The Will to Power · Friedrich Wilhelm Nietzsche
742.
In the ancient idea of punishment a religious concept was immanent, namely, the retributive power of chastisement. Penalties purified; in modern society, however, penalties degrade. Punishment is a form of paying off a debt: once it has been paid, one is freed from the deed for which one was so ready to suffer. Provided belief in the power of punishment exist, once the penalty is paid a feeling of relief and lightheartedness results, which is not so very far removed from a state of convalescence and health. One has made one's peace with society, and one appears to one's self more dignified pure.... To-day, however, punishment isolates even more than the crime; the fate behind the sin has become so formidable that it is almost hopeless. One rises from punishment still an enemy of society. Henceforward it reckons yet another enemy against it. The _jus talionis_ may spring from the spirit of retribution (that is to say, from a sort of modification of the instinct of revenge); but in the Book of Manu, for instance, it is the need of having some equivalent in order to do penance, or to become free in a religious sense. My pretty radical note of interrogation in the case of all more modern laws of punishment is this: should not the punishment fit the crime?--for in your heart of hearts thus would you have it. But then the susceptibility of the particular criminal to pain would have to be taken into account. In other words, there should be no such thing as a preconceived penalty for any crime--no fixed penal code. But as it would be no easy matter to ascertain the degree of sensitiveness of each individual criminal, punishment would have to be abolished in practice? What a sacrifice! Is it not? Consequently ...
Ah! and the philosophy of jurisprudence! That is a science which, like all moral sciences, has not even been wrapped in swaddling-clothes yet. Even among jurists who consider themselves liberal, the oldest and most valuable significance of punishment is still misunderstood--it is not even known. So long as jurisprudence does not build upon a new foundation--on history and comparative anthropology--it will never cease to quarrel over the fundamentally false abstractions which are fondly imagined to be the "philosophy of law," and which have nothing whatever to do with modern man. The man of to-day, however, is such a complicated woof even in regard to his legal valuation that he allows of the most varied interpretation. An old Chinese sage once said he had heard that when mighty empires were doomed they began to have numberless laws. Schopenhauer would have all rapscallions castrated, and all geese shut up in convents. But from what point of view would this be desirable? The rascal has at least this advantage over other men--that he is not mediocre; and the fool is superior to us inasmuch as he does not suffer at the sight of mediocrity. It would be better to widen the gulf--that is to say, roguery and stupidity should be increased. In this way human nature would become broader ... but, after all, this is Fate, and it will happen, whether we desire it or not. Idiocy and roguery are increasing: this is part of modern progress.
Ideas discussed in this chapter
Text from Project Gutenberg, public domain in the United States.