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ABSTRACT
This paper takes up Nietzsche’s contrast between a relatively enduring ‘drama’ of punishment, which consists in sequences of procedures, and a congeries of often discrepant meanings and purposes of the drama and contrasts it favorably with the distinction between a definition of punishment and a justification for it which received a good deal of attention in the middle of the twentieth century in anglophone philosophical circles. My chief thesis is that the philosophical lesson to be drawn from the widely acknowledge failure of efforts to further the philosophical understanding of punishment by the latter route is Nietzsche’s: that the concept in question and the practices that fall under it are fundamentally insusceptible to ahistorical methods. I argue for the thesis proper in the first section of the paper, and explore consequences of it for our understanding of the connection between punishment and justice in the second.
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Notes
2 And, it might be added, his attendant scanting of the project of conclusively justifying or impugning moral principles: ‘Prejudice of the learned — The learned judge correctly that people of all ages have believed that they knew what is good and evil, praise- and blameworthy. But it is a prejudice of the learned that we now know better than any other age’ (D 2). I use the following abgbreviations for Nietzsche’s texts: Daybreak – D; On the Genealogy of Morals – GM. For Daybreak I have used the R. J. Hollingdale translation in the ‘Cambrige Texts in the History of Philosophy’, for the Genealogy I have generally used the Walter Kaufmann translation(New York: Vintage Books, 1969), but have sometimes made minor alterations. When a paragraph includes more than one citation from a section of the second Essay of GM, I have included the section number alone in brackets for subsequent citations.
3 Practitioners of Getteriology will contest the claim that these standard conditions are jointly sufficient for knowledge. So much the worse for Getteriology, in my opinion. That said, it bears emphasizing that analyzing knowledge into these three traditional component parts is anything but sufficient for a deep and detailed understanding of it. When Plato first articulated a version of the tripartite analysis of knowledge he certainly didn’t bring inquiry into the subject to a close. Conceptual analysis, properly undertaken, is the servant of further knowledge and insight; it is rarely an intellectual goal in and of itself.
4 Even if, perhaps especially if, the answer to this rhetorical question is ‘yes’, it may be that an overabundance of distinct, not obviously compatible justifications amounts to the same thing as no effective justification at all, which is why Nietzsche declares that ‘It is today impossible clearly to say why in fact people are punished’ (13).
5 To use Alva Noe’s delightful phrase, passed on to me by Andrew Huddleston.
6 When, in the story related by Aristotle Citation1987 (Poetics 1452a7-9), the murderer of Mitys is killed by a falling statue of Mitys at which he was gazing, he may receive a fitting comeuppance for his misdeed, but he is not punished for his crime.
7 Especially if they have recently been reminded of the ease with which to this day it can be assumed to be evident that ‘the public at large’ take the imposition of suffering to be an essential feature of punishment. ‘There is’, David Hershenov writes, ‘no denying … that … the public care[s] about a criminal’s comfort level[;] their concern is in seeing it reduced by imprisonment’ (Citation1999, 84 emphasis mine); i.e. so far from replacing the imposition of positive suffering, the deprivation of liberty is imposed so as to secure it! In his richly documented, carefully argued account of the distinctively vindictive character of American penal practices as contrasted with those of Europe and the rest of America’s peers (in respect of longstanding democratic traditions, advanced industrial economies etc.), James Whitman alerts us to the fact that Hershenov’s claim, while likely true of and in America, is almost certainly false outside it. In German law, for example, a ‘principle of approximation’ (Angleichungsgrundsatz), declaring that life in prison should approximate the general conditions of life outside to the greatest extent possible, is enshrined in the penal code (Citation2003, 8). I strongly suspect that American public opinion would be revolted by such a provision.
8 In the manner of Ted Honderich who, in his account of ‘the problem’ of punishment, declines to be ‘detained’ by Mabbot’s ‘less than reassuring distinction’ (Citation1984, 11). The point is not about reassurance, but about moral sensibility and reigning values. When Foucault declares roundly that the growing hostility to abusive penal practices characteristic of the modern age and heralded by ardent reformers in the eighteenth century is to be attributed, not to a ‘new sensibility’, but rather to ‘an alternative policy towards illegalism’ (Citation1977, 82, my translation) he exaggerates unhelpfully. In fact, here if anywhere we see the cognitive and the affective mutually reinforcing each other: In the terms of D §103, as people began to think differently about punishment and punishments, so they began to feel differently about them – to the point where ‘cruel and unusual’ punishments became a watchword for morally unacceptable punitive measures, in spite of the historical fact that cruel punishments had for millennia been anything but unusual!
9 This point applies also to Flew’s fourth condition if one lays stress on the ‘human’ in ‘evils occurring to people as a result of misbehaviour, but not by human agency’.
10 Mabbot does this in effect, but not in name. The distinction is made explicit in a critique of Mabbot’s piece by Mary Glover, who remarked that she found it ‘hard to see that [Mabbot had] … adduced any ethical arguments that establish the retributive theory’, as ‘the considerations he brings forward are mainly logical and legal’ (Citation1989, 498, emphasis added).
11 One might, for example, try to salvage Quinton’s thesis by saying that the students uninvolved in the prank are being punished for not informing on the guilty parties, whereas the prankers are being punished for their prank. Since all are thus offenders in some sense, the principle that first person present tense avowals of punishing known innocents are inapt may be said to stand. Nevertheless, it was the prank that provoked the detention, not the omerta, and a certain sort of master might admire the non-prankers’ loyalty rather than deplore it.
12 And also not deeply analogous to the Moorean incoherence of ‘I believe that p, but p is false’, though it must be admitted that a certain superficial analogy between these cases does obtain. Whereas ‘I am punishing some of you who are innocent’ is linguistically in order, ‘I am punishing you (whom I’m presently addressing), who are innocent’ is in a different case, and arguably for Moorean reasons. I owe this point to Mattia Riccardi.
13 Lurking in the wings here are deep questions about the role of chance in the history of humanity and the universe. While Nietzsche’s insistence on a firm distinction between origin and purpose in GM II 12–14 bears closely on these issues, I will not be addressing them in the present paper. I’m grateful to Paul Loeb for drawing my attention to this point.
14 It’s worth noting here that ‘work of art’ (like ‘poetry’) has what might be called a Platonic honorific use, as in ‘that deke [in a game of hockey or soccer) was a work of art’, or ‘her dancing [recreationally, not professionally] is poetry in motion’.
15 As indeed it is only after the fact that any inquirer can be proven right, insofar as ‘proven’ is an admissible description of the formation of a well-established consensus about something that was once a bold conjecture.
16 Nietzsche’s list of thirteen distinct uses to which punishment can be put has, he says, been arrived at by dint of ‘a relatively small and desultory sample of instances’ (II 13).
17 Indeed, I suspect that the era of the primitive, life-affirming nobles of GM I was just such an intermediate time, which explains why (as noted above) in that essay punishment only comes up for attention near the end, in comments on the punitive justice of God as conceived by Christian theologians.
18 I take this term from Arthur Ripstein’s interpretation of Kant on punishment (Citation2009, 300–325).
19 ‘First principle of civilization: any norm is better than no norm’ (D 16).
20 In this account of the structure of the drama of punishment I am in broad agreement with Maudemarie Clark, who proposes a fourfold division consisting of: ‘accusing someone of a wrong or violation, judging that the violation has taken place, determining the penalty that is appropriate or deserved, and inflicting that penalty’ (Citation1994, 33). In my view, however, it is potentially misleading to build the concept of a deserved penalty into the account of the sequence of procedures that make up the drama, as it threatens to tie the account too closely to more advanced stages of jurisprudence and moral thinking than Nietzsche has in mind.
21 As Foucault rightly emphasizes, the modern revolt against punishments that target the body has its counterpart in our preference for conducting the third act of the drama behind closed doors.
22 And so, to return to an earlier example, when a teacher imposes a punishment on a class known to include innocent parties, we see that the ‘community-binding’ function of punishment can take place on the receiving end of things as well as the imposing end. Whenever a group is prepared to suffer as a group, rather than incriminate some of its members for something they have done, but in which the others had no hand, they solidify their identity as this group, and do so by standing firm in the face of inducements to distinguish the guilty from the innocent among them. Squealers, like criminals, are traitors to their kind.
23 On this point, see Avery Snelsen (Citation2019).
24 This is why when Rousseau explicitly identifies criminality with treachery – Every criminal by attacking social rights becomes a rebel and a traitor to his country; by violating its laws he stops being a member of it ‘[ …] even makes war on it. The state’s survival is inconsistent with his survival, and one of the two must die; … ’ (Social Contract II 5) – the differences between what he is proposing and what the inventors of the drama of punishment had in mind makes all the difference. Rousseau is injecting a meaning into the long-established drama, the originators of the drama were acting on instinct, not out of theoretical conviction. In pre-historic times, the traitorousness of the lawbreaker was experienced in just as visceral and unrefined a way as the ‘purity’ of the earliest priests (I 6).
25 According to GM II 17, human domestication was carried out by conquest. The original domesticators were those predatory races ‘organised for war and with the ability to organize’ to whom Nietzsche attributes responsibility for the first communities stable and sedentary – i.e. state-like – enough to allow dramas of punishment to take hold. So ‘we’ domesticated ourselves only in the sense that our species became domesticated thanks to the work of fellow members, as opposed to external agencies.
26 As Robert Nozick observes, ‘a system allowing acts A provided compensation is paid must prohibit … the joint act of doing A and refusing to pay compensation’ (Citation1974, 59, emphasis added).
27 Nietzsche’s ‘hier trat zuerst person gegen Person’ is surprisingly hard to get right in English. Where Kaufmann, Douglas Smith (who differs from Kaufman only in using ‘man’ instead of ‘person’) and Carol Diethe (who gives us ‘met’ instead of ‘encountered’) miss the oppositional element in ‘gegen’, while both Clark and Swensen and Ian Johnston (in a forthcoming translation with Broadview Press) have to sacrifice elegance and naturalness to get closer to Nietzsche’s meaning: offering ‘here for the first time person stepped up against person’ (Clark and Swensen) and ‘here for the first time one person moved up against another person’ (Johnston).
28 I defend this claim in Migotti (Citation2015). The distinction between ‘the’ sense of the term ‘price’ and our sense of this term is needed for reasons explained in footnote N below.
29 The qualification in brackets is needed because certain proponents of the law and economics movement maintain explicitly that penalties are but prices under another name. I am sure that this is not true for us, and in the article cited above I argue the point, not on the basis of timeless conceptual analysis, but on the grounds that no one today can in good faith really believe the thesis in question in real life as opposed to economic theory. In this respect, however, things were manifestly different not so very long ago. For an example of a bygone concept that runs together price and penalty, consider the notion of a ‘mulct’, in medieval English law: mulcts could on the one hand constitute a fine in our sense, a monetary penalty, but they could also be paid to purchase an exemption from a given penalty! For a related example, while a ‘scot’ when the term was in regular use was a tax, the phrase ‘scot-free’ has come to mean, ‘escaping from punishment or penalty’.
30 Or, to put it differently, who cares whether hangings are undertaken only in response to suitable offences taken to have been committed by the condemned individuals. Taking his cue from stories by Ernest Bramah, Flew asks entertainingly whether an institution whose aim was ‘to ensure only that the total number of hangings balanced the total number of murders … irrespective of who was hung?’ (292) could count as a system of punishment. In the terms I’ve been developing, this would be an example of the third act of the drama operating in blithe independence of the first two.
31 Cf. II 13 on the value of a practice of punishment as instrumental in securing a ‘compromise with the natural condition of revenge, insofar as this is still upheld and claimed as a privilege by powerful clans’.
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