第13章 処罰に適さない場合について
道徳および立法の諸原理序説（ベンサム） ・ 英語
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第1段落
§ 1. General view of cases unmeet for punishment.
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I. The general object which all laws have, or ought to have, in common, is to augment the total happiness of the community; and therefore, in the first place, to exclude, as far as may be, every thing that tends to subtract from that happiness: in other words, to exclude mischief.
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第3段落
II. But all punishment is mischief: all punishment in itself is evil. Upon the principle of utility, if it ought at all to be admitted, it ought only to be admitted in as far as it promises to exclude some greater evil.
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III. It is plain, therefore, that in the following cases punishment ought not to be inflicted.
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§ 2. Cases in which punishment is groundless.
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These are,
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第7段落
IV. 1. Where there has never been any mischief: where no mischief has been produced to any body by the act in question. Of this number are those in which the act was such as might, on a some occasions, be mischievous or disagreeable, but the person whose interest it concerns gave his consent to the performance of it. This consent, provided it be free, and fairly obtained, is the best proof that can be produced, that, to the person who gives it, no mischief, at least no immediate mischief, upon the whole, is done. For no man can be so good a judge as the man himself, what it is gives him pleasure or displeasure.
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第8段落
V. 2. Where the mischief was outweighed: although a mischief was produced by that act, yet the same act was necessary to the production of a benefit which was of greater value than the mischief. This may be the case with any thing that is done in the way of precaution against instant calamity, as also with any thing that is done in the exercise of the several sorts of powers necessary to be established in every community, to wit, domestic, judicial, military, and supreme.
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第9段落
VI. 3. Where there is a certainty of an adequate compensation: and that in all cases where the offense can be committed. This supposes two things:
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第10段落
Of these suppositions, the latter will be found to be a merely ideal one: a supposition that cannot, in the universality here given to it, be verified by fact. It cannot, therefore, in practice, be numbered amongst the grounds of absolute impunity. It may, however, be admitted as a ground for an abatement of that punishment, which other considerations, standing by themselves, would seem to dictate.
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§ 3. Cases in which punishment must be inefficacious These are,
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VII. 1. Where the penal provision is not established until after the act is done. Such are the cases,
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第13段落
VIII. 2. Where the penal provision, though established, is not conveyed to the notice of the person on whom it seems intended that it should operate. Such is the case where the law has omitted to employ any of the expedients which are necessary, to make sure that every person whatsoever, who is within the reach of the law, be apprised of all the cases whatsoever, in which (being in the station of life he is in) he can be subjected to the penalties of the law.
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IX. 3. Where the penal provision, though it were conveyed to a man's notice, could produce no effect on him, with respect to the preventing him from engaging in any act of the sort in question. Such is the case,
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X. 4. Where the penal provision (although, being conveyed to the party's notice, it might very well prevent his engaging in acts of the sort in question, provided he knew that it related to those acts) could not have this effect, with regard to the individual act he is about to engage in: to wit, because he knows not that it is of the number of those to which the penal provision relates. This may happen,
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第16段落
XI. 5. Where, though the penal clause might exercise a full and prevailing influence, were it to act alone, yet by the predominant influence of some opposite cause upon the will, it must necessarily be ineffectual; because the evil which he sets himself about to undergo, in the case of his not engaging in the act, is so great, that the evil denounced by the penal clause, in case of his engaging in it, cannot appear greater. This may happen,
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第17段落
XII. 6. Where (though the penal clause may exert a full and prevailing influence over the will of the party) yet his physical faculties (owing to the predominant influence of some physical cause) are not in a condition to follow the determination of the will: insomuch that the act is absolutely involuntary. Such is the case of physical compulsion or restraint, by whatever means brought about; where the man's hand, for instance, is pushed against some object which his will disposes him not to touch; or tied down from touching some object which his will disposes him to touch.
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§ 4. Cases where punishment is unprofitable.
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These are,
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第20段落
XIII. 1. Where, on the one hand, the nature of the offense, on the other hand, that of the punishment, are, in the ordinary state of things, such, that when compared together, the evil of the latter will turn out to be greater than that of the former.
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XIV. Now the evil of the punishment divides itself into four branches, by which so many different sets of persons are affected.
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第22段落
XV. On the other hand, as to the evil of the offense, this will also, of course, be greater or less, according to the nature of each offense. The proportion between the one evil and the other will therefore be different in the case of each particular offence. The cases, therefore, where punishment is unprofitable on this ground, can by no other means be discovered, than by an examination of each particular offense; which is what will be the business of the body of the work.
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第23段落
XVI. 2. Where, although in the ordinary state of things, the evil resulting from the punishment is not greater than the benefit which is likely to result from the force with which it operates, during the same space of time, towards the excluding the evil of the offenses, yet it may have been rendered so by the influence of some occasional circumstances. In the number of these circumstances may be,
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§ 5. Cases where punishment is needless. These are,
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第25段落
XVII. 1. Where the purpose of putting an end to the practice may be attained as effectually at a cheaper rate: by instruction, is for instance, as well as by terror: by informing the understanding, as well as by exercising an immediate influence on the will. This seems to be the case with respect to all those offenses which consist in the disseminating pernicious principles in matters of duty; of whatever kind the duty be; whether political, or moral, or religious. And this, whether such principles be disseminated under, or even without; a sincere persuasion of their being beneficial. I say, even without: for though in such a case it is not instruction that can prevent the writer from endeavouring to inculcate his principles, yet it may the readers from adopting them: without which, his endeavouring to inculcate them will do no harm. In such a case, the sovereign will commonly have little need to take an active part: if it be the interest of one individual to inculcate principles that are pernicious, it will as surely be the interest of other individuals to expose them. But if the sovereign must needs take a part in the controversy, the pen is the proper weapon to combat error with, not the sword.
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