicious to the veracity of the witness, than to
the probity of the judge. Environed as he sees himself by a thousand
eyes, contradiction, should be hazard a false tale, will seem ready to
rise up in opposition to it from a thousand mouths.25
Bentham dedicates lengthy passages to the public opinion tribunal in
Securities Against Misrule and Other Constitutional Writings for Tripoli and
23
‘Appeals without publicity serve only to lengthen the dual and useless course of despotism,
procrastination, precipitation, caprice, and negligence. If publicity is necessary in any one
cause, so is it in every other. For what is that cause in which judges and witnesses are not
liable to prevaricate? Give a judge any sort of power, penal or civil, which he is to be allowed
to exercise without it being possible to know on what grounds, he may exercise it on whatever
grounds he pleases, or without any grounds at all’, Jeremy Bentham, ‘Bentham’s Draught for
the organization of judicial establishments, compared with that of the national assembly’, in
John Bowring (ed.), op. cit., vol. 4, p. 317.
24
Ibid, p. 317.
25
Ibid, p. 317.
12
Greece and in First Principles Preparatory to Constitutional Code;26 this
tribunal opposes legal power with a counter-authority: that of moral sanction,
which transparency alone can generate. Such a counter-power alludes to the
question of responsibility, an issue discussed further on.
The dimension of truthfulness
Transparency is strongly linked to a search for the truth, which almost
always coincides with a moral requirement in these authors’ works. As a result,
it is often difficult to clearly disentangle the dimension of veracity from that of
morality.
For Jeremy Bentham, transparency runs parallel to the denunciation of
falsehood, which can take the forms of fiction,27 imaginary laws,28 and
illusions. Under no circumstance should human happiness depend upon such
falsehoods,29 which are all linked to tricks of the mind. The requirement of
veracity in Bentham’s understanding coincides with clarity of speech and
respect for form, which implies that intelligibility and clarity are necessary
when laws are elaborated and enforced. In a famous debate with William Pitt
regarding the Poor Law, Bentham attacked his opponent not only on the basis
of the content of his argumentation, but also for its confused and obscure
form.30 Transparency refers more fundamentally in Bentham’s work to a
26
Jeremy Bentham, op. cit., 1989, p. 56, pp. 286-287; Jeremy Bentham, op. cit., 1990, p. 27.
Jeremy Bentham, Principes de législation et d’économie politique (Paris: Guillaumin, 1888)
p. 60-65.
28
Ibid, p. 74
29
‘Il ne faut pas faire dépendre le bonheur du genre humain d’une fiction. Il ne faut pas élever
la pyramide sociale sur des fondements de sable et sur une argile qui s’écroule. Qu’on laisse
ces jouets à des enfants : des hommes doivent parler le langage de la vérité et de la raison’,
Jeremy Bentham, op. cit., 1888, pp. 64-65.
30
‘There were but two faults with Pitt’s bill: its form and its content. […] The form of laws in
general and Pitt’s bill in particular was not merely a peripheral issue to Bentham. […]
Sensitive to the issues of the form and clarity of law, Bentham complained bitterly in 1797
27
13
particular approach to the knowledge of the social world, which should be as
immediate as that of natural sciences. Social laws would have the same
regularity and foreseeable nature as the laws of natural order.31 Bentham
associates opacity and ignorance more radically with arbitrary power:
The partisan of arbitrary power does not think thus: he does not wish that
the people should be enlightened, and he despises them because they are
not enlightened. You are not able to judge, he says, because you are
ignorant; and you shall always be kept ignorant, that you may not be
capable of judging. Such is the eternal circle in which he entrenches
himself. What is the consequence of this vulgar policy? General
discontent is formed and increased by degrees, sometimes founded upon
false and exaggerated imputations, which are believed from want of
discussion and examination. A minister complains of the injustice of the
public, without thinking that he has not given them the means of being
just, and that the false interpretations given of his conduct are a
necessary consequence of the mystery with which it is covered. There are
only two methods of acting with men, if it be desired to be systematic
and consistent: absolute secrecy, or entire freedom – completely to
exclude the people from the knowledge of affairs, or to give them the
greatest degree of knowledge possible – to prevent their forming any
judgment, or to put them in a condition to form the most enlightened
about the “disorder” and “obscurity” of Pitt’s bill and argued that an explanatory pamphlet
should have been published.’ Charles F. Bahmueller, ‘Bentham’s Attack on Pitt’s Bill’, The
National Charity Company. Jeremy Bentham’s Silent Revolution (Berkeley; Los Angeles;
London: University of California Press, 1981), pp. 42-43.
31
Christopher Hood, ‘Transparency in Historical Perspective’, in Christopher Hood, David
Heald (eds.), Transparency: The Key to Better Governance? (Oxford: Oxford University
Press, 2006), pp. 8-9.
14
judgment – to treat them as children, or to treat them as men: a choice
must be made between these two methods.32
According to Bentham, ‘If the government disdains to inform the
nation of its motives upon important occasions, it thereby announces that it
depends upon force, and counts the opinion of its subjects for nothing’.33 It
should ‘Publish the Reasons and the Facts which serve as the Foundation for
the Laws and other Acts of Government’.34 The certainty that the advantages
of publicity in public life are always stronger than its inconveniences leads
Bentham to defend informing, however lightly.35 If Bentham supports
anonymous incriminating information, he nonetheless states that such
information cannot be the source of an accusation without further
investigation.
Immanuel Kant also embodies the dimension of truthfulness in his
political thinking by insisting, especially in The Conflict of Faculties, that the
people should not be fooled with respect to its true Constitution. He takes
England’s Constitution as a case-study which everyone pretends is not an
absolute monarchy, but where everyone knows very well that the monarch’s
32
Jeremy Bentham, ‘Principles of Penal Law’, in John Bowring (ed.), op. cit., vol. 1, p. 575.
Ibid, p. 575.
34
Ibid, p. 575.
35
‘It is a great evil when a good institution has been connected with a bad one: all eyes are not
able to use the prism which separates them. In what consists the evil of receiving secret
information, even though anonymous in the first instance? Without doubt, it would not be right
to hurt a hair upon a man’s head upon a secret information, nor to give the slightest uneasiness
to an individual; but, with this restriction, why should the advantage which may result from
them be lost? The magistrate considers if the object denounced deserve his attention: if it do
not deserve it, he disregards the information; in the contrary case, he directs the informer
personally to appear. After examining the facts, if he find him in error, he dismisses him,
praising his good intentions, and concealing his name; if he have made a malicious and
perfidious accusation, his name and accusation ought to be communicated to the party accused.
But if his accusation has foundation, judicial proceedings commence, and the informer is
obliged to appear and give his depositions in public.’ Ibid, p. 573.
33
15
influence on his representatives is so great and infallible that the Chambers
decide nothing other than what the monarch wants and proposes through his
minister. Kant speaks here of ‘a false publicity [that] deceives the people with
the illusion of a limited monarchy’.36 Refusing to deceive, telling the truth,
keeping nothing secret, are requirements that prevail even at the level of
international treaties. Transparency helps to avoid agreements that would
conflict strongly with the people’s interest. The dimension of veracity is
intimately linked to that of morality (or virtue): not deceiving means not
corrupting.37 According to Kant, ‘lying is the real seat of the corruption of
human nature’,38 a claim the philosopher reiterates in the Doctrine of Virtue:
‘This insincerity in his avowals, which man perpetrates upon himself, still
deserves the most serious blame, since it is from such a foul spot (falsity,
which seems to be rooted in human nature itself) that the evil of deceitfulness
spreads into man’s relations with other men, when once the principle of
truthfulness has been violated’.39
The link that emerges between morality and veracity can also be found
in Jean-Jacques Rousseau. In the French philosopher’s perspective, lying hides
under the mask of artifice, hypocrisy, insincerity, or a distancing from the
self.40 On a public level, not ‘corrupting’ the people implies for Rousseau ‘that
36
Immanuel Kant, The Conflict of The Faculties, Translation and Introduction by Mary J.
Gregor (Lincoln: University of Nebraska Press, 1992), p. 163.
37
‘In order to succeed, however, this system of frippery must certainly not be publicized.
Hence it remains under the highly transparent veil of secrecy’, Immanuel Kant, ibid, p. 163 n.
38
‘[L]e mensonge est le véritable lieu de corruption de la nature humaine’, Immanuel
Kant, ‘Annonce de la prochaine conclusion d’un traité de paix perpétuelle en philosophie’,
Vers la paix perpétuelle (Paris: GF Flammarion, 1991), p. 147, my translation.
39
Immanuel Kant, The Doctrine of Virtue (Philadelphia: University of Pennsylvania Press,
1971), pp. 94-95.
40
‘As soon as I was ready to observe men, I watched them do, and I listened to them talk; then,
seeing that their actions did not resemble their speech...’ Jean-Jacques Rousseau, ‘Lettre à
Christophe Beaumont’ in Œuvres complètes de Jean-Jacques Rousseau 4 (Paris: Gallimard,
Bibliothèque de la Pléiade, 1969), p. 966, my translation. (‘Sitôt que je fus en état d’observer
16
the general will is always enlightened, and that the people make no
mistakes’.41 Morality and veracity are thus merged together, a characteristic on
which the views of Jeremy Bentham, Immanuel Kant and Jean-Jacques
Rousseau converge.
The dimension of responsibility
Jeremy Bentham and Benjamin Constant explicitly address this issue.
In the latter’s understanding, visibility is the main lever of control by public
opinion, which ‘publicity’ protects against the State and its exercise of
authority. The responsibility of those in power can only take effect under this
condition. Constant adds that all levels of hierarchy are subject to political
responsibility.42 In Political Principles, he outlines what the objectives of
ministerial responsibility should be: they aim to ‘depriv[e] guilty ministers of
their power’ through the nation’s watchfulness, which operates through
publicity and freedom of speech.43 By virtue of the sanction it allows and the
civic spirit it creates, watchfulness (conceived here as a control by the people)
lies at the very heart of political life.
The concept of responsibility, linked to publicity, also appears in
Bentham’s work, in Securities against misrule and other constitutional
les hommes, je les regardais faire, et je les écoutais parler; puis, voyant que leurs actions ne
ressemblaient point à leurs discours…’).
41
Jean-Jacques Rousseau, ‘Of the Social Contract’ in The Social Contract and other Later
Political Writings (Cambridge: Cambridge University Press, 1997), p.60.
42
‘It is not sufficient to have established the responsibility of ministers; this responsibility has
no existence unless it begins with the immediate executor of the act which is its object. It must
weigh upon all the levels of the constitutional hierarchy’, Benjamin Constant, ‘Principles of
Politics Applicable to all Representative Governments’, in Political Writings (Cambridge:
Cambridge University Press, 1988), p. 244.
43
‘It seems to me that responsibility must, above all, secure two aims: that of depriving guilty
ministers of their power, and that of keeping alive in the nation – through the watchfulness of
her representatives, the openness of their debates and the exercise of freedom of the press
applied to the analysis of all ministerial actions – a spirit of inquiry, a habitual interest in the
maintenance of the constitution of the state, a constant participation in public affairs, in a word
a vivid sense of political life’, ibid, p. 239.
17
writings for Tripoli and Greece and First Principles Preparatory to
Constitutional Code in particular. As we have detailed above, responsibility is
associated with the moral sanction exercised by the ‘Public Opinion Tribunal’,
which requires a level of transparency in public life in order to act. This
fictitious tribunal allows popular counter-authority to function against legal
power.44 The moral punitive power is public opinion’s prerogative:
Look now to moral responsibility- responsibility to the purpose of
eventual exposure to the punitive power of the Public Opinion Tribunal,
possessor of the force and influence of the popular, or say moral,
sanction: and in particular the power of the democratic (section) of that
same invisible, yet not the less effectively operative, tribunal: a tribunal,
like the Vehmic, invisible; but, like that, not the less operative.45
In Bentham’s argument, publicity is the most effective way to fight the
operations of bad governance. In Securities against misrule and other
constitutional writings for Tripoli and Greece, Bentham lists cases of bad
administration or ‘misrule’ where publicity remains the best antidote. These
include cases where the victim is an individual, as in banishment, homicide or
imprisonment, and collective cases such as generalised misinformation or
waste of public money.46 Publicity, or in other words public opinion, is the
44
The fictitious nature of the tribunal does not mean fake or illusory here, but should be
interpreted metaphorically as becomes clear in the following quotation: ‘this tribunal, fictitious
as it is, is not altogether without force’, Jeremy Bentham, op. cit., 1989, pp. 241-2.
45
Jeremy Bentham, op. cit., 1989, pp. 286-287. See also ‘Maximizing moral responsibility –
i.e. subjection to reproach at the hands of the public opinion tribunal, by which the power of
the moral or popular sanction is applied as a counterforce to the legal power of the state’, ibid,
p. 56.
46
Jeremy Bentham, op. cit., 1990, p. 26.
18
only remedy for all these examples.47 According to Bentham, even faced with
instances of extensive corruption, the ‘Public Opinion Tribunal’ maintains its
strength.48
If one turns to Immanuel Kant, one notices that responsibility is not
explicitly described: legal conformity is here considered. Finally, the notion of
responsibility is veiled in Rousseau’s work. Although the French philosopher
does not discuss it, he nonetheless prepares its conditions by insisting on the
necessity to observe one another in all actions, good or evil. This mutual
surveillance is the preamble to political responsibility. However, as opposed to
Bentham and Constant, Rousseau’s thinking does not extend to sanctioning
those in power proven guilty in their behaviour.
The dimension of honour
This dimension is most conspicuous in Jean-Jacques Rousseau,
Benjamin Constant and Jeremy Bentham. It enjoys close connections with the
dimensions of responsibility and virtue.
47
‘Sole remedy, publicity: sole means of applying the protective power of the Public Opinion
Tribunal. Publicity and notification – their mutual relations […] So much for the disease. Now
as to the remedy. A single word, publicity, has been employed for the designation of it. For
this same purpose another expression – Public Opinion – might have been employed:
employed and without impropriety, though, with reference to the other expression, not
synonymous nor any thing like it. Of what nature the relation between them is – will be seen
presently’, Jeremy Bentham, op. cit, 1990, p. 27. Another instance is ‘One word – misrule –
will serve for conveying a general conception of the disease: another word – publicity, for
conveying the like conception of the remedy: - the only remedy (it will be seen) which,
without a change in the form of the government, the nature of the disease admits of’, Jeremy
Bentham, ibid, p. 25.
48
‘Even in the very sink of corruption, where all functionaries are corrupt – rendered
necessarily so by the very form of government – even in such an atmosphere, this tribunal,
fictitious as it is, is not altogether without force: by the force it is, and no other, that all that
evil has been prevented which as yet remains undone: if in so pestilential an atmosphere, in
which what is called religion has its effect, and understanding and will labour under the
avowedly desired prostration of strength, this antiseptic is not without its effect, what would it
be under a pure one?’ Jeremy Bentham, op. cit., 1989, pp. 241-2.
19
A transparent political society, visible and readable in all its parts, as
portrayed by Rousseau, displays honours through external signs, encourages
emulation, and prevents the anonymous status which screens both vice and
virtue.49 In Government of Poland, Rousseau emphasizes the fact that honorary
rewards should be greatly preferred to financial compensations. The former are
public, give lustre to all patriotic virtues, ‘speak to men’s eyes and hearts’,
whereas the latter ‘disappear as soon as they have been conferred’, and ‘leave
no visible trace which might arouse emulation by perpetuating the honour that
should attach to them’.50
If Rousseau establishes an explicit link between honour and virtue,
Constant underlines a relation between honour and responsibility or legitimacy
more directly. In Principles of Politics, he notes that ministers’ honour can be
guaranteed by public opinion only when the life of the State appears clearly.
The opacity or vagueness that surrounds state operations leads to suspicion,
doubt and mistrust.
The honour of ministers, far from requiring that any accusation directed
against them should be shrouded in mystery, on the contrary imperiously
demands that its examination should be made in broad daylight. A
minister vindicated in secret has never been fully vindicated.
Accusations will not have remained unknown. The impetus that dictates
them inevitably leads those who formulate them to reveal them. But
revealed in this way, in vague conversation, they are bound to assume all
the gravity that passion seeks to give them. Truth has no opportunity to
49
‘I should like that all grades, all employments, all honorific awards be marked by external
signs, that no public figure be allowed ever to move about incognito’, Jean-Jacques Rousseau,
‘Government of Poland’ in The Social Contract and other Later Political Writings
(Cambridge: Cambridge University Press, 1997), pp. 227-8.
50
Ibid, pp. 185 and 227.
20
refute them. You will not prevent the accuser from speaking, you will
only prevent him from being answered. The minister’s enemies take
advantage of the veil of secrecy covering the case to make any untruthful
accusation they wish. A full, public explanation, in which the
representative bodies of the nation enlightened the entire nation on the
conduct of the accused ministers, would prove perhaps both their
moderation and his innocence. A secret discussion would leave hanging
over him the accusations, which has been rejected only by some
mysterious inquiry, and weighing upon them an appearance of
connivance, weakness of complicity.51
According to Constant, libel and unfounded accusations do not make
very solid arguments to remove the legitimacy of the publicity principle.
Thoughtless declamations, unfounded accusations, wear themselves out;
they discredit themselves and finally cease by the mere effect of that
opinion which judges and withers them. They are dangerous only under
despotism, or in demagogies because, all powers being united and
confused, as in a despotism, whoever dominated they by subjugating the
crowd with his oratory, is the absolute master. It is despotism under
51
Benjamin Constant, ‘Principles of Politics Applicable to all Representative Governments’, in
Political Writings (Cambridge: Cambridge University Press, 1988), pp. 232-3. In the same
way, ‘A powerful man cannot be accused without awakening that opinion and stirring up
curiosity. It is impossible to avoid this result. What is necessary is to reassure the former, and
this cannot be done without satisfying the latter. One does not conjure away dangers by
shielding them from the public eye. Far from it: they grow from the very night which
surrounds them. Objects look larger in the darkness. In the shadow, everything appears
gigantic and hostile.’ Ibid, p. 233.
21
another name. But when the powers are balanced and they restrain one
another, words cannot have such a rapid and immoderate effect.52
Bentham is in complete agreement with Constant on the idea that opacity
and mystery are never profitable to reputation, for they encourage suspicion
and allow calumny. Publicity, rather than affecting honour, more often
preserves it; open procedures prevent false accusations, a feature most relevant
to judges’ reputation.
Publicity is farther useful as a security for the reputation of the judge (if
blameless) against the imputation of having misconceived, or, as if on
pretence of misconception, falsified, the evidence. Withhold this
safeguard, the reputation of the judge remains a perpetual prey to
calumny, without the possibility of defence: apply this safeguard, adding
it as an accompaniment and corroborative to the security afforded (as
above) by registration, - all such calumny being rendered hopeless, it will
in scarce any instance be attempted – it will not in any instance be
attempted with success.53
The dimension of control
If this issue is addressed by all these authors alike, it remains most
noticeable in Jeremy Bentham, for whom the idea of publicity is aimed at
abuse of power and transgression of legal, political and moral rules. For this,
52
Ibid, p. 233. Similarly, ‘In England too there are, in the House of Commons, ranters and
troublemakers. Yet what happens? They talk, no one listens to them, and they fall silent. The
same interest which makes an assembly attached to its own dignity teaches it to restrain its
members without seeking to stifle their voices. Let it get its own education. It must do so. To
interrupt it is simply to retard its progress.’ Ibid, pp. 233-4
53
Jeremy Bentham, ‘Rationale of Judicial Evidence, Specially Applied to English Practice’, in
John Bowring (ed.), op. cit., vol. 4, p. 355.
22
transparency represents the most effective source of control, as it helps to curb
infringing behaviours. When Bentham mentions the publicity that must
surround legal procedures, he notes:
On the other hand,- suppose the proceedings to be completely secret, and
the court, on the occasion, to consist of no more than a single judge, that judge will be at once indolent and arbitrary: however corrupt his
inclination may be, it will find no check, at any rate no tolerably efficient
check, to oppose it. Without publicity, all other checks are insufficient in
comparison with publicity, all other checks are of small account.54
In ‘Principles of Penal Law’, Bentham lists the means of diminishing
abuses of power; five out of twelve are directly linked to the requirement of
publicity or to the reduction of opacity. These measures involve: 1)
acceptability of secret information (in other words, informing); 2) freedom of
press, 3) publication of the reasons and facts that have motivated the
development of laws or other acts of government, 4) exercise of power that
respects rules and forms, 5) recognition of citizens’ right to associate, allowing
them to express their feelings and their desires with regards to government’s
public measures.55
54
Ibid, p. 335.
‘General precautions against the abuse of authority: 1. Divide Power into different Branches;
2. Distribute the particular Branches of Power, each among different copartners – Advantages
and Disadvantages of this policy; 3. Place the power of Displacing in other hand than the
power of Appointing; 4. Suffer not Governors to remain long in the same Districts; 5. Renew
the Governing Body by Rotation; 6. Admit Secret Information; 7. Introduce the Lot, in
requests addressed to the Sovereign; 8. Liberty of the Press; 9. Publish the Reasons and the
Facts which serve as the Foundation for the laws and other Acts of Government ; 10. Exclude
Arbitrary Power; 11. Direct the Exercise of Power by Rules and Forms; 12. Establish the Right
of Association; that is to say, of Assemblies of the Citizens for the expression of their
sentiments and their wishes upon the public measures of Government.’ Jeremy Bentham,
‘Principles of Penal Law’, in John Bowring (ed.), op. cit., vol. 1, p. 570.
55
23
Bentham’s notion of transparency is most often thought of in the
literature as the exercise of an ‘all-seeing’, and therefore omnipotent power.56
His panopticon project furthers this kind of conception.57 However, Bentham
also sees transparency as an instrument that limits power and that checks
misuse of authority. The ‘Public Opinion Tribunal’ is one of its important
devices.
Such a Benthamian understanding of control, fostered by publicity, is the
closest to Benjamin Constant’s position, which states that control requires
publicity, so that opinions may develop and political responsibilities establish
themselves, especially by public opinion, which, for Constant as for Bentham,
plays the role of a non-instituted, fictitious tribunal.
Rousseau’s model of transparent society is very clearly that of mutual
surveillance, of universal visibility. In Government of Poland in particular,
Rousseau outlines the conditions under which watchfulness can be exercised.
In this respect, the size of the State is a decisive element in mutual surveillance
and ultimately in maintaining order.
Almost all small States, republics as well as monarchies, prosper simply
because they are small, because all their citizens know and Watch one
another, because the chiefs can see for themselves the evil being done,
the good they have to do; and because their orders are carried out within
their sight. All great peoples crushed by their own mass groan either in
anarchy as do you, or under subordinate oppressors which a necessary
56
Michel Foucault, ‘The eye of power’ in Power/Knowledge: Selected Interviews & Other
Writings 1972-1977 (Colin Gordon ed.) (New York: Pantheon Books, 1980), p. 153.
57
In the panopticon project, each inmate is confined to his cell, always visible, each of his
actions can be seen by a warden, who remains invisible himself. Subjected to a potentially
ceaseless observation, the inmate acts as if he were monitored at all times; this is how visibility
in the exercise of power functions.
24
devolution forces Kings to set over them. Only God can govern the
world, and it would take more than human faculties to govern great
nations.58
Finally for Immanuel Kant, transparency constitutes a device or a
criterion for the control of rules’ legal nature. If publicising rules does not
guarantee their legal character, an absence of the advertisement of norms
provides unquestionable evidence of their non-legal nature.59 The standard of
publicity the German philosopher states, in Towards Perpetual Peace in
particular, discriminates and thus allows to remove the legitimacy of those
rules that do not meet this criterion. It is therefore through a sort of ‘legality
test’ that control theoretically operates.
Conclusion
In lieu of a conclusion, we would like to briefly examine the ways in
which the six dimensions of transparency (legality, virtue, truthfulness,
responsibility, honour, control), identified in the texts of authors who
witnessed the emergence of representative governments can be found in
today’s discourse. In other words, is transparency the product of the
combination of these dimensions? Have some dimensions disappeared or have
they been strengthened? We introduce here the hypothesis that the six
dimensions outlined remain the constitutive elements of the concept of
transparency in current debates.
58
Jean-Jacques Rousseau, ‘Government of Poland, in The Social Contract and other Later
political writings (Cambridge: Cambridge University Press, 1997), p. 193.
59
See note 14.
25
Legality is one of transparency’s most prominent dimensions today, and
seems to carry even more weight. The aspiration for legality has greatly
increased over the past two decades, probably as a result of the growing
influence of the rule of law and its spirit. Among twentieth-century
theoreticians of the State who have focused on transparency in particular, one
should for instance single out Hans Kelsen for whom, in democracy, the
legality of State activities is best guaranteed by publicity. This clearly prevails
in an article published in 1933, ‘State-form and world-outlook’.60
Political responsibility, which was explicitly considered by Benjamin
Constant and Jeremy Bentham, has also become prevalent in the literature on
transparency. The requirement of transparency coincides with the desire to
make public agents responsible politically, and to sanction guilty actions. If
this desire is unmistakable, it is not always fulfilled. As John Dunn very
usefully reminds us, making rulers responsible or accountable for their actions
implies an access to information and a level of transparency in actions,
conditions that reality does not often offer, due to human actions’ inherent
opacity and the numerous obstacles to information citizens face.61 Moreover,
60
‘Since democracy is concerned with legal security, and thus with lawfulness and
accountability in the workings of government, there is a strong inclination here to controlmechanisms, as a guarantee for the legality required. And the principle of publicity is therefore
paramount, as the most effective guarantee. The tendency to disclosure is typically democratic,
and tempts a superficial or ill-disposed judgement of this form of state to assume prematurely
that certain political abuses, especially corruption, are commoner here than under autocracy,
where in fact they merely remain invisible because the opposite system of government
prevails. An absence of control-measures, which could only hamper the working of the state;
no publicity, but an intensive effort, in the interests of state authority, to maintain it in awe, to
reinforce official discipline and the obedience of the subject; in a word, concealment.’ Hans
Kelsen, ‘State-form and world-outlook’, in Ota Weinberger (dir.), Essays in Legal and Moral
Philosophy (Dordrecht-Holland/Boston-U.S.A: D. Reidel Publishing Company, 1973), pp.
103-4. As this excerpt testifies, it is not only legality that is best secured by publicity for
Kelsen, but political responsibility (or accountability) as well.
61
‘One could think of accountability in this sense as a relation of power or force between
citizens and their rulers – an interactive game, the payoff structure of which, more or less
effectively, rationally sanctions the behaviour of the latter through the threats and offers that it
is open to the former to make and execute. This is unlikely to prove very instructive. Why?
26
as Daniel Naurin emphasises, the fact that an inappropriate action is exposed to
public judgment does not suffice for the liable politician to be punished.
Leaders’ sensitivity to opinion, even slanderous, varies considerably. If some
are concerned about it and see it as a costly verdict, others are more
indifferent.62
Within current scholarly work on transparency, virtue surfaces most
tangibly in works on corruption. Naurin states that ‘in the research and debate
on the causes of and remedies for corruption the purifying power of
transparency is a well established assumption.’63 In this understanding,
transparency becomes the safeguard of the moralisation of the political.
Furthermore, in several contemporary authors, transparency today represents a
form of substitutive virtue that becomes obvious when other values weaken.
Rosanvallon clearly illustrates this idea: ‘A true ideology of transparency has
thus gradually built itself on the ruins of the common world production
democratic ideal. Transparency has become the virtue substituted for the truth
or the general interest idea in a world characterised by uncertainty. [...] The
new transparency utopia becomes the very driving force of the disillusionment
it meant to curb.’64
Fundamentally, because of the inherent opacity of all human action, and the added
informational obstacles that most citizens face in sanctioning most public officials in most
ways in which, in retrospect, they might wish to have been able to sanction them.’ John Dunn,
‘Situating Democratic Political Accountability’, in Adam Przeworski, Susan C. Stokes,
Bernard Manin (ed.), Democracy, Accountability and Representation (Cambridge: Cambridge
University Press, 1999), p. 335.
62
Daniel Naurin, ‘Transparency, Publicity, Accountability – the Missing Links’, Swiss
Political Science Review, 12(3), 2006, p. 92.
63
Ibid, p. 92.
64
‘une véritable idéologie de la transparence s’est ainsi peu à peu érigée en lieu et place de
l’idéal démocratique de production d’un monde commun. La transparence est devenue la vertu
qui s’est substituée à la vérité ou à l’idée d’intérêt général dans un monde marqué par
l’incertitude [...] La nouvelle utopie de la transparence devient de la sorte le moteur même du
désenchantement qu’elle entendait conjurer.’ Pierre Rosanvallon, La contre-démocratie. La
politique à l’âge de la défiance (Paris: Seuil, 2006), p. 262, my translation.
27
One notices, nowadays, a resurgence of the notion of honour through its
opposite, disgrace or infamy. In the public sphere, this is most visible through
the occurrence political theorists have called ‘naming and shaming’. It
qualifies situations where actors of the public scene are confronted with
mediatised judgments that generate the bad reputation of those involved. Fear
of slanderous collective judgment can therefore lead to disciplining. The
dimension of honour thus becomes an implicit instrument of governance.65
Transparency as a remedy to illusions, preconceived ideas, intelligibility,
and ultimately as a guarantee of veracity, is equally manifest in contemporary
literature. When Christopher Hood in 2001 defines the notion of transparency,
highlighting the difficulty of the task due to the concept’s complexity, he
notes: ‘in fact, it [transparency] is commonly used to mean a number of
different things, such as disclosure, policy clarity, consistency or a culture of
candour.’66 Clarity, coherence, sincerity, are three elements that outline this
definition. As we already noticed in the classics, there is a constant to-ing and
fro-ing between virtue and veracity, dimensions that are also contained in this
definition. The search for the real often coincides with a quest for sincerity.
This is confirmed by Jean-Denis Bredin’s definition of transparency in 2001,
blending connotations of truth, clarity and purity.67
65
Cf. Joachim Blatter, ‘Demokratie und Legitimität’, in Arthur Benz, Susanne Lütz, Uwe
Schimank, Georg Simonis (eds.), Handbuch Governance (Wiesbaden,:VS Verlag, 2007), pp.
271-284, and Colin Scott, ‘Spontaneous Accountability’, in Michael W. Dowdle (ed.), Public
Accountability. Designs, Dilemmas and Experiences (Cambridge: Cambridge University Press,
2006), pp. 174-191.
66
Christopher Hood, ‘Transparency’, in Paul Barry Clark, Joe Foweraker (eds.),
Enclyclopedia of Democratic Thought (London: Routledge, 2001), p. 701.
67
‘It [transparency] is confused with truth, clarity, lucidity, pureness even. “Transparency is
the virtue of beautiful souls” Jean-Jacques Rousseau asserted, wanting to make his own soul
transparent.’ Jean-Denis Bredin, ‘Secret, transparence et démocratie’, Pouvoirs, 97 (2001), p.
5, my translation.
28
Finally, the dimension of control remains very present in literature.
Transparency plays a key role; publication of indices on corruption practices
(those of Transparency International in particular), reporting of information
regarding relations rulers keep with the economic world, etc., entail the public
control and the introduction of rulers’ responsibility in view of possible guilty
actions. It is foremost in its potential for control and therefore moral, political
and legal sanction that transparency becomes a real public issue.
29