§3. First, as regards reparation. In the case of injuries affecting property, restitution in kind, where possible, and the payment of an equivalent in money for the utilities of which the proprietor has been wholly or partially deprived, are the most obvious modes of compensation, and capable in most cases of being made adequate: nor does there seem to be any other available mode of making reparation for physical injuries to the person, though the adequacy of a money payment is in this case much more doubtful. Where, however, it is the right to reputation that has been violated, the mischief done can be to a certain extent---though in many cases not completely---repaired by a public contradiction of the defamatory statement that caused it: and where such a contradiction is voluntarily made by the defamer the Courts should recognise it as at least a part of the compensation that it is their business to enforce. But such a contradiction could not be made compulsory, and its refusal criminal, without danger of forcing the defamer to say what he did not believe to be true: nor is there any necessity for such compulsion, since, if the defamer refuses to retract his defamatory statement, the end in view can be sufficiently attained by the publication of the Judge's decision that the statement was false.
The most difficult case is that of injuries to reputation, which result not from false statements, but from insults which, according to the common sentiment of civilised Europe-or of the gentry in European countries---it is discreditable to receive, or at least to endure peacefully. So long as this sentiment---a survival from more disorderly times---continues strong, it is probably impossible to find any mode of completely repairing the injury done to reputation by such insults; but perhaps the closest attainable approximation to reparation is to be got by inflicting a humiliating punishment. This suggestion is worked out in detail by Bentham; and though several of the humiliations that he proposes are too grotesque to be adopted, the need that they are designed to meet is still a real one; and in many cases it would, I think, be possible to find expedients for meeting it, which should not be grotesque or otherwise undignified.
For the injury done to a woman's husband, father, or other relatives by her seduction, I know of no appropriate reparation; and, so far as it is desirable that this mischief should be legally repressed, I think it is a case for punishment rather than damages.
Where the injury for which reparation is due has not been provoked or in any degree caused by culpable acts or omissions on the part of the person injured, the proper amount of pecuniary compensation is, in the abstract, not difficult to determine: it should be an equivalent not merely for the original injury, but for the sacrifices entailed by the process of obtaining reparation. When, on the other hand, the person injured is partly to blame, it is obviously reasonable that the compensation should be diminished by an amount proportioned to his share in causing the injury: though it may often be impossible to determine the diminution otherwise than very roughly.
I may observe that the adequacy of reparation is important not only to the individual wronged, but also to others: since, if reparation can be made adequate, the expectation of obtaining it very much reduces the alarm caused by the offence. Hence the special importance of preventing by effective punishment irreparable wrongs.[Back to:] [Elempol, Chapter 8, Section 2]