Nietzsche on the Origin of Justice

Criminology, Criminal Justice, Law & Society – Western Society of  Criminology

Similar to the sentiment found in Hobbes’ Leviathan, in section 92 of his 1878 work Human, All-Too-Human, Friedrich Nietzsche argues that the concept of what is just correlates from mutual agreements between persons.  Hobbes calls these agreements covenants, Nietzsche refers to it more pointedly by stating that, “the initial character of justice is the character of a trade,” and “justice is repayment and exchange on the assumptions of an approximately equal power position.”  Furthermore, Nietzsche follows Hobbes’ thinking that the root cause driving mankind to establish such ties is the desire for preservation, “Justice naturally derives from prudent concern with self-preservation.”  However, despite agreeing with Hobbes’ position on the natural origin of justice, Nietzsche differs sharply from the English philosopher in his analysis on man’s comprehension of justice.

Whereas Hobbes deems man as a rational animal, and his desire to forge a community, and maintain it justly, as the natural extension of his intellectual fortitude, Nietzsche has no such respect for human intellect.  He states, “In accordance with their intellectual habits, men have forgotten the original purpose of the so-called just, fair actions, and for millennia children have been taught to admire and emulate such actions.”  But if the origin of justice resides within man’s natural instinct for self-preservation, then–according to Nietzsche–it is by definition that just actions are egotistic.  Yet, mankind has forgotten this.  Instead, what one sees is the propagation of the idea that just actions are the result of selfless impulses, causing this false sentiment to be heralded in ever higher esteem as it gets passed on through the generations.  As this false notion of justice becomes more ingrained, individuals add value to this baseless sentiment, causing the morals of society to be founded on a flimsy structure of self-delusions, causing Nietzsche to declare: “How little the world would look moral without forgetfulness!”

The problem with what Nietzsche states here is the dubious premise he starts out with when he declares, “Justice (fairness) originates among those who are approximately equally powerful.”  However, it can reasonably be argued that, rather that originating amongst equals, the concept of justice traces its origin to the very presence of power inequality.  In an aristocratic system, justice is meant to preserve the hierarchical order by keeping the non-aristocratic masses content enough to not rebel.  In a democratic system, justice is meant to uphold the universal application of the nation’s laws, without regard to one’s individual power or influence (remember we’re speaking ideally here, not in practice).  In either case, justice did not originate among the equally powerful out of a fear of mutual destruction, but out of the sentiment that if a society is to function on all levels, some institutional gestures must be made to protect individuals from the influence of power disparity (even if such gestures are only superficially enforced).

Nietzsche’s point about justice being an extension of man’s egotistic instinct for self-preservation is still viable within this setting, however the strength of his assertion concerning the character of justice being a character of trade becomes problematic, since in the two examples above justice is not a mutual trade amongst equals but a bridging amongst societal antipodes.  It is true that justice can be an understanding between those of equal power, however the premise that this is the origin of justice, as opposed to being merely a derivative (or subset) of a broader notion of justice, is a matter that needs to be demonstrate, rather than simply granted as a given.

Truly, Nietzsche’s greatest blunder here is that he abandoned one of his own core principles; he attempted to give an absolutist answer to an issue that is largely provisional.  All-too-human, indeed.


Nietzsche, Friedrich. Human, All-Too-Human. Section 92, “Origin of Justice.”

All quotes used are taken from Walter Kaufmann’s The Basic Writings of Nietzsche (2000 reprint, 1967 original), pages 148-149.

Crimes of the Father, or How We View Justice and Guilt

Sometimes I like to ponder on a thought experiment, which supposes that in March of 1945, Eva Braun gave birth to Adolf Hitler’s only child, who survived the war.  And not only did he survive the war, but everyone knows about him, knows about his parentage, and his location is neither secret, nor protected.  Everything else remained the same as we currently know it now.  Hitler and Braun still shoot themselves in April 1945, Germany still surrenders a week later, the Nuremberg trials proceed as they did.  Every single detail about World War II, and its aftermath, remains the same in this hypothetical timeline as it did in our real history–except for the fact that Hitler’s legacy now includes this baby boy.  So, my question is, how justly do you think people would treat this hypothetical child, in light of his father’s atrocious crimes against humanity?  Remember, he was only two months old when the war ended in Europe, had no hand in any of the decisions carried out by his despot parent, on account that he was too young to even be fully aware of his parent’s existence.  The obvious response I imagine people would give is that they would not blame the innocent boy for the crimes his father had committed, and treat him with the same unbiased opinion as they would any other child.  But this is an easy position for us to claim in a hypothetical scenario, because we are calm and capable of approaching the issue without any emotional consideration.  If the posed questioned was not merely a thought experiment, I think the response would be much different.

You’ve suffered at the hands of the Third Reich; watched your loved ones die around you in agonizing pain; been beaten, starved, left without a home or hope; all due to the actions of that one man who had evaded punishment by taking his own life before anyone else could take it from him.  But here was his son, all that remains of the criminal’s flesh and blood, lying healthy, yet as helplessly as you did at the mercy of his father’s once menacing might.  Now, I ask again, what would your real feelings be towards this child?  Can you honestly say that you would have no resentment or prejudice against him, solely on account of his father’s heinous actions?  And, perhaps, you still insist that your answer remains the same as before, which is fair enough, as I’m in no position to dictate what your personal feelings would be in any given scenario.  But let me ask you another question then: do you believe that the rest of society would be as fair minded as you in dealing with this child?  Or, do you think that it is much more likely that our communal need for justice will quickly develop into a call for vengeance against this spawn of pure evil?

Maybe not at first–our better conscience might win out and prevent us from killing him in infancy–but what about as he grows older?  Would even the most trivial of offenses by the adolescent boy be used as a warrant to denounce him to be as wicked as his father?  Will we associate ever moment of anger and frustration to some inevitable predisposition?  And, if he did become just as bad as his old man, how much of it would we immediately attribute to his genetic relations, without even considering the role our preemptive scrutiny of his character had in shaping his ominous personality?  (Fostering self-fulfilling prophecies is a hallmark of our species, after all.)

I think the way a person responds to this thought experiment says a lot about one’s views of humanity, and its capacity to carry out fair justice, free of biases and prejudices.  I’ve written in the past about my opinions on the failings of our Justice System, how too often we seek vengeance on criminals, than rehabilitation; how we’d prefer to punish a scapegoat, than have no perpetrator to punish at all.  Thus, personally, I think the kid would be dead before he reaches 18 (either through homicide from a vengeful lurker, or suicide brought on through a lifetime of guilt by association for even the most minor of trespasses he might commit in life).  Whether that makes me realistic or pessimistic is anyone’s guess.

Thomas Hobbes’ Leviathan: Justice, and the Social Contract

Frontispiece of The Leviathan by Thomas Hobbes Drawing by Abraham Bosse

Thomas Hobbes’ Leviathan is arguably one the most influential works of political philosophy since Plato’s Republic.  In the book, Hobbes sets out to demonstrate how, and why, man has come to create social and political structures, in concurrence with other men, and thereby buildup the pillars of civilization and modes of governance.

Hobbes’ central premise is that, absent of social structures, humans occupy a realm called the state of nature.  Such a state is a lawless, cruel, savage plain of existence, in which the primary instinct of all living creatures (including man) is solely to survive.  However, man—being a rational animal—realizes that the greatest method to satisfy the survival instinct is to try to avoid the brutal pangs of the state of nature altogether, and the only natural means by which he can do so is by seeking security and protection in greater numbers; since the strength of a group will always be immensely more powerful than the strength of the individual.  Furthermore, to ensure stability and efficiency of such a system, the members of the forged society must agree to a certain set of covenants–the social contract that is to be followed by all individuals within the group–that are to be followed by all persons who wish to remain within the protection of the greater community, or risk being exiled back into the savagery of the state of nature.

A reasonable challenge to Hobbes’ program is to inquire about the exact means by which a society (or, commonwealth, as he calls it) is to enforce the covenants of the community; namely, how justice is to be established and ensured.  Hobbes, himself, acknowledges the importance, “that man perform their covenants made:  without which covenants are in vain, and but empty words.”[1]  For Hobbes, the issue of justice is rather simple, if there exists no covenant between individuals, then, “no right has been transferred, and every man has right to every thing [i.e. the state of nature]; and consequently no action can be unjust.”[2]  On the other hand, “when a covenant is made, then to break it is unjust:  and the definition of INJUSTICE, is no other than the not performance of covenant.”[3]  The agreed upon social contract is the foundation upon which Hobbes rests his political theory.  In absents of such covenants, lawlessness reigns supreme, and justice is an incoherent premise.  But, once covenants are made among individuals, and a commonwealth is formed, the perimeters of what is to be just, and what is to be unjust, are established, and a failure to follow the decree of the covenant, renders one’s actions unjust by definition.  However, that also leaves open the question of how, exactly, the consequences of the individual’s actions are to be determined by the commonwealth.  Hobbes’s answer is unapologetically authoritarian:

Therefore before the names of just, and unjust can have place, there must be some coercive power, to compel men equally to the performance of their covenants, by the terror of some punishment, greater than the benefit they expect by the breach of their consent.[4]

A proprietor is needed to maintain the covenant, without which justice cannot exist in a commonwealth.  As far as Hobbes is concerned, all these components are dependent entities, and inseparable of the existence of a functioning commonwealth (i.e. a society).  For, it is by agreement of their covenants (the entering into the social contract) that the individuals grant the establishment of the commonwealth, and from there, also consents to the power of a proprietor, to employ social cohesion on the members of the community and give legitimacy to the rules of the covenant.  “So that the nature of justice, consisteth in keeping of valid covenants:  but the validity of covenants begins not but with the constitution of a civil power, sufficient to compel men to keep them:  and then it is also that propriety begins.”[5]  Thus, the establishment of a powerful sovereign, of a centralized governing body, is the natural extension of social covenants, and communal living in general.

Although Hobbes’ reasoning is not difficult to follow, one more issue still remains: what about those who reject the seriousness of the covenants?  Is it not imaginable that certain individuals, acting in their self-interest, will enter and break covenants as the mood strikes them; undermining the basis of justice?  And if enough individuals in the commonwealth follow this example, will not the entire social structure become flimsy, and the administration of justice become unmanageable for the proprietor (i.e. the sovereign) to perform?  Hobbes has a harsh reply to this mode of questioning, “The fool hath said in his heart, there is no such thing as justice.”[6]  For those who do not take the covenants of the commonwealth seriously, Hobbes does not take seriously.  He argues that such individuals—the fools—have no difficulty seeing the benefit of covenants when it serves their immediate interest, but only refuse to oblige by them when it seems that the rules will refuse them a particular instance of gratification.  Yet, it is by this very admission of the need for covenants to give legitimacy to issues of justice, “He [the fool] does not therein deny, that there be covenants; and that such breach of them may be called injustice, and the observation of the justice.”[7]

Seeing as how Hobbes maintains that absent covenants, men stand alone in the realm of nature, where just and unjust do not exist, the conclusion he derives for those who break covenants is that they forfeit any reference to justice itself.  Therefore, this individual, who steps out of the covenant has lost the protection of the commonwealth, which is still governed by the merits of the social contract they have agreed to uphold, “therefore he which declares he thinks it reason to deceive those that help him, can in reason expect no other means of safety, then what can be had from his own single power.”[8]  And, since no man can truly know the depth of the dangers that may lie ahead of his solitary existence, Hobbes would ask the fool, is it not more reasonable to follow the decrees of the covenant in favor of momentary self-interest, because the greater strength and security of the commonwealth in comparison to the individual is guaranteed to offer a higher rate of survivability for all its subjects?  Because, given the savagery of the state of nature, the fool, “if he be left, or cast out of society, he perisheth.”[9]

Having settled the issue of how to define justice, Hobbes turns to the question of morality.  Namely, even if the stipulations of the covenants a commonwealth is governed under are legitimately just, how does one determine whether they are moral?  Hobbes approaches the matter by first defining what is meant by moral, “moral philosophy is nothing else but the science of what is good, and evil, in the conversation, and society of mankind.  Good, and evil, are names that signify our appetites, and aversions.”[10]  In other words, morality does not exist independent of human desires and inclinations.  In this sense, Hobbes is rejecting the notion of an absolute morality as unfounded in human nature.  Whatever public consciousness might persuade man to think of his morals, the historic reality shows that convergences on moral issues are not self-evident across customs, or across times, “Nay, the same man, in divers times, differs from himself; and one time praiseth, that is, calleth good, what another time he dispraiseth, and calleth evil.”[11]  Hobbes argues that since one individual’s opinion on what is moral rests equally against another individual’s opinion of what is moral, the state of nature, being devoid of justice (as argued above), will never allow for a peace on the matter, hence war will be the natural consequence.  However, man does not want war, as it runs counter to his instinct for security and preservation; thus, man can agree that the opposite of war, peace (even if not absolute), is objectively good; as are the means of achieving peace.[12]  To Hobbes, performing covenants is the best means to escape the state of nature, the consequence of war, and establish a coherent concept of justice.  Therefore, the question of what is to be deemed moral, is inherently correlated with what is considered just: obliging to the covenants of one’s commonwealth is the greatest good that can be done for oneself, hence (granting Hobbes’ premises) it is morally sound.

[1] Hobbes, Thomas. Leviathan. Ch. 15, “Of the Laws of Nature,” Touchstone (New York: 1997), p.113.

[2] Hobbes, p. 113.

[3] Hobbes, p. 113.

[4] Hobbes, p. 113.

[5] Hobbes, p. 114.

[6] Hobbes, p. 114.

[7] Hobbes, p. 114.

[8] Hobbes, p. 115.

[9] Hobbes, p. 115.

[10] Hobbes, p. 123.

[11] Hobbes, p. 123.

[12]Hobbes, p. 124.

Why I Oppose the Death Penalty

For lack of a better term, I have to make due in labeling myself as apolitical, meaning that while I hold certain opinions on social matters that occasionally align me within one political camp or another, I never intentionally seek to follow any one party’s ideological narrative, or support someone simply because they belong to party X, instead of party Y (in fact, if you were to list all of my socioeconomic opinions, you’d probably see me swaying from one end of the political spectrum to the other, across varying topics).

When it comes to the death penalty, I’d always been of the opinion that it is something to be opposed, and that those who side with me on this issue are doing a piss poor job arguing against it.  To give a little background, I live in a conservative, right-wing, 2nd Amendment loving state of the southern United States (i.e. Texas), where the death penalty is heralded as the only effective means to combat crime.  Pointing out that many of the urban counties in Texas hold the ranks of housing some of the highest crime rates in the country, despite also having one of the highest execution rates in the nation, is a non-starter with people here, since they can (rightly) maintain that correlation does not imply causation.

I would also freely admit that even if it can be conclusively proven that the death penalty does not deter crime (and I have no reason to suspect that this is not the case) I would refuse to use this as a valid point when debating the issue.  Why?  Because, for the sake of complete honesty, I know that if the evidence went the other way (that executions were deterring crime), my position would still be to oppose the death penalty on principle (I’ll explain further in a moment what I mean by this).  For death penalty opponents to rest their case on this line of reasoning is a blatant surrender of any ethical high-ground, since their counterparts can easily corner them into accepting that if a utilitarian defense of the death penalty could be hypothetically presented, they’d be forced to change their position.  Arguing on such terms is a fruitless waste of time and energy.

The second mode of arguing that my fellow death penalty opponents try to resort to is to point out the number of cases in which innocent lives were put to death before their innocence could be proven.  This, too, is a bad form of arguing in my eyes, as death penalty proponents can again corner their opposition by turning this into an appeal to have more effective methods of ensuring that the guilty party is the one that is held accountable.  Once again, the death penalty opponent seems to be arguing against the screening process, not the practice.  (The argument that minorities are more likely to be executed than whites in America would also fall into this line, as it claims that the death penalty is merely biased, but not wrong, and rather than being abolished needs to be made more egalitarian).

Arguing that the death penalty is state sanctioned murder is equally pointless, since proponents of the practice will rightly mention that the same can be said of war casualties, smugly aware that for one to admit to being against war and military is to commit one of the greatest of blasphemies in eyes of the American public (discrediting your position on the spot).  And I have met few death penalty opponents around here willing to own up to being pacifists.

By far, the worst logic I’ve ever heard is the statement, “I oppose the death penalty, because I’m a liberal.”  This is the worst to me, because I don’t see what place politics has in this discussion (and, yes, I would consider the statement, “I support/oppose the death penalty because I’m a conservative/libertarian/green/monarchist” to be just as stupid).  To hold a position due to it alining with your greater political ideology always makes me think that you haven’t thought about why the death penalty is wrong; you just accept that it is so because that’s what you think a good liberal should think.  As someone who is apolitical, I cannot support such lackluster logic, as it implies that your opposition to the practice will possibly wane throughout your life as your political allegiance changes.  Furthermore, I honestly see no reason why right-wingers and left-wingers could not agree on this issue, other than that both sides are more concerned with opposing one another, instead of actually contemplating on why they oppose/support the death penalty.

Having gone through all of that, let me now state why I, personally, oppose the death penalty.  It can essentially be reduced to one fundamental point: I reject the notion that a human sacrifices is a valid or ethical stance, when it comes to administering justice.  It has nothing to do with politics, or even philosophy, but everything with my opposition to the idea that societal vengeance has any place in the judicial process.  I don’t need any utilitarian, or theological, or Socratic, or syllogistic argument to justify this position.  And I dare those who disagree with me to say that they, in fact, do consider a human sacrifice to be a valid and ethical form of administering justice.  Maybe they’ll disagree with that characterization, but that is not my concern.  You are claiming that a person has committed a crime so heinous, that he must atone for it with his life, in order to redeem your trust in the justice process; this is a call for a blood offering to give you peace of mind.  A passive admission that when it comes to justice, you are primarily concerned with satisfying your own thirst for punishment, not rehabilitation of the citizenry.  An admission that you do not trust in the judicial process, and even reject its effectiveness altogether, if it does not work to satisfy your need for vengeance against those who step outside the law.

Before anyone tries the ever-so emotional tirade of, “you wouldn’t be saying that if someone you cared for had been murdered.  You’d be screaming for blood then, too.”  To this line of reasoning I must respectfully say, do not presume to know who I am, or what I have experienced; let alone how I respond to personal tragedies.  And if we are to go down the realm of appealing to personal experiences, allow me to ask bluntly in return: what peace would it give me to see the person killed as a punishment for the loss of someone I cared for?–None!  Is it going to bring the person back to life?–No!  Nothing changes, the person I loved is still dead.  The only ones satisfied in this scenario are those who advocate the modern equivalent of a blood offering, and they do so only to ease their anxious minds, not mine.  If that is your position, go ahead and hold to it, but do not even for a second pretend that it is ethically superior to my own.  What you want is a justice system focused on revenge and fear of retaliation, what I want is a society built on empathy and introspective enough to reevaluate its mores for the sake of all its citizenry (the good and the bad).

Justice vs. Vengeance

People hate criminals, and I don’t mean that in a broad idealistic sense.  I mean that, in real life, people genuinely despise criminals.  I had to qualify the last sentence with in real life, as I’m well aware how much we love to cheer on the bad guys in movies, but whenever there is an actual trial going on, we still tend to side against the guy/gal being prosecuted; often for good reasons.  We simply can’t help but voice our desire to see justice against the perpetrator/s, so that we as a society can be assured about the efficiency of our judiciary system is keeping us safe.  (When I say “we,” I am not trying to be rhetorical or play up some kind of subtle “ignorance of the masses” shtick,  since I have no hesitations about including myself in the aforementioned group of people.)

In the western world, prisons are meant to be institutions of punishment and rehabilitation; a place where those who step outside the law can be safely secluded from the general population, making sure they don’t cause any further harm to the public, and a place where the dangerous behavior of criminals can be corrected so that they can reenter public life as law abiding citizens (it must also be kept in mind that much of this is dependent on the nature and circumstances of the crime one was prosecuted for).  However, I have to admit, that when I hear that a criminal has received a sentence for a crime, I’m not concerned about any of the above; what I care about is satisfying my own indirect sense of vengeance against the offender–and from what I can gather, the prison system (at least in the U.S., but I suspect other places too) is regulated in such a way as to feed this thirst for punishment I (and much of the public) have towards those who fail to follow the strict laws we choose to abide by on a daily basis.

Friedrich  Nietzsche once wrote on judicial punishment that “It does not cleanse the criminal, it is no atonement; on the contrary, it pollutes worse than the crime does” (Nietzsche, The Dawn, section 236).  It is no secret that convicts often leave prison with a better understanding of criminal networks than they had on entering it.  We know this, and we largely don’t care.  We seem to be satisfied enough with the initial sense of indignation we experienced at removing the felon from public eye, hence any further commitment that might be required of us to reintegrate the person back into the greater sphere of society is lost on us.  The desire for rehabilitation has been all but removed from the correctional program, because what we truly care about is revenge on those who have dared to put us–and our communities–in harms way, not their eventual return to our fold; in fact, as far as we’re concerned, they are social lepers.

We deride any notion of being soft on criminal offenders, because our judicial process must send a clear message to others who might be inclined to commit a felony.  After all, the argument goes, what’s to discourage potential criminals unless they understand the great misery that will befall on them if they decide to step outside the law.  But I see a major fault in reasoning here.  It is true that many of us are discouraged from committing crimes because we fear the consequences that might result from our illegal actions; however, it is also true that many of the very people who do commit crimes are just as informed of the possible repercussions as the rest of us who don’t.  Granted, most (if not all) of them don’t expect to get caught, thus it can be argued that the real threat of punishment becomes important only as a result of backward-looking reasoning.  But the same could also be said for the rest of us, who don’t dare to step out of the arm of the law.

For those of us who live in metropolitan areas, the jail cells are largely occupied by individuals who are repeat offenders, completely aware of the grim reality that awaits convicted criminals.  A natural response we might have to this is to conclude that the judiciary is not harsh enough; which, while understandable, ignores the fact that in the U.S., states that still implement the death penalty (the harshest consequence that can be administered to convicted criminals), do not average out a lower crime rate than states that have done away with corporeal punishment.  Therefore, it is disingenuous to conclude a correlation between the severity of judicial punishment and criminal deterrence (this, of course, applies mainly to the judicial system of democratic countries, because the nature of the system still offers some level of protection from judiciary abuse).

To be perfectly honest, every argument I can come up with as to why I feel this instinctive need for vengeance against criminals can be safely attributed to post hoc reasoning on my part.  For years I thought the source of this fallacy to be the result of a misguided superiority complex, by which I subconsciously placed my social worth above that of the lowly convicts.  But, upon further reflection, I’m becoming convinced that the opposite might be true; I want vengeance against the criminal because he has made been feel inferior.  He has made me feel restrained by the system, which he has so casually ignored; for this I want his ill-earned freedom stripped from him.  Consciously, I’m calling for the criminal to be taught the virtue of being humane, yet, subconsciously, I want the criminal to be dehumanized to reassure me about the safety of the rest of human society.  Thus, without even wanting to, I’m making the entire notion of justice a measly vendetta to satisfy my own trivial personal impulses.

Perhaps, I’m being overly melodramatic, and reading to deep into things, thereby creating problems that don’t exists outside my vibrant imagination; I’m fully open to this possibility.  But if I’m even partly right about our tendency to place more importance on our need for vengeance, rather than fair and unbiased justice, is it proper of us to simply rationalize it away as irrelevant–instead of at least acknowledging it head on?