Nietzsche on the Criminal Law

When we get beyond the lex talionis, an eye for an eye, to a more civilized form of law, what and how should it be? That's what Nietzsche looks at in The Wanderer and His Shadow §22. It's all about a "Principle of Equilibrium." And that goes for the brigand and the defender of the peace.

The brigand and the man of power... are probably at bottom very similar beings, except that the latter obtains what he wants in a different way from the former, namely through regular tributes paid to him by the community and not by imposts levied by force.

Hmm. Seems like an echo of St. Augustine who wrote that the only difference between a government and a band of outlaws is the addition of impunity. Notice that both the brigand and the prince levy their imposts by force. "But the essential thing is:"

this man of power promises to maintain an equilibrium with the brigand; in this the weaker perceive a possibility of living.

Equilibrium: that's the point of government and law. So, says Fritzi, when he gets down to our modern criminal law. The point of disgrace and punishment is to burden the criminal with burdens to equalize the burdens he has placed on his fellow citizens.

Within a community in which  all regard themselves as equivalent there exists disgrace and punishment as measure against transgressions, this is to say against disruptions of the principle of equilibrium: disgrace as a weight placed in the scales against the encroaching individual who has procured advantages for himself through his encroachment and now through the disgrace he incurs experiences disadvantages which abolish these earlier advantages and outweigh them. The same applies to punishment against the preponderance which every criminal promises himself it imposes a far greater counter-weight, enforced imprisonment for acts of violence, restitution and punitive fines for theft.

So, says Nietzsche, "the transgressor is reminded that... he has excluded himself from the community"; he is reminded of "the harshness of the state of nature" for those outside the beneficial meadow of human community.

It's an interesting idea: disgrace for the guy that can feel shame; punishment for the guy that doesn't; and for both a reminder of the blessings of the peace of society, in the curious middle ground between brigand and kindly father, where tribute paid to the powerful is at least predictable and bearable.

OK, here's more Nietzsche-ness. What about the punishment of criminals (in aphorism 23)? In our legal system we require the convicted criminal to be accountable for his deed, acting in a rational manner rather than "unconsciously or under compulsion."

For an offense to be punishable presupposes that its perpetrator intentionally acted contrary to the better dictates of his intelligence. But how can anyone intentionally be less intelligent than he has to be?

It must be "pure willfulness" wot done it. But that means free will, and the assumption of the philosophy of sentencing is that the criminal has to be rational and responsible to be punishable. But free will implies an action that takes place outside the rational use of intelligence. What's a mother to do?

So. Let's forget free will and responsibility. If someone offends, or breaks the equilibrium of society, then you punish them with disgrace to restore social equilibrium if they are capable of shame -- or of blushing. If the perpetrator is not capable of blushing with shame then you just simply punish them with fines and/or imprisonment. To restore the equilibrium disturbed by the criminal.

Well, it's something to think about.