Front Page Titles (by Subject) CHAPTER VIII.: OBSERVATIONS ON THE SEVEN PRECEDING FALLACIES. - The Works of Jeremy Bentham, vol. 2
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CHAPTER VIII.: OBSERVATIONS ON THE SEVEN PRECEDING FALLACIES. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 2 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 2.
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OBSERVATIONS ON THE SEVEN PRECEDING FALLACIES.
In the seven preceding fallacies, and in others of a similar nature, the device resorted to is uniformly the same, and consists in entirely avoiding the question in debate, by substituting general and ambiguous terms in the place of clear and particular appellatives.
In other fallacies, the argument advanced is generally irrelevant, but argument of some kind they do contain. In these, argument there is none; Sunt verba et voces prætereàque nihil.
To find the only word that will suit his purpose, the defender of corruption is obliged to make an ascent in the scale of generalization—to soar into the region of vague generalities, till he comes to a word by the extensiveness of whose import he is enabled, so by confounding language to confound conceptions, as without general and immediate fear of detection to defend, with a chance of success, an object, of the defence of which there would, under its proper and peculiar name, be no hope.
When of two terms—viz. a generic term, and a special term included under it—the specific term alone is proper, i. e. the proposition into the composition of which it enters, true; the generic term, if substituted to it, is ambiguous; and of the ambiguity, if the effect of it is not perceived, the consequence is error and deception.
Opposite to this aërial mode of contestation, is the mode already known and designated by the appellation of close reasoning.
In proportion as a man’s mode of reasoning is close (always supposing his intention honest,) for the designation of every object which he has occasion to bring to view, he employs in preference the most particular expression that he can find—that which is best adapted to the purpose of bringing to view everything which it is its object to bring to view, as clear as possible from everything which the purpose does not require to be brought, and which in consequence it is his endeavour to avoid bringing to view.
In proportion as a man is desirous of contributing on every occasion to the welfare of the community, and at the same time skilled in the means that most directly and certainly lead to the attainment of that end, he will, on the occasion of the language employed by him in the designation of each measure, look out for that plan of nomenclature and classification by which the degree and mode of its conduciveness or repugnancy to that end may be the more easily and correctly judged of.
Thus, in regard to offences,—acts which on account of their adverseness to the general welfare are objects meet for discouragement—for prohibition—and in case of necessity, for punishment,—not content with the employing for the designation of each such act in particular, that mode of expression by which every individual act partaking of the common nature indicated by the generic term may be brought to view, to the exclusion of every act not partaking of that common nature, he will, for the designation of the relation it bears to other offences, and of the place which it occupies in the aggregate assemblage of these obnoxious acts, find for it and assign to it some such more general and extensive appellation as shall give intimation of the mode in which the wound given by it to the general welfare is perceptible.
1. Offences against individuals other than a man’s self, and those assignable individuals; 2. Against a man’s self; 3. Against this or that particular class of the community; 4. Against the whole community without distinction.
In the case of individuals,—offences against person, against reputation, against property, against condition in life—and so on through the other classes above designated.*
For the opposite reason,—in proportion as, without regard to, and to the sacrifice of, the general welfare, a man is desirous of promoting his own personal or any other private interest, he will, on the occasion of the language employed in the designation of each measure, look out for that plan of nomenclature and classification, by which the real tendency of the measure to which he proposes to give birth or support, shall be as effectually masked as possible—rendered as difficult as possible to be comprehended and judged of.
In the English law, under the principle of arrangement—which till comparatively of late years was the only one, and which is still the predominant one—such were the groupes into which, by the classical denominations employed, they were huddled together, that by those denominations not any the slightest intimation was given of the nature and mischief of the offences respectively contained under them. Treasons, felonies unclergyable, felonies clergyable, premunires, misdemeanors.
By the four first of these five denominations, what is designated is, not the offence itself, but the treatment given to the offender in respect of it in the way of punishment: by the other denomination, not so much as even that—only that the act is treated on the footing of an offence, and on that score made punishable: it is the miscellaneous class, the contents of which are composed of all such offences as are not comprised under any of the others.
To what cause can a scheme of arrangement so incompatible with clear conception and useful instruction be ascribed?
Its creation may be traced to one source: its continuance to another. For its creation (such is its antiquity,) the weakness of the public intellect presents an adequate cause. Of treason and felony—terms imported at the Norman conquest with the rest of the nomenclature of the feudal system—the origin is lost in the darkness of primæval barbarism: religion—a perversion of the Christian religion, gave birth, after a hard and long labour, to the distinction between clergyable and unclergyable: religion, by a further perversion, gave birth to premunires in the reign of Edward III.
To the designs of those whose interest it is that misrule in all its shapes should be perpetuated, and thence, that useful information, by which it might be put to shame, and in time to flight, should as long as possible be excluded, nothing could be more serviceable than this primæval imbecility. Under these denominations in general, and in particular under felony, acts of any description are capable of being ranked with equal propriety, or rather with equal absence of impropriety: acts of any description whatsoever, and consequently acts altogether pure from any of those mischievous consequences from which alone any sufficient warrant for subjecting the agents to punishment can be found; and offences thus clear of every really mischievous quality have accordingly been created, and still continue in existence, in convenient abundance.
By this contrivance, the open tyranny of the lawyer-led legislator, and the covert tyranny of the law-making judge, are placed at the most perfect ease. The keenest eye cannot descry the felonies destined to be created by the touch of the sceptre upon the pattern of the old: the liveliest imagination cannot pourtray to itself the innoxious acts destined to be fashioned or swollen into felonies.
Analogous to this ancient English system—correspondent and analogous both as to the effect itself and as to its cause, is the system lately brought out by the legislators of France and their forced imitators in Germany. Faute, contravention, dêlit, crime—classes rising one above another in a climax of severity,—all of them, designative how indeterminately soever, rather of the treatment to which at the hands of the judge, the agent is subjected, than of the sort of act for which he is subjected to that treatment—much less of the ground, or reason, on which (regard being had to the quality and quantity of mischief) it is thought fit he shall be so dealt with.
Lawyer-craft, in alliance with political tyranny, may be marked out as the source of this confusion in the English case; lawyer-craft in subjection to political tyranny, in the French case.
In England, it is the interest of the man of law that the rule of action should be, and continue, in a state of as general uncertainty and incognoscibility as possible: that on condition of pronouncing on each occasion a portion of the flash language adapted to that purpose, he may, in his state of law-adviser and advocate, be master of men’s purses; in his state of judge,—of purse, reputation, condition in life, and life itself, to as complete a degree, and with as little odium and suspicion as possible. This is the state of things which it always has been, and will be his interest to perpetuate: and this is the state of things which hitherto it has been in his power to continue, and which accordingly does to this day continue in existence.
In France, where the man of law is not the ally of the politician, but his slave, that which it is not the interest of the politician to keep out of the view of the subject, is—what the law is;—that which it is his interest to keep (nor even that in all parts) out of the view of the subject, is—what it is for the interest of the subject that the law should be;—what, in a word, the law ought to be.
Having brought the rule of action within a compass, the narrowness of which, in respect of the quantity of words, has never, regard being had to the amplitude of the matter, yet been equalled, the tyrant of France has by this one act of charity displayed a quantity of merit, ample enough of itself to form a covering to no inconsiderable a portion of his sins.
But the exemplifications of vague generalities afforded by these systems of classification are sufficiently striking. To save the authors of the systems from ranking any one of the offences in question under a denomination which would be manifestly inapplicable to it, and from the discredit which would attach to them from such a source,—ascending to a superior height in the logical scale—in the scale of genera and species,—they provide a set of denominations so boundless in their extent, as to be capable without impropriety of including any objects whatsoever on which it might be found convenient to stamp the factitious quality desired. Noxiousness to other individuals in this or that way—noxiousness to a person himself in this or that way—noxiousness to a particular class of the community in this or that way—noxiousness to the whole community in this or that way,—these are qualities which it is not in the power of despotism to communicate to any act of any sort: but to cause such persons as it is performed by to be punished with such or such a punishment,—these are effects which, be the sort of act what it may, it is but too easy for supreme power, in whatsoever hands reposed, to annex to it.
Here, then, are so many instances where the turn of the man in power not being capable of being served, or at least so well served, by giving to an object that which is at once its most particular and most proper name, a name of more general and extensive import is employed for the purpose of favouring that deception, which by the designating of it by such its proper name, would have been dissipated, and thus giving to an exercise of power, which, if rightly denominated, would have been seen to be improper and mischievous, the chance of not appearing in such its true light.
[* ]See Principles of Morals and Legislation, Ch. XVIII. Vol. I. p. 96, et seq.