2.1 Nietzsche
Nietzsche does not discuss the practice of legal punishment systematically.[3] The only extensive source for his views on the subject is his second essay in On the Genealogy of Morals , although his other works contain several passages addressing punishment. The tone of all of these sources is critical. But before we judge their force, let us see their substance.
Retributivists often argue that the essence of punishment is the just deserts it metes out to the guilty. Nietzsche argues that punishment did not arise from an initial judgment that the criminal deserves punishment—this is "in fact an extremely late and subtle form of human judgment and inference." The origin of punishment is more primitive:
Throughout the greater part of human history punishment was not imposed because one held the wrongdoer responsible for his deed, thus not on the presupposition that only the guilty one should be punished: rather, as parents still punish their children, from anger at some harm or injury, vented on the one who caused it—but this anger is held in check and modified by the idea that every injury has its equivalent and can actually be paid back, even if only through the pain of the culprit. And whence did this primeval, deeply rooted, perhaps by now ineradicable idea draw its power—this idea of an equivalence between injury and pain? … in the contractual relationship between creditor and debtor, which is as old as the idea of "legal subjects" and in turn points back to the fundamental forms of buying, selling, barter, trade, and traffic.[4]
[3] He doesn't discuss anything systematically. Moreover, Nietzsche's interest in punishment may be limited to its being a convenient example for his more general point about the construction of meaning.
[4] Friedrich Nietzsche, On the Genealogy of Morals and Ecce Homo , trans. Walter Kaufmann and R. J. Hollingdale (New York: Vintage, 1969), essay 2, section 4. In citing Nietzsche, I refer to essay and section numbers.
Punishment emerged as a "right of the masters"—the creditors—to "experience for once the exalted sensation of being allowed to despise and mistreat someone as 'beneath him'"—punishment was "a warrant for and title to cruelty."[5] Before Christian ressentiment transvalued the power of the masters from something "good" to something "evil," teaching man to "be ashamed of all his instincts," cruelty was essential to a cheerful" life.[6] In the days when we did not repress our instincts, we reveled in and celebrated cruelty: "[W]ithout cruelty there is no festival: thus the longest and most ancient part of human history teaches—and in punishment there is so much that is festival!"[7]
Nietzsche thinks that punishment as now practiced is no longer as it originally was. For if punishment still embodied the strength of the powerful who punished, we would, he suggests, no longer punish:
The "creditor" always becomes more humane to the extent that he has grown richer.… It is not unthinkable that a society might attain such a consciousness of power that it could allow itself the noblest luxury possible to it—letting those who harm it go unpunished. "What are my parasites to me?" it might say. "May they live and prosper: I am strong enough for that!"[8]
Punishment arose as the expression of the will of the powerful. But a reversal has taken place. To be powerful in primitive days was to be cruel and cheerful;[9] to be powerful in modern times is to be able to resist being cruel, to resist punishing. To punish is no longer a sign of power; the power that now punishes is too weak to be able not to punish.
[5] Ibid. essay 2, section 6.
[6] Ibid., essay 2, section 7. For the meaning of ressentiment and its importance to Nietzsche's account of punishment, see Walter Kaufmann, Nietzsche (New York: Random House, 1968), pp. 371–78.
[7] Nietzsche, Genealogy , essay 2, section 6.
[8] Ibid., essay 2, section 10.
[9] Primitive=prehistoric: ibid., essay 2, section 9.
Ressentiment changes both who punishes and what punishment is. The power that now punishes understands punishment to be a means of upholding justice by meting out retribution, or of treating the sick, or of preventing crime. Nietzsche claims that our present understanding of punishment belies its origins:
Thus one also imagined that punishment was devised for punishing. But purposes and utilities are only signs that a will to power has become master of something less powerful and imposed upon it the character of a function.[10]
Nietzsche is telling us in this passage that the institution of punishment—the remnant of the "will to power"—now masters the weak, not they it, and dictates to them the necessity of seeking retribution or doing what has utility. The weak don't make up their own institution, but receive the old, which, with new managers, takes on a meaning that belies the original.
Nietzsche I believe, wants us to see a great irony about punishment. The original will to punish was not a will to revenge or to seek retribution; it was "the will of life,"[11] the will of the powerful masters who reveled in cruelty. The will to revenge that now punishes, that has occupied the institution left behind by the will to power, is the will of the weak, the will of ressentiment ; it is what has emerged as part of the sinister "European culture" with its spreading morality of pity, a morality that has "seized even on philosophers and made them ill." The will to revenge is the will of the nihilist;[12] it is a will counter to the will of life. The present power that punishes is the vengeful tarantula, which hangs its webs, but is really frail: "[Tlouch it, that it tremble!"[13]
[10] Ibid., essay 2, section 12.
[11] Ibid., essay 2, section 11.
[12] Ibid., Preface, section 5.
[13] Friedrich Nietzsche, Thus Spoke Zarathustra , trans. Walter Kaufmann (New York: Penguin, 1978), "On the Tarantulas."
What conclusions does Nietzsche draw from his genealogy of punishment? He makes several suggestions. He suggests that retributive punishment—the punishment of the weak that seeks justice—will be ineffective, perhaps because the new appropriators of punishment are wielding a weapon effective only in the hands of those capable of using it. The instrument of punishment was appropriate to its original users, who festively enjoyed their tool. But in the hands of its new managers, punishment is put to new uses for which it is ill suited (for example, to make the criminal repent):
lt is precisely among criminals and convicts that the sting of conscience is extremely rare; prisons and penitentiaries are not the kind of hotbed in which this species of gnawing worm [men of conscience who repent] is likely to flourish.… If we consider those millennia before the history of man, we may unhesitatingly assert that it was precisely through punishment that the development of the feeling of guilt was most powerfully hindered.[14]
Nietzsche says it would be a relief to be free of the idea of sin and punishment, which is part of the "old [though not prehistoric] instinct of revenge."[15] We should rise above this practice of the weak, of the Nay-sayers:
Let us stop thinking so much about punishment, reproaching, and improving others.… Let us not contend in a direct fight—and that is what all reproaching, punishing, and attempts to improve others amount to. Let us rather raise ourselves that much higher.… No, let us not become darker ourselves on their account, like all those who punish others and feel dissatisfied. Let us sooner step aside. Let us look away.[16]
[14] Nietzsche, Genealogy , essay 2, section 14.
[15] Friedrich Nietzsche, Morgenröte (Stuttgart: Alfred Kröner, 1964),section 202.
[16] Friedrich Nietzsche, The Gay Science , trans. Walter Kaufmann (New York: Random House, 1974), section 321.
I do not want to wage war against what is ugly. I do not want to accuse; I do not even want to accuse those who accuse. Looking away shall be my only negation. And all in all and on the whole: some day I wish to be only a Yes-sayer.[17]
To the modern power that punishes, that weak, venomous, vengeful spider or snake, Nietzsche says: "But take back your poison. You are not rich enough to give it to me."[18]
Nietzsche is critical of punishment, but is he critical only of punishment as it has become—of the perverted form of punishment that is our own practice? Sometimes Nietzsche appears to be calling us back to our original home, to a prehistoric practice of punishment that in its cruelty is "festive" and celebratory of the greatness of the strong. In this view, Nietzsche is saying that the meaning of punishment has changed, it has become a sickly and spiteful institution of revenge, a weapon of the weak in their reaction against the strong; and Nietzsche is pointing us back to our original or natural instinct to dominate, beckoning us to express our natural will to life. Although there are passages to support such a reading,[19] I think this view misses Nietzsche's more potent point, and the essentially critical, not constructive, character of his project.
Nietzsche insists that the origins of a practice or institution do not tell us its purpose or value:
the cause of the origin of a thing and its eventual utility, its actual employment and place in a system of purposes,
[17] Ibid., section 276.
[18] Thus Spoke Zarathustra , "On the Adder's Bite." There Nietzsche also writes, "It is nobler to declare oneself wrong than to insist on being right—especially when one is right." And in the section "On the Tarantulas": "For that man be delivered from revenge, that is for me the bridge to the highest hope, and a rainbow after long storms." Also, Ecce Homo (essay 1, section 5): "not to take the punishment upon oneself but the guilt would be divine."
[19] For example, the tone of essay 1, section 11, in the Genealogy , challenging the morality of ressentiment and praising the beast man over the maggot men.
lie worlds apart; whatever exists, having somehow come into being, is again and again reinterpreted to new ends, taken over, transformed, and redirected by some power superior to it.… However well one has understood the utility of any physiological organ (or of a legal institution, a social custom, a political usage, a form in art or in a religious cult), this means nothing regarding its origin: however uncomfortable and disagreeable this may sound to older ears—for one had always believed that to understand the demonstrable purpose, the utility of a thing, a form, or an institution, was also to understand the reason why it originated—the eye being made for seeing, the hand being made for grasping.[20]
Nietzsche warns us against mistakenly thinking that our conception of the value of a practice accounts for the origins of the practice. Nietzsche's view in the Genealogy is, rather, that practices and institutions first emerge in history and subsequently come to assume various meanings: we invent purposes for them, we interpret their meanings.[21] Nietzsche is aware that "punishment" means different things, and he lists several: punishment can mean to render harmless, to recompense, to prevent future disturbances, to inspire fear, to repay, to purify; it can refer to a festive rape and mockery of an enemy, or a declaration of war.[22] Nietzsche's point is that none of these, alone, is the true meaning or purpose of punishment:
[Tlhe concept "punishment" possesses in fact not one meaning but a whole synthesis of "meanings": the previous history of punishment in general, the history of its employment for the most various purposes, finally crystallizes into a kind of unity that is hard to disentangle, hard to analyze and, as must be emphasized, totally in-definable. (Today it is impossible to say for certain why people are really punished: all concepts in which an entire
[20] Genealogy , essay 2, section 12.
[21] Ibid., essay 2, section 13.
[22] Ibid.
process is semiotically concentrated elude definition; only that which has no history is definable.)[23]
At certain times one element "appears to overcome all the remaining elements" and mark the true meaning of punishment.[24] But Nietzsche says this is only an appearance; there is no essence of punishment, even though we can speak of punishment as one practice, as a "unity."[25]
Nietzsche's genealogy, then, seems directed, not at calling us back to the true purpose and meaning of punishment, but at challenging all claims to know its true meaning. He attacks retributivists, who see justice as the essence of punishment; he attacks utilitarians, who see deterrence as the essence of punishment.[26] The value of genealogy lies, not in telling us the true purpose of punishment, but in helping us see that there is no true purpose.
There is much that is attractive in Nietzsche's view. In chapter five I shall embrace Nietzsche's nonfoundationalism , his view that the justification of a practice depends essentially on our interpretation of the practice, and that no one interpretation can claim to articulate the true meaning of the practice. But there is also much that is disquieting. Is Nietzsche, like the Socrates he portrayed in his earlier The Birth of Tragedy , a "theoretic man" who delights in unmasking and who "finds the highest object of pleasure in the process of an ever happy uncovering?"[27] More to our point than deciding Nietzsche's
[23] Ibid.
[24] Ibid.
[25] Cf. Michel Foucault's account of Nietzsche's genealogy, in Language, Counter-Memory, Practice , ed. Donald Bouchard (Ithaca: Cornell University Press, 1977), p. 142: "[I]f the genealogist listens to history, he finds that behind things there is not a timeless and essential secret, but the secret that they have no essence or that their essence was fabricated in a piecemeal fashion…. Examining the history of reason, he learns that it was born in an altogether 'reasonable' fashion—from chance."
[26] Deterrence is his example of what at one time "appears" to be the true purpose of punishment (Genealogy , essay 2, section 13).
[27] Friedrich Nietzsche, The Birth of Tragedy , trans. Walter Kaufmann (New York: Vintage, 1967), p. 94.
own intentions, does Nietzsche, who seems to challenge the validity of every justification of the practice of legal punishment, offer practical criticism? Does his account better equip us to live with our practices, perhaps to reform them? It is not easy to see how. Nietzsche clearly is not engaged in the activity of justifying actions within the practice. But it's not clear that he intends even to engage in the activity of justifying (or denying the justification of) the whole practice; and his account is not obviously intended to move us to abolish our practice. Sometimes Nietzsche seems to assume a position of radical skepticism that claims there can be no justifications.[28] Whatever Nietzsche's intentions are, it is difficult to see how Nietzsche's account is in any sense practical, or useful to the practitioner committed to the criminal justice system.
Toward the end of the second essay in the Genealogy , Nietzsche asks himself. "What are you really doing, erecting an ideal or knocking one down?" He answers:
But have you ever asked yourselves sufficiently how much the erection of every ideal on earth has cost? How much reality has had to be misunderstood and slandered, how many lies have had to be sanctified, how many consciences disturbed, how much "God" sacrificed every time? If a temple is to be erected a temple must be destroyed : that is the law—let anyone who can show me a case in which it is not fulfilled.[29]
The immanent critic, committed to our practices, would respond: If we destroy the temple that houses us, we will be homeless. I think this is a powerful objection to Nietzsche's project of radical criticism. Of course, it is the immanent critic's burden to persuade us that the home we have is better than none or than one we might build from scratch.
[28] In this view Nietzsche is what Dworkin calls an external skeptic: see chapter 2, note 1.
[29] Genealogy , essay 2, section 24, Nietzsche's emphasis.