Monday Muse v.1 n.15
January 24, 2000

My Dearest Gentlefolk;

This week I hope to take my approbation of brevity more seriously. In a spirit of enquiry, let us therefore visit a short selection of Nietzsche's thought from his Genealogy of Morals:

As power increases, a community ceases to take the individual's transgressions so seriously, because they can no longer be considered as dangerous and destructive to the whole as they were formerly: the malefactor is no longer "set beyond the pale of peace" and thrust out; universal anger may not be vented upon him as unrestrainedly as before -- on the contrary, the whole from now on carefully defends the malefactor against this anger, especially that of those he has directly harmed, and takes him under its protection. A compromise with the anger of those directly injured by the criminal; an effort to localize the affair and to prevent it from causing any further, let alone a general, disturbance; attempts to discover equivalents and to settle the whole matter (compositio); above all, the increasingly definite will to treat every crime as in some sense dischargeable, and thus at least to a certain extent to isolate the criminal and his deed from one another -- these traits become more and more clearly visible as the penal law evolves. As the power and self-confidence of a community increase, the penal law always becomes more moderate; every weakening or imperiling of the former brings with it a restoration of the harsher forms of the latter. The "creditor" always becomes more humane to the extent that he has grown richer; finally, how much injury he can endure without suffering from it becomes the actual measure of his wealth. 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 go unpunished. "What are my parasites to me?" it might say. "May they live and prosper: I am strong enough for that!"

Friedrich Nietzsche, On the Genealogy of Morals, p. --- (trans. Walter Kaufmann and R.J. Hollingdale, 1967).

Several questions leap from the page: Is Nietzsche's diagnosis applicable to our social and political condition? Does the resurgent interest in the death penalty in the United States, at a time when the country is experiencing unprecedented economic prosperity and record lows in the incidence of violent crime, contradict his thesis? Is the refusal by Congress to reexamine mandatory sentences imposed for possession of crack and powder cocaine (a difference currently pegged at nearly 10 to 1, in spite of overwhelming evidence that the only real difference between these forms is the racial profile of the persons arrested and convicted), an utter refutation of his understanding of the will to power? Or is all of this, and the "criminalization" of American consciousness generally, evidence of something far more insidious? The barbarism of our criminal justice system may be an inverse measure of our wealth. But if this is the case, such wealth cannot be counted in dollars.

Why are we so desperate to loose sight of our criminals? We wish them to vanish, to pass unseen into oblivion, whether by silent "painless" death or by the eradication of secret confinement. It is as though we make every effort to erase their existence from our consciousness, and halt forever the possibility of believing that a human being did what they are said to have done. This is not the impulse of one capable of mercy. This is not the impulse of one in love with the human spirit. This is not the impulse of one capable of power.

Has the American dream come to haunt our vision of deviant conduct? Are we so much more fragile than the citizens of Germany, of France, of England, or Japan, that we must condemn the survivors of calamity to the belief that their lives can only be restored by the annihilation of a man identified as its cause? Witches have seldom burned for less.

How could Nietzsche have been so wrong about the correlation of wealth to the brutality of one's criminal justice system? Was he wrong? Or have we invented a neuroses that defies his logic, and raised the "plight of the victim," a crystalline abstraction utterly unconcerned with the needs of persons who have suffered loss, above the health of the community?

These are not the questions of one opposed to "victims' rights", though it does beg vital questions to suggest that "victims" need greater representation in the prosecution of criminal cases. Why, after all, do we insist on a distinction being drawn between the criminal and the civil dispute? It is not, I assure you, a distinction founded in the "civility" of the subject matter or the parties taking part.

Until next week,

David Robert Foss

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Muse v.1 n.15 David Robert Foss 01/24/2000

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