Pannomial Fragments

Chapter IV.

§2. Axioms applicable to Security for Person.

Axioms forming the grounds for such legislative arrangements as have for their object and their justification, the affording security for person against such maleficent acts, to which it stands exposed.

1. The pleasure derivable by any person from the contemplation of pain suffered by another, is in no instance so great as the pain so suffered.

2. Not even when the pain so suffered has been the result of an act done by the person in question, for no other purpose than that of producing it,

Hence, one reason for endeavouring to give security against pain of body or mind, resulting from human agency, whether from design or inattention.

Now, suppose the pain to be the result of purely natural agency,---no human agency having any part in the production of it no human being deriving any satisfaction from the contemplation of it,---the result is still the same.

Hence one reason for endeavouring to give security against pain of body or mind resulting from casualty, or as the word is, when the evil is considered as having place upon a large scale,---calamity.

Axiom indicative of the reasons which form the grounds of the enactments prohibitive of maleficent acts, productive of evil, affecting persons---that is to say, either in body or mind---in any mode not comprised in one or other of the modes of maleficence from which the acts constituted offences in and by the penal code receive their denomination, viz. Offences produced by the irascible appetite:---

When by one person, without gratification sought other than that derived from the contemplation of suffering in this or that shape, as about to be produced on the part of that other gratification in a certain shape, is accordingly produced in the breast of such evil doer,---call the gratification the pleasure of antipathy satisfied---or of ill-will satisfied.

If this antipathy bas had its rise in the conception that by the party in question (say the victim), evil in any shape has been done to the evil doer,---the pleasure of antipathy gratified takes the name of the pleasure of vengeance---or say revenge.

Axiom. In no case is there any reason for believing that the pleasure of antipathy gratified is so great as the pain suffered by him at whose expense, as above, the pleasure is reaped.

Offences to which the axiom applies are---

  1. Offences affecting body;
  2. Offences affecting the mind other than those belonging to the other classes.
  3. Offences affecting reputation---the reputation of the sufferer---other than those by which the reputation of the evil doer is increased;

  4. Offences affecting the condition in life of the sufferer other than those by which the reputation of the evil doer is increased or expected to be increased.

For justification of the legislative arrangements necessary to afford security against maleficent acts affecting the person, what it is necessary to show is, that by them pain will not be produced in such quantity as will cause it to outweigh the pleasure that would have been produced by the maleficent acts so prevented.

For this purpose, in order to complete the demonstration and render it objection-proof, in certain cases, it will be necessary to take into account not only the evil of the first order, but the evil of the second order likewise.

First, then, considering the matter on the footing of the effects of the first order on both sides,---Axioms bearing reference to the effects of the first order on both sides, are the following:---

Axioms serving as grounds and reasons for the provision made by the legislator for general security; to wit, against the evils respectively produced by the several classes and genera of offences.

Case 1. An offence affecting person, or say corporal vexation, in any one of its several shapes---offender's motive, ill-will or spite---the enjoyment of the offender will not be so great as the evil of the first order, consisting in the suffering experienced by the party vexed.

Case 2. So if the offence be an offence productive of mental vexation---and the motive the same.

Case 3. So if the offence be an offence affecting reputation.

Case 4. So, exceptions excepted, in the ease of every other class or genus of offences the motive being ill-will or spite, as above.

Case 5. Exceptions are among offences affecting person and reputation jointly, the offences having for their motive sexual desire; to wit---

  1. Sexual seduction allurative, or say enticitive;
  2. Sexual seduction compulsory;
  3. Rape;
  4. Vexatious lascivious contrectation.

In any of these cases, what may happen is---that the enjoyment of the offender may be equal or more than equal to the suffering of the party wronged; in either of which eases the evil of the first order has no place. But to all other persons, the suffering of the one part will present itself as being to an indefinite degree greater than the enjoyment of the offender and proportioned to the apparent excess will be the actual alarm on the part and on behalf of persons exposed to the like wrong from the same cause: and thence so far as regards alarm, will be the evil of the second order.

Addendum to security axioms:---

Be the modification of the matter of prosperity what it may, by losing it without an equivalent, a man suffers according to, and in proportion to, the value of it in his estimation---the value by him put upon it.

Value may be distinguished into---1. General, or say value in the way of exchange and 2. Special, or say idiosyncratical---value in the way of use in his own individual instance.

Note, that the value of a thing in the way of exchange arises out of, and depends altogether upon, and is proportioned to, its value in the way of use:---for no man would give anything that had a value in the way of use in exchange for anything that had no such value.

But value in the way of use may be distinguished into general, which has place so far as, and no further than, the thing is of use to persons in general---and special or idiosyncratical, which has place in so far as, in the case of this or that person in particular, the thing has a value in the way of use over and above the value which it has in the case of persons in general: of which use, that of the pretium affectionis, the value of affection, is an example.

Definition: When from any cause---human agency or any other---a mass of the matter of wealth, or of the matter of prosperity in any other shape, is made to go out of an individual's possession or expectancy without his consent, the pain produced in his breast by contemplation of its non-existence, or say by the loss of it, call the pain of disappointment: he being disappointed at the thought of the good which, it having been in his possession or expectancy, he has thus lost.

Among the objects of law in every community, is the affording security against this pain in this shape.

Axiom: The pleasure of antipathy or revenge produced in the breast of the evil-doer by the contemplation of a pain of disappointment produced in the breast of the sufferer, is not in any case so great in magnitude as that same pain.

To this axiom corresponds, as being thereon grounded, a fundamental principle entitled the disappointment-preventing principle.

Operation necessary for the establishment and continuance of security,---Fixation of the text of the laws.

For leading expectation, the law need only be exhibited, provided that it be clear, an not too vast for comprehension. But that i may be exhibited, it is necessary that it exist The greatest and most extensive cause of regret respecting English law, is,---that as respects a large portion, it has no existence. Instead of laws, it cannot even be said that we possess shadows of law:---shadows imply substances by which they are formed---all that we possess is a phantom, conjured up by each one at his pleasure, to fill the place of the law. It is of these phantoms that common law, unwritten, judge-made law is composed.

A discussion upon a point of unwritten or common law has been defined a competition of opposite analogies. In giving this definition, the most severe and well-deserved censure was passed both upon this species of law, and upon the carelessness of the legislators who have tolerated its pernicious existence---who have allowed the security of their fellow-citizens to remain without foundation, tossed about by the interminable and always shifting competition of opposite analogies,---who have left it upon a quicksand when they might have placed it upon a rock.

[Pannomial Fragments, Chapter IV §1] [Pannomial Fragments, Chapter IV §3]