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8
The feeling of guilt — to resume the trend of our investigation — and of personal obligation has, as we have seen, its origin in the oldest and most primitive personal relationship which ever existed, — the relationship between buyer and seller, creditor and debtor. Here for the first time person stood face to face with person, here for the first time person weighed itself with person. No stage of civilisation, however inferior it might be, has yet been found without a trace of this relationship being noticeable. To fix prices, to adjust values, to invent equivalents, to exchange things — all this has to such an extent preoccupied the first and earliest thought of man, that, in a certain sense, it constitutes thinking itself: here the oldest kind of sagacity was reared, here likewise the first beginning of man's pride, of his feeling of superiority as against the remaining animal world, might be supposed to be found. Perhaps our word "man" (manas) expresses something of even this self-assertion. Man named himself as the being which weighs values, which weighs and values, as the "valuing animal as such." Buying and selling, together with their psychological appurtenances, antedate even the beginnings of any forms of social organisation and corporation. The nascent feeling of interchange, contract, debt, right, obligation, adjustment was transferred from the most rudimentary form of personal right to the crudest and most incipient social complexes (in their relation to similar complexes) together with the custom of comparing, measuring, calculating might by might. For the eye was adjusted to this perspective. And with that heavy consistency peculiar to the clumsily-moving (but if once in motion, persistently moving in one direction) thought of early mankind, the grand generalisation was soon arrived at "that all things have their own price; that everything can be paid off" — the oldest and most naïve moral canon of justice, the beginning of all "goodnaturedness," of all "equity," "good will," and "objectivity" on earth. Justice in this first stage means the good will among people who are possessed of approximately equal power, to come to a mutual agreement and "understanding" by way of adjustment — and, as regards the less powerful, to compel them to accept some adjustment.
9
If measured by the standard of primeval times (which primeval times, by the bye, are at all times either present or again possible), the community finds itself in the same important relation to its members, — the relation of the creditor to his debtors. We live as members of a community, we enjoy the advantages of a community (oh, what advantages! we sometimes underrate them now-a-days), we live sheltered and shielded, in peace and confidence, quite at ease as regards certain injuries and hostilities to which the man without, the peaceless one, is exposed. Every German is alive to the significance attaching to the original meaning of the German word for misery, êlend; [Êlend meant originally the sojourn in a foreign country, then the sufferings connected with such a sojourn, and means to-day misery.] and it is just with regard to these injuries and hostilities that people have bound and pledged themselves to the community, If they do not so, what will happen? Community, the disappointed creditor, will have itself indemnified, as well as possible; thus much is certain. The question here has least to do with the immediate damage occasioned by the damager. Apart from it, the criminal is, first of all, a "breaker," — a breaker of a contract and of a word given — towards the whole, in regard to all possessions and advantages of the common weal of which up to that time he had enjoyed his share. The criminal is a debtor, who not only fails to pay back the advantages and advances received, but even aggresses his creditor. Hence he forfeits, justly enough, for the future not only all these possessions and advantages, — but, besides, he is now again reminded as to the real meaning of these possessions. The anger of the damaged creditor — community — plunges him back into the wild, out-law condition, against which so far protection had been granted him. Community repudiates him, and now all sorts of hostilities may wreak themselves upon him. "Punishment," in this stage of civilisation, is simply the image, the mimus of normal conduct, as manifested towards a hated, disarmed and cast-down enemy, who has forfeited not only all privileges and all protection, but even every claim to mercy; it is, therefore, the martial law and triumphal celebration of the vae victis! with all its unrelentingness and cruelty; — which serves to account for the fact that war itself (including the sacrificial cult of war) has furnished all the forms in which punishment makes its appearance in history.
10
As its power increases, a community will attach less weight to the transgressions of the individual, inasmuch as these transgressions are now alleged to be far less calculated to endanger and subvert the body politic. The wrong-doer is no longer "rendered peaceless" and cast out; public anger may no longer vent itself against him with the same unbridled fury as formerly. On the contrary, the wrong-doer is now even carefully defended and shielded by the community against this anger, especially against the wrath of those immediately injured. The traits characterising ever more sharply the further development of penal law are the following: the compromise with the anger of those immediately suffering from the misdeed; an effort to localise the case and to guard against further, and perhaps even general, participation and disturbances; attempts to find equivalents and to settle the whole affair (compositio); above all, the ever more definitely pronounced will to regard every transgression as payable in some way or other, — that is to say, to isolate, in some measure at least, the transgressor from his deed. With the growing power and self-consciousness of a community, the rigour of the penal laws will always lessen; while every weakening and serious endangering of the community will be followed by a reappearance of the sterner forms of the penal laws. In proportion as his wealth increased, the creditor has at all times become more humane; and the amount of detriment to which he may be exposed without suffering from the loss, will at last even be made the standard of estimation for his wealth. We might even conceive a consciousness of power on the part of society so far advanced as to permit itself the noblest of all luxuries which it can afford — to let her wrong-doer go unpunished. "Of what concern for me are my parasites?" society might say. "Let them live and prosper: I am still a match for them!" . . . . Justice, which began with the declaration: "All is payable, all must be paid off," ends by closing its eyes to those unable to pay and letting them go; it ends, like all good things on earth, by abrogating itself. This self-abrogation of justice — we know, by what excellent name it calls itself — mercy. It remains, as is self-evident, the privilege of the mightiest one — or, more exactly, it is his "Beyond the law."
11
Here a word, by way of refutation, against certain attempts recently made to seek for the origin of justice in quite another field, — the field of resentment. This plant (as we may whisper into the ears of our psychologists, in case they should themselves like to study resentment closely for once) flourishes now most lusciously among anarchists and anti-Semites, in secrecy, by the bye, where it has always flourished, like the violet, with different odour however. And since it is law universal that like will beget like, we shall not be surprised to witness attempts proceeding from such spheres, such as have been made at various times (compare above the First Essay, section 14) to sanction revenge under the name of justice (as if justice were in reality only an advanced stage of the development of the feeling of wrong-suffering) and by honouring revenge, to re-establish all re-active emotions whatsoever. This latter effect I should least of all object to; with reference to the whole problem of biology (in respect to which the value of these emotions has hitherto been underestimated) it would even seem to me to be a desert. That to which alone I call attention, is the fact that this new nuance of scientific equity (in favour of hatred, envy, jealousy, suspicion, rancour, revenge) takes its origin from the spirit of resentment itself. For this "scientific equity" comes to a sudden halt and yields to manifestations of mortal hatred and prejudice as soon as it has to do with another group of emotions, the biological value of which is, in my opinion, far greater than that of the re-active feelings, and which, for this very reason, have a still greater claim to scientific estimation and appreciation. I mean the specifically active emotions, such as thirst of power, avidity and the like. (E. Dühring, The Value of Life; A Course of Philosophy; in fact, all his works.) So much may be said against this tendency in general. But as regards the particular proposition of Dühring, that the home of justice is to be sought for in the territory of the re-active feelings: out of love of truth, completely turning round his statement, we have to propose this different view: the last bit of ground conquered by the spirit of justice is the territory of re-active feelings. If it ever happens, that the just man is just even against him who has injured him (and not merely cold, moderate, reserved, indifferent; to be just is always a positive conduct); if, even when attacked by personal insult, derision, slander, the lofty, bright, mild-and-deep-visioned objectivity of the just and judging eye is not dimmed, good, then this is a bit of perfection and highest mastery on earth — something, in fact, which, in this case, prudence tells us not to expect, and in which at any rate it is advisable not to believe too readily. Certain it is on the average that, even in the case of the most honest persons, a small dose of offence, malice and insinuation will suffice to force their blood to, and fairness from the brow. The active, aggressive, and transgressive man is, in any case, yet a hundred degrees nearer to justice than the re-active man; for the active one is not forced to a false and biassed estimation of his object as the re-active is. And hence, as a matter of fact, the aggressive man, being also the stronger, braver, nobler man, has, at all times, had the freer eye and better conscience for his party. Reversely we see at once whose conscience must be held responsible for the invention of "bad conscience." It is the man of resentment. And finally, let people but pay attention to history. In what sphere, we ask, has the execution of law and the requirement of law been at home on earth? Peradventure in the sphere of reactive man? By no means. Rather in that of active, strong, spontaneous, aggressive men. Historically considered, — and be this said with the purpose of discomforting the aforementioned agitator (who somewhere confesses of himself: "the doctrine of vengeance is, as it were, the red thread of justice twining through all my writings and endeavours"), — law represents the war waged just against the re-active feelings by the active and aggressive powers, part of whose strength was directed to restraining and curbing the extravagance of re-active pathos and of compelling the opponent to an agreement. Wherever justice is practised, wherever justice is maintained, we observe how a stronger power, as regards weaker, subordinate powers (either groups or individuals), will seek for means of putting an end to the blind fury of resentment raging among the latter, partly by withdrawing the object of resentment from the clutches of revenge, partly by placing instead of revenge, the war against the enemies of peace and order, partly by inventing, proposing, or, according to circumstances, even enforcing adjustments, partly by establishing certain fixed equivalents of injury as a norm, to which then once for all resentment must address itself. The most decisive step, however, taken by the highest power against the overwhelming might of contrary feelings and after-feelings — and this step is always taken as soon as this power is strong enough for undertaking it — is the establishment of law, the imperative declaration as to what, in its opinion, is to be regarded as right and lawful or as wrong and forbidden. By treating, after the establishment of law, transgressions and cases of arbitrary conduct on the part of individuals or entire groups as a revolt against the supreme power itself, the feeling of those subjected to its sway is diverted from the immediate damage resulting from such crimes, and in this manner the reverse result is reached from that which is desired by all revenge, — which notices and recognises only the point of view of the wronged party. From this time forward the eye gets accustomed to an ever more impersonal estimation of the deed, even the eye of the wronged party itself (though, of course, his eye last of all, as already observed). Hence, only after the law has once become established, do "right" and "wrong" exist (not, as Dühring argues, after the act of violation has been done). To speak of right and wrong in itself, is altogether meaningless; in itself the act of injuring, violating, exploiting, destroying can, of course, not be anything "wrong," inasmuch as life essentially, i.e., in its fundamental functions, works injury, violation, exploitation and destruction, and cannot be conceived otherwise. Indeed, we are even forced to submit to still more delicate truths: such as the fact that, viewed from the highest biological point of view, legal conditions can never be anything else but exceptional conditions, that is to say, partial restrictions of the proper will of life which seeks power; and subordinating themselves to its collective aim in their capacity of separate means, i.e., means for bringing about greater units of power. A legal order conceived as sovereign and universal; not as a means of which different complexes of power avail themselves in their struggle with one another, but as a means against all war whatsoever — such as is suggested, for instance by the communistic pattern of Dühring, which would enforce the principle that every will should treat every other will as its equal — such an order would be a principle hostile to life, tending to destroy and disintegrate life, an outrage upon the future of man, a sign of languor, a by-way to the Nothing.
12
Here one more word on the origin and purpose of punishment — two problems which are and should be kept separate. Unfortunately, however, they are commonly confounded. And how do our moral genealogists go to work in this matter? Naïvely, as always: they find, by seeking some purpose in punishment, that of vengeance, for instance, or of determent, and then innocently set this purpose at the head, as the causa fiendi of punishment, and — that settles it. But the "purpose in law" can least of all be used for a history of the origin of law. On the contrary, for every kind of history there exists no more important proposition than even this (which it has taken so much pains to acquire, but which, once acquired, should be acquired for good), namely the proposition that the cause of the origin of a thing and its ultimate utility, its actual application and linking into a system of purpose, lie toto caelo asunder; that a thing which is present, a thing which has come about in some way, is ever again by some power superior to it interpreted to contain new purposes, is arrested anew, is transformed and directed to a new use; and that finally all "happening" in organic nature implies an over-powering, over-mastering, which in turn implies a re-interpretation and adjustment, by which, of necessity, the past "sense" and "purpose" become obscured and even altogether extinguished. Assuming the utility of some physiological organ (or, let us say, a legal institute, or social custom, or political usage, or some form of the arts or a religious cult) to be perfectly understood, such is, as yet, far from being the case with respect to its origin; unpleasant and unwelcome though this truth may sound to older ears, — for from times immemorial it was customary to think that by understanding the demonstrable purpose, the utility of a thing (or form, or institution) the reason for its origin was also understood; the eye being explained as having been made for the purpose of seeing, the hand for the purpose of seizing. So, also punishment was conceived as having been invented for the purpose of punishing. But all purposes, all utilities, are but indications of the fact, that some will to power has become master over something inferior in power, and has, proceeding from itself, assigned to it the meaning of a function; and the entire history of a "thing," an organ, a custom may, in this way, be one unbroken sign-series of constantly changing interpretations and adjustments, the causes of which need not even be connected among themselves, but may, according to circumstances, follow upon, and replace one another quite at random. By no means, therefore, is the "evolution" of a thing (or a custom, or an organ) its own progressus towards a goal, still less a progressus logicus advancing in a straight line and with the least expenditure of power and pains, — but rather a series of more or less important, more or less independent processes of over-powering, the scene of which the thing is; to which must be added, in each case, the amount of energy consumed in the opposition to such processes, as also the attempts in the way of form-changes undergone for the purpose of defence and re-action, and finally, also the results of successful counter-actions. The form is mobile, but the "sense" is still more so . . . . The same phenomenon is to be observed in the make-up of each individual organism: every essential growth of the whole will cause the "sense" of the individual organs to shift. According to circumstances the partial destruction of these organs, their diminution in number (for instance, by the annihilation of intermediary members) may be a sign of growing power and perfection. Rather say: the partial loss of usefulness, the stinting and degeneration, the loss of sense and expediency, in one word, death, is among the conditions of true progress: which progress always appears in the form of a will and way to greater power and is always enforced at the expense of a large number of lesser powers. The amount of "progress" is, in fact, even measured by the mass of all that had to be sacrificed in order to bring it about: mankind en masse sacrificed in order to insure the growth of a single, stronger species of man — that would be progress . . . . — I emphasise this main point of view of historical methodics, and all the more so for the reason that at bottom it runs counter to the now reigning instinct and modern taste, which would rather reconcile itself to the absolute fortuitousness and even mechanistical nonsensicalness of all "happening " than to the theory of a will to power as manifesting itself in all happening. The democratic idiosyncrasy against all that sways or wills to sway, modern misarchism (to coin a bad word for a bad cause), has gradually become merged to such an extent into, and so taken on the guise of, spirituality, keenest spirituality, that to-day it forces, and is allowed to force, its way, step by step, into the exactest and seemingly most objective sciences; in fact, it seems to me to have already succeeded in usurping the entire science of physiology and biology, much to its disadvantage, as is self-evident, — for it has eliminated from this science a fundamental notion, the notion of functional activity. Labouring under this idiosyncrasy, "adaptation," that is to say, a second-rate activity, in fact, a mere re-activity, is pushed into the foreground, and indeed, life itself has even been defined as "a continuous better adjustment of internal relations to external relations" (Mr. Herbert Spencer). But this is to mistake the true nature and function of life, which is will to power. It is to overlook the principial priority which the spontaneous, aggressive, transgressive, new-interpretative and new-directive forces possess, from the result of which "adaptation" follows. It is to deny the sovereign office of the highest functionaries in the organism, in which functionaries the will to life appears as an active and formative principle. The readers will recall here what Huxley objected to in Spencer — his "Administrative Nihilism." But we have to deal here with much more than mere "administration" . . . .
13
In punishment, therefore — to return to our theme, namely punishment — two things are to be discerned: on the one hand, the relatively durable element, the usage, the act, the drama, a certain strict sequence of procedures; and on the other hand, the element of mobility, the sense, the purpose, the expectation connected with the execution of such procedures. And true to the principal point of view of historical methodics, as set forth in the last section, in this statement it is assumed, without further demonstration, per analogiam, that the procedure itself ante-dates its application as a means of punishment; that the latter was, only at a later date, laid into, interpreted into the procedure (which had for a long while existed, but had been differently understood); that, in short, the case is quite different from what our naïve genealogists of morals and law have so far assumed, who, without exception, conceived the procedure as having been invented for the purpose of punishment, even as the hand was formerly conceived as invented for the purpose of seizing. But again, as regards the other element in punishment, the element of mobility, the "sense," in a very late stage of civilisation (such as, e.g., that of modern Europe) the concept "punishment " implies no longer a single sense but a complete synthesis of "senses." In fact, the entire past history of punishment, of its utilisation for the most heterogeneous purposes, crystallises at last into a kind of unity which is difficult to reduce, to analyse into its elements, and which, as must be emphasised, defies each and every definition. (It is impossible to-day to offer a definite answer to the question as to the actual wherefore of punishment. All concepts in which an entire process is semiotically contained escape definition. Only that which has no history is definable.) In an earlier stage, however, that synthesis of "senses" appears as yet somewhat more reducible, somewhat more shiftable; we may still observe how, in each individual case, the constituent elements of the synthesis change their value, and re-arrange themselves accordingly, so that at one time this, at another that element prevails and dominates at the expense of the rest, and that even, circumstances favouring, some one element (such as, for instance, the purpose of determent) seems to render void all other elements. To convey at least an idea of the vagueness, the secondariness, the accidentalness attaching to the "sense" of punishment, and to show how one and the same procedure is utilised for, interpreted for, and adjusted to fundamentally different ends, I insert the following scheme here, which has suggested itself to me on the basis of comparatively scanty and accidental material. Punishment as rendering the criminal harmless, as a preventive of further mischief. Punishment as the sufferer's compensation for the damage, as payment in any form (even as compensation in the form of an emotion). Punishment as the isolation of a disturbed equilibrium, in order to prevent spreading of the disturbance. Punishment as a means of inspiring others with fear for those who decree and award punishment. Punishment as a kind of equivalent for the advantages which the criminal has so far enjoyed (when, for instance, he is utilised as a slave in the quarries). Punishment as the elimination of a degenerating element (sometimes even of an entire branch, as is instanced by Chinese law; as a means, therefore, for preserving the purity of the race or for the permanent establishment of a social type). Punishment as a festival, namely as the violation and taunts practised against an enemy at last subdued. Punishment as the making of a memory, be it for him who suffers punishment (so-called correction) or be it for the spectator witnessing the execution. Punishment as the payment of a fee stipulated by the power which protects the evil-doer against the excesses of revenge. Punishment as a compromise with the natural state of revenge, in so far as the latter continues to be maintained and claimed as a privilege by mighty clans. Punishment as a declaration and measure of war against an enemy of peace, law, order, the authorities, — an enemy who, with such means as war will prompt, is combated, as being dangerous to the community, as having violated the contract underlying the community, as an insurgent, traitor and peace-breaker.
14
This list will not be complete; and yet, as appears from it, punishment is brimful of utilities of every sort. So much the more readily, therefore, we may venture to withdraw from it a certain presumable utility, which, it is true, by the popular view of the matter, is held to be its most essential utility; (the belief in punishment, which for more than one reason is shaky at present, finds just in it its firmest support.) The value attributed to punishment is supposed to consist in the fact that it awakens in one guilty the feeling of guilt; in it, the proper instrumentum of that mental re-action which is known as "bad conscience" or "prick of conscience" is sought for. But this explanation violates reality and psychology even with respect to the problem in its modern aspect, and still more so, as regards the longest period of man's history, — the prehistoric period! True remorse just among criminals and convicts is very rare; prisons and reformatories are not places which favour the growth of this species of "gnaw-worm" — on this point all conscientious investigators agree, who, in many cases reluctantly enough and against their own most private desires, pronounce such a judgment. All in all, punishment hardens and renders people more insensible; it concentrates; it increases the feeling of estrangement; it strengthens the power of resistance. If cases occur at all in which people's energy is really broken by punishment, and a pitiable prostration and self-humiliation follows, such a result is certainly still less comforting than the average effect of punishment which is characterised by a dry, sombre earnestness. And if, moreover, we take into consideration the thousands of years elapsing before the entrance of man into history, we may, without hesitation, say that punishment itself, more than any other factor, served to retard the development of the feeling of guilt, — at any rate, as regards the victims affected by the punishing power. Let us, above all, not undervalue the measure in which, just by the spectacle of the legal procedure and punishment, the criminal will be prevented from feeling his own deed, the kind of action he did, to be, as such, objectionable; for he sees precisely the same kinds of actions performed, and approved of, done with good conscience, in the service of justice, such as espionage, outwitting, bribery, trap-setting, the entire art of the policeman and indicter, with all its crafty and underhand machinery, and further the principial practice (which not even emotion will excuse), of spoliation, violation, dishonouring, imprisoning, torturing, murdering, as we find it in the various kinds of punishment, — actions, therefore, which are by no means in themselves repudiated and condemned by his judges, but only in a certain respect and application. "Bad conscience," this most dismal and interesting plant of our subterranean vegetation, did not grow from out this soil, — indeed, for the longest time, in the consciousness of those who passed judgments and distributed punishment, nothing was expressed of the concept of having to deal with a "guilty" person; but only with a damage-doer, with a piece of irresponsible destiny. And the victim himself whom punishment befell, again like a piece of destiny, experienced no other "inner pain" than that which any sudden, unforeseen event will produce, some terrible catastrophe, such as the falling of a crushing rock against which there is no resistance.
15
This suggested itself, in very captious wise, to Spinoza (much to the annoyance of his interpreters who do all they can to misunderstand him in this passage — so Kuno Fischer), when some afternoon, grating away at some remembrance or other, the thought occupied him as to what of the celebrated morsus conscientiae had remained for him who had relegated the notions of Good and Evil to the realm of human imaginations, and strenuously defended the honour of his "free" God against those blasphemers maintaining that God did all sub ratione boni ("but this would be equivalent to subordinating God to fate and were, forsooth, the greatest of absurdities" —). The world, for Spinoza, had returned to that state of innocence in which it lived before the invention of bad conscience. What, by this logic, had become of the morsus conscientiae? The opposite, he at last said to himself, of gaudium, a sadness accompanied by the notion of a past event which has turned out contrary to all expectations. Eth. iii, propos. xviii. schol i. ii. Not otherwise than Spinoza evil-doers have felt in regard to their "offence" for thousands of years when reached by punishment. "Here something has unexpectedly gone wrong," and not: "I should not have done so." They submitted to punishment, even as we submit to a disease, or calamity, or death, with that daring fatalism sans révolte by which, in the handling of life, e.g., the Russians enjoy still an advantage over us occidentalists. If in past ages the deed was criticised at all, it was prudence which suggested criticism. The real effect of punishment is, undoubtedly, in the first instance to be sought in an intensification of prudence; in a lengthening of memory, a will to approach one's deeds in future more carefully and with greater suspicion and secrecy; in the recognition of the fact that, to many undertakings, our strength is absolutely inadequate; in a kind of improvement of self-judgment. What by punishment can really be accomplished all in all, in the case of man and animal, is an augmentation of fear, an intensification of prudence, a subjugation of passions. And in so doing, punishment tames man, but it does not make him "better." In fact, the opposite might even be maintained with better reasons. ("Damage suffered makes you wise," says a popular proverb: in so far as it makes wise, so also it makes mean. Fortunately, it very often makes stupid.)
