Beyond Foucault

Beyond Foucault
New Perspectives on Bentham’s Panopticon
Edited by
Anne Brunon-Ernst
Beyond Foucault
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Beyond Foucault
New Perspectives on Bentham’s Panopticon
Edited by
Anne Brunon-Ernst
University of Paris 2 and Centre Bentham, France
© Anne Brunon-Ernst 2012
All rights reserved. No part of this publication may be reproduced, stored in a retrieval
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recording or otherwise without the prior permission of the publisher.
Anne Brunon-Ernst has asserted her right under the Copyright, Designs and Patents Act,
1988, to be identified as the editor of this work.
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British Library Cataloguing in Publication Data

Beyond Foucault : new perspectives on Bentham’s Panopticon.
1. Bentham, Jeremy, 1748-1832. Panopticon. 2. Punishment--
Philosophy. 3. Foucault, Michel, 1926-1984.
I. Brunon-Ernst, Anne.
364.6'01-dc23
Library of Congress Cataloging-in-Publication Data

Beyond Foucault : new perspectives on Bentham’s Panopticon / edited by Anne
Brunon-Ernst.
p. cm.
Includes bibliographical references and index.
ISBN 978-0-7546-6843-5 (hbk.) -- ISBN 978-0-7546-9489-2 (ebook)
1. Bentham, Jeremy, 1748-1832. Panopticon. 2. Foucault, Michel,
1926-1984. 3. Prisons. 4. Imprisonment--Philosophy. 5.
Punishment--Philosophy. 6. Social control--Philosophy. I. Brunon-Ernst,
Anne.
HV8805.B53B49 2012
364.6--dc23
2011033881
ISBN 9780754668435 (hbk)
ISBN 9780754694892 (ebk)
III
Printed and bound in Great Britain by
TJ International Ltd, Padstow, Cornwall
Contents
Notes on Contributors vii

Foreword by Clare O’Farrell xi
Acknowledgements xiii
List of Abbreviations xv
Introduction 1
Anne Brunon-Ernst
Part I: Historiography Reconsidered:

From Discipline to Governmentality
1 Deconstructing Panopticism into the Plural Panopticons 17

Anne Brunon-Ernst
2 From Discipline and Punish to The Birth of Biopolitics 43

Christian Laval
Part II: Status of the Panopticon in Prison,

Penal and Constitutional Reform
3 From ‘Utopia’ to ‘Programme’:

Building a Panopticon in Geneva 63
Emmanuelle de Champs
4 Penal Theory without the Panopticon 79

Jean-Pierre Cléro
5 From the Penitentiary to the Political Panoptic Paradigm 115

Guillaume Tusseau
vi Beyond Foucault
Part III: Is There a Panoptic Society?

Social Control in Bentham and Foucault
6 Transparency and Politics: The Reversed Panopticon as a

Response to Abuse of Power 143
Marie-Laure Leroy
7 Social Control and the Legal Panoptic Paradigm 161

Malik Bozzo-Rey
Epilogue: The Panopticon as a Contemporary Icon? 185

Anne Brunon-Ernst and Guillaume Tusseau
Bibliography 201
Index 221
Notes on Contributors
Malik Bozzo-Rey is Assistant-Professor in the Department of Ethics at

Lille Catholic University, Director of the Centre de Recherche en Ethique
Economie Entreprise, British Academy Visiting Fellow (2009) and Honorary
Research Associate at the Bentham Project, University College London, and
member of the Centre Bentham. He is co-founder of the E-nous network
(European Network for Utilitarian Studies). He contributed to the edition and
translation of Bentham’s Introduction to the Principles of Morals and Legislation
(Paris: VRIN, 2011). He is currently working on two book projects: Au-delà de
l’utilitarisme: droit et politique chez Jeremy Bentham and L’éthique utilitariste,
une introduction. He is due to publish the first translation of Of the Limits of the
Penal Branch of Jurisprudence in French.
Anne Brunon-Ernst was educated at the Ecole Normale Supérieure (Cachan).

She is Senior Lecturer in Legal English at the University of Paris 2 (Panthéon-
Assas), member of the Centre Bentham, and founding editor of the journal
Revue d’études benthamiennes. She has published on Bentham’s Panopticon
projects and on the Bentham–Foucault relationship in Journal of Bentham
Studies, Revue d’études benthamiennes, Cahiers critiques de philosophie, and
La Revue Tocqueville/The Tocqueville Review. She contributed to the edition
and translation of Bentham’s Introduction to the Principles of Morals and
Legislation (Paris: VRIN, 2011), and to the edition of Dumont’s Traités de
législation civile et pénale (Paris: Dalloz, 2010). She has recently edited special
issues on Foucault and/or Bentham in Revue d’études benthamiennes (Foucault
et l’utilitarisme) and in The Tocqueville Review/La Revue Tocqueville (Jeremy
Bentham’s Theory Today). She is the author of Le Panoptique des pauvres (Paris:
Presses de la Sorbonne Nouvelle, 2007), and she is currently working on a
book entitled Utilitarian Biopolitics (London: Pickering and Chatto, 2012,
forthcoming).
viii Beyond Foucault
Emmanuelle de Champs was educated at the Ecole Normale Supérieure

(Fontenay-Saint-Cloud). She is Senior Lecturer in British History at the
University of Paris 8 (Vincennes à Saint-Denis), and a founding member of the
Centre Bentham. She contributed to the edition and translation of Bentham’s
Introduction to the Principles of Morals and Legislation (Paris: VRIN, 2011).
She is the author of ‘La déontologie politique’ ou La pensée constitutionnelle de
Jeremy Bentham (Geneva: Droz, 2008) and co-editor, with Jean-Pierre Cléro,
of Bentham et la France. Fortune et infortunes de l’utilitarisme (Oxford: SVEC-
09, 2009). She has published on the reception of Bentham’s utilitarian ideas in
France through the works of Dumont and Halévy in the Journal of Bentham
Studies, Bulletin de la Société d’Etudes Anglo-Américaines des XVIIème et
XVIIIè siècles, Revue d’études benthamiennes, Cahiers critiques de philosophie,
Cromohs: A Cyber-Review of Modern Historiography, and La Revue Tocqueville/
The Tocqueville Review. She is currently working on a monograph entitled
Enlightenment and Utility: Jeremy Bentham in France 1760–1840.
Jean-Pierre Cléro is Professor of Philosophy at the University of Rouen and

Director of the Centre Bentham. He contributed to the edition and translation
of Bentham’s Introduction to the Principles of Morals and Legislation (Paris:
VRIN, 2011). He is the author of many books on classical utilitarianism: Le
vocabulaire de Bentham (Paris: Ellipses, 2002), Le vocabulaire de Stuart Mill
(Paris: Ellipses, 2006), Bentham, philosophe de l’utilité (Paris: Ellipses, 2006),
and Calcul moral ou comment raisonner en éthique (Paris: A. Colin, 2011). He
also translated Bentham’s Fragment sur le gouvernement (Paris: Le Seuil, 1996),
De l’ontologie et autres textes sur les fictions (Paris: Le Seuil, 1997), ‘L’absurdité
sur des échasses ou la boîte de Pandore ouverte’ (in Bentham contre les Droits
de l’homme Paris: PUF, 2007), Chrestomathia (Paris: Cahiers de l’Unébévue,
2004), and Les ressorts de l’action (Paris: Cahiers de l’Unébévue, 2008).
Clare O’Farrell is a Senior Lecturer in the School of Cultural and Language

Studies at the Queensland University of Technology in Brisbane, Australia. She
studied philosophy under the direction of François Châtelet in Paris in the early
1980s and attended Foucault’s lectures. She has written two books on Foucault,
Foucault: Historian or Philosopher? (Basingstoke: Macmillan, 1989) and Michel
Foucault (London: Sage, 2005), and has edited a large collection of essays on
his work, Foucault the Legacy (Brisbane: Queensland University of Technology,
1997). She was one of the founding editors of the journal Foucault Studies and
runs a resource website on Foucault, michel-foucault.com, which first went
online in 1997.
Notes on Contributors ix
Christian Laval is Professor in Sociology at Paris Ouest-Nanterre-La Défense

University and a member of the Centre Bentham. He contributed to the
edition and translation of Bentham’s Introduction to the Principles of Morals
and Legislation (Paris: VRIN, 2011). His books on Bentham include: Jeremy
Bentham: Le pouvoir des fictions (Paris: PUF, 1994), De l’ontologie et autres
textes sur les fictions (Paris: Le Seuil, 1997, with Jean-Pierre Cléro), L’ambition
sociologique (Saint-Simon, Comte, Tocqueville, Marx, Durkheim, Weber) (Paris:
La Découverte, 2002), Le panoptique (Paris: Mille et une nuits, 2002, C. Laval
(ed.), E. Dumont (trans.)), Le vocabulaire de Bentham (Paris: Ellipses, 2002,
with Jean-Pierre Cléro), Jeremy Bentham, les artifices du capitalisme (Paris: PUF,
2003), Défense de la liberté sexuelle, écrits sur l’homosexualité (Paris: Mille et une
nuits, 2004, C. Laval (ed.)), Sauver Marx? Empire, multitude, travail immatériel
(Paris: La Découverte, 2007, with Pierre Dardot and El Mouhoub Mouhoud),
L’Homme économique: Essai sur les racines du néolibéralisme (Paris: Gallimard,
2007), La nouvelle raison du monde, Essai sur la société néolibérale (Paris:
La Découverte, 2009, with Pierre Dardot), and Marx, prénom: Karl (Paris:
Gallimard, 2011, with Pierre Dardot).
Marie-Laure Leroy lectures in Philosophy at higher education institutions.

She is a member of the Centre Bentham. She contributed to the edition and
translation of Bentham’s Introduction to the Principles of Morals and Legislation
(Paris: VRIN, 2011). She is the author of a translation of Bentham’s Garanties
contre l’abus de pouvoir et autres écrits sur la liberté politique (Paris: Editions rue
d’Ulm, 2001). Her contributions include a number of papers on Bentham’s
moral and political philosophy in the Revue d’études benthamiennes, La revue
du MAUSS, MagPhilo and the Presses Universitaires de Franche-Comté.
Guillaume Tusseau is Professor of Public Law at Sciences Po Law School, a

junior member of the Institut Universitaire de France, and a member of the
Centre Bentham. He contributed to the edition and translation of Bentham’s
Introduction to the Principles of Morals and Legislation (Paris: VRIN, 2011).
He is the author of Jeremy Bentham et le droit constitutionnel, Une approche de
l’utilitarisme juridique (Paris: L’Harmattan, 2001), Les normes d’habilitation
(Paris: Dalloz, 2006), and Contre les ‘modèles’ de justice constitutionnelle. Essai
de critique méthodologique / Modelli di giustizia costituzionale. Saggio di critica
metodologica (Bologna: Bononia University Press, 2009). He also edited Les
notions juridiques (Paris: Economica, 2009) and co-edited, with Malik Bozzo-
Rey, Bentham juriste: l’utilitarisme en question (Paris: Economica, 2011).
He has also written widely in the field of jurisprudence, constitutional and
administrative law. He has published in Revue du droit public et de la science
x Beyond Foucault
politique en France et à l’étranger, International Journal for the Semiotics of Law,

Revue française de droit administratif and Revue d’études benthamiennes. His
latest bilingual edition is entitled: Contre les modèles de justice constitutionnelle.
Essai de critique méthodologique / ‘Modelli’ di giustizia costituzionale. Saggio
di critica metodologica (Bologna: Bononia University Press, 2009, L. Pegoraro
(pref.), A. Morandini (trans.)). His most recent books are: Para acabar con los
‘modelos’ de jurisdicción constitucional: Un ensayo de crítica, 2nd revised edn,
trans. with T. García Berrio Hernández (México: Porrúa, 2011), and Jeremy
Bentham. La ‘guerre des mots’ (Paris: Dalloz, 2011).
Foreword
Clare O’Farrell
In 1978, three years after the publication of Foucault’s book Discipline and
Punish, which famously introduced Bentham’s notion of the Panopticon to a
wide audience, the French historian Jacques Léonard remarked that ‘it would
need a squadron of competent historians to sort out the mass of interpretations’
offered by Foucault’s work.1 In response, Foucault said that he wanted his work
to provide a workshop which would allow both himself and others to undertake
further work and experiment with different approaches.2 He also cheerfully
noted that he was encouraged by the ‘irritating effect’ that his work produced on
others.3 The present book, which comprehensively treats the work of Bentham
both in the wake of and against Foucault’s work, is a cogent testimony to the
continued currency of these observations.
There is little doubt that without the intervention of Foucault’s emblematic
use of Bentham’s work in his development of his idea of a disciplinary society
built on surveillance, Bentham may well have remained, at this late remove, a
figure familiar only to the scholarly inhabitants of university departments of
philosophy, history and political science. As a direct result of Foucault’s work,
Bentham has become a figure recognised across a whole host of disciplines, but
as the authors in this book point out, it is a recognition that has come at a price.
Foucault, critical cautions to the ready, used one particular aspect of Bentham’s
work – the Panopticon – as a metaphor for the appearance of a particular idea
of social organisation at the end of the nineteenth century, and in so doing,
captured the imagination of many who have enthusiastically extended his idea to
almost every arena of contemporary social activity. This has inevitably led to the
easy and widespread equation: Bentham = Panopticon = oppressive totalising
society of surveillance.
1
J. Léonard, ‘L’historien et le philosophe’, in M. Perrot (ed.), L’impossible prison:
recherches sur le système pénitentiaire au XIXe siècle et débat avec Michel Foucault (Paris: Seuil,
1980), p. 10.
2
M. Foucault, ‘Questions of Method’, in J.D. Faubion (ed.) and R. Hurley (trans.),
Power: Essential Works of Foucault (3 vols, London: Penguin, 2002), vol. 3, pp. 223–4.
3
Ibid., p. 235.
xii Beyond Foucault
The contributors to this volume are at pains to undo this equation and
with the aid of careful and detailed historical analysis set out to rehabilitate
Bentham’s contemporary reputation. They mount a strong argument for his
ongoing importance in political and legal history, notably in the development
of understandings of contemporary governmentality. They also draw attention
at some length to the intricacies of the contemporary reception of Bentham’s
work and provide valuable correctives. And it is not only Bentham who deserves
reconsideration: as the contributors argue, Foucault’s own approach is more
subtle and complex than many of his commentators allow. He is in fact careful to
draw attention to the limited and specific role of Bentham’s work in his analysis
of the complex interaction between ideas and programmes and their concrete
manifestations.
Foucault saw himself as an investigator of ‘problems’, rather than as a grand
theorist with universal templates ready for every situation, adding that his
work was never prescriptive either for himself or for others.4 Neither did he see
himself as an historian whose task it was to deal exhaustively with every detail of
a historical period.5 Nonetheless, for all this, he was not prepared to regard his
own ideas as ‘inessential’.6 On numerous occasions he insisted that he wanted
his books to be used as toolboxes. Indeed, his work remains an open invitation
to others to continue on from where he left off, to fill in the gaps, to extend
and take issue with his interpretations, to even leave his books behind. It is an
invitation that has been readily taken up by the authors in this collection to great
effect. They have rummaged through Foucault’s toolboxes, added other tools,
taken his work further and pursued completely different paths as they have
seen fit. In their meticulous investigation of the contribution of Bentham, in
a contemporary setting that often reads his work solely through a foucauldian
lens, they provide important new insights, not only into the work of Bentham
himself, but into the complexities of current discussions around panopticism.
In a society characterised by increasingly sophisticated applications and
technologies of governmentality and surveillance, this collection marks a timely
intervention in its precise unearthing of some of the tangled historical origins
of that society.
M. Foucault, ‘Interview with Michel Foucault’, in Power, p. 240 and pp. 223–4.
4
M. Foucault, ‘La poussière et le nuage’, in D. Defert, F. Ewald and J. Lagrange (eds),

5
Dits et écrits: 1954–1988 (4 vols, Paris: Gallimard, 1994), vol. 4, p. 13.

6
Foucault, ‘Questions of Method’, p. 221.
Acknowledgements
Research resulting in the chapters for this book emanate from the ‘Théorie
politique et théorie de l’Etat chez Jeremy Bentham’ project, funded by a French
National Research Agency (ANR) grant for proposals on ‘Corpus et Outils de la
Recherche’ (2008–11). The project is hosted by the Centre Bentham, the French
research team of Bentham scholars based at Paris Ouest-Nanterre University.
This work is indebted to a wide range of people. My thanks go to Professor
Philip Schofield, Professor Stephen Engelmann, Dr Michael Quinn and
Professor Graham Burchell who have supported this project. Catherine Pease-
Watkin, Dr Crawford Gribben, Solène Sémichon, Dr Yvonne-Marie Rogez,
Professor Jennifer Merchant and Dr Emilie Dardenne have provided helpful
comments on the manuscripts. Thanks are also due to the invaluable comments
of the anonymous readers.
Finally, this book would not have been possible without the unflinching
friendship and support of members of the Centre Bentham, most of whom
contributed to this work. They have variously provided ideas, resources and
comments on the manuscript. To their unfailing encouragement and fierce
criticism I owe an inestimable debt. This volume is dedicated to these enduring
and stimulating friendships.
Anne Brunon-Ernst
List of Abbreviations
Apart from the standard abbreviations, the following should be noted:
UC Bentham papers in the Library of University College London.

Roman numerals refer to boxes in which the papers are filed,
arabic to the folios within each box.
MS Dumont Dumont papers in the Bibliothèque de Genève (Switzerland).
The first arabic numerals refer to boxes in which the papers are
filed and the second to the folios within each box.
Introduction
Anne Brunon-Ernst
Bentham is more important for the understanding of our society than Kant and Hegel.1
Here, in one beguiling phrase, one finds the many contradictions which
cluster around Jeremy Bentham’s legacy in Michel Foucault’s work. Foucault’s
statement goes to the very heart of the subject-matter of this volume of essays:
what did Foucault understand of Bentham’s philosophy, and to what extent was
he influenced by Bentham’s utilitarianism?
To readers familiar with Foucault’s – or Bentham’s – works, examining the
Bentham–Foucault relationship in this way is far from self-explanatory; quite
the contrary, it is, and seeks to be provocative, especially when the works of both
authors on the Panopticon – Bentham’s inspection-house principle of utilitarian
management – are considered.
Historiography in Question
This last statement needs to be supported by arguments. There are traditionally

two schools of thought in Bentham studies.2 On the one hand, the authoritarian
school contends that Bentham is the mastermind of authoritarian state control.3
On the other hand, the liberal school contends that Bentham thinks in terms
1
Foucault, Dits et écrits, vol. 1, p. 1462. [Where no published English translation has
been located, translations from French works are those of the author.]
2
See J.E. Crimmins, ‘Contending Interpretations of Bentham’s Utilitarianism’,
Canadian Journal of Political Science/Revue canadienne de science politique, 29/4 (1996):
pp. 751–77 and L.J. Hume, ‘Revisionism in Bentham Studies’, The Bentham Newsletter, 1
(1978): pp. 3–20.
3
See N. Rosenblum, Bentham’s Theory of the Modern State (Cambridge, MA; London:
Harvard University Press, 1978), L.J. Hume, Bentham and Bureaucracy (Cambridge:
Cambridge University Press, 1981), and D. Long, Bentham on Liberty: Jeremy Bentham’s
Idea of Liberty in Relation to his Utilitarianism (Toronto: University of Toronto Press,
1977). J.R. Dinwiddy refers to the scholarship which centres on the ‘dirigiste or manipulative
tendency in [Bentham’s] writings’: see J.R. Dinwiddy, Bentham (Oxford: Oxford University
Press, 1989), p. 94.
2 Beyond Foucault
of the rule of law, and aims at promoting civil and political rights.4 These two
perspectives have always coexisted in academia, as is shown by Elie Halévy’s
1901 statement that Bentham’s thought was divided between the preservation
of liberty and authoritarian social reform.5
These two schools of thought are mirrored in the construction of Bentham’s
Panopticon. In 1975 the French philosopher Foucault coined the term
‘panopticism’6 which quickly became used to describe Bentham’s utilitarian
theory as a whole. Panopticism is the theorisation of surveillance society,
derived from Bentham’s project of a prison, with an all-seeing inspector. In
his wake, the works of Michelle Perrot and J.A. Miller targeted Bentham’s
Panopticon as the epitome of disciplinary society at its worst.7 At the same
time, in the United States, similar contentions were being made. Gertrude
Himmelfarb and Charles Bahmueller adopted the view that Bentham did not
consider paupers as fully-fledged human beings.8 However, since the 1990s the
London-based Bentham Project has been developing far deeper insights into
Bentham’s panoptic thought, as Janet Semple and Michael Quinn have studied,
respectively, the prison-Panopticon and the pauper-Panopticon. Their research
has highlighted the strength of Bentham’s proposals in various fields, including
prison- and pauper-management. Their analyses of Bentham’s project are more
balanced, and stress the benefits of the Panopticon for inmates, and also the
fairness of the system. Philip Schofield explains that ‘[Foucault’s interpretation
of the Panopticon] would have seemed very odd to Bentham, who regarded his
4
See H.L.A. Hart, Essays on Bentham: Studies in Jurisprudence and Political Theory
(Oxford: Oxford University Press, 2001) and F. Rosen, Jeremy Bentham and Representative
Democracy: A Study of the Constitutional Code (Oxford: Clarendon Press, 1983). A parallel
interpretation stresses that Bentham promotes redistributive justice (P.J. Kelly, Utilitarianism
and Distributive Justice: Jeremy Bentham and the Civil Law (Oxford: Clarendon Press,
1990)). See also A. Dube, The Theme of Acquisitiveness in Bentham’s Political Thought (New
York: Garland, 1991) and S.G. Engelmann, ‘“Indirect Legislation”: Bentham’s Liberal
Government’, Polity, 35/3 (2003): pp. 369f.
5
See E. Halévy, La formation du radicalisme philosophique, ed. M. Canto-Sperber
(3 vols, Paris: Presses universitaires de France, 1995), vol. 3, p. 80.
6
Michel Foucault, Surveiller et punir: Naissance de la prison (Paris: Gallimard, 2000),
pp. 228–64.
7
See J.-A. Miller, ‘Le despotisme de l’Utile : la machine panoptique de Jeremy
Bentham’, Ornicar? Bulletin périodique du Champ freudien, 3 (1975): pp. 3–36 and M.
Perrot, ‘L’inspecteur Bentham’, in J. Bentham, Le Panoptique (Paris: Belfond, 1977).
8
G. Himmelfarb, The Idea of Poverty: England in the Early Industrial Age (London:
Faber, 1985); G. Himmelfarb, ‘The Haunted House of Jeremy Bentham’, in Victorian Minds
(New York: Knopf, 1968); C. Bahmueller, The National Charity Company: Jeremy Bentham’s
Silent Revolution (Berkley, CA: University of California Press, 1981).
Introduction 3
Panopticon prison as humane, and an enormous improvement on the practices

of the criminal justice system of the time’.9
Scholars working on the Panopticon writings have always been painfully
aware of the deep-seated contradiction in Bentham’s writings, as Semple
demonstrates when she writes: ‘[The Panopticon writings] are … disturbing
and create problems for Bentham’s admirers.’10 This discrepancy between an
increasingly attractive Bentham (thanks to the new edition of The Collected
Works of Jeremy Bentham and monographs by scholars at the Bentham Project)
and a still repulsive Panopticon is largely to be attributed to Foucault’s discussion
of the Panopticon in his book Discipline and Punish. If Foucault’s interpretation
of the Panopticon has made Bentham’s work known to a wider audience,
conversely it has also turned Bentham into a forerunner of Big Brother.11
Bentham scholars have consistently lamented Bentham’s bad name among the
general public and Foucault’s hand in the matter. In the light of recent studies
on Bentham, referring to a Foucault–Bentham relationship seems naturally to
point towards the idea that Foucault grossly distorted Bentham’s philosophy in
Discipline and Punish. The object of this volume is to go beyond this misleading
presumption and to uncover Bentham’s legacy in Foucault’s theory.12
The Panopticon beyond Discipline and Punish
Panopticon studies cannot move forward without tackling the Foucault problem
up front. The French Centre Bentham has been producing new research on the
subject.13 The Centre was created at Paris Ouest-Nanterre-La Défense University
in 2002 by Jean-Pierre Cléro and Christian Laval at a time when the British
legal philosopher was little known among French academics. Any research on
Bentham – and this statement applies in full to the Centre Bentham – owes
9
P. Schofield, ‘Panopticon’, in Bentham: A Guide for the Perplexed (Bodmin: Continuum,
2009), p. 70.
10
J. Semple, ‘Bentham’s Haunted House’, The Bentham Newsletter, 11 (1987): p. 35. See
also the comment made by J.R. Dinwiddy: ‘the most indignant modern attacks on Bentham
as a thinker have come from writers who have focused on [the panopticon projects] areas of
his work’, in Dinwiddy, Bentham, p. 94.
11
Semple, ‘Bentham’s Haunted House’, p. 36.
12
The volume of essays centres on the interpretations of the Panopticons in Bentham
and Foucault. Brunon-Ernst’s Utilitarian Biopolitics (London: Pickering and Chatto, 2012,
forthcoming) establishes a Bentham–Foucault relationship beyond the panoptic schemes.
13
See also the work produced by other members of the Centre Bentham (Emmanuelle
Bénicourt, Emilie Dardenne, Armand Guillot, Claire Wrobel), and outside the Centre by
French Bentham scholars such as economists Annie Cot and Nathalie Sigot.
4 Beyond Foucault
much more than can ever be acknowledged to the impressive editorial work
carried out at the Bentham Project at University College London under Philip
Schofield. Scholars there have made available a definitive edition of Bentham’s
works, as well as extensive scholarship on Bentham and utilitarianism, both of
which serve as groundwork for any study of the Panopticon.14 French Bentham
scholars have enjoyed a very privileged vantage-point. At the crossroads of French
academia, influenced both by Foucault’s ideas and by Bentham scholarship, they
had already been working on the relationship between the two thinkers.15 They
all agree on the distortion of Foucault’s interpretation of Bentham. However,
they have not established what could be termed a school of thought as such, since
there is a certain measure of disagreement when it comes to key issues, such as the
extent of panoptic social control, as can be seen in the last part of this volume.
If the translation of Foucault’s Surveiller et punir into English has allowed
Bentham’s theories to be widely circulated for more than a generation, the latest
editions of his hitherto unpublished lectures at the Collège de France have just
been made fully available to a non-French-speaking audience.16 These lectures
are of interest because they qualify Foucault’s stand towards the Panopticon and
Bentham more generally. Over years of broadening perceptions and definitions
of Bentham, coupled with fresh insights into Foucault’s overall theory, French
Bentham scholars have reappraised the meaning of panopticism. Unfortunately
their work, written in French, was not accessible to an English-speaking
audience. The chapters which make up this volume provide unexpected insights
into new research on Foucault, Bentham and the Panopticon to an English-
speaking audience for the first time. Much of this work combines a thorough
grounding in Bentham studies with a continuing critical engagement with
Foucault’s theorisation of productive power.
The argument here is to rehabilitate Bentham’s thought to a wider audience,
who might have had access to Bentham only through the lens of Foucault’s
Discipline and Punish. Foucault’s contribution to the diffusion of Bentham’s
ideas in France is central in Discipline and Punish and in Dits and écrits and
hence should not be underestimated. Less well-known is the fact that Foucault’s
14
They have allowed to make more accessible the esoteric Bentham as opposed to the
historic Bentham, the latter being the Bentham people actually read. See J.R. Dinwiddy,
Radicalism and Reform in Britain, 1780–1850 (London: Hambledon Press, 1992), p. 291.
15
A telling example is the workshop on ‘Is Foucault a Utilitarian?’ It was organised by
the Centre Bentham at Paris 2 university in January 2011. The proceedings are published in
Brunon-Ernst (ed.), Foucault et l’utilitarisme, spec. issue of Revue d’études benthamiennes, 8
(2011), available at: http://etudes-benthamiennes.revues.org/240, accessed 1 August 2011.
16
This does not mean that these translations do not also create problems. See
C. O’Farrell, Michel Foucault (London: Sage, 2005), p. 7.
Introduction 5
Collège de France lecture series also put Bentham on the map of the history
of Western political ideas. Conversely, Foucault is also in dire need of being
rehabilitated among English-speaking Bentham scholars. This volume thus sets
itself the difficult task of achieving a double rehabilitation: that of Bentham’s
political theory to Foucault readers, and that of Foucault’s panopticism to
Bentham scholars. In doing so, it hopes to contribute to the wider circulation of
knowledge on the Bentham–Foucault relationship.
To achieve this dual task, the book investigates how this relationship has been
described, misinterpreted and now reconstructed. This goal cannot be reached
without embracing lesser known aspects of Bentham’s conception of power,
and of Foucault’s later writing. While Bentham’s and Foucault’s theories are
well documented and allow this volume to be heavily dependent on the insights
of others, the focus of the book on the Foucault–Bentham relationship is less
familiar and to a certain extent unique. The field of investigation thus embraces
works of Foucault which mention Bentham – such as Discipline and Punish, Dits
et écrits17 and The Birth of Biopolitics – and works of Bentham dealing with the
different versions of the Panopticon scheme and with issues of power, a topic in
which Foucault also showed great interest. In order to chronicle this very unusual
relationship, the contributors to the volume have recognised the importance of
the utilitarian philosophical tradition in ascribing meaning, but have put aside
many preconceptions on the Panopticon and panopticism, on Bentham’s penal
reform principles, on Bentham’s power theory and on Foucault’s liberalism.
There have already been some attempts to read Bentham in the light
of Foucault’s later writings.18 However, if the piece entitled ‘In Defence of
17
Six lecture series have been published so far: see M. Foucault, Abnormal: Lectures
at the Collège de France, 1974–1975, trans. G. Burchell and ed. A.I. Davidson (New York:
Picador, 2003); M. Foucault, ‘Society Must Be Defended’: Lectures at the Collège de France,
1975–1976, trans. D. Macey and ed. A.I. Davidson (New York: Picador, 2003); M. Foucault,
Psychiatric Power: Lectures at the Collège de France 1973–1974, trans. G. Burchell and J.
Lagrange (New York: Palgrave Macmillan, 2004); M. Foucault, The Hermeneutics of the
Subject: Lectures at the Collège de France 1981–1982, trans. G. Burchell and ed. F. Gros (New
York: Palgrave Macmillan, 2004); M. Foucault, Security, Territory, Population: Lectures at
the Collège de France, 1977–1978, trans. G. Burchell and ed. M. Senellart (London: Palgrave
Macmillan, 2007), and M. Foucault, The Birth of Biopolitics: Lectures at the College de France,
1978–1979, trans. G. Burchell and ed. A.I. Davidson (Basingstoke: Palgrave Macmillan,
2008). It is mainly thanks to the last edition that French Bentham scholars have reappraised
Foucault’s interpretation of panopticism.
18
See for example, S.G. Engelmann’s paper ‘“Indirect Legislation”: Bentham’s Liberal
Government’, where he explains that: ‘My approach to Bentham pays little attention to the
technologist of discipline popularized by Foucault …. Especially in the United States, where
Foucault’s discipline is often misread in terms of sovereignty, this material has contributed
6 Beyond Foucault
Panopticism’ by Semple is excepted,19 the focus of Anglo-American Bentham

scholarship has not been the Bentham–Foucault relationship. They have of
course been aware of Foucault’s interpretation, but his blatant ignorance of
Bentham’s general theories and his gross distortion of the Panopticon scheme
have not made it worth their while to take issue with the French philosopher.
Bentham and Foucault were out to achieve different aims, as Schofield puts it:
What concerns Foucault is to understand the nature of the modern state. What
concerns us is to explain Bentham’s interest in panoptic architecture, and why he
thought it would be such an effective tool in the management of a whole range
of institutions.20
Although Bentham scholars could not ignore panopticism, their concerns were
not with Foucault but with Bentham. To the best of my knowledge, this volume
of essays is the first to offer an extensive study on the relationship between the
authors. Beyond the dichotomy in Bentham and Panopticon historiography
highlighted above, the panoptic schemes themselves have been the object of
three monographs,21 quoted above, and numerous book chapters. When the
Panopticon is dealt with as part of a wider argument, traditionally studies have
focused on the role of the Panopticon in Bentham’s overall theory.22 This volume
to a dirigiste reading of Bentham.’ Instead Engelmann reads Bentham’s essay ‘Indirect

Legislation’ as a work which develops the principle of liberal government, understood as
inspired by Foucault’s interpretation in later writings (Engelmann, ‘“Indirect Legislation”:
Bentham’s Liberal Government’, p. 369n).
19
Semple, ‘Foucault and Bentham: Defence of Panopticism’, Utilitas, 4/1 (1992):
pp. 105–20.
20
Schofield, Bentham: A Guide for the Perplexed, pp. 70–71.
21
Bahmueller, The National Charity Company, J. Semple, Bentham’s Prison: A Study
of the Panopticon Penitentiary (Oxford: Clarendon Press, 1993) and A. Brunon-Ernst, Le
Panoptique des pauvres. Jeremy Bentham et la réforme de l’assistance en Angleterre (Paris:
Presses de la Sorbonne Nouvelle, 2007).
22
Scholars raise three sets of questions: first, did the Panopticon divert Bentham’s
attention from his greater purpose of reforming the legal system? J. Steintrager, Bentham
(Oxford: George Allen and Unwin, 1977) makes the following negative comment on
p. 58: ‘[Bentham] buried himself in his attempt to establish a model Panopticon prison’.
J.R. Dinwiddy deplores the time wasted that could have been used more fruitfully (Bentham,
p. 9). In Bentham and Bureaucracy, L.J. Hume sees positive effects to the panoptic experience
such as the development of the minutiae of the workings of an administration. M.P. Mack,
Jeremy Bentham: An Odyssey of Ideas (1748–1792) (London: Heinemann, 1962) shows on
p. 81 how, thanks to the Panopticon, Bentham focused on a practicable scheme. The idea
of economy in management is more generally dealt with by Rosen, Jeremy Bentham and
Representative Democracy, although as part of the general principles of political economy
Introduction 7
of essays endeavours to understand the Bentham–Foucault relationship beyond

the position of the Panopticon and panopticism respectively in the systems
of their authors. This work provides a unique opportunity to push back the
boundaries of established (Foucaultian) truths about the Panopticon, enabling
us to go beyond the received reading of panopticism as a dark disciplinary
technology of power.
The key to understanding the opposition between the received interpretation

of the Bentham–Foucault relationship and the ‘real’ relationship lies in the shift
between the earlier Foucault of Discipline and Punish and the later Foucault of
the Collège de France lecture series. Indeed if, in his later writings, Foucault does
not dwell on panopticism, he does qualify his earlier statements on Bentham’s
overall philosophy. At a later stage Bentham becomes for Foucault not only
the inventor of disciplines, but also the theorist of governmentality. The two
chapters in Part I dwell on a series of early misreadings of the panoptic project
by Foucault, and highlight ways in which, later in life, Foucault examined
Bentham’s theories beyond the Panopticon.
At the threshold of this study, concepts need to be explained. The
terms ‘Panopticon’ and ‘panopticism’ have only been briefly defined in this
Introduction and the phrase ‘panoptic paradigm’ needs to be explained. For
the present purpose, it is enough to state that the Panopticon is an example of
architecture built to ensure a social purpose:
and not in relation to the Panopticon (p. 4). Second, is the Panopticon a model of Bentham’s
state? Rosenblum, Bentham’s Theory of the Modern State, on p. 19 refuses to consider the
Panopticon as ‘a microcosm of state’, but rather as an idea of perfect order (p. 201). See also
Schofield’s comments on the subject, in Bentham: A Guide for the Perplexed, pp. 90–91.
Third, what is the role of the Panopticon in Bentham’s conversion to democratic ideas? This
debate was started by Halévy’s comments in La formation du radicalisme philosophique. They
raised the issue whether Bentham’s thought had paused from 1789 onwards, on account of
the worked involved in the Panopticon project.n (Hume, ‘Revisionism in Bentham Studies’,
p. 4). See also P. Schofield, Utility and Democracy: The Political Thought of Jeremy Bentham
(Oxford: Oxford University Press, 2006), pp. 109–11, who links the failure to implement
the panoptic project to the fleshing out of the principle of sinister interest; the last principle
being instrumental in Bentham’s transition to democracy (pp. 110–11). This interpretation
goes further than that of L.J. Hume in Bentham and Bureaucracy, where he states that the
Panopticon prepared Bentham’s mind for reorientation (pp. 175–8).
8 Beyond Foucault
To say all in one word, it will be found applicable, I think without exception,
to all establishments whatsoever, in which, within a space not too large to be
covered or commanded by buildings, number of persons are meant to be kept
under inspection.23
The Panopticon is the name given to a circular building with a central tower
from which an inspector can see the inmates in the circumference at all times,
without being seen. Its main purpose is teaching inmates appropriate behaviour
to maximise the aim of the institution.
Panopticism is defined as:
… one of the characteristic traits of our society. It’s a type of power that is applied
to individuals in the form of continuous individual supervision, in the form of
control, punishment, and compensation, and in the form of correction, that is the
moulding and transformation of individuals in terms of certain norms.24
Panopticism describes power relations which manifest themselves as supervision,

control and correction. Panoptic architecture, with its mechanisms for enhancing
the power of the institution over inmates, is the best illustration of panopticism,
albeit not the only one. Chapter 1 by Anne Brunon-Ernst describes the different
shades of meaning these words take on by guiding the reader through the general
and specific panoptic mechanisms. In doing so, it aims to challenge Foucault’s
concept of ‘panopticism’. It highlights the fact that, in Discipline and Punish,
Foucault refers to Bentham’s initial 1787–91 project. If Bentham’s Panopticon
scheme was indeed first devised in Panopticon, or the Inspection-House, the
panoptic paradigm reappears in later works from 1798 to the nineteenth-century
Constitutional Code. There is not one Panopticon, but at least four different versions
of Bentham’s surveillance machine, which he amends and modifies as his thoughts
on good government develop. The chapter underlines how Bentham modified his
surveillance model to adapt it to the needs of inmates and to the requirements
of his utilitarian vision. Brunon-Ernst provides a means of understanding the
gap between Bentham’s plural Panopticon scheme and Foucault’s concept of
panopticism as fleshed out in Discipline and Punish. Chapter 1 begins to unravel
the complexities of the Panopticon, which cannot be confined to the workshop
or the prison, but is progressively developed in Bentham’s works as an instrument
23
J. Bentham, Panopticon; or the Inspection-House: containing the Idea of a New Principle
of Construction applicable to any sort of Establishment, in which Persons of any Description
are to be kept under Inspection, in J. Bowring (ed.), The Works of Jeremy Bentham (11 vols,
Edinburgh, 1838–43), vol. 4, pp. 37–66.
24
Foucault, ‘Truth and Juridical Forms’, in Power, p. 70.
Introduction 9
of power. The first chapter thus shows the inability of the concept of panopticism
to account for the complexity of the Panopticon, but in doing so, it points to
ways in which Bentham and Foucault’s theories of power are similar. This is then
further developed in the following chapter.
Chapter 2 by Christian Laval shows that contrary to traditional
historiography about the Bentham–Foucault relationship, Bentham’s and
Foucault’s power theories have much in common, if the panoptic experience is
left aside. Thanks to the study of Foucault’s later writings, Bentham is presented
in this chapter as the main thinker of governmentality, who influenced
Foucault’s conception of power. This chapter provides an exciting insight into
the ways in which Foucault’s whole theory of liberalism draws on Bentham’s
utilitarian liberal thinking. This contribution examines the boundaries of the
Foucault–Bentham relationship to enable us to reconsider the influence of
Bentham’s philosophy in the shaping of Foucault’s theories.
The Status of the Panopticon in Prison, Penal and Constitutional Reform
The function of the Panopticon is akin to a utopia, both for the contemporary
reader and at the time when it was written. Indeed, Foucault contends that,
in the Panopticon, ‘Bentham describes, in the utopian form, a general system,
particular mechanisms which really exist’.25 Bentham himself referred to
his project as a utopia. Time has now come to reveal the utopian features in
the Panopticons. This study explores the different meanings of utopia and
heterotopia. Emmanuelle de Champs in Chapter 3 reflects on the meaning of
these denominations and thus opens up fresh perspectives on the status of the
Panopticon: is it a utopia or the blue-print for a wider-ranging reform of penal
and other institutions? She describes to the reader the story of one Panopticon
which was built in Geneva, and tabulates the gap between Bentham’s project
and the Genevan prison.26 In the end, she highlights ways in which panoptic
architecture turned out to be an inadequate means of achieving discipline.
25
M. Foucault, ‘The Eye of Power’, in C. Gordon (ed.), Power/Knowledge (New York:
Pantheon Books, 1980), p. 164.
26
The case de Champs makes for the Genevan Panopticon is in many respects similar to
what Rosen established in the case of the influence of Bentham’s ideas in the Greek struggle
for independence. Even though Bentham’s ideas had little influence on historical events, as an
icon of radicalism, his name was used for ideological purposes. See F. Rosen, Bentham, Byron
and Greece: Constitutionalism, Nationalism, and Early Liberal Political Thought (Oxford:
Clarendon Press, 1992), p. 7.
10 Beyond Foucault
In Discipline and Punish, the Panopticon is presented by Foucault as

encapsulating Bentham’s penal theory. However, Bentham’s major work on
judicial evidence, The Rationale of Judicial Evidence, does not mention the
Panopticon once in any of its five volumes. This contradiction raises the issue of
the position of the Panopticon writings in Bentham’s overall reform of criminal
law and institutions and thus questions the relevance of Foucault’s reliance on
the Panopticon scheme. Jean-Pierre Cléro wishes to de-panopticise Bentham’s
penal theory, as Tony Draper tried to do when he assessed Bentham’s theory of
punishment beyond the panoptic scheme.27 The Panopticon is the prison branch
of Bentham’s penal reform. Other branches include the rationale of punishment
and the rationale of judicial evidence. The last branch raises the issue of how to
determine truth, which is so central to the justice system. From this perspective,
the Panopticon also appears as a machine to bring truth to light, thanks to its all-
seeing central inspector. However, this instance of the search for judicial evidence
does not appear in The Rationale of Judicial Evidence. Cléro first traces the legacy
of Cesare Beccaria in Bentham’s ideas of punishment. Chapter 4 then studies
the shift from the judicial institution’s role in establishing truth to Bentham’s
criticism of the concept of truth per se. In Bentham’s theory, this judicial quest
for truth is replaced by the likelihood of the defendant having committed the
crime. This measurement of probability is then part of the calculus of rewards
and punishment. The prison holds a key role in this system because punishment
can be meted out in terms of hours, months and years. If Foucault did indeed
identify that the Panopticon exemplified another rationality of punishment
based no longer on inquiry but on examination, he did not understand the scope
of this new rationale of evidence grounded on the calculus of probabilities. In
non-panoptic writings related to judicial reform, Bentham offers a probabilistic
reading of surveillance.
Chapter 5 by Guillaume Tusseau focuses on the relationship between penal
theory and constitutional writings in Bentham’s thought. A fourth type of
Panopticon scheme, the constitutional-Panopticon, is identified in Chapter 1:
this fourth Panopticon allows Tusseau to consider the Panopticon beyond the
walls of the prison, the workshop or the poor house to take in the possible political
implications of the panoptic paradigm. Bentham’s Panopticon model, together
with the principles of social control which inspired it, should not be restricted to
penal law. Bentham’s political theory as displayed in his constitutional writings
seems to share in a similar perspective. The kinship between the penitentiary and
political reform projects is surprising and raises the question whether Bentham
A.J. Draper, ‘Jeremy Bentham’s Theory of Punishment’, diss., University College

27
London, 1997, pp. 9–11.

Introduction 11
was considering a global panoptic society. The last two chapters further examine
this issue in a controversial debate.
Is There a Panoptic Society?
Over decades, scholars have wondered whether the Panopticon should not be
construed as Bentham’s model of the utilitarian state.28 In his constitutional
writings, Bentham seeks to write the constitution of the ideal utilitarian state in
which governors would have to govern for the greatest happiness of the greatest
number. Chapter 6 by Marie-Laure Leroy provides a reassessment of the long-
established interpretation of the panoptic central-inspection principle and of
the panoptic discipline paradigm. It shows how Bentham uses the Panopticon
rather as a remedy for misrule than as a tool for inspection and discipline. The
transparency provided by the panoptic paradigm helps the Public Opinion
Tribunal to control government action, which is always liable to threaten
individual liberty. Contrary to what Foucault wrote in his earlier writings,
Bentham’s idea was not to create a panoptic society, where nothing would escape
the gaze of the omniscient ruler. Transparency is only required if it can guarantee
individual freedom and prevent impunity on the part of public functionaries
as well as criminals. Leroy calls this mechanism the reversed Panopticon. Thus,
social control through observation should take place only when and where
political power is exerted, when public decisions are made, or where laws are
enforced or framed. Contrary to received ideas on the Panopticon, the greatest
happiness of the greatest number cannot be promoted by the pervasive use of
coercive methods, because constraint entails significant pain.
The last contribution takes a different stand on the issue of social control.
Malik Bozzo-Rey explains how in Bentham’s theory control is to be enforced
beyond panoptic means. The chapter opens with an overview of the panoptic
means of control, in accordance with the way Foucault conceives of panopticism
in Discipline and Punish. Bozzo-Rey then takes his analysis beyond established
(Foucaultian) panoptic social control to study the non-panoptic means of
social control Bentham uses. This leads us to uncover the importance of law
and language in Bentham’s intellectual enterprise, which Foucault completely
missed out. The twist is that the chapter also tries to show ways in which
non-panoptic legal and linguistic means of social control can be construed as
operating along panoptic paradigmatic guidelines (as defined in Chapter 1). The
See for example Rosenblum, pp. 19 and 201 and more recently Schofield, Bentham:
28
A Guide for the Perplexed, pp. 90–91.

12 Beyond Foucault
concept of ‘legal panoptic paradigm’ allows one to consider Bentham’s project as

a testing ground for the development of a legal theory of how a law can become
an element of social control.
The Panopticon as a Contemporary Icon
For a number of scholars, the Panopticon now forms the backdrop for exploring
Foucault’s thought and the far-reaching concept of governmentality, but also for
understanding the framework in which surveillance operates in our institutions
and in society at large.29 In this volume the contributors are responding directly
to recent and strong expressions of interest from academics and students beyond
the limited field of Bentham and Foucault studies. In the Epilogue, Tusseau
starts by showing how experiments in cyber democracy can be construed as
contemporary applications of the panoptic paradigm. The rest of the Epilogue
by Brunon-Ernst aims to outline the consequences of the findings of the seven
chapter for other fields of research, such as the emerging surveillance studies.
It reflects upon recent developments in writings on the panoptic paradigm in
different fields. Scholars from various disciplines, such as sociologists studying
contemporary surveillance techniques, have used the concept of panopticism
and the adjectives panoptic/panoptical to define objects that lay beyond the
actual scope of Bentham’s Panopticons or of his panoptic paradigm. To date,
most studies have been unable to see beyond the panopticism of Foucault’s
Discipline and Punish as indictment of the utilitarian surveillance society.30
By incorporating Foucault’s lesser-known work on Bentham and the full
sweep of Bentham’s Panopticon reflections to frame a panoptic paradigm that
encompasses language, legal theory, political thought and governmentality, the
volume produces a less one-sided picture of Bentham’s thought and explores
ways in which Bentham’s Panopticon can be construed as post-panoptical.31 In
As David Lyon, a prominent sociologist in the field of surveillance studies, notes:

29
‘Though many historians of ideas or systems of punishment have recognized the importance
of the Panopticon, it is really only since Foucault that interest in it has become widespread’
(D. Lyon, The Electronic Eye: The Rise of Surveillance Society (Cambridge: Polity, 1994), p. 62).
30
See the field of surveillance studies in the academic world where the Panopticon
is made synonymous with pervasive surveillance techniques. See also P. Bollon and A.
Champagne, ‘Attention, Internet vous surveille’, Le Monde 2, 11 February 2006, p. 21.
31
Bentham is still considered as a major intellectual in today’s debates. See Brunon-
Ernst (ed.), Jeremy Bentham’s Theory Today, spec. issue of The Tocqueville Review/La revue
Tocqueville, 32/1 (2011). The issue examines the impact of Bentham’s utilitarianism on some
contemporary debates.
Introduction 13
so doing, the book hopes to provide a new concept of the panoptic paradigm
that could help scholars from other fields to unravel the complexities of our
surveillance societies or of the workings of social control in institutional settings.
Part I
Historiography Reconsidered:
Chapter 1
Deconstructing Panopticism into
the Plural Panopticons
Anne Brunon-Ernst
People at the beginning of the nineteenth century … did not fail to notice the
appearance of what I’ve been calling – somewhat arbitrarily but, at any rate, in
homage to Bentham –‘panopticism’.1
The introductory quote shows that, among many projects written at the
beginning of the nineteenth century, Michel Foucault isolated the Panopticon
scheme as the epitome of the transformations taking place at the time. He then
identified aspects of today’s society that were consistent with panopticism,
which is the name he gives to his interpretation of Jeremy Bentham’s
Panopticon. Scholarship now holds surveillance as synonymous with
Foucault’s panopticism.2 This first chapter contends that Foucault’s reading of
the Panopticon projects was fractional and partial, and points out the ways in
which Foucault’s understanding of panopticism reflects an incomplete image
of modern society whose surveillance mechanisms are further explored in
the Epilogue.3 Of course, Foucault was not the first to unearth Panopticon; or
the Inspection-House from the 11-volume set of the Works of Jeremy Bentham
( John Bowring (ed.), 1838–43).4 Bentham’s proposals for social reform were
1
Foucault, ‘Truth and Juridical Forms’, p. 70.
2
Instances of the influence of Foucault’s theory of panopticism in modern-day analysis
of surveillance are to be found in the names coined to describe the surveillance paradigms:
Poster’s Superpanopticon, Boyne’s Postpanopticon, Lyon’s Electronic panopticon,
Goombridge’s Omnicon, Bigo’s Ban-opticon, Gill’s Global panopticon, De Landa’s
Panspectron, Leman-Langlois’s Myoptic panopticon, De Angelis’s Fractal panopticon,
Butchart’s Industrial panopticon, Koskela’s Urban panopticon, Sweeny’s Pedagopticon,
Allen’s Polypticon, Mathiesen’s Synopticon, Berdayes’s Panoptic discourse, Wacquant’s
Social panopticism, Bousquet’s Cybernetic panopticon, Mann, Nolan and Wellman’s Neo-
panopticon. For further discussion on the issue, see the Epilogue, pp. 194–5.
3
See the Epilogue, pp. 191–3.
4
See C. Lucas, Du système pénitentiaire en Europe et aux États-Unis (Paris, 1828)
which acknowledges Howard, Bentham, and Livingstone as sources of inspiration and see
also the circulation of Bentham’s ideas on prison management thanks to Etienne Dumont’s
18 Beyond Foucault
widely circulated throughout the nineteenth century, both in Britain and

abroad, and in the period before the appearance of the Works. In the 1830s,
when Alexis de Tocqueville was preparing his trip to the United States to study
the American prison system, for example, his background research on prison
reformers involved reading works by Bentham, Cesare Beccaria and John
Howard.5 Nevertheless, the importance of Discipline and Punish in reviving
interest in Bentham’s Panopticon should not be underestimated. Most people
in Europe and the United States have read Bentham’s Panopticon through the
lens of Foucault’s work on the prison system. Ironically, Foucault’s massive
contribution to the revival of interest in the Panopticon has created significant
problems for Bentham scholars, since Foucault’s work misrepresents Bentham
and his project. Foucault’s interpretation has even provided critical vocabulary
with a new Benthamesque adjective – ‘panoptic’6 – the application of which
strikes fear in the heart of every freedom-loving individual.
This chapter will unravel the critical reception of the Panopticon and tabulate
the competing interpretations of it now in currency in the academic world.
Bentham scholarship has documented the existence of several Panopticons,
but that scholarship has not been fully registered, nor have the wide-ranging
implications of this plurality of design (both architectural and intellectual)
been fully developed by the rest of academia. The second aim of this chapter is
to explore these several manifestations of the panoptic principle in Bentham’s
thought, in order to highlight the differences between Foucault’s ‘panopticism’
and Bentham’s own panoptic paradigm. The survey offered in this opening
chapter will therefore provide a framework for the debate between Bentham’s
ideas and their Foucaultian interpretation. Furthermore, Foucault is credited
with having made the Panopticon the epitome of disciplinary society. The third
aim is to identify some aspects of the Panopticon that are akin to Foucault’s
concept of governmentality rather than of discipline. Consideration of the use
of Bentham’s original panoptic paradigm in other disciplinary fields, and of the
wider implications of the distinction made in this volume between Bentham’s
translation, first printed by the French Assemblée nationale in 1791 ( J. Bentham, Le

Panoptique, in E. Dumont (ed. and trans.), Archives parlementaires, 36 (1791): pp. 61–73)
and then published as a chapter in Traités de législation civile et pénale ( J. Bentham, Traités de
législation civile et pénale, ed. E. Dumont (3 vols, Paris, 1802), vol. 3, pp. 209–72).
5
A. Brunon-Ernst, ‘Bentham and Tocqueville on Pauperism’, The Tocqueville Review/
La Revue Tocqueville, 28/2 (2007): pp. 129–52. See also Foucault’s comments in ‘The Eye of
Power’, p. 147.
6
For a discussion of the difference between panoptic and panoptical, see the
Epilogue, pp. 186–7.
Deconstructing Panopticism into the Plural Panopticons 19
Panopticon and Foucault’s panopticism, will be reserved for the Epilogue.7 Before
commencing the discussion of Foucault’s transformation of the Panopticon,8 the
following caveat should be borne in mind: this chapter should not be read as an
attempt to evaluate Foucault’s project as either ‘right’ or ‘wrong’. As Bentham
himself would have recognised, all thinking necessarily selects ‘facts’, and makes
connections and disconnections between them according to their salience for the
particular end in view.9 Foucault’s panoptic discourse provides one instance of
such strategic decision-making.
To prepare for some of the arguments of the essay, it is necessary to offer an
initial explanation of certain key terms. This volume opposes ‘Panopticon’ to
‘panopticism’ in order to distinguish between the terms of Bentham’s project
and their reception in Foucault’s theory. Nevertheless, this distinction is not
used consistently in academic writing, since there are many fields of study where
Bentham’s Panopticon is mistakenly identified with Foucault’s panopticism.10
7
8
See Foucault’s method, as described by Michel de Certeau: ‘The first step is a découpé:
it isolates a design of some practices from a seamless web, in order to constitute these practices
as a distinct and separate corpus, a coherent whole, which is nonetheless alien to the place in
which theory is produced …. In the second step, the unity thus isolated is reversed.’ (M. de
Certeau, ‘Micro-techniques and Panoptic Discourse: A Quid Pro Quo?’, in B. Smart (ed.),
Michel Foucault: Critical Assessments II. Rationality, Power and Subjectivity (4 vols, London:
Routledge, 1995), vol. 4, p. 334).
9
See P. Bevis, M. Cohen and G. Kendall, ‘Archeologizing Genealogy: Michel Foucault
and the Economy of Austerity’, in B. Smart (ed.), Michel Foucault: Critical Assessments
(London: Routledge, 1995), vol. 6, p. 172.
10
See M. Allen, ‘“See You in the City!” Perth’s Citiplace and the Space of Surveillance’,
in K. Gibson and S. Watson (eds), Metropolis Now: Planning and the Urban in Contemporary
Australia (Sydney: Pluto, 1994), pp. 137–47; V. Berdayes, ‘Traditional Management Theory
as Panoptic Discourse: Language and the Constitution of Somatic Flows’, Culture and
Organization, 8 (2002): pp. 35–49; D. Bigo, ‘Security, Exception, Ban and Surveillance’, in
D. Lyon (ed.), Theorizing Surveillance: The Panopticon and Beyond (Cullompton: Willan,
2006); G. Bousquet, ‘Space, Power and Globalization: The Internet Symptom’, Societies, 4
(1998): pp. 105–13; R. Boyne, ‘Post-Panopticism’, Economy and Society, 29/2 (2000): pp.
285–307; A. Butchart, ‘The Industrial Panopticon: Mining and the Medical Construction
of Migrant African Labour in South Africa, 1900–1950’, Social Science and Medicine, 42/2
(1996): pp. 185–97; M. De Angelis, ‘Global Capital, Abstract Labour, and the Fractal
Panopticon’, The Commoner, 1 (May 2001): pp. 1–19, available at: http://www.commoner.org.
uk/, accessed 20 January 2010; M. De Landa, War in the Age of Intelligent Machines (New
York: Zone, 1991); S. Gill, ‘The Global Panopticon: The Neo-Liberal State, Economic Life,
and Democratic Surveillance’, Alternatives, 20/1 (1995): pp. 1–49; N. Goombridge, ‘Crime
Control or Crime Culture TV?’, Surveillance and Society, 1/1 (2003): pp. 30–45; H. Koskela,
‘“Cam Era”: The Contemporary Urban Panopticon’, Surveillance and Society, 1/3 (2003):
pp. 292–313; D. Lyon, ‘An Electronic Panopticon? A Sociological Critique of Surveillance
20 Beyond Foucault
By following these terminological guidelines I hope to avoid the pitfalls of

identifying Bentham’s project with Foucault’s strategic reinterpretation.
This linguistic choice11 is of course consistent with my overall strategy critically
to examine Foucault’s work in relation to his source materials, and to discard
and redefine Foucault’s definitions of ‘panoptic’ and ‘Panopticon’. Paradoxically,
this volume of essays opts to retain Foucault’s definition of ‘panopticism’, since
he coined the term. Nevertheless, since Foucault’s idea of ‘panopticism’ is
mainly grounded on Bentham’s first description of the Panopticon, that is the
penitentiary described in 1786–91, and since Foucault never addressed the later
and more complex versions of Panopticon which appeared between 1798 and
Theory’, The Sociological Review, 41 (1993): pp. 653–78; S. Leman-Langlois, ‘The Myopic
Panopticon: The Social Consequences of Policing Through the Lens’, Policing and Society, 3/1
(2003): pp. 43–58; S. Mann, J. Nolan and B. Wellman, ‘Sousveillance: Inventing and Using
Wearable Computing Devices for Data Collection in Surveillance Environment’, Surveillance
and Society, 1/3 (2003): pp. 331–55; T. Mathiesen, ‘The Viewer Society: Michel Foucault’s
“Panopticon” Revisited’, Theoretical Criminology, 1/2 (1997): pp. 215–34; M. Poster, The
Mode of Information: Poststructuralism and Social Context (Chicago, IL: Chicago University
Press, 1990); R. Sweeny, ‘Para-Sights: Multiplied Perspectives on Surveillance Research in Art
Educational Spaces’, Surveillance and Society 3(2/3) (2005): pp. 240–50; L. Wacquant, ‘The
Penalization of Poverty and the Rise of Neo-Liberalism’, European Journal on Criminal Policy
and Research, 9 (2001): pp. 401–12.
11
The present linguistic choice therefore needs to be defended. Panopticism is, of
course, the most significant of these terms. Scholars should use ‘panopticism’ to refer to
features elucidated in Foucault’s texts on Bentham’s first 1786–91 projects, and not to the
Panopticon itself. When Foucault writes Discipline and Punish, he is aware of the existence
of Pauper Management Improved (1798) and Panopticon versus New South Wales (1802).
However, on account of Discipline and Punish’s focus on the prison, he mainly centres on the
features specific to Panopticon; or, the Inspection-House (1791). Foucault’s strategy informs his
discourse, which cannot be read as a scholarly interpretation of Bentham’s Panopticon (see A.
Brunon-Ernst, ‘Foucault Revisited’, The Journal of Bentham Studies, 9 (2007): n.p., available
at: www.ucl.ac.uk/Bentham-Project, accessed 15 April 2009). But in distinguishing between
these sets of definitions, we are already departing from Foucault’s concept of ‘panoptic’, which
he defines as the fact of ‘seeing everything, everyone, all the time’ (Foucault, Psychiatric
Power, p. 52), and from his concept of ‘the Panopticon’, which he describes as ‘a system of
permanent inspection, of uninterrupted observation’ (ibid., p. 106). Panopticism is thus the
name given to the type of power where ‘everything the individual does is exposed to the gaze
of an observer who watches … without anyone being able to see him’ (Foucault, ‘Truth and
Juridical Forms’, p. 58). Later in his essay, Foucault qualifies his definition: ‘It’s a type of power
that is applied to individuals in the form of continuous individual supervision, in the form of
control, punishment, and compensation, and in the form of correction, that is, the modelling
and transforming of individuals in terms of certain norms’ (ibid., p. 70).
1830, Foucaultian terminology is inadequate fully to capture the characteristics

of those later plural Panopticons.12
Bentham’s Four Panopticons
Bentham’s engagement with the Panopticon takes place primarily in five

different works: Panopticon; or the Inspection-House (1786 and 1790–91);
Outline of a Work entitled Pauper Management Improved (1797–98);
Panopticon versus New South Wales (1802); Chrestomathia (1816–1817); and
Constitutional Code (1830). Three of the four later discussions do more than
merely replicate the 1786–91 Panopticon. Instead, they present amended
versions of the first project, reflecting its adaptation and reconfiguration to new
contexts. The exception is Panopticon versus New South Wales, which did not
add any new features to the idea (and therefore does not qualify for a separate
entry in the present panoptic taxonomy), but rather discussed the comparative
advantages of panoptic management and deportation.13 For the sake of clarity,
therefore, this chapter will distinguish four distinct Panopticons, namely: the
‘prison-Panopticon’, the ‘pauper-Panopticon’, the ‘chrestomathic-Panopticon’
and the ‘constitutional-Panopticon’.
In The Birth of Biopolitics, Foucault acknowledges that Bentham used the panoptic
12
paradigm in his later writings, especially in Constitutional Code (Birth of Biopolitics, p. 67).
However this late discovery did not lead Foucault to reconsider his earlier concept of panopticism.
13
Panopticon versus New South Wales was written in 1802 to describe the disadvantages
of deportation to the British colony of New South Wales compared to the advantages of
prison penitentiaries in the newly independent United States, and, more specifically, in the
model of the Panopticon, as Bentham had developed it. The two letters refer back to earlier
Panopticon writings and do not develop any significant panoptic features of their own; in
case the reader had not had access to the referred material, in a footnote, Bentham quotes
Letters VI and VII of Panopticon; or the Inspection House, without any amendment. Although
the title of this work might point to the existence of another version of the Panopticon, a
closer reading shows that it does not deserve a separate entry in this panoptic taxonomy.
See J. Bentham, Panopticon versus New South Wales: or, The Panopticon Penitentiary System,
and the Penal Colonization System Compared. In a Letter Addressed to the Right Honourable
Lord Pelham, in Works, vol. 4, pp. 172–211; and J. Bentham, Second Letter to Lord Pelham,
in Continuation of the Comparative View of the System of Penal Colonization in New South
Wales and the Home Penitentiary System, Prescribed by Two Acts of Parliament of the Years
1794 and 1799, in Works, vol. 4, pp. 211–48.
22 Beyond Foucault
The first ‘prison-Panopticon’ project is to be found in Panopticon; or the

Inspection-House.14 It depicts a prison where inmates are securely kept under
lock and key, with the aim of rooting out their ingrained criminal habits and
setting them to work. The first part of this project was written in 1786 (and
not in 1787 as the title page suggests15) when Jeremy Bentham was visiting
Russia, where his brother Samuel had conceived the original idea of central
inspection which he applied to his workers on the Potemkin estate.16 The first
part of the project was published in 1791, along with two postscripts written
in 1790–91.17 The main feature of the first Panopticon is a circular building
with a central inspector who can oversee the activities of the convicts in their
cells. The purpose of their confinement is to facilitate the extraction of work
from them, with a view to their moral reformation. Two additional features of
the building are its secured access and its courtyards, which provide for daily
open-air exercise without permitting communication between different classes
of convicts.
By contrast, the ‘pauper-Panopticon’18 project is a revised version of the
first Panopticon, for the housing of indigents. It was designed to provide
for its inmates’ subsistence but also, as previously, for reformation and
work. The pauper-Panopticon was initially published in a series of papers in
Annals of Agriculture (1797–98).19 One of its additional features is a complex
management system ultimately overseen by Parliament and featuring centrally
a National Charity Company, a joint-stock company with a board of directors
(modelled on that of the East India Company) and shareholders (the initial
funding through poor rates was to be progressively replaced by a profit-
14
Bentham, Panopticon; or the Inspection-House, pp. 37–66.
15
Semple, ‘Bentham’s Haunted House’, p. 38. More generally, for a discussion on the
editorial history of Bentham’s works, see Chapter 3, pp. 68–72.
16
Who invented the Panopticon? Foucault states that Samuel, Jeremy’s brother, got the
idea from the organisation of the Paris-based École militaire. Christie traces the genealogy
of Samuel’s idea to his experience on the Potemkin estate (I. Christie, The Benthams in
Russia, 1780–1791 (Oxford: Providence/Berg, 1993), p. 177). Bentham bears witness to
the accuracy of this interpretation in the first pages of Panopticon; or, the Inspection-House.
17
J. Bentham, Postscript, Part I. Containing further Particulars and Alterations relative to
the Plan of Construction originally proposed; principally adapted to the purpose of a Panopticon
Penitentiary-House, in Works, vol. 4, pp. 67–121; and J. Bentham, Postscript, Part II. Principles
and Plan of Management, in Works, vol. 4, pp. 121–72.
18
J. Bentham, Outline of a Work entitled Pauper Management Improved, in Works, vol. 8,
pp. 379–432.
19
M. Quinn, ‘The Fallacy of Non-Interference: The Poor Panopticon and Equality of
Opportunity’, The Journal of Bentham Studies, 1 (1997): n.p., available at: http://www.ucl.
ac.uk/Bentham-Project, accessed 15 April 2009.
yielding operation where shareholders redeemed benefits from the inmates’

work). Further modifications of building and management rules allowed
for the accommodation of different categories of inmate. Thus marital sex
was to be facilitated by circumferential privacy screens and guardian elders
would provide guidance to those at risk of corruption. A large proportion of
the population were to be children, while the sick, the disabled, the elderly,
the lazy and the criminal were all included in the working population of the
pauper-Panopticon. Space was organised around the institution’s purposes of
production, reproduction and education.20
In Chrestomathia (1816–17),21 Bentham set out a syllabus for schools
for the middle classes, developed around a reformed utilitarian pedagogical
purpose, and provided an outline of the ‘chrestomathic-Panopticon’. Bentham
proposed a Panopticon-shaped day-school, where one inspecting master could
supervise more than 600 pupils per room, aged seven to 17 years old, without
being seen. The plan was based on what Bentham called the scholar-teacher
principle, whereby the more advanced pupils taught the less advanced, for
the greatest improvement of the minds of students and the pockets of their
parents. Bentham decided to re-visit his earlier ideas, even though his project of
building the ‘prison-Panopticon’ had failed in 1803 (the outstanding financial
questions were finally settled in 1813).22 The shift from the first and second
projects to the third and fourth ones highlights the role of the Panopticon
not as a project in its own right, but as a paradigm that could be put to use in
different circumstances, as Bentham had already pointed out in 1786. Bentham
scholarship has noted the use of panoptic principles in later works.23
20
For a detailed description of the prison-Panopticon and the pauper-Panopticon, see
for example Schofield, Bentham: A Guide for the Perplexed, pp. 72–9 and 79–87 respectively.
21
J. Bentham, Chrestomathia, in M.J. Smith and W.H. Burston (eds), The Collected
Works of Jeremy Bentham (Oxford: Clarendon Press, 1984) and J. Bentham, Chrestomathia,
trans. and ed. J.-P. Cléro (Paris: Cahiers de l’Unebévue, 2004).
22
L.J. Hume, ‘Bentham’s Panopticon: An Administrative History I’, Historical Studies,
15/61 (1973): pp. 703–21 and ‘Bentham’s Panopticon: An Administrative History II’,
16/62 (1974): pp 35–54, rpt in B. Parekh (ed.), Jeremy Bentham: Critical Assessments (4
vols, New York: Routledge, 1993), vol. 4, pp. 189–229.
23
See R. Harrison’s comment in Bentham (London: Routledge and Kegan Paul,
1983), pp. 132–3, where he shows the use of panoptic principles in later works: ‘… in Pauper
Management and Panopticon; or, the Inspection-House, the chief sanction designed to get the
manager’s interest in line with his duty to be humane was publicity’, whereas in later works,
Bentham develops various methods at the disposal of the legislator and the Public Opinion
Tribunal. See also Schofield, Bentham: A Guide for the Perplexed, p. 90: ‘[Bentham] took
central inspection and the junction of duty and interest out of the panopticon, so to speak,
and applied it to government in general.’
24 Beyond Foucault
Years later, Bentham felt the need to re-visit the panoptic paradigm in
his plan for a universal utilitarian constitution designed to achieve good
government. I term the panoptic features in Constitutional Code (1830) the
‘constitutional-Panopticon’. The term Panopticon is not used in Constitutional
Code. However, the architectural arrangements are panoptic. There is no
central tower, but the position of the Prime Minister is at the centre of the
oval-shaped building, and communication between the PM and his Ministers,
and between Ministers, is carried out thanks to communication tubes.
Moreover, each ministerial office is a 13-sided polygon which admits on each
side a public or private waiting-room for the use of suitors who have come to
meet the ministers. As in the previous Panopticons, what matters for Bentham
is communication (visual or verbal) between supervisors and supervisees, and
between both and the rest of the world. To reduce misrule and ensure that the
governing functionaries will maximise pleasure and minimise pain, Bentham
monitors the governors24 through panoptic devices.25 Surveillance is operative
on the part of the PM, thanks to conversation tubes and on the part of the
public, which constitutes the Public Opinion Tribunal, thanks to the waiting
rooms.
Four Panopticons have now been described: the prison-Panopticon, the
pauper-Panopticon, the chrestomathic-Panopticon and the constitutional-
Panopticon. Other terms are already circulating in Bentham scholarship. Janet
Semple and Michael Quinn respectively coined the terms ‘prison Panopticon’
and ‘poor Panopticon’. The term ‘pauper-Panopticon’ is here preferred to ‘poor
24
I mean by ‘governor’ any person who governs the governed. This term does not
exclusively refer to the central inspector in the Panopticon. In Constitutional Code, the
governors in the constitutional-Panopticon are the ministers of the State. Governors can
be the inspectors in the first three Panopticons, but need not be so in the constitutional-
Panopticon.
25
For a wider discussion on the constitutional-Panopticon, see Chapter 5, pp. 124–5;
Chapter 6, pp. 145–56; and Chapter 7, pp. 174–9.
Panopticon’ because it is less ambiguous.26 Semple27 and Leroy28 also use the
term ‘reversed’ or ‘inverted’ Panopticon to describe the features of Bentham’s last
version of the Panopticon. The advantage of the term ‘constitutional-Panopticon’
over ‘inverted’ or ‘reversed’ Panopticon is that it remains neutral towards any
interpretation that can be given to the structure, only identifying the version of
the Panopticon according to the title of the volume in which it appears.
The four different Panopticons are not only different names given to the
same project at different times in Bentham’s long career; they also exemplify very
different panoptic features, which resist any single all-encompassing name-tag.
Indeed, one only needs to look at the architectural plan of the various proposed
buildings to see that the adjective ‘circular’ is misleading when applied to panoptic
architecture. In the Panopticon Letters, the prison-Panopticon is circular.29 In the
Postscripts, it is a 24 sided polygon chosen in order to diminish the building costs.30
Nevertheless, the differences in shape between these plural Panopticons is
not relevant per se. Of interest is the minute detail of their structure, which is
governed by the principles that underlie the overall strategies of the institution.
26
If Bentham used the term ‘poor’ to describe his Panopticon project it was only
when lamenting its delayed and then its failed implementation (see J. Bentham, The
Correspondence of Jeremy Bentham. January 1794 to December 1797, in A.T. Milne (ed.),
The Collected Works of Jeremy Bentham (London: Athlone Press, 1981), vol. 5, p. 189;
J. Bentham, The Correspondence of Jeremy Bentham. January 1798 to December 1801, in
J.R. Dinwiddy (ed.), The Collected Works of Jeremy Bentham (Oxford: Clarendon Press,
1984), vol. 6, p. 72, pp. 157–8 and pp. 340–41; J. Bentham, The Correspondence of Jeremy
Bentham. January 1802 to December 1808, in J.R. Dinwiddy (ed.), The Collected Works of
Jeremy Bentham (Oxford: Clarendon Press, 1988), vol. 7, p. 127). In addition, Bentham
himself entitled his second panoptic project Pauper Management Improved. However, when
applied to the second Panopticon, the term ‘paupers’ is a misnomer, since Essays on the
Poor Laws, written previously, distinguished the poor from paupers, the first being those
who relied on their labour, and the second being those who required parish relief for their
subsistence (see J. Bentham, Writings on the Poor Laws, in M. Quinn (ed.), The Collected
Works of Jeremy Bentham, vol. 1 (Oxford: Oxford University Press, 2001), p. 3. Volume two
is forthcoming ( J. Bentham, Writings on the Poor Laws, in. M. Quinn (ed.), Collected Works,
vol. 2). Whilst the inmates in the pauper-Panopticon were indeed paupers, the institution
also aimed to cater for the needs of the poor outside the institution. In that sense, Quinn’s
expression would be more accurate, but more ambiguous to a non-specialist.
27
‘The Benthamite state is more an inverted Panopticon where those who exercise
power are subjected to scrutiny’ (Semple, ‘Bentham’s Haunted House’, p. 41).
28
M.-L. Leroy, ‘Le Panoptique inversé: théorie du contrôle dans la pensée de Jeremy
Bentham’, in C. Lazzeri (ed.), La production des institutions (Besançon: Presses Universitaires
Franc-Comtoises, 2002), p. 172.
29
Bentham, Panopticon; or the Inspection-House, p. 40.
30
Bentham, Postscript, Part I., p. 67.
26 Beyond Foucault
The Panopticon Letters, written in 1786, are rough drafts which do not give
much detail on the functioning arrangements of the building but rather develop
the principles at the heart of the project. In 1790–91, Bentham was considering
the details of the panoptic operation.31 The main difference between the prison-
and the pauper-Panopticon lies in the increasingly complex methods of control.
The prison-Panopticon is a blue-print. Its grip over the inmates is developed
in the monitoring potential of the pauper-Panopticon, which exploits all the
technologies at Bentham’s disposal (book keeping, heating, state of the art
knowledge in medicine, physics and psychology). It also expands its controlling
hegemony to the communities lying in the vicinity of the building far more than
the prison-Panopticon.32
The prison is indeed the model of the prison-Panopticon, but prisons did not
provide its genesis. Samuel Bentham developed panoptic architecture to oversee
the workers whose labour he was supervising on the estate of Prince Potemkin
in White Russia.33 The domination of the prison model in current debate could
be ascribed to Foucault, who was studying the prison system in the 1970s, and
envisaged Bentham’s work only through the lens of incarceration.34 Nevertheless,
the first two Panopticon projects emphasised the importance of the supervision
of productive labour. Other commentators contend that the reason why the
Panopticon project was a prison is to be ascribed to the events that surrounded
the publication of the Panopticon Letters and the writing of the Postscripts. In
1776, the American Declaration of Independence and the consequent War of
Independence eliminated the possibility that convicts could be deported to the
American colonies. At a time when hundreds of crimes were punishable by death
or deportation,35 a policy of deportation to America had been the only means
of avoiding prison overcrowding. A stop-gap measure was therefore found in
housing convicts in prison ships (‘hulks’) on the River Thames. The system – by
then stretched to breaking point – triggered a flow of pamphlets and debates in
Parliament as to the proper disposal of convicts. The Panopticon was Bentham’s
See Semple, ‘Bentham’s Haunted House’, p. 39: ‘the simpler, more extreme letters,
31
and … the more profound and far more complex postscripts as afterthoughts inspired by the
overriding consideration of economy’.
32
Semple, Bentham’s Prison, p. 55: ‘Bentham’s obsession with the morality of work
and the maximization of labour was to reach its highest pitch in his plans for the pauper
panopticon.’
33
See Hume, ‘Bentham’s Panopticon’, p. 191.
34
M. Perrot, ‘La leçon des Ténèbres : Michel Foucault et la Prison’, in Michel Foucault:
Critical Assessments, vol. 4, p. 389.
35
M. Ignatieff, A Just Measure of Pain: The Penitentiary in the Industrial Revolution,
1750–1850 (London: Penguin, 1989), p. 15.
contribution to these ongoing discussions,36 although, in the event, his design

was rejected. Although he tried to argue in favour of the Panopticon project in
Panopticon versus New South Wales, his project and prisons more generally were
seen by government officials as untried and unreliable.
The prison-Panopticon, therefore, was Bentham’s response to a social
crisis. Social crisis was also the context for Bentham’s attempt, in 1796–98, to
adapt his brother’s invention to provide relief for indigence. In the winter of
1795, food shortage and consequent increases in the price of necessities threw
thousands on the parish for subsistence. As a matter of course, the poor rates
increased dramatically to provide for their relief.37 Here again, the Panopticon
architecture offered a uniquely economical means of accommodating and
deriving value from the labour of relatively massive numbers of people.38
The use of panoptic devices in the chrestomathic- and the constitutional-
Panopticons is less clear. The strategic use of a panoptic building allows an
architectural device to become a universal monitoring tool in a wider project on
government with the aim of enhancing good management.39 As Schofield explains:
In Bentham’s mature constitutional theory, the central inspection tower

disappears as artefact and as metaphor. Every place becomes all-seeing. The
people, as members of the Public Opinion Tribunal, ensure good behaviour on
part of their rulers through the instrument of publicity.40
Chronologically speaking, the shift from the first two Panopticons to the
last two is central to the birth of the panoptic paradigm in Bentham’s theory.
This panoptic paradigm need not rely on architectural devices only, but can
pervade the relationship between the governors and the governed, thanks
to the publicity it allows. The panoptic scheme moves away from tackling
the issues of social control at the margins of society to focus on its heart and
36
Hume, ‘Bentham’s Panopticon’, p. 190.
37
M. Quinn, ‘Editorial Introduction’, in Writings on the Poor Laws, vol. 1, pp. xiii–xiv.
38
In regard to beggars and other ‘disreputable classes’ among the indigent, the
Panopticon also, of course, facilitated their economical detention. The adaptation of the
architecture to purposes beyond confinement, in the poor law writings, is perhaps best
illustrated by Bentham’s proposal for accommodating the insane, and people with disabilities
in ‘Appropriate Establishments’, also, of course, Panopticons, where the best medical
attendance, education and training could be provided to them most efficiently, and where
their labour could be most efficiently extracted. See Bentham, Pauper Management Improved,
pp. 394–5 (I am grateful to Dr Quinn for this note).
39
A. Brunon-Ernst, ‘Métamorphoses panoptiques’, Cahiers critiques de philosophie, 4
(2007): pp. 60–71.
40
Schofield, Bentham: A Guide for the Perplexed, p. 93.
28 Beyond Foucault
head: middle-class children and members of the government. The first two
Panopticons were monitoring populations lying outside the building per se
(travellers, poor working-class families and workers), but Bentham could
only reach these populations thanks to traditional control methods instead of
panoptic ones because his target population lay beyond the panoptic gaze.41
In a Panopticon, any member of society could become the panoptic viewer
watching over the inmates but, in the constitutional-Panopticon, the inmates
are members of government. The wide ranging implications of this reversal
need to be examined.42
To a large extent, Foucault’s theory of panopticism does not address
these later versions of the Panopticon. The section below discusses the fact
that Foucault’s panopticism is defined in reference to Bentham’s first two
Panopticons. I contend that panopticism is unable to account for the ways in
which the panoptic paradigm is adapted to other uses in the chrestomathic and
the constitutional projects, as discussed in the following section.
One Single Concept: Panopticism
Foucault discovered Bentham’s works and read Panopticon; or the Inspection-

House in 1973–74, while working on the notion of discipline in hospitals
and prisons. At the same time, he was lecturing at the Collège de France on
psychiatric power. A number of passages in his lecture series and in his published
essays provide a substantial discussion of panopticism, one that pre-dates the
more influential treatment in Discipline and Punish (1975).43 This section will
demonstrate that these interlocking versions of panopticism can be interrogated
and problematised through a consideration of Foucault’s project as it developed;
thus the discussion below will not focus on the more widely read Discipline
and Punish. The definition found in Discipline and Punish invests panoptic
architecture with the superimposed image of the actor and the importance
41
Brunon-Ernst, Le Panoptique des pauvres.
42
See Chapter 4, pp. 80–1, Chapter 5, p. 127 and Chapter 6, pp. 148–9.
43
Foucault, Discipline and Punish: The Birth of the Prison, A. Sheridan (trans.) (London:
Penguin, 1991), pp. 195–228; Foucault, Psychiatric Power, pp. 73–4; Foucault, ‘Truth
and Juridical Forms’, pp. 52, 58 and 70; M. Foucault, ‘About the Concept of “Dangerous
Individual” in Nineteenth-Century Legal Psychiatry’, in Power, vol. 3, p. 186; Foucault,
‘Questions of Method’, p. 232; M. Foucault, ‘What is Called Punishing?’, in Power, vol. 3,
p. 385; M. Foucault, ‘The Punitive Society’, in R. Hurley (trans.) and P. Rainbow (ed.), Ethics:
Essential Works of Foucault (3 vols, London: Penguin, 1997), vol. 1, pp. 32–5; Foucault,
Security, Territory, Population, pp. 66 and 117; Foucault, ‘The Eye of Power’, pp. 140–65.
of light.44 By contrast, the following presentation of the Panopticon from the

lecture series remains at the descriptive level:
The Panopticon is a ring-shaped building in the middle of which there is a yard

with a tower at the centre. The ring is divided into little cells that face the interior
and exterior alike. In each of these little cells there is, depending on the purpose
of the institution, a child learning to write, a worker at work, a prisoner correcting
himself, a madman living in madness. In the central tower, there is an observer …
able to see everything without anyone being able to see him.45
This description of the Panopticon is interesting for the present purpose on two
counts. First, it sounds familiar, and rightly so, since the description above or an
equivalent extract from Discipline and Punish – either quoted or rephrased – is
commonly found in academic treatments of the Panopticon. This reveals the
tactical decisions of writers in selecting Foucault’s description to weave panoptic
surveillance into their overall discussions. (This point will be further discussed
in the Epilogue.)46
Second, the quote also highlights the extent to which Bentham’s Panopticon
is not Foucault’s panopticism. So far my contention has been that the existence
of plural Panopticons undermines any single encompassing definition. Indeed,
Foucault’s description above is only an account of the prison-Panopticon project
as exhibited in Panopticon; or the Inspection-House; and, notwithstanding his
reference to other inhabitants to be found in the pauper-Panopticon or in the
chrestomathic-Panopticon, he does not mention inspection as a feature of the
constitutional-Panopticon. Moreover, in the later constitutional-Panopticon,
although the tower disappears from the building, the supervising PM remains
central to the communication network in the organisation of the ministry. The
focus is now on the ministers sitting in the centre of the circle formed by the
waiting rooms. If the primary aim is to minimise delay, vexation and expense, it
also allows the public to keep an eye on its functionaries. The central inspection
principle is thereby reversed in order to allow the governed to keep a close
watch over the activities of the ministers. It becomes an instrument to discipline
the government, rather than only the masses. As such it is a part of a wider
reflection on governmentality. Foucault is either unaware of the existence of
44
See Foucault, Discipline and Punish, pp. 191–3.
45
Foucault, ‘Truth and Juridical Forms’, p. 58. See also similar descriptions in Foucault,
Psychiatric Power, pp. 74–5. Both texts were written in 1973. The later chapter 3 in Discipline
and Punish exhibits the same features two years later. See a similar description of the
Panopticon in Foucault, ‘The Eye of Power’.
46
30 Beyond Foucault
the plural Panopticons, or decides to ignore them.47 In consequence, Foucault’s

panopticism does not consider the Panopticon as a multifarious and reversible
structure, which could operate as a means for the few to supervise the many
as well as for the many to supervise the few; for the governor to supervise the
inmates as well as for the citizens to monitor the government.48 If the governors
are monitored, that is, if they govern themselves so that others may be
governed, if their conduct is being shaped and guided by utilitarian principles
and by the public,49 then Bentham is not only ‘the most exemplary inventors of
technologies of power’50 but the main thinker of governmentality, understood
as ‘a system of thinking about the nature of the practice of government’ (which
is a conduct of conduct).51 As Laval discusses below, Foucault comes to such
a conclusion on Bentham’s works in his lecture series The Birth of Biopolitics,
although not basing himself on the Panopticon writings. I contend here that
a closer reading of the plural Panopticons yields governmentality as well as
disciplinary power.
Foucault should be taken to task for his selective reading of the Panopticon
writings, just as he has been taken to task for his selective reading of other
sources.52 It is possible to unfold a map of the Panopticon quite different in
its contours from the linear tale of panopticism. The aim of this chapter is to
There is evidence that Foucault was aware of the existence of the panoptic devices in
47
Constitutional Code. See note 12, p. 18.

48
The following comment by Foucault shows that he does not consider the possible
application of the Panopticon to supervise one individual. The many are always those who
are supervised, not the few: ‘There is no risk, therefore, that the increase of power created
by the panoptic machine may degenerate into tyranny; the disciplinary mechanism will
be democratically controlled, since it will be constantly accessible “to the great tribunal
committee of the world”. This Panopticon, subtly arranged so that an observer may observe,
at a glance, so many different individuals, also enables everyone to come and observe any of
the observers. The seeing machine was once a sort of dark room into which individuals spied;
it has become a transparent building in which the exercise of power may be supervised by
society as a whole’ (Foucault, Discipline and Punish, pp. 207–8). For further discussion on
the role of the constitutional-Panopticon, see Chapter 3, p. 63.
49
P. Barker, Michel Foucault: An Introduction (Edinburgh: Edinburgh University Press,
1998), p. 64.
50
Foucault, ‘The Eye of Power’, p. 156.
51
C. Gordon, ‘Governmental Rationality: An Introduction’, in G. Burchell, C. Gordon
and P. Miller (eds), The Foucault Effect: Studies in Governmentality (London: Harvester
Wheatsheaf, 1991), pp. 2–3.
52
See B. Smart, ‘Introductory Essay: The Government of Conduct – Foucault on
Rationality, Power and Subjectivity’, in Michel Foucault: Critical Assessments, vol. 4, p. 8;
K. Hoskin and R. Macve, ‘Accounting and the Examination: A Genealogy of Disciplinary
Power’, in Michel Foucault: Critical Assessments, vol. 7, p. 100; G. Agamben, Homo Sacer:
take this analysis further by exploring the two different, albeit overlapping,
taxonomies which Foucault used to analyse the panoptic system. The
first taxonomy identifies four major components of the panoptic scheme:
permanent visibility, central inspection, isolation and ceaseless punishment,53
to which Foucault then adds the recording function of the institution and the
isotopic system. The second taxonomy delineates four different powers in the
Panopticon: the economic, the political, the judiciary and the epistemological.54
This section retains the two taxonomies as a frame within which to understand
Foucault’s panopticism.
The first taxonomy envisages panopticism from the perspective of its effects.
This taxonomy appears in Foucault’s lectures, before being refined in the third
chapter, ‘Panopticism’, of Discipline and Punish. This chapter now serves as
the groundwork for any discussion of the Panopticon and of panopticism. It
is interesting to go to the source of this seminal chapter by examining the ways
in which Foucault constructs his concept of panopticism. In a passage which
considers the hospital as a ‘panoptic machine’, Foucault gives an enlightening
description of operative arrangements in the Panopticon:
Let’s say, broadly speaking, that we can find four or five operational elements
of the same order as Bentham’s Panopticon, and which are supposed to play an
effective role in the cure. First, permanent visibility …. Second, the principle
of central supervision by means of a tower from where an anonymous power
was constantly exercised …. Third, the principle of isolation …. Finally, and here
again you find the themes in the Panopticon, the asylum acts through the play
Sovereign Power and Bare Life, trans. D. Heller-Roazen (Stanford, CA: Stanford University
Press, 1998), p. 15; Bevis, Cohen and Kendall, pp. 174–82; de Certeau, pp. 332–3.
53
See also: ‘… it is at once too much and too little that the prisoner should be
constantly observed by an inspector: too little, for what matters is that he knows himself to
be observed; too much, because he has no need in fact of being so. In view of this, Bentham
laid down the principle that power should be visible and unverifiable …. In order to make
the presence or absence of the inspector unverifiable, so that the prisoners, in their cells,
cannot even see a shadow, Bentham envisaged … venetian blinds on the windows of the
central observation hall …. The Panopticon is a machine for dissociating the see/being
seen dyad: in the peripheric ring, one is totally seen, without ever seeing; in the central
tower, one sees everything without ever being seen …. Consequently, it does not matter
who exercises power. Any individual, taken almost at random, can operate the machine ….
Similarly, it does not matter what motive animates him …. The Panopticon is a marvellous
machine which, whatever use one may wish to put it to, produces homogeneous effects of
power.’ (Foucault, Discipline and Punish, pp. 201–2).
54
Foucault, ‘Truth and Juridical Forms’, pp. 82–3. See also similar comments in
M. Foucault, Dits et écrits, vol. 2, p. 618.
32 Beyond Foucault
of ceaseless punishment, which is ensured either by the personnel, of course,

who must be present the whole time and close to each individual, or by a set of
instruments.55
Here again, Foucault’s decision to ignore the development of different versions

of the Panopticon distorts his characterisation of the panoptic system. The
concept of constant visibility does not apply to the constitutional-Panopticon,
where ministers are monitored only in the course of their public duties and
where they can withdraw from the gaze of the citizens when they rest or wish to
enjoy some privacy. Neither does the principle of central inspection apply since,
in the case of ministers, the administrative – if not geographic – centre is under
the gaze of the surrounding semi-circle. As to isolation, Bentham,56 like many
other contemporary prison reformers (such as Howard), argued for solitary
confinement, before discarding the idea in later Panopticons on account of the
evils of solitude. Bentham replaces the principle of isolation by developing the
idea – already present in the prison-Panopticon – of aggregating individuals
in separate groups defined according to the purposes the institution wishes to
achieve (reformation, work or education).
When discussing disciplinary power, Foucault adds the following features
to his description of the Panopticon, specifying the relationship between
recording and the body of the person recorded:
[T]he panoptic principle … organizes a genetic polarity of time, it proceeds

towards centralized individualization the support and instrument of which is
writing; and finally, it involves a punitive and continuous action on potential
behaviour that, behind the body itself, projects something like a psyche.57
Registering, compiling, organising and circulating information is one

interesting panoptic element in at least two of the four Panopticons, and
Foucault does devote some space to this feature that has become so central to
the application of the panoptic paradigm in modern-day surveillance systems.
However, the last two Panopticons do not develop these possibilities in the
same way as the first two do, especially because they devote less space to the
project and use the panoptic paradigm within a wider discussion – pedagogy
55
Foucault, Psychiatric Power, pp. 103–4.
56
Semple, Bentham’s Prison, p. 34, and Semple, ‘Bentham’s Haunted House’, p. 40.
57
Foucault, Psychiatric Power, pp. 48–52.
for one and a universal constitutional code for the other. Moreover, the
constitutional-Panopticon does not allow citizens to register the government’s
activities, thanks to procedures which are specifically inscribed in the panoptic
architecture.
One last panoptic feature is the isotopic system. Foucault writes:
[A] disciplinary power is isotopic or, at least, tends towards isotopy. This means
a number of things. First of all, every element in a disciplinary apparatus has its
well-defined place; it has its subordinate elements and its superordinate elements
…. But isotopic also means that there is no conflict or incompatibility between
these different systems … it must always be possible to pass from one to another
…. Finally, in the disciplinary system, isotopic means above all that the principle
of distribution and classification of all the elements necessary entails something
like a residue. That is to say, there is always something like ‘the unclassifiable’.58
The Panopticon projects can be considered at different levels – at the macro-

level of a network of co-operating institutions in the pauper-Panopticon, or
at the micro-level of individuals pigeon-holed in boxes according to their
intellectual or productive capacities, or according to their immorality in the
first three Panopticons. If the system is indeed isotopic at the macro-level, it is
not so at the micro-level in the prison- and pauper-Panopticons. Conversely,
the chrestomathic-Panopticon challenges the idea of a fixed place within the
overall class structure set out by the first two panoptic devices. Indeed, the strict
division in class that was the basis of the first two Panopticons is reconsidered.
Individuals are no longer assigned to a class to which they definitively belong
during their stay (exceptions are made of children, who can change categories
as they grow from infants to children to adults, and of adults as they start their
reproductive life). Children educated in the chrestomathic institution can
change classes according to the subjects they learn and according to their level
of achievement.
The preliminary identification of four different Panopticons is the key to
understanding why ‘Panopticon’ and ‘panoptic’ – in Foucault’s sense of the
terms – are inadequate to account for the complex ways in which Bentham
developed panoptic control. Changes in the Panopticons were of two different
types. First, Bentham corrected his project because he considered part of it to
be inefficient or counter-productive in the overall utilitarian economy (which
aims to maximise happiness and minimise pain). Second, the Panopticon was
also changed to adapt to the new needs of its consumers. Panoptic writing
58
Ibid., pp. 52–3.
34 Beyond Foucault
was an ongoing process for Bentham, and Foucault’s failure to grasp this
undermines the relevance of panopticism as a concept. Foucault’s panopticism
only provides a snap-shot of Bentham’s thought on monitoring individuals
at a specific time in the development of his scheme, and it does not take into
account its later adaptations. The explanation is found in Foucault’s strategic
focus, as he acknowledges in the introductory quote of this chapter. Foucault’s
attempts to specify a particular conception of panopticism should be read in
the light of his overall aim of studying the shift from the sovereign state to the
disciplinary power. In order to do this, he treats panopticism as equivalent to
Bentham’s Panopticon. However, a completely different story has emerged from
the study of Bentham’s sources. Bentham’s plural Panopticons evolve towards
governmentality rather than disciplinary power. Indeed, the last Panopticon
exemplifies the shift from the techniques of disciplines at work in the penal,
pauper or educational system to the general technique of power in the state.
In Bentham’s system, the general powers are deployed in a field of relations of
forces.59 The constitutional-Panopticon is an exercise in balancing the conflicting
interests of the population. In this endeavour, economy (maximising pleasure
and minimising pain) and opinion (through the Public Opinion Tribunal60)
emerge as correlates of Bentham’s utilitarian form of liberal government.61 The
last Panopticon can be read as a rationalisation of the exercise of power.62
A similar distortion of Bentham’s Panopticon vitiates Foucault’s second
taxonomy.63 Here, in contrast to his discussion of the first taxonomy, Foucault
Ibid., p. 312.
59
The Public Opinion Tribunal, which Leroy calls the eye of public opinion as opposed
60
to the eye of power (M.-L. Leroy, Félicité publique et droits de l’individu dans l’utilitarisme
benthamien (Lille: ANRT, 2003), p. 727), is an all-inclusive and unfettered concept which
allows all members of the public to judge government constantly and thus to act as an
important social institution in preventing misrule. See F. Cutler, ‘Jeremy Bentham and the
Public Opinion Tribunal’, Public Opinion Quarterly, 63 (1999): p. 321.
61
Leroy, Félicité publique et droits de l’individu dans l’utilitarisme benthamien, p. 272.
62
Ibid., p. 120.
63
This second taxonomy is also interesting in other respects, in that it shows that
Foucault did not fall into the ‘visibility trap’, as many critics have claimed (see B. Fine,
‘Struggles Against Discipline: The Theory and Politics of Michel Foucault’, in Michel
Foucault: Critical Assessments, vol. 4, p. 326). It is true that Foucault tended to overemphasise
the importance of the ‘gaze’. A telling example is in ‘The Eye of Power’, p. 154; Michelle
Perrot highlights two techniques of power, the gaze and speech, but Foucault takes up the
gaze and the internalised gaze, leaving out speech. However Foucault could envisage other
procedures at work in the Panopticon or in similar institutions in addition to the ‘very force
of the one-way gaze’ (Fine, p. 326). In developing both his taxonomies, Foucault ignores the
later versions of Bentham’s scheme, because they fail to provide supporting evidence for his
no longer relies on the structural features of the (first) Panopticon to illuminate

a wider transformation, but instead deploys a new set of interpretative concepts
to relate the Panopticon to his wider discussion of the transformation he
perceives in the technologies of control, that is, in the shift from the public,
physical and external exercise of coercive sovereign power to the cloistered,
mental and internal exercise of disciplinary power. Unsurprisingly, then, his
analysis of the Panopticon centres on the ways in which it facilitates the exercise
of power. What interests Foucault is not so much the internal organisation of
the Panopticon as the ways in which Bentham’s Panopticon exists as a sign of a
wider shift towards the disciplines. He defines panopticism as being composed
of four different powers, the economic, the political, the judiciary and the
epistemological:
What is the form of power that is exercised in these institutions? A polymorphous,

polyvalent power. First, in a certain number of cases there is an economic power.
In the case of a factory, the economic power offers a wage in exchange for a period
of labor in a production apparatus belonging to the factory owner. There is also
… a political power: the persons who direct these institutions claim the right
to give orders, establish rules, take measures, expel certain individuals, admit
others. Third, that same economic and political power is also a judicial power: in
these institutions, one does not give orders but one makes decisions … one also
has the right to reward and punish …. Finally, there is a fourth characteristic of
power … an epistemological power – that is a power to extract a knowledge from
individuals and to extract knowledge about those individuals.64
This analysis works well in relation to the first two Panopticons, where the
convict and the pauper perform tasks that contribute to the reimbursement
of the cost of their upkeep. Because the role of the panoptic institution is
to supervise work, it needs to give orders and draft rules of conduct. This in
turn implies the right to punish and to reward according to performance or
non-performance of orders. A collateral, but not ancillary, function of the
Panopticon is to constitute a stock of knowledge, respecting production-
related know-how and clinical knowledge to improve productivity. According
to Foucault, the aim of panopticism – as exemplified in Bentham’s Panopticon
and in other institutions at the turn of the century – is to create a polymorphous
grand thesis. On account of these omissions, Foucault’s panopticism fails properly to capture
the nature and the meanings of Panopticon.
64
Foucault, ‘Truth and Juridical Forms’, pp. 82–3.
36 Beyond Foucault
form of power whose main aim is to optimise the limited economic resources of
the liberal government.65
However, the analysis seems less appropriate in relation to the
chrestomathic- and the constitutional-Panopticons. It does not allow Foucault
to consider panopticism beyond the area of the optimising liberal State. In
this taxonomy, the panoptical mechanisms are geared towards producing
disciplinary power. Foucault takes a step backwards to get a wider view of
the first two Panopticons, and to take his reflections on panopticism a step
further down the road to disciplinary power. If all these powers are to be found
in the first two models of the Panopticon, only some are present in its third
and fourth versions. Indeed, some critics go so far as to state that Bentham’s
Chrestomathia fails to be disciplinary because it does not grade the pupils.66 If
the Panopticon can function in non-disciplinary environments, can it still be
identified with disciplinary power?67 This last point disqualifies the Panopticon
as a uniquely disciplinary machine. On account of the argument related to
the first taxonomy, the plural Panopticons seem to lie mid-way between the
disciplines and governmentality.
The Panoptic Paradigm
In this final section, it is time to pose three last questions: (1) What is the
Panopticon? (2) Is there a panoptic paradigm? (3) How could the Panopticons
be useful in Foucault’s overall vision? This section demonstrates that one way of
getting to grips with these three interlocking questions is through considering the
subtle shifts of problematisation that emerged as Foucault’s project was pursued.
The conclusion to be drawn from the comparison between panopticism and the
Panopticon is that Foucault’s panopticism is unable to account for the complex
ways in which Bentham’s Panopticon operates. The Panopticon appears to be in
acute need of accurate definition, since Bentham’s descriptions of the structure
change, and since Foucault’s portrayal specifies a particular conception for
strategic purposes. This volume of essays suggests the following: the Panopticon
Foucault, Dits et écrits, vol. 2, p. 618.

65
Hoskin and Macve, pp. 125–6.

66
67
See P. Niesen, ‘Die Macht Der Publizität. Jeremy Benthams Panoptismen’, in R.
Krause and M. Rölli (eds), Macht. Begriff und Wirkung in der politischen Philosophie der
Gegenwart (Bielefeld: Transcript Verlag, 2008), pp. 221–44, in which Niesen makes a
similar contention, that since one does not believe parliamentarians to change their ways just
because they are open to public surveillance, why should one assume that the Panopticon has
a disciplinary quality across the board?
is the name given to a building developed by Jeremy Bentham68 which permits

the activities of the inmates to be seen and heard,69 – but allows withdrawal from
observation on certain occasions – and thus to be monitored, by the institution’s
accredited viewer(s)/hearer(s)70 in order to compel the inmates to behave in a
fashion conducive to the maximal degree of realisation of the specific ends which
the institution is intended to achieve.71 This principle in architecture can then be
supported by an array of non-architectural arrangements72 which strengthen the
likelihood of compliance with the norms set by the institution.
This definition embeds the Panopticon in a particular context. The four
separate Panopticon projects provided responses to particular and immediate
social and political problems. How then is it possible to use the term ‘Panopticon’
to describe anything beyond the scope of Panopticon; or the Inspection House and
Pauper Management Improved? The chapter has shown that it is misleading to
aggregate the four projects under a common name, without any qualifications.
Indeed, even if they share common features, Bentham’s panoptic projects should
be distinguished as to their ways and means. A shift from the Panopticon to
the panoptic paradigm implies that the plural Panopticons contain features
that can be identified, isolated and compared to other similar ventures,
whether contemporary or historically separated. Foucault was aware of this
when he coined the phrase ‘panoptic schema’.73 However, his panoptic schema
is grounded on an incomplete panoptic description. Because Foucault ignores
the constitutional-Panopticon, at the time when he wrote on panopticism, he
cannot envisage his panoptic schema other than as a mechanism to be used
‘whenever one is dealing with a multiplicity of individuals on whom a task
68
The initial idea of the structure originated with his brother, Samuel.
69
Withdrawal from the panoptic gaze is permitted for the purpose of natural and
reproductive functions, and, in some later cases, when the inmate is not performing a public
function.
70
Viewers can be the central inspector, teachers, members of the general public in the
case of visitors and citizens, etc.
71
That is reformation of convicts, setting paupers to work, teaching children, promoting
good government, etc.
72
These aims can be reformation of morals (for criminals and paupers), compensation
for mismanagement, promotion of production, utilitarian education and reproduction,
circulation of information, fight against misrule (in businesses and in government) etc.
73
‘But the Panopticon must not be understood as a dream building: it is the diagram
of a mechanism of power reduced to its ideal form; its functioning, abstracted from any
obstacle, resistance or friction, must be represented as a pure architectural and optical system:
it is in fact a figure of political technology that may and must be detached from any specific
use’ (Foucault, Discipline and Punish, p. 205).
38 Beyond Foucault
or a particular form of behaviour must be imposed’.74 In the constitutional-

Panopticon, one individual is supervised by a multitude of inspectors. In order
to distinguish Foucault’s erroneous panoptic schema from the more accurate
model here proposed, I suggest the phrase ‘panoptic paradigm’.
The definition above lists the panoptic features. The Panopticon can be
considered as a paradigm when the features exemplified above are isolated from
Bentham’s architectural projects to operate as a model, both in Bentham’s later
works and in other disciplines, to constitute a means to consider the behaviour
of an individual or of a group, and the operations of a social practice or of an
institution. This chapter and others75 provide examples of Bentham using his
Panopticon as a paradigm in Chrestomathia and in Constitutional Code, and of
other disciplines doing so. Paradoxically, at this point, it is possible to identify
the panoptic features of Foucault’s panopticism. The panoptic features in
panopticism are identified, selected, renamed, distorted and geared towards the
Foucaultian vision of disciplinary society, but nonetheless their source, albeit
distant, remains the Panopticon.
What is to be gained or lost by thinking in terms of panoptic paradigm
instead of the Panopticon or panopticism? The Panopticon is Bentham’s project
and cannot be isolated from the aims of its author. The concept of panoptic
paradigm offers an abstraction and generalisation of the central features of
the Panopticon in a manner which allows their application in other contexts.
Panopticism, on the other hand, is the crystallisation of no more than a fraction
of the paradigmatic elements of the Panopticon. The panoptic paradigm seems
to be a more flexible tool to liberate both the Panopticon and panopticism from
the tactical discourses in which they are enmeshed. Another chapter in this
volume76 shows that the late Foucault was more influenced by Bentham in his
study of governmentality than he acknowledged in his footnotes and in his earlier
works.77 Indeed, this book contends that Foucault’s study of the techniques of
Western liberal government focused specifically on one type of liberalism, the
type that Bentham devised when he conceived his utilitarian government.
Ibid., p. 206.
74
See Chapter 5, pp. 117; 124; 137–8 and Chapter 6, p. 156.

75
76
See Chapter 2, pp. 49–60.
77
Other scholars contend that Foucault was influenced by Bentham’s view on
disciplines to build his argument in Discipline and Punish. See Fine, pp. 320–22 and
D. Garland, ‘Frameworks of Inquiry in the Sociology of Punishment’, in Michel Foucault:
Critical Assessments, vol. 4, p. 401. This chapter shows to what extent it is misleading to
consider the Foucault–Bentham relationship in these terms.
Scholars contend that, although disciplinary power and government have

historically coexisted,78 in Foucault’s works, the shift between the study of
disciplines and the study of governmentality takes place between the writing
of Discipline and Punish and that of the History of Sexuality. The shift hinges
round the concept of ‘the conduct of conduct’79 which emerges from the study
of sexuality and Ancient Greece. The recent publication of Security, Territory,
Population and The Birth of Biopolitics has now allowed us to reconsider
the influence of Bentham’s system on Foucault’s thought.80 The concept of
governmentality is fleshed out from the study of the Christian pastorate which
is read as the background of the emergence of this art of governing men.81 I have
shown here that the panoptic paradigm, as embodied in Constitutional Code,
could also allow the bridging of this gap between disciplines and governmentality.
In the constitutional-Panopticon, the reversal of the gaze of the governed
towards the governors, of the many towards the few, allows the interplay of the
disciplinary strategies with concern for a liberal government, in Foucault’s sense
of the term, that is, a government which limits its own action economically,
which polices its population, and which uses opinion as a means to balance the
conflicting interests of the governed and the governors.82 Because the panoptic
gaze is turned towards the governors, the constitutional-Panopticon polices
the conduct of those who are entrusted with the conduct of others. Because
this conduct is then internalised by the ministers, this last Panopticon can be
read as a machine of government. Foucault’s failure to take cognizance of the
complexities of the panoptic paradigm, and the manner in which he ignores
those complexities in defining panopticism, have impoverished the vision of
78
A. Barry, T. Osborne and N. Rose quote Foucault: ‘We need to see things not
in terms of the replacement of a society of sovereignty by a disciplinary society by a
society of government; in reality one has a triangle, sovereignty–discipline–government’
(‘Introduction’, in A. Barry, T. Osborne and N. Rose (eds), Foucault and Political Reason
(London: UCL Press, 1996), pp. 7–8).
79
G. Burchell, ‘Liberal Government and Techniques of the Self ’, in Barry, Osborne and
Rose (eds), Foucault and Political Reason, p. 19.
80
See Gordon, ‘Governmental Rationality’, p. 24: ‘Bentham’s deployment of a utilitarian
calculus of pleasures and pains is the example par excellence of an applied rationality of
security, in Foucault’s sense of the term; homo economicus, the man of interest, of pleasures
and pains, functions here not just as the abstract, elusive atom of market economics, but as a
theme of political inventiveness.’
81
Foucault, Security, Territory, Population, p. 165.
82
B. Hindess, ‘Liberalism, Socialism and Democracy: Variations on a Governmental
Theme’, in Barry, Osborne and Rose (eds), Foucault and Political Reason, p. 65 and T. Osborne,
‘Security and Vitality: Drains, Liberalism and Power in the Nineteenth Century’, in Barry,
Osborne and Rose (eds), Foucault and Political Reason, p. 101.
40 Beyond Foucault
Discipline and Punish, denied him the tools to produce further insights into the
scope of disciplinary society as part of a wider reflection of powers of the state,
and prevented him from seeing that the Panopticon was not only the locus of
disciplinary society but also of governmentality.83
Conclusion
Foucault’s panopticism is not an accurate description of, or reflection upon,

Bentham’s Panopticon. Discipline and Punish develops panopticism in a reading
of Bentham’s earliest project (1786–91). If Bentham’s Panopticon scheme was
indeed first fleshed out in Panopticon, or the Inspection-House, the panoptic
paradigm reappears in later works from 1798 to Constitutional Code in 1830.
There is not one Panopticon, but at least four different versions of Bentham’s
surveillance machine, which he amends and modifies as his thoughts on good
government develop. This chapter has demonstrated that Bentham modified his
surveillance model to adapt it to the needs of the inmates and to the requirements
of his utilitarian vision. It has unravelled the complexities of the Panopticon and
shown the extent to which panopticism is a skilful distortion of the Panopticon
within Foucault’s overall discussion of the rise of disciplines. The panoptic
paradigm allows readers to extract features found in the Panopticon and to re-
use them in physical or theoretical architecture beyond the Panopticon.
Foucault got it wrong. Bentham scholars knew that much. The latest
research on panopticism and the Panopticon shows that Bentham advocated
‘anti-panopticism’.84 The statement is striking and needs to be explained. If
one understands panopticism as supervision, control and correction, then the
Panopticon defeated its ultimate purpose. The only aim of surveillance was for
the people monitored to internalise surveillance so that surveillance would in
the end be unnecessary. Moral reformation is not just the collateral benefit of
the whole endeavour but the very essence of the Panopticon. Panopticons are
built so that no more Panopticons will be needed.85 In that sense, the panoptic
age is only a transition to a non-panoptic utilitarian era, where misrule is
minimised and pleasure maximised. The concept of panopticism only considers
the panoptic age and fails to see it as merely transitory. However, there lies
the full scope of Bentham’s utopia: the Panopticons would one day become
83
For a wider discussion on Bentham and governmentality, see Brunon-Ernst,
Utilitarian Biopolitics.
84
Schofield, Bentham: A Guide for the Perplexed, p. 92.
85
Ibid., and Brunon-Ernst, Le Panoptique des pauvres, pp. 174–6 in a chapter entitled
‘Surveillance Without Punishment’.
useless, because people would have adopted appropriate utilitarian behaviour.

The Panopticon presents itself as the fiction of an unachievable disciplinary
governmental rationality. The Panopticon is not panopticism. It can be termed
anti-panopticist in its aims, and it carries features that will be presented as post-
panoptical in the Epilogue.86
The argument in this chapter is not made merely for the sake of historic or
philosophical accuracy. Foucault’s works have been influential to an understanding
of today’s society, most famously in weaving ‘the figure of modernity to that of
the prison’87 or in stating that ‘prison discipline pervades all of modern society’.88
Nevertheless, many of Foucault’s statements about the disciplinary and prison-
like features of modern society could not have been made if he had woven the
four Panopticons89 into his discussion not of panopticism, but of a concept of
the panoptic paradigm (more encompassing than his own panoptic schema)
that would not have been geared exclusively towards disciplines, but could
have encompassed governmentality as the present chapter has pointed out.90
Chapter 2 examines how, beyond the Panopticon writings, Bentham’s work can
be read as a reflection on governmentality. If governmentality is understood as
‘the government of ourselves, the government of others and the government of
the state’,91 then Bentham appears to be the great thinker of governmentality.
Had Foucault considered the panoptic paradigm here suggested, instead of his
panopticism or his panoptic schema, he would not have reduced our society
to the image of a prison. Foucault’s reading of Bentham’s Panopticon is based
on a series of misreadings that result in a skewed, partial and imperfect view of
ourselves and the world in which we live.
86
87
P. Pasquino, ‘Michel Foucault (1926–1984): The Will to Knowledge’, in Michel
Foucault: Critical Assessments, vol. 4, p. 411.
88
G. Gutting, Foucault: A Very Short Introduction (Oxford: Oxford University Press,
2005), p. 81.
89
This raises the issue of what Foucault has read. As Clare O’Farrell noted, Foucault
very seldom quotes his sources. See C. O’Farrell, Michel Foucault, pp. 4–5.
90
See Chapter 6, pp. 129–131 and Chapter 7, pp. 158–60, where the question whether
the Panopticon can be construed as Bentham’s utilitarian model society is raised.
91
M. Dean, Governmentality: Power and Rule in Modern Society (London: Sage,
1999), p. 2.
Chapter 2
From Discipline and Punish to
The Birth of Biopolitics1
Christian Laval
Michel Foucault’s interpretation of Jeremy Bentham challenges one’s reading

of both writers. It requires us to question whether scholars have read Foucault
properly, and, above all, if they have read him thoroughly. Intellectual honesty
requires that these questions should be addressed. The issue of understanding
Foucault’s interpretation of Bentham must be understood within the context
of the publication and circulation of his works, as this chapter will suggest; it is
also, however, related to the wider development of Foucault’s thought between
1975 and 1978.
Any reading of Foucault should be guided by these principles, but
subsequent questions must also be addressed: why re-read Foucault now? And
what is at stake in this venture? The answers to these questions suggest the
increasing importance of an understanding of Foucault’s reading of Bentham,
and which principles underlie it.
On the one hand, it is no longer true to say that, for the educated reader,
Bentham’s importance can be reduced to the idea of the panoptic prison. This
statement can be supported by a wealth of recent research. The growing awareness
of the structural importance of the theory of fictions and anti-utilitarianism
have put Bentham’s endeavours in the context of the birth of the modern homo
economicus. But the main reason for a reassessment is the ongoing publication
of Foucault’s lectures at the Collège de France, lectures that were given before,
during and after Discipline and Punish. If the collected texts published under
the title Dits et écrits, some of which date back to the same period, are added,
there is an impressive body of text to furnish an understanding of Foucault’s
interpretation of Bentham.
1
This chapter is based on a conference paper given at the ‘Bentham et la France’ 2006
conference at the University of Paris Ouest Nanterre. The paper was translated by Anne
Brunon-Ernst.
44 Beyond Foucault
This chapter will argue that Foucault not only saw in Bentham the inventor
of the panoptic prison, but also that he identified him as principal technologist
of modern governmentality. Foucault considered utilitarianism as the most
significant doctrine in the development of the method of political domination
that appeared at the end of the eighteenth century, which method of domination
is a forerunner of the different types of government which subsequently evolved
in Western nation-states. It is also of note that, in the late 1970s, Foucault
was among the first French thinkers to take up an issue that had been largely
forgotten since it had been raised by Elie Halévy’s reinstatement of Bentham
and his utilitarianism to a major rôle in Western political history. Seen in this
light, Foucault’s interpretation of Bentham does not downgrade the significance
of Bentham’s work to a principle in prison architecture. The significance of the
issue cannot be reduced to mere questions of proper interpretation. It also
relates to the nature of society and democracy as Bentham considered them,
and to a key point in the theories of both Foucault and Bentham – the issue of
the exercise of power.
Bentham as the Technician of Disciplines
In Discipline and Punish – and even more so in interviews and in papers –

Foucault’s aim was to portray Bentham as the most remarkable thinker of the
disciplinary society. This society, he argued, is still the one in which we live.
For him, panopticism was a groundbreaking invention. It was to politics what
the steam engine was to industrial production. This statement was made in the
1970s, in a very specific political context. It encouraged a widespread protest
against all types of physical and mental restraint, the main aim of which was to
break down the walls of prisons, hospitals, schools and factories, in a period in
which ‘cultural’ left-wing ideologies were hard at work pulling down such walls.
The panoptic idea seemed to be grafted onto complementing, contemporary
political struggles, especially anti-prison protests.
In this context, Bentham was singled out as a major author whose work
presented a graphic analysis of power. He was introduced by Foucault in Discipline
and Punish as the inventor of a technique of universal control. This Panopticon
typifies and epitomises the rationalisation of the prison system, which itself
had been born in the middle of the eighteenth century. The Panopticon is a
technique of disciplinary power based on an architectural principle. It aims at
isolating the individual from his environment to deconstruct him analytically
inside a closed institution.
From Discipline and Punish to The Birth of Biopolitics 45
In Discipline and Punish, readers were informed that Bentham was the
epitome of the age of disciplines, and that the age of disciplines extends even
into the present. Foucault turned Bentham into a symbol of what was going
wrong in late capitalist politics and culture. In a characteristic pithy summary, he
explained to students in Los Angeles in 1975 that Bentham was ‘the paranoiac
dream of our society, the paranoiac truth of our society’.2
However, Foucault’s analysis in Discipline and Punish is more subtle and
more ambiguous than the quote above might suggest. He explicitly refuses to
turn the Panopticon into the ‘dream building’3 of the perfect prison. He wishes
rather to consider it as an abstract paradigm of power relations:
… it is the diagram of a mechanism of power reduced to its ideal form; its

functioning, abstracted from any obstacle, resistance or friction, must be
represented as a pure architectural and optical system: it is in fact a figure of
political technology that may and must be detached from any specific use.4
The ambiguity is immediately identified: is the Panopticon related to the

disciplinary age or does it go beyond it?
In Discipline and Punish, Foucault marks out panopticism as that which stands
at the heart of his theory of disciplines: ‘Panopticism is the general principle of a
new “political anatomy” whose object and end are not the relations of sovereignty
but the relations of discipline.’5 Nevertheless, he continues: ‘[Bentham] also set
out to show how one may “unlock” the disciplines and get them to function
in a diffused, multiple, polyvalent way throughout the whole social body.’6 The
relationship between panopticism and disciplinary institution is neither simple
nor immediate. However, the issue is not analysed in Discipline and Punish, on
the grounds that, at that stage, Foucault’s aim was to highlight the dichotomy
between the formally egalitarian juridical framework and the dissymmetrical
disciplinary mechanisms. This dichotomy, the root of industrial and liberal
societies, is related to Marx’s analysis of bourgeois society. The disciplinary
2
M. Foucault, ‘Dialogues sur le pouvoir’, in Dits et écrits, vol. 2, p. 474.
3
M. Foucault, Surveiller et punir, p. 207, translated as Discipline and Punish: The Birth
of the Prison, trans. A. Sheridan (London: Penguin, 1991), p. 205.
4
Foucault, Surveiller et punir, p. 207, translated as Foucault, Discipline and Punish,
p. 205.
5
p. 208.
6
pp. 208–9.
46 Beyond Foucault
systems described as ‘infra law’ or ‘counter-law’ are necessary to the functioning

of the structure operated according to the rules of contract.7 Foucault explains:
[t]he contract may have been regarded as the ideal foundation of law and political
power; panopticism constituted the technique, universally widespread, of
coercion. It continued to work in depth on the juridical structures of society, in
order to make the effective mechanisms of power function in opposition to the
formal framework that it had acquired. The ‘Enlightenment’, which discovered
the liberties, also invented the disciplines.8
In short, central to the book is the opposition between the régime of punishment,
still dependent upon the system of sovereignty – even if it has been altered by
contract – and the new régime of discipline. In this respect, the Panopticon
represents the underside of the sovereign. Instead of being he who is seen, it is
the technique which sees; instead of being power incarnated, power is made
anonymous.
But with this dichotomy, according to Foucault, Bentham remains archaic.
To a certain extent, Bentham is a thinker of the past. Contrary to the thesis of
generalised panoptic ‘disciplinarisation’, Foucault goes so far as to claim that
Bentham is already lagging behind his time.9 But without pursuing the point,
Foucault quickly describes the limits of the panoptic model, and states that
there is more to Bentham than just the Panopticon. The Panopticon remains the
utopia of rationalised institutions at the beginning of the eighteenth century.
The spread of these rationalised institutions would continue, but they are no
longer the only ones. At the end of the eighteenth century, the innovation of
closed institutions had given way to the innovation of the regulatory power
of social and health management. What was new was the government of
population beyond the walls of the institution. Doubtless, this new mode of
power was not contradictory with the locking up of individuals in disciplinary
institutions. It complemented it, but could not be equated with it.
7
p. 222.
8
Ibid.
9
M. Foucault, ‘L’œil du pouvoir (interview with J.-P. Barou and M. Perrot)’, in
J. Bentham, Le Panoptique (Paris: Belfond, 1977); translated as Foucault, Dits et écrits,
vol. 2, pp. 194–207. The statement is in Foucault, Dits et écrits, vol. 2, p. 202.
I will return to this point, but for the time being, let us note that Foucault
did not allow himself to become embroiled in the ready-made option of a
unique form of power that would bear the name ‘Panopticon’. There are several
reasons for this. First, there is the political context. As so often in his career,
Foucault goes against the dominant mood of the time. The struggle against
disciplinary institutions may already be in the past, since Foucault seems
to imply that we are now emerging from the age of disciplines. At least, he
notices that the disciplines are in crisis: ‘Discipline, which was so useful to hold
power together, has lost a part of its efficiency. In industrialised countries, the
disciplines are in crisis.’10
But this does not mean that Foucault rejects panopticism as a model of
power. Panopticism is not the panoptic prison.11 It is a much more encompassing
principle than simply that of control behind closed doors. In fact, ‘Panopticon’
and ‘panopticism’ mean different things for Foucault, which makes for possible
ambiguities. First, the Panopticon is, of course, the ideal paradigm of the
perfectly well-functioning prison developed by Bentham. Secondly, at another
level, it is the abstract paradigm of a system of control applicable to all types
of institution. This idea is already present in Bentham’s works. Thirdly, it is
the representation of an anonymous, disembodied, systematic form of power,
the polymorphous utopia of power from the eighteenth century onwards,
and this meaning goes far beyond Bentham’s project per se. Foucault does
not say that all institutions are modelled on the abstract panoptic scheme.
The utopia of a deindividualised, permanent and economical form of power
has never come fully to fruition. Nonetheless, it was found in Bentham’s
Panopticon in a particularly straightforward and strikingly condensed form.
The panoptic system exhibits the growth throughout history of a type of power
that still remains in today’s societies. It is an anonymous ‘machine’, devoid of a
determinate operator, of discontinuity and of opacity.
10
M. Foucault, ‘La société disciplinaire’, in Dits et écrits, vol. 2, p. 532. [Where no
published English translation has been located, translations from French works are those of
the author.]
11
See Chapter 1, p. 40.
48 Beyond Foucault
Disciplinary Institutions and the Eye of Society
Foucault suggests that rationalised institutions constitute neither models to be

emulated nor areas of rational practice that would spread to other forms of
social interaction. He claims instead that they are a specific locus where a more
general principle of social organisation is being implemented. This is a key
point. By contrast, I argue that the range of Bentham’s ideas did not become
clear to Foucault when the latter was working on the prison system.12 Instead,
Foucault found in Bentham the answer to a question he had long been asking
himself. He grasped more clearly the significance of the Panopticon when he
was studying the institutionalisation of the medical ‘gaze’ in the hospital system,
which stood at the crossroads of his first two fields of interest: the prison and
the clinical gaze. For him, the Panopticon expands upon a much wider issue,
that of society’s relationship with the insane, the sick and the abnormal. The
type of gaze that a normalising power casts upon them transforms them into
the objects of that gaze. Simultaneously, this gaze unearths an abnormal trend
in each one of the observers, be it some kind of perversion or of pathology.
As Foucault notes, other disciplinary architectures were developed and built,
before Bentham described their purpose and potential in the Panopticon. But
Bentham was the one who established it as a general principle of inspection,
as a solution universally applicable, and transferrable to a wide range of
organisational problems in rational institutions, at a time of increasing
population.
Bentham found the formula for a rationalisation of power which could be
valid in closed institutions, but, paradoxically, he discovered that formula while
addressing a different problem, that of mutual and general control in an ‘open
space’. What came first was not the closed institution, but the gaze. It is not
the panoptic system which spread to society, it is the other way round. It is the
ideal of transparency and mutual control which is narrowed down, in exactly
the same way as the hospital emerged thanks to the increased medicalisation of
its organisation and its function. The hospital is seen as a machine to cure, in
the wider context of increasing health awareness; in the same way, the prison is
seen as a machine to punish, in the context of the increasing use of punishment
in society. The hospital and the prison existed before their organisation was
rationalised, but they were places of disorder and filth, rather than discipline,
places where moral and physical diseases were spread. What is new is that each
institution now has to fulfil its own function at a local level, in accord with more
general economic and management requirements.
Foucault, ‘L’œil du pouvoir’, p. 10; translated as Foucault, Dits et écrits, vol. 2, p. 190.
12
According to Foucault, the importance of discipline in society through

those closed institutions has not yet lost its momentum. Discipline is overcome
by logical processes that go well beyond this phenomenon. Inspection is one
among many ways in which discipline is imposed upon society, alongside others
such as the recording of data and statistics. Commentaries on Foucault aim to
show that, in contrast to the claims of Marxists, power relations do not amount
to the centralisation of the state, whose existence is not denied, but which
is considered only as part of a wider evolution. Power is not only, or mainly,
exercised from above, in a top–bottom relationship. Other, very efficient, forms
of power analyse, individualise and go very deep into the control of conduct.
Power should not be thought of as a unique form of control or influence exercised
on others, but rather as a certain distribution of strength, effective to resolve a
particular problem. Specific types of heterogeneous relationship exist, which are
merely the answers to specific organisational problems. The art of government
is to be rooted in existing institutions, while making them work according to
the parochial régimes of maximum efficiency. But what is the nature of this new
government, and by which principle or general logic does it abide?
Bentham and Biopolitical Government
The lecture series at the Collège de France, especially those delivered between
1975 and 1979, are a turning point in Foucault’s thought. A wider recognition
of this change will lead to a new reading of Bentham, and to a reassessment
of panopticism.13 Foucault suggests several times in the lectures that we are
now in a normalising régime, which is simultaneously much less stringent and
much harsher than that which Bentham described. This new régime regulates
the bodies and desires of the population, and collectively manages individual
lives; it represents the age of biopower (as Foucault called it in The Will to
Knowledge), or biopolitics (as he called it in the lectures). Biopolitics appeared
in the eighteenth century as a new mode of regulating population, specifically in
13
Between 1970 and 1984, Foucault gave 13 yearly series of lectures at the Collège
de France. In 1978 and 1979 he lectured on two fundamental issues: Security, Territory and
Population and The Birth of Biopolitic. As Guillaume Le Blanc and Jean Terrel note: ‘The
lectures give a glimpse of Foucault’s work in progress: it shifts from the disciplines to the
biopower. This shift allows us to explore the concept of normalization further; it helps to
distinguish the concepts of domination and government better; and, lastly, it redirects
Foucault’s thought towards the idea of the practices of the self ’ (G. Le Blanc, and J. Terrel,
Foucault au Collège de France: un itinéraire (Bordeaux: Presses universitaires de Bordeaux,
2003), p. 26).
50 Beyond Foucault
the field of medicine and hygiene. Bentham, however, introduced a number of

new ideas into biopolitical theories.
Foucault’s initial form of normalisation (that is, disciplinary power)
evolved into biopower or biopolitics. Contrary to the argument of Discipline
and Punish, there are not two types of domination coexisting historically
– sovereignty and discipline – but three. The third is ‘the art of government’,
also called ‘governmentality’ or ‘governmental rationality’. In his lecture on
governmentality, Foucault pointedly notes that there is no chain of succession
from sovereignty to discipline to governmentality, but rather a ‘triangular
relationship’.14
As previously explained, Foucault’s concern for social control by means of the
political management of population, whether sick or healthy, and of their sexual
desires and families is not entirely new. Moreover, it does not follow Discipline
and Punish but precedes it, as The Birth of the Clinic shows. Indeed, the ‘society
of control’ and the ‘society of discipline’ have coexisted for a very long time.
Foucault’s work abounds with instances in which concern for the management
of population coexists with the development of the disciplines in institutions.
Biopolitics and disciplines are geared towards productivity, utility and the
health of the population, which are political objectives constantly interacting
with one another.
This method of governmentality is neither one of sovereignty nor one
of discipline. It is a power which targets the population, whose main form
of knowledge is political economy, and governmentality’s motive to action
lies within the systems of security, as Foucault defines them. This array of
governmental practice, developed from the end of the seventeenth century
through the eighteenth century, provided an answer to the problems of
management and policing posed by a growing population, which in turn
facilitated increased communication, trade, urban sprawl and the division
of labour. Governmentality makes real conceptual and strategic sense for the
global principle of interest (that of the population and that of the individual).15
‘[G]overnment in this new governmental reason, is something that works with
interests’,16 and, he adds, ‘[g]overnment is only interested in interests.’17 Neither
the principle of sovereignty, centred upon the question of territory, nor the
14
M. Foucault, ‘La gouvernementalité’, in Dits et écrits, vol. 2, p. 654, translated as
‘Governmentality’, in Power, p. 219. See also Barry, Osborne and Rose (eds), Foucault and
Political Reason, p. 7.
15
Foucault, ‘La gouvernementalité’, p. 652.
16
Foucault, Naissance de la biopolitique, Cours au Collège de France, 1978–1979 (Paris:
Gallimard, 2004), p. 46, translated as The Birth of Biopolitics, p. 44.
17
Foucault, Naissance de la biopolitique, p. 47, translated as The Birth of Biopolitics, p. 45.
principle of discipline, whose application is specific, allows the management of a

great mass of population. A new formula of power based on the security–interest
couple needs to be implemented. In this new system, the pursuit of individual
interest to maintain itself and to prosper will provide the basis of a vigilant,
but frugal, government. This government ensures that individual plans can be
carried out in the appropriate conditions, by forming, guiding and orienting
interests towards objectives of collective regulation. The principle at the heart
of this mode of government requires that individuals are directed by interest
only, namely by working at the level of the motives to act, as perceived by the
individuals themselves.
One of the major lessons to be learnt from Foucault’s lecture is that a
certain form of liberalism – utilitarianism – was creative enough to build this
‘government by interests’.18 What exactly is this new governmental rationality?
Foucault does not consider utilitarianism as a philosophy, or even as an ideology.
He even leaves aside its purely theoretical dimension. He considers it as a
technology of government, or indeed as a reflection on ‘the ratio to govern and
the new economic thought it entails’19 in a society in which the real value of
things and persons is determined by the market value of exchange.
The Two Options of Liberalism
In his attempt to put utilitarianism on the map of the history of forms of power,
Foucault has to get rid of misleading truths about the liberal State. Starting
at the beginning, liberalism is defined by the relationship between power
and freedom. Liberalism is ambiguous, in that it contains two irreconcilable
conceptions of liberty. The first defines freedom as unalienable, and inherent
to the individual. The second defines it as a form of effective independence
granted by the government. These are the two major trends in liberalism as
distinguished by Foucault. They can solve the conundrum of the legitimacy of
the sovereign, and the limits of the exercise of his power.
The first definition corresponds to the axiomatic or juridico-deductive route
taken by the French revolution and by Jean-Jacques Rousseau’s approach, which,
starting from law in its classical forms, tried to define the natural, original and
imprescriptible rights that belong to every individual, and to investigate how
some rights were ceded to the sovereign. The sovereign is constituted from the
18
This idea is developed in The Birth of Biopolitics.
19
Foucault, Naissance de la biopolitique, p. 43.
52 Beyond Foucault
limitations of the rights of man.20 Ceding rights to the sovereign causes a schism
in the individual, or rather in his rights. Any theory of liberalism has to go back
to its roots in order to question the limits of the rights of sovereignty. Foucault
calls this the retroactive or retroactionary move. This first route emerged from
the seventeenth-century tradition of natural rights theory. It became quite
prestigious among French philosophers and academics, and is the most efficient
theory from a political and symbolic point of view, especially when used to
criticise totalitarian ideologies in the 1970s and 1980s.
The second ideological approach to liberalism is very different, less renowned
and more shameful, at least in the French study of philosophy. It aims at limiting
the power of the sovereign through and in the exercise of government practice
per se, and not from the perspective of imprescriptible and sacred rights. The
powers of the sovereign are limited by the effects one seeks to produce when
acting, and these limits are therefore strictly determined by utility:
Government’s limit of competence will be bounded by the utility of governmental

intervention. The question addressed to government at every moment of its
action and with regard to each of its institutions, old or new, is: Is it useful? For
what is it useful? When does it become harmful? This is not the revolutionary
question: What are my original rights and how can I assert them against any
sovereign? But it is the radical question, the question of English radicalism; the
problem of English radicalism is the problem of utility.21
In his studies on medicine, prisons and psychiatry, Foucault seems to have

neglected this dimension of utility. It permeates his lectures at the Collège de
France, acting as an integrating dimension which allows him to consider the
historical transformations described from a more general perspective. Indeed,
he reassesses utilitarian thought in a remarkable way when he writes: ‘Since
the beginning of the nineteenth century we have been living in an age in which
the problem of utility increasingly encompasses all the traditional problems
of law.’22
20
Foucault, Naissance de la biopolitique, pp. 40–41, translated as The Birth of Biopolitics,
p. 39.
21
22
Society of Security and Interest
Foucault’s interpretation of governmental reason corresponds to Bentham’s

theory of politics, which sets security as a goal, since it is the prerequisite for
individuals to carry out their business. As a consequence, a ‘society of security’
rather than a ‘society of discipline’ is built.23 The ‘subject of interest’ is the type
of man who lives in the society of security. This homo economicus, invented in
the seventeenth and eighteenth centuries, springs from an institutional and legal
framework, which allows individuals to carry on their business without fear of
external interference.
For Cesare Beccaria, Claude Adrien Helvétius and Bentham, interest acts as
the equivalent of the gravitational force in the world of physics, except that it
is exposed to influences that can cause it to deviate from its direction. The role
of government through legislation is to redirect interest in order to maintain it
on the path that leads to the common interest. ‘Like the gravitation of bodies,
a secret force compels us ever towards our well-being’, Beccaria writes, ‘[t]
his impulsion is affected only by the obstacles that laws oppose to it. All the
diverse actions of man are the effects of this interior tendency.’24 The new liberal
governmentality rests on an economy of pain and reward. As Jean-Pierre Cléro
suggests elsewhere in this volume, pains and rewards are considered as divisible
and proportionate, according to properties that Beccaria and, particularly,
Bentham tried to establish in great detail and with precise terminology.25
It is no longer a matter of controlling bodies, as in the disciplines. First, this
new liberal governmentality aims at changing or correcting the way in which
individuals calculate. Second, it seeks to legislate on the tariff of a sentence
that would be proportionate to the would-be profit of the offence. Third, the
aim is also to make deserved punishment and reward more certain in order to
discourage or promote behaviour according to the effects that they can have. The
issue of interest meets that of security precisely on this point. At the crossroads
is the calculus of probability. Here too the logic that underlies the Panopticon
as a machine of power is to be found. Through the supervision of the inspector,
the institutional gaze becomes a substitute for individual calculus, when the
individual fails to consider the cost of illegal and abnormal behaviour. The power
of the panoptic calculus originates from the power of the gaze penetrating into
the minds of inmates, thus creating a permanent link between what one does and
what one risks by thus doing. The Panopticon is a maximising machine which,
23
Gordon, ‘Governmental Rationality: An Introduction’, p. 20.
24
C. Beccaria, Des délits et des peines, quoted by Foucault, Discipline and Punish, p. 104.
25
54 Beyond Foucault
with cost-effective means, increases effect because it is based on an asymmetrical

relationship between he who watches and he who is being watched, between the
episodic, effective activity of the watcher (the inspector is hidden behind blinds
in the central tower) and the certainty of the watched that he is thus watched.
Cléro explores the issue of probability in some of Bentham’s works which do not
deal with the Panopticon.26
In the Panopticon, power becomes both a spontaneous and a permanent
practice. The government of interests itself is nothing more than an automatic
power, grounded on the individual calculus of possible gains and losses. It revolves
round the self-discipline and self-control of which the individual is both the object
and the subject. An economical government manages successfully to transfer to
the individual the cost of monitoring himself and others. In other words, the
Panopticon constitutes a ‘fabric of certainty’, because it is a model of efficient
rationalisation, and because it applies a model of calculus to certain categories of
defective calculators. The Panopticon provides subjects with the means to become
the agents of their own supervision and that of others. It also precludes them from
acting freely. It therefore belongs to the broader utilitarian device which aims at
weaving the whole of society into a fabric of security and happiness.27
Panopticism and Liberalism
The nature and scope of panopticism must now be reconsidered from the
viewpoint of the utilitarian technology of power.
The shift in Foucault’s thought highlighted here does not contradict previous
writings on panopticism. It rather challenges any over-emphasis on the panoptic
machine in the study of new modes of power. It also challenges the archaic
aspects of panoptic control, such as the negative dimension of the repressive
panoptic gaze, that is, that power can be considered only as something that
imprisons in order to prevent. To interpret the Panopticon as the ‘Eye of Power’
was in line with the centrality of the sovereign and the State. Foucault insists
that, in its different modalities, modern power aims at better regulating, with
the aim of greater production. Modern power is first and foremost a productive
technology. This new political reason acts as an incentive to produce and to seek
one’s own interest. It does so by regulating individual conduct, and indeed it
channels behaviour thanks to new social norms, which aim at achieving the well-

26
See J. Bentham, An Introduction to the Principles of Morals and Legislation, in J.H.

27
Burns, H.L.A. Hart, and F. Rosen (eds), The Collected Works of Jeremy Bentham (Oxford:
Clarendon Press, 1996), p. 11.
being of the population as a whole. In this new régime, each individual must
be placed within a field of visibility, whatever his position and his status. The
legislator is not the only one who must see in order to control, but each and
every individual must see and be seen in the most extensive manner. In this space
of ‘shared gaze’, as one can now call society, behaviour is no longer determined
by the power of clergy over the souls of parishioners, or by the exemplary
repression of the sovereign and his representatives, but by the continuous
action of all on each one of us, and of each on all. Public opinion is set up as
a permanent tribunal,28 which is expected to provide the cheapest and most
efficient regulation. Far more than Adam Smith’s ‘invisible hand’, it is Bentham’s
‘invisible chain’ of opinion which produces the normative effects of this society
of mutual control.29 Governmentality is the deliberate and careful way in which
this chain is set to work in order to form, guide, correct and modify behaviour.
It is now clear why Foucault links the Panopticon to the issue of the
government of interests. In The Birth of Biopolitics Foucault states that: ‘The
Panopticon is the very formula of a liberal government’ and argues that: ‘For
Bentham, panopticism is a general political formula which characterizes a type
of government.’ In doing so, Foucault does not state that a liberal government
is a masked and underhand form of totalitarianism; he rather wants to clarify
the theoretical status of panopticism as a subtle form of ‘self-criticism’.30 At
the heart of liberal thought is a utopian power, working almost automatically.
Panoptic architecture is a concrete representation of this form of power, that
could not stand on its own. However, what matters is utopia itself, not the
panoptic form it takes. This utopia can be found in political economy as the
theory of self-limitation, and in utilitarianism as a concern for the effects of
28
For discussions of the Public Opinion Tribunal, see Chapter 5, p. 123 and Chapter 6,
pp. 157–60.
29
C. Laval, ‘La chaîne invisible: Bentham et le néolibéralisme’, Revue d’études
benthamiennes, 1 (2006): pp. 24–43, available at: http://revue.centrebentham.fr/, accessed
15 April 2009.
30
The phrase ‘self-limitation’ is from Michel Senellart, the general editor of The Birth of
Biopolitics, in his paper ‘Course Context’, in Michel Foucault, The Birth of Biopolitics, Lectures
at the Collège de France, 1977–1978, trans. G. Bruchell, ed. M. Senellart (London: Palgrave
Macmillan, 2001), p. 327. According to Senellart, what was at issue in The Birth of Biopolitics
was Foucault’s reassessment, in his study of the Panopticon, of his understanding of Bentham.
Senellart states that Foucault realised the extent to which Bentham’s representation of total
power (‘The Eye of Power’) on the model of the omnipresence of God was outdated. At
that stage, Foucault wanted to show that liberalism is not constituted of the omniscience of
power, but of the self-limitation of government, on grounds that the effects of political action
are unknown. But Senellart does not show clearly enough that it is in Bentham’s thought that
Foucault will find the fullest expression of a new way of governing.
56 Beyond Foucault
action. Panopticism, as the utopia of total social visibility, corresponds in

liberal theory to the desire to let individuals be as free as possible to act as they
please. In the meantime, it keeps them under the eye of an anonymous power,
in order to channel their action, towards goals that will be profitable for all. This
anonymous power is always more efficient when it takes hold of, and enters the
minds of, calculating individuals. The utmost utopia is indeed the self-control
of individuals – their self-control by an exact calculation of their own interests.
Governmentality creates the link between the conduct of oneself and that of
others, which requires the construction of a series of different mechanisms that
influence conduct, such as the legislator’s direct legislation, the action of public
opinion, market incentives and the advice of deontologists.31
The Nature of Power
Regarding the connection between democracy and power, Foucault did not
draw the far-reaching conclusions he could have done. He was sometimes
criticised for failing to understand that panopticism was not always embodied
in the ‘Eye of Power’. It can also be understood as the ‘Eye of the People’, directed
at the governors. As Marie-Laure Leroy argues elsewhere in this volume, this
omission may be seen as a sign of Foucault’s neglect, even his misconception, of
Bentham’s concept of democracy seen as a ‘reversed Panopticon’.32 It is true that
Foucault did not give much thought to Bentham’s wealth of writings on political
reform, and on the constitution. This claim must nonetheless be reassessed in
the light of Foucault’s lectures at the Collège de France. When Foucault was
working on disciplines (in his lecture series on Psychiatric Power, several years
before the publication of Discipline and Punish) he emphasised the fact that
the Panopticon was the ‘democratization of the exercise of power’ inasmuch
as anyone could function as the inspector, and thereby control anybody else.
Everyone is part of the anonymous power of each over all, and of all over each.
This democratisation is one of the aspects of the shift in the very nature of
power, presented in the Panopticon, namely, an anonymous, individualised and
disincarnate power.33
For a discussion on the status of Bentham’s panoptic utopia, see Chapter 3, pp. 63–7.
31

32
33
M. Foucault, ‘Cours du 28 novembre 1973’, in Le pouvoir psychiatrique, Cours au
Collège de France, 1973–1974 (Paris: Gallimard, 2003), p. 78.
After 1973, Foucault worked to broaden his understanding of Bentham’s

thought. Yet this initiative was quickly frustrated, at least until Foucault became
interested in the nature of power, soon after the publication of Discipline and
Punish. If Bentham is the most significant writer on ‘governmental reason’ and
not only on ‘the disciplinary society’, what, then, are the relationships between
Bentham’s and Foucault’s theories of power?
Let us lay down a provocative hypothesis. Foucault grants Bentham his due
in the history of theories of power – not in Discipline and Punish, but in his
lecture series at the Collège de France. In the latter, he tries several times to
reconsider the nature of power in a way that is reminiscent of Bentham. The
connection becomes increasingly obvious towards the end of the 1970s. It is
not a mysterious connection, but until now it has not been highlighted. The
connection arises from the fact that Bentham is not only the technologist
of disciplines, but also the theorist of power. Bentham conceives power as
a form of influence on conduct, linked to political, moral and linguistic
action on interests, the circumstances and operations of which he describes.
In this sense, Bentham’s ‘power’ corresponds exactly to what Foucault terms
‘governmentality’.
Foucault not only describes this form of power, he adopts it. This point has
not been made clearly enough. Indeed, in the works written after Discipline
and Punish, Foucault comes to think of the nature of power relations starting
from the practice of governing interests, and this contrary to the judicial
conception of government, linked to the age of sovereignty. This link between
Bentham’s and Foucault’s conceptions of power goes beyond a common
nominalism which leads them to a refusal to consider power as a more or
less mysterious entity. It comes from a common endeavour to investigate
how power is exercised between individuals, and to consider power only as
immanent within this relationship.
In a seminal essay entitled The Subject and Power, power is defined as ‘a set of
actions on possible actions’ or as a ‘conduct of conduct’. Subjects are considered
as acting individuals, faced with choices and free to act differently. Thus,
government needs to calculate how to bring individuals round to what it wants
them to do. As Foucault writes, ‘to govern … is to structure the possible field of
action of others’.34 For Bentham, too, the exercise of power could be described as
a ‘calculus on a calculus’. Bentham considered power relations as the influence
that could be wielded on interest selection, and thus on the probability of
gaining the desired outcome. This is exactly what Foucault implies when he
M. Foucault, ‘Le sujet et le pouvoir’, in Dits et écrits, vol. 2, p. 1056, translated as

34
M. Foucault, ‘The Subject and Power’, in Power, vol. 3, p. 341.

58 Beyond Foucault
underlines that the exercise of power in the field of governmentality boils

down to a ‘management of possibilities’35 to achieve the desired aim. The link
between Bentham and Foucault can be further illuminated by the fact that in
both cases, power relation is not only construed as a direct act of one individual
on another, but as an indirect and diffused influence, which stems from the
imposition of a framework in which the individual can find his bearings by
using the calculus of pleasures and pains. Spontaneous action is only the
calculus of individual interest. It implies a power that bears on the formation of
that interest in different ways. An individual is all the more free to act when he
has integrated into the calculus the reward and punishment which will follow
as the consequences of acts, and the possible outcome which will be reaped
one way or the other. The problem which confronts the legislator is to ensure
that these effects do not hamper useful actions, but rather contribute to their
effectuation.36
Foucault sees in Bentham an economy of power that completes and corrects
the economy of production and exchange. He reads beyond the Panopticon
(which is only a condensed and specific model) the innovative idea of the
automatic interplay of power relations that would regulate the automatic
interplay of market forces.37 Of course, there are differences between the authors,
in terms of both the scope of the subjects studied, and divergent statements.
For example, Foucault does not take into account Bentham’s writings on the
influence of language, or on the importance of the written medium in the
shaping of individual or public action. What ensues is that Foucault, wishing
to dispense with the judicial mode of power, eventually subscribes to a theory
which is very close to Bentham’s, in which power relations are not limited to
the field of politics, but are inherent to human relations.
Ibid.
35
C. Laval, Jeremy Bentham, les artifices du capitalisme (Paris: Presses universitaires de

36
France, 2003).
37
C. Gordon, ‘Afterword’, in M. Foucault, Power/Knowledge, ed. C. Gordon (New
York: Pantheon Books, 1980).
Conclusion
It would be a mistake to think that Foucault only interpreted Bentham at a

basic level. Foucault did not limit himself to the Panopticon, nor did he only
consider Bentham as a thinker of new forms of governmental reason, but he also
recognised the innovation of Bentham’s treatment of power relations.
If one follows Foucault, Bentham, more than any other author of his time,
encapsulated the shift in the way men are governed, in the way their conduct is
changed by the formation and the shaping of their interests. Bentham may even
be a key thinker in understanding that this mode of ‘governing through interest’
triumphs over the second liberal approach, rooted in human rights, in the
Western world, even if it is devalued from a theoretical and moral point of view.
Bentham is portrayed by the ‘Foucault of the later writings’ as the theorist of
a developing age – the theorist of the concept of well-being, of the government
of interests and of the complex interplay between private and public interests.
The fields of political intervention extend far beyond the walls of the closed
institution. They have their foundation not only in the authority of laws, but
also in the power of norms. These fields exemplify the global regulation of
society under the rule of a form of political economy extended to the whole
range of problems raised by living alone or in society.
In that sense, for Foucault, Bentham is ‘the great theorist of bourgeois
power’.38 But he is not so in the sense that Rousseau would have given to the
words; in fact, quite the opposite. In Rousseau’s theory, power is exercised from
top to bottom in a legal framework; in Bentham’s philosophy, control over
individual action is exercised from social interactions, from the judgements
of individuals upon each other, and from the reciprocal gaze of others. This is
not to imply that the role of the State is neglected in Bentham’s theory. The
emphasis on mutual control is also to be found in the organisation of power
that makes the State a parochial institutional construct, abiding by the same
interest relations as other fields of social interaction. It is under that head that
the panoptic paradigm is used to control civil servants, as Guillaume Tusseau
and Leroy illustrate elsewhere in this volume.39
One needs to go beyond Discipline and Punish to grasp the importance
Bentham had for Foucault. The panoptic prison, the school and the hospital
constitute specific and shifting forms of the power relation inscribed in the
very texture of human interaction. The disciplinary institution is a re-educating
structure for criminals, perverts, children and the poor. It is a condensed version
38
M. Foucault, ‘Les mailles du pouvoir’, in Dits et écrits, vol. 2, p. 1005.
39
See Chapter 5, pp. 122–3 and Chapter 6, pp. 146–9.
60 Beyond Foucault
of a much more diffused utopia, that is to say, the utopia of a society of mutual
control. The shift is not so much from the disciplines to the whole of society.
Such a shift would belong to the old modes of sovereignty. What is new is the
requirement that visibility, specific to a society of security and interest, should
enter into closed institutions. Interests have to be educated and controlled in
order to be norm-compliant. A society that allows individuals to act according
to their interests must establish diverse means of acting upon individual conduct.
These means are far more complex and subtle than any law devised by the
sovereign. The mechanism of the ‘invisible chain’ must be adopted completely:40
this was Bentham’s ambitious utopia.
Laval, ‘La chaîne invisible’, pp. 24–43.

40
Part II
Status of the Panopticon in
Prison, Penal and
Constitutional Reform
Chapter 3
From ‘Utopia’ to ‘Programme’:
Building a Panopticon in Geneva
Emmanuelle de Champs
Because of its systematic character and the interconnectedness of all its parts,
Bentham’s philosophy can be described, as Laval has done in the last chapter,
as an ‘ambitious utopia’ of ‘social control’.1 As has been recalled, in Discipline
and Punish, Michel Foucault took Jeremy Bentham’s Panopticon as an emblem
of the disciplinary strategies of the Enlightenment period, ‘the architectural
figure of this composition’, a ‘device’ which brought together, within a perfect
self-contained system, new ideas about the disciplinary management of a
community.2 Two years later, interviewed for ‘The Eye of Power’, Foucault said
that ‘the Panopticon was at once a programme and a utopia’ and concluded,
as Brunon-Ernst has already noted: ‘Bentham describes, in the utopian form, a
general system, particular mechanisms which really exist.’3
Though it is often used in reference to the Panopticon, the term ‘utopia’
appears eventually to be misleading. It does not, in fact, take the complexity
of Foucault’s insight into account. By pointing at the same time to the present
(‘what really exists’) and to the future (a ‘programme’), Foucault’s statements
highlight the difficulty of rooting Bentham’s plans into a definite time-frame,
and invite us to question the ‘truth’ of the principles at work within them.
This chapter argues that Foucault’s insistence on the various dimensions
of the Panopticon can be of use to historians trying to grasp the status of
Bentham’s projects by inscribing them into dynamic historical processes and
agencies, instead of dismissing them as utopian or dystopian. This argument
is then illustrated by a case-study. Etienne Dumont, Bentham’s first and most
important European disciple, indeed used the Panopticon writings he had
himself translated into French as a blueprint during the debates on the building
1
See Chapter 2, p. 60 [my emphasis]. The author of this article wishes to thank
M. Quinn for his close reading and his suggestions.
2
Foucault, Discipline and Punish, p. 200.
3
See the Introduction to this volume, p. 9.
64 Beyond Foucault
of a new prison in Geneva in the 1820s, an episode that has received little
attention since Robert Roth’s seminal work.4
Utopia, Programme and the Panopticon
Foucault’s use of Bentham’s Panopticon as an archetype, ‘a paradigm of the

micro-physics of discipline that modern society imposes on its members’,5 has
been criticised by historians and Bentham scholars alike, who have pointed out
the very concrete aspects of Bentham’s enterprise and its contextual grounding
in British eighteenth- and nineteenth-century debates.6 But more generally,
Foucault’s approach does provide conceptual tools for the understanding of
how ideas relate to the contexts in which they were produced. He highlights
the continuity between utopia and programme, or between a philosopher’s
plans and political realisations. This chapter will not attempt to close the rich
and long-standing debate between Foucault and the historical profession.7 Nor
does it consider that Foucault defined one single historical method which could
be taken as a guide. Foucault’s understanding of the Panopticon must be set
in the wider framework of his reflection on historical agency. This is precisely
what French historians such as Michèle Riot-Sarcey have done8 by making use
of his insights in order to develop new analyses of nineteenth-century thinkers
commonly described as ‘utopian’.
Whether designed for the poor or for criminals, the Panopticon’s status
is difficult to determine. However complete the projects might have been
in the author’s mind, however minute the plans and the provision for each
aspect of the inmates’ lives, however balanced the provisional accounts of the
4
R. Roth, Pratiques pénitentiaires et théorie sociale. L’exemple de la prison de Genève
(1825–1862) (Geneva: Droz, 1981).
5
For this phrase, see M.E.L. Guidi, ‘“My Own Utopia”: The Economics of Bentham’s
Panopticon’, European Journal of the History of Economic Thought, 11/3 (2004): pp. 405–31,
p. 407.
6
Dinwiddy, Bentham, pp. 91–6. For an impassioned criticism of Foucault’s analysis
and his influence on modern readers of the Panopticon writings, see Semple, ‘Foucault
and Bentham: Defence of Panopticism’, pp. 105–20. More generally, for France, see J.-G.
Petit, ‘Les historiens de la prison et Michel Foucault’, Sociétés et Représentations, 3 (1996):
pp. 157–70 and M. Perrot, Les ombres de l’histoire. Crime et châtiment au XIXe siècle (Paris:
Flammarion, 2001), pp. 9–21.
7
For a recent contribution to this debate, see P. Veyne, Foucault. Sa pensée, sa personne
(Paris: Albin Michel, 2008).
8
M. Riot-Sarcey, Le réel de l’utopie. Essai sur le politique au XIXe siècle (Paris: Albin
Michel, 1989).
From ‘Utopia’ to ‘Programme’: Building a Panopticon in Geneva 65
institutions, and despite Bentham’s protracted efforts to convince politicians,

the Panopticon was destined to remain an ou-topos, a place which existed
nowhere but in the imagination of its author. Whether it was also a eu-topos,
conducive to the ‘greatest happiness of the greatest number’, to paraphrase the
second possible etymology of the term in Bentham’s words, has fuelled debates
for nearly two centuries.
Though Bentham indeed referred to his Panopticon plans as ‘Utopia’
in several instances,9 it was to insist on the fact that they had not yet been
implemented. In fact, he was always wary of the political connotations attached
to the adjective ‘utopian’, often used in political discourse to dismiss a scheme of
reform as impracticable. In the Book of Fallacies, he distinguished between the
proper and the improper use of the word: ‘As to the epithet utopian, the case in
which it is rightly applied seems to be that in which, in the event of a proposed
plan, felicitous effects are represented as about to take place, no causes adequate
to the production of such effects being to be found in it.’10 Bentham indeed
insisted on the practicability of his plans, mostly because they were grounded in
a realistic vision of human nature, one in which it was not possible to dispense
with sanctions or other coercive mechanisms. About the Panopticon, he
therefore concluded:
This is no Utopia. In Utopias, effects are represented as produced when no

adequate causes have been assigned … happiness is represented as existing
without adequate means of happiness …. Persons are represented as regulated and
subsisting in a state of regulation, without anything to regulate them. The selfish
affections are represented as in a state of uniform subordination to the social
…. In this place happiness is provided for, not by an unfounded assumption or
confident prediction, but by the care that is taken to bring together the means of
happiness and to exclude the efficient causes of unhappiness. The interest of him
on whom everything depends is identified with his duty.11
9
In the Panopticon Letters of 1787, Bentham called his plan ‘My own Utopia’,
though – it must be noted – in a highly critical passage in which he attacked Britain’s
legislation on apprenticeship (Bentham, Panopticon; or the Inspection-House, p. 49). The
word was also used a decade later in the writings on pauper management published in the
Annals of Agriculture, though again in a textual context that blurred the meaning of the word
(Bentham, Pauper Management Improved, p. 437).
10
J. Bentham, Book of Fallacies, in Works, vol. 2, p. 459.
11
University College London, Bentham MSS, UC cvii, 58. Quoted in Semple,
Bentham’s Prison, p. 305. Though this sentence originally applied to the Pauper Panopticon
– whose status is arguably different from the Prison Panopticon.
66 Beyond Foucault
Though there is indeed a tendency in Foucault to strip the Panopticon of its

reality and to insist on its abstract character, calling it ‘a generalizable model of
functioning; a way of defining power relations in terms of the everyday life of
men, … a figure of political technology that may and must be detached from
any specific use’,12 in Discipline and Punish, the Panopticon is not exclusively
an abstract device. Its status is two-fold. Beyond a ‘diagram’, that is to say ‘the
exposition of the power relations that underlie power’,13 it is a concrete historical
project, encapsulating principles which had been put forward by other thinkers
in the eighteenth century and which continued, according to Foucault, to be
truly influential in penal architecture in the first half of the nineteenth century.14
This position is further clarified in Foucault’s reply to Jacques Léonard’s review
of Discipline and Punish:
That’s why when we speak of programmes, of decisions, of sets of rules and when
the objects of analysis are the objectives they set and the conditions of their
implementation, [the fictitious historian imagined by Léonard] thinks he makes
a valid objection by saying ‘but these programmes never truly worked, they never
reached their goal’ …. As if the history of prison, which is central to my study,
was not precisely the history of something that never worked – at least when one
considers its stated objectives.15
The idea that failure is built into the reformers’ projects – whether consciously
or unconsciously – bridges the gap between utopia and programme, and allows
us to reinstate historical agency into the process. Foucault pointed out that such
plans and projects, even though they ultimately failed, should not be consigned
to the realm of utopia or romance: ‘They are fragments of reality which induce
the very specific types of effets de réel which separate right from wrong in
the way men “rule”, “govern” or “conduct” themselves and others.’16 Foucault
was indeed extremely careful to point out the complexity of the relationship
between Bentham’s plans and history. This is indeed consistent with his overall
12
13
G. Deleuze, Foucault (Paris: Editions de minuit, 2006), p. 44.
14
Foucault, Discipline and Punish, pp. 223–9. For a later statement, see ‘Eye of Power’,
pp. 147–8.
15
M. Foucault, ‘La poussière et le nuage’, in M. Perrot (ed.), L’impossible prison.
Recherches sur le système pénitentiaire au XIXe siècle. Débat avec M. Foucault (Paris: Seuil,
1980), p. 35.
16
M. Foucault, ‘Table ronde du 20 mai 1978’, in M. Perrot (ed.), L’impossible prison, p. 50.
critical approach, which tried to encompass every product of human thought

and activity within the boundaries of reality.17
Among French historians, Riot-Sarcey has pursued Foucault’s insight and
applied it specifically to question the uses of utopia in history.18 This approach is
particularly relevant, as she shows, for the study of nineteenth-century reformers,
many of whom are often referred to as ‘utopian’. Applied to the nineteenth
century, it must be recalled, ‘utopia’ carries a different meaning from that of
utopian narratives in the tradition of Thomas More’s seminal work: ‘The likes of
Fourier, Saint-Simon, Enfantin, and Cabet, who are called utopians and social
dreamers, did not write about imaginary travels and did not propose dream-like
institutions. Their visions of ideal societies were presented as the consequences
of their social theories, as scientifically-founded truths.’19 As Cyprian Blamires
has recently noted, French and Italian commentators have been readier than
their English-speaking counterparts to range Bentham among nineteenth-
century utopians.20
For Riot-Sarcey, the notion of utopia provides a perspective from which to
question traditional approaches of historical agency. In Le réel de l’utopie, she
examines how ‘utopian doctrines … gave an impetus to real individuals fully
inscribed in their time.’21As Bentham had feared, branding these schemes as
utopian served to cast them back into the realm of impossibility, and to justify
a political platform that eschewed social change.22 This line of analysis can
be fruitfully followed to study the posterity of Bentham’s thought, including
the fate of the Panopticon projects. The following case study is an attempt to
understand the role played by Bentham’s ideas in the building of a new prison in
Geneva in the 1820s.
17
On this point see J. Revel, ‘Michel Foucault’, in M. Riot-Sarcey, T. Bouchet and
A. Picon (eds), Dictionnaire des utopies (Paris: Larousse, 2007), pp. 106–8. ‘There can be no
utopia which is not at the same time the offspring of its time, no “other” place, except if we
are willing to understand that every other is above all the other of the same’ (p. 107). [Where
no published English translation has been located, translations from French works are those
of the author.]
18
Riot-Sarcey quotes Foucault, Adorno and Benjamin as inspirations for her work as a
historian, see Le réel de l’utopie, p. 9.
19
B. Baczko, Lumières de l’utopie (Paris: Payot, 1978), p. 20.
20
C. Blamires, ‘Bentham, Dumont et le Panoptique’, in E. de Champs and J.-P. Cléro
(eds), Bentham et la France. Fortune et infortunes de l’utilitarisme (Oxford: SVEC, 2009),
pp. 97–110, pp. 104–5. On the distinction between Bentham’s pragmatic view of human
nature as contrasted with Owen’s for instance, see Semple, Bentham’s Prison, p. 308 and
Guidi, pp. 425–6.
21
Riot-Sarcey, Le réel de l’utopie, p. 18.
22
Ibid., pp. 32, 131.
68 Beyond Foucault
Case Study: The Genevan Semi-Panopticon
It is only by focusing on the people who implemented Bentham’s ideas that the
programmatic dimension of the Panopticon writings can be fully understood,
and their final failure placed in perspective. Etienne Dumont was directly
involved in its conception, which fact provides us with numerous sources and
allows a clear understanding of the processes at work. It has recently been argued
that Dumont ‘never paid any attention to the entrepreneurial Bentham, who
was committed for much of the 16 years after 1786 to the erection and operation
of a panoptical establishment as the very model of economy in governance’.23
However, in the years Dumont spent supervising the building of a Panopticon
prison in his home-town, he was confronted, just like Bentham, by the question
of implementing the design in a particular historical context.
The idea of a circular architecture applied to prison design was born in
Russia in 1786, as Samuel Bentham was looking for a way to supervise a large
number of workers on shipyards. Later in the year, while still in Russia, Jeremy
adapted the design to prisons in a series of Letters to their father in London, in
response to the news that the transportation of convicts was about to resume.
The letters first circulated privately among Lord Lansdowne’s circle, and were
printed in 1791 only, with lengthy postscripts, in Dublin and then in London.
The same year, Bentham started negotiations with the British government
which were to last over ten years. Later in that eventful year, as John Bowring
suggests, Dumont proposed to have a French translation of Panopticon printed
and presented to the National Assembly, which had just revised the French penal
code. The new code required a clear topographical separation between suspects
arrested preventively and convicted criminals, which implied an ambitious
programme of prison-building.24 In November, Bentham sent several copies of
the French version produced by Dumont to Jean Philippe Garran de Coulon,
who forwarded the author’s proposals to his colleagues in the assembly.25
Dumont’s translation, entitled Le Panoptique, mémoire sur un nouveau principe
pour construire des maisons d’inspection was then printed by official order.26 As
23
See C. Blamires, The French Revolution and the Creation of Benthamism (Basingstoke:
Palgrave, 2008), pp. 12–13. For Blamires, Dumont reduced the Panopticon to an effective
design for building prisons, thereby dismissing its applications as an innovative social
engineering tool. See also, by the same author, ‘Bentham, Dumont et le Panoptique’.
24
J. Bentham, The Correspondence of Jeremy Bentham. October 1788 to December 1793,
in A.T. Milne (ed.), The Collected Works of Jeremy Bentham (London: Athlone Press, 1981),
vol. 4, p. 340.
25
J. Bentham, Memoirs and Correspondence, in Works, vol. 10, pp. 268–9.
26
Bentham, Panoptique, in E. Dumont (ed.), Œuvres (Brussels, 1829–30), vol. 1.
Catherine Pease-Watkin has noted, Dumont’s version – which is still the only
one available in French today – was not a complete translation of the original,
missing out the first Postscript almost entirely, but not diverging substantially
from the original in any other respect.27 In compiling the translation, Dumont
insisted on the philanthropic aspects of the Panopticon and on the principle of
contract management which was at the heart of Bentham’s plan. But Bentham’s
core principles were not debated in the National Assembly – which favoured
examples of concrete realisations in other countries – and Dumont’s memoir
fell into oblivion.28 Interest for prison reform remained strong among French
philanthropists in the 1790s, but their models were rather borrowed from
American experiments made popular by La Rochefoucauld-Liancourt’s account
of the prisons of Philadelphia in 1795.29 In any case, due to the demands of
revolution and war, there was to be no substantial funding for new prison
buildings until the 1820s.
In 1802, Dumont reprinted the text in the third volume of Traités de
législation civile et pénale. Though this was driven at first by a practical demand
from the Paris editor to flesh out the last volume for publication,30 Dumont
seized on the opportunity to publicise Bentham’s ideas and insisted on the use
that could be made of them in practice. Though he noted that ‘this plan seems to
be doomed’, recalling its successive abandonment by the National Assembly and
the Directoire in France, and then by the British government, he continued to
call for its implementation. He admitted to having left out most of the practical
details of Bentham’s plans in his translation, but he noted: ‘I have tried to omit
nothing of interest to statesmen, but if one comes to executing these plans, one
will have to refer to the original.’31 At that stage, Dumont had a French readership
in mind. In his preface, he mentioned the new system of solitary confinement
which the recent American prisons described by La Rochefoucauld-Liancourt
had embraced, but concluded that Bentham’s proposal was more suited to
European countries, which differed from America in respect of the force of
27
C. Pease-Watkin, ‘Bentham’s Panopticon and Dumont’s Panoptique’, Journal of
Bentham Studies, 6 (2003): n.p., available at: www.ucl.ac.uk/Bentham-Project, accessed 15
April 2009.
28
J.-G. Petit, Ces peines obscures. La prison pénale en France 1780–1875 (Paris: Fayard,
1990), p. 64.
29
F.A.F. de La Rochefoucauld-Liancourt, Des prisons de Philadelphie, par un Européen
(Paris, 1795).
30
Blamires, French Revolution, pp. 252–3.
31
E. Dumont, ‘Avant-propos’, in J. Bentham, Panoptique. Mémoire sur un nouveau
principe pour construire des maisons d’inspection, et nommément des maisons de force, ed.
E. Dumont (Nantes: Editions Birnam, 1997), p. 245.
70 Beyond Foucault
Protestant morality and the number of offenders.32 In the Traités, published

in Paris, Dumont presented Bentham’s theories as especially suitable to a large
country, and not a Protestant one. Ironically, it was in Geneva, a small state
with a strong Protestant culture and a low crime-rate, that the principles of the
Panopticon were to be taken up.
Dumont’s editions of Bentham were influential in shaping Genevan public
opinion before the decision to build a new prison was taken. When the Traités
came out in 1802, the Bibliothèque Britannique praised the three volumes, and
singled out for reproduction the mémoire on the Panopticon. The editors –
active members of the upcoming liberal bourgeoisie of Geneva33 – introduced
the essay with these words: ‘Volume 3 contains a project for a prison built upon
a completely new principle, which seems to possess every advantage and which
could not be too soon and too generally known.’34 The following year, the
Bibliothèque Britannique pointed out that it ‘deserved considerable attention
from governments’.35
Dumont was convinced that Bentham’s books could provide a blueprint
for institutional and social reform in post-revolutionary European countries,
and, once in a position of influence, he set out to apply his ideas to Genevan
politics.36 From 1815 onwards, when he was settled in his home town, Dumont
was an active member of the commission in charge of reforming the penal code.
His archives show that he kept his notes on Bentham’s principles at hand while
drafting his proposals to the commission. In the draft preface to his project, he
wrote:
The choice of the plan we have followed would be sufficient proof that we were
not guided by a preposterous feeling of innovation. We owe it to the works of an
English law-maker, Mr. Bentham, who was made known to our fellow-citizens by
an enlightened Italian law-maker as the Newton of Legislation. As the possessor
of a large part of his manuscripts, among which in particular are a large number
of essays for a Penal Code (which I propose to publish one day as a complement
Ibid., pp. 245–6.

32
On the editorial and political line of the Bibliothèque Britannique, see D. Bickerton,
33
Marc-Auguste and Charles Pictet, the Bibliothèque Britannique 1796–1815 and the
Dissemination of British Literature and Science on the Continent (Geneva: Slatkine, 1986).
34
Bibliothèque Britannique, 20 (1802): p. 306. The editors reproduced Dumont’s
chapter in full, but not his ‘avant-propos’ nor the ‘résumé’ that followed it in the original.
35
‘Préface’, in Bibliothèque Britannique, 21 (1803): p. 13.
36
From 1815, Dumont played an influential part in the local politics of Geneva,
especially in the creation of new institutions after the end of French domination.
to those I have already published), I drew from his works a share of the materials
I have presented to my colleagues.37
There is indeed a legitimising strategy at work, though appealing to Bentham’s

ideas as a guarantee against innovation sounds clearly ironical and points to the
strategic element of this reference.
However frequently he appealed to Bentham’s authority, Dumont never
concealed the fact that adjustments were necessary. In the published version of
Projet d’un code pénal, he wrote: ‘I followed M. Bentham’s plan as set out in his
Traités de législation …. I borrowed much from the manuscripts and made every
necessary change to adapt the whole to our situation and our government.’38
Dumont’s project was eventually rejected by the Conseil, and no revised penal
code was adopted in Geneva before 1874.39 This episode demonstrated the
reversal of the order of priorities set by Dumont: for him, penal reform was a
necessary preliminary of prison reform.40 Only a new penal code could define the
varieties of punishment and attach them to specific offences, these preliminary
steps being necessary before the architecture of the prison could be designed.41
Dumont wrote to Bentham in 1821: ‘Our prisons are going to be reformed
after a short work I published, which was nothing more than the development
of a chapter from the Théorie des peines (ch. 7, “Plan general”, etc.).’42 Théorie des
peines was Dumont’s rendering of Bentham’s early writings on punishment,
which predated the invention of the Panopticon.43 In 1811, when Dumont
published Théorie des peines et des récompenses, he took care to insert a chapter
on the Panopticon within the statement of Bentham’s penal theory as a whole.
Far from being originally Bentham’s work, this chapter was entirely written by
Dumont, not translated from Bentham. It appears to be the strongest statement
of Dumont’s penal theory in the 1810s. In manuscripts from the 1770s, Bentham
had proposed that prisoners be kept in different buildings according to their
37
Bibliothèque de Genève, MS Dumont, box 42, folder 1. In fact, the Italian
jurist in question had called Bentham ‘il Bacone della scientia legislativa’, see J. Bentham,
Correspondence, in Collected Works, vol. 11, p. 14.
38
E. Dumont, Projet de code pénal pour la République et Canton de Genève (Geneva,
1821), p. 111.
39
Roth, p. 113. Up until 1837, the Napoleonic criminal code remained in force.
40
On the relationship between penal and prison reforms, see Jean-Pierre Cléro, pp. 81–2.
41
Roth, p. 118.
42
Bentham, Correspondence, in Works, vol. 10, p. 297. Dumont was probably referring
to his anonymously-published Observations sur la convenance d’avoir deux établissements
distincts pour diverses classes de prisonniers (Geneva, 1820).
43
Semple, Bentham’s Prison, p. 32.
72 Beyond Foucault
status. He envisaged three grades of prison – the first, for insolvent debtors and
prisoners awaiting trial; the second for those condemned to short sentences; and
the third for hardened criminals sentenced to life.44 In the Panopticon, by contrast,
the separation between prisoners took place within the same building. In 1811,
Dumont stressed the importance of contractual management and highlighted the
ways in which the Panopticon design promised the achievement of the ends of
punishment as outlined in the 1770s: the building in itself would be a deterrent to
potential criminals, the reformation of inmates would be effected, society would
be protected and public finances would be preserved.45 In so doing, Dumont made
the Panopticon principle a consubstantial element of Bentham’s penal theory,
thereby investing the relation between the building and the penal theory with
a strong – and possibly artificial46 – continuity. Dumont’s stated source for his
contribution to Genevan debates was therefore not strictly speaking Bentham’s
writings, but his own appropriation of the philosopher’s principles.
Dumont’s claims to have merely translated Bentham’s principles into practice
must also be set against his extensive knowledge of contemporary penal debates
– his sources were not limited to Bentham’s writings, far from it. His interest in
prison reform actually predated his first meeting with Bentham. The topic was
frequently debated at the home of Lord Lansdowne, whose household Dumont
joined in 1786, two years before meeting the philosopher. Dumont’s interest was
strengthened by his friendship with the philanthropist Samuel Romilly. In the
Souvenirs sur Mirabeau, Dumont recalled a visit with Romilly to the Paris prison
of Bicêtre in the summer of 1788: ‘With Mercier, the author of Tableau de Paris
and Mallet Dupan, we visited the dreadful prisons of the Salpêtrière and Bicêtre.
I have never seen anything more awful …. The hospital was the cause of every
illness, and the prison the school of every crime.’47
44
J. Bentham, Théorie des peines et des récompenses, in Dumont (ed.), Œuvres, vol. 2,
pp. 40–42.
45
Ibid., pp. 56–61.
46
On the importance of separating Bentham’s penal thought at large from the
Panopticon device, see A.J. Draper, ‘An Introduction to Bentham’s Theory of Punishment’,
Journal of Bentham Studies, 5 (2002): n.p., available at: http://www.ucl.ac.uk/Bentham-
Project, accessed 15 April 2009.
47
E. Dumont, Souvenirs sur Mirabeau (Paris, 1832), pp. 17–18. Following this visit,
Romilly wrote a short memoir which was published under Mirabeau’s name as Observations
d’un voyageur anglois sur la Maison de force appelée Bicêtre (1788), and, in English, in The
Repository, a short-lived periodical edited by Benjamin Vaughan, Lansdowne’s friend and
agent. Like Dumont, Romilly was a strong supporter of Bentham’s Panopticon. See Romilly,
S., Memoirs of the Life of Sir Samuel Romilly, written by himself […] edited by his sons (3 vols,
London, 1840), vol. 1, pp. 97–8.
Well into the 1820s, he continued to follow closely the experiments and
reforms that were conducted in Europe and in the United States. In 1821, he
accompanied his countryman Pierre François Bellot on a visit to the prisons of
Paris, and in 1825 confided that he had ‘taken advantage of his [recent] stay
in England to take the most exact information on the penitentiary system in
use in the capital’.48 The article on ‘Penitentiary Prisons’ which he wrote for the
Bibliothèque Universelle described various penal experiments and showed that
he was well acquainted with contemporary theories.49
Dumont’s penal thought therefore deserves to be studied in its own right,
while its links with Bentham’s ideas need to be closely examined. In his 1822
report, Dumont stated the aims of imprisonment as twofold: (1) depriving the
delinquent of the power to reoffend; (2) reforming him (there is no discussion
of female offenders).50 He quoted Bentham alongside John Howard and Quaker
reformers. The principles he advocated for the moral reformation of delinquents
were shared by all the sources he acknowledged: compulsory work, the separation
of prisoners according to their crimes and inspection.51 Dumont seems to have
viewed Bentham’s Panopticon as the architectural plan best suited to these
requirements, but rather than promoting it as a radically new and self-contained
design, he used it as the vehicle for rather mainstream philanthropic ideas. This
can be seen in the ways in which Dumont agreed to have the Genevan project
depart from the philosopher’s plans: a flexibility which Bentham himself never
displayed in his dealings with the British administration.
In 1822, the Conseil Représentatif in Geneva adopted the plans of a
new penitentiary institution to be built for convicted prisoners.52 Dumont’s
credentials in penal and prison reform had been firmly established by his earlier
publications. As Roth explained, Dumont played a major part in the work of the
committee in charge of reporting on the proposal and acted as its spokesman.
He was also one of the main influences on the drafting of the proposal itself.
After a long legislative process, the bill was eventually passed in 1825 and the
prison opened the same year.53 Some features of that prison can be seen as the
concrete transposition of Bentham’s ideas, but the very substantial differences
cast light on the necessary process of accommodation and compromise at work
when ideas are used in public debate. The fate of three of Bentham’s central
48
Quoted in Roth, p. 172.
49
E. Dumont, ‘Prisons pénitentiaires’, in Bibliothèque Universelle, 22 (1823): pp. 3–17,
at pp. 12, 13.
50
Bibliothèque Universelle, 22 (1823): p. 5.
51
Ibid., pp. 8–9.
52
Ibid., pp. 7–19 and Roth, pp. 169–70.
53
Roth, pp. 151, 170–71.
74 Beyond Foucault
principles will serve to illustrate this point: the architectural design, the place
given to external visitors and the principle of management.
Often described as a ‘semi-Panopticon’, the Genevan prison in fact fell far
short of Bentham’s principles of visibility and surveillance. Fifty-four individual
cells were arranged in a semi-circle on the first floor, but without a central point
from which they could be constantly inspected. The night-cells radiated from
the centre, rather than being built on the circumference: this diverged strongly
from Bentham’s recommendations. On the ground floor, however, a workshop
was built to allow central inspection – Dumont adapted Bentham’s ingenious
system of slatted blinds which allowed the guardian to keep out of the prisoners’
sight.54 In line with Bentham, Dumont had stressed the importance of the
inspection principle during the preliminary debates. In one of his reports to
the Conseil Représentatif, he repeated that ‘ease of inspection has become an
essential condition of the new system’.55
However, the principle and the design were soon dissociated from one
another. Though no one questioned the necessity of inspection, Bentham’s plan
was considered too difficult to implement. Through Francis D’Ivernois, Genevan
reformers had sought the advice of the London Society for the Improvement of
Prison Discipline and for the Reformation of Juvenile Offenders. The society played
an active part in prison reform in Britain and abroad: its members visited prisons
throughout the UK and published annual reports, lobbied for the creation of
parliamentary committees on prison reform, conducted popular campaigns
and acted as advisors to Continental reformers. Its secretary examined the plans
drawn up in Geneva and strongly advocated a fully circular plan, based not on
Bentham’s designs but on one where the cells were built ‘in a radiating position
from the centre’.56 This is indeed the plan that was adopted, on the grounds
that it made inspection easier: Bentham’s principles were used against his own
Ibid., p. 164.
54
E. Dumont, Rapport sur le projet de loi relatif à l’établissement d’une prison pénitentiaire,
55
prononcé en Conseil Représentatif le 1er mars 1822 (Geneva, 1822), quoted in Roth, p. 165.
56
In 1819, the Society had published their architectural recommendations in
Description of a Design for a Penitentiary for six hundred juvenile offenders; as recommended
by the Society for the Improvement of Prison Discipline (London, 1819). On their influence
on contemporary French philanthropists, see C. Duprat, ‘Punir et guérir. En 1819, la prison
des philanthropes’, in M. Perrot (ed.), L’impossible prison, pp. 64–122, esp. p. 92. The SIPD
prided themselves on the quality and regularity of their contacts with Genevan reformers,
writing in 1823 that ‘[it] is highly satisfactory to state that prisons, in conformity with plans
recommended by this Committee, are now building in several of the cantons of Switzerland.
An intelligent architect [Vaucher] has recently been sent to this kingdom by the council of
state at Geneva, expressly for the purpose of conferring with the Committee, in order to
obtain the best information on the subject of prison construction.’ (The Fifth Report of the
design, while his neologisms were used to describe something quite different.
In a report to the Conseil d’Etat in 1822, D’Ivernois wrote of the radiating plan
that ‘it is, in reality, a kind of panopticon, completed by the aid of forms less
agreeable to the eye than the circular form’.57 Lack of space for the building, but
also its restricted size58 led to the abandonment of the fully circular plan and to
the adoption of the semi-circle. As the debates progressed, Dumont seems to
have abandoned the central inspection principle: he called for a qualification of
the panoptic principle in the building of the new prison, asking the legislators
not to ‘be blinded by the idea … of a good panopticon prison that may be out of
proportion with our needs and our means’.59 This was no doubt due to financial
constraints, but possibly also to the objections that had been raised against
constant inspection, notably in France, where it had been received with some
scepticism: an official report mentioned, for instance, that ‘inspection may be
rendered easier, but it is also, for the inmate, made more difficult to bear, more
troublesome, more shameful: not for one minute can he escape this tiresome
constraint, he must get used to a continuous system of hypocrisy or worry.’60
In Bentham’s Panopticon, galleries were provided to allow external visitors
into the building, and their presence was also encouraged during religious services.
Opening the prison widely to the outside world was a necessary condition to have
public opinion bear on the guardians’ conduct. This posed a problem to Dumont
and to the members of the committee: how could safety be ensured? Having
jettisoned the principle of an exact Panopticon built on Bentham’s circular plan,
Dumont could not find a way of admitting the public safely. He wrote:
One should be able to admit the public within the prison, but that would lead to
major inconveniences. One could do so in a building designed for the purpose,
a circular building in which the cells would be distributed like the boxes in a
theatre, on the circumference, and at the centre of which there would be lodgings
for the inspector, from which he could look round and immediately see what was
Committee of the Society for the Improvement of Prison Discipline, &c. (London, 1823), p. 69).
See also Roth, pp. 152–3.
57
The Fourth Report of the Committee of the Society for the Improvement of Prison
Discipline, &c. (London, 1822), p. 97.
58
Originally there was only a small number of prisoners to be accommodated in the
canton of Geneva, though that number increased considerably in the course of the nineteenth
century.
59
E. Dumont, Des prisons ou Observations sur le projet d’établissement d’une maison de
force pénitentiaire indépendante de la prison de l’Evêché, par un citoyen de Genève (Geneva,
1822), p. 14, quoted in Roth, p. 167.
60
Société Royale des Prisons, Rapports de 1819 quoted in Duprat, pp. 97–8.
76 Beyond Foucault
happening, and where he could receive spectators …. Alas, the plan of our prisons
deprives us almost entirely of that salutary means of publicity.61
The solution moved one step further away from Bentham’s designs when it was
decided to allow charitable members of society inside as ‘honorary visitors’ on a
regular basis. This compromise reveals the triumph of the model Bentham had
explicitly rejected: the influence of charitable societies on prison management.
Prison-visiting was one of the leading principles of British charitable societies and
it had been promoted by the editors of the Bibliothèque Universelle.62 In Geneva,
the 1825 law allowed access to visitors (who were indeed quite numerous) and
set the number of accredited observers at 12. In practice, as Roth has recalled,63
there were few volunteers. Their status, as representatives of the public at large,
or as inspectors mandated by the legislature, was difficult to ascertain. By being
mandated by the Conseil and reporting to its members, the visitors were closer
to official inspectors than to representatives of public opinion such as those who
were essential to ensure democratic control in Bentham’s plan.
The question of the management of the prison was a key-point in the
Panopticon. For Bentham, the best security for the perfection and the
sustainability of the design was to be found in the acceptance by the director
of a mode of management that made him directly responsible in case of failure.
The importance Dumont ascribed to that principle can be illustrated by the
emphasis he put on it in his version of the Panoptique.64
In Bentham’s system, the director of the Panopticon was appointed by the
government, and ultimately responsible, but he was left free to act in his own
interest – provided it was not detrimental to the welfare of the inmates. To
Dumont’s contemporaries on the continent, this system was not unfamiliar. In
France, for instance, most of the prisons built in the course of the nineteenth
century were managed by private companies, which were given a daily allowance
for each prisoner by the state, and were in return allowed to keep the profits
from the inmates’ work.65 As Roth has shown, in Geneva the structures adopted
in 1825 did not follow these principles, but earlier administrative practices. The
first director chosen by the Conseil d’Etat was a civil servant: a former police
superintendent who had also been the director of the old Evêché prison.66 At
first, Bentham’s principle of pecuniary responsibility was applied (it had indeed
61
Bibliothèque de Geneva, MS Dumont 43, f. 3–4, quoted in Roth, p. 163.
62
Bibliothèque Universelle, 8 (1818): pp. 384–5. See Roth, p. 217.
63
Roth, pp. 219–21.
64
Bentham, Panoptique, in E. Dumont (ed.), pp. 252–5 and 263–4.
65
Petit, Ces peines obscures, p. 323.
66
See Roth, pp. 187–9.
been introduced in the old prison as early as 1815): the director was required to
have a substantial personal income to ensure that he would be able to draw on
his own finances should the subsidy provided by the government for the daily
running of the prison prove insufficient. In return, he would keep the eventual
profits. As early as 1826, the director asked the Conseil d’Etat for an increase in
the subsidies and, in keeping with the principles set in 1815, the answer stated
that he was personally responsible. The director replied in a letter:
Your Highnesses’ reply would have me believe that you see me as an entrepreneur
exposed to the chances of commerce, who could by that venture make a
considerable profit, and who could not therefore claim anything in case of losses
…. I am not an entrepreneur, I am not a seller, I am a servant of the government.67
This ethos was in direct contradiction to Bentham’s principles, but was quickly
adopted by the Conseil d’Etat itself, as Roth has shown, which led to a growing
direct control by the Conseil d’Etat over the management of the prison.
Bentham’s name clearly had a lot of clout in anglophile liberal Geneva.
However, his principles were not directly implemented, but served, among others,
as a pool of ideas for legislators. Dumont himself was aware of the necessity of
mediating between various constraints. In many ways, Bentham’s Panopticon
remained for him an ideal towards which the Genevan prison had to tend, rather
than a programme. Dumont’s willingness to compromise with historical and
political circumstances set him apart from Bentham, who never accepted the
adaptation of some of his core principles of architecture and management.
Dumont died in 1829, just four years after the prison opened. Roth’s study
goes beyond the application of principles in the early plans of the prison and
follows their implementation until it was pulled down in 1862.68 One cannot
but be struck by the rapidity with which the original principles were abandoned
in practice, and by the growing harshness of the regime imposed on the prisoners,
the philanthropic ideas that had presided over its creation being branded as too
lax by the administrators.69 In the light of Foucault’s analysis, this epilogue is
clearly paradoxical: Bentham’s Panopticon was not to be remembered as a model
of disciplinary control, but as an inadequate means of achieving security. Was
the eventual failure that of the Panoptical model in prison-design? Or that of
Dumont’s adjustments and compromises? Or, to take up Foucault’s hypothesis,
that of all prison-designs as such?
67
Aubanel to the Conseil d’Etat, July 31, 1826, quoted in Roth, p. 188.
68
Ibid., pp. 174–80.
69
Ibid., p. 174.
78 Beyond Foucault
Conclusion
The failure of the Panopticon, first in Britain and then in Geneva – where the
original principles were soon diluted and forgotten – inscribes it within the
long history of penal reform which can be nothing, according to Foucault, but
a history of ‘failure’, or rather of constant adjustments. Bentham’s thought was
undoubtedly influential in shaping the choices made by nineteenth-century
reformers. It never constituted – even in Dumont’s case – a programme to
be strictly followed, but rather one source (among others) of inspiration and
political legitimacy in a specific historical context. A similar point could be,
and has been, made, for the way in which reformers like Howard and Bentham
shaped penal policy in Britain and France.70 Far from driving readers away from
enquiring into the reality of Bentham’s prison, Foucault’s writings constantly
prompt them to question its status and its relationship with historical practices
and discourses.
Bentham designed a prison which was at the same time a matrix and an
emblem. Foucault’s writings also help us to understand the way in which these
dimensions are interwoven. In a lecture that predated Discipline and Punish,
and even the beginning of Foucault’s research into the genealogy of prisons, he
proposed the neologism ‘heterotopias’ in order to describe ‘real places – places
that do exist and that are formed in the very founding of society – which are
something like counter-sites, a kind of effectively enacted utopia in which
the real sites, all the other real sites that can be found within the culture, are
simultaneously represented, contested, and inverted’.71 Prisons and cemeteries
were recurring examples of such ‘other places’, spaces set apart from the
mainstream representations of society, but whose nature and boundary were
constantly being redefined under its pressure. Though Foucault made no use of
this concept in his major work on prisons, one could argue that it pervaded his
understanding of the prison as ‘utopia’. The move from ‘utopia’ to ‘heterotopia’
allows us to take local and historical context into account, and to study the
constant interplay between mainstream and ‘other’ spaces, or between the city
and the prison, while acknowledging the set of phantasmagorical representations
surrounding them. In that respect, the prison of Geneva, built right outside the
fortified walls of the city at Tour-Maîtresse, can be studied as a ‘heterotopia’
rooted in the liberal Genevan society of the 1820s. The part played by Bentham’s
ideas in shaping this space must now be weighed with caution.
This is summed up in Petit, ‘Les historiens de la prison et M. Foucault’, p. 166.

70
M. Foucault, ‘Of Other Spaces’, Diacritics, 16/1 (1986): pp. 22–7, p. 24.
71
Chapter 4
Penal Theory without the Panopticon1
Jean-Pierre Cléro
The clashing of truths useful to many weak people against the mass of mistakes useful
to a small number of powerful men and the actual stirring of passions are infinitely
harmful to poor mankind.2
[Beccaria’s] delicacy is that of a noble and generous soul, but the object of human
morality, which is based on the laws, is public order, and the loyalty that villains show
one another, which allows them to disturb that order and more safely break the laws,
cannot be admitted as one of its virtues.3
In 1977, during an informal but rather merciless conversation between Michel

Foucault and a group of psychoanalysts, J.A. Miller asked a question, the import
of which addresses the theme of this chapter. ‘In a confession procedure, the
subject is supposed to know the truth. Isn’t it a radical change to suppose that the
subject doesn’t know it?’4 Within a few decades, the legal system changed from
a system of avowal, in which what was at issue was the discovery of the truth, to
a system of probability, that no longer required the discovery of the truth and
could properly function without knowledge of it. Foucault, whose work was a
long reflection on the notion of truth, had himself enquired whether truth was
not ‘the most general political problem’;5 he could not but feel concerned by
that question, which was at the core of his study of the system of crime and
1
This chapter was translated by Soléne Sémichon.
2
C. Beccaria, Traité des délits et des peines par Beccaria, traduit de l’italien par
André Morellet: nouvelle édition corrigée; précédée d’une Correspondance de l’Auteur avec le
Traducteur; accompagnée de notes de Diderot, et suivie d’une Théorie des Lois Pénales, par
Jérémie Bentham, traduite de l’anglais par Saint-Aubin, A. Morellet (trans.) (Paris, an V
[1797]), p. 108. [Where no published English translation has been located, translations from
French works are those of the author.]
3
Ibid., p. 68. Note by Diderot on Des délits et des peines.
4
5
He went even deeper when he declared: ‘How could the way of sharing what is true
and what is false and the way of governing oneself and others be linked together?’ (Ibid.,
vol. 2, p. 849). See also ibid., vol. 2, p. 848.
80 Beyond Foucault
punishment. There is, however, something curious here, the consequences of

which will be studied in this chapter.
Foucault referred to Cesare Beccaria, Jacques Pierre Brissot de Warville and
Jeremy Bentham, the authors one would expect to find cited in any discussion
of the issue. I will not discuss Beccaria; Brissot will be of interest, but not by
virtue of his texts on punishment. What is most surprising, though, is Foucault’s
reading of Bentham’s work. The publication of the two long volumes of Dits et
écrits makes it increasingly clear that Foucault’s appreciation of Bentham’s work
goes far beyond the Panopticon and its application beyond prisons to schools,
hospitals and factories, as was Bentham’s intention. Foucault suspected that
the scope of the utilitarian’s work was more generally significant.6 He said so in
words that have become famous, as he considered Bentham more important than
Immanuel Kant or Georg Wilhelm Friedrich Hegel,7 and pronounced him the
founding father of modern liberalism, or, to put it differently, the discoverer of
the unavoidable opposite of the apparent freedom of today’s societies.8 Bentham’s
thought increasingly influenced Foucault’s work, as the latter began to understand
more and more clearly that political and social power consist less in a vertical
system of sovereignty than in an indefinite horizontality of a system of control and
surveillance. Nevertheless, and somewhat intriguingly, this reading of Bentham
was tightly tied from beginning to end to the Panopticon, which Foucault
examined (in Surveiller et punir) before he made it the symbol of today’s societies.9
Foucault did not make use of other Bentham texts, nor did he broaden the scope of
a utilitarian culture, but rather expanded the symbol of the Panopticon.
Foucault explained that it was of little importance whether or not the
Panopticon existed as a real building, somewhere in the United States, France
or England. Its reality was elsewhere, in people’s minds, in the constitution of a
Newtonian universe that contained no secret place or hidden recess, a universe
in which everything might, by law, be observed, even the inspector’s central
observation tower, in an indefinite surveillance that was at the same time
6
For a discussion on how Foucault read Bentham, see Chapter 2, pp. 43–60.
7
8
Ibid., vol. 1, p. 466.
9
‘Panopticism is one of the characteristic traits of our society. It’s a type of power that
is applied to individuals in the form of continuous individual supervision, in the form of
control, punishment, and compensation, and in the form of correction, that is the molding and
transformation of individuals in terms of certain norms. This threefold aspect of panopticism
– supervision, control, correction – seems to be a fundamental and characteristic dimension
of the power relations that exist in our society. In a society like feudal society, one does not
find anything similar to panopticism. …. Today we live in a society programmed by basically
Bentham, a panoptic society, a society where panopticism reigns’ (Foucault, Dits et écrits, vol.
1, p. 1474, translated as ‘Truth and Juridical Forms’, p. 70).
Penal Theory without the Panopticon 81
fantastical and exceptionally efficient. Becoming initiated in Bentham’s theory of

fictions, Foucault was aware that reality was composed of symbolic and imaginary
constructions.10
Such an expansion lacked neither brilliance nor pertinence. Nevertheless, it
provokes questions in several areas. Foucault’s analysis of the Panopticon – of
its reality, and its imaginary and symbolical dimensions – was so subtle that it
managed to penetrate Benthamism far beyond the single Bentham text that
Foucault appeared to have read. For example, Foucault’s reflection led him to
believe that Bentham used probabilities, in a way which no longer had anything
to do with the search for some hidden truth to be extracted from the culprit.
He showed that the aim of a society of surveillance was not to link the crime
and the criminal to some event that belonged in the past – of which, all things
considered, nothing was or could be known – but rather to prevent such excesses
from occurring again in the future.11 The object of examination and punishment
had thus been deeply modified, and Foucault clearly saw the link that existed
between that object and the object of probabilities that Bentham considered. But
there still remains a question: why did Foucault seem only to take into account
the texts on the Panopticon, as if Bentham had written nothing else on crime and
punishment? Foucault does not say a single word about the Rationale of Judicial
Evidence; he does not seem to have read it, nor even to have leafed through it.
Whether Foucault knew or did not know that the text existed – but how could
he not? – he apparently supposed that it could teach him nothing that could not
be found in the Panopticon writings. This approach is surprising, and ironically
reminiscent of Georges Cuvier, who, as everybody knows, boasted of his ability
to reconstruct a whole animal from a single bone of its skeleton. It may perhaps
not be impossible to reconstruct a whole work from a single fragment; but
unfortunately, unlike objects of study in palaeontology or prehistory, the texts
still exist and may be read from beginning to end. The idea of the expansion of
the Panopticon into a symbol of the liberal society which has existed for the last
200 years, up until the last quarter of the twentieth century and perhaps beyond,
may be brilliant, but it is perhaps surprising that this was achieved through a
reconstruction from the Panopticon texts, although other texts existed to which
reference could have been made. If the Rationale of Judicial Evidence had been
read a disturbing fact would have emerged: it never mentions the Panopticon. If
panopticism were indeed the very essence of Bentham’s thesis, it should be widely
present in a text entirely dedicated to the question of judicial evidence. It may be
objected that it would not be on Bentham’s agenda to speak of the Panopticon
10
11
Ibid., vol. 1, p. 1461.
82 Beyond Foucault
in a book on the subject of proof, a text whose purpose was to show if and how
a defendant becomes guilty; that a main principle of justice is, for any person, to
be considered innocent until judged; and so, it could not be expected that a work
on the rationale of proof should refer to the Panopticon. But, if the Panopticon
does not find its limits inside the jails’ walls in a society of surveillance, it might
be inevitable that manifestations of it occur everywhere, specifically in the crucial
topic of establishing proof. Now, to my knowledge, Bentham does not speak of
that at all.
Another explanation might be that Bentham could have carefully concealed
the Panopticon in the Rationale, but Foucault does not appear to have explored
this possibility. Such occasional examples of Foucault’s evident inattention12 pose
two problems: is it well-founded for the Rationale to be read in the light of the
Panopticon and is the Panopticon to be interpreted as Foucault suggested it
should be? On the other hand, should the importance given by Foucault to the
few pages of the Panopticon writings be reduced, considering that the work was,
after all, rather a minor one among all that Bentham wrote on the subjects of
crime and punishment?
What is most disconcerting is that the Rationale’s extensive study of what
would henceforth in law be called proof, which no longer required that truth
be known to individuals or God, was not at odds with Foucault’s fundamental
thesis. It is not impossible that a society of surveillance could be enough in a
system in which evidence is only required to be probable, and that truth is no
longer required in such a society, unless it reverts to barbarity. This interpretation,
however, reduces the Rationale to a requisite of a particularly subtle theory of
surveillance. Foucault, it is true, taught us not to underestimate the refinement
of bourgeois procedures to ensure safety. That may be the case, but are the
refinements of the theory of the probable in the Rationale really the obligatory
premises of the ideology and practice of surveillance? Those politicians who
advocate and implement it scarcely demonstrate that they have acquired a deep
knowledge of this refined theory of evidence.
While those in power may be astute in justifying their ideology of security, we
must look at the Rationale’s subtlety and ask honestly whether its only prospect,
or even only the best chosen of its prospects, was to provide the weapons for a
security value and policy, although the importance it had for Bentham must not
be underestimated. Utilitarianism taught us that no value could be dissociated
from a complex network. Then why, if complexity comes first, would security
and surveillance inevitably prevail over all other values? Is it not quite simplistic
12
Did he not confess to J.-A. Miller that he had not read all the work of Freud and
that, even after writing La Volonté de savoir, he could not entirely remember that work?
(Ibid., vol. 1, p. 323).
to consider that the refinements of a theory are the reverse side of a rather
unsubtle and basic ideal? Though there is no simplification, the point remains
to be explained. In other words, why should the texts of the Rationale, which
show such rare subtlety and so precious a probabilistic sensitivity, be examined
from the point of view of the Panopticon, which is narrow and tight and even
ultimately rather arbitrarily chosen?13 Though it is not impossible to attune
those texts to the point of view of the Panopticon, it must be remarked, against
Foucault, and even against Bentham, who, after all, may have wished it to be
read according to the pre-eminence of security, that it is possible to adopt other
perspectives on, and emerging from, the Rationale. Foucault’s thesis would not
necessarily be invalidated, since sciences and the other legal and institutional
activities may well have developed on that disciplinary and security ground, but
they cannot be reduced to that sinister growth, and their development seems
to be radically independent of it. Among Bentham’s works, the Rationale,
which was published at the end of his life,14 would be the sign of an apparent
emancipation from the very roots that gave it birth, and would take a sufficiently
striking form for any mention of its panoptical origins to be useless.
A Crucial Book for Our Argument
At the beginning of the nineteenth century, there was a turning point that not
only divided authors, relegating the Enlightenment philosophers to the past
(although they do seem to have contributed to the progress of criminal law) but
which also appeared at the core of some works, among which Bentham’s may be
the most typical. Bentham is known, for better or for worse, as the theoretical
and practical promoter of the Panopticon, which could quite easily be considered
as the summary of eighteenth-century penal law. He is less well known as
the author of five thick volumes, published in 1827 and entitled Rationale of
Judicial Evidence,15 that are as fascinating and sharp as his works on the new
prison, although they do not mention it. Within a few decades, the regime of
qualification of violent acts and punishments, which was essentially based on
the will to discover the truth of facts, the real culprit, and the punishment that
13
Although the view of Panopticon is enlarged into Panopticism.
14
However, most of the published text was written in 1809–12.
15
What is certain at least is that this work was not read much at the Bibliothèque
Nationale, since, some ten years ago, the present writer had to have the pages cut before he
could read it. It is surprising that reflection on criminal justice could develop in abundance
around Foucault’s works without anyone thinking of reading the few thousand pages of that
fundamental book.
84 Beyond Foucault
corresponded to them, changed into a regime that was quite different, in that
a correctly-determined probability was considered to be enough. Probability
is not truth, even though there is truth in its calculus. Its integration into the
evidence progressively led to a change in the strategy adopted in trials, and even
to a very different conception of justice.
One surprising book was published in 1797, in that crucial period of change,
which seems particularly to represent the problems under discussion, since it
contains the works of the authors that best represent the change we are looking
at. It is Morellet’s French translation of Beccaria’s Dei delitti e delle pene, written
in 1764.16 In accordance with the idea that truth was more important than the
author, Morellet, who was an encyclopaedist, took the liberty of reorganising
the text.17 However Morellet informed Beccaria of the changes, and the latter
agreed to them entirely, as is apparent from the letters he wrote to Morellet,
which are published at the beginning of the translation. This exchange of
letters is of the utmost importance for the information it gives us about the
way Beccaria regarded his own work, that is, as a continuation of a philosophy
of the Enlightenment applied to criminal questions. Beccaria claimed to be
heir to Charles de Montesquieu, Claude Adrien Helvétius and Georges-Louis
Buffon, and an admirer of the ‘profound metaphysics of Hume’ as well as of
Jean Rond d’Alembert’s geometry. He developed such a keen interest in the
calculus of probabilities made in his time that he even translated the Analyse
des jeux de hasard by Pierre Remond de Montmort, who was probably among
the mathematicians who inspired David Hume’s philosophy of probabilities.
Morellet’s translation was annotated at crucial points by Denis Diderot himself,
who expressed his reserve about some of Beccaria’s assertions. Dumont later
remarked that Diderot’s marginal notes were close to criticisms which Bentham
could have made against the author of Des délits et des peines. Beccaria’s book was
published not only with all the alterations made by the translator and approved
by the author, but also with a critical apparatus which would probably not have
obtained the same validation, as Diderot’s observations inexorably pointed out
the weaker parts of its argument, and sometimes indicated his disagreement
with the author. Pierre Louis Roederer, who published the book, added a text
C. Beccaria, A. Morellet (trans.).

16
This does not mean that the original was badly written. On the contrary, as in the
17
case of any major work by leading writers, it is the reader’s right, if not his duty, to correct
what he reads in order to make it as perfect as possible. Diderot corrected the book, using
notes, with the same idea of contributing to a sort of human heritage, in the same way that it
is possible for several gathered together to modify the law. ‘One should have said’, ‘the author
should have said’ …, ‘he meant’ – such is the style of a certain number of Diderot’s remarks
(see Beccaria, Morellet (trans.), pp. 46, 47, 48).
by Bentham, the outline of a book on criminal law,18 some passages of which

were already finely detailed, while the development of others seemed to have
been postponed.19 What is most surprising is that in this text, which was written
soon after Bentham read Beccaria’s work, the major ideas that were developed 30
years later in the Rationale were already present. They are much more important
than the crystallisation around the famous Panopticon, which was mentioned
neither in Roederer’s edition nor in the five volumes of 1827.
It is in this context that we must examine two important reorientations that
occurred in penal law in the second part of the eighteenth century. Bentham’s
18
Théorie des peines criminelles par Jérémie Bentham, in Traité des délits et des peines par
Beccaria; nouvelle édition corrigée, précédée d’une correspondance de l’auteur sur la traduction;
accompagnée des notes de Diderot; et suivie d’une théorie des lois pénales, par Jérémie Bentham,
trad. Saint-Aubin (Paris, 1797), pp. 185–227. Roederer presented that work as Tables:
‘Jeremy Bentham’s tables, that we have hereafter printed, are the precious outline of a great
work. Here they are well situated, as they were apparently written shortly after the Traité
des délits. This outline, originally written in English and distributed in tables, has not even
been printed in England’ (Beccaria, Morellet (trans.), p. vi). They remained, if Roederer is
to be believed, unpublished some 30 years after they were written. The strange relationship
between Bentham’s work and its publication is once more noticeable. This text was first
published in French as a translation or adaptation of an English version which had been
written many years before.
19
The text ‘translated’ by Saint-Aubin from English into French was published in
1797. Thus it was necessary that Saint-Aubin had perused the manuscripts of Bentham to
which Dumont makes allusion in his own version of the Théorie des peines et des récompenses,
published in 1811 at London, the writing of which he traces back to 1775. It is perfectly
clear that the texts arranged by Saint-Aubin in Roederer’s edition find some echo in the
book which Dumont was to write in Bentham’s name, and in its translation into English
(Bentham, Works, vol. 1) and in other fragments (the Rationale of Judicial Evidence,
for example). We do not know whether there was any contact between Saint-Aubin and
Dumont; Dumont does not say anything about Saint-Aubin in the foreword to Théorie des
peines et des récompenses (Vogel and Schulze, 1811) and he certainly could not have drawn
inspiration from Saint-Aubin’s work, which would not have been of much help to him. In
any case, the text presented under the title Théorie des peines criminelles de Jérémie Bentham
gives the (fictitious) impression of having been drawn from a composite made up of two
sources: the Introduction to the Principles of Morals and Legislation (which he could have
been familiar with) on the one hand, and on the other, that which became the Principles
of Penal Law. If we disregard the fact that Dumont’s book and the translation of it were
published some 14 years after Théorie des peines criminelles de Jérémie Bentham, we would
get the impression that Saint-Aubin mingled texts from these two sources, reclassifying them
and, more often, putting chapter titles in place, without further explanation. Although this is
not the place to explore it, it is certain that one could correlate every chapter and chapter title
from Saint-Aubin’s version with chapters of Bentham and of Dumont from the two works
aforementioned, and from others such as the Rationale of Judicial Evidence.
86 Beyond Foucault
change of direction presupposed that of Beccaria, and generally maintained

his achievements, though some of the greatest achievements of Des délits et des
peines were abandoned. Bentham undoubtedly thought that Beccaria was one of
the major contributors to utilitarianism, but he nonetheless adopted different
ideas on decisive points. Times had changed: more than half a century separated
Des délits et des peines from the Rationale, at a period when historical change
had begun to accelerate. Several of Beccaria’s positions had become so obvious,
especially those on the alleviation of punishment, that Bentham did not even try
to show his approval of them. Nor did he highlight any divergences of opinion,
considerable though they sometimes were. The truth is that, separated by half a
century, it only appears as though Bentham and Beccaria were trying to solve the
same problems. I will now examine what it was that led Bentham to conclusions
so fundamentally different from those of Beccaria.
Tacit Correspondences with Beccaria’s Thought
Bentham was in accord with Beccaria’s ideas most of the time, but without
acknowledging them overtly. Bentham considered a certain number of Beccaria’s
positions to be granted, and did nothing more than reword them.
1. The first and most important principle was, without any possible doubt,
that of the assessment of the crime and of the proportionality that existed
between punishments, as well as between the punishment and the crime
it was supposed to sanction. Such assessment and proportionality were
based on social noxiousness and utility. An offence may seem serious
to some, if not to the majority of people, without in fact being socially
noxious in any way. Such is the case of blasphemy and of homosexuality,
which were severely and even cruelly punished up to the end of the
eighteenth century as being absolutely intolerable, though indeed they
did very little to damage the public good. What must be the starting
point for the assessment of a crime is its real noxiousness, and not the
imaginary one it nonetheless inevitably causes. Punishments must be
adjusted to real noxiousness. This does not mean, however, that the
necessity of appeasing people’s anxieties, be they only imaginary, is not to
be taken into consideration.20
Establishing that double principle implied putting into practice the
principle of happiness, which, for a sustained period, and not without
With the risk of conforming to the ‘securitarian’ ideology of ‘dangerosity’.

20
qualification,21 Bentham called the principle of utility. Bentham praised

Beccaria for being one of the first to talk of ‘the greatest happiness for
the greatest number of people’22 and to make that principle effective in
his consideration of criminal law. It could not be effective for the matter
at hand without first determining a commensurability between crimes,
between punishments, and between crimes and punishments.23 It is clear
that commensurability makes the exchange of crimes and punishments
seem a sort of market in which each has its own price:
[The] value [that is being exchanged] is expressed in terms of money, as it

is presented as equal to a given sum of money, that is as equalling a given
quantity of pleasure that could be obtained for such a sum of money, or as
equalling a given quantity of punishment a man would like to exchange for
such a sum of money.24 It is possible to divide money into countable parts,
which is not the case of punishment and pleasure in themselves.25
The principle of the commensurability of punishments inevitably led

Bentham’s utilitarianism to the almost exclusive promotion of prison,
where imprisonment can be divided into as many time units as needed,
and perhaps even led it to substitutive punishments, which aim at
indemnifying the victims.26 Such considerations, which are very easy to
21
Because of the ambiguities he caused in so doing.
22
He sometimes did so, vacillating between Beccaria and Priestley. His main article
on utilitarianism quoted Priestley, while Beccaria could have been quoted. See J. Bentham
‘Article on Utilitarianism: Long Version, Marginals’, in Deontology, Together with A Table
of the Springs of Action and Article on Utilitarianism, in A. Goldworth (ed.), The Collected
Works of Jeremy Bentham (Oxford: Clarendon Press, 1983), p. 291. See the same hesitation
in J. Bentham, Memoirs and Correspondence, in Works, vol. 10, p. 146; on the other hand,
Bentham was positive in Logical Arrangements, in which he preferred Beccaria: see Bentham,
Works, vol. 3, pp. 286–7.
23
The different aspects of commensurability are dealt with in chapter XIV in Book
II of what was entitled Bentham’s Théorie des peines criminelles which followed Morellet’s
translation (see Beccaria, Morellet (trans.), pp. 209–10).
24
It is to be noted that the structure of crime and of its atonement is that of the calculus
of partition. Both sides want to know what would be the price to be paid were the game to be
stopped before its end.
25
Beccaria, Morellet (trans.), p. 189.
26
On this point, we may follow Foucault, who considers the rise of the prison system
as linked to the French Ancien Régime practice of ‘lettres de cachet’. However, my statement
could be construed as an a posteriori justification, because the promotion of the prison did
not directly come from utility.
88 Beyond Foucault
understand in abstracto and which, when couched on paper, seem fair,

are less obviously so in reality.27 This is not, however, what I want to
examine now.
Two remarks must be added to conclude my presentation of the
first principle. First, it is to be noted that such a principle encapsulates
the complete inversion of the hierarchy of crime and punishment. It
is approximately equivalent to the radical inversion of the simple and
the complex that Gottfried Wilhelm Leibniz’s analysis situs inflicted
on the ordinary classification of the geometrical entities of Euclid
and Descartes in the mathematical field. The second remark is more
subtle, and shows a fine complicity between Beccaria and Bentham.
It is true that they both asked that the reality of an offence be taken
into consideration, in its being linked to a punishment. The paradox,
however, was that such taking of reality into consideration could not
be done without deploying symbolic instruments, for two crimes never
seem equivalent unless a symbolic middle term is introduced that makes
them appear to be so. Similarly, for punishments to appear more, less or
equally important, and to have a real impact on people, what is essential
is to regulate appearances by symbolic means. There is no need for them
to be greater, smaller or equal. The true utility, the true reality, is for
them to appear as if they were so. Having mentioned the necessity of
‘grading’ punishments, Bentham emphasised the fact that ‘the words
smaller and greater must be understood in relation to their apparent
value’. Appearance is absolutely necessary to reality; to the effect of
reality; the ideal solution being to get a maximal effect of reality while
diminishing real suffering and increasing apparent suffering.28 Here was
one of the essential elements of the theory of fictions, without which it
was impossible to make any progress in the theory of punishment. It was
a matter of making a real impact by manipulating apparent values related
to the person who would have been tempted to commit the crime.
27
I agree with that, as I wrote in the postscript to Brunon-Ernst’s Le Panoptique des
pauvres.
28
Beccaria said so in his way: ‘Among punishments, one must use those which, being
proportioned to the crimes, will produce the most efficient impression on the minds of men
and, at the same time, will be the least cruel to the body of the criminal’ (Beccaria, Morellet
(trans.), p. 71).
2. This implies a second level of considerations, which it might ontologically

have been preferable to put first. The art of punishment consists in
creating a great symbolic impression without raising any rebellion, that
is, without public opinion turning against the law and the police because
of unbearable torture being inflicted on a presumed culprit. The art of
punishment is the art of words addressed to the criminal and, through
him, to those who could be tempted to commit a crime, as well as to
public opinion. For it to be efficient, it must be balanced, which implies
subtlety. This was a point on which Bentham and Beccaria agreed. For
them, the meaning of punishment was no longer to punish a crime
ferociously without considering its real seriousness, and without absolute
certainty that the culprit had really committed the crime of which he
was accused. The aim was not the need to impress people with horrible
tortures or heavy sentences, for people would then deeply rebel against
the judicial institution and bear it a grudge for a brutality by which it
would be dishonoured. It was increasingly a matter of enunciating the
law, and of ensuring that it be respected on the occasion of the crime,
through the repeating of it and, if possible, through the criminal’s person
and body. The howling of the presumed criminals, who had become real
victims as they were submitted to torture, did not produce any such
result, and even undermined it. The aim of justice was to transform
the crime and the body of the criminal, who had been apprehended in
order to enunciate the law once again and to restore it into signifiers.
Foucault – who, on this point, followed Friedrich Nietzsche – made it
one of the main themes of Surveiller et punir. It was remotely present
in Beccaria’s and Bentham’s thought. What was behind the request
for the alleviation of punishment, which seemed to correspond to
a grievance linked to the sensitivity of that time, was in fact the idea,
which Bentham demonstrated better than Beccaria, that punishment
was a way of addressing, through the criminal and his victim, public
opinion. The art of punishment consisted in triggering the interplay of
passions and sympathy, with all their fallacies, to the benefit of law, and
not against it. A certain number of eighteenth-century authors taught
us to understand passions and sympathy as a sort of language. The art
of punishment consisted in inverting those analyses to practical use. It
was indeed a sort of discourse, a sort of dialogue with emotional effects,
that was held between judicial power and public opinion. Bentham
treated the discourse of passions as a simple consequence, while Beccaria
thought it could be used as a principle.
90 Beyond Foucault
3. Before presenting some of the aspects of that language whose calculations

Bentham showed, a few words are needed on the death penalty, which,
perhaps more than others, Bentham considered to be in accordance with
that logic of sentiments.29 This meant excluding that penalty, of course,
as to Beccaria it was the most cruel and the most noxious of all, since
it eliminated the person who might still have been a source of benefit
to society, provided that a few adjustments were made. Beccaria added
some contractual considerations to the arguments which Diderot and
Bentham deemed even less convincing than the previous ones.30
4. The mode of discussion that was developed by Beccaria and based on
the principle of happiness was the same as that which Bentham constantly
used in the detail of his discourse on punishment, that is, the weighing
of probabilities, the roots of which the Rationale showed to be symbolic.
The question as to whether torture was inflicted on the presumed culprit
to make him confess to the crime, or to make him reveal the names of
possible accomplices, was a good example of this mode of discussion.
Beccaria underlined the fact that the effect systematically produced by
the question was exactly contrary to that which was aimed at, as it was
more to the advantage of the ‘real’ culprit than of the innocent, who,
under the intense suffering he was enduring and was going to endure,
preferred to confess to crimes he had not committed to make it cease
immediately, even if that meant suffering more when he was eventually
punished. It was, on the contrary, in the interest of the real culprit to
get away, as he well knew what he would have to endure if he confessed
to his crime.31 That method of weighing probabilities initiated another,
29
‘The death penalty that is inflicted on the criminal is, for most people, but a spectacle
and an object of compassion and indignation. Those two sentiments are much more present
to the souls of the spectators than the salutary terror that law aims at inspiring’ (Beccaria,
Morellet (trans.), p. 80).
30
Without being in favour of the death penalty, Diderot and Bentham disagreed with
the arguments that Beccaria used against it. They did not approve of the Hobbesian-like
contractual basis of his abolitionist arguments. They did not admit that the death penalty
was not a deterrent. They did not think either that it was more ferocious than a long or life-
time imprisonment, for example.
31
‘if one [who is innocent] and the other [who is guilty] are being tortured, the first
one has all combinations against him, since if he does not confess to the crime he has not
committed, he is condemned, and if he is declared innocent, he has undergone a punishment
he did not deserve. The culprit, on the contrary, has one case in his favour, since if he firmly
resists the torments he is absolved: he has gained in the exchange by being submitted to a
lighter punishment than that with which he was threatened. Thus, the innocent cannot but
lose, whereas the culprit may win’ (Beccaria, Morellet (trans.), p. 51).
that henceforth Bentham tended to use and constantly recommended

in his works on penal law. Undoubtedly, considering the probability
that the punishment would be inflicted (on an apprehended suspect),32
the punishment must be only slightly greater than any advantage the
exaction could provide. The choice of the exaction must be exactly
deterred by the combination of the punishment and the probability of
being punished.33 The probabilistic dialogue between judicial power
and public opinion was also sensitive, and that was predictable, to the
mode of calculus of divisions, which was part of what would nowadays
be called game theory. Thus it was, for the law to be efficient, that ‘in the
case in which the punishment first chosen be not inflicted, a subsidiary
punishment be specified, which would be such that it would be possible
to consider it as an auxiliary to the first one’.34
It was not without some injustice towards Jacob Bernoulli and others
that Bentham praised Beccaria for being the first to introduce precision,
clarity and the indisputable nature of mathematical calculation into
32
That point had been slightly underestimated by Beccaria, as Diderot showed. Indeed
Beccaria said that ‘for a punishment to be efficient, there was only need for the pain it
caused to be greater than the good that was the crime’s, even when the calculation integrated
the excess of the pain over the good, the certainty of the punishment and the loss of the
advantages that would result from the crime. Any severity that overreached those limits was
useless and consequently tyrannical’ (Beccaria, Morellet (trans.), p. 73). Diderot answered
that, ‘it was, on the contrary, the uncertainty of the punishment that must be integrated into
the calculation to make the punishment all the more terrifying as there was no possibility of
escaping it as in cases of fire and poisoning, which were easy to hide, and for which it was
thought possible to avoid punishment’ (Beccaria, Morellet (trans.), p. 73). That last criticism
was easy, in so far as Beccaria knew enough of probabilities not to mean complete certainty,
but possibly a fraction of certainty, as did most of the writers of doctrines of his time, when he
used the word certainty.
33
Bentham said so in the language of the maximum and the minimum: ‘the quantity
of punishment must not be inferior to what is enough for the punishment to exceed the
benefit of the offence.’ But it was useless to make it too cruel, as it would become socially
counterproductive: ‘it must never be greater than what was enough for the punishment to
exceed the benefit of the offence, being added to it what was necessary to make it greater than
the punishment of any possible offence a man would commit if he could choose between the
two of them.’ These two formulations present in a nutshell what was developed according to
the 13 rules in Principles of Penal Law (Bentham, Works, vol. 1, pp. 399–402).
34
Here is the logic of the alternative plan which existed in Pascal’s calculus of partition,
when the game was prematurely interrupted and was not finished. Here one also finds,
following the same kind of logic, that it was the legislator or the person who defended the
interests of the law that had been violated who took the initiative of the prosopopeia.
92 Beyond Foucault
moral questions.35 There is, however, a considerable difference between

Bentham on the one hand, and Beccaria and the people he followed
on the other hand, as the Italian still calculated probabilities from the
point of view of someone wanting to know the ‘truth’, who imagined
that someone else knew it (God Himself could be that person). Indeed,
numerous treatises on probabilities started with an invocation to a
deity, for whom the notions of probabilities and of their calculation are
meaningless.36 It was that very truth though, be it transcendental or
divine, that was most lacking in penal affairs, in which a decision was
to be taken, a verdict rendered (as it was not possible not to do so),37
although it was not, and would never be, possible for someone’s intrinsic
guilt to be known. How could it be possible to evaluate rationally what
could not be known, most of the time? It is so even in dangerous cases
in which certainty comes close to knowledge, for there are men who
are so impressionable that they will confess to offences they have not
committed.
The modification of the status of probabilities was undoubtedly the
most important departure from the philosophers of the Enlightenment,
as will be made clear further on, but it was not the only one, and Diderot
listed a certain number of points on which it was possible to disagree
with Beccaria.
See Bentham, Works, vol. 3, pp. 286–7: ‘It was from Beccaria’s little treatise on crimes
35
and punishments that I drew, as I well remember, the first hint of this principle, by which the
precision and clearness and incontestableness of mathematical calculation are introduced for
the first time into the field of morals – a field to which in its own nature they are applicable
with a propriety no less incontestable, and when once brought to view, manifest, than that of
physics, included its most elevated quarter, the field of mathematics.’
36
It is the case of Ars conjectandi, the IVth part of which starts with a declaration similar
to this one ( J. Bernoulli, Ars conjectandi, in N. Meusnier (ed.), J. Bernoulli et l’Ars conjectandi;
Texte à un ami sur les parties de jeu de paume (Mont Saint Aignan: [Institut de Recherche
sur l’Enseignement des Mathématiques de Rouen], 1987), pp. 14–15). [Ars conjectandi,
Thurnisiorum, Basel, 1713, pp. 210–11.]
37
Being obliged to do it, as the judge is when he renders justice.
Points of Disagreement with Beccaria
Diderot’s criticism of Des délits et des peines has already been outlined and
Bentham has been shown to agree with it in general terms. Dumont, the letter-
writer, translator and adapter of Bentham’s texts into French, underlined that
agreement, writing:
I have seen the new edition of Des délits et des peines in which Roederer has added
Diderot’s notes (where I saw with some surprise that he had guessed two or three
essential points on which you and Beccaria disagreed).38
It is interesting to see in which cases Bentham’s criticisms were anticipated, and

to go up to the point where Bentham disagreed with Diderot himself.
Without being fervently in favour of the death penalty, nor supporting the
cruelty of interrogative modes,39 Diderot challenged the quality of the utilitarian
arguments Beccaria used in some chapters of Des délits et des peines. For example,
Beccaria thought that the death penalty was an example of a punishment in
which the degree of severity sufficient to provide a deterrent was exceeded.
According to him, the price imposed on the culprit was too high, and would
provoke such compassion and indignation in witnesses that those sentiments
would militate against the salutary terror that the law aimed to inspire. Diderot
and Bentham objected to this argument, for they did not consider it too
ferocious a punishment, so long as it were made speedy and efficient. Some legal
considerations against the death penalty are much more serious than its harshness
and the alleged suffering of the person who experiences it, in particular, the
impossibility of making amends for a punishment which was unjustly inflicted,
due to the recovery of some missing documents, for example. Such was the kind
of argument that Bentham put forward against the death penalty.
More generally speaking, the idea that justice produced suffering, sometimes
unjustly, did not make Diderot back down, for he saw some advantage in the
question. For a calculation of pleasures and pains to be efficient, points of view
are to be taken into consideration. Diderot did not hesitate to consider these
points of view in different ways. Weighing the advantages of torturing a villain,
he declared, ‘think how a few minutes of torturing a villain may save the lives of a
hundred innocents whose throats his accomplices are going to cut, and you will
38
Bentham, Correspondence, in Collected Works, vol. 6, p. 459. Dumont did not give any
further information on what Bentham and Diderot agreed upon.
39
He nonetheless ‘agreed on the useless atrociousness of punishments. I fight his
reasons, not his principles’ (Beccaria, Morellet (trans.), p. 73).
94 Beyond Foucault
consider that the question is an act of clemency’.40 The weakness of an argument

that only took into account a unilateral sensitivity is here revealed. Playing on
the temporal point of view, Diderot tried to reverse the horrifying side of the
question by paradoxically defending it, consequently scorning the presumption
of innocence, which was Bentham’s essential consideration on the question:41
Everybody hates the question before a criminal is convicted, but such additional
torture is necessary to extract from the criminal the names of his accomplices
and the means of seizing them, as well as the evidence necessary to convict him.42
Diderot sought the enlargement of the principle of calculation so as not to

restrict it to a scale whose principles were biased and were not definitely those
of an overt calculation of pleasures and pains. In so doing, he showed Bentham
the way. Calculation was introduced only to verify a hypothesis, the sources of
which were instead the rights of man or some other abstract principle. The idea
of a utilitarian calculus was to weigh a total fact on a sort of gigantic mobile, like
that of Alexander Calder. If what was to be weighed in the event was shaped
beforehand, the scale was tipped. The shaping that Beccaria did beforehand
compromised the use of the principle of happiness, which nonetheless he put
forward at the beginning of his book. What Diderot put in the scale was the
advantage that could be obtained from questioning, as opposed to the scruples it
gave rise to before producing all its results. The presumption that someone may
have committed a crime was balanced in his eyes by the presumption that that
person may be innocent, which he did not make a ruling principle.43
Dumont may have seen that last point as one on which Diderot and Bentham
agreed, but he may not have been right. It is true that their methods had much
in common, but promoting torture belonged to a conception of justice that
Bentham no longer shared with the philosophers of the Enlightenment. It
was not obvious that the aim of justice was to use any possible means to gain
40
Ibid., p. 55.
41
Note that Beccaria based his justification of the presumption of innocence less on a
utilitarian argument than on the rights of man, as he said, ‘Though it be true, as it doubtless
is, that among men most of them abide by the law out of fear or virtue, the risk of tormenting
an innocent is constant, for it is more probable, other things being equal, that the accused has
respected rather than violated the law’ (Beccaria, Morellet (trans.), p. 46).
42
Ibid., p. 54.
43
Diderot made an obvious mistake in considering the question as ‘another punishment’,
which it was obviously not, as it was meant to establish the truth and decide the sentence.
The means of the investigation was no more than a reverse punishment. Beccaria and Diderot
could not agree on that point. The dialogue led nowhere, but Beccaria obviously had the
advantage (Beccaria, Morellet (trans.), p. 54).
possession of some truth protected by, and encapsulated in, the head of the
person subject to trial. If some truth must be obtained by any possible means,
then the question was justified, and the sentimentality of lenient punishments
must be ignored. The point of disagreement with Diderot was caused by his
mistake in believing that there existed a hidden truth that must be seized. Such
a belief being rejected on principle, the question was no longer of any interest.
It was not so much out of leniency that the question must be abandoned, but
rather because of a very different conception of truth and guilt, which was no
longer a hidden truth that should be forced out. Bentham’s utilitarianism was
very different from that which Dumont ascribed to Diderot in this case.
Before looking at that disagreement which put Diderot on the side of
classical positions – skilled though he was in questions of probability – whereas
Bentham thought of justice in a modern way, there still remains to be considered
a last point of agreement between them, though Diderot was rather silent on
the subject – that is, the hostility they both expressed towards the contractarian
conception of punishment that Beccaria developed. Though he did not directly
confront the passages in which Beccaria showed a deliberate and fundamental
contractualism, Diderot’s opposition to it was clear enough when he discussed
the question.
At the beginning of Des délits et des peines Beccaria wrote: ‘Only laws may
decide the punishment of crimes, and the right to make penal laws cannot reside
elsewhere than in the legislator who represents the whole society joined in
contract.’44 He referred to that theme throughout the book. ‘One must suppose,’
he said,
that men, by renouncing their natural despotism, said to one another that the
most industrious or the happiest of them would get the greatest honours and that
his glory would be passed on to his descendants. But he should have no less fear
than others of violating the conditions to which he has been elevated above his
fellow citizens. It is true that there was never a general assembly of mankind in
which such a decree was taken, but it exists in the immovable relations of things.45
Thus, his contract was not far from that of the wealthy in Rousseau’s Discours
sur l’inégalité entre les hommes, as it was created to found inequalities. Men agree
on inequalities that are acceptable. Sometimes in Beccaria’s work there was an
attack on private property, which he considered to be the fundamental reason
44
Ibid., pp. 10–11.
45
Ibid., pp. 126–7.
96 Beyond Foucault
of inequalities and thus, of a great number of exactions.46 Contractualism is a

mode of argument in his work. It was also by means of it that he disqualified the
death penalty, adopting an argument that was present in Thomas Hobbes’s work
rather than in Jean-Jacques Rousseau’s, for example. It is strange, then, to see an
argument that is Hobbesian in style combined with a Rousseau-like conception
of the contract, as in the note.47 Here is the Hobbesian intrusion:
What can be the right men give themselves to cut their fellow creatures’ throats?
Assuredly it is not the one sovereignty and laws are founded on. Laws are nothing
more than the sum of the parts of freedom of each private individual, the smallest
that each could give away. They represent the general will which is the assembling
of all the particular wills. Who ever wanted to give others the right to take their
life away? How, in the smallest sacrifices of the freedom of everyone, can be
included that of life, which is the greatest good of all? If such were the case, how
could that principle be reconciled with that other maxim, according to which
man shall not kill himself, for he must have the right to do so before giving it
to others or to society? The death penalty is therefore not allowed by any law. It
cannot be but a war of the nation against one citizen, the destruction of whom is
deemed useful and necessary for the conservation of the society.
Diderot corrected him on that point first in a contractualist style, writing, ‘It
is because life is the greatest of gifts that each man agreed to give society the
right to take it away from someone that would take it away from others.’48 It was,
however, the utilitarian argument used by Beccaria that persuaded Diderot to
reject the death penalty. When Beccaria wrote, ‘The intensity of a sentence to
46
Such an attack pleased neither Diderot nor Bentham, who rebelled against Beccaria
with the same passion as against the Montagnards. See Bentham, Works, vol. 1, p. 309: ‘It is
surprising that so judicious a writer as Beccaria should have inserted, in a work dictated by
the soundest philosophy, a doubt subversive of the social order. The right of property, says he,
is a terrible right, and may not perhaps be necessary. Upon this right, tyrannical and sanguinary
laws have been founded. It has been most frightfully abused; but the right itself presents only
ideas of pleasure, of abundance and of security’. Bentham took its defence, declaring, ‘It is this
right which has overcome the rational aversion to labour – which has bestowed on man the
empire of the earth – which has led nations to give up their wandering habits – which has
created a love of country and of posterity. To enjoy quickly – to enjoy without punishment,
– this is the universal desire of man; this is the desire which is terrible, since it arms all those
who possess nothing, against those who possess anything. But the law which restrains this
desire is the most splendid triumph of humanity over itself.’
47
Beccaria, Morellet (trans.), p. 13.
48
Ibid., pp. 76–7.
perpetual slavery has as much in itself for the most determined mind to turn
away from crime as the death penalty’,49 Diderot adds a note saying,
I think it likely, and it is not possible not to be struck by the reasons the author
gives for it. I notice however that he rightly renounces his principle of leniency
and clemency towards the criminal. Chained, beaten, put in an iron cage, despair
is not the end, but the beginning of his pains: such a description is more terrifying
than the description of the torture-wheel, and the torture it presents is crueller
than the cruellest of deaths. Because it gives frequent and lasting examples, its
efficiency makes it preferable to death, which lasts but a moment and which
determined criminals too often come to terms with. Here is, to me, the good
reason for preferring homicide to a long and painful slavery.50
Now it is contractualism which is no longer admissible in Bentham’s view,

following an argument which Hume had developed in detail and which will not
be considered here, but also for a central reason which allows us to understand,
at the same time, his questioning of the notion of ‘truth’: that is, the critique of
the notion of ‘law’, as much in its physical sense as in its juridical sense. In both
uses the mistake was the same. It was the illusion, dear to the classical thinkers,
of the complete extension of the law to the cases it aimed to cover and to take
into account.
It must not be forgotten that Beccaria declared that, in order to write Des
délits et des peines, he borrowed as much from Niccolo Machiavelli as from
Pietro Giannone and Galileo Galilei,51 who invented the classical law that
aimed to solve an infinite number of cases thanks to a single formula, be that
formula open to an indefinite number of corrections. Such a reduction to one
single law of an infinite number of supposedly similar physical cases that were
past, present and future, is fantastical, and though it was thought to be the
foundation of knowledge, it was not itself founded on any knowledge. The
same applied in the case of a conception of law in which the rule was so general
that it lost any contact with social reality or only achieved it by violating the
latter. The fictitious being around which all the phenomena of the universe were
organised according to laws, and around which laws themselves were organised,
according to the classical ideal – which Pierre-Simon Laplace formulated once
again – had its mirror-image in the classical conception of the law which
aimed to exceed all particular cases and to be linked with comparable laws so
49
Ibid., p. 81.
50
Ibid., note pp. 81–2. The same idea is expressed at the end of another note (ibid., p. 88).
51
Ibid., p. xliii.
98 Beyond Foucault
as not to be derived from a simply contractual formula. That was exactly the
conception of law that Bentham rejected, together with the supposedly general
or universal conceptions that were to be found in the rights of man and the
different contractualist positions. The exaggerations of the classical law were
as noticeable and as fallacious in natural philosophy as in laws. The text of
Rationale deserves, on this point, to be quoted in full; one can read here the
criticism of the idea of law:
The expression law of nature is figurative, metaphorical; it is a metaphor taken

from the use given to the same word law in the case of the political law: it is to that
source, consequently, that we must resort to an explanation of it. When a political
law, the expression of an act of human will, is issued, that law emanating from
recognized authority, and backed with the usual sanctions, – a correspondent
degree of conformity in human actions – in the conduct of such individuals as
are subject to the law – is the customary and manifest consequence: and (human
actions being events) a law – a political law – is thus a case of conformity among
events. In regard to events of a physical nature, the grand and constant object
of curiosity and inquiry, is that which respects the cause: and, on a subject so
interesting, when men cannot come at facts, rather than have nothing, they are
eager to catch at, and content themselves with, words. Between this and that group
of facts, a certain conformity is observed: what is the cause of that conformity? –
none at all: the conformity is itself nothing: it is nothing but a word expressive of
the state our minds are put into by the contemplation of those facts. There are the
facts: they do exist: but the conformity, as taken for a fact distinct from the facts
themselves, has no existence. Like so many other truths, this being no more than
a confession of ignorance – is not satisfactory to the human mind. Nothing but
word being on this occasion to be had – words the counterfeit representatives of
facts – them men are determined to have rather than have nothing. The conformity
being (like every other fact, real or supposed) susceptible of denomination of an
effect, this proves the existence of a cause: what name, then, shall be given to
that cause? What name? What word? – for when men have got words, they have
got that with which (on this, as on so many other occasions) they are content to
pay themselves. What cause? – A law of nature. Here are events: these events are
conformable to one another: here we have conformity among events. But, for that
sort of thing which is a cause of conformity among events, we have known name:
it is a law. The sorts of events, the conformity among which this term has been
hitherto employed to designate, are human actions. The sort of events of which
we are now looking out for the cause, are not human actions, but natural events.
Law in this sense must, therefore, have something to distinguish it from law in
that sense. In that sense it is termed law simply, without an adjunct: to distinguish
this from that, let us give the word law an adjunct, and say law of nature. If it were
fully understood, that a law of nature signifies not an occult cause of conformity
among facts, but merely the conformity itself, the phrase might be employed in
this sense without danger of confusion.52
Determinism and its diverse formulations, from Bernoulli’s to Laplace’s,

are best compared with the different types of contracts that were meant to
represent politics. On both sides, of course, law was complexified, which
blurred it and provoked the question as to whether any meaning remained in
its being established. Complication was preferred, however, as if there were a
simple law which could always be complicated, rather than abandoning that
alleged simplicity. Just as probability in the classical period only affected the
conception of laws, or was but an indication of law, without ever being internal
to it or ever constituting it, it was but an indication of truth for Bernoulli and
Beccaria. The point of view Bentham adopted in the Rationale was completely
different, however. Probability was not the indication of a truth that had to
be revealed, in its full entirety, in some other way. Bentham worked on the
principle that probability would be the limit in legal affairs. It became the
utmost boundary. Diderot still dreamed, with Beccaria, that truth could be
revealed.53 Bentham no longer shared that dream. It gave penal affairs a style
completely different from that which had existed up to the eighteenth century,
even in Beccaria’s work. Let us now examine this change from the angle of the
truth.
52
Rationale of Judicial Evidence specially applied to English Practice, eds S. Thorne and
D. Berkovitz (5 vols, London, 1827), vol. 3, p. 279.
53
Thinking about that question, Diderot made a comment on Beccaria, whom he
found weak on this point: ‘The knowledge of the accomplices is one of the truths that is sought
and it is true that it is discovered everyday by such a cruel means’ (Beccaria, Morellet (trans.),
p. 54). Diderot underlined the link existing between the truth as it is sought in a trial, and
torture, which is thus founded and from which one does not shrink in order to find it.
100 Beyond Foucault
Criticism of the Notion of Truth in the Name of which People are

Punished, and which is quite Out of Reach
The question of truth, only the most dangerous aspect of which is displayed in
trials,54 is a very general problem for classical authors. Laplace was probably the
last one to express the ideal of physics and astronomy as the classics saw them.
Laws were shortly to be deprived of their claim to be universal. The notion of
effect, the integration of the point of view of the observer, and the introduction
of chance and perturbations of experimentations within laws themselves,
radically changed the structure of laws. Physical legality did not express what
natural things were in themselves anymore. Even before the time when this
became explicit in natural philosophy, Bentham’s utilitarianism aimed to found
it on the ground of law, where a rule was not so much that which ruled things,
as the decision made by the authority having the right to rule them. Hidden
causes, the presence of which would have to be discovered in nature, existed
no more than the truth of what happened in a legal case, that would have to be
wrung out of the mind of the accused. Beccaria did nothing more than prepare
the ground for it, since he substituted the linguistic authority of the law for
the unbearable pain of the punishment that led to confession. Diderot himself
did not understand it completely. Bentham, on the contrary, started from that
result, which he meant to develop in the volumes of the Rationale.
Bentham found the idea of substantial truth – which may be locked away,
taken out, forced out – less in the work of Beccaria, who knew the doctrine of
chance too well to see only in the notion of probability a simple substitute for the
notion of truth, than in the work of Brissot de Warville. Bentham had met and
corresponded with Brissot de Warville, who, in 1782, had, among a multitude of
works and discourses, written a substantial volume on the subject of truth which,
in a formalised and caricatured way, contained all that Bentham rejected in that
ideology.55 It is clear why Bentham considered that particular book to be the
symbol of the fallacies that could be uttered on the question. First of all, truth
was constantly described as some conformity of the discourse to the objects, or
For the lives and freedom of people are at stake here.

54
Reproaching Hume with using the wrong word when he talked of truth – he should
55
have spoken of veracity – Bentham added, ‘Truth is a fictitious entity. Brissot was misled by
it. He wrote a book on Vérité: sometimes it was a knowledge of things, at others veracity; it
was sometimes love of truth as opposed to religious tyranny. He meant the subject matter of
knowledge, the result of evidence. It is the knowledge of what facts did really exist. Truth is a
mighty queer sort of personage in the abstract, as slippery as an eel’ ( J. Bentham, Deontology,
p. 354).
to what existed.56 This it could not be, since that which has happened, and that
which is, are precisely what is lacking most in a trial, where everything has to
be indirectly dealt with, by way of the oral or written statements of witnesses
which have to be assessed. Secondly, in the work of Brissot, which has been quite
forgotten for two centuries, truth was considered as the central value,57 though it
could not possibly be so – the notion of probability being precisely the manner in
which theory gave way to practical values, without being annexed in any manner
by the notion of truth.58 Brissot’s double conception was indicative to Bentham
of the improper use of a fictitious entity, and symbolical of the conception of the
law that prevailed at the end of the eighteenth and beginning of the nineteenth
centuries, in the scientific as well as in the legal domain. In both cases, it was
exactly what Bentham was combating in the Rationale.59 Truth thus conceived
was absolutely out of reach, not even in the sense that it could be possible to get
indefinitely nearer it, even slowly, too slowly; it was radically useless, led searches
the wrong way, and could not in any way be socially useful.
For this faulty conception of truth must be substituted another way
of building and leading the procedure, especially when a crime was to be
established and punished. Classical philosophers directed procedure towards
the establishment of the truth even if it were unattainable, of a supposed system
of possible observation, whereas Bentham was determined radically to attain the
56
Jacques-Pierre Brissot de Warville wrote: ‘We say that truth exists each time that what
is said is in conformity with what is or is apparent.’ Or, later on: ‘Truth is the conformity of
uttered metaphysical relations between objects, with their physical relation as it is presented
to our senses ( Jacques-Pierre Brissot de Warville, De la vérité ou méditations sur les moyens de
parvenir à la vérité dans toutes les connaissances humaines (Paris, 1782), p. 36).
57
After saying that the philosopher was looking for being beyond appearances, Brissot
added, ‘Yes, nothing is beautiful, nothing is good, nothing is useful other than what is true.
What is important, what is essential in one’s life is therefore not the quantity of knowledge,
but the truth of it’ (Brissot, p. 14).
58
Bentham, in the Rationale, showed precisely how probability fictitiously created
a dilution of what was and what was not, of existence and non-existence, of presence and
absence (Bentham, Rationale, vol. 3, p. 258 ff ). Foucault, when he described the difference
between investigation and examination, used expressions so close to Bentham’s that one could
almost imagine that he had read them, which is, however, scarcely probable. See Foucault,
Dits et écrits, vol. 1, p. 1463, translated as Foucault, ‘Truth and Juridical Forms’, p. 59.
59
If Bentham had known Kant better, and had considered him as more than a sort
of disciple of Berkeley’s, he could have used the probabilities of Logik, which would have
allowed him to exhibit the ideology of truth with still more refinement to better denounce it.
Probability was, for Kant as well as for Brissot, nothing but the mask of truth when it is not
possible to discover it (I. Kant, Introduction to Logik and his Essay in the Mistaken Subtlety
of the Four Figures, trans. T.K. Abbott (London: Longmans, Green and Co., 1885), p. 72.
102 Beyond Foucault
unattainable quality of truth, even more so than Beccaria, who, while rejecting
any theological conception of truth, still left an empty space to be filled.
The words Bentham used to express his different point of view are apparently
quite far from the question examined here. According to him, when innocence
or guilt were to be established, no evidence should be neglected.60 Any evidence,
whoever brought it forward, must be taken into consideration and integrated
into the calculation, and must receive a degree of value. None should be
rejected on the pretext that whoever said it had some interest in saying it, in
disguising it, or in suppressing part of it. That interest itself might be taken into
consideration in the calculation, but the statement it was linked to could not
without barbarism or through trickery be counted as nothing. In Table of the
Springs of Action, Bentham had already pointed out that the moral radicalism
that aims to reject the bad motives of complaints or statements leads to a social
morality much more despicable and much more unjust than the allowing of a
certain partiality, rejected or not to be expressed:
99. The practical mistakes that come out of that incorrect language may be seen
in the penal procedure. 1. Plaintiffs being excluded under the pretence that their
motives are not good. 2. Same thing for witnesses when they are supposed to
have some interest in the matter. 100. Of the two preceding points, especially
from the last one, injustice is a constant consequence. 1. In trials before the crown
court. Impunity is granted or satisfaction refused because the plaintiff unwillingly
complained or was guilty. 101. 2. Before civil courts, statements or the law are
rejected because the statement would not be an effect without cause. 102. Out
of a purely nominal interest, A’s statement is rejected, whereas B’s is admitted,
though it be done under the influence of the most irreducible interests. 103. The
practical mistakes that result from those faulty speculative conceptions are as
follows: 1. Under pretence that they are caused by bad motives, useful acts are
forbidden or prevented, though they are useful and even necessary, and could not
possibly have been produced by other motives. For example: delinquents being
taken to court. Necessary motive: revenge. 104. One concedes that some motives,
selfish and antisocial ones, are particularly prone to producing bad effects, and
that some others are particularly prone to restricting the excesses of the action of
those other motives. 105. However, if that notion of punishing any act performed
60
This principle, thus worded in all its simplicity, inspired the last two of the five
volumes in Bentham, Rationale. ‘The essence of evidence is the essence of justice’, he declared
(Bentham, Rationale, vol. 1, p. 32).
for supposedly bad motives while rewarding any act performed for supposedly
good is to be abandoned, mankind will be destroyed at once.61
So the statement may be added to the evidence, or subtracted from it, but it
should never be put aside, passed over in silence, or disqualified on principle
because it could not but bring biased or truncated views. Of course perjury must
be punished, but it was not an all-or-nothing law that made it possible to give the
witness-statements their value. Counting for nothing that which had some value
was a big mistake that in the end encouraged exactions.62 In legal matters, degree
must be taken into consideration.63 That heterogeneous material had something in
common was the only thing to which lawyers, who from being truth-seekers had
changed into evidence-workers, should pay attention. In Rationale, the idea that
no evidence should be neglected appears in a group of different practical rules:
I. Warnings tending to prevent under-evaluation: 1. Reject no article of

circumstantial evidence on the score of weakness. 2. Much less on the score of
its non being conclusive. 3. Hold not this aggregate mass insufficient, for the
separate insufficiency of the elementary articles. 4. Hold not an aggregate mass
of circumstantial evidence insufficient, for the mere want of an article of this
or that one description. 5. Hold not circumstantial insufficient, as much, for
the mere want of direct evidence: viz. where direct evidence is not obtainable,
or not without preponderant inconvenience in the shape of delay, vexation
and experience. 6. Hold not direct evidence insufficient, merely for the want of
circumstantial. II. I. Warnings tending to prevent under-evaluation: 7. (1). Set
down no article, nor any aggregative mass, of circumstantial evidence, as even
provisionally conclusive in all cases. 8. (2). Much less as conclusive against, or
(what comes to the same thing) to the exclusion of, all counter-evidence. 9. (3).
Content not yourself with general circumstantial testimony, when you can have
special direct testimony from the same source. 10. (4). Whatever evidence (in
particular, circumstantial evidence) other than produced by interrogation of the
61
The text goes on under the title ‘There is no bad motive: practical mistakes.’ (Bentham,
Deontology, Together with Table of the Springs of Action, pp. 14–15. See also my translation in
J. Bentham, La Table des ressorts de l’action, trans. J.-P. Cléro (Paris: Cahiers de l’Unebévue,
2008), p. 58 ff.
62
Bentham, Rationale, vol. 4, p. 493: ‘Exclusion is one of the grand engines by the help
of which corruption has been enabled to gain its ends.’ Exclusion determines in reverse all the
exactions that are allowed.
63
Ibid., vol. 4, p. 60: ‘To warrant a decision conformable to the tendency of evidence,
it is not necessary that the probative force of it should in every instance be at the highest
degree.’
104 Beyond Foucault
respective parties, presents itself; if the situation of the party be such as to present
any probability of his being able to give explanation of it (i.e. to contribute either
to give completeness or correctness to it, or to the inferences deducible from it),
– fail not to employ interrogation, – judicial interrogation, applied to the party, –
for the explanation of it. 11. (5). Reject not circumstantial as needless, on account
of the abundance of direct.64
All those rules are sensible rules for whoever has understood the impact and
the working of probabilities. Hume had already uttered some of them, such
as the one according to which a supposed fact should never be refuted with
general ideas only. Hume said so, following Bernoulli, whose second axiom
of Ars conjectandi (pars quarta) was that ‘to judge of generalities, remote and
general arguments are enough, but to make conjectures about particular cases,
closer and more precise ones should be added, if possible’.65 Witness-statements
must be considered neither as if only one witness uttered the truth, nor as if one
statement must be so entirely false that the witness must radically be rejected.
The Rationale gave seven rules that Bentham presented as the general results
of his 3,500-page work. In them the judge was warned against:
1. The supposing that there is any man, of whose testimony it is certain that it
will throughout be true: true to be the purpose of warranting the judge to treat it
as conclusive, i.e. exclusive of all counter-evidence. 2. The supposing that there is
any man, of whose testimony it is certain that it will throughout be untrue; viz. to
the purpose of warranting the judge in refusing to bear it. Not that the certainty
of its being throughout untrue, would induce anything like a certainty of its
being throughout uninstructive. 3. The supposing that there exists any one sort
of interest, which, on the occasion in question, can be sure to overpower the force
of the standing tutelary interests, as to render untruth in the part of the testimony
certain in any part, much less in the whole. 4. – or any number of interests acting in
a mendacity-promoting direction. 5. The supposing that because, as to this or that
fact, the testimony in question is incontestably false, and even mendacious, – that
therefore there is a certainty of its being false as to this or that other fact: much
more as to all the other facts. 6. The supposing that, where there are divers interests
to the action of which the testimony is exposed on either side, there is any one of
them that ought to be neglected, as if destitute of force. 7. The supposing that,
where there are divers interests acting in the same side, the aggregate force with
Bentham, Rationale, vol. 3.

64
Ibid., vol. 3, pp. 229–31. See also Bernoulli J., Ars Conjectandi, p. 215 and Meusnier
65
(ed.), J. Bernoulli et l’Ars conjectandi, p. 24.

which they act is to be learnt by counting them, without regard to the separate
force of each. The above propositions are the general results of this work.66
From then on, what lawyers referred to was less the truth, than what Bentham
called the ‘probative force of arguments’, that is, what would have some gradable
influence on the decision of the judge, be it for the writing of a file, the witnesses’
statements, or the lawyers’ speeches.67 Probative force was not a construction
meant to reveal the truth, so that it could be deconstructed in order to show
what must at last be discovered. Calculations of forces – perhaps it might have
been better to refer to authority rather than force, for the forces present in the
evidence were not assembled according to rules as simple as those of natural
philosophy68 – had radically replaced the discovery of the truth, and did not
suppose it any more than they supposed the ‘true measure’ approximately
framed by maximum and minimum. What the Rationale consisted in was
nothing other than the analysis of probative force. It is true that Bentham had
some predecessors, since Bernoulli had already shown, in Ars conjectandi, how
such evidence, which was only probable, could be organised, but he did so only
under the protection of a theological principle which, from the start, and in the
background, paradoxically and even in a contradictory manner, played the role
of a truth that was out of reach.69 Bentham’s system was radically lacking such
theism, and was based, as seen previously, on a radical criticism of the idea of law.
66
Bentham, Rationale, vol. 5, p. 736.
67
‘By the term evidence, considered according to the most extended application,
that is ever given to it, may be and seem in general to be, understand any matter of fact, the
effect, tendency, or design of which, when presented to the mind, is to produce a persuasion
concerning the existence of some other matter of fact – a persuasion either affirmative
or disaffirmative of its existence’ (Bentham, Works, vol. 6, p. 208). Chap. V of Book I of
Rationale is perfectly clear on that question (Bentham, Rationale, vol. 1, p. 58 ff ). One reads
that ‘The greater the quantity of probative force in the mass of evidence produced on one
side, deduction made of that which is produced on the other side; the more certain in the
eyes of a bystander will be its effect on the mind, and the greater in the mind of the judge will
be the ease and satisfaction with which the judgment of belief pronounced on the strength
of it will be accompanied. As it is the business of the legislator so to order matters that, on
each occasion, the obtainable quantity of probative force shall be as great as possible; so it is
the business of the judge to be aware of all the several circumstances by which that quantity
is capable either of being augmented or diminished’ (Bentham, Rationale, vol. 1, p. 61).
68
In Rationale, Bentham mentioned for example the ‘probative force of authority’
(Bentham, Rationale, vol. 3, p. 367).
69
It is the second paragraph and at the same time the second sentence of the text;
the first one clearly linking certainty and fractions of certainty to the notion of truth. ‘One
considers the certainty of a thing ordinary or objectively in itself. Such a word then means
nothing more than the truth of the present or future existence of that thing, or one considers
106 Beyond Foucault
The Rationale progressed in a direction opposite to the rationality of the

philosophers of the Enlightenment. Far from using the whole system of evidence
to know the truth, it was precisely because it was not known and would never
be – prisons were full of people who had never confessed, would never do so,
and whose confession itself was suspicious70 – that the procedure of the tribunal
and the dramatisation of it were so meaningful. The strategy of the Rationale
was based on a blind spot of truth. Bentham clearly made the difference between
veracity and truth; the former depended on the relations of forces71 and the
difference between memory and invention was to be linked to them.
If one absolutely wanted to see in the Rationale an expression of the
Panopticon, which Bentham did not do in his text, one must say that it is not
possible to say whether there is any truth, nor even a simple possibility of truth,
in that central tower. In a certain way, one could wonder if what happened to the
legal system in the 1830s was not a harbinger of what happened to mathematics,
of which Bertrand Russell said that it was a discipline in which nobody knew
what it was about, nor if what was said was true, without this being harmful to
its rigorousness. It is true that justice should have some meaning, even if it is
difficult to say what it should be, but one could no longer say in the nineteenth
century that truth was at its core. The Rationale developed a blind and symbolical
conception of justice. The Panopticon – if there is any need to refer to it after the
Rationale then it must be understood as a way of elaborating laws and rendering
it subjectively, in its relation to ourselves, then it is the measure of our knowledge regarding
that truth’ (Bernoulli, pp. 14–16).
70
Poisson noted it in his Preamble: ‘The mathematical proof that the accused is
guilty can never be reached. His confession itself cannot be considered otherwise than as a
probability quite close to certainty. The most enlightened and human jury thus pronounces
a sentence based only on a strong probability, often less so than what would result from the
confession of the culprit’ (D. Poisson, ‘Preamble’, in Recherches sur la probabilité des jugements
en matière criminelle et en matière civile (Paris, 1837), p. 5). Without deluding himself on
what would be made of his proposal, Poisson, following Condorcet and Laplace, asked that
the word guilty be replaced by condemnable (ibid., p. 6).
71
‘Veracity has place, in so far as it is the will, the wish, the endeavour, of the witness,
that his testimony, and the conclusions drawn from it, be conformable to the real state of the
case. Veracity has place, in so far as it is the will, the wish, the endeavour, of the witness, that
his testimony, and the conclusions drawn from it, be conformable to the real state of the case.
Verity has place, in so far as, – whatsoever be the state of the will, of the volitional or moral
faculty, of the witness, on the occasion in question – the report made by him concerning
them, in and by his testimony, is conformable to the real state of the case. Falsehood, or rather
falsity, (the word being used without reference to veracity or mendacity), has place in so far as,
– whatever on the part of the witness be the state of his will, in relation to the matters of fact
in question, – his testimony fails of being conformable to the real state of the case’ (Bentham,
Rationale, vol. 4, p. 155).
justice – was an alienated form of the previous conception, in that it overloaded

the prison system with secret knowledge. All the strength of the Rationale
consisted in not starting from that knowledge.
The use of the material, of all the material,72 was linked to the fact that there
was no possibility of proof from an exterior, superior and transcendent point
of view. An invenire, an inventing, without any ultimate point of view, was the
rule. Bentham’s insistence on invention went so far as not to dissociate memory
from invention by saying that one was true and the other was false, but made the
difference between them by focusing on ‘the love of ease’ that was characteristic
of memory compared to invention, which used much more energy:
To relate incidents as they have really happened [I mean as, to the narrator, they
have really appeared to happen. With this explanation, the expression as they have
really happened, may be used instead of the more correct expression, to save words],
is the work of the memory: to relate them otherwise than as they have really
happened, is the work of the invention. But, generally speaking, comparing the
work of the memory with that of the invention, the latter will be found by much
the harder work. The ideas presented by the memory present themselves in the first
instance, and as it were of their own accord: the ideas presented by the invention,
by the imagination, do not present themselves without labour and exertion. In the
first instance come the true facts presented by the memory, which facts must be put
aside: they are constantly presenting themselves, and as constantly must the door
be shut against them. The false facts, for which the imagination is drawn upon, are
not to be got at without effort: not only so, but, if, in the search made after them,
any at all present themselves, different ones will present themselves for the same
place: to the labour of investigation is thus added the labour of selection. Hence
an axiom of mental pathology, applicable to the present case: an axiom expressive
of a matter of fact, which may be stated as the primary and fundamental cause
of veracity in man. The work of the memory is in general easier than that of the
invention. But to consult the memory alone in the statement given is veracity:
mendacity is the quality displayed, so far as the invention is employed. The love
of ease, – in other word, the desire of avoiding the pain of mental exertion, – is
72
Bentham defended the term matter, applied to the soul, that is to ethics and politics.
See Bentham, Works, vol. 1, p. 287: ‘Extension of the use of the word matter, from the field of
physics or psychology, including ethics and politics. 1. In the higher or more general quarter
of them; viz in the phrases matter of good, matter of evil. 2. In the department of law in general,
and of penal law in particular – matter of satisfaction or compensation, matter of punishment,
matter of reward; matter of punishment being neither more nor less than the matter of evil
applied to a particular purpose; – matter of reward, the matter of good applied to one particular
purpose; – matter of satisfaction, the matter of good applied to another particular purpose.’
108 Beyond Foucault
therefore a motive, the action of which tends, on every occasion, with more or less
force and effect, to confine the discourse of a man within the pale of truth.73
Hume’s lesson, which distinguished different perceptions by means of the degree

of their strength rather than by their representative modality, was well learnt.
The passage may be read as signifying that any memory is a false one.
However, the previous remarks will not solve all the problems, and it is to be
feared that they are nothing but a shifting of the difficulties. Indeed, the ghost of
the impossibility of any application, which compromised the perspective of the
discovery of the truth, may have reappeared in the invention of the Rationale,
insomuch as the calculation may have indefinitely opened perspectives, thus
being condemned never to end other than by a decision that would prove to be
as arbitrary as the belief in the presence of truth in some heads or in some points
of view.74 Numbers revealed what ordinary language concealed.75
73
Bentham, Rationale, vol. 1, pp. 202–3.
74
The problem is set in the Rationale: ‘An infinite scale, inapplicable, though the only
true one.’ Bentham explains what he means by writing, ‘In respect of persuasion and probative
force – persuasion in the first place on the part of a witness, in the next place on the part of
the judge – probative force on the part of the evidence, of whatsoever evidence it be, direct
evidence or circumstantial evidence, evidence of persons or evidence of things; – an infinite
scale (it has been already intimated) is the only sort of scale by which the truth of the case
can be expressed. In what can that mass of evidence be, to the probative force of which no
addition is made by the evidence of a mass of evidence, exactly of the same composition in
every respect and twice as great? Unfortunately, a scale to such a degree correct, would not,
physically speaking, be capable of being applied to the particular purpose here in view. The
use and only use of the sort of scale in question would be to enable the witness to give to
his testimony, or the judge to his opinion, a less degree of effect in practice than what it is
productive of without the employment of any such scale. At present, the effect given to any
such testimony in practice is as great, never less than as great, as the utmost effect of which the
highest possible degree of persuasion in that single breast could be productive. On the side of
argumentation, then, nothing remains to be done. The persuasion is considered as being, in
many instances, at the highest degree; or, at any rate, in justice, the same effect is given to it as
if it were’ (Bentham, Rationale, vol. 1, p. 100 ff ). Bernoulli had already seen that problem in
his Ars conjectandi, Ch. III, part IV, § 7: ‘though the arguments that are brought forwards in
support of one side and the other be quite strong, it may happen that the absolute probability
of each party go quite far beyond half certainty, that is, that both opposites become probable,
even though, relatively speaking, one be less probable than the other. Thus it is possible that
one thing gets 2/3 of certainty, while its opposite gets 3/4 of it. For that reason, both opposites
will be probable, to the ratio of 2/3 to 3/4, that is 8 to 9’ (Bernoulli, pp. 36–40).
75
This is how calculation allows us to substitute persuasion for opinion, which cannot
be subject to degree, whereas persuasion may be: ‘In a word, the only adequate mode of
expressive degrees of persuasion is by numbers. But hitherto, neither in ordinary language
So framing by degrees of probability does not surround a truth with

uncertainty; if that were the case, Kant would be right and one should give them
up and settle for truth. Now it is the frame itself that is truth, in the measure of
probabilities as in the other measures. English-speaking people have perhaps,
by their language itself, an easier way of understanding that; indeed, with its
Roman origin as well as its Saxon origin, that compound language describes the
‘same’ thing twice. English permits speech to encompass its meaning rather than
to aim at it, as do other languages which are more simply composed.
Conclusion
The question remains: to which general movement does what I have called a
‘turning point’ belong? Two strong positions framed it: Beccaria’s Des délits et des
peines at its beginning and Bentham’s Rationale at its end. All sorts of diagnoses
have been made about that movement. They are not always contradictory, and
may even be compatible with one another to a certain point. Beccaria clearly saw
it, and took part in the movement as in an evolution of sensitivity, which tended
towards the alleviating of punishments, with a refinement of cruelty in its clear
preference for life imprisonment rather than the death penalty. Nietzsche may
have followed Beccaria, from whom he may have borrowed the structure of
a number of his own ideas.76 ‘Civilisation’ implied a general lowering of the
nor in the scientific language of jurisprudence, have numbers been employed’ (Bentham,
Rationale, vol. 1, p. 90).
76
For example, one may read in Beccaria, ‘Strong and cruel impressions are needed for
the minds of people only just emerging from barbarity …, but as souls soften in the state of
society, the sensitivity of each individual is refined and such a refinement needs diminution
of the harshness of punishment, if similar relations between the object and the sensation
are to be kept similar’ (Beccaria, Morellet (trans.), p. 75). This text may be compared to IIde
Dissertation of Zur Genealogie der Moral, § 7, § 11, § 10: ‘As its power grows, a community
will consider the faults of its members to be less important, as those members do not seem
as dangerous for the existence of the whole, nor as subversive. The wrongdoer is no longer
“excluded” and expelled, general wrath cannot freely rage against him anymore, as was the
case in the past; moreover, he is carefully protected against such wrath, and in particular
against those who have suffered the damage. The compromise with those who had first
suffered the misdemeanour, the effort that was made to keep the case within strict limits in
order to prevent more effervescence and greater and more generalised trouble, the search for
equivalent compensations to smooth out the whole affair (the compositio), and more than
anything else the will always determined to consider any crime as being redeemable, which,
at least in some measure, isolated the delinquent from his act – such were the increasingly
characteristic features of criminal law in the following phases of its development. If the
power and the individual consciousness of a community grow, its criminal law will soften’
110 Beyond Foucault
levels of pain that were felt to be endurable. He added, however, an important

complement to that consideration, underlining its great frailty, which was that
it was when the police and the laws made a state stronger, rightly or wrongly,
that violence and cruelty in punishments were diminished, for they had become
useless. Then the will for clemency was no more a cause, but only a symptom.
This movement may, however, be inscribed in the vast mercantilist view of
crimes and punishments which, though it seems quite grotesque today, had been
going on for a long time, as it seemed to have passed through the seventeenth
and eighteenth centuries.
Some facts have eventually been admitted as the very signs of justice, as the
will to make crimes, punishments, and crimes and punishments, commensurable
in a general correspondence. Who would not see that utilitarianism took the
market as a paradigm for the previous balances? Punishment was a cost which
must be used in the best interest of society. It must not be excessive, not because of
some humanistic benevolence or sympathy – why would one be sympathetic and
benevolent towards the delinquent and the criminal? – but because, as Bentham
clearly showed, the cost was pernicious when not economical.77 Moreover,
though, according to Pascal’s very system of calculus of divisions which, under a
structure of payment that could not go to completion, defined another structure
that assessed the first one, crime must never remain unpunished, and even when
individuals had escaped punishment, the possibility of being punished in another
way must be ascertained, in a sort of infinite sequence in which delinquents
would be forever locked, even when they could not be apprehended.78
However, though I do not ignore the close link between the generalised
mercantilisation of social relations and the kind of rationality that has been
examined and which started with the sort of rationality of the calculus of
divisions in the middle of the seventeenth century and which was to be found
throughout Bentham’s Rationale, one is struck by the implementation of that
(F. Nietzsche, Zur Genealogie der Moral, in Nietzsche Werke, Kritische Gesamtausgabe (Berlin:
Walter De Gruyter and Co., 1968), vol. 12, pp. 318, 325, 324–5).
77
Beccaria, Morellet (trans.), pp. 214–15. When the cost incurred by the punishment
is greater than the benefit consisting in its non-administration, or when the loss of profit that
administering the punishment would induce is exceeded by some other accidental profit that
would result in its not being administered, punishment is pernicious. Making suffering more
symbolic and in a way more verbal, makes it more ‘economical’. ‘A mode of punishment is
made more economical by diminishing real suffering’ (ibid., p. 205).
78
In Chapter XV of Book II of Théorie des peines criminelles de J. Bentham, one may read
that ‘For a law to be efficient, in the case in which the first punishment be not administered,
a subsidiary punishment must determined which will be such that it will be possible to look
at it as supporting the first one’ ( J. Bentham, Traité des délits et des peines, suivi d’une théorie
des lois pénales, trans. Saint-Aubin (Paris, 1797)).
very style of rationality that was reconciled to having neither transcendence

nor sovereign point of view. Pascal had already asked that truth should not be
considered as an idol. He was apparently heard in a lay sense which, certainly,
was no longer Christian. Truth had meaning only in relation to other values that
had nothing in common with it. Thus were the finest works of the eighteenth
century turned upside down. Hume’s whole work was psychical dynamics, as
Bentham properly observed.79 It was about the truth of forces, but it was hesitant
on the question of considering truth as one of them. Bentham did not share
any such hesitation, so that so far from being a description, the dynamics were
converted into auxiliaries of practical prescriptions aiming at persuasion. Hume’s
ontology was transformed into deontology.
Such a result may be taken in two ways, which are not necessarily
incompatible, though it took all Foucault’s efforts to attune them, and for their
intersection to be understood. On the one hand, it may be compared to the
work of psychoanalysis, in which the unconscious is considered to be an ethical
concept, that is a practical one, and in which the role of psychoanalysis is seen
not so much as an investigation of what happened in the past, a construction.80
Foucault explained perfectly that the Panopticon (in its symbolical enlargement)
no longer implied any investigation, but rather an ‘examination’.81 On the
other hand, the question remains of what the Panopticon had become in the
Rationale, as it had lost all visibility. Following Foucault, though without his
critical prudence or his knowledge of limits, a certain number of commentators
wanted to extend the Panopticon considerably, beyond prison, school and
factory, and to make it a mode of thinking and writing. It was the exact opposite
of what was to be found in the classical and Laplacian ideology of the Rationale,
which no longer directly left any room for the Panopticon. This does not mean
that it was not there, but if it was, it was in the sense in which the ideals of
79
Some of Bentham’s sentences could have been Hume’s, for example: ‘Persuasion
admits of, and exists in, different degrees of intensity; for strength, force and intensity are
here synonymous’ (Bentham, Rationale, vol. 1, p. 71).
80
This is the whole meaning of Freud’s text Konstruktionen in der Analyse, and Lacan’s
work seems to be a long meditation and a repetition <reprise> of it, in the sense Kierkegaard
gave that word.
81
In a text from Dits et écrits, Foucault made it appear quite clearly. ‘With panopticism,
something altogether different would come into being; there would no longer be inquiry,
but supervision <surveillance> and examination. It was no longer a matter of reconstituting
an event’, but the constitution of ‘[a] knowledge which was no longer about determining
whether or not something had occurred, … and was no longer organised around the questions
“Was this done? Who did it?”. It is no more organised in terms of presence and absence, of
existence or non-existence’ (Foucault, Dits et écrits, vol. 1, p. 1463, translated as M. Foucault,
‘Truth and Juridical Forms’, p. 59).
112 Beyond Foucault
the Enlightenment served as the hidden face of the new rationality, which no
longer had much in common with the classical ideal.82 The new rationality of
punishment designated prison as the favoured punishment, as, at least on paper,
it had all the virtues of punishment; but prison, in its practical reality, which
was the panoptic hell, albeit a symbolic one, as it was no longer that of torture,
was connected to an inverted use of Enlightenment rationality and was in a
state of radical discrepancy with the subtleties of the philosophy of immanence
that was found in the Rationale. Bentham’s philosophy of punishment, far from
being a monolithic block, was organised in strata which did not belong to the
same ideology. Curiously enough, the rationality of probabilities which had
been left aside for a long time was revealed,83 while the Enlightenment ideology
structured the dreary half left by the former. Such rationality, which Professor I.
Hacking considered as belonging to ‘low science’, as opposed to the Newtonian
‘high science’, was from then on considered to be ever-present in the horizontal
relations of the true implementation and circulation of political authority. One
still lives in his strange conception of time and space, for one is not capable
of creating punishments that would suit the new rationale on which a broad
consensus however now exists.
It is true that sometimes an enlargement of perspectives may be quite
suffocating. Rather than refusing on principle to consider the enlargement, the
study of it was first necessary. This was the only way to test Foucault’s hypothesis
efficiently, which, while plausible, was obviously not the only possible one. It was
quite possible to admit the negative phase of the thesis. The positive one was, on
the contrary, rather arbitrary. Though it is true that the probabilistic knowledge
of the new evidence in legal matters no longer consisted in the search for the
truth of an event, the change from ‘something’ that was looked for in a probable
mode of logic to ‘someone who must totally and without any interruption
survey’, or to a knowledge that was based on the norm, in the sense of ‘what is
normal or not, correct or not, what must be done or not’, was still arbitrary.84
See Brunon-Ernst, Le Panoptique des pauvres.

82
It was not done in the best of conditions in Bentham’s work. Though he adopted
83
a clearly ‘subjectivist’ conception of probability, he did not seem to see the advantage he
could gain from their calculation that Price and Bayes could have allowed him. Laplace, 15
years earlier, and Poisson, ten years later, saw that advantage. Perhaps it was because he saw
in Price the politician he did not much like that Bentham did not recognise the specialist of
probability in him (Bentham, Rationale, vol. 1, pp. 136–8).
84
The arbitrary became quite manifest in such sentences as ‘With the Panopticon, the
aim was not to reconstruct an event, but something, but rather for something or someone
to control <surveiller> totally and without any interruption’ (Foucault, Dits et écrits, vol. 1,
p. 1463). The correction betrayed the tightening of the thesis left undemonstrated.
Foucault would sometimes ask his listeners not to hesitate to criticise severely
what he told them, for this enabled him to test his hypotheses. It is surprising
that his demand was not heard on this point. Perhaps there is a means to give
Foucault’s thesis its real meaning, by integrating it into the conception of time
and space that Hume developed for values. Hume noticed that the ground from
which values developed was not always that on which they were born, and where
they went on to develop. A certain nation knew how to give birth to a value
and would not be able to let it grow; another one could never have dreamt of
such a germination but was perfectly capable of protecting its development.
Maybe Foucault lacked the art of prism, which is a spatial art, for though he
praised space,85 he may not have practised it with the same amount of energy.
The archaeological theme ended up, once again, in overestimating time. In
order to be able to say, in a plausible and striking way, that the theses that are the
most subtle in probability, for example, are linked to a desire for order, safety
and surveillance, he had to classify those phenomena in time. Bentham’s aim,
as Hume’s, was to produce ‘impure’ concepts, as the former would have called
them, that is, deliberately heterogeneous, or ‘intermingled’, in the latter’s words,
or concepts which were based on a collection of extraordinarily diverse values.
Building up the notion in series was a betrayal of its extension and of the spatial
weaving in which it was most strictly itself.
What, on the contrary, was not a problem, was – whatever the form it was
given – that the place of condemnability <condamnabilité> (rather than of guilt)
lay in probative force. Clemency was not exactly an increasing weakness of
affects. It was made necessary by the new rationality.86
This new rationality is also exemplified in Bentham’s conception of a
democratic State. The following chapter aims at bridging the gap between the
Panopticon and Bentham’s constitutional theory.
85
86
Laplace thought that the probability of making mistakes that it was obligatory to
include in criminal trials ‘must be such that the acquittal of a criminal must be a greater
danger to public safety than the fear of condemning an innocent’. Poisson asked for this piece
of advice to be taken into consideration: ‘When it is found that, over a great number of trials,
there is a certain proportion of innocents that have been wrongly condemned, such a thing
must not be understood in the sense that it is the proportion of innocents being condemned,
but in the sense that it is the proportion of people sentenced with a probability too light, not
for the establishing that they were more guilty than innocent, but for their condemnation to
be necessary to public safety. Determining the number of those, among the condemned, who
really were not guilty is not the object of our calculations’ (Poisson, p. 6).
Chapter 5
From the Penitentiary to the
Political Panoptic Paradigm1
Guillaume Tusseau
The Bentham brothers have been dead these hundred years and more; but the spirit
of the Panopticon, the spirit of Sir Samuel’s mujik-compelling workhouse, has gone
marching on.2
In terms of political commitment, Jeremy Bentham is most generally known for

belonging to the group of ‘radicals’, as described by Elie Halévy,3 whose numbers
included James Mill, Francis Burdett and Francis Place. At the turn of the
nineteenth century in England, their fundamental claim was universal suffrage.
Less well known is the fact that Bentham proposed a quasi-complete plan for
a utilitarian democracy at the request of the Portuguese Cortes in 1822. For
almost ten years, Bentham worked on this project and tried to have it applied
in Greece, Tripoli, Spain, Portugal, South America and Bavaria. He died before
he could finish the work and had only published the first of the three scheduled
volumes of this Constitutional Code.
A connection has to be established between the failure of Bentham’s
reformism and that of his plan for a prison called ‘Panopticon’. The latter proved
particularly draining, both psychologically4 and financially5 (although eventually
he did receive compensation). Bentham was often mocked6 for struggling for
almost 20 years, full of hope and naivety, as he tried to get Parliament to entrust
him with the administration of a Panopticon he and his brother had designed.
1
This chapter was translated by Yvonne-Marie Rogez.
2
A. Huxley, ‘Variations on The Prison’, in Themes and Variations (London: Chatto and
Windus, 1954), p. 196.
3
Halévy, La formation du radicalisme philosophique.
4
See, for instance, Bentham’s bitter remarks: J. Bentham, Constitutional Code for
the Use of all Nations and all Governments Professing Liberal Opinions, in F. Rosen and
J.H. Burns (eds), The Collected Works of Jeremy Bentham (Oxford: Clarendon Press, 1991),
vol. 1, pp. 444–5, n.
5
Semple, Bentham’s Prison.
6
Ill-informed irony was already present in the press at the time: see ibid., pp. 258–9.
116 Beyond Foucault
If his projects are closely examined from a human rights viewpoint, one should
perhaps be thankful for the general lack of knowledge of, and disregard for, the
ideas of this frenzied codifier.
The proximity of his constitutional and prison projects, both as intellectual
creations and political struggles, should not, however, be reduced to the
ridiculous aspect of their failure. Indeed, the crowning achievement of Bentham’s
constitutional doctrine, Constitutional Code, relates closely to his Panopticon
projects, which he had undertaken more than 30 years earlier.7 This parallel
often stigmatised Bentham as one obsessed with the idea of absolute social
control, who denied the integrity of the human being. As he proposed further
projects for reform, down to the minutest details which sometimes bordered on
the grotesque, increasingly he promoted a utopia of confinement. Transposing
the principles of the prison world to the field of political society, he became the
precursor of totalitarianism.
The meaning of the term ‘pan-opticon’ is immediately brought to mind
thanks to the construction of Bentham’s term. Greek etymology suggests the
idea of ‘seeing everywhere’.8 It is a matter of knowing everything and reporting
everything about certain people’s activities. Since they are aware they may well
be watched, they are subject to a control which is permanent in its effects, even
though it is not actually exercised constantly.9 They are automatically deterred
from the actions that are likely to displease the inspector and thus lead to
punishment. The exceptional efficacy of the system resides in this belief.
On a philosophical level, the proximity of Bentham’s penal and constitutional
theories raises questions about the interpretation of his thought as a whole. Thus
one can wonder whether the Panopticon stands as a metaphor or a thing. Is
it a utopia or a reality?10 Is it a place that one should move towards, or does it
7
The Panopticon Writings include a series of letters written in 1786 and two Postscripts
written in 1790 and 1791. An adaptation written by E. Dumont was published in France
and in London in 1791. Neither reached a wide readership. The failure of the project was
already confirmed in 1811, although it had received the approbation of the Assemblée
Nationale constituante in France and the two Houses of Parliament in England. For the epic
story of the project: see Hume, Bentham and Bureaucracy; Semple, Bentham’s Prison; Perrot,
‘L’inspecteur Bentham’, pp. 169–219.
8
J. Bentham, Panoptique. Mémoire sur un nouveau principe pour construire des maisons
d’inspection, et nommément des maisons de force, ed. E. Dumont (Nantes: Editions Birnam,
1997), p. 16.
9
J. Bentham, The Panopticon Writings, ed. M. Bozovic (London: Verso, 1995), pp. 34,
43, 94.
10
For a discussion of the utopian features in the Panopticon, see Chapter 3, pp. 63–67.
From the Penitentiary to the Political Panoptic Paradigm 117
represent the darkness one should flee from?11 The aim of this chapter is neither
to criticise nor to praise Bentham. Instead of participating in the moral debate
about panopticism, I will rather adopt a metalinguistical standpoint, and try to
underscore the coherence of Bentham’s project, in order to explain why it has
raised so many questions and hopes, and caused so much uneasiness.
A parallel must be drawn between Bentham’s treatment of the prison system
and of democracy. More than a century and a half later, and with a different
perspective, their convergence is at the origin of numerous debates on the nature
of his work and its underlying significance.
The Metaphoric and Real Universalisation of the Panoptic Paradigm
Bentham’s reformism is based on the principle of utility.12 Taking into account

the efficient causes of man’s actions, seeking pleasure and avoiding pain, this
principle provides a criterion by which to assess those actions according to their
proclivity to increase happiness. If the government must have all the power it
needs to do what is right, the actual pursuit of the goal prescribed within the
principle of utility still needs to be guaranteed. In Bentham’s constitutional
theory, these two requirements inspire systems of information and visibility
which are total and create a metaphorical universalisation of the panoptic
paradigm. However, in Constitutional Code, this universalisation also arises at
the level of reality.
In Leading Principles of a Constitutional Code, Bentham allocates the pursuit
of four goals to the government: ‘Subsistence, abundance, security, and equality;
each maximised, in so far as is compatible with the maximization of the rest’.13
This legislation presupposes precise knowledge of the elements that determine
human conduct.14 This is why, in An Introduction to the Principles of Morals
and Legislation, Bentham analyses both the simple and the complex forms of
pleasures and their corresponding pains, the circumstances which influence the
sensitivity of individuals, intentionality, the phenomena of consciousness, the
11
L. D’Alessandro, Utilitarismo morale e scienza della legislazione. Studio su Jeremy
Bentham (Napoli: Guida Editori, 1981), p. 102.
12
M. Bozzo-Rey, ‘Le principe d’utilité dans la philosophie politique et juridique de
Jeremy Bentham’, diss., University of Paris Ouest-Nanterre, 2007.
13
J. Bentham, Leading Principles of a Constitutional Code, for any State, in The
Pamphleteer, 44 (London, 1823), p. 4.
14
J. Bentham, Pannomial Fragments, in Works, vol. 3, pp. 224–30.
118 Beyond Foucault
dispositions of individuals towards others, and the consequences of their acts,

thereby constructing a true anatomy of the process of human action:15
Pleasures then, and the avoidance of pains, are the ends which the legislator has in
view: it behoves him therefore to understand their value. Pleasures and pains are
the instruments he has to work with: it behoves him therefore to understand their
force, which is again, in another point of view, their value.16
Bentham’s arithmetical processes17 allow for the measuring of the value of each
sensation, and its comparison with other pleasures or pains. In this system, the
legislator is a social scientist, who intends to make use of the motives of human
action, for instance by using sanctions. He seeks to direct individuals towards
behaviour, as artificially co-ordinated with the behaviour of others, which leads
to the combination of actions resulting in the greatest happiness.
Laws are characterised by their ‘defeasable perpetuity’,18 and must adapt on
a daily basis in order to promote general utility. Legislation becomes an active
and constant task. It requires a great deal of information on the utility of the
population. In order to collect this, Bentham puts forward a new type of logic,
which differs from Aristotle’s logic of propositions. The logic of interrogation is
a little-known aspect of his ‘Logic of the Will’, intended to deal with sentences of
volition rather than assertive sentences.19 Interrogative sentences are a particular
kind of sentence of volition. This logic is
… more particularly applicable to the business of government: that subdivision

which concerns the forms of imperation at large having a more particular
regard to legislation; that which concerns the forms of interrogation, to the
less dignified but not less necessary business of collecting verbal information: a
process subservient to the business as well of the legislative as of the executive
departments.20
An entire bureaucracy is given the task of collecting the most varied information,
drawing up statistics, interpreting them and being in a position to face all
See also Bentham, Deontology, which continues this enterprise.

15
Bentham, Introduction, p. 38.

16
17
Ibid., pp. 38–41; Bentham MS dealing in particular detail with the principles of a
moral calculus, quoted in D. Baumgardt, Bentham and the Ethics of Today (Princeton, NJ:
Princeton University Press, 1952), pp. 554–66.
18
Bentham, Book of Fallacies, p. 407.
19
For a discussion of the Logic of the Will, see Chapter 7, pp. 166–9.
20
Bentham, Introduction, p. 300n.
contingencies (natural disaster, epidemic or famine).21 In Constitutional Code,22

a legislation enquiry judicatory, within the Legislature and local sub-legislatures,
collects the necessary information for the enactment of laws. At a local level,
a local registrar collects all data on births, deaths, marriages and property
transfers.23
Within the framework of Bentham’s theory of democracy,24 information
is generally provided by votes. The legislator tries to discover the compound
of individual satisfactions which will maximise global utility. Consequently,
the electoral system must be such that it allows each individual to assert that
which maximises his own utility. Indeed, individuals are equally capable of
experiencing utility, and a given amount of pleasure has equal value, no matter
who experiences it. In 1817, the Plan of Parliamentary Reform, extended in a
Radical Reform Bill,25 put forward the principle of ‘virtually universal’ suffrage.
The only exceptions admitted were those which would contribute to the greatest
happiness, that is the insane, minors, soldiers used to obeying a superior, and
some criminals. It is interesting to note that Bentham is in favour of women’s
right to vote.26 Ballots must be free and therefore secrecy is essential,27 because
secrecy prevents the possible briber from being sure of the efficacy of his act
of bribery. Corruption is thus out of the question, and votes represent the
21
This is the theme of indirect legislation: see Mack, pp. 291–327; Long, pp. 135–49.
See also the paper of November 1800 addressed to Charles Abbot, Bentham’s half-brother,
on the subject of the method of census, in Bentham, Works, vol. 10, pp. 351–6, and the model
for a table for the collection of information in Pauper Management Improved, pp. 362–8 and
Table of Cases Calling for Relief, in Poor Laws, vol. 1.
22
Bentham, Constitutional Code, pp. 93–111.
23
Bentham, Constitutional Code, in Works, vol. 9, pp. 625–36.
24
For a discussion of democracy in Bentham’s thought, see Chapter 6, pp. 157–60.
25
J. Bentham, Radical Reform Bill with Extracts from the Reasons (London: E. Wilson,
1819).
26
On the subject of the Public Opinion Tribunal, he writes in Securities Against
Misrule and Other Constitutional Writings for Tripoli and Greece, in P. Schofield (ed.), The
Collected Works of Jeremy Bentham (Oxford: Clarendon Press, 1990), p. 58: ‘Not excluded
from this judicatory are, as such, any person of the female sex. From the exercise of a share
of the Constitutive power by means of votes in the election of the possessors of the Supreme
operative power or a share in it, they the gentler half of the species stand as yet excluded by
tyranny and prejudice.’ In Considérations d’un Anglois sur la composition des Etats généraux,
in Rights, Representation, and Reform: Nonsense upon Stilts and Other Writings on the French
Revolution, in P. Schofield, C. Pease-Watkin and C. Blamires (eds), The Collected Works of
Jeremy Bentham (Oxford: Clarendon Press, 2002), p. 70, Bentham refuses them the right to
vote. Here he acknowledges the weakness of the reasons he puts forward, in a style that is full
of rhetoric, before deliberately abandoning the subject.
27
120 Beyond Foucault
authentic result of each individual’s utilitarian calculus. Votes thereby provide

reliable information for legislative calculation.
The dynamics of information which proceed from top to bottom – from
those who govern to the citizens – match the dynamics which originate in the
citizens and are addressed to the legislator. First, citizens have access to laws
which guide their conduct. To Bentham, only an entirely codified system of laws
can perform the functions of legislation and lead to the greatest happiness. A
law can be defined as ‘an assemblage of signs declarative of a volition’.28 Laws are
essentially a means of using words to make one act.29 With the criteria that his
art of indicting laws, his ‘nomography’,30 imposes in order to express the rules
of law and their combinations, Bentham anticipates the very recent ‘legistic’.31
It requires clear, brief and precise wording. The accessibility of the law depends
on its publication and distribution: the different parts of the population must
receive the code that specifically concerns them.
In opposition, Bentham denounces the inadequacy of English law. The
complexity of procedure, the cost of trials, and the recourse to fictions and
unintelligible jargon make it the preserve of a wealthy élite. Statute law is
made up of voluminous and complex documents.32 Common law is only
rarely discernible. Since it is constructed in the abstract from specific court
decisions, it is a matter of conjecture, and does not provide any public and stable
reference capable of co-ordinating social life. When an unpredictable decision
is rendered in their case, individuals have to endure one of the ‘primary evils’ –
disappointment. Moreover, the community also has to suffer the more general
‘secondary evil’ of insecurity and apprehension concerning the actions that are
permitted.33 On the contrary, Bentham’s law appears fully comprehensible, since
J. Bentham, Of Laws in General, in H.L.A. Hart (ed.), The Collected Works of Jeremy
28
Bentham (London: Athlone Press, 1970), p. 1.

29
J. Bentham, A Comment on the Commentaries and A Fragment on Government, in
J.H. Burns and H.L.A. Hart (eds), The Collected Works of Jeremy Bentham (London: Athlone
Press, 1977), pp. 59, 72; Bentham, Of Laws, p. 82.
30
In Bentham, Works, vol. 5, pp. 231–95. See also J. Bentham, General View of a
Complete Code of Laws, in Works, vol. 3, pp. 207–9.
31
See C.-A. Morand (ed.), Légistique formelle et matérielle. Formal and Material
Legistic (Aix-en-Provence: Presses universitaires d’Aix-Marseille, 1999); D. Rémy, Légistique.
L’art de faire les lois, pref. F. Bernard (Paris: Romillat, 1994). An Italian reflection on this
subject is even entitled ‘nomografia’: see P. Di Lucia, Nomografia. Linguaggio e redazione delle
leggi (Milano: Giuffrè, 1994).
32
Bentham, Comment, p. 153. Bentham rewrites a 628-word law on stolen cattle in 56
words: ibid., pp. 141–4.
33
Bentham, Introduction, pp. 143–4.
it is rid of harmful fictions and is based on a method of paraphrase34 which brings

legal fictions – such as the notions of obligation, power or right – to the level of
sensations. Therefore, individuals can measure the utility of their behaviour and
govern themselves.35 Security, the first goal of legislation, is thus achieved.
Law also appears as an extremely powerful instrument. As it has an effect
on the causes of actions through the association of sanctions to certain types
of behaviour, Bentham views legislation as a system of social control which,
affecting their own self-control, makes individuals behave in a certain way.36 Such
a risk demands powerful control. A good government watches over the greatest
happiness for the greatest numbers, while a bad government only cares for the
interests of the minority in power. The instruments employed by governments
are largely similar; it is their implementation which is key. Bentham rejects the
means that are traditionally put forward, such as the separation of powers,37 or a
second parliamentary assembly.38 In his opinion, the quality of a ruler depends
on his abilities. First, he singles out moral aptitude, which consists in promoting
the interests of the greatest number, then intellectual aptitude, and finally active
aptitude. Among the works written at the same time as Constitutional Code, these
questions are the subject of the significantly-titled Official Aptitude Maximized,
Expense Minimized39 and Securities Against Misrule.40 In several manuscripts
written in the 1790s,41 Bentham stated that the maximisation of these aptitudes
depended on how closely the governed control the rulers. It is therefore essential
34
Bentham, Comment, pp. 494–5n.; Bentham, Introduction., pp. 205–7n.; Bentham,
Of Laws, p. 251; J. Bentham, Essay on Logic, in Works, vol. 8, pp. 247–8.
35
Bentham, Of Laws, p. 246.
36
D. Lyons, In the Interest of the Governed: A Study in Bentham’s Philosophy of Utility
and Law, revised edn (Oxford: Clarendon Press, 1991), p. 131.
37
J. Bentham, ‘Division of Power’, in Rights, Representation, and Reform, pp. 405–18;
J. Bentham, in Dumont (ed.), Œuvres, vol. 1, p. 564.
38
J. Bentham, A ses concitoyens de France sur les chambres de pairs et les sénats, trans.
C. Lefebvre (Paris, 1831); J. Bentham, Anti-Senatica. An Attack on the U. S. Senate, Sent by
Jeremy Bentham to Andrew Jackson, President of the United States, in pref. C.W. Everett, Smith
College Studies in History, 11/4 (1926): pp. 209–67.
39
J. Bentham, Official Aptitude Maximized; Expense Minimized: as Shewn in the
Several Papers Comprised in this Volume, in P. Schofield (ed.), The Collected Works of Jeremy
Bentham (Oxford: Clarendon Press, 1993).
40
Bentham, Securities Against Misrule.
41
J. Bentham, ‘On the Efficient Cause and Measure of Constitutional Liberty’, in
Rights, Representation, and Reform, pp. 409–14.
122 Beyond Foucault
that voters become one of the constitutional authorities, and an integral part
of the mechanism intended to promote the pursuit of the greatest happiness.42
Concerning the supreme authority – the Legislature – Bentham elaborates
a system of guarantees, and extrapolates it to the entire official machinery.43 The
aptitudes of public agents stem from their nomination by those whose interest
is the greatest happiness, from their responsibility,44 from the short duration of
their mandate (one year for the Legislature), from the fact that those elected
cannot be immediately re-elected, from their immediate dislocability,45 from
mandatory attendance, and from the publicity of their activity. Intellectual
aptitude is guaranteed by a period of tests and preparation before coming into
office, as well as regular tests afterwards. A system of financial competition
guarantees a reduction of the cost of government: holding power is in itself, to
a certain extent, its own reward.46 Among those with equal skills, the agent who
requires the smallest salary will be appointed.47
Bentham’s bureaucratic system48 is organised into a strict hierarchy. Tasks are
precisely distinguished49 so that they can be assigned to a precise individual, who is
then in charge of them. Thus, the functions of the 13 Ministers50 are distinguished
according to their connection with persons (appointment, removal, direction,
reappointment); with things (acquisition, preservation and maintenance, use in
accordance with the aims of the department, repair, transformation, elimination,
inspection); with persons, things and money simultaneously (statistics, reports,
publication, information to immediate superiors); or with persons, things,
42
A. Loche, ‘Limite e controllo della sovranità in Jeremy Bentham’, Materiali per una
storia della cultura giuridica, 30 (2000): pp. 340–42; D’Alessandro, pp. 77–8.
43
Bentham, Constitutional Code, p. 117.
44
Ibid., p. 155.
45
Ibid., pp. 168–70.
46
Bentham, Introduction, p. 44. Bentham, Constitutional Code, p. 456.
47
Ibid., pp. 337–62.
48
On this aspect, see C. Chauvet, ‘Les apports de Jeremy Bentham à l’analyse économique
de l’Etat. Prélude à une théorie de la bureaucratie’, diss., University of Picardie, 2006.
49
See, for instance, the distinctions in the functions of the Prime Minister: Bentham,
Constitutional Code, pp. 149–52.
50
Bentham was the first to theorise a modern type of ministerial department: see
B. Schaffer, ‘The Idea of the Ministerial Department: Bentham, Mill and Bagehot’,
Australian Journal of Politics and History, 3 (1957): pp. 60–78. The several defined ministries
require specific skills: elections, legislation, army, navy, preventive service (natural disasters
and delinquency), interior communication, indigence relief, education, public domain
(government-owned buildings for the benefit of the community), health, foreign relation,
trade, and finance. Some of these positions constitute revolutionary proposals, which did
not materialise in England for another hundred years.
money, statistics, laws, reports and publication simultaneously (suggestions

for improvement). Both the efficacy of the government and the control of the
people depend on the intelligibility of the tasks.
This legibility is linked with a requirement for publicity. To Bentham,
transparency51 is indeed the essential remedy for ‘misrule’,52 and is directed
towards the ‘Public Opinion Tribunal’. This Tribunal is composed not only of
voters, but of all people who may be aware of government activity. They can form
and express their own opinions.53 The Tribunal is designed as an appellate court
which hears appeals against decisions taken by the authorities, on the grounds
of the interest of the greatest number. It receives complaints, organises debates
between plaintiff and defence, searches for evidence, forms an opinion and
issues a judgment which is circulated and enforced. While government officials
have legal sanctions at their disposal, the Public Opinion Tribunal handles the
popular sanction.54
For all these several operations, one and the same article presents itself as the
effectual and the only effectual instrument. This instrument is no other than a
Newspaper: multitude of instruments of the same sort employed by so many
different sets of hands, and multitude of copies of each, as great as possible. In
this instrument may be seen not only an appropriate organ of the Public Opinion
Tribunal, but the only constantly acting visible one.55
Reading, debate and frequent ballots allow individuals to educate themselves

politically. To Bentham, the worst crimes56 involve the hampering of the people’s
51
The image of ‘transparency’ was created by Bentham himself: see for instance in
‘Economy as Applied to Office’, in J. Bentham, First Principles Preparatory to Constitutional
Code, in P. Schofield (ed.), The Collected Works of Jeremy Bentham (Oxford: Clarendon Press,
1989), p. 102. On this topic, see A. Brunon-Ernst, ‘Secret et transparence du langage sur
la charité dans Pauper Management Improved de Jeremy Bentham: l’enjeu démocratique’, in
R. Greenstein (ed.), Regards linguistiques sur le secret (Paris: L’Harmattan, 2001), pp. 93–116.
52
Bentham, Securities Against Misrule, p. 25. See also Chapter 6, pp. 145–51.
53
Ibid., p. 28. On the multiple versions of this Tribunal, see G. Tusseau, ‘Les Principles
of International Law de Jeremy Bentham’, Revue générale de droit international public, 112
(2008): pp. 227–32.
54
Bentham, Securities Against Misrule, pp. 45–6. See also Bentham, Constitutional
Code, p. 165.
55
Bentham, Securities Against Misrule, pp. 44–5.
56
Bentham, Constitutional Code, pp. 40, 41; J. Bentham, ‘Constitutional Code
Rationale’, in First Principles, p. 292; Bentham, Sur la liberté de la presse et de la discussion
publique, in Garanties contre l’abus de pouvoir et autres écrits sur la liberté politique, trans. and
postf. M.-L. Leroy (Paris: Editions Rue d’Ulm, 2001), pp. 41–99.
124 Beyond Foucault
freedom of communication, and the circulation of leaflets and newspapers,

through a system of taxation or licence, limiting of the people’s freedom of
assembly and association, and hindering the action of the Public Opinion
Tribunal by, for instance, withholding information or lying. This vast system
of vehicles of information guarantees the omniscience of both the population
and public agents. Since it determines whether public agents should be retained,
it ensures the internalisation of a certain ethic of the service of the greatest
happiness.57
Bentham’s theory presents a vision of a government which knows
everything about society, and a society which knows everything about its rulers’
activities. This vision initiates a universalisation of the panoptic paradigm on a
metaphorical level. However, the similarities between Bentham’s constitutional
and penal theories are not limited to the presence of transparent information.
His theories assume more tangible aspects, which testify to the transposition of
prison systems to the political level. Since the intention is to direct the behaviour
of a certain number of individuals through a combination of the principles of
economy and of security, the panoptic system seems to suggest itself. Bentham is
in a position to put forward a functional system which is applicable at the same
time to prisons, asylums, hospitals, work houses for the poor and schools,58 and
which allows for the surveillance of the governing machinery.
The panoptic system minimises the effective exercise of control, while
maximising awareness of this control. In penal law as well as in constitutional
law, it is a question of watching both recognised and potential offenders. The
rulers are in a position to commit public offences, and harm all the members of
the State.59 Bentham therefore recommends a principle of minimisation of trust
and maximisation of distrust60 in opposition to them. He intends to direct their
behaviour towards general utility by both curative and preventive means.
In the Panopticon, inspection is organised on five different levels. (1) The
prisoners are watched by the inspector; (2) the inspector watches his subordinates;
(3) his subordinates watch the inspector; (4) inmates spy on each other as a result
of a system of mutual responsibility; (5) the structure is open to the wider public,
who exert a global surveillance. The only ‘dark spot’ is that the guards remain
invisible to the prisoners.61 This is the only limit to the possible analogy between
Rosenblum, Bentham’s Theory of the Modern State, Chapter 6.

57
Bentham, Panoptique. Mémoire sur un nouveau principe pour construire des maisons
58
d’inspection, ed. Dumont, p. 50; Bentham, Panopticon Writings, pp. 29, 76–95.
59
Bentham, Introduction, pp. 187–91.
60
61
Semple, Bentham’s Prison, p. 140; M. Bozovic, ‘Introduction: An Utterly Dark Spot’,
in Bentham, Panopticon Writings, pp. 1, 15–18.
the Panopticon and Bentham’s democratic State, in which panoptic concern

seems to reach an unequalled degree of perfection. In Constitutional Code,
Bentham suggests an analogy with the power of inspection in the Panopticon:
… in regard to the exercise of the power of the supreme constitutive, either in the
dislocation or the punition of its supposed offending agents, what is desirable is,
that the actual application of it, be as rare as possible, and at the same time, in the
breasts of those same agents, no such acts of transgression be ever committed.
To this end, what is desirable is, that in the event of any such transgression, the
probability of such dislocation and punition should, in the eyes of the several
members of the legislature, at all times be as great as possible.62
Like prisoners in the Panopticon, rulers feel this impact in their imaginations.
In the ‘Constitutional Code Rationale’,63 Bentham presents three principles
of constitutional politics. The first principle describes the aim that must be
pursued: the greatest happiness. The subject of the second principle is the nature
of all individuals: ‘self-preference’, according to which ‘whatever be the form of
government, a man will prefer his own felicity to that of all others put together’.64
Third is the junction-of-interests prescribing principle. On the basis of these
anthropological considerations, the very structure of the constitution must
ensure the pursuit of the greatest happiness.65 Public agents have to be deprived
of either the interest or the power of giving up general utility in favour of their
own. In the first case, their motives have to be manipulated in order to make this
‘sinister sacrifice’ less attractive than the pursuit of the general interest:
… the bringing of the personal interest of the functionary into accordance with
the universal interest [is] promoted [in] so far as his situation is an object of value
in his eyes, and in so far as his continuance in it or his return to it or to a similar
one is felt by him to be dependent on those of whose interest the universal interest
is composed, in so far is his individual interest brought into accordance with the
universal interest.66
Bentham, Constitutional Code, in Works, vol. 9, p. 106.

62
Bentham, First Principles.

63
64
‘Supreme Operative’, in Bentham, First Principles, p. 212.
65
Bentham, Constitutional Code, in Works, vol. 9, p. 105.
66
Bentham, ‘Constitutional Code Rationale’, p. 240. See also J. Bentham, A View of the
Hard Labour Bill, in Works, vol. 4, pp. 1–35; Bentham, Leading Principles of a Constitutional
Code, p. 12.
126 Beyond Foucault
In order to bring about the conjunction of interest and duty, the essential
mechanism works upon the ‘pleasures of a good name’,67 brought by honour
and the gratitude of one’s fellow citizens. This principle is constantly asserted
in the Panopticon writings.68 When associated with the principle of economy, it
establishes, for instance, the recourse to management by contract with a private
individual, rather than public management under state control. The private
individual’s enrichment (and therefore the satisfaction of his interest) depends
upon the fulfilment of his duty. Thus two principles which were originally in
opposition are reconciled.
The second case focuses on limiting the power to perform the ‘sinister
sacrifice’, and is based on the controls which bear on all public agents. As in
the Panopticon writings, the confluence of the different currents of information
ensures a limitation of the power of overseers, although that power is initially
extensive.69
When placed in a common perspective, Bentham’s works aim at a concrete
application. The proposed systems have to be able to function, and must therefore
be described in minute detail. The constructions are also similar on this level.
The importance Bentham attaches to architecture is a permanent feature of his
work, and remains a contemporary concern in the penal sphere.70 The subject of
the Panopticon project is:
Morals reformed – health preserved – industry invigorated – instruction diffused

– public burthens lightened – Economy seated as it were upon a rock – the Gordian
knot of the Poor-Laws not cut, but untied – all by a simple idea in Architecture.71
Bentham, Introduction, p. 44. See also Bentham, Constitutional Code, p. 451.

67
Concerning the pauper Panopticon, Hume, Bentham and Bureaucracy, p. 161 lists the
68
principles which recur under different names: (1) Inspective architecture; (2) Transparent-
management or publicity; (3) Duty-and-interest-junction; (4) Unity of authority; (5) Piece-
work; (6) Peculiar-premium or prize-giving; (7) Honorary reward; (8) Separate-work; (9)
Ample-scale; (10) Labour-division; (11) Employment-mixing or sundry-trade; (12) Habit-
respecting; (13) Refuse-employing or save-all; (14) Use-multiplying or many-use; (15)
Uniform-management; (16) Local-consideration-consulting; (17) Tabular-statement; (18)
Comparison and selection.
69
Bentham, Panopticon Writings, p. 52: ‘I would give my contractor all the powers that
his interest could prompt him to wish for, in order to enable him to make the most of his
bargain, with only some slight reservations.’
70
See C. Demonchy, ‘Architecture et évolution du système pénitentiaire’, Les cahiers de
la sécurité intérieure, 31 (1998): pp. 79–89.
71
Bentham, Panopticon, or the Inspection-House, in Works, vol. 4, p. 39.
In Constitutional Code, Bentham also considers that ‘on architecture good

Government has more dependence than men have hitherto seemed to be aware
of ’.72 Reflecting the Panopticon, ministries will occupy buildings that are within
the Prime Minister’s reach, and built in a circle.73 A system of conversation tubes
ensures permanent contact and echoes the conversation, heat and water tubes of
the panoptical prison.74
The Constitutional Code presents a system that is similar to the Panopticon,
though in a reversed form.75 In each ministry, the desks are surrounded by
waiting-rooms where citizens can solicit and examine their agents’ work
whenever they see fit.76 The inspector is no longer at the centre, but around
the circle. The individual who is being watched and presented to the people’s
all-powerful gaze is a public officer. Enduring this scrutiny is indeed one of the
essential duties of all public officers.77
Bentham suggests the closeness of constitutional and penitentiary
organisations, down to the practical details inspired by his concern to maximise
utility. Among others, the principle of recording establishes a link between the
‘Panopticon and its companions’.78 To Bentham, publicity is the best of securities.
The more one’s behaviour is public, the more one is driven to behave according
to the principle of utility. Because of the transparency of the Panopticon, all can
judge whether the contractor who manages it performs his function properly or
not.79 Then all can judge whether the contractor who manages the Panopticon
performs his function. The contractor publishes his accounts, procedures and
details of management.80
In the Panopticon designed for the paupers of the National Charity
Company,81 Bentham also became an advocate of scientific management.82 A
system of book-keeping lists information about the population (who works,
with what tools, their income, their production), and details of stock (methods
72
Bentham, Constitutional Code, p. 55. See also Bentham, Tactique des assemblées
politiques délibérantes, in Dumont (ed.), Œuvres, vol. 1, p. 442.
73
74
Ibid., pp. 442–3.
75
Leroy, ‘Le Panoptique inversé’, pp. 155–77.
76
77
Ibid., p. 40.
78
Hume, Bentham and Bureaucracy, p. 110.
79
d’inspection, ed. Dumont, p. 32.
80
Ibid., p. 33.
81
See on this subject: Brunon-Ernst, Le Panoptique des pauvres.
82
Bentham, Pauper Management Improved, pp. 358–439.
128 Beyond Foucault
of acquisition and use of means of production), of health, behaviour and

correspondence:83
The responsibility to prepare and publish reports or to allow open access to certain
documents was a common feature in most of his schemes. These arrangements
were intended partly to facilitate internal control and decision-making …, and
partly to promote public oversight and control.84
Tables of statistics allow for the establishment of aggregate books which

synthesise and compare the collected data.
In Constitutional Code, all levels of administration are the seat of a system of
inspection, publication and records.85 In accordance with the principle of ‘public
account keeping’,86 standardised documents describe the activities of public
authorities in detail.87 The Service book relates the execution of the different
tasks. It allows for the evaluation of needs and for their satisfaction at a lower
cost. The Loss book gives an account of the quantities and causes of any losses.
The Outset book draws up a list of means of production. It is subdivided into
Personal, Immoveable, Moveable and Money books. The Journal book shows the
movements of means of production inside the ministry. All this data requires an
appropriate method of collection, reproduction and circulation of information.
Bentham recommends a system of abbreviations, and, with abundant detail,
makes Ralph Wedgwood’s system of ‘manifold writing’ his own.88 The whole life
of an institution can thus be collected and recorded.
At the end of a detailed study of the inspection house, Janet Semple considers
that the Panopticon should not be understood as the paradigm of government.89
However, the parallel between the constitutional and the prison systems seems
inevitable, both at the level of principle, and in the details of their application:
Bentham, Pauper Management Improved, pp. 391–4. In industry houses, the

83
subjects of the registers are: population, credit transactions, financial transactions and
correspondence.
84
85
Bentham, Constitutional Code, pp. 159–68, 276–82.
86
Bentham, Official Aptitude Maximized, pp. 293–301.
87
Bentham, Constitutional Code, pp. 218–67. The ‘statistic’ and ‘recordative functions’
are carefully presented and adapted to the different types of books in which the internal
organisation and drafting are themselves meticulously detailed.
88
Ibid., pp. 159–62.
89
Semple, Bentham’s Prison, p. 314.
Bentham developed many of his ideas about organization and management as

solutions to particular problems in particular institutions. But once he had devised
them, they were available to be used again and he himself rarely saw them as having
only a local application. He freely translated them from one institution to another.90
Consequently, the problem lies in the interpretation of this convergence.
The Ambivalence of Bentham’s Thought
The closeness of Bentham’s works in the spheres of constitutional and prison law
has aroused divergent interpretations among those who have studied them. In
the force of either denigrators or advocates, the coherence of Bentham’s project
should be brought to the fore in order to assess its current interest.
For some authors, Bentham’s thought is the expression of a pathological
obsession with social control. In the political field, the panoptic paradigm
provokes emotions similar to those aroused by its initial purpose.91 These
tortured proposals are seen as containing the essence of the utilitarian vision
of power associated with an obsession with social control,92 which has spread
from the surveillance of individuals placed at the margins of social discipline
to political rulers. They are seen as the expression of Bentham’s monomania,
since the purgatory of the panoptic paradigm is generalised to the level of
society as a whole. The Constitutional Code then appears as the charter of
totalitarianism.93 Getrude Himmelfarb even sees panopticism as the realisation
of philosophical radicalism.94 J.-A. Miller also considers that utilitarians are
basically panopticists.95 Charles Bahmueller is more moderate, and considers
that this vision of power and its organisation is not inherent to utilitarianism,
but to Bentham himself.96
90
91
Himmelfarb, ‘The Haunted House of Jeremy Bentham’, pp. 32–81; W. Twining,
‘Imagining Bentham: A Celebration’, Current Legal Problems, 51 (1998): pp. 1–36.
92
Bahmueller, The National Charity Company; Barou, Foucault and Perrot (eds), ‘L’œil
du pouvoir’, p. 16; Perrot, ‘L’inspecteur Bentham’, pp. 169–219, 205; Huxley, pp. 193–4.
93
R.A. Posner, ‘Blackstone and Bentham’, in The Economics of Justice (Cambridge,
MA; London: Harvard University Press, 1981), pp. 13–47; Miller, ‘Le despotisme de
l’Utile’, pp. 6, 23; Perrot, ‘L’inspecteur Bentham’, p. 179.
94
Himmelfarb, ‘The Haunted House of Jeremy Bentham’, pp. 75, 78–80.
95
Miller, ‘Le despotisme de l’Utile’, pp. 7, 19, 24.
96
Bahmueller, pp. 212–13.
130 Beyond Foucault
Michel Foucault revealed that the panoptical principle acts on the very
structure of the mind. Bentham is a much sharper analyst of human psychology
than is usually believed. He understands the power of symbolism as a language
and, from this point of view, he anticipates Jacques Lacan’s psychoanalysis.97
He is aware of the functioning of the panoptical system, and notes that being
constantly under the watchful eye of an inspector causes one to lose the power
to do evil, and almost even the thought of wishing to do so.98 Even more
frightening, he adds that inspection is the unique principle, and that in order to
establish and maintain order, a new kind of inspection should be operated: one
that strikes the imagination rather than the senses, one that renders hundreds of
men dependent on a single man, and gives this man a sort of universal presence
inside his domain. As the inspector is himself invisible, he reigns like a spirit.99
The inspector is omniscient, omnipresent and omnipotent, he is like God.100
Foucault writes:
So to arrange things that the surveillance is permanent in its effects, even if it is

discontinuous in its action; that the perfection of power should tend to render its
actual exercise unnecessary; that this architectural apparatus should be a machine
for creating and sustaining a power relation independent of the person who
exercises it; in short, that the inmates should be caught up in a power situation of
which they are themselves the bearers.101
The panoptic universalisation of power ensures its total dematerialisation. It is

relocated, and obeys a self-maintaining dynamic that is no longer controlled
by anyone. In its technical nature and in a strictly necessary and mechanical
manner, the actual system generates a social situation where everyone watches
everybody else, is watched by them, and eventually watches him- or herself.
With the Panopticon, Bentham seems to be concerned with the creation
See J.-P. Cléro and C. Laval, ‘Introduction. La théorie des fictions et l’utilitarisme’,
97
in J. Bentham, De L’ontologie et autres textes sur les fictions, eds P. Schofield, J.-P. Cléro and
C. Laval (Paris: Editions du Seuil, 1997), pp. 9–65; Bozovic, p. 23; J. Lacan, Le Séminaire.
Livre VII L’éthique de la psychanalyse 1959–1960, ed. J.-A. Miller (Paris: Le Seuil, 1986),
p. 55; Bahmueller, pp. 21–2.
98
d’inspection, ed. Dumont, p. 16.
99
Ibid., pp. 15–16.
100
Himmelfarb, ‘The Haunted House of Jeremy Bentham’, p. 35; Miller, ‘Le despotisme
de l’Utile’, pp. 4–5; Bozovic, pp. 9–24.
101
p. 201.
of a human-scale utilitarian society. He aims at turning law into an efficient

instrument of social control. Bentham’s various panoptic systems are composed
of limited spaces that provide grounds for experiments in which his normative
order, founded on the distribution of punishments and rewards, is wholly
applied. Had he been recruited as general inspector in a Panopticon – and
his attempts to this end were numerous – Bentham could have realised his
dream of controlling a social organisation.102 Bahmueller studied the plans of
the National Charity Company in great detail, and underlines the confining
and oppressive nature of this institution. This miniature society guarantees
the forced inculcation of the utilitarian point of view,103 finally ensuring the
‘utilitarianization’104 of individuals.
The moral reform that Bentham tries to implement is based on the fight
against idleness. It attaches little importance to human dignity or respect for
personality,105 and gives concrete expression to a type of secularised Protestant
asceticism106 which is instilled using repressive and rationalised paternalism.
Work discipline is firm, timetables are fixed, infallible and internalised. Posner
sees Bentham as a pioneer in brainwashing.107 As an illustration of Bentham’s
penal, and more generally social and political, thought, the panoptic paradigm
can therefore be seen as Bentham’s legacy to totalitarianism. To Perrot, the matrix
of the Panopticon is a Russian labour camp realised by an English engineer, one
that prefigures the Gulag.108
Moreover, the Panopticon’s central inspector has at his disposal a workforce
that is there to do the master’s bidding.109 The project then serves the interests
102
Bahmueller, p. 206.
103
Ibid.
104
Ibid., p. 56. See also Foucault, Surveiller et punir, pp. 245–6; Bentham, Panoptique.
Mémoire sur un nouveau principe pour construire des maisons d’inspection, ed. Dumont, p. 47
on the making of ‘new men’.
105
Bahmueller, pp. 2, 114, 209–10, 215–16; Himmelfarb, The Idea of Poverty, pp. 84–5;
Miller, ‘Le despotisme de l’Utile’, p. 8.
106
Bahmueller, pp. 164–9; E.E. Marí, ‘El panoptico en el texto de Jeremy Bentham’,
in P. Legendre et al. (eds), El discurso jurídico. Perspectiva psicoanalítica y otros abordajes
epistemológicos (Buenos Aires: Hachette, 1982), p. 208.
107
Posner, pp. 40–41.
108
Perrot, ‘L’inspecteur Bentham’, p. 188. See also Huxley, pp. 194, 196.
109
Himmelfarb, ‘The Haunted House of Jeremy Bentham’, pp. 50–57, 64–5, 76;
Himmelfarb, The Idea of Poverty, p. 80; Bahmueller, pp. 174–86, 210–13. See for instance
Bentham’s words in Panopticon Writings, p. 55: ‘One thing [the contractor] would not fail
to say to me is – What trades may I put my men to when I have got them? My answer is soon
given. Any whatever that you can persuade them to turn their hands to’; see further Letter XIII
‘Means of Extracting Labour’, in Bentham, Postscript, Part II, pp. 141–2: ‘1: Of what nature
132 Beyond Foucault
of the industrial middle classes, who were on the ascendant at the end of the
eighteenth century.110 Illustrating his economic concern both within the prison
and at the level of government, Bentham seems concerned with collecting the
smallest fragment of productive work, and making every single movement
profitable. Rest must be minimised. To Bentham, no one is so impaired as to
be incapable of some useful task.111 Children, individuals who need to lie down,
the deaf, the blind and the feeble-minded can always be put to a useful task. The
productivist dimension of the utility principle requires that nothing is ever done
in vain, or leads to any loss. For instance, Bentham specifically provides that
waste and even excrement are to be re-used as compost.112 This is why Bahmueller
notes that ‘when Bentham heard the words “increased costs”, he reached for his
gun’.113 This insinuation is not particularly felicitous; it does, however, express a
certain interpretation of Bentham’s theory which underlines its hazards.
While on the surface it merely presents a solution to a technical problem,
the Panopticon nevertheless draws up a plan for a type of society. It is therefore
only one example among others of a general principle of social discipline.114 It
illustrates ‘a figure of political technology that may and must be detached from
any specific use’,115 and can thus be suspected of being ‘a version of a Benthamite
society writ small’,116 based on the control that best penetrates the very heart of
each person’s individuality.
Some authors do not, however, agree with this vision, and try to qualify the
criticisms that are levelled at the panoptic paradigm. One of Bentham’s first
defence strategies underlines the limited nature of the sphere of application
of the principle. According to Campos Boralevi, the Panopticon constitutes a
shall be the employments carried on in this house? Of what quality, in consequence, the
labour exacted of the prisoners? 2. In what quantity shall that labour be? …. Of what quality?
…. The most lucrative (saving the regard due to health) that can be found. …. How much in
quantity? – Of course, as much as can be extracted from each without prejudice to health.’
110
Barou, Foucault and Perrot, ‘L’œil du pouvoir’, p. 20 (M. Foucault’s remarks); Perrot,
‘L’inspecteur Bentham’, pp. 213–19; Bahmueller, p. 120.
111
Bentham, Pauper Management Improved, p. 382.
112
Bentham, Panopticon; or, the Inspection-House, pp. 41–2; see also Bentham, Works,
vol. 10, p. 585.
113
Bahmueller, p. 121.
114
Foucault, Surveiller et punir, p. 252; Bahmueller, p. 58.
115
p. 205.
116
Bahmueller, p. 110. Similarly, see Hume, ‘Bentham’s Panopticon: An Administrative
History’, p. 191; Miller, ‘Le despotisme de l’Utile’, p. 7.
limited answer to a restricted problem.117 Similarly, Rosenblum118 and Semple

consider that the Panopticon is only an instrument of government, and not a
paradigm of government. Indeed, Bentham’s Panopticon projects, as a prison
and for paupers, have to be understood in their particular historical context.
His thought on architecture, which, unlike a system of dungeons, aims at
obtaining a total visibility of the prisoners, is not Bentham’s own. It was the
concern of a wider movement at the time, for which Bentham supplies a radical
interpretation. Within a wider criticism of penal law,119 Bentham proposed a
solution to the problems of insecurity, delinquency, alcoholism and idleness in
England (and other European countries) in the eighteenth century. In contrast
to the extremely severe penal system of his time, he put forward an economical
method of surveillance. At the time when almost 200 offences were punishable
with the death penalty,120 Bentham called for its abolition.121
Moreover, his economic concern was not only about money. First of all,
Bentham was concerned with economising on human suffering.122 Punishment
is indeed an evil, which should be minimised.123 Faced with the conditions of
detention or deportation of criminals to the colonies – where the outcome was
often death – in the face of other projects for reform which erred on the side
of severity, leniency or expenditure, Bentham put forward an unquestionably
117
L. Campos Boralevi, Bentham and the Oppressed (Berlin: Walter de Gruyter, 1984),
pp. 103–5.
118
Rosenblum, pp. 19–20.
119
See for instance Bentham, Rationale of Punishment, in Works, vol. 1, pp. 390–532
written in the 1770s, published in French by Dumont in 1811, then in Portuguese and
Spanish, and only in 1830 in English.
120
W. Blackstone, A Commentary on the Laws of England, 3rd edn (4 vols, Oxford:
Clarendon Press, 1768–69), vol. 4, p. 18 counts 160. See L. Radzinowicz, A History of
English Criminal Law and its Administration from 1750 (4 vols, London: Stevens and Sons,
1948–68), vol. 1, pp. 1–227.
121
See J. Bentham, On Death Punishment. Jeremy Bentham to his Fellow-Citizen of
France, in Works, vol. 1, pp. 525–32. On the contrary, J.S Mill was in favour of the death
penalty: see J.S. Mill, ‘Speech in Favor of Capital Punishment (1868)’, in J. Feinberg and
H. Gross (eds), Philosophy of Law (Belmont, CA: Wadsworth, 1975), pp. 619–22.
122
Bentham, ‘Economy as Applied to Office’, p. 5; Bentham, Panopticon Writings, p. 49:
‘Rendering unnecessary that inexhaustible fund of disproportionate, too often needless, and
always unpopular severity, not to say torture – the use of irons’; ibid., p. 63: ‘I don’t know
that I should be for allowing [the contractor] the power of beating his borders, nor, in short,
of punishing them in any shape’; ibid., pp. 81–2: ‘separate cells, exposed, as in the case of
prisons, to inspection, would render the use of chains and other modes of corporal sufferance
as unnecessary in this case as in any’. Similarly, corporal punishment is excluded from his
project for a chrestomathic school, see Bentham, Chrestomathia, p. 34.
123
134 Beyond Foucault
preferable project, in accord with John Howard’s works.124 Bentham’s proposal

rested on a strong utilitarian basis: the curative and preventive effects of the
Panopticon were, on the one hand, superior to those of other systems. On
the other hand, they were achieved while minimising costs, thanks to private
management, and, most importantly, without causing unnecessary suffering.
In the context of dramatic historical circumstances, his projects in favour
of the poor also tried to respond to the concern of reducing human suffering,
in a more reliable way than private charity. The failure of the law and social
structures to adjust to industrialisation, famine, the abandonment of children
and prostitution were the realities that Bentham’s utilitarianism tried to
address.125 In his constitutional projects, this approach comes to a head with the
institution of an Indigence Relief Ministry.
The Panopticon project therefore appears beneficial in the eyes of some
authors. Indeed, the private contractor to whom the management of the
Panopticon is entrusted by contract derives a benefit from the work the prisoners
do for him. Remuneration depends on their motivation. The contractor’s
interest is then to attend to the health and proper treatment of the individuals
he supervises. Bentham notably devises a system of allowances for each human
life saved.126 More generally, he intends to fight against the problems caused by
hunger, cold, squalor, disease and humiliating and unnecessary ill-treatment.127
The Panopticon is also about guaranteeing the surveillance of the guard
himself, and generally avoiding arbitrariness in the person who administers
124
J. Howard, L’état des prisons, des hôpitaux et des maisons de force en Europe au 18e
siècle, trans. and ed. C. Carlier and J.-G. Petit (Ivry: Editions de l’Atelier / Editions ouvrières,
1994).
125
See for instance Himmelfarb, The Idea of Poverty; Bahmueller, pp. 29–41; Campos
Boralevi, p. 96; Hume, ‘Bentham’s Panopticon: An Administrative History’, p. 190. Thus
Bentham devised a ‘sotimion’, where women who did not want to keep their children could
give birth. The children would not then be abandoned or killed, and women would not be
exploited or become prostitutes: see Semple, Bentham’s Prison, pp. 290–97. The Poor Law
Amendment Act of 1834 echoed these preoccupations, and Bentham is sometimes given
intellectual paternity for it: see M.I. Zagday, ‘Bentham and the Poor Law’, in G.W. Keeton
and G. Schwarzenberger (eds), Jeremy Bentham and the Law: A Symposium (London:
Stevens and Sons, 1948), pp. 58–67.
126
Bentham, Panopticon Writings, pp. 64–5; Bentham, Panoptique. Mémoire sur un
nouveau principe pour construire des maisons d’inspection, ed. Dumont, p. 32.
127
The subject of prisons is dealt with in Bentham, Garanties contre l’abus de pouvoir,
pp. 180–81, on the grounds of what constitutes, for Bentham, the functional equivalent of
fundamental rights. On this point, see G. Tusseau, ‘Jeremy Bentham et les droits de l’homme:
un réexamen’, Revue trimestrielle des droits de l’homme, 13 (2002): pp. 407–31.
punishment.128 ‘Tribunal of the world’ (as public opinion is renamed),129 is

thus continuously admitted to visit the Panopticon. On the one hand, seeing
the conditions of the prisoners, members of the public are deterred from
committing offences,130 while at the same time they feel sympathy, which later
favours the social rehabilitation of prisoners. On the other hand, the guard
is encouraged not to dispense disproportionate treatment in terms of human
suffering. Contrary to a generally accepted idea, the notion of sympathy for
others assumes an essential dimension in Bentham’s thought.131 The contractor
is also subject to his subordinates’ gaze, and has to account for his activities to
the public authorities. Finally, a fine is imposed upon him when an ex-prisoner
commits a subsequent offence.132 The structure is therefore organised so that it
is in the best interest of the manager of the Panopticon to favour emancipation,
and not to ill-treat the persons placed under his authority. The power defined
by the panoptic paradigm is surreptitious, spontaneous, silent, dematerialised,
latent and threatening. It therefore carries in its own universalisation the
principle of its limitation. This is precisely why it leads, according to Bentham,
to the respective happiness of the Panopticon’s population, its manager and
society in general.
Utilitarian calculus is first of all a calculation of probability. The motives
for action rest on mathematical expectations.133 The success of this calculation
in daily actions is favoured by the stabilisation of the parameters taken into
account. This is why security is the primary aim of legislation.134 The different
Panopticons provide a space for certainty which is as large as possible, using
fixed norms and infallible surveillance. Their population was originally rendered
vulnerable by poverty, unemployment, insanity or ignorance. The Panopticons
offer them the possibility of regaining a rudiment of the practice of utilitarian
calculus, not strictly reduced to that of the present moment, as it is for animals.
Entry into one of the panoptic systems guarantees first of all a certain security,
128
Bentham, Théorie des peines et des récompenses, ed. E. Dumont, vol. 1, pp. 83–4;
Semple, Bentham’s Prison, pp. 140–52. Foucault, Surveiller et punir, pp. 238, 241–2
minimises this aspect.
129
Bentham, Panopticon Writings, p. 48.
130
Bozovic, p. 4; Bentham, Panopticon Writings, pp. 100–101 n; Miller, ‘Le despotisme
de l’Utile’, pp. 14–18.
131
132
Bentham, Postscript, Part II, pp. 165–8.
133
J.-P. Cléro and C. Laval, Le vocabulaire de Bentham (Paris: Ellipses, 2002), pp. 12–
14, 15–19; Laval, Artifices du capitalisme, pp. 71–6.
134
Laval, Artifices du capitalisme, pp. 84–103.
136 Beyond Foucault
and the survival of individuals.135 As a source of income, work then constitutes

the way to recover the capacity to eat and pursue expectations, and to look
forward to a better future, thanks to one’s own efforts. As highlighted by Allison
Dube,136 Bentham’s invention is inseparable from a wish to restore to individuals
the dignity of honest and industrious men. They can then naturally find their
place in society. In spite of his hostility towards religion,137 Bentham underlines
in Christian-like138 words that the whole construction can only be favourable
to economic development. His prison system rests on the development of
utilitarian behaviour, that is, on reward rather than on punishment. Therefore,
Bentham liberates men, or rather encourages them to liberate themselves.
Thus Bentham realises the two objectives of penal utilitarianism: dissuasion
through the certainty of punishment rather than severity, and moral reform.139
In the modern world, as is revealed year after year in the reports collected by
the ‘Observatoire international des prisons’, many prisons are less humane than
those described in the proposals put forward in the Panopticon projects.140 They
remain schools of vice, where, through a lack of transparency, petty tyrants rule,
both among the guards and the prisoners. They generate unnecessary violence,
humiliation, lack of privacy due to overpopulation, dubious sanitary conditions
and a black market,141 none of which favour emancipation. In contrast, the ‘moral’
and even humane142 aspect of the Panopticon143 cannot be denied. The panoptic
Dube, pp. 316–17.

135
Ibid., pp. 314–34.

136
137
J. Bentham, Church of Englandism and its Catechism Examined (London, 1818);
J. Bentham (under the name of P. Beauchamp), Analysis of the Influence of Natural Religion
on the Temporal Happiness of Mankind (Amherst, NY: Prometheus Books, 2003). See
J.E. Crimmins, Secular Utilitarianism: Social Science and the Critique of Religion in the
Thought of Jeremy Bentham (Oxford: Clarendon Press, 1990).
138
Bahmueller, pp. 86–7; Semple, Bentham’s Prison, p. 122.
139
E.E., Marí, ‘El castigo en el plano del discurso teórico’, in Legendre et al. (eds),
El discurso jurídico, p. 190.
140
J.J. Moreso, La teoria del derecho de Bentham, vol. 7 (Barcelona: PPU, 1992),
p. 375. On the movement for the privatisation of prisons in the United States and the
United-Kingdom, and its successes and appeal in Germany and France, see B. Pokol,
The Concept of Law: The Multi-Layered Legal System (Budapest: Rejtjel Edition, 2001),
pp. 145–6. For a more general approach, see K. Beyens and S. Snacken, ‘Prison Privatization:
An International Perspective’, in R. Matthews and P. Francis (eds), Prisons 2000 (London:
Macmillan, 1996), pp. 240–65.
141
V. Vasseur., Médecin-chef à la prison de la santé (Paris: Le cherche midi éditeur, 2000).
142
Semple, Bentham’s Prison, pp. 112–14.
143
On the concrete posterity of panopticism taken as a model by the Society for the
Improvement of Prison Discipline in the 1820s, see, for instance, Perrot, ‘L’inspecteur
paradigm finds its precise realisation on the political level in the maximisation of
the aptitude of rulers, which is also defined as ‘moral’, that is, their determination
to pursue the greatest happiness.
Although Bentham’s Panopticon was denounced for its potential for
totalitarian evolution, it is nevertheless based on a laudable intention. However,
judging Bentham on his intentions would mean ignoring his consequentialist
perspective.144 From this point of view, the panoptic paradigm seems harder to
assess. Yet it is not inappropriate to think that minimising suffering would have
been effective, in accordance with the objective of utilitarianism. As such, even
beyond the controversy between pros and cons, Bentham’s Panopticon proves,
more fundamentally, indicative of the totality of his project.
Bentham’s works developed around reflection on the principle of utility.145
The panoptic paradigm integrates perfectly with this comprehensive and
coherent dynamic. The ideal of the transparency of power put forward by
Bentham is not only the result of his obsession with social control, which
would reduce the Panopticon to the ‘perverse dream’146 of a fanatical crank. It
results from a commitment to promote the greatest happiness and to reveal
encroachments, whether they rely on physical force, moral corruption or,
perhaps more fundamentally still, on language. Both Bentham’s republic and
his prison are inspired by a certain science of behaviour and, if they do not
intend to reform men, they at least intend to use men’s intelligence as a base.
This is why each individual can be seen as a full member of the Public Opinion
Tribunal and be appointed as a critic of the power-holders. The universalisation
of the panoptic paradigm is therefore at the heart of Bentham’s project, and it
is precisely through it that the principle of inspection became the organising
principle of the most daring democracy of its time.147
Bentham’s legal theory is a true description of the methods of influence
of men over others, and contributes to exposing the pantomime of power. To
monitor it, Bentham creates a self-maintaining dynamic which increases the
‘aptitude’ of the prisoners, the poor, their guards, the people and finally the rulers.
Bentham’, pp. 198–207; Semple, Bentham’s Prison, pp. 309–13; Cléro and Laval,
Le vocabulaire de Bentham, pp. 50–51.
144
145
Ibid., p. 11.
146
p. 225.
147
C. Laval, ‘De l’utilité du panoptique’, in J. Bentham, Panoptique. Mémoire sur un
nouveau principe pour construire des maisons d’inspection, et nommément des maisons de force,
ed. E. Dumont and postf. C. Laval (Paris: Editions Mille et une nuits, 2002), pp. 63–4.
138 Beyond Foucault
Although he never claimed paternity,148 Bentham worked on the possibilities

of a practical application of the principle of utility in the minutest technical
details, first on a limited scale, and then on the scale of the entire political
society. They are Bentham’s greatest contribution to the history of thought. The
panoptic paradigm ensures that all individuals, at their own level, are agents of
the promotion of the greatest happiness.
In Constitutional Code, Bentham is led to draw up a portrait of the twentieth-
century State, including perhaps its worst deviances. He nevertheless puts
forward the fundamental features of the contemporary Constitutional State149
– based on representative democracy, universal suffrage, political responsibility
and active central and local administrative authorities – and of the fundamental
rights guaranteed to citizens. From stone to metaphor, from the limited world
of the prison to the entire political society, the mechanism of the panoptic
paradigm remains quite fascinating in spite of the horror it can generate. Yet
this mechanism is only the necessary result of the interaction of the principle of
utility on determined individuals. The organisation of Bentham’s republic and
his Panopticon are naturally in keeping with Bentham’s works.
The analogies between the penitentiary and the political projects testify
to the coherence and scope of Bentham’s reform project. From a historical
perspective, the utilitarian argument he develops proves remarkable on more
than one account.
The style of some of the Panopticon writings is often particularly assured,
categorical and even brutal. The accumulation of endless demonstration of the
concepts, and then of the utility of each and every one of the proposed processes
is also one of its main features. Thus it is immediately apparent that Bentham’s
utilitarianism is intended to be more than merely theoretical. All his life, the
major theoretician of utilitarianism tried to implement it on a practical level,
so much so that he personifies the active and transformative tendency of the
Enlightenment movement.150 His thoughts on law or economy are not only
pure speculation. They were aroused by historical circumstances in England and
other countries. The hundreds of pages written by Bentham formally denied,
in detail, one of the common-place arguments frequently brandished against
the principle of utility: its impracticability. Line after line, Bentham produces
evidence to the contrary, on the subject of the social problems of his time. He
provides a true methodology of the utilitarian calculus in all aspects of daily life.
For the reader, Bentham’s writings may encompass exaggeratedly minute details.
See J. Bentham, ‘Article on Utilitarianism’, in Deontology, pp. 283–328.
148
B. Pendas García, Jeremy Bentham: Política y Derecho en los orígenes del Estado
149
Constitucional (Madrid: Centro de estudios constitucionales, 1988), vol. 7.

150
Laval, Artifices du capitalisme, p. 8.
However, they precisely uphold the idea that they are not general words, but true
programmes of action ready to be applied. The demonstration of the utility of
all the systems described, which often contain their advantages and drawbacks,
answer the necessity felt by Bentham of convincing the politicians of his time.
On this account, the French version of the Panopticon writings prepared
by Dumont is remarkably powerful and succinct.151 Bentham’s audience was
certainly not only composed of philanthropists: they would have already been
in complete support of his project. Yet, to Bentham, charity seemed weaker than
selfish interest, and too uncertain a support. He wanted to show the advantages
of his propositions, notably in terms of security, and in strictly financial terms, to
members of Parliament and to the high-ranking civil servants of his time, and to
convince them to implement systems which would contribute to the lessening of
human suffering and the increase of the happiness of society as a whole.
French interpretation of the Panopticon is to a large extent imbued by
Foucault’s works, and contributes to the perpetuation of a traditional vision of
Bentham. Presented, alternately or simultaneously, as the promoter of a venal,
intrinsically anti-liberal and even authoritarian philosophy,152 Bentham takes on
a proto-fascist dimension. From this point of view, Campos Boralevi has perfect
grounds for considering that
[i]t is simply a mistake to look for evidence of humanity and pity in writings
which were to serve as a technical guide for legislation and had therefore to be
based exclusively on utility. To measure his humanity from his writings may
be the best means of provoking the reader’s emotional rejection of Bentham’s
suggestions, but it is certainly not the best way to obtain a better understanding
of his philosophy.153
From the point of view of human rights defenders themselves, is it not obvious
that liberty is rather insignificant when it is not associated with the conditions
that allow its full enjoyment? Hart rightly insisted on the fact that proclaiming
and conferring fundamental rights was in itself insufficient. It is essential that
the appropriate social and material conditions provide opportunities for the
liberty of an individual to contribute to his well-being.154 Notably for paupers,
151
Laval, ‘De l’utilité du panoptique’, p. 59.
152
See Halévy’s comments in La formation du radicalisme philosophique. For an analysis,
see F. Rosen, ‘Elie Halévy and Bentham’s Authoritarian Liberalism’, Enlightenment and
Dissent, 6 (1987): pp. 59–76.
153
Campos Boralevi, p. 103.
154
H.L.A. Hart, ‘Between Utility and Rights’, Columbia Law Review, 79 (1979):
pp. 835–6.
140 Beyond Foucault
Bentham proposes the provision of their most essential needs, and therefore
endeavours to render the enjoyment extra-benefits effective. The debate on the
necessary means is then perfectly conceivable. Yet it is made possible precisely by
looking at the problem in utilitarian terms. While the rhetoric of the absolutism
of moral or human rights proceeds with pure and simple assertions, the language
of utility imposes an open and honest recognition and debate of the difficult
choice between evils.155
Conclusion
The main flaw of Foucault’s truncated interpretation of the Panopticon schemes

is that it incites us to look discreetly away from Bentham’s works. Foucault
nevertheless underlines that, at the turn of the nineteenth century, Bentham was
the thinker who most consciously apprehended this form of power. Its multiple
configurations in current societies no longer allows the choice of the panoptic
paradigm. Instead of practising the panoptic, all individuals know that they
are already battling with a form of the panoptic, as they are recorded, filmed,
registered and numbered by a network of diffuse and permanent powers.156 It
is possible to surmise that the only thing now lacking for the greatest happiness
of the greatest number is the democratic universalisation which Bentham
advocated. This last statement raises the issue of whether there is a panoptic
society. The next two chapters and the Epilogue endeavour to answer this
unsettling question.
See W.L. Twining and P.E. Twining, ‘Bentham on Torture’, in Jeremy Bentham,
155
Critical Assessments, vol. 2, p. 559; Cléro and Laval, Le vocabulaire de Bentham, p. 9.

156
For a discussion on the question of surveillance, see the Epilogue, pp. 191–9.
Part III
Is There a Panoptic Society?
Social Control in
Bentham and Foucault
Chapter 6
Transparency and Politics:
The Reversed Panopticon as a
Response to Abuse of Power
Marie-Laure Leroy
Bentham’s ‘cruel and clever cage’, otherwise called ‘diabolic’ by Michel Foucault,1
illustrates a broader phenomenon: the growing influence of psychologically-
based mechanisms of constraint. In Discipline and Punish,2 Foucault claims that
discipline was enforced less and less by physical punishment, and exerted more
and more through the power of mind over mind. The Panopticon is the symbol
of this political evolution. But, contrary to frequent interpretations, Foucault
not only understands this new form of power as exclusively authoritarian, but
also in The Birth of Biopolitics3 argues that liberalism paradoxically produces
control on the one hand, and liberty on the other. Thus, to him, the Panopticon
is characteristic of a liberal government, where freedom should be protected
and fabricated by the means of political and judicial checks as well as procedures
of control.4
I shall argue that this interpretation of Jeremy Bentham’s Panopticon idea,
or ‘panoptic paradigm’,5 is not only relevant when considering its application
to schools, hospitals, workshops and poor-houses,6 but also extends to its
institutional applications in Constitutional Code.7 In the Panopticon Writings,8
Bentham did not mention this possible use of the scheme. Therefore, a partial
reading of Bentham and Foucault could easily lead one to think that the
1
2
Foucault, Discipline and Punish.
3
Foucault, The Birth of Biopolitics.
4
Foucault, Naissance de la biopolitique, p. 69.
5
6
7
Bentham, Constitutional Code. For a detailed study of Bentham’s government in
Constitutional Code, see Chapter 5, pp. 117–24.
8
Bentham, Panopticon Writings.
144 Beyond Foucault
Panopticon was supposed to be a tool in the hands of omnipotent rulers, devised

to control the population and suppress liberty. But to get a clear view of the
political part played by this ‘simple idea of architecture’, it is indispensable to
study its use in Constitutional Code. In this work, it was supposed to provide the
remedy for a particular disease of the body politic, which was a very important
concern to Bentham: misrule and oppression. The panoptic paradigm could
also lead to the encouragement of free debate and permit the rule of the Public
Opinion Tribunal.
What Bentham tried to show is that a healthy political context cannot
exist unless transparency pervades a certain number of fields. But, contrary
to what Foucault says when he argues that the Panopticon should leave no
residual shadow whatsoever,9 I contend that Bentham did not wish to create a
panoptic society, where nothing would escape the gaze of an omniscient ruler.
Transparency was only required where it could guarantee individual freedom
and prevent impunity on the part of public offenders in general, that is, either
criminals or public functionaries willing to commit misrule. Actually, Bentham
designed some political checks in order to prevent the intrusion of political
power into the field of private responsibility. Control through observation was
to take place whenever and wherever political power was exerted, and should
afford protection against the abuse of that power. This does not mean that this
should happen in all kinds of human relationships, or everywhere in society.
As a matter of fact, the ‘greatest happiness of the greatest number’ – Bentham’s
political motto – cannot be promoted through the pervasive use of coercive
methods. The main reason for this is psychological, insofar as constraint entails
pain, which everybody seeks to avoid. Therefore, people cannot be happy in a
society where coercion threatens everyone and can occur at any time.
I shall first examine what use Bentham makes of the panoptic principle in
the institutional field, as the auxiliary of a general theory of control. I shall then
consider how he understands and applies Charles de Montesquieu’s famous idea,
according to which liberty can only be provided to the citizen if ‘power stops
power’.10 And eventually, using Alexis de Tocqueville’s remarks on democracy,
I shall try to see whether Bentham’s securities against misrule can be efficient.

9
C. de Montesquieu, De l’Esprit des Lois (Paris: Garnier-Flammarion, 1979), vol. 1,

10
pp. 294–6.
Transparency and Politics 145
Transparency and Politics:

The Panopticon Idea as a Response to Abuse of Power
Bentham’s system of securities against misrule is a mistrust policy founded on

his theory of human motivation, which he called ‘psychological dynamics’.
He argued that ‘self-regard’ or ‘desire of his own happiness’11 is a stronger and
more constant affection than sympathy. This self-preference enables the human
species to subsist, so it does not make sense to condemn it, or try to suppress it,
in the name of altruistic ethics. It is an incontrovertible fact which the legislator
must take into account, if he wants his project to have a chance of working.
Any attempt to create a political system upon political virtue only, if by this
is meant a tendency to promote the public interest in preference to one’s own
self-interest, is bound to fail. The system should be constructed around humans
as they are, and not as they ought to be: it does not make sense to map out a
political system which could only work if it were peopled with angels.
This approach to the problem of the viability of a political structure is
traceable at least back to Niccolo Machiavelli, who thought that moral virtue is
not a proper principle in politics, because it cannot make projects successful. The
citizens’ liberty cannot be guaranteed by a good and generous prince, but is the
result of a certain institutional order. In order to work properly, the institutions
should not be dependent on the governor’s benevolence. This idea is found in
the thought of two authors who inspired Bentham: David Hume and Claude-
Adrien Helvétius. Hume claimed that in political matters, every man should
be held a knave.12 In other words, trust is never a good principle in politics, as
people are likely not to keep their promises, and are capable of trying to fool
other people. For his part, Helvétius claimed in De l’Esprit that people are to be
taken as they are, and that getting angry at the consequences of their self-love is
like complaining about the weather.13 Bentham used this principle of mistrust,
which takes into account people’s potentially selfish nature, as a way to prevent
abuse of power. He wrote:
… whatsoever evil it is possible for man to do for the advancement of his own
private and personal interest … at the expense of the public interest, – that evil,
sooner or later, he will do, unless by some means or other, … prevented from
doing it.14
11
Bentham, Securities Against Misrule, p. 183.
12
D. Hume, Political Essays, ed. K. Haakonsen (Cambridge: Cambridge University
Press, 1994), p. 24.
13
C.-A. Helvétius, De l’Esprit (Paris: Fayard, 1998), p. 45.
14
146 Beyond Foucault
And he added:
To the above rule there is this or that exception: still, with a view to practice,
there might as well be none: forasmuch as by no criterion will it be possible, to
distinguish the individuals in whose instance the exception has place, from those
in whose instance the general rule has place ….15
Distrust appears consequently as one of the fundamental principles of political

prudence. To be mistrustful is to maximise the chances of success, by preventing
disappointment occurring with regard to other people’s behaviour.
Besides, the particular situation inhabited by official functionaries exposes
them to a larger amount of temptation to break the law in favour of their own
private interest. There is no reason to suppose that they should have more political
virtue, or more concern for the public interest, than the common people. It is
more realistic to think that they are less endowed with this virtue, because it is
easier for them to act in a way which is contrary to the public interest. They have
been given power over other people, and money to accomplish their mission,
and both power and money are ‘matters of corruption’ because people soon
become addicted to them. Bentham wrote:
As is the blood of man to the tiger who has once tasted of it, so are the sweets of
office to the functionary who has once tasted of them. Seldom by anything but
hopelessness of re-enjoyment will the appetite be extinguished.16
Given these facts about human nature, it seems that it will be impossible to solve
the problem of abuse of power without finding a way to divert functionaries
from corruption.
Bentham’s idea to control the ruler’s behaviour was to use the moral sanction
as an incentive to political virtue. To secure ‘appropriate moral aptitude’ in
functionaries, Bentham relied on the principle of suspicion:
… confidence may with truth be said to be minimized: distrust and suspicion

maximized. Principle acted upon, say for shortness, the confidence-minimization
principle: whence, as to practical deductions, the control-maximization principle.17
15
Ibid., p. 120.
16
Ibid., p. 78.
17
Ibid., p. 118.
This principle applies to all degrees of the State’s hierarchy, from the Prime
Minister to the most obscure functionary – if I may use the word obscure,
given that transparency is supposed to pervade the whole system. All public
functionaries, at every level, must be under constant suspicion, as every man
in office is a potential tyrant. This confidence-minimising principle did not
imply that functionaries should be put in Panopticons like prisoners, although
Bentham suggested an architectural arrangement for administrative buildings
at the end of Constitutional Code, which is in many ways comparable to the
Panopticon.18 Control must be effected by supervision, and mostly by indirect
supervision, as through the medium of the registration system, which gives an
account of all the official actions of every functionary. Besides, functionaries are
single-seated, which means that every function corresponds to one person only.
Thus, it is easy to assign responsibility, which otherwise could be dissolved and
non-assignable, if more than one person were responsible for a given task. In the
Legislative Chamber, on the contrary, the legislators are ‘many-seated’, so that the
power can be ‘fractionized’.19 Such a security is of the highest importance, because
the Legislature is ‘omnicompetent’: it can make any decision whatsoever.20
Given the importance of their task, the legislators must have their comings and
goings registered, so that it is possible to check that they attend the sessions.21
The Legislature must always sit in plenary assembly, in order to avoid irregular
decision-making, which can occur whenever a measure is voted when not all
members are present. Every member of the Legislature must have a deputy in
case he cannot attend the meetings.
In that context, the action of every single functionary of the State is registered,
and every citizen is entitled to take cognizance of every kind of proceeding
which is made in the name of the Constitutive power. If an irregular procedure
is detected, measures can be taken against the functionary in charge.
The political sanction, though, was to be used as a complement to the moral
sanction,22 because even if in Bentham’s eyes the moral sanction was apt to modify
an individual’s behaviour, nevertheless it could not, in itself and on its own, be
an absolute guarantee for good behaviour – or say, public-concerned behaviour
– on the part of functionaries.23 Besides, Bentham thinks it is not enough to
18
See Chapter 1, p. 24. Brunon-Ernst suggested calling it ‘the constitutional-
Panopticon’. See also Chapter 5, pp. 138–40.
19
20
Ibid., p. 41.
21
Ibid., pp. 48–51.
22
Bentham, Introduction, p. 47, 57 and 61.
23
Ibid., p. 146: Bentham holds that the moral sanction depends on habit and example:
‘where robberies are frequent, and unpunished, robberies are committed without shame’.
148 Beyond Foucault
cast shame on a corrupt functionary: it is necessary to get rid of him. For that
reason, every functionary is to be made responsible in two ways, through the
‘dislocation’ system. A functionary can be dislocated, or sacked, by his superiors
in the hierarchy, in the event that his acts are not in conformity with the mission
for which he has been given power. He can also be accused of corruption or
misdemeanour, and be dislocated after having been judged, through the initiative
of the ‘Constitutive body’, or say the people. The people can also require his
dislocation for lack of efficiency in fulfilling his mission. Hence, the publicity
principle, or transparency principle, permits the application of the dislocation
principle, which is designed to avoid employing useless, incompetent or harmful
functionaries. To the moral sanction, exerted through the constant watch of the
Public Opinion Tribunal, is added the political sanction, which ensures that the
judgements of this tribunal are carried out. This system appears to be equivalent
to the generalisation of the procedure of censure motion, applicable to all levels
of the State’s hierarchy. In this sense, the people always retain the right to deny
public functionaries the exercise of sovereignty. The people can take back the
power they have given, and in that sense public functionaries possess only a
fiduciary power. If they do not make proper use of the power they have been
entrusted with, they are immediately divested of that power.
This dislocation system is actually founded on the theory of the infallible
rightness of the decrees of the Public Opinion Tribunal; dislocation is also
proposed as a remedy to the defects of the representative system. Thus, the
dislocation principle is fundamental in Bentham’s idea of a representative
democracy, in the sense that it is designed to prevent the potential abuses which
are made possible by the fact that the people have to entrust civil servants and
rulers with a certain amount of power. In Bentham’s State, every functionary,
the Prime Minister included, is removable at all times, provided a majority of
the people are in favour of such dislocation. This means that it is impossible for
deputies, or ministers, to act in conformity to their whims between two elections.
Power has to be conditional at all times, and control has to be constant, just
as the inmates of the prison-Panopticon or the pauper-Panopticon are always
liable to be convicted of misdemeanour, and punished accordingly. The aim is to
restrain as much as possible the possibility of impunity, on the part of governors
as on the part of convicts. In a way, it is possible to say that the impunity of
convicts, especially if it takes place within the framework of a prison, is far less
dangerous than impunity on the part of a public functionary, who can exert
power over people and subject them to coercion.
What is also at issue in the publicity and dislocation system, is the attempt
to make representative democracy as close as possible to direct democracy,
in the sense that public decision-making is to be controlled and approved by
the people at all times, because ‘exposure to corruption is of the very essence
of the representative system’.24 Thus, Bentham’s system is founded on a theory
of fiduciary power. Between elections, the people remain sovereign and can
withdraw the confidence they put in the people they located or contributed
indirectly to locate. Thanks to the dislocation system, sovereignty can be said
to rest in the people at all times,25 and the government and the administration
are but the managers and trustees of this power. In Bentham’s representative
democracy, every functionary is the people’s employee or minister or servant,26
and the State is run like a private company. On several occasions, Bentham
compares the management methods he uses for the elaboration of his
Constitutional Code with the methods employed in the private sector: the sense
of the famous metaphor at the beginning of An Introduction to the Principles of
Morals and Legislation becomes clearer: the whole project is ‘to rear the Fabric
of Felicity by the hands of reason and of law’,27 always keeping in mind that the
people are in charge, and it is their interest which is to be promoted.
What underpins the political system Bentham sketches in Constitutional
Code is not only the idea of the sovereignty of the people, but also faith in the
rectitude of the decrees of the Public Opinion Tribunal. From the psychological
principle, according to which Bentham says that every man is the best judge
of his interests, he draws the conclusion that a community is the best judge of
its interests. Hence, the interests of the governors and those of the governed
can only be identified by enabling people to govern themselves. Because direct
democracy, where people manage their common interests without the help of
any assignable rulers, is not feasible,28 Bentham proposes the idea of control
in its stead. The people, who are aware of their interests, are the best judges
of the rightness of the rulers’ actions. But this statement is disputable: the
fact that every individual can manage his or her own interests does not mean
that a community knows what its interests are. It could well be that people are
short-sighted and that each individual’s sole competence regards his or her own
immediate interests. An individual may not be aware of his or her own interest
as a citizen, and as a consequence may not know what is best for the community.
The way to solve this difficulty is to examine how it is possible for a citizen
to get a clear view of his or her own interest. Bentham argues that it can only
24
Bentham, First Principles, p. 25.
25
Bentham, Constitutional Code, p. 25: ‘the sovereignty is in the people. It is reserved by
and to them. It is exercised, by the Constitutive authority.’
26
Ibid., p. 49.
27
28
J. Bentham, Plan of Parliamentary Reform, in the Form of a Catechism, in Works,
vol. 3, p. 451.
150 Beyond Foucault
be possible under some conditions. One of the most important is the clarity
and intelligibility of political language. In Constitutional Code, Bentham
draws up a set of rules which are to be respected in public debates: first, it is
required that the vocabulary should be neutral: politicians as well as private
individuals commenting on political life should refrain from using derogatory
terms (or ‘dyslogistic’ terms), as well as approbative terms, when they express
their ideas. They should refer to no other value than the principle of utility,
which is a guarantee of objectivity and neutrality. Metaphor, declamation,
exhortation, declaration and passionate discourses should be banished
from the public scene, on account of their misleading influence. Simplicity,
clarity and uniformity of political language, as well as constant reference to
the universal standard of utility, should be the characteristics of all public
discourse. Considerate political choices can only be made within the context of
a purified political language, otherwise the general interest cannot emerge from
the debates.29 Public debate is only fruitful if people comply with the rules of
linguistic ethics. Rationality, consensus and the search for the decision which
will satisfy the greatest number can only emerge within a public space free from
the influence of fallacies and misleading fictions. Language should not be used
as an instrument of power through illusion, but as a way of convincing through
rational arguments. Controversy should not be allowed only inasmuch as it
can lead to consensus. In short, public debate should not amount to a war of
words, but should become rational through the use of transparency in public
discourse.
Bentham’s analysis thus appears similar to that of Jean-Jacques Rousseau, on
the subject of what he terms the ‘rightness of general will’. For Rousseau,30 the
general will is always right, but it can express itself only if the different political
parties do not try to mislead people into believing that their interests are
utterly incompatible. The decisions of the general will are the decisions every
single citizen would make, if he were not deluded by the influence of parties.
Political life, for Rousseau as well as for Bentham, should not be characterised
by a quarrel between different cliques or posses, representing, for example,
different social classes with contending interests. The only way to find political
rationality, which expresses itself through the medium of what Rousseau calls
‘the general will’, or what Bentham calls ‘the Public Opinion Tribunal’, is to
escape from the logomachy, or rhetorical war, between the different parties.
On the issue of panoptic language, see Chapter 7, pp. 163–72.

29
J.-J. Rousseau, Du Contrat social (Paris: Garnier-Flammarion, 1966), pp. 66–7.

30
The search for unanimity and consensus is a political ideal for Bentham, who
does not seem to believe in the intrinsic value of pluralism. He is convinced that
the principle of utility can form the basis of a common political language, and
that true liberty for the citizen is not mainly freedom to choose from different
opposed parties in his vote, but rather amounts to a right to make propositions
for the improvement of public service. On the basis of public utility, the
debate is about the best way to promote the greatest happiness of the greatest
number.
But one can just as well imagine that the different parties represent different
lines of thought, or different theories, about the best way to promote happiness
within the community. In that sense, plurality of parties is not excluded,
because reference to the principle of utility, affording a common ground for
debate, does not solve the problem of how to maximise happiness. The diversity
of the parties can then indeed subsist in the community, as different people can
have different global propositions to make for the promotion of the greatest
happiness of the greatest number. But Bentham clearly seems to think that
general agreement can be found on a few general principles, which can be seen
to represent the community’s interest. For example, everybody will agree on
the necessity of establishing security in the State. Therefore, the principle of
security can be interpreted as a dictate of the Public Opinion Tribunal. Hence,
the fact that some basic agreements are possible in the political sphere does not
entail that pluralism can have no practical value. The possibility that everybody
can suggest improvements – what Bentham calls the melioration-suggestive
system – implies that diversity and variety of opinion can make the collective
pursuit of happiness more efficient.
Hence, the overwhelming influence of the Public Opinion Tribunal does
not entail political uniformity, or say a unique line of thought. Utilitarianism
seems to be largely compatible with some aspects of republicanism, based on the
positive effect of diversity of opinion, and on the distinction of powers within a
precisely-organised constitution.
In Constitutional Code, Bentham adds to the theory of control I examined in
the first part of this chapter, a theory of institutional control which owes a lot to
the thought of Montesquieu.
152 Beyond Foucault
Institutional Control According to Bentham:

The Inheritance of Montesquieu
In A Fragment on Government,31 Bentham examines the difference between a

free and a despotic government. He argues that it is not the quantity of power
in the hands of government which distinguishes these two regimes, but several
specific qualities. He enumerates six aspects in which these systems are opposed.
Their first difference consists in the way power is distributed amongst governors.
The second difference lies in the source of political power. The third criterion is
the possibility of alternation between the governed and the governors, that is
to say, in a free government, it is not always the same people who are in power,
and anyone can be alternately governor and governed. The public functions
are virtually accessible to anybody. The fourth criterion is the responsibility of
governors: in a free government, as opposed to a despotic one, each citizen has
the right to be informed of the reasons which motivate the acts of power he or
she is liable to be subjected to. The two last criteria are about political freedom:
in a free government, there is a free press, hence a right to complain, and there
is liberty of association, including the liberty to unite in a group to express
discontent with the government.
Consequently, the difference between a despotic and a free government
does not lie in the quantity of power, but in the way power is conferred. It is
noticeable that, classically, despotism is defined as the regime where power is
absolute. But absolute does not necessarily mean large in quantity; it rather
suggests the idea of unconditional power. The two ideas are of course closely
linked – as conditions can be understood as limitations – but it seems that a
clearer idea of the matter emerges from the definition of despotism as a certain
way of conferring power, instead of saying that it is the consequence of the
allotment of a great quantity of power.
What is also at issue is the distinction between absolute power and
conditional power. Sovereign means supreme, from the Latin supernus, which
means superior (the common root of all these words being super, which means
above). To say that sovereignty is limited is therefore a contradiction in terms,
because the sovereign possesses the maximum amount of power, and no other
power can resist it. That is why Bentham says in Constitutional Code: ‘The
Supreme Legislature is omnicompetent …. To its power, there are not limits. In
place of limits, it has checks.’32 On this precise issue at least, there is a continuity
between the early Fragment and the later Constitutional Code.
J. Bentham, A Fragment on Government, ed. R. Harrison (Cambridge: Cambridge
31
University Press, 1988), p. 97.

32
The only limits to sovereignty are the bounds of the will to obey on the part
of the citizens. The government can command almost everything, but it cannot
always make sure that its orders will be obeyed. For example, if it commands
something impossible, its commands will be void. If it issues orders the citizens
are not willing to comply with, and cannot be constrained to comply with, the
same thing will happen. Therefore, sovereignty is limited in practice by the
disposition to obey on the part of the citizens. But in principle, as the supreme
and highest source of power, it has no limits. However, Bentham thinks that
the bare limitation of sovereignty by the capacity of compliance with orders is
no proper check to the abuse of power and to the arbitrariness of the despot.
Therefore, the analysis has to bear upon the mode in which power is conferred:
what the legislator cannot limit is the nature and quantity of sovereignty, but
what he can legislate on is the exercise of sovereignty.
Just as Montesquieu did, Bentham put a first condition to the working
out of a non-despotic government, or say the emphasis on the way power is
distributed amongst governors. It is known that for Montesquieu, the bare fact
that power should be possessed by distinct authorities controlling each other
is the guarantee of liberty.33 This theory should not be called a theory of the
separation of powers, as the different powers interact with each other and work
in constant collaboration. For example, the Executive and the Judiciary powers
enforce the decrees of the Legislative, so it makes no sense to say that the three
powers are independent. In her book on Montesquieu,34 Simone Goyard-Fabre
shows that the use of the expression ‘separation of powers’ is incorrect and
delusive. Instead, she advocates the use of another expression, which I shall use
here: the ‘organic distinction of powers’.
In Constitutional Code, Bentham clearly distinguishes several authorities
which are designed to work in concert to exert power. There are four different
powers:35
First, the Constitutive power, or the whole community of the Electors,
which comprises only men who have come of age. Women and children do
not have the right to vote, but people who have stayed in the country for a
certain number of years are entitled to take part in political life.36 This means
that Bentham believed in founding citizenship on the basis of geographical
presence within the limits of a state, and not on the ground of racial, cultural or
national criteria. This sounds quite logical if one remembers that Constitutional
33
Montesquieu, pp. 294–6.
34
S. Goyard-Fabre, Montesquieu, les lois, la nature, la liberté (Paris: Presses universitaires
de France, 1993).
35
36
Ibid., p. 29.
154 Beyond Foucault
Code was composed with South America in mind, where it was important that
newcomers could easily blend in with the rest of the population. As for the
question of the right to vote for women, it is now quite clear from the work that
has been done on the manuscripts, especially by Lea Campos-Boralevi,37 that
Bentham was deeply convinced that this right should be granted to women, but
that he feared ridicule if he made public proposals to this end.
Second, there is the Legislative power, which is the power of the Legislature,
or say the Deputies, or Legislators, who collectively elaborate the laws.38 The
Deputies are elected by the people through male universal suffrage. The territory
of the State is divided into Districts, and each District sends a deputy to the
Legislature.39
Third, there is the Administrative power, whose role is to enforce the
decisions of the Legislature. The highest rank in the Administration is occupied
by the Prime Minister, who appoints 13 ministers. Each minister specialises in
a sector of the administration. There is, for example, an Education Minister, a
Health Minister, a Foreign Affairs Minister, a Trade Minister, a Finance Minister,
etc.40 The highest functions of the Administrative constitute what is now called
the government, in the French Fifth Republic, for instance. But Bentham has
another definition of government: ‘the Legislative and the Administrative
compose the Government’.41
Fourth, there is the Judiciary power, which enforces the laws voted by the
Legislature, just as the Administrative does, but the Judiciary only deals with
cases in which litigation has place. This last part of the authority corresponds
exactly to what Montesquieu calls the judiciary in his own system.
But all in all, Bentham uses his own characterisation of the different powers;
the inheritance of Montesquieu is only visible in the sense that Bentham applies
the idea of the organic distinction of powers to his own system. Let us now get a
clear idea of the way the system works.
Campos-Boralevi, Bentham and the Oppressed. See also Rosen, Jeremy Bentham and
37
Representative Democracy, p. 169.

38
39
Ibid., p. 12.
40
Ibid., p. 171.
41
Ibid., p. 27.
The broadest distinction there is in Bentham’s system is between the

Constitutive (that is, the people, or more precisely ‘the whole body of Electors’42
belonging to the State) and the Operative (that is, the institutions, or the last
three powers). The Constitutive gives power to the Operative; that is, as the
people cannot govern themselves without the help of governors, they delegate
their power to what I shall call the State, or the institutions. By mentioning the
people in the list of the different authorities, Bentham distinguishes himself
from Montesquieu, whose main concern is to discriminate between the
different parts of the institutions.
Bentham divides the Operative into Executive and Legislative. There is
another bi-partition: on the one hand there is the Legislature, and on the other,
there are the Administrative and the Judiciary, which enforce the decrees of the
Legislature. The government is also a part of the Operative, and it is composed
of the Legislative and the Administrative. In order to understand Bentham’s
distinctions better, it is necessary to pay attention to his vocabulary, which he
chooses very carefully. The Constitutive is, strictly speaking, what constitutes
the Operative, what makes it what it is, it is the source, the origin of its power:
‘The constitutive authority is that, by which at all times the holders of the
several other authorities in this state, are what they are.’43 The Operative is the
agency that makes all the operations of power. The specific role of the Legislative
in the government is to make laws (lex in Latin). As for the Administrative
(from the Latin minister, which means servant),44 it is designed to serve the
Legislative, which in turn serves the Constitutive, that is to say, the community
itself.45 Eventually, the term Government only applies to certain operations of
command, as composed of ‘the Legislative and the Administrative’.46
These subdivisions are broadly inspired by Montesquieu, but it has to be
noted that Bentham does not include a monarch in his system. The leader of the
Administrative is the Prime Minister, but he is as such completely dependent on
the decrees of the Legislative Assembly,47 which can be considered as the most
important power in the state. The Prime Minister’s duty is to enforce the decrees
of the Legislative, but he cannot make decisions on his own. He can appoint
(‘locate’ in Bentham’s terms) his ministers and give himself the means to enforce
the will of the Legislature, but he is only an instrument of that will. He can also
make suggestions to the Legislature and give useful information, but he cannot
42
Ibid., p. 29.
43
Ibid., p. 29.
44
Ibid., p. 147.
45
Ibid., pp. 147–8.
46
Ibid., p. 27.
47
Ibid., p. 149.
156 Beyond Foucault
take the lead in the Legislature and influence it directly. He is not allowed to
preside over the Legislature, which would give him too big an influence on the
proceedings of the Assembly; he can only send it messages.48 On its part, the
Legislature can also be said to have its power checked by other powers, as it has
the duty not to interfere unnecessarily with the administration, as stated by
section 12 of the Legislator’s Inaugural Declaration, to be pronounced by every
Deputy, and entitled: ‘Encroachment on subordinate authorities abjured’.49 The
Deputy should not go beyond the limits of his power; if he does so, it is the
proof of an ‘appetite for patronage and oppressive power’, and sanctions ought
to be taken against him by the Administrative or by the people.
It clearly appears that there are two different kinds of control at work in
Bentham’s project of a constitutional code.
First, there is what I may call an external control, exercised by the bulk of
the electors on each member of the Government or the Administration by
means of supervision and dislocation. This control is external, insofar as it is
the control of the Constitutive over the Operative, which are the two main
divisions of authority.
Secondly, there is an internal control, exerted by the mutual actions of the
different parts of the Operative. As this control is carried out within the context
of the Operative power, it can be said to be an internal control.
Bentham’s main originality lies in the provisions linked with the first type of
control. The external control permits the active participation of the citizens in
public life, and results from the recognition of the role public opinion plays in
preventing abuse of power. The second mode of control clearly bears the mark
of the influence of Montesquieu on Bentham’s thought. Two main devices
are thus used by Bentham to prevent misrule. The first is institutional, and
is inspired by the idea of republicanism, as understood as a project designed
to limit power by the means of power in the field of government. The second
device is the generalisation of the panoptic paradigm, which is a response to
the question: who guards the guardians? Here, the answer clearly is that the
Public Opinion Tribunal guards the guardians, and that, at the same time, the
guardians guard each other.
Ibid., p. 148, p. 152.

48
Ibid., p. 145.
49
Conclusion: Bentham’s Transparent Democracy and the

Dangers of the Rule of the Public Opinion Tribunal
It has been shown that Bentham’s political institutions are based on the postulate
that the community is competent to make decisions, and to judge the validity of
the decisions made to promote the general interest. This competence is increased
when the conditions of the debate are transparent, and when neutral language is
used. The power of the Public Opinion Tribunal is explicitly recognised in the
constitution, as Bentham writes:
Public Opinion may be considered as a system of law, emanating from the body of
the people. …. To the pernicious exercise of the power of government it is the only
check; to the beneficial, an indispensable supplement. Able rulers lead it; prudent
rulers lead or follow it; foolish rulers disregard it. Even at the present stage in
the career of civilization, its dictates coincide, on most points, with those of the
greatest happiness principle; on some, however, it still deviates from them: but,
as its deviations have all along been less and less numerous, and less wide, sooner
or later they will cease to be discernible; aberration will vanish, coincidence will
be complete.50
This passage displays a real faith in the fair judgement of public opinion.
Whatever the degree of transparency achieved in society, one should trust the
decrees of the Public Opinion Tribunal. Bentham clearly trusts these judgements,
even when the public is not satisfactorily informed, or not fully accustomed to
transparent public discussion. Thus, to him, a nation does not need to be fully
enlightened to exert its liberty of expression and opinion. The first step towards
political liberty seems to consist in allowing a nation to get out of its state of
self-imposed minority, in order to find the way to its majority, which is the
definition of political emancipation that Immanuel Kant proposes in his text
What is Enlightenment?51 The ultimate response to the problem of oppression
is consequently the sovereignty of the people and the quasi-omnipotence of the
Public Opinion Tribunal.
This attitude, which consists in trusting public opinion for the prevention
of misrule, could be questioned, and Tocqueville did so in 1835, three years
after Bentham’s death. For Tocqueville, democratic government, based on the
sovereignty of the people and on the pervasive influence of public opinion, is not
Ibid., p. 36.
50
I. Kant, Foundations of the Metaphysics of Morals and What is Enlightenment, trans.

51
L. White Beck (London: Macmillan, 1990).

158 Beyond Foucault
safe from the threat of tyranny. In the last chapters of Democracy in America,52
he tries to identify the possible dangers of democracy. Equality, in democratic
institutions, raises a real concern for free institutions in the population; but
at the same time, the ideas democratic communities have on government lead
them to favour a certain concentration of the different powers. In other words,
the democratic principle, represented by the power of public opinion, is in
some ways incompatible with the ideal of the organic distinction of powers.
Through the influence of publicity, public opinion, instead of producing the
image of a plurality of opinions, is characterised more and more by a worrying
uniformity of doctrine. It has a tendency to promote the most common,
the most moderate or maybe the most mediocre ideas of the whole panel of
possible opinions. As public opinion weighs on the individual’s conscience,
and makes him or her conform to its dictates, the citizens, as private persons
as well as members of the political community, are influenced by this unique
way of thinking. Everybody ends up agreeing on most important issues, and
originality is banned or discredited on the basis of non-conformity. Eventually,
all individual opinions which differ from those of the Public Opinion Tribunal
are discredited as irrational, or maybe even as dangerous, and all kinds of attempt
to escape from the normalising influence of public opinion is nipped in the bud.
The phenomenon described by Tocqueville is not, strictly speaking, a kind of
misrule, as the individuals agree to submit to public opinion. It can rather be
styled a kind of insidious government, characterised not by the power of body
over body, or of body over mind, but by the power of mind over mind, and this
description reminds us of the Panopticon Letters.
Tocqueville appears to criticise the ideal of transparency, which is
characteristic of the Enlightenment, and in that sense his remarks can be part
of a refutation of Bentham’s system, and can be used to ridicule his constant
and strenuous efforts to work out efficient securities against misrule. In this
discussion, the very nature of democracy is at issue. The ultimate reference to
public opinion might well be the weakest point of this form of government: the
democratic project is about escaping from coercion and tyranny, and proposes
to build a system which can be as close as possible to self-government, in order
to minimise the risk of oppression. But it seems that one stands between Scylla
and Charybdis, as another threat of oppression is begotten by the very effort to
escape from it.
A. de Tocqueville, De la démocratie en Amérique (Paris: Garnier-Flammarion, 1981),

52
vol. 2, pp. 383–402.

It appears from my brief study of Bentham’s institutions that the ‘age of social
control’, or of ‘social orthopaedics’,53 is also definitely the age of mistrust towards
rulers. Foucault was aware of the necessity of control in a liberal society, as free
enterprise entails the multiplication of occasions of conflict between economic
agents.54 Thus, in a way, liberalism and mistrust go hand in hand, and Foucault
says the Panopticon is a ‘paranoid dream’. This is quite true if one considers its
penitentiary use, but it is also exact in the constitutional field. Thus Bentham
was, in a way, perhaps even more paranoid than Foucault imagined, inasmuch as
he mistrusted the rulers even more than he mistrusted ordinary people: social
orthopaedics was necessary, but political and institutional orthopaedics was
not the less indispensable. Nevertheless, in politics, it is impossible to mistrust
everybody, so Bentham thought the Public Opinion Tribunal was able to apply
the checks that would protect individual liberty. So, in the end, if the individuals
taken separately are not reliable, the community as a whole is to be trusted in its
capacity to form opinions: even if paranoia is a means to obtain liberty, it has to
stop somewhere. On this question, Bentham was perhaps more optimistic than
Foucault, who wrote: ‘if the prisoners ran the panoptical device and sat in the
central tower, do you really think that it would be much better than with the
guardians?’55 Here lies, I think, the central criticism that Foucault addresses to
Bentham, which shows that he understood that the Panopticon was meant to
be, paradoxically enough, an instrument of freedom. But in his eyes, Bentham is
very much like all reformers of the eighteenth century, who ‘thought that people
were going to become virtuous, only because they were being watched’.56 But
they ‘were unaware of the real conditions of opinion’, they disregarded the fact
that it is subjected to ‘the mechanisms of economy and power’ in the form of the
media,57 which is of course even more true nowadays than when Bentham wrote.
Eventually, instead of barely opposing Foucault and Bentham, as has been
done so often before, it may be interesting to use Foucault’s interpretation
of Bentham to try to understand whether the Public Opinion Tribunal can
be trusted to guarantee civil liberty. In the light of twentieth-century tragic
political experiences, the question deserves to be put, as it might indeed be
doubtful, whether democracy is the ultimate protection against abuse of power
or totalitarianism. Hence, instead of reducing Foucault’s remarks to a pure and
simple criticism of Bentham, it might be more fruitful to view them as a warning,
53
Foucault, Dits et écrits, vol. 1, p. 1461. [Where no published English translation has
been located, translations from French works are those of the author.]
54
Foucault, Naissance de la biopolitique, p. 165, p. 184.
55
56
Ibid., p. 204.
57
Ibid.
160 Beyond Foucault
or as a programme for action in the field of public information.58 Hence, with the
help of both Bentham and Foucault, it should be possible to build a considerate
theory of democracy which could help us be aware of the importance of a well-
exerted vigilance on the part of well-informed, mistrustful citizens.
Bentham, Securities Against Misrule, pp. 45–6, where Bentham claims that newspaper
58
editors have to play a significant role in the education of public opinion.

Chapter 7
Social Control and the
Legal Panoptic Paradigm
Malik Bozzo-Rey
Panopticism is one of the characteristic traits of our society.1
New French studies on Bentham’s Panopticon diverge from a Foucaultian

understanding which hinges on the concept of panopticism. It puts forward a
new interpretation of relations of power in Bentham’s thought. The confrontation
between these two trends of interpretation will find ultimate expression in the
following question: is the Panopticon a scheme for an entire society? In other
words, can the Panopticon possibly be extended from a confined social space
to the space of society as a whole? As in the previous chapter, the question of
social control will be addressed, through an analysis of Bentham’s legal theory
and of the relations at work between governors and governed by means of laws.
This chapter will situate Bentham’s legal theory in the context of his work on
the Panopticon, will highlight the confrontation between his legal theory and
his works on the Panopticon, and will demonstrate their role in the entirety of
Bentham’s thought. To this end, the chapter will focus on discrete elements in
each of these areas. It will start by giving an account of Bentham’s legal theory,
in order to unravel the role of language as a form of control. These two elements
also have great importance in the Panopticon writings – and Foucault was
not mistaken in pointing them out.2 This chapter will investigate the extent to
which the Panopticon implements Bentham’s legal theory, and thus the extent
to which Foucault’s concept of panopticism could be useful in identifying
control as a central tenet of Bentham’s thought. Balancing these interpretative
approaches, the chapter will question whether there is such a thing as ‘a legal
panoptic paradigm’ in Bentham’s thought. An affirmative response would imply
that the same control is operating in both fields. The chapter argues that at the
core of Bentham’s notion of control is the individual’s duty to obey the law in
society at large or the panoptic rules within the Panopticon. Bentham gives an
1
2
Foucault, Discipline and Punish, pp. 226–7.
162 Beyond Foucault
inspired and unexpected answer to this question through the practical reasoning
which arises from an analysis of the two calculi at the disposal of the individual
when deciding whether or not to obey the law.
Bentham’s Legal Theory
Bentham was called to the Bar, following his father’s wishes, but never practised.
He had been put off the practice of law by Sir William Blackstone’s lectures,
which he had attended as a student at Oxford University. Blackstone’s lectures
convinced him that English law, and particularly the language of English law,
would benefit from a thoroughgoing reformation. Early in his career, Bentham
left the field of practice to focus on legal theory, although his theory took into
account the implementation of its principles.
In demystifying3 the law, Bentham elaborated a criticism of English law, and
articulated a possible reformation of its central institutions. This reform aimed at
freeing the law from legal fictions, and from the domination of the ruling few over
the subject many. If the law were to become clear and comprehensible by all, the
veil of words which obscured it had to be lifted. Language holds such a strategic
position in Bentham’s criticism that his theory of fictions is fundamental to the
entire range of his work, and an understanding of it must come before any study
of his legal discourse. The key concept in this new discourse is ‘a law’ (defined as
an expression of will) which leads to a type of logic invented by Bentham – that
is to say, the logic of the will. In order to understand the meaning of the ‘legal
Panopticon’ and to analyse the core of Bentham’s Panopticon and Foucault’s
panopticism, Bentham’s overall method will need to be described.
According to Bentham, the relation between language and law constitutes
the starting point of any new foundation for legal theory. Foucault also studies
relations of power from the perspective of discourse. He is interested in how
power circulates through the production of knowledge.4 Bentham principally
focuses on legal discourse; by contrast, Foucault’s work is not concerned with
discourses emanating from the sovereign power, but with any power relation
where differences exist. Bentham’s method follows three steps: first, identifying
the constituent issue of law, that is, the mystification which protects the ruling
few; second, identifying devices of this mystification, thus revealing the role
of language; and third, demystifying legal language through the use of a new
H.L.A. Hart, ‘The Demystification of the Law’, in Essays on Bentham: Studies in

3
Jurisprudence and Political Theory (Oxford: Oxford University Press, 2001), pp. 21–39.
4
T. Spargo, Foucault and Queer Theory (Cambridge: Icon Books, 2000), p. 16.
Social Control and the Legal Panoptic Paradigm 163
theory of language, allowing the construction of a legal discourse which takes

the name of the theory of fictions.
Bentham’s overall aim is to reform law, because of its role in the domination
of the ruling few over the subject many. But, he claims, it is necessary to identify
the strategy of the elite to keep their power. From Bentham’s point of view, the
source of this domination is the mystification of the law:
… unjust, anachronistic, inefficient or otherwise harmful social institutions,

including laws, are frequently protected from criticism by a veil of mystery thrown
over them … mystification consists in the propagation of a belief: the belief that
legal and other institutions of society are infinitely complex and difficult to
understand, and that this is an invincible fact of nature, so that longstanding
institutions cannot be changed without risk of the collapse of society.5
To protect their power, the ruling few need to manufacture the belief that it is
absolutely impossible to criticise or to change the present institutions and the
workings of society. Things, in other words, are as they ought to be. Institutions
are then irrevocable and unchanging, and all criticism of them is useless or
mistaken, since legal procedures already permit discussion of the law. The net
effect is that institutions are strengthened by the procedures which were first
set up to criticise them.6 The domination of the ruling few is guaranteed by the
power invested in them and results from institutions that cannot be changed.7
Language is the means of this domination. The elite have two types of
strategy to secure their domination. The first consists in spreading the belief
that words are the expression of things themselves: if I say ‘law is unchanging’
then ‘the essential property of the law itself is to be unchanging’. The second
strategy is to formulate law in a vocabulary which only a legally-trained member
of the ruling few can understand. Law becomes obscure, the source of many
interpretations that only a judge or lawyer can make. This domination keeps the
subject many outside the field of power. Conversely, Foucault envisaged power as
a multifarious, horizontal and bottom-up force, rather than a dual force between
the dominating and the dominated. In this respect, Bentham’s earlier reflection
5
Hart, ‘The Demystification of the Law’, pp. 21–39, and esp. p. 22.
6
Bentham, A Comment on the Commentaries, p. 11, p. 13. Another subterfuge used
to spread the belief that nothing needs to be changed is the appeal to laws of nature. In this
respect, laws and codes are the expression of a transcendental will outside or beyond human
understanding, and consequently it is neither the role, nor within the scope of the abilities,
of human beings to change them.
7
Bentham, Scotch Reform in Works, vol. 5, p. 13.
164 Beyond Foucault
on power is enmeshed within what Foucault describes as the juridico-discursive

representation of power.8
Bentham’s theory proposes a solution to this domination of the elite, which
provides an escape from the dual relationship of power. The answer lies in a
demystified, reformed, legal language. It clearly reveals relations or non-relations
between words and things. Bentham elaborates three theories. First, language
is a human activity of communication. Second, there are two entities within
language, and it cannot exist without them, namely real and fictitious entities:
A real entity is an entity to which, on the occasion and for the purpose of
discourse, existence is really meant to be ascribed.
A fictitious entity is an entity to which, though by the grammatical form of the

discourse employed in speaking of it existence is ascribed, yet in truth and reality
existence is not meant to be ascribed.9
Reality depends on meaning, and is not a property of things themselves. This

statement prepares the way for Foucault’s anti-essentialist position, in which
there is no truth in categories such as ‘delinquent’ or ‘homosexual’, but only
discourses that categorise and produce behaviour in society.10 Because Bentham
aims to reform society, he constructs a theory that overcomes any stalemate in
power relations and in language. Bentham’s position enables the movement
from fictitious to real entities. And thirdly, sentences and not words are the first
unit of sense in language. This last claim allows the reform of language thanks
to paraphrasis, which consists in replacing an assertion which uses fictitious
entities with another which refers directly to real entities.
Bentham elaborates a legal discourse without fallacious fictions by
recognising the coexistence of real and fictitious entities within language, and by
using paraphrasis. Law becomes a privileged field for the application of fictions,
since most of its concepts are fictions, and the challenge for Bentham is to think
through the fictitious architecture of law. As a consequence, law will become a
clear, understandable and demystified arena in which human activities can be
criticised and reformed. Language is a tool which frees the individual and the
legal system from the domination of the ruling few. The transparency implied
by demystification and Bentham’s conception of language is twofold: first,
the language used by the legislator is transparent; second, and in consequence
M. Foucault, Histoire de la sexualité (Paris: Gallimard, 1994), vol. 1, pp. 83–5.
8
J. Bentham, De l’ontologie et autres textes sur les fictions, ed. P. Schofield and trans.
9
J.-P. Cléro, C. Laval (Paris: Points Seuil, 1997), p. 165.

10
Spargo, p. 13.
of the first, any subject can read this transparent language. Bentham creates
new mutual relationships. He shows the way to a better world, free from the
oppression of fictitious entities, and sets out on the task of building it from
scratch. Foucault also partakes of the same strategies, albeit in a very indirect and
ancillary way. Beyond Foucault’s influence in many disciplinary fields, it is in the
realm of sexuality that he is credited with having paved the way for the ‘queer
phenomenon’ with his appeal for ‘bodies and pleasures’.11 Foucault, as Bentham
before him, wants to build a theory to reform the ways of the world.
Bentham sets out to elaborate a legal discourse and to construct a positive
and non-dominating legal theory. To achieve this, he needs to define what is
a law, its central concept, and not the general idea of law.12 Of the Limits of the
Penal Branch of Jurisprudence, the masterpiece of Bentham’s legal theory, begins
with the following definition:
A law may be defined as an assemblage of signs declarative of a volition conceived

or adopted by the sovereign in a state, concerning the conduct to be observed in
a certain case by a certain person or class of persons, who in the case in question
are or are supposed to be subject to his power: such volition trusting for its
accomplishment to the expectation of certain events which it is intended such
declaration should upon occasion be a means of bringing to pass, and the prospect
of which it is intended should act as a motive upon whose conduct is in question.13
Let us quickly analyse the different elements provided by this definition, since
it will be of use to link Bentham’s legal theory to his Panopticon writings. Let
us not forget that a Panopticon is a place where laws will be obeyed, and the
panoptic paradigm the series of mechanisms which render obedience guaranteed.
The first element claims that a law is the expression of the sovereign’s will in a
State. The person or class of persons possessing de facto power is the sovereign.
This power emanates from the people’s disposition or habit of obedience. It is
Bentham’s replacement for the foundation of the sovereign’s power in classical
political theory such as the model of social contract.
In Bentham’s mind, even if he does not really define it, ‘will’ means one of
the three mental human faculties, and so an ‘expression of will’ is considered
as a declaration of the wishes of the legislator. But, in his logical writings, the
Foucault, Histoire de la sexualité, p. 157.

11
M.H. James, ‘Bentham on the Individuation of Laws’, in M.H. James (ed.), Bentham
12
and Legal Theory, in Northern Ireland Legal Quarterly (1973): pp. 91–116.
13
J. Bentham, Of the Limits of the Penal Branch of Jurisprudence, ed. P. Schofield (Oxford:
Oxford University Press, 2010), pp. 24-25.
166 Beyond Foucault
will is considered as an active faculty, in contrast to the passive faculty of the

understanding. Finally, the sovereign can conceive or adopt such a will.14
Following this definition, two parts of a law can be identified, which will
constitute its two last elements: a directive part, dealing with logic, and a
sanctioning part, dealing with punishment and prediction.
The second element of this definition is indeed the directive part of law,
because the declarations of the sovereign’s will concern the conduct of his
subjects. At issue is the effect law must have on his subjects. In other words, by a
law, the sovereign expresses a wish concerning the conduct he wants his subjects
to observe under certain circumstances. This expression of will can have four
aspects15 and studying their logical relation is the basis of a new logic, called
the logic of the will or imperative logic, which departs from Aristotle’s logic.16
Bentham lays the genuine foundations of contemporary deontic logic.17
The third and final element of the definition quoted above expresses the
possibility of relying on different means in order to secure expression of the
sovereign’s will – the sanctioning part. The expression of the sovereign’s will
concerning a class of acts can only become a law if it is supported by a sanction
(even if the sanction is not explicitly mentioned). This second part is understood
as a prediction, or as the identification of the probability of punishment in the case
of performance of a proscribed action, or non-performance of a prescribed action.
This definition has two major consequences. It creates a new logic – the logic
of the will – and it takes into account punishment in its use of sanctions. My first
consideration will be the logic of the will, also named the logic of imperation or
imperative logic.18
14
It is true that conceiving a law as an expression of the will creates problems, especially
concerning the concept of the ‘adoption’ of a will, that is, the idea that a will can be adopted.
But it is important to remember that law is a collection of signs as an expression of the
will; both the person issuing it and the person being addressed are taken into account and
considered by Bentham. See Limits, pp. 45-46 and §4 and §6.
15
Bentham, Limits, pp. 115-116 and p. 252.
16
Bentham, Introduction, pp. 299–300 and Bentham, Limits, p. 38n.
17
The word ‘deontic’ is derived from the Greek expression ‘deon’, which means ‘what
is binding’ or ‘proper’. Even if Bentham used the word ‘deontology’, it was the Austrian
philosopher Ernst Mally who called his system, studying the ‘fundamental principles of
the logic of ought’, ‘Deontik’ in 1926. Nevertheless, it is considered that von Wright is the
pioneer of modern ‘Deontic Logic’ (G.H. Wright, von, ‘Deontic Logic’, Mind, 60 (1951):
pp. 1–15). Deontic logic is usually defined as the logic of basic normative concepts, or as the
logic of normative discourse through the examination of logical relations between obligation,
permission and prohibition.
18
These three expressions are used by Bentham in Limits.
Contrary to the logic of Aristotle,19 the logic of the will does not confine
itself to the study of sentences understood as affirmative assertions,20 but seeks to
understand logical relations between expressions of will.21 Expressions of will –
that is, laws – will be the new objects of this logic. Indeed, throughout his work,
Bentham considers the art of legislation as having a practical application,22 and
the Panopticon is one of these instances.
Bentham defines and clearly identifies four aspects of the will. These may
be interpreted as deontic modalities or imperative operators: aspects can be
obligatory (O), forbidden (F), non-obligatory (¬ O) or permitted (P).23 These
deontic modalities are the sign of the specificity of a form of logic relative to the
science of legislation. Every deontic modality is relative to the properties of a
class of acts. Following Bentham, logical relations between aspects can be shown
19
‘The subject we are now entering upon belongs to a particular branch of logic,
untouched by Aristotle. The main and ultimate business of the school-logic of which that
philosopher was the father, is to exhibit the several forms of argumentation: the business of
the branch now before us is to exhibit the several forms of imperation: or (to take the subject
in its utmost extent) of sentences expressive of volition: a leaf which seems to be yet wanting
in the book of science’ (Bentham, Introduction, p. 299n).
20
For a detailed analysis, see R. Hilpinen, ‘Deontic Logic’, in L. Goble (ed.), The
Blackwell Guide to Philosophical Logic (Oxford: Blackwell Publishing, 2005), pp. 159–82.
21
‘Now it is to sentences of the assertive kind that the logic of the schools has confined
itself: those which concern volition it has left untouched. The demesnes of the logical
branch of science appear then to be more extensive than has commonly been suspected: the
language of the will being a new and unexplored province which, neglected as it has been
hitherto, might be cultivated, it is probable to at least as good a purpose as the old’ (Bentham,
Introduction, p. 300n).
22
Ibid., p. 299n.
23
J. Raz, Concept of a Legal System (Oxford: Oxford University Press, 1980), p. 55; Hart,
Essays on Bentham, p. 113; and C.E. Alchourron, and E. Bulygin, ‘Pragmatic Foundations for
a Logic of Norms’, Rechtstheorie, 15 (1984): p. 454. It is surely significant that Wright, who
developed deontic logic during the twentieth century (Wright, ‘Deontic Logic’, pp. 1–15),
considers Bentham as a precursor (G.H. Wright, von, ‘On the Logic of Norms and Action’, in
R Hilpinen (ed.), New Studies in Deontic Logic: Norms, Actions and the Foundations of Ethics
(Dordrecht: E. Reidel, 1981), pp. 3–4). Let us see the practical example given by Bentham:
different aspects of will can qualify the act of ‘carrying arms’. Of note: ¬ O is equipollent to
permission to refrain from doing something. O and P are affirmative aspects, whereas F and
¬ O are negative. In the same manner, there are positive acts p and negative ones ¬ p. So
Bentham’s standpoint can be formulated thus:
‘
Every householder shall carry arms’: Op.
‘
No householder shall carry arms’: Fp.
‘
Any householder may forbear to carry arms’: ¬ Op.
‘
Any householder may carry arms’: Pp (Bentham, Limits, p. 252.).
168 Beyond Foucault
through Aristotle’s logical square of opposition, and adapted to deontic relations.24

What is implied, and more important, is that the logic of the will can provide
the basis for a minimal deontic system, and can be formulated through logical
equations, which can be studied and demonstrated, and which entails axioms and
theorems. In other words, Bentham gives us the basis of a deontic calculus.25
Institutions and theories that use fallacious fictions are demystified before
they can be criticised; demystification re-categorises these institutions and
theories within the field of human agency, where they can be reformed.
Bentham’s legal theory, therefore, is not static, but dynamic. Studying Bentham’s
theory as a system of thought poses the challenge that the field of legal theory
should be connected with the idea of control within the Panopticon. If the
connection seems possible, one must go beyond received and potentially
narrowed interpretations of Bentham’s project for the Panopticon prison. Let us
go further and identify some of the issues.
If language plays an important part in Bentham’s theorisation of law, and if
his new linguistics – that is the theory of fictions – allows the subject many to
free themselves from the domination of the ruling few, what then is the role of
panoptic language in the Panopticon, which defines a strict relation between
control and domination?
There is clearly a dimension of control implied by Bentham’s normative
theory of law. However, is this relation of control between legislator and subject
the same, with the same modalities and properties, as the one at work in the
Panopticon?
Imperative logic is a useful tool in the hands of the legislator. But is the same
true of the superintendant of the Panopticon? Can the figure of the legislator
be considered as identical with the manager of, for example, a prison? But if one
accepts that the legislator is the same as a prison manager, one is dangerously
close to adopting Foucault’s interpretation of the Panopticon.
If Bentham identifies precisely those persons to whom laws are addressed, and
also potential offenders, who does he consider as the ‘panoptic individual’? Or,
more precisely, to whom does the Panopticon apply? Of course, in identifying
these issues I have returned to the question of the relationship between legal
theory and the Panopticon. In order to find answers to those questions, it is
See Hart, Essays on Bentham, p. 114 and Raz, pp. 55–9.

24
Despite some references to the logic of propositions, especially in Foucault’s Les mots
25
et les choses, there is no room for the benefits of a logico-deductive approach in Foucault’s
methodology. Indeed, he tries to identify which historical process of subjectivisation could
be part of a discourse with truth value. Consequently, the issue of truth itself is no longer at
the core of Foucault’s inquiry; what is at stake is the making of value statements at a given
time. These rules cannot be logical: they are archaeological.
necessary to investigate more closely both the Panopticon, and the concept
created by Foucault to interpret it – that is, panopticism.
Between Foucault and Bentham: The Emergence of the Panoptic Paradigm
As explained by Brunon-Ernst, there are four Panopticons clearly enounced and

identified in Bentham’s work: the prison-Panopticon,26 the pauper-Panopticon,27
the chrestomathic-Panopticon28 and the constitutional-Panopticon.29 In order
to speak of a ‘legal Panopticon’ or panoptic paradigm (the distinction will be
explained later),30 one must reconstruct Bentham’s thought, and elaborate a
conceptual analysis that links it to Foucault’s panopticism on the one hand and
Bentham’s Panopticon on the other. More precisely, what is under discussion is
the common conceptual area between panopticism and Bentham’s theory of law.
Therefore, in order to elaborate the new concept of ‘legal panoptic paradigm’, it
is necessary to define the theoretical context in which such a relationship can
be envisaged, to find and analyse the characteristics of the Panopticon, and to
enquire whether they are congruent with important elements in Bentham’s
theory of law.
It can be stated that the Panopticon originates as ‘a simple idea in architecture’31
or ‘the Idea of a New Principle of Construction’.32 In the field of law, what would
correspond to this idea in architecture? Would it be a plan for the judicial or law
courts? What would be the best architecture for a legal Panopticon? Can one
even speak of a legal Panopticon?
Bentham’s theory of language should be examined if one is to understand
what is at issue within the Panopticon. Bentham identifies two uses of language
which involve a relation either to oneself or to others, or, more precisely, which
indicate ‘the mind to which, on any occasion, application is made of these
signs’.33 The first is called the intransitive or solitary use; the second is called the
transitive or social use. The distinction between these two uses is fundamental
for Bentham, and allows us to understand why control of language is so
26
Bentham, Panopticon; or the Inspection-House, pp. 37–172.
27
Bentham, Writings on the Poor Laws, vol. 1.
28
Bentham, Chrestomathia, trans. and ed. J.-P. Cléro.
29
Bentham, Constitutional Code.
30
For the difference between ‘Panopticon’ and ‘panopticism’, see Chapter 1, pp. 21–36.
For the difference between ‘panoptic’ and ‘panoptical’, see the Epilogue, pp. 186–7.
31
According to Bentham himself; see Panopticon; or the Inspection-House, p. 39.
32
Title of his work on Panopticon; or the Inspection-House, in ibid.
33
Bentham, Essay on Logic, p. 228.
170 Beyond Foucault
important to ensure domination within the Panopticon: ‘By its transitive use,
the collection of these signs is only the vehicle of thought; by its intransitive
use, it is an instrument employed in the creation and fixation of thought
itself.’34 This quotation is the key to my understanding. Transitive, primitive
and original use corresponds to the social function of language: through it
the social function of language as the communication of thought is ensured,35
whereas intransitive use ensures the formation of thought itself. Unlike other
thinkers of his time, Bentham considers that transitive use is secondary to the
intransitive, which is also a component of his originality. Prevailing opinion
among his contemporaries considered language as a support, more or less
distorting, of thought.36 With the intransitive function of language, Bentham
insists on the strategic place played by language in the birth and shaping of
ideas. He explains that all faculties need language, and that language, therefore,
is defined as the source and the regulatory principle of thought. Hence, writing
as a collection of visible signs plays a most significant role: it fixes ideas.
So, Bentham offers direct access to the minds of inmates by controlling the
conditions within which language is used by panoptic prisoners, paupers and
pupils. He wants to control the constitution of ideas within the minds of the
Panopticon’s inmates, and the spreading of corrupt ideas among them. Likewise,
the chrestomathic-Panopticon can be read as an educational program designed
to act upon the minds of children. By establishing the different properties37
of language, Bentham allows the linguistic tools that influence behaviour and
agency to be understood.
Lastly, language – thanks to the theory of fictions – can be the expression
of object relative to my body or external to it.38 Body becomes in this way a
common referent to all acts of language. Thus if Bentham wants to gain full
control over persons in his Panopticon, he must control bodies. Within
Bentham’s Panopticon, control over bodies takes the following forms. Inmates
are deprived of their bodies on entering the Panopticon. Indeed, inmates cannot
go where they want, or whenever they wish, and, in addition, all their movements
are restricted to a space defined by the institution. The cell is the most obvious
symbol of this, but there is also an obligation to work in restricted areas and at
specified times. Another example is the requirement that walking be restricted
Ibid., p. 228.
34
Ibid., p. 229.
35
36
J. Skorupski, English-Language Philosophy 1750 to 1945 (History of Western
Philosophy) (Oxford: Oxford University Press, 1993).
37
Bentham, Rationale of Judicial Evidence, p. 304, pp. 310–11.
38
C.K. Ogden, Bentham’s Theory of Fictions (Paterson, NJ: Littlefield, Adams, and Co.,
1959), p. 144.
to a defined space. The architecture serves to organise space for the inmates, and
thus to circumscribe their activities. This is not only true in the prison- and the
pauper-Panopticons, but also in the constitutional-Panopticons. All the offices
are organised to maximise their efficacy; their places in the space are defined
by the building’s one goal: maximising the work-strength of the functionaries’
bodies. Even if the constitutional-Panopticon is not based on deprivation of
liberty, it is based on confinement of bodies in order to improve productivity.
So, the panoptic institutions can be characterised by control over bodies as well
as by control of the time and space within which bodies move.39
If Bentham wants to avoid moral evil within the Panopticon by controlling
minds and thoughts, he also wants to avoid physical evil such as illness and
filth. This is part of the rationale for control over bodies. As Brunon-Ernst has
argued,40 this was an improvement when compared with what was happening
elsewhere during Bentham’s time. Safety is therefore a primary concern for
Bentham. Bodies must be safe.
Control over bodies is also in accord with the general aim of language
which consists in the classification and categorisation of reality. Within the
Panopticon, it takes the form of the organisation of space, and of the times and
places within which inmates can communicate with each other. The physical and
practical control over bodies also has a more metaphoric dimension, through the
definition of the narrow and theoretical limits of discourse. For example, certain
words can be used, but in order to limit violence, written discourse prevails over
oral discourse. It is another means of fixing specific ideas, and of diminishing the
extent of the criticisms that inmates can formulate. The conditions and modes
of the enunciation of discourse are also controlled: minds cannot express what
39
The ultimate control over bodies is the mark imposed on them. The mark is a sign
of the body’s belonging to the Panopticon. The individual is reduced to a marked body, to
a possession of the institution. But the body is covered by clothes, and by specific clothes
according to the type of the person, especially in the pauper-Panopticon. After being naked –
that is, cleared of social attributes – bodies are marked – that is, stamped by an indelible sign
of the individual’s belonging to the rest of the society – and finally, they are re-covered by the
Panopticon’s attribute – that is, specific clothes according to the specific types to which the
inmates belong. The device of categorising people both within and outside of the Panopticon
creates an ‘invisible chain’ (Laval, ‘La chaîne invisible’, pp. 24–43), which provides a
permanent reminder of the individual’s belonging to the Panopticon, even for a short time.
The Panopticon is not the whole society; but society can always see the signs of a previous
connection with the Panopticon. The issue then is the identification and classification of
people into categories. This might be seen as a clue to understanding the place and role of the
Panopticon within society as a whole. Foucault invites us to think so: see Foucault, Surveiller
et punir, pp. 207–9.
40
Brunon-Ernst, Le Panoptique des pauvres, pp. 71–88. See also Chapter 5, pp. 133–5.
172 Beyond Foucault
they want through their own words, the physical act of speaking is controlled.
The link between mind and body, practice and theory, is thus revealed. In the
end, what is at issue is not only control over bodies, but control over the space
of bodies, in other words, over agency. Furthermore, the main theoretical
place of writings has been emphasised, and it is significant that the use of the
written medium, in the form of registers, is used to store and to keep a record
of the events of the inmates’ lives. Bodily movements, bodily infections, bodily
punishments and the feeding of bodies are all consigned, and fixed in a database.
Therefore, it can be claimed that in the Panopticon, language and control
are linked. There can be no control without language, and language ensures
control. This is only possible thanks to the conception of language elaborated by
Bentham in his linguistic theory – what is called his theory of fictions.
Foucault is particularly clear on the devices at work within the Panopticon.
First he describes the modalities of normalising sanction:
[Disciplines] must also increase the particular utility of each element of the
multiplicity, but by means that are the most rapid and the least costly, that is to
say, by using the multiplicity itself as an instrument of this growth. Hence, in
order to extract from bodies the maximum time and force, the use of those overall
methods known as time-tables, collective training, exercises, total and detailed
surveillance.41
The Panopticon will control as many areas of human activity as are in existence.
The Panopticon refines theoretically and practically the theory of fictions, by
focusing on bodies and language, and the different forms they can take through
human activities. The description above leads Foucault to claim that the
Panopticon is
… a type of location of bodies in space, of distribution of individuals in relation

to one another, of hierarchical organization, of disposition of centres and
channels of power, of definition of the instruments and modes of intervention
of power ….42
Indeed, the body appears at the centre of the panoptic endeavour.

I have focused on three points: the architectural idea, the control over mind
through language, and the control over bodies organised by the institution of

41
Ibid., p. 206.
42
the Panopticon. I have also alluded to the surveillance through the collection of
data. The strong link between language and control is thus reasserted.
At this stage, a legal Panopticon, or as might be called, a practical legal
Panopticon, can be envisaged – a closed court-house with the defendants locked
in; a peculiar architecture facilitating control of each stage of the lawsuits; every
proceeding compiled in a book; the figure of the judge perhaps reinforced by
the architecture; all the actors in this panoptic court of justice identified by
marks and/or clothing: all these elements created to reinforce the power of the
law in practice through the judge. But it is essential to note that none of these
elements are to be found in Bentham’s legal theory particularly in Limits. Strictly
speaking, there is no legal Panopticon.43 However, the way Bentham elaborates
his legal theory is a response to a potential legal Panopticon. This chapter has
identified panoptic language as a tool of domination, whereas the foundations
of the theory of law are freed from the domination of language elaborated by
the elite. Foucault clearly missed this reversal in perspective from the panoptic
utopia to the theory of law.
So, there is no legal Panopticon in Bentham’s overall legal theory. However,
there is a figurative space of control in Bentham’s theory that needs to be
accounted for in terms other than ‘legal Panopticon’. There is no architectural
concept in Bentham’s theory of law, but there is an elaboration of a concept
of law which authorises us to speak of legal control. Does it correspond to
the distinction between Panopticon and panopticism? The Panopticon is
an architectural idea, permanent control taking the form of uninterrupted
surveillance, and panopticism is the power of permanent control acting upon
individuals through punishment and compensation using norms. Following
the distinction established by Brunon-Ernst,44 I consider the Panopticon as
belonging to Bentham, and panopticism as Foucault’s conceptual construction
which extracts certain characteristics of the Panopticon in order to exemplify
aspects of (Foucaultian) theory. Then the panoptic paradigm can only be
thought of as a conceptual development of Foucault’s panopticism, because it
is not attached to a peculiar interpretation of Bentham’s Panopticon – it merely
tries to reframe the complexity of devices at work in the Panopticon from a
conceptual/theoretical point of view.
Therefore the most useful distinction should not be between Panopticon and
panopticism, but between Panopticon and the panoptic paradigm, which, as
previously shown, may take several forms. From my point of view, I may indeed
establish the distinction between a practical system of organisation (Panopticon)
43
Although Bentham does consider a judicial use of his pauper-Panopticon, for
example. See Brunon-Ernst, Panoptique des pauvres.
44
174 Beyond Foucault
and an abstract and theoretical principle expressing the control exercised by a

certain power over individuals (the panoptic paradigm). It would then be possible
to speak of a ‘legal panoptic paradigm’, an interpretative principle of Bentham’s
legal theory, which takes into account the place of language and of control in law.
Legal Panoptic Paradigm: Law as a System of Social Control
The previous two sections have explained Bentham’s overall argument with
regard to the elaboration of a positive legal theory, which would be cleared of
the ruling few’s domination, and of fallacious fictions, thanks to his concept of
a law and his theory of fictions. I have pointed out the different modalities of
control in the Panopticon and discovered a legal panoptic paradigm at work in
Bentham’s general theory, following the concepts delineated by Brunon-Ernst.
What consequences can be drawn from these statements? First, the force of a
law establishes the link between law and agency by defining devices of influence.
Secondly, the legislator is the source of a law; nonetheless, the study of the tools
at his disposal to dictate action needs to be investigated. This will lead us to
question the place of the principle of utility, so it is necessary to understand
how the legislator can ensure the performance of his will when utility works as
a normative principle. But through the use of the principle of utility as a norm
to ensure the performance of the legislator’s will, the confrontation of multiple
interests and the role of punishment are at issue.
By indicating what is obligatory, forbidden or permitted, the main role of
a law is to be a guide to agency. But Bentham’s concern is not just to express
what behaviour is or is not legal. Laws are not merely devices which express the
sovereign’s preferences concerning a course of action taken by his subjects: they
point out his positive intention to act upon their behaviour. Here Bentham’s
thought is closer to Foucault’s project, in that it envisages laws from a positive,
norm-producing perspective.45 Bentham refers to the ‘force’ of a law with
regard to ‘the motives it relies on for enabling it to produce the effect it aims
at’.46 Motivation thus becomes an essential aspect of a law. Bentham conceives
of law as a system of social control. Even if a law can use chains, walls and so
on to exercise control, these methods are not in keeping with Bentham’s ideas.
Bentham’s mode of control is centred on people – that is, subjects. The way they
influence the control they have upon themselves determines the course of their
actions. They can do this by using rules which they have to follow. These rules do
Especially in Foucault, Naissance de la biopolitique.

45
Bentham, Of Laws, p. 1.
46
not prevent people from moving around – as opposed to the impact of walls or
chains – but they should be considered as delineating the kind of behaviour the
sovereign expects of his subjects.
But how can these laws exercise control? Bentham’s answer is quite simple:
one must use the leverage of motivation, whether or not it pre-exists. Of course,
the source of motivation can only be found in sanctions.47 According to Lyons,
restrictive laws are guides for action, thanks to orders and prohibitions.48 But
what about permissive and non-obligatory laws? Contrary to Raz, I have
contended elsewhere that Bentham explicitly refers to the possibility of non-
obligatory laws and examines precisely their uses.49 The core issue arising from
these laws is the role of sanctions. In what way could non-obligatory laws –
permitting a particular action or refraining from performing a particular action
– be supported or reinforced by sanctions? It is in this context that Bentham’s
refusal to refer to sanction in his definition of a law makes sense. Indeed, insofar
as a sovereign establishes general control over his subjects’ behaviour and
actions, a non-obligatory law is supported by the following logical implication –
freedom created by such a law is supported by the corresponding prohibition to
interfere with this freedom. This protection exists through ‘corroborative’ laws,
whether it is explicit or not. Therefore non-obligatory laws are supported by
sanctions which do not have any effect on the subjects of these laws, but rather
on individuals being the subject of corresponding corroborative laws. Bentham
claims this when he considers the existence of non-obligatory laws.50
If one can speak of law as a system of social control, in particular it is because
Bentham tries to formulate the dynamics of influence: a law is designed to act
upon behaviour. Now, there are two sorts of influence – the first acts on the
understanding (being a passive faculty) and the second on the will (being an
active faculty).51 So, when Bentham examines influence of will upon will, he
wants to establish the possibility of influencing action. This constitutes a marked
difference between Foucault and Bentham, since for Foucault ‘… without any
47
Bentham, Limits, p. 43, and Works, vol. 11, p. 2, Bentham, Fragment, pp. 461–73.
48
Lyons, In the Interest of the Governed, p. 107ff.
49
M. Bozzo-Rey, ‘Le principe d’utilité dans la philosophie politique et juridique de
Jeremy Bentham’, and Bentham, Limits, pp. 117-121 and pp. 252-254. In The Concept of a
Legal System, Joseph Raz goes further when he claims Bentham’s definition of a law excludes
the possibilities of non-obligatory laws (p. 59). However, when Bentham defines a law as ‘a
volition … concerning the conduct to be observed in a certain case by a certain person or class
of persons’, he refers both to obligatory and non-obligatory aspects of the will.
50
Bentham, Limits, pp. 129-130 and p. 140.
51
176 Beyond Foucault
physical instrument other than architecture and geometry, [the Panopticon]

acts directly on individuals; it gives “power of mind over mind”’.52
Bentham’s concept of control is enabled at the epistemological level. This
is how the logic of the will should be understood as a tool for the science of
legislation. Then the whole of Bentham’s theory of law – his typology of laws
and logic of the will are both implied by his definition of a law – is particularly
consistent when the conditions and modalities of control need to be discerned.
Thanks to the logic of the will, the legislator has a mighty tool at his disposal
with which to rationalise the elaboration of a complete system of laws by means
of the study of logical relations between laws, especially their compatibility and
incompatibility. But the legislator can also use another tool to rationalise agency
of people: the principle of utility. Bentham explains: ‘Nature has placed mankind
under the governance of two sovereign masters, pain and pleasure. It is for them
alone to point out what we ought to do, as well as to determine what we shall
do.’53 As a consequence, all human beings will try to maximise their pleasure
and minimise their pain. Both pleasure and pain are real entities, perceptible
impressions.54 These are psychological data with which Bentham intends to give
an account of human conduct. For the present purpose, the distinction between
intentions and motives needs to be considered. The classification of motives
made by Bentham corresponds to his classification of pleasures and pains.55
The confrontation between individual and community is at the core of
Bentham’s thought, and can take the form of the conflict between individual
and general interest on the one hand, and between short- – and long- – term
interest on the other. It is the combination of these several interests that
legitimates the role of the legislator, and the place laws must take in political
society. Thus Bentham recognises the conflict that his theory might cause,
but believes it possible to resolve it, by assigning to the legislator the task of
creating an artificial harmony of interests. This harmony is based on a rationalist
conception of the principle of utility as applied on a political and legal level. His
theory of punishment correspondingly reinforces this position.
From the distinction previously made between a normative and a descriptive
principle of utility, we can move on to some conclusions with regard to the
legislator’s project. The combination of these two meanings can be formulated
as follows. The legislator must write his project from a normative principle,
fixing the end he has in view, whereas use of the descriptive principle gives him
52
53
54
Ibid., p. 6.
55
Ibid., pp. 103–24.
the basis of conceiving the means to reach this end. To achieve this, man as he is
has to be considered in society as it ought to be.
Since the principle of utility – as giving the end of legislation – is
presupposed, Bentham wants to write a ‘practical manual’56 for the legislator if
he wants to reach this end, describing the means he has at his disposal and how
he can use them. Bentham uses an image:
A body of laws is a vast and complicated piece of mechanism, of which no part

can be fully explained without the rest. To understand the functions of a balance-
wheel you must take to pieces the whole watch: to understand the nature of a law
you must take to pieces the whole code.57
Then, in order to establish a complete code of laws, it is necessary to know

precisely what materials to use. Indeed, Bentham claims explicitly that ‘[t]he
business of government is to promote the happiness of the society, by punishing
and rewarding’.58 In acting upon individual interests, the legislator has to create
an artificial harmony of interests. He has to act upon the motives of agency, that
is, pleasure and pain. Now,
[t]wo other senses of the term motive need also to be distinguished. Motive refers
necessarily to action. It is a pleasure, pain, or other event, that prompts to action.
Motive then, in one sense of the word, must be previous to such event. But, for a
man to be governed by any motive, he must in every case look beyond that event
which is called his action; he must look to the consequences of it: and it is only
in this way that the idea of pleasure, of pain, or of any other event, can give birth
to it. He must look, therefore, in every case, to some event posterior to the act in
contemplation: an event which as yet exists not, but stands only in prospect.59
The quotation above reveals that Bentham’s theory of punishment proceeds

from his theory of motives – it acts upon the possible event of pain being the
consequence of an act.60
But Bentham considers that a conflict, between what an individual wishes
and how he must act to comply with the principle of utility, may arise. Therefore,
punishment becomes the means to oblige people to act in a certain way in their
own interest, whereas they would not act like this naturally. In other words, it
56
Harrison, p. 113.
57
Bentham, Introduction, p. 299n.
58
Ibid., p. 74.
59
Ibid., p. 98.
60
Ibid., pp. 98–9.
178 Beyond Foucault
is a matter of creating an artificial motive – created by the law, itself created by

a legislator – acting upon an individual’s interest. So, from Bentham’s point of
view, punishment is not justified from the point of view of an individual in terms
of his own true interest, but because the individual has an interest in avoiding
punishment.
Punishment promotes the greatest happiness of the greatest number by
deterring someone from performing some acts.61 Indeed, punishment is a short-
term evil. Punishment – which relies on the fear of pain – is one of the tools
in the hands of the legislator. Pleasure is the instrument used by law to get
power. Punishment is an evil that prevents evil caused by mischief at a minimum
expense: ‘whatever the mischief be, which it is proposed to prevent, to prevent it
at as cheap a rate as possible’.62
Finally, punishment has to be proportional to the offence, in order not to
cause more evil than necessary.
Combining the logic of the will and the theory of punishment within his
utilitarian legislation, Bentham provides greater certainty in the theory of
agency. He clears the law of uncertainty created by common law and the judge’s
interpretation thereof. Every man knows in advance what will be the punishment
concerning the performance or non-performance of an action. Then, the aim of
the legislator is to reduce the field of possible actions, without reducing that of
all potential outcomes. In the Panopticon, the field of possible actions is clearly
narrowed for inmates. It seems that these issues find their answers in the problem
of duty to obey the law, or the foundations of legal obligation.
The legal panoptic paradigm seems to have sealed the lot of individuals: if
there is indeed a legal panoptic paradigm, encompassing society as a whole,
then how does one enter it, and how or why does one leave it? This is a real
issue in the general structure of Bentham’s thought, linked to the possibility of
constructing it as a consistent philosophical system. Facing this issue also leads
us deeper into complicated issues of legal theory, related to the problem of the
foundations of legal obligation. If law is conceived as the expression of the will of
a sovereign, aiming to act upon the behaviour of his subjects, why do individuals
decide to obey the law and act according to law? In other words, what is clearly
at issue is the place of the legal panoptic paradigm in Bentham’s thought. Do the
Panopticon and a legal panoptic paradigm imply a prima facie duty to obey the
law? Attempting to answer this question would probably lead us into the study
of the relationship between obedience and moral obligation to follow the law, or
to a close examination of the practical reasoning that every individual performs
Ibid., p. 158.
61
Ibid., p. 165.
62
before deciding whether to obey the law or not – in other words, whether or not
he or she recognises the obligatory strength of the law. Entering into a debate on
the foundations of legal obligation implies then that the status of permissive and
non-obligatory laws should be carefully examined: is the existence of these laws
inconsistent? So what is at issue is identification of the mode of enforcement of
the law, that is, in what way is the control exercised by the law complete? In other
words, the modalities of Bentham’s practical reasoning, if it still exists, must now
be closely examined. From my point of view, this is how Bentham goes beyond
Foucault’s panopticism by fleshing out a legal panoptic paradigm.
Bentham’s Response to a Legal Panoptic Paradigm:

Practical Meta-reasoning
Is it right to differentiate between the Panopticon and the legal panoptic

paradigm? It seems that there is complete control by the legislator over the will
and agency of the people. Utility seems to be an unquestionable and unique
norm within a society. The legislator seems to be powerful, and to ensure his
domination through the law. Has Bentham cleared the law as a whole of any
domination by means of language, to recreate a new domination by means of
laws? Is there really a legal panoptic paradigm, or just a legal application of the
Panopticon? Is there a panoptic society in Bentham’s thought?
To answer these questions, one may first register that control is not domination,
that influence is not power, and that the legislator is not a transcendent being.
It is true that law is a system of social control, but law is also the result of human
activities, and, in this respect, it has the capacity to be amended. Traditionally,
domination implies a static and one-way relation; now Bentham conceives the
public sphere as a space of dynamic processes between governors and governed.63
Most of all, Bentham not only considers the point of view of rulers, but also of
subjects. The utility criterion is not only a tool to design laws, but also a tool to
decide to obey the law. Furthermore, I will argue that Bentham’s legal theory
entails a more complex practical reasoning. This will lead to a new reading of the
Panopticon and the legal panoptic paradigm.
Indeed, from the Fragment on Government to Limits, Bentham considers the
disposition to obey as the foundation of political society. This means that it is
not only the legislator’s point of view which is taken into account when it comes
to the duty to obey the law. One must consider the individual point of view, and
63
For further analysis, see G. Postema, Bentham and the Common Law Tradition
(Oxford: Clarendon Law Series, 1986), pp. 237–62.
180 Beyond Foucault
there is a mirror effect here: Bentham conceives of society as a field in which

dynamic processes are at work between the governors and the governed. From
this point of view, Bentham reverses Foucault’s position64 by considering that
the governed have an active part in the process of communication between the
sovereign and his subjects. The actuality of power comes not only from the issue
of laws by the legislator, but also from the conduct of the subjects. We must look
at practical reasoning, meaning the modalities of deliberation which conclude
with a decision to act. Following Bentham’s scientific position, I envisage that
these modalities will reverse calculus; what must be addressed is the relation
between utilitarian calculus and another one implied by the logic of the will: a
deontic calculus.
The specificity of the utilitarian, or felicific calculus, is the desire to measure
individual utilities; general utility is not its only concern. Bentham’s paradigm is
actually the Newtonian one.65 In Bentham’s mind, this felicific calculus will turn
him into the ‘Newton of Morals’.66
The aim of this calculus is to measure subjective states67 in order to define
which action, between several possible options, an individual agent has to
perform if he or she wants to maximise his or her happiness. According to
Bentham, several elements are to be taken into account: intensity, duration,
certainty or uncertainty, and propinquity or remoteness.68
I will neither focus on nor demonstrate that logic of the will can be
formalised, resulting in a deontic logic.69 Rather I take it for granted, and will
examine closely the possible role that deontic calculus can take in practical
Foucault, Surveiller et punir, p. 202.

64
University College London, Bentham MSS, UC, xxxii, 2.

65
66
Several texts refer to calculus: Bentham, Introduction, Chap. IV, Bentham, Logical
Arrangements, pp. 286–7. See also Baumgardt, pp. 554–6. Concerning value of calculus:
J. Bentham, ‘Codification Proposal’, in ‘Legislator of the World’. Writings on Codification, Law
and Education, in P. Schofield and J. Harris (eds), The Collected Works of Jeremy Bentham
(Oxford: Oxford University Press, 1998), pp. 250–57; Bentham, A Table of the Springs of
Action, pp. 98–9 and pp. 105–9.
67
A. Goldworth, ‘Jeremy Bentham: On the Measurement of Subjective States’, The
Bentham Newsletter, 2 (1979): pp. 2–17.
68
Bentham, Introduction, p. 38. Bentham adds fecundity, purity and extent when
a number of persons are involved. Bentham, Introduction, p. 39. These four circumstances
can be expressed by numbers, allowing the use of calculus. Intensity and duration use
whole numbers, whereas fractions express certainty and proximity. Bentham’s calculus can
be interpreted in different, positive and negative, ways. Even if debate continues, we can
consider that utilitarian calculus is not satisfactory in practical reasoning, even in Bentham’s
theory.
69
See Bozzo-Rey and Moreso.
reasoning. Bentham tries to conceive a relationship between a theoretical field

– deontic logic as a tool for the legislator in charge of giving structure to reality
in order to create a complete code of laws – and a practical one concerning the
actions and behaviour of the governed. He believes that the legislator acts upon
these through the use of sanctions associated with the idea of the force of a
law. Taking into account the contribution of a deontic interpretation of logic
of the will, leading to a true deontic logic allowing logical calculus, it could be
useful to reformulate the initial question as follows: does deontic logic permit
us to elaborate practical reasoning? Going further necessitates first going back
to Bentham’s thought: does the logic of the will, understood as deontic logic,
provide any logic for practical reasoning? From my point of view, this is one
of the challenges arising from Bentham’s elaboration of the logic of the will: he
invites us to think about the conditions of a logical practical reasoning.
In other words, I have to demonstrate that the logic of the will results in
prescriptive statements leading us to act. As seen previously, the concept of ‘force
of a law’ is fundamental, since it permits us to consider the applicability of the
logic of the will without implying an intrinsic prescriptive value of the assertions
it produces. More fundamentally, it must be proved that deontic logic can be a
part of practical reasoning.
The rules of deductive logic allow readers to establish which arguments
are valid and which are not. Without the concept of deductive validity, there
can be no notion of logical rules or, at best it is an empty concept. Moreover, a
valid deductive reasoning can be identified: this is, by definition, an argument
in which, if the premise is true, then the conclusion will be true. Therefore, a
deductively-invalid argument is an argument whose premises do not ensure the
truth of conclusion. So, valid arguments preserve the value of truth, whereas
invalid deductive arguments do not. Let us point out two additional arguments:
first, many philosophers (Aristotle, for example70) see practical reasoning as
leading to an action not qualified as true, because since action is not an assertion,
it cannot have the value of truth. Thus, if the conclusion of a process of practical
reasoning is neither true nor false, then no value of truth belonging to the
premise can be retained. Therefore, practical reasoning cannot be valid, and the
simple idea of rules for practical reasoning is meaningless. There is no hope of
developing a practical reasoning, as long as practical reasoning is only considered
in terms of actions, intentions, decisions, orders or demands. The second point is
that Bentham’s logic of the will deals with logical relations between laws which
are the expressions of the will of the sovereign, and, more precisely, it deals with
Aristotle, Nicomachean Ethics, trans. Terence Irwin (Indianapolis, IN: Hackett,

70
1999), VI, 1139a–1140a.

182 Beyond Foucault
the aspects of this will; then it establishes the requirements of a valid reasoning.
It should then be recognised that deontic statements permit the elaboration of a
practical reasoning that would be both valid and prescriptive.
Consequently, practical arguments – when their conclusions are deontic
statements – can preserve the value of truth and thereby be valid. Thanks
to deontic statements, there can be a logic of practical reasoning – that is, a
deontic logic. In Bentham’s terms, it means that the logic of the will could be a
logic of practical reasoning, when interpreted in deontic terms, and that ‘ought
to be’ statements from the legislator are converted into ‘ought to do’ statements
for the governed. When deontic statements seem to express what people are
obliged, forbidden or permitted to do, ‘ought’ must be understood as meaning
‘ought to do’.71
If utilitarian and deontic calculus can integrate a practical reasoning, one can
support the notion that there is in Bentham’s thought not two rival reasonings
– for that would be nonsense – but a practical meta-reasoning, involving both
calculus and authorising action, so an individual knows whether he has to obey a
law or not. This meta-reasoning determines what sort of factor should help us to
reach practical decisions in a given case; therefore it cannot be merely utilitarian,
but should also take into account considerations of deontic logic.
Meta-reasoning must involve both utilitarian and deontic calculus. The
governed individual ought to consider the validity of deontic statements, and
the consequences of his or her action, through utilitarian calculus. Therefore
the latter is not the only criterion of choice, even in a utilitarian philosophy
such as that developed by Bentham. Indeed, the logical structure of his legal
theory allows readers to think that the governed individual chooses to perform
a certain action through meta-reasoning. This meta-reasoning illuminates
both the Panopticon and the legal panoptic paradigm, because it allows a new
possibility: a non-direct subjection and an inverted control. The governed is not
directly subjected, because if there is subjection, it is through a practical meta-
reasoning, and the relation implied by control is reversed, because the governed
have the tools to exercise control over laws. The relation of domination may be
one of the relations within the Panopticon, but within society, control cannot
be turned into domination.
J.W. Forrester, Being Good and Being Logical: Philosophical Groundwork for a New
71
Deontic Logic (London: M.E. Sharpe, 1996), pp. 281–94.

Conclusion
On the one hand, the clarity of the law is a tool to free oneself from the domination
of the ruling few; but on the other, it is a real tool to ensure domination within
the Panopticon. How can the two conceptions of language be reconciled?
The different meanings of the word ‘control’ (checking, or surveillance, and
domination) are at work in the Panopticon, but the only aim of control in law is
to ensure that the will of the sovereign will be respected. There is on the one hand
physical and practical control, and on the other hand, theoretical control that
requires punishment to become practical. But in both cases, as Foucault noted:
‘A real subjection is born mechanically from a fictitious relation.’72 So the real
issue is to assess the status of the Panopticon within Bentham’s thought and with
regard to his theory of law, considering that the latter is also a social theory. If it
can be said that the Panopticon is a practical architecture, and the legal panoptic
paradigm a form of architecture of the mind, is one allowed to claim that the
Panopticon is a society in miniature, as Foucault does?73 If this is the case, the
whole legal theory should be consistent with the Panopticon and there would
be no practical meta-reasoning, only the utilitarian calculus and, if it fails, only
laws as norms. But this does not take into account the ‘disposition to obey’ – or,
more precisely, that people are obliged only by laws recognised as obligatory. The
only answer is to consider that the Panopticon is not a society in miniature, and
that there are different rules in and outside of the Panopticon.74 And one must
consider the legal panoptic paradigm as a theoretical principle, or, it might be
said, as a metaphor. The Panopticon deals with the margins of society,75 that is,
only a part of it.76 In a certain manner, this is how Bentham takes account of
the ‘smallest number’ left out of the ‘greatest happiness for the greatest number’
formula of the principle of utility. In the legal panoptic paradigm the question is:
is there a duty to obey the law? Why does one obey the law? I have demonstrated
that law is obligatory if, and only, if the individual subject to the law recognises
it as an obligation. In Bentham, this takes the form of a practical meta-reasoning,
72
73
Ibid., p. 209.
74
Foucault acknowledges that there is something ‘outside’ the Panopticon: see ibid.,
p. 208.
75
It is appropriate for Foucault to start his chapter on panopticism with a description
of a plague-stricken city. Ibid., pp. 197–201.
76
‘To say all in one word, it will be found applicable, I think, without exception,
to all establishments whatsoever, in which, within a space not too large to be covered or
commanded by buildings, a number of persons are meant to be kept under inspection’
(Bentham, Panopticon; or the Inspection-House, p. 40).
184 Beyond Foucault
involving both utilitarian and deontic calculus. Bentham himself guides us out
of Foucaultian panopticism, and gives a possible answer arising out of his theory.
But this implies a rethinking of Bentham’s philosophy of law and the giving of
some credit to his logic of the will. More precisely, it implies a consideration of the
dynamic relation between fiction, logic and utility within the field of law. Then,
one can speak of a legal panoptic paradigm, which could be an interpretative
principle in Bentham’s legal theory, taking account of the place of language and
of control in law. There is, therefore, a road that leads from Bentham back to
Foucault – that which leads from the Foucault of the disciplines to the Foucault of
the norms which are evident in his later writings. So, the confrontation between
legal theory and the Panopticon is very fruitful: it leads us to a reconsideration
of Bentham’s thought, and to a revelation of the fictitious architecture and the
logical structure of his theory of law.
Epilogue
The Panopticon as a Contemporary Icon?
Anne Brunon-Ernst and Guillaume Tusseau
Foucault’s understanding of the panoptic, though penetrating, is also found wanting.

On the other hand, fuller understanding of the Panopticon itself does yield both
insight into the peculiarly modern varieties of surveillance and important clues as
to what contemporary analysts and critics regret in the rise of electronic surveillance
…. We shall have to look beyond Foucault, however, for the framing of a coherent
critique.1
We also have no contributions which return to the figure of the Panopticon itself,
and consider it anew, either sans or contra Foucault. This perhaps reflects the
readership and reach of Surveillance and Society itself …. [Surveillance and Society]
still has not reached all corners of the academic world.2
French Bentham scholars have always been keenly aware of the potential of
the Panopticon as a tool to analyse contemporary society. The aim of this
Epilogue is to focus first on the missing links between Bentham, Foucault and
surveillance societies, by mapping the use of the analytical concepts of ‘panoptic’
or ‘panoptical’ in scholarship and how they are applied to contemporary
surveillance, with a contribution by Guillaume Tusseau. The second purpose of
the Epilogue will then be to outline some of the findings of the present volume
from the perspective of surveillance.
1
Lyon, ‘An Electronic Panopticon?’, p. 674.
2
D. Wood, ‘Editorial’, Surveillance and Society, 1/3 (2003): p. 238. David Wood’s
editorial comment on the Surveillance and Society issue on Foucault.
186 Beyond Foucault
Panoptic, Panoptical and the Quest for Semantic Accuracy in

Studies on Surveillance
Surveillance study is a relatively new field of academic study and its area of
expertise is control in modern societies. It recognises Bentham – or at least
Foucault’s interpretation of Bentham – as one of the major theoricians of this
new power of mind over body, and mind over mind.
In surveillance studies, the term Panopticon as such is sparsely used, and
when it is, it is usually at the beginning of an argument to introduce the origins
of the theories framing the discussion or as a qualified noun. The term as applied
is always viewed through the lens of Foucault’s panopticism, since it is not so
much the Panopticon, but Foucault’s reinterpretation and conceptualisation,
which interest scholars working in that field. The discussion then moves on
to apply, reject or qualify the use of one panoptic feature identified at the
beginning of the research using a case study. Some studies try to distinguish
the Panopticon from panopticism, but understandably for most it is not the
focus of their discussion.3 If the concept of Panopticon is rarely used without
adjustments,4 the corresponding adjectives of panoptic and panoptical are
often used unsparingly. Panoptic is used by some authors as a nominalised
adjective to refer to the principles of the Panopticon.5 Panoptical is thus used
either interchangeably with panoptic or distinguished from it.6 The difference
Boyne, p. 295. See also S. Elden, who makes a very apt distinction between discipline-
3
blockade, exemplified by Bentham’s Panopticon, and discipline mechanism, as in Foucault’s

panopticism, when he writes: ‘The first is the enclosed institution, situated on the edges of
society, but turned inwards; the second is a functional device or apparatus [dispositif] that
makes the exercise of power more effective and enables subtle coercion of the society; a schema
of exceptional discipline, and a generalised surveillance’ (S. Elden, ‘Plague, Panopticon and
Police’, Surveillance and Society, 1/3 (2003): p. 248).
4
Boyne, p. 285.
5
Lyon, ‘An Electronic Panopticon?’, p. 654.
6
Traditionally linguistic theories claim that –ic adjectives relate to quality and
category, show a direct connection to the root substantive, are associated with the idea of
specific, genuine and positive, and in some cases restricted to scientific use, whereas –ical
adjectives relate to quality only, show a less direct connection to the root substantive, are
associated with the idea of general, imitation and negative, and are used more often in a
general sense. See S. Hier, ‘Probing the Surveillant Assemblage’, Surveillance and Society, 1/3
(2003): p. 404. More recent linguistic analysis demonstrates that the previous claims are
unsubstantiated by statistical data and that some dictionary entries need to be changed. See
S. Gries, ‘A corpus-linguistic Analysis of English –ic vs –ical Adjectives’, ICAME Journal, 25
(2001): p. 75.
Epilogue 187
in meaning between panoptic and panoptical needs to be defined.7 Thanks to

contemporary statistical corpus linguistic techniques,8 it has been established
that –ic adjectives relate to what is concrete, specific and at the basic level,
whereas –ical adjectives are more abstract, general and superordinate.9 These
distinctions are of interest and serve our purpose here. Panoptic can thus be
construed as connected with the root idea of the Panopticon,10 referring to the
more concrete, specific and basic features of the project, whereas panoptical
is a derivative adjective form, which holds a looser connection with the root
idea of the Panopticon and operates at a more abstract and superordinate
level. Panoptical can thus be construed as describing qualities ascribed to the
Panopticon as mediated through Foucault. The distinction outlined above is
not applied consistently. The following pages will endeavour to rectify this.
The Epilogue now moves beyond issues of terminological accuracy to study
the use of the panoptic paradigm per se in studies related to cyber-society and
surveillance. Can the Panopticon still be construed as a contemporary icon?
Mapping the Panoptic Paradigm in the Field of Surveillance Studies
In many fields, the Panopticon is presented as an analytical ideal type,11

although one must agree that, compared to present-day surveillance techniques,
Bentham’s panoptic surveillance seems quite poor. Any preliminary inquiry
into panoptic use must first determine whether, from a methodological point of
view, it is possible to use a project devised at the turn of the nineteenth century
to analyse the social, political and economic situation at the turn of the twenty-
first century. Foucault did so when he described the workings of the world
in which he lived in terms of panopticism. However, he did not recycle the
concept of Panopticon directly. He used the mediated concept of panopticism,
which, as shown in Chapter 1, is not to be confused with Bentham’s project.
With a concept whose etymology means ‘all-seeing’, the temptation to apply it
to surveillance-related areas is too strong to resist. Indeed, scholars argue that
7
Ibid., p. 101.
8
Ibid.
9
Ibid., p. 96.
10
See J.-M. Fournier, ‘Motivation savante et prononciation des adjectifs en –ic en
anglais contemporain’, Faits de Langues, 1 (1993): pp. 235–40; H. Marchand, The Categories
and Types of Present-Day English Word-Formation: A Synchronic-Diachronic Approach, 2nd
edn (München: Beck, 1969); N. Ross, ‘The –ic and –ical Pickle’, English Today, 14 (1998):
pp. 40–44.
11
Boyne, p. 285.
188 Beyond Foucault
contemporary technology and present social infrastructure now allow a full-

blown regime of surveillance, which carries some panoptic features.12
Panopticism, the Panopticon and Cybertechnology, by Guillaume Tusseau
The following analysis of cybertechnology in society allows us to contend

that the Panopticon has now become conceivable on a large scale, thanks to
technical progress, computerisation, video surveillance systems, web-cams
and the Internet. Indeed it is possible and even more economical in terms of
practical constraints. Thanks to computers and video, the recording of data is
made simple, fast and reliable. Storing information is no longer a problem. The
Internet allows for the most efficient and accurate circulation of data possible.
Revealing spontaneous everyday social concerns, movies13 and television shows
centre on this theme.14
More substantially, reflection on a ‘cyber-democracy’15 or ‘e-democracy’,
which would revive the participation of the citizens and the control of the rulers,
is intensifying.16 It would consist in using techniques for political information,
mobilisation, discussion and decision.17 Interactivity allows for reactions in real
time and for efficient interaction. It brings the concept of direct democracy back
to the present day and, at the very least, provides Bentham’s Public Opinion
Tribunal with new instruments to make itself heard.
Boyne, p. 290. See the following quote: ‘the acceptance of CCTV as urban patrol
12
having, for example, merely transferred the illiberal politics of social hygiene away from the
bodies of the populace and into the spaces in which they circulate’ (Boyne, p. 291).
13
See for instance the following films: P. Almodovar, Kika (1993); M. Poulette, Louis
XIX. Le roi des ondes (1994); P. Weir, The Truman Show (1998); R. Howard, Ed TV (1999).
14
S. Kerviel, ‘Télé-réalité: le pire est-il à venir’, Le Monde, 20–21 May 2001, pp. 4–5.
Television issue.
15
See for instance P. Lévy, Cyber-démocratie. Essai de philosophie politique (Paris: Odile
Jacob, 2002).
16
See for instance http://edc.unige.ch/; http://www.i-pol.org/; www.admiroutes.
asso.fr; www.agoranet.org; www.eacas.org, all accessed 15 April 2009; B. Masquet (ed.), La
démocratie électronique, Regards sur l’actualité (Paris: La documentation française, 2007),
vol. 327.
17
T. Vedel, ‘L’idée de démocratie électronique. Origines, visions, questions’, in
P. Perrineau (ed.), Le désenchantement démocratique (La Tour d’Aigues: Editions de l’Aube,
2003), pp. 243–66; T. Vedel, ‘Les usages politiques de l’internet’, in B. Masquet (ed.), La
démocratie électronique, pp. 15–26. See also David Held, Models of Democracy, 3rd ed.
(Cambridge, Malden (Ma.): Polity Press, 2010), pp. 249-50.
Epilogue 189
In France, the two legislative assemblies and the government have official
websites which inform the people of their activity. The debates between political
authorities can be watched on specialised television channels. Thematic or
free speech forums are organised. Laws can be better debated. Legislators can
poll citizens continually and keep up with the evolution and the utility of the
decisions they pass. Finland and Ireland have already decided to favour political
debates on the Internet.18
Law itself is better broadcast and more easily accessible using the official
websites of national and international political and legal institutions. In the
field of administration and public services, the Internet is considered as a factor
in management and service improvement.19 Unique entry points are set up for
the different official websites.20 For example, the French Ministry of Economy
set up an ‘e-ministry’21 which is integrated into a wider programme promoting
access to the information society (‘Programme d’action gouvernemental pour
l’entrée de la France dans la société de l’information’)22 and a programme of
e-bureaucracy called ADELE (ADministration ELEctronique 2004–2007). A
18
K. Holkeri, ‘Share Your Views with Us: A Finnish Experience of Involving Citizens
with ICT’, available at: www.univ-paris1.fr/droit-internet-2002/pdf/en/Holkeri.pdf,
accessed 15 April 2009; R. Kavanagh, ‘The Public Service Broker: A Model for Delivering
ePublic Services’, available at: www.univ-paris1.fr/droit-internet-2002/pdf/en/Kavanagh.
pdf, accessed 15 April 2009.
19
T. Carcenac, Pour une administration électronique citoyenne: méthodes et moyens
(Paris: La documentation française, 2001); P. Schnäbele and F. Beauvais, ‘Réforme de l’Etat
et téléprocédures’, Actualité Juridique. Droit administratif, (2001): pp. 608–16; V. Beloulou,
‘Les téléprocédures: un enjeu essentiel pour les citoyens et pour l’Etat’, Actualité juridique.
Droit administratif (2001): pp. 624–7; Conseil d’Etat, Université Paris I – Panthéon
Sorbonne, L’administration électronique au service des citoyens, 21–22 January 2002, available
at: www.conseil-etat.fr/ce-data/index2.htm, accessed 15 April 2009; P. De La Coste, ‘Les
enjeux démocratiques de l’administration électronique’, in Masquet (ed.), La démocratie
électronique, pp. 39–48.
20
See for instance www.admifrance.gouv.fr and www.service-public.fr, both accessed
15 April 2009.
21
B. Pêcheur, ‘L’administration électronique comme facteur de modernisation et de
simplicifation: l’exemple de l’e-ministère lancé au MINEFI’, available at: www.univ-paris1.fr/
droit-internet-2002/pdf/en/Pecheur.pdf, accessed 15 April 2009.
22
Comité interministériel pour la société de l’information, Programme d’action
gouvernemental pour l’entrée de la France dans la société de l’information (1998).
190 Beyond Foucault
2003 report coined the term ‘hyper-republic’.23 Canada is thinking about a form
of cybergovernment,24 while Hungary has developed an electronic Parliament.25
New practical and operational configurations are provided for the double
dynamic of the data which flows from the governed to the governing and vice
versa. This, however, does not imply blind enthusiasm.26 Experiments carried
out in Switzerland and Italy (for example in Bologna) highlighted the limits
of electronic democracy,27 some inequality in terms of access to the necessary
tools (‘digital gap’) and the small number of people visiting official websites.
The risks linked to the interception, piracy, control and censorship of messages,
as well as the difficulties in protecting the confidentiality of electronic ballots
and the authentication of voters, cannot be minimised.28 The system also
carries the potential risk of offering an overabundance of information without
any prospect of intelligibility, and allows for the circulation of unfounded
rumours. Therefore, errors and lies can spread more swiftly and efficiently
than ever before. Furthermore, search engines and similar tools do not provide
information randomly. The information is determined by a classification
where the criteria, and thus the authors and their motivating interests, remain
obscure. The panoptic paradigm characterises the current method of control in
modern societies. Following the evolution of technical progress, it takes on new
configurations which make Bentham’s thought particularly relevant nowadays,
for he is undeniably the major theoretician and promoter of this form of power.
L’Hyper-République. Bâtir l’administration en réseau autour du citoyen, Report by

23
Pierre de La Coste for the Head of the Government Department for the Reform of State
Institutions, Henri Plagnol, 10 January 2003, available at www.ladocumentationfrancaise.fr/
BRP/034000010/0000.pdf, accessed 15 April 2009.
24
See ‘Cyberdémocratie: réalités et perspectives canadiennes’, available at: http://www.
umoncton.ca/Cybergouvernement/G1r1.pdf, accessed 15 April 2009.
25
See Fifth European Conference of the Members of National Parliaments on
Information and Communication Technologies, ‘La démocratie électronique: un défi pour
les Parlements’, available at: http://www.former.epri.org/documents/50_ENG.pdf, accessed
15 April 2009.
26
On the whole problem and the balanced attitude it requires, see for instance www.
democratieinteractive.com; Le Forum des Droits sur l’Internet, ‘Administration électronique
et protection des données personnelles. Synthèse du débat public organisé par le Forum
des Droits sur l’Internet, juin 2002–novembre 2002’, available at: www.foruminternet.org,
accessed 15 April 2009; P. Chambat, ‘Démocratie électronique. Quelques jalons dans la
généalogie d’une question’, Sciences de la société, 60 (2003): pp. 48–63.
27
See J. Guyaz, ‘Internet et démocratie: tout reste à faire’, Domaine Public, 1420 (25
février 2000).
28
T. Vedel, ‘Le vote électronique’, in P. Perrineau and D. Reynié (eds), Dictionnaire du
vote (Paris: Presses universitaires de France, 2001), pp. 402–4.
Epilogue 191
Panopticism, the Panopticon and Surveillance Studies, by Anne Brunon-Ernst
As Tusseau’s analysis above has shown, attempts to set up a cyberdemocracy in

France and in Western Europe, constitute a panoptic endeavour. In the field of
surveillance studies too, the Panopticon, or rather panopticism, is used by some
researchers as an analytical tool.
There are four main ways in which the Panopticon or panopticism are used
by surveillance academics: appropriation and application; rejection; qualified
acceptance based on empirical limitations; and critical reinterpretation.29
Re-using the Panopticon and panopticism uncritically is a path set with
traps. One example is telling, that of solitary confinement. Failing to take into
account the changes made to the panoptic structure over time, and the ways
in which Foucault’s panopticism ignores these changes, can lead us to associate
the Panopticon with an isolation unit.30 Chapter 1 showed that one of the
evolutions from the first to the later versions of Bentham’s panoptic plan was the
discarding of the idea of solitary confinement.31 The later Panopticons cannot be
identified with such individualising techniques as solitary confinement. More
generally, and from a methodological point of view, this chapter firmly states
that appropriation and application of an unqualified Panopticon is doomed
to encounter unsurpassable hurdles. The reason why reappropriation seems
necessarily misapplied lies in the socio-economic changes entailed by the post-
industrial society since Foucault and Bentham wrote about panopticism and the
Panopticon respectively.
Some academics consider the Panopticon as an irrelevant model in the field
of surveillance.32 Three arguments are central to this contention: anachronism,
absence of resistance in panoptical surveillance, and the rise of consumer society.
Indeed Foucault did use the Panopticon as a model of contemporary disciplinary
society, and as such his study would be anachronistic. However, he did not use
the panoptic paradigm as such, but rather mediated it through the concept of
panopticism. He wrote: ‘We live in a society in which panopticism reigns’,33 not
the Panopticon. Foucaultian models of social control identify a moment in the
past when the operating principles which frame contemporary society were
29
First three categories by M. Ray, quoted in Wood, p. 236. Similar distinctions are
used in M. Yar, ‘Panoptic Power and the Pathologisation of Vision’, Surveillance and Society,
1/3 (2003): pp. 257–8.
30
L. Rhodes, ‘Panoptical Intimacies’, Public Culture, 10/2 (1998): p. 291.
31
Semple, ‘Bentham’s Haunted House’, p. 40.
32
‘Panopticon concept as a model against which to measure contemporary practice,
the reasonable answer is surely more positive than negative’ (Boyne, p. 299).
33
Foucault, ‘Truth and Juridical Forms’, p. 58 [my emphasis].
192 Beyond Foucault
born. Surveillance scholars argue that they cannot describe the emergence of a
post-industrial society.34 Even though much of the social and cultural analysis
of the 1980s and 1990s was framed by the idea of a disciplinary and panoptical
society,35 sociologists do not now consider the Panopticon as a fit analytical tool
to explore issues of surveillance, since it is a historically outdated conception of
surveillance based on discipline.36
Resistance is another argument which challenges the relevance of any direct
application of the Panopticon model. In their case studies, sociologists in
surveillance studies are quick to point to the findings of would-be panoptical
environments which highlight the importance of resistance to panoptical power
and management techniques.37
The Panopticon can be considered as dead as a model of social control
because societies are now shaped by forces other than those which operated in
Bentham’s time. Central to this contention is the rise of consumer society, which
has placed enjoyment imperatives at the core of individual and institutional life.
Two examples of this are when the panoptical gaze is pushed away from the
centre to the borders in order to police border control,38 or when the zone to
be controlled is redrawn by the concepts of risk, self-control and pleasure.39
The panoptical model is now presented as replaced by the seduction-exclusion
model of a society which has in consequence become dual. Scholars working on
tracking devices have shown that their primary aim is to control not individuals,
34
As Lianos appropriately points out. M. Lianos, ‘Social Control after Foucault’,
Surveillance and Society, 1/3 (2003): p. 413.
35
Boyne, p. 293.
36
Poster, The Mode of Information; C. Norris and G. Armstrong, The Maximum
Surveillance Society: The Rise of CCTV (Oxford: Berg, 1999); Z. Bauman, ‘Social Issues of
Law and Order’, British Journal of Criminology, 40 (2000): pp. 205–21; D. Lyon, Surveillance
Society: Monitoring Everyday Life (Buckingham: Open University Press, 2001).
37
Boyne, p. 295. ‘McKinlay and Taylor’s critique of panopticism in organizational
theory draws attention to the inevitable interrelationship between power and resistance, and
also to that between capital and control. Does it show that panopticism, in a concentrated
applied form, may not work? – it certainly does. Does it also show that the Panoptical idea
still entrances the designers and managers of “factories of the future”? – it does that too. We
already knew that the geometry of the Panopticon was faulty. Now, McKinlay and Taylor
show us that a humanization and individuation of the Panoptical principle has serious
problems as well.’ See also the concept of sousveillance which exemplifies a mode of resistance
in Mann, Nolan and Wellman, p. 333.
38
Z. Bauman, ‘On Post-modern Uses of Sex’, in M. Featherstone (ed.), Love and
Eroticism (London: Sage, 1999), p. 23.
39
P. Vaz and F. Bruno, ‘Types of Self Surveillance’, Surveillance and Society, 1/3 (2003):
p. 281.
Epilogue 193
but goods. In this respect, present control differs radically from carceral control
and has the beneficial effects on those devices, such as preventing goods from
being stolen.40 Moral reformation is no longer at the core of surveillance. The
purpose of clothes-tagging is no longer to identify shoplifters, although it can be
one of the side-effects of tracking items, but to monitor the goods themselves.
Intentionality seems to be what differentiates Foucaultian social control from
post-industrial social control.41
Other scholars argue that, even though contemporary society revolves
around different imperatives, there are some areas where identified panoptical
features operate. The first idea which comes to mind is CCTV. Among the types
of power originating from the use of CCTV, only one is said to be panoptical.
It is the centrifugal power exercised from the centre to the area surrounding the
surveillance camera. The other powers created by CCTV stress that, in urban
settings, control is less centralised and more fragmented, and thus the panoptical
model does not apply as fully as one would have first thought.42 Other relevant
examples (in the fields of health, nutrition and policing) show how some
forms of surveillance enclose inhabitants within a sub-panoptical system.43 In
corporate culture, there is also a panoptical disciplinary matrix at work.44 The
study of data collection of consumers in supermarkets shows that seduction has
incorporated panoptical aspects.45 Even though these academics cannot reclaim
40
Lianos, p. 426 proposes a new model: ‘My model … addresses the recasting of the
problematics of control as an indispensable part of the theorisation of late modernity in
terms of radical transitions in sociality. It attributes to institutional sociality a great capacity
for social and cultural transformation, that leads, beyond the decline of the evaluative grid,
to a new type of social regulation, which develops on the three tendencies of privatisation,
dangerisation, and periopticity.’
41
‘What the subject thinks, does or believes, is irrelevant to what the institution
controls; it is simply meaningless for the technological device’ (ibid., p. 423).
42
Norris and Armstrong, p. 17.
43
Boyne, p. 288.
44
‘The disciplinary matrix of peer review explicitly focused on the constant, microscopic
policing of the team member’s subjectivity’ (A. McKinlay and P. Taylor, ‘Through the
Looking Glass: Foucault and the Politics of Production’, in A. McKinlay and K. Starkey
(eds), Foucault, Management and Organization Theory: From Panopticon to Technologies of
Self (Thousand Oaks, CA: Sage, 1998), p. 181).
45
Boyne, p. 297.
194 Beyond Foucault
fully the panoptical model for surveillance studies,46 they still consider that the
Panopticon remains a ‘figure of desire in welfare capitalism’.47
Beyond unconditional acceptance, rejection, and qualified application, there
is room for scholars critically to reinterpret the Panopticon. This reinterpretation
is at its best in the wealth of semantic creation designating the critical venture
at hand. The following list of terms gives some idea of the impressive range of
panoptical critical reinterpretation in the field of surveillance studies, and
it does not aim to be exhaustive:48 Ban-opticon,49 Cybernetic panopticon,50
Electronic panopticon,51 Fractal panopticon,52 Global panopticon,53 Industrial
panopticon,54 Myopic panopticon,55 Neo-panopticon,56 Omnicon,57 Panoptic
46
‘Sociologists are quite properly aware of the undesirability of uncritical acceptance
of the Panoptical paradigm, and theoretical objections to the singularity of vision implied
by Panopticism … can now be buttressed by empirical objections; but the overall picture is
highly complex’ (ibid., p. 294).
47
Boyne, p. 295.
48
K. Haggerty, ‘Tear Down the Walls: On Demolishing the Panopticon’, in Lyon,
Theorizing Surveillance, pp. 23–45.
49
See Bigo. The term ban-opticon is formed by the term ‘ban’ which signifies exclusion
– it was coined by Jean-Luc Nancy and Giorgio Agamben – and by the term ‘opticon’ as
used by Foucault. The term highlights the fact that the aim of surveillance is not to monitor
everyone, but a small number of people who are very mobile.
50
Bousquet, pp. 105–13. The cybernetic panopticon secures the compliance of
individuals through digital technology.
51
Lyon, ‘An Electronic Panopticon?’. The term points to the ‘panoptic residues’ in the
present surveillance society.
52
See De Angelis. De Angelis defines the fractal panopticon as follows: ‘1. Operational
mode of power: to see without being seen. 2. Real human activity represented through
“shadowy projections”. 3. Contextual relation between “inside” and “outside”. 4. Individual
freedom and socially constructed cells. 5. Pervasiveness of the “watchtower”. 6. Articulation
between control and disciplinary mechanisms.’
53
Gill, pp. 1–49. The term points to the idea that peoples and nations feel monitored
as if they were in a Panopticon.
54
Butchart, pp. 185–97. The industrial panopticon studies the case of the South
African gold mining industry’s medical apparatus.
55
Leman-Langlois, pp. 43–58. The term helps to explain how video surveillance gives
a partial and distorted vision of crime.
56
Mann, Nolan and Wellman, pp. 331–55. The term is used to describe new
communication techniques in post-industrial societies, where individuals become unwilling
and unknowing subjects of surveillance, but the knowledge of being watched is often enough
to make them abide by certain rules.
57
Goombridge, pp. 30–45.
Epilogue 195
discourse,58 Panopticon-at-large,59 Panoptic sort,60 Panspectron,61 Pedagopticon,62

Polypticon,63 Postpanopticon,64 Social panopticism,65 Superpanopticon,66
Synopticon,67 Urban panopticon68 and so on.
Apart from the phrase ‘Social panopticism’, the terms in the list above
are formed with the term ‘Panopticon’, ‘pan’, or ‘opticon’ to which is added
an adjective, a prefix or a suffix. For this reason, these reinterpreted concepts
will be termed ‘post-panoptical’, rather than ‘post-panoptic’, since these newly
invented words or phrases define a Panopticon which is envisaged through
the lens of Foucault’s panopticism. There is more of the panoptical than the
panoptic in these coined concepts even if the word-formation does not point
58
Berdayes, pp. 35–49. Berdayes defines panoptic discourse as the rules employed by
disciplinary power comprising a characteristic discursive schema in three moments termed
‘examination’, ‘hierarchical observation’ and ‘normalizing judgement’.
59
Lyon, The Electronic Eye, pp. 57–80. The Panopticon-at-large shows the rise of a
disciplinary environment applied to society as a whole.
60
O. Gandy, ‘The Surveillance Society: Information Technology and Bureaucratic
Social Control’, Journal of Communication, 39/3 (1989): 61–76. The panoptic sort refers to
market segmentation which uses all available information to construct a profile and allocate
an individual to a particular type in a classification. The whole society works as a Panopticon.
61
See De Landa. The Panspectron points to the fact that the present age of open
information functions as a constant monitoring gaze.
62
See Sweeny.
63
Allen, pp. 137–47.
64
Boyne, pp. 285–307. The term postpanopticon refers to the fact that societies have
entered a post panoptic era because a post-panoptical society regulates itself. Foresight and
prevention tend to replace detection and punishment, thanks to the emergence of what
Mathiesen called the viewer society and thanks to the compromises that resistance and
malfunctioning panoptical surveillance entail.
65
Wacquant, pp. 401–12. Social panopticism points to the fact that surveillance has
become the embodiment of governance.
66
See Poster. The term expresses the idea that the shift to control societies operates
via discourse. Focusing on the study of consumer surveillance, Poster uses the term
‘superpanopticon’ to refer to a panoptic surveillance devoid of any technical limitations.
67
Mathiesen, pp. 215–34. See the definition of the synopticon: ‘… not only is our society
marked by small numbers watching large numbers, it is also marked by the phenomenon of
very large numbers watching the activities of very few; and this reversal of the Panoptical
polarity may have become so marked that it finally deconstructs the Panoptical metaphor
altogether’ (Boyne, p. 299).
68
See Koskela. The terms refers to the effect of surveillance cameras in allowing
a panoptic technology of power to reach beyond buildings. The concept is invented by
Norris in Norris and Armstrong, p. 268. Koskela does not think that one can speak of
‘the panoptization of the urban space’, because the urban space is less controllable than the
restricted panoptic space, which thus includes an element of resistance.
196 Beyond Foucault
to panopticism. The very existence of these neologisms conveys the idea that
the panoptic paradigm is no longer a fitting model to interpret present-day
surveillance issues, and that society has moved to a post-panoptical age, which
shares some of the features of its panoptical Foucaultian father and panoptic
Bentham grandfather, as one inherits traits from a relative.
Five post-panoptical features are identified in the coined terms and phrases
above. First, the terms ‘Ban-opticon’ and ‘Panoptic sort’ point to ways in
which the post-panoptical age isolates a group of individuals to control them,
as is the case with Internet users or health provision in South African mining
companies. Society is thus divided into two groups, those who are monitored
and those who are excluded from the monitoring programme. Any attempt to
apply the findings on one group to the whole of society would be biased. And,
of course, this distorted picture of society would justify in retrospect the use of
surveillance. Second, the post-panoptical era relies on the central monitoring
gaze, as the terms ‘Panspectron’, ‘Fractal panopticon’ and ‘Global panopticon’
show. Third, academics, in coining the terms ‘Cybernetic panopticon’ and
‘Neopanopticon’, stress the compliance of individuals to surveillance as a central
feature. Fourth, according to other surveillance scholars, our post-panoptical
society is everywhere and all-pervasive. They express this idea in coining the
terms ‘Superpanopticon’ and ‘Panopticon-at-large’. Fifth, the concepts of
‘Postpanopticon’, ‘Synopticon’ and ‘Social panopticism’ allow panoptical
features to be read in a political light. Panopticism, as a disciplinary technology,
becomes a mode of governing individuals.
Many of these post-panoptical features seem to be panoptic, especially if
the last two Panopticons are considered. The following section explores ways in
which the panoptic is post-panoptical.
The Post-panoptical and the Panoptic in Surveillance Studies
Academics who argue that the Panopticon can be appropriated, applied,

qualified or reinterpreted reassert the limits, but nonetheless the relevance, of
panoptic or panoptical concepts.69 In the field of surveillance studies, there is
still room for a reassessment of what panopticism à la Foucault is, and what the
panoptic paradigm is, if one wishes to be true to Bentham’s thought on social
control. Moving beyond purely historical interest, the last part of the Epilogue
highlights ways in which the present volume of essays might contribute to
69
See G. Marx’s comment on the backcover of Lyon’s Theorizing Surveillance: ‘This
volume paradoxically serves both to undermine and strengthen the idea of panopticism as a
theoretical construct.’
Epilogue 197
the surveillance debate, by showing the post-panoptical features of the last

Panopticons in particular.
This volume of essays aims to highlight the interest of Bentham’s Panopticon
scheme. To achieve this aim, the authors have shied away from the prison- and
pauper-Panopticons – which had served as groundwork for the concept of
panopticism – in an attempt to make the wider academic world aware of the
potential of considering the later Panopticons.
The first step is to distinguish Bentham’s Panopticon from Foucault’s
panopticism, and thence to distinguish between panoptic and panoptical.
Brunon-Ernst showed the differences between the four concepts.70 By reading
the Panopticon project through the lens of the prison, Foucault equates any social
monitoring techniques to a disciplinary prison-model. Foucault does reconsider
his surveillance society paradigm in later works,71 as explained by Laval, but this
change has not yet been registered in academia.72 Foucault’s stand has reduced the
scope of application of the Panopticon, since by analysing monitoring features as
panoptical, one consequently describes the workings of the particular institution
as prison-like, and this does not necessarily correspond to the functions of all
institutions where surveillance is at work, as scholars working in the field have
repeatedly pointed out.73 If society cannot be described as panoptical, is there
room to consider the panoptic in today’s post-panoptical world?
The uses of the panoptic paradigm now need to be reread through the lens
of the panoptical features identified by surveillance academics. By inverting the
perspective on the Panopticon, the Epilogue wishes to give a fresh insight into
Bentham’s ideas on social control. Three concepts are central to the description
of the post-panoptical age: the issue of non-disciplinary environments, the
question of territories of surveillance, and the relevance of intentionality in
these fields.
Foucault has made the first two Panopticons the epitome of a disciplinary
society. However, Chapter 1 has highlighted studies on school discipline which
show the existence of a marking scheme as an essential feature of identifying
discipline in those environments. The chresthomathic-Panopticon is devoid
of any marking scheme. Moreover the allocation of individuals to classes, a
key component of the first two Panopticons and of panoptical individualising
techniques, is absent from the third project. The chresthomathic-Panopticon
can be said to fail to be fully disciplinary.74 Similar conclusions can be drawn
70
See Chapter 1, pp. 21–36 and the Epilogue, pp. 186–7.
71
Laval, ‘La chaîne invisible’, pp. 24–43.
72
73
Lianos, p. 416.
74
See Chapter 1, pp. 33; 36.
198 Beyond Foucault
from the study of the constitutional-Panopticon. Bentham’s first aim was not
to control, but to produce efficiently, to educate usefully and to govern for the
best interest of the community, as shown by Leroy.75 Panoptic surveillance is
subordinate to these aims, as can be seen from the little space devoted to panoptic
features in the chrestomathic- and the constitutional-Panopticon.
Reading the Panopticon schemes without the lens of Foucault’s disciplinary
schemes allows a better understanding of the liberating and beneficial effects
of panoptic surveillance.76 In later writings,77 Foucault also noted the role of
social control in shaping the individual. The beneficial effects of panoptic
surveillance are exemplified by the pauper-Panopticon, which offered board
and accommodation to famished indigents against the backdrop of cries for
the abolition of poor relief; by the chrestomathic-Panopticon, which promotes
useful education for the growing middle-classes, free from the risks of sexual
abuse found in similar institutions at the time; and by the constitutional-
Panopticon, which promotes good government by controlling civil servants, as
shown by Brunon-Ernst, Tusseau and Leroy.78 The prison can never be liberating
and beneficial for the convict. Panopticism is a distorted and partial model of
the Panopticon, which does not take into account the complexities of social
control in Bentham’s thought, as shown by Leroy and Bozzo-Rey.79
Bentham is also able to envisage a network of surveillance beyond the strictly
panoptic architecture of the Panopticon. Leroy highlights ways in which the
panoptic paradigm is used as an instrument against misrule.80 The converse is
true. Bentham can consider penal reform without the Panopticon, as Cléro
shows.81 This questions the relevance of the panoptic mechanism in Bentham’s
overall theory. In this respect, the seminal nature of the Panopticon in Bentham’s
thought is questionable. Does it pervade all aspects of Bentham’s utilitarianism,
or can Bentham’s philosophy operate without the panoptic paradigm? It is
not the object of this volume of essays to tackle the issue, but it does reflect on
the relative fame the Panopticon has acquired in surveillance studies, and asks
whether this iconic position is justified. Bentham’s theory of surveillance is also
to be found in other works, such as the Rationale of Judicial Evidence, which
75
76
Lianos, p. 415 and see also Lyon, The Electronic Eye.
77
See Foucault, History of Sexuality and The Birth of Biopolitics.
78
See Chapter 1, pp. 30–40, Chapter 5, pp. 137–40 and Chapter 6, pp. 145–51.
79
See Chapter 6, pp. 143–5 and Chapter 7, pp. 183–4.
80
81
Epilogue 199
shows the wide-ranging implications of basing a system of judicial inquiry on

probability rather than truth.82
Most surveillance academics challenge the direct application of panoptical
features on the grounds that panoptical surveillance is centrifugal, whereas
contemporary forms of surveillance are centripetal. De Champs illustrates that
the Panopticon built in Geneva was very far from Bentham’s original plan,
when the guiding panoptic principles and the building’s circular scheme are
considered.83 Even when the Panopticon fails to be circular, as in the Genevan
endeavour or in the constitutional-Panopticon, panoptic surveillance is not
only centrifugal. This raises the issue of the territory of panoptic surveillance.
Although there is a central inspector who gives the impression of exercising
uninterrupted surveillance from the central tower, there are other networks of
surveillance which allow the monitoring of inmates and staff in the first two
Panopticons and also people outside the building.84 The panoptic individual is
monitored at different levels as criminal, indigent, elderly, sick, infant, student,
civil servant etc. Although the same individual can be monitored at different
levels, some individuals escape the panoptic gaze, either in a private or in a
public capacity.
However, panoptic surveillance also keeps a private area where the individual
can lead his life shielded from the monitoring gaze. The very limited private
space of the first two Panopticons, where inmates could withdraw from the gaze
of the central inspector for natural and reproductive purposes, is extended in
the last two Panopticons, where individuals are monitored only when in the
Panopticon (during school or business hours). As in some panoptical concepts,
such as ‘Ban-opticon’, the Panopticons allow large numbers of people to be left
out of the surveillance networks,85 be it because they are submitted to surveillance
only when performing specific tasks or because they lie outside the reach of the
panoptic gaze. Beyond the centrifugal/centripetal debate, panoptic surveillance
also relies on the places of surveillance and non-surveillance. Behind the line
drawn on the ground in the cells or outside one of the many Panopticons,
individuals lie outside the monitored areas.
The paragraphs above have shown that considering issues of discipline and
space in the last Panopticons allows us to read the panoptic as post-panoptical.
However, when it comes to the intent which triggers the surveillance
mechanisms, a comparative study of panoptic/panoptical theories and post-
panoptical environments yields disappointing results. The Panopticon as well
82
83
84
85
See the Epilogue, p. 194.
200 Beyond Foucault
as panopticism fails to be post-panoptical when it comes to considering the

issue of intentionality. If there is a line to be crossed between the Panopticon
and modern-day surveillance, it lies with the intent of the controllers. The
Panopticon is an architecture of moral reformation. The aim of the Panopticon
is to force inmates, be they criminals, paupers, pupils or ministers, to adopt the
behaviour which is most likely to increase their individual long-term happiness
and that of the community. Foucault, in his concept of panopticism, is not
blind to the utilitarian aims of Bentham’s universal structure of reformation. He
understood the moral reformation at work in the Panopticon as the normalising
target set by the monitoring institution.86 Individuals are only supervised in
order to be moulded to fit the norms the institution wishes to promote. Today,
surveillance is not applied to reform individuals. In most cases, control boils
down to tracking individuals and goods, without any other aim. When it comes
to intentionality, the panoptic/panoptical distinction ceases to be a relevant
model for analysing the present post-panoptical age, as sociologists call it.
Conclusion
This volume of essays has run full circle. It has endeavoured to challenge received
ideas on the Panopticon and on Foucault’s reading of Bentham. In doing so,
contributors have tried to shift the focus away from the first Panopticons to
study all forms of social control, developed in later versions of the project.
Here are some of the contentions that contributors have made in this volume:
there is not one Panopticon, but four, which Bentham amends as he develops the
potential of utilitarian surveillance in his model society; Foucault understood
more of Bentham’s political theory than his writings on panopticism show;
brick and mortar Panopticons are a far cry from Bentham’s project; Bentham’s
penal reform can operate without the Panopticon; the panoptic paradigm is also
effective in Bentham’s constitutional theory; social control is both panoptic and
non-panoptic; and Bentham’s Panopticon carries some post-panoptical features
and could be of use in discussions on contemporary surveillance.
In making these contentions, contributors have endeavoured to rehabilitate
both Bentham’s political theory to Foucault readers and Foucault’s panopticism
to Bentham scholars. Their only wish is to have contributed to the wider
circulation of knowledge on the Bentham–Foucault relationship, and to the
progress of those ideas in all corners of the academic world.

86
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Index
Alembert, J. Rond d’ 84 134n126, 137n147, 201, 203–4,

American colonies 26; see also American 206, 215, 217; see also Dumont, E
Declaration of Independence Panopticon Letters 21n13, 25–6, 65n9,
American Declaration of Independence 26; 68, 116n7, 158
see also American colonies Panopticon, or the Inspection-House 8,
aptitude 121–2, 137, 146; see also 17, 20n11, 21–22, 23n23, 25n29,
bureaucracy; functionaries 28–9, 37, 40, 65n9, 126n71,
architecture 6–9, 25–8, 33, 37, 40, 44, 55, 132n112, 169n26, 169n31,
66, 68, 71, 77, 126–7, 133, 144, 169n32, 183n76, 202
164, 169, 171, 173, 176, 183–4, Panopticon Postscripts 22n17, 25–6,
198, 200, 212, 214; see also prison 68–9, 116n7, 131n132, 202
design Securities Against Misrule 119n26, 121,
avowal 79; see also innocent; punishment 123n52, 123n54, 123n55, 145n11,
160n58, 204
Bahmueller, C. 2, 2n8, 6n21, 129–32, Théorie des peines et des récompenses 71,
134n125, 136n138, 208; see also 72n44, 85n19, 135n128, 201; see
National Charity Company also Dumont, E.
Bayes, T. 112n83 Traités de législation civile et pénale
Beccaria, C. F. 10, 18, 53, 79–80, 84–97, vii, 18n4, 69, 85n18, 205; see also
99–100, 102, 109, 110n77, 201 Dumont, E.
Bellot, P.-F. 73 Bentham, Samuel 22, 26, 37n68, 68, 115;
Bentham Project vii, 2–4, 69n27, 72n46, see also Russia
210, 212, 217, 218; see also Centre Berkeley, G. 101n59
Bentham Bernoulli, J. 91, 92n36, 99, 104–5, 106n69,
Bentham, Jeremy 108n74, 205
Book of Fallacies 65, 118n18, 202 Bibliothèque Britannique 70, 205, 209
Constitutional Code 8, 21, 24, 30n47, Bibliothèque Universelle 73, 76, 205
38–40, 115–117, 119, 121, Bicêtre (prison) 72
122n43, 122n46, 122n49, 123n51, biopolitics 49–50; see also Foucault, M.;
123n54n, 123n56, 124n60, 125, governmentality; liberalism; norm;
126n67, 127–9, 138, 143–4, power; régime; security; sovereignty
145n14, 147, 147–54, 169n29, biopolitical 49–50
202, 204 biopower 49–50
Le Panoptique ix, 2n7, 18n4, 46n9, Blackstone, W. Sir 129n93, 133n120, 162,
68, 70n31, 76, 116n8, 124n58, 205, 218
127n79, 130n98, 131n104,
222 Beyond Foucault
Blamires, Cyprian 67, 68n23, 69n30, common law 120, 178, 179n63, 218; see
121n26, 204, 209 also law
body 32, 43, 45, 88n28, 89, 144, 148, 155, communication 22, 24, 29, 50, 122n50,
157–8, 170, 171n39, 172, 177, 186 124, 164, 170, 180, 190n25,
Bowring, John 8n23, 17, 68, 201, 202, 203 194n56, 195n60, 212–3; see also
Bozzo-Rey, M. vii, 11, 117n12, 161, prison design
175n49, 180n69, 198, 209 constitutional State 138; see also democratic
Brissot de Warville, J. P. 80, 100–1, 205 State
Brunon-Ernst, A. v–viii, xiii, 1, 3n12, 4n15, construction 2, 8n23, 22n17, 56, 74n56,
6n21, 8, 12, 17, 18n5, 20n11, 81, 105, 111, 116, 126, 136, 163,
27n39, 28n41, 40n83, 40n85, 169, 173, 202
43n1, 63, 88n27, 112n82, 123n51, contract 46, 90, 95–6, 98–9, 126
127n81, 143n6, 147n18, 169, 171, contractor 126n69, 127, 131n109,
173–4, 185, 191, 197–8, 199n84, 133n122, 134–5; see also inspector
210 contractualism 95–8
Buffon, G-L. 84 management 69, 72; see also
Burdett, F. 115 management; prison management
bureaucracy 1n3, 6n22, 7n22, 116n7, 118, social 165
126n68, 129n90, 189, 214; see also control
aptitude; functionaries democratic 30n48, 76; see also censure
motion; democracy; despotic
Cabet, E. 67 government; public opinion
calculus 10, 39n80, 53–4, 57–8, 84, 87n24, disciplinary 77; see also discipline
91, 94, 110, 118n17, 120, 135, 138, horizontal system of 80, 112, 163
168, 180–4; see also probability; social 4, 10–3, 27, 50, 63, 121, 129,
punishment; utility 131, 137, 141, 159, 161, 174–5,
Campos Boralevi, L. 132, 133n117, 179, 191–3, 197–8, 200
134n125, 139, 154, 210 convicts 22, 26, 35, 37n71, 69, 73, 94, 148,
censure motion 148; see also democratic 198; see also management; prison;
control punishment
Centre Bentham vii–ix, xiii, 3, 4n15, correction 8, 20n11, 40, 80n9, 97, 112n84;
55n29, 215, 219–20; see also see also punishment
Bentham Project corruption 23, 103n62, 119, 137, 146,
centrifugal 193, 199; see also surveillance 148–9
charitable societies 76; see also philanthropy crime 10, 20n10, 26, 64n6, 70, 72, 74, 79,
citizenship 153 81–2, 86–90, 91n32, 92n35, 94–5,
Cléro, J.-P. v, viii,–ix, 3, 10, 23n21, 97, 101, 109n76, 110, 123, 194n55,
53–4, 67n20, 71n40, 79, 103n61, 213, 218; see also dangerosity; death
130n97, 135n133, 137n143, penalty; deportation; forbidden;
140n155, 164n9, 169n28, 198, management; prison; punishment;
205–5, 209, 211–2 security
Cuvier G. 81
Index 223
cyber-democracy 12, 188, 190–1, 211, 168n25, 171, 195, 209–10; see also
215; see also cybertechnology; fiction; language; Panopticon; word
democracy; e-democracy; Internet dislocation 125, 148–9, 156; see also
cybertechnology 188; see also cyber- functionaries; ministers
democracy; digital gap; Internet dislocability 122
division 50, 118, 121n37, 126n68, 155–6
dangerosity 86n20; see also crime calculus of divisions 91
death penalty 26, 90, 93, 96–7, 109, 133, domination 26, 44, 49n13, 50, 70n36, 162–
138, 144, 148–9, 154n37, 157–60, 4, 168, 170, 173–4, 179, 182–3; see
188, 190, 214, 218, 219; see also also language; Panopticon
crime; punishment Dube, A. 2n4, 136, 212
De Champs, E. viii, 9, 63, 67n20, 199, 209, Dublin 68
212 Dumont, E. vii–ix, xv, 17n4, 63, 67n20,
democracy 2n4, 6n22, 39n82, 44, 56, 115, 68–78, 84, 85n19, 93–5, 116n7,
117, 119, 137; see also control; 116n8, 121n37, 124n58, 127n72,
cyber-democracy; e-democracy; 127n79, 120n98, 131n104,
general will; government; misrule; 133n119, 134n126, 135n128,
Panopticon; public opinion; 137n147, 139, 201, 204–5, 209,
republicanism 215, 217; see also Geneva; Le
democratic State 125; see also Panoptique; semi-Panopticon;
constitutional state Théorie des peines et des récompenses;
democratisation 56 Traité de législation civile et pénale
deontic logic 166, 167n20, 168, 180–2, Projet d’un code pénal 71, 205
212, 214, 220; see also logic of the Souvenirs sur Mirabeau 72
will; permission; practical meta- duty 23n23, 65, 84n17, 126, 155–6
reasoning interest and 23n23, 126; see also
deportation 21, 26, 133; see also crime; interest; utility
punishment to obey the law 162, 178–9, 183
Diderot, D. 79n2, 79n3, 84, 85n18, 90,
91n32, 92–7, 99–100, 201 e-democracy 188; see also cyberdemocracy;
digital gap 190; see also cybertechnology democracy; Internet
discipline xi, 5n18, 7, 9, 11–2, 15, 18, 28–9, Enfantin, P. 67
34–6, 30–41, 44–51, 53–4, 56–7, Enlightenment viii, 46, 63, 83–4, 92, 94,
60, 64, 106, 126, 131–2, 136n143, 106, 112, 138, 139n152, 157–8,
143, 172, 184, 186n3, 192, 197, 207, 218
199, 208, 212; see also Foucault, M.; equality 22n19, 117, 158, 218; see also
surveillance justice
disciplinary society xi, 2, 18, 38, 39n78, inequality 190
40, 44, 57, 191–2, 197; see also ethics vii, 28n43, 107n72, 118n17, 145,
control 150, 167n23, 181n70, 201, 206,
discourse 17n2, 19, 20n11, 38, 65, 78, 89– 209, 220
90, 100, 108, 150, 162–5, 166n17, Euclid 88
224 Beyond Foucault
eye 29, 75, 94, 105, 125, 130, 134, 147, 159, ‘Of Other Spaces’ 78n71, 206
195n59, 198n76, 216 The Birth of Biopolitics v, 5, 21n12, 30,
of power 34n60, 54–6, 63; see also 39, 43, 52n20, 52n21, 52n22, 55,
Foucault, M. 143, 198n77, 207, 219; see also
of society 48 biopolitics; governmentality
freedom 11, 18, 51, 80, 96, 100n54, 124,
fallacy 89, 100, 158; see also fiction 143–4, 151–2, 159, 175, 194n52;
fiction viii–ix, 41, 43, 81, 88, 120–1, see also liberty
130n97, 150, 162–4, 168, 170, Freud, S. 82n12, 111n80, 207; see also
172, 174, 184, 204, 211, 217; see Lacan, J.; psychoanalysis
also discourse; fallacy; Lacan, functionaries 11, 24, 29, 144, 146–8, 171;
J.; language; mystification; see also aptitude; bureaucracy;
nomography; psychoanalysis; truth; dislocation
word
fictitious entity 100n55, 101, 164–5 Galilei, G. 97
legal fiction 121, 162 game theory 91
paraphrasis 164, 167, 174, 182 Garran de Coulon, J.-P. 68
real entity 164 general will 96, 150; see also democracy;
forbidden 102; see also crime; punishment utility
force 34, 53, 58, 69, 103n63, 104–6, 108, Geneva 9, 63–4, 67–8, 70–4, 76–8, 199,
111, 113, 118, 137, 172, 174, 181, 205–6; see also Dumont, E.; semi-
192 Panopticon
psychical dynamics 111 Giannone, P. 97
Foucault, M. government 2n4, 5n18, 8, 11, 23n23, 24,
and historians viii, xi–ii, 63–4, 66–7; 27–30, 33–4, 36, 37n71, 37n72,
see also Léonard, J. 38–41, 44, 46, 49–59, 68–71,
Discipline and Punish xi, 3–5, 7–8, 76–77, 115n4, 117–8, 121–5,
10–2, 18, 20, 28–9, 30n48, 31, 127–8, 132–3, 144, 149, 152–8,
37n73, 38n77, 40, 43–45, 48n7, 177, 179, 189, 198, 203–4
56–7, 59, 63, 66, 78, 130n101, art of 49
132n115, 137n146, 143, 161n2, despotic 152–3; see also control;
171n41, 176n52, 183n72, 206; see democracy
also discipline goals of 121
Dits et écrits xiin5, 1n1, 4–5, 31n54, governmental rationality 41, 50–1, 53,
36n65, 43, 45n2, 46n9, 47n10, 57, 59, 213
48n12, 50n14, 57n34, 59n38, governmentality xii, 7, 9, 12, 15, 18, 29,
79n4, 80, 81n10, 101n58, 11n81, 30, 34, 36, 38–41, 44, 50, 53, 55–8,
112n84, 113n85, 123n56, 143n1, 207, 211, 213; see also biopolitics;
122n9, 159n53, 206–7 Foucault, M.
‘Eye of Power’ 9n25, 18n5, 28n43, intervention 53
29n45, 30n50, 63, 66n14, 206; see
also eye Hacking, I. 112
Index 225
Halévy, E. viii, 2, 7n22, 44, 115, 139n152, interest 7n22, 23n23, 34, 39, 50–1, 53–60,
213, 218 65, 102, 104, 121–3, 125–6, 129,
happiness 11, 33, 54, 65, 86–7, 90, 94, 131, 134–5, 139, 145–6, 149–51,
117–22, 124–5, 135, 136n137, 174, 176–8, 198, 213, 216; see also
137–9, 140, 144–5, 151, 157, ruling few; subject many; utility
177–8; see also utility junction-of-interest 126; see also duty
Hart, H.L.A. 2n4, 54n27, 120n28, 129, Internet 19n10, 188–90, 196, 209, 213–5,
139, 163n3, 163n5, 168n24, 217, 220; see also cyber-democracy;
203–4, 213 cybertechnology; e-democracy
Hegel, G. W. 1, 80 Ivernois, F. (Francis) d’ 74–5
Helvétius, C. A. 53, 84, 145, 207
heterotopia 9, 78; see also utopia judicial evidence 10, 81, 83, 85n19, 99n52,
Himmelfarb, G. 2, 129, 130n100, 131n105, 170n37, 198, 201–2; see also
131n109, 134n125, 214 probative force; proof; punishment;
Hobbes, T. 90n30, 96 testimony; trial; truth
homo economicus 39n80, 43, 53 justice ix–x, 2n4, 3, 10, 82, 83n15, 84, 89,
Howard, J. 17n4, 18, 32, 73, 78, 134, 207 91, 92n37, 93–5, 102, 106–7,
Hume, D. 84, 97, 100n55, 104, 108, 111, 108n74, 110, 129n93, 173, 215,
113, 145, 207 218; see also equality; presumption
of innocence; punishment
ideology 51, 82, 86n20, 100, 101n59,
111–2 Kant, I. 1, 80, 101n59, 109, 157, 207
imagination xi, 65, 107, 125, 130 Kierkegaard, S. 111n80
imaginary 67, 81, 86
impunity 11, 102, 144, 148 Lacan, J. 111n80, 130, 215; see also fiction;
indigents 22, 198; see also pauper- Freud, S.; psychoanalysis
Panopticon language viii, 11–2, 19, 58, 89–91, 102,
influence 9, 9n26, 17n2, 38n77, 39, 49, 53, 108–9, 130, 137, 140, 150–1,
56–8, 64n6, 73, 74n56, 76, 80, 102, 157, 161–5, 167n21, 168–74,
105, 118, 137, 143, 150, 156–8, 179, 183–4, 209, 219; see also
165, 170, 174–5, 179 fiction; discourse; domination;
innocent 82, 90, 93–4, 113n86; see also nomography; Panopticon; word
avowal; punishment Laplace, P. S. 97, 99–100, 106n70, 112n83,
inspection 1, 8, 11, 22, 23n23, 27, 29, 31–2, 113n86
48–9, 73–5, 122, 124–5, 128, 130, La Rochefoucauld-Liancourt, F.-A. de 69,
133n122, 137, 183n76; see also 208
Panopticon, or the Inspection-House; Laval, C. ix, 3, 9, 30, 43, 55n29, 58n36,
surveillance 60n40, 63, 130n97, 135n133,
inspector 2, 8, 10, 22, 24n24, 31n53, 135n134, 137n143, 137n147,
37n70, 38, 53–4, 56, 75–6, 80, 138n150, 139n151, 140n155,
116, 124, 127, 130–1, 199; see also 164n9, 171n39, 197, 204, 211, 215
contractor; prison
226 Beyond Foucault
law ix–x, 2, 10–2, 25n26, 27n37, 27n38, Machiavelli, N. 97, 145

46, 48, 51–3, 59–60, 70, 76, 79–80, Mallet du Pan, J. 72
82–3, 84n17, 85, 87, 89, 90n29, management 1–2, 6, 17n4, 21–3, 25, 27,
91, 93, 94n41, 95–103, 105–6, 37n72, 46, 48, 50–1, 58, 63, 65n9,
107n72, 110, 118–21, 123–4, 126, 69, 72, 74, 76–7, 126–9, 134, 149,
129, 131, 133–4, 136n140, 138, 189, 192, 202, 209–10, 216; see also
139n154, 140, 146, 149, 154–5, contract; prison
157, 161–9, 173–84, 189, 192n36, market 39, 51, 56, 58, 87, 110, 136, 193,
203–5, 208–9, 213–6, 218–20; 195n60; see also liberalism
see also common law; Panopticon; mercantilist 110
penal; punishment; nomography; matter 103, 105n67, 106n71, 107
power of nature 98, 99 Meusnier, N. 92n36, 104n65, 205
legislation vi, viii–ix, 2n4, 5n18, 53, Mill, J. 116
55n27, 57, 65, 70–1, 85n19, Mill, J.S. 122n50, 133n121, 208, 219
117–121, 122n50, 135, 139, 149, Miller, J.-A. 2, 79, 82n12, 129, 130n97,
167, 176–8, 203–5, 212 130n100, 131n105, 132n116,
legislator 23, 55–6, 58, 75, 77, 91, 95, 135n130, 215, 217
105n67, 118–20, 145, 147, 153–4, ministers 24, 29, 32, 39, 122, 148, 154–5,
156, 164–5, 168, 174, 176, 179–83, 200, 204; see also constitutional-
189, 204 Panopticon; dislocation
Leibniz, G. W. 88 misrule 11, 25, 34n60, 37n72, 40,
Léonard, J. xi, 66, 215; see also Foucault, M. 119n26, 121, 123, 144–5, 156–7,
Leroy, M.-L. ix, 11, 25, 34n60, 34n61, 56, 159, 161n58, 198, 204; see also
59, 123n56, 127n75, 143, 198, 205, democracy; public opinion
216 distrust 124, 146
liberalism 5, 9, 20n10, 38, 39n82, 51–2, mistrust 145–6, 159–60
54, 55n30, 80, 139n152, 143, 159, oppression 144, 157–8, 165
210, 214, 220; see also biopolitics; Montesquieu, C. De 84, 144, 151–6, 208,
market 213; see also power
liberal 5n18, 9, 19n10, 34, 36, 38–9, Montmort, P. de 84
45, 51, 53, 55–6, 59, 70, 77–8, 81, More, T. 67
115n4, 139, 143, 159, 188, 204, Morellet, A. 84, 85n18, 87n23, 88n28,
210, 212–5, 217–8, 220 90n29, 91n32, 93n39, 94n41,
liberty 1n3, 2, 11, 51, 84, 121n41, 139, 94n42, 94n43, 96n47, 99n53,
143–5, 151–3, 157, 159, 171, 216; 109n76, 110n77, 201
see also freedom motive 31, 50–1, 102–3, 108n118, 125,
logic of the will 118, 162, 166–8, 176, 178, 135, 165, 174, 176–8; see also logic
180–2, 184; see also deontic logic; of the will; utility
motive; practical meta-reasoning mystification 162, 163; see also fiction
London vii, xv, 2, 4, 68, 74, 85n19, 116n7, demystification 164, 168
201
Index 227
National Charity Company 2n8, 6n21, legal panoptic paradigm 12, 161, 169,
22, 127, 129n92, 131, 208; see also 174, 178–9, 182; see also law; legal
Bahmueller, C. Panopticon
Newton, I. 70, 80, 112, 180 legal Panopticon 169; see also legal
Nietzsche, F. 89, 109, 110n76, 208 panoptic paradigm; trial
nomography 120; see also fiction; language; Myopic panopticon 20n10, 194
law Neo-panopticon 17n2, 19n10, 194
norm 8; see also biopolitics Omnicon 17n2, 194
normalising sanction 172; see also panoptic discourse 19n10, 194–6;
sanction see also discourse; domination;
language
obligatory 82, 113n86, 167, 174–5, 179, panoptic gaze 11, 20n11, 28, 32,
183 34n63, 37, 39, 48, 53–5, 59, 127,
Observatoire international des prisons 136; 135, 144, 192, 195n61, 196, 199;
see also prison see also domination; surveillance;
O’Farrell, C. viii, xi, 4n16, 41n89, 217 transparency
panoptic paradigm 7–8, 10–1, 13, 18,
pain 11, 24, 33–4, 39n80, 53, 58, 91n32, 21n12, 24, 27–8, 32, 36–41, 45, 47,
93–4, 97, 100, 107, 110, 116, 59, 117, 124, 129, 131–3, 137–8,
118, 144, 176–8; see also pleasure; 140, 143–4, 156, 165, 169, 173–4,
punishment; torture; utility 187, 190–1
Panopticon Panoptic sort 19n10, 194–6
Ban-opticon 17n2, 19n10, 194, 196, panoptical 12, 18n6, 36, 41, 68, 77,
199 83, 127, 130, 159, 169n30, 185–7,
chrestomathic-Panopticon 21, 23–4, 191–7, 199, 200
27–9, 33, 36, 169–170, 198; see panopticism xii, 2, 4–9, 11–2, 17–20,
also Pedagopticon 21n12, 28–31, 34–41, 44–7, 49,
constitutional-Panopticon 10, 21, 54–6, 64n6, 80n9, 81, 83n13,
24–5, 27–9, 32–4, 36–9, 169, 171, 111n81, 117, 129, 136n143,
198, 199; see also ministers; public 161–2, 169, 173, 179, 183n75,
opinion 184, 186–8, 191, 192n37, 194n46,
Cybernetic panopticon 17n2, 19n10, 195–8, 200, 209, 219
194, 196 Panopticon-at-large 195–6
Electronic panopticon 17n2, 194 Panspectron 17n2, 195–6
Fractal panopticon 17n2, 19n10, 194, pauper-Panopticon 2, 21–4, 25n26,
196 27, 29, 33, 148, 169, 171, 173n43,
Global panopticon 17n2, 19n10, 194, 197–8; see also indigents
195 Pedagopticon 17n2, 195; see also
global panoptic society 11 chrestomathic-Panopticon
Industrial panopticon 17n2, 19n10, political panoptic paradigm 115; see
194 also democracy
Polypticon 17n2, 195
228 Beyond Foucault
post-panoptical 12, 195–7, 199–200 psychiatric 5n17, 28n43, 32n55, 32n57

Postpanopticon 17n2, 195–6 separation of 121, 153; see also
prison-Panopticon 2, 21–7, 29, 32, 148, Montesquieu C. De
169; see also domination; prison; social 80
punishment technology of 7, 54, 195n68; see also
semi-Panopticon 68, 74; see also biopolitics
Dumont, E.; Geneva technician 44
Social panopticism 17n2, 195 practical meta-reasoning 179, 182–3; see
Superpanopticon 17n2, 195–6 also deontic logic; logic of the will
Synopticon 17n2, 195–6 prediction 65, 166
Urban panopticon 17n2, 19n10, 195 presumption of innocence 94, 102; see also
Pascal, B. 91n34, 110–1 justice; punishment
passion 79, 89, 96n46 Price, R. 112n82
Pease-Watkin, Catherine xiii, 69, 119n86, Priestley, J. 87n22
204 prison; see also Panopticon
penal; see also law; punishment design 18, 27, 68, 71–8, 115; see also
code 68, 70–1 architecture; communication;
law 10, 83, 85, 91, 95, 124, 133 public opinion
permission 166n17, 167n23; see also hygiene 50
deontic logic inspection, see inspector
Perrot, M. xin1, 2, 27n34, 34n63, 46n9, management, see management
64n6, 66n15, 66n16, 74n56, visiting 76; see also Observatoire
116n7, 129n92, 129n93, 129n94, international des prisons
131, 132n110, 136n143, 201, 206, probability 10, 53–4, 57, 79, 84, 91, 95, 99,
212, 215, 217 100–1, 104, 106n70, 108n74, 109,
Petty-Fitzmaurice, W., 2nd Earl of 112n83, 113, 125, 135, 166, 199;
Shelburne, 1st Marquis of see also calculus
Lansdowne 68, 72 probative force 103n63, 105, 108n74,
Philadelphia 69 113; see also judicial evidence;
philanthropy 69, 72–3, 74n56, 77, 139, punishment; truth
212; see also charitable societies programme xii, 63–8, 77–8, 80n9, 139,
Place, F. 115 160, 189, 192, 211
pleasure 24, 34, 39n80, 40, 58, 87, 93, 94, proof 70, 82, 106n70, 107, 156; see also
96n46, 117–9, 126, 165, 176–8, judicial evidence; testimony
192; see also pain; utility Protestant 70, 131
pluralism 151 psychology 26, 107n72, 130
Poisson, D. 106n70, 112n83, 113n86, 208 psychoanalysis 11, 130; see also fiction;
power Freud, S.; Lacan, J.
economy of 58 public account keeping 26, 127–8; see also
fiduciary 148–9 surveillance
of imperation 118, 166–7; see also law public opinion 34n60, 89, 91, 135, 157–8,
political 145–6 160n58
Index 229
Public Opinion Tribunal 11, 23n23, 24, régime 46, 49, 55, 87n26, 206; see also
26, 30n48, 34, 55, 119n26, 123–4, biopolitics; sovereignty
135, 137, 144, 148, 150–1, 156–7; republicanism 151, 156; see also democracy
see control; democracy; misrule; responsibility 76, 122, 124, 128, 138, 144,
Panopticon; surveillance 147, 152
publicity 23n23, 27, 76, 122–3, rights of man 52, 98
126n68, 127, 148, 158 Riot-Sarcey, M. 64, 67, 218
transparency 11, 48, 123, 127, 136– Roederer, P. L. 84–5, 85n18, 85n19, 93
7, 143–5, 147–8, 150, 157–8, Romilly, Sir S. 72, 208
164; see prison; Panopticon Rosenblum, N. 1n3, 7n22, 12n28, 124n57,
visibility 31–2, 34n63, 55–6, 60, 74, 133, 218
111, 117, 133 Roth, R. 64, 71n39, 71n40, 71n41, 73,
public order 80 74n55, 75n56, 75n59, 77, 219
punishment 8, 10, 12n29, 20n11, 31–2, Rousseau, J. J. 51, 59, 95–6, 150, 208
38n77, 40n85, 46, 48, 53, 58, 71–2, ruling few 163, 183; see also interest;
80–3, 86–91, 92n43, 95, 96n46, subject many
100, 107n72, 109–10, 112, 116, Russell, B. 106
131, 133, 135–6, 143, 166, 172–4, Russia 22, 26, 68, 131, 210; see also
176–8, 183, 195n64, 202, 208, Bentham, S.
212–3; see also avowal; calculus;
convicts; correction; crime; death Saint-Aubin, C. 79n2, 85n18, 85n19,
penalty; deportation; forbidden; 110n78, 201
innocent; judicial evidence; justice; Saint-Simon, C.-H. de Rouvroy de ix, 67
law; pain; Panopticon; penal; Salpêtrière (prison) 72
presumption of innocence; prison; sanction 23n23, 65, 86, 98, 118, 121, 123,
reformation (of delinquents); 146–8, 156, 166, 172, 175, 181,
sanction; security; torture; trial 213; see also norm; punishment
clemency 94, 97, 110, 113 Schofield, P. xiii, 2, 3n9, 4, 6, 7n22, 11n28,
commensurability 87, 110 23n20, 23n23, 27, 40n84, 119n26,
condemnability 113; see also probative 121n39, 123n51, 130n97, 164n9,
force 165n13, 180n66, 203–5, 211, 219
security 5n17, 19n10, 28n43, 39, 49n13,
Quakers 73 50–1, 53–4, 60, 76–7, 82–3,
Quinn, M. xiii, 2, 22n19, 24, 25n26, 27n37, 96n46, 117, 120–1, 124, 133, 135,
27n38, 63n1, 204–5, 218 139, 147, 151, 206–7, 209, 217; see
also biopolitics, crime; punishment
radicals 115 Semple, J. 2, 3, 6, 22n15, 24–5, 26n31,
rationalisation 34, 44, 48, 54 32n56, 64n6, 65n11, 67n20,
reformation (of delinquents) 23, 32, 37n71, 71n43, 115n5, 116n7, 125n61,
37n72, 40, 72–4, 162, 193, 200; see 123, 133, 134n125, 135n128,
also punishment 136n138, 136n142, 137n143,
191n31, 219
230 Beyond Foucault
Society for the Improvement of Prison translation vii–ix, 1, 4, 18n4, 47n10, 67n17,
Discipline and for the Reformation of 68–9, 79n2, 84, 85n18, 85n19,
Juvenile Offenders 75n57, 208 87n23, 103n61, 59n159
sovereignity 5n18, 31n52, 39n78, 45–6, 50, trial 72, 95, 99n53, 101; see also judicial
52, 57, 60, 80, 96, 148–9, 152–3, evidence; Panopticon; punishment
157; see also biopolitics, régime truth 8n24, 10, 17n1, 20n11, 28n43,
sovereign 34–5, 46, 51–2, 54–5, 60, 29n45, 31n54, 35n64, 45, 51, 63,
111, 149, 152, 162, 165–6, 174–5, 67, 79, 80n9, 81–4, 86, 92, 94n43,
178, 180–1, 183, 208 95, 97–106, 108–9, 111–2, 146n,
vertical system of sovereignty 80 161n1, 164, 168n25, 181–2,
space 8, 19n10, 23, 32, 48, 55, 75, 78, 102, 191n33, 199, 200n86, 207; see also
112–3, 131, 135, 150, 161, 170–3, fiction; judicial evidence; probative
179, 183n76, 188n12, 195n68, force
198–9, 206, 208–9, 219 Tusseau, G. vi, ix, 10, 12, 59, 115, 123n53,
subject many 163; see also interest; ruling 134n127, 185, 188, 191, 198, 219
few
suffrage 116, 119, 138, 154; see also vote utility
supervision 8, 20n11, 26, 31, 40, 53–4, principle of utility 87, 117, 137–8,
80n9, 11n81, 147, 156; see also 150–1, 174, 176–7; see also
surveillance calculus; duty; general will;
surveillance xi–ii, 2, 8, 10, 12–3, 17, 19n10, happiness; interest; motive; pain;
24, 29, 32, 36n67, 40, 74, 80–2, pleasure
111n81, 113, 124, 129–30, 133–5, utilitarianism viii, 1, 4, 12n31, 43–4,
140n156, 172–3, 183, 185–8, 191– 51, 55, 82, 86–7, 95, 100, 110, 129,
4, 195n60, 196–200, 208–9, 212– 134, 136–8, 151, 198, 203, 211,
7, 219, 220; see also centrifugal; 213, 215–6
discipline; inspection; Panopticon; utopia 9, 40, 46–7, 55–6, 60, 63–7, 78,
public account keeping; public 116, 173, 213; see also hetertopia
opinion; supervision dystopia 63
symbol 45, 80–1, 100, 144, 170
symbolic 52, 81, 88–90, 101, 106, veracity 100n55, 106–7; see also truth
110n77, 111–2 virtue 79, 94n41, 112
symbolism 130 political 145–6
sympathy 89, 110, 134, 145 vote 119, 147, 151, 153–4, 220; see also
suffrage
testimony xi, 103–4, 106n71; see also voters 120, 122, 190
judicial evidence; proof
Tocqueville, A. de 18, 144, 157–8, 209 word 65, 81, 88–90, 91n32, 98–9, 101n55,
torture 89, 90, 94, 97, 99n53, 112, 102, 105n69, 106n70, 106n71,
133n122, 140n155, 220; see also 107, 111n80, 120, 136, 147, 162–4,
pain; punishment 171, 177, 183, 187n10, 195, 216;
totalitarianism 55, 116, 129, 131, 159 see also discourse; fiction; language

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Beyond Foucault

New Perspectives on Bentham’s Panopticon

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Notes on Contributors  vii

Part I: Historiography Reconsidered:

1 Deconstructing Panopticism into the Plural Panopticons  17

2 From Discipline and Punish to The Birth of Biopolitics  43

Part II: Status of the Panopticon in Prison,

3 From ‘Utopia’ to ‘Programme’:

4 Penal Theory without the Panopticon  79

5 From the Penitentiary to the Political Panoptic Paradigm  115

Part III: Is There a Panoptic Society?

6 Transparency and Politics: The Reversed Panopticon as a

7 Social Control and the Legal Panoptic Paradigm  161

Epilogue: The Panopticon as a Contemporary Icon?  185

Malik Bozzo-Rey is Assistant-Professor in the Department of Ethics at

Anne Brunon-Ernst was educated at the Ecole Normale Supérieure (Cachan).

Emmanuelle de Champs was educated at the Ecole Normale Supérieure

Jean-Pierre Cléro is Professor of Philosophy at the University of Rouen and

Clare O’Farrell is a Senior Lecturer in the School of Cultural and Language

Christian Laval is Professor in Sociology at Paris Ouest-Nanterre-La Défense

Marie-Laure Leroy lectures in Philosophy at higher education institutions.

Guillaume Tusseau is Professor of Public Law at Sciences Po Law School, a

politique en France et à l’étranger, International Journal for the Semiotics of Law,

M. Foucault, ‘La poussière et le nuage’, in D. Defert, F. Ewald and J. Lagrange (eds),

Dits et écrits: 1954–1988 (4 vols, Paris: Gallimard, 1994), vol. 4, p. 13.

Apart from the standard abbreviations, the following should be noted:

UC Bentham papers in the Library of University College London.

This last statement needs to be supported by arguments. There are traditionally

Panopticon prison as humane, and an enormous improvement on the practices

The Panopticon beyond Discipline and Punish

Panopticism’ by Semple is excepted,19 the focus of Anglo-American Bentham

to a dirigiste reading of Bentham.’ Instead Engelmann reads Bentham’s essay ‘Indirect

of essays endeavours to understand the Bentham–Foucault relationship beyond

From Discipline to Governmentality

The key to understanding the opposition between the received interpretation

Panopticism describes power relations which manifest themselves as supervision,

The Status of the Panopticon in Prison, Penal and Constitutional Reform

In Discipline and Punish, the Panopticon is presented by Foucault as

A.J. Draper, ‘Jeremy Bentham’s Theory of Punishment’, diss., University College

London, 1997, pp. 9–11.

Is There a Panoptic Society?

A Guide for the Perplexed, pp. 90–91.

concept of ‘legal panoptic paradigm’ allows one to consider Bentham’s project as

The Panopticon as a Contemporary Icon

As David Lyon, a prominent sociologist in the field of surveillance studies, notes:

widely circulated throughout the nineteenth century, both in Britain and

translation, first printed by the French Assemblée nationale in 1791 ( J. Bentham, Le

By following these terminological guidelines I hope to avoid the pitfalls of

1830, Foucaultian terminology is inadequate fully to capture the characteristics

Bentham’s Four Panopticons

Bentham’s engagement with the Panopticon takes place primarily in five

The first ‘prison-Panopticon’ project is to be found in Panopticon; or the

yielding operation where shareholders redeemed benefits from the inmates’

contribution to these ongoing discussions,36 although, in the event, his design

In Bentham’s mature constitutional theory, the central inspection tower

One Single Concept: Panopticism

Foucault discovered Bentham’s works and read Panopticon; or the Inspection-

of light.44 By contrast, the following presentation of the Panopticon from the

The Panopticon is a ring-shaped building in the middle of which there is a yard

the plural Panopticons, or decides to ignore them.47 In consequence, Foucault’s

Constitutional Code. See note 12, p. 18.

of ceaseless punishment, which is ensured either by the personnel, of course,

Notes on Contributors vii

1 Deconstructing Panopticism into the Plural Panopticons 17

2 From Discipline and Punish to The Birth of Biopolitics 43

4 Penal Theory without the Panopticon 79

5 From the Penitentiary to the Political Panoptic Paradigm 115

7 Social Control and the Legal Panoptic Paradigm 161

Epilogue: The Panopticon as a Contemporary Icon? 185