Butler, Judith. “On Cruelty.” Rev. of The Death Penalty: Vol. I, by Jacques Derrida, translated by Peggy Kamuf. London Review of Books 36.14 (2014): 31-33. 9 July 2014
‘Whence comes this bizarre, bizarre idea,’ Jacques Derrida asks, reading Nietzsche on debt in On the Genealogy of Morals, ‘this ancient, archaic idea, this so very deeply rooted, perhaps indestructible idea, of a possible equivalence between injury and pain?Whence comes this strange hypothesis or presumption of an equivalence between two such incommensurable things? What can a wrong and a suffering have in common?’
What can a wrong and a suffering have in common?’ By way of an answer, he points out that ‘the origin of the legal subject, and notably of penal law, is commercial law; it is the law of commerce, debt, the market, the exchange between things, bodies and monetary signs, with their general equivalent and their surplus value, their interest.’
Nietzsche asks how debt and restitution became the primary framework for conceptualising criminality and punishment.
Tracking the persistence of Roman law in 19th-century German jurisprudence, he argues that any injury is conceptualised as a debt, and every punishment understood as a payment. Hence the field of suffering is pervasively economised, and the contract becomes the salient model for human exchange. According to Nietzsche, all manner of injury is now modelled on the creditor-debtor relation.
When Kant justifies the death penalty on the basis of the categorical imperative, he demonstrates the Nietzschean point that cruelty can be, and is, masked as morality, and that the pleasure in inflicting cruelty can be, and is, rationalised as moral duty. Presaging Lacan’s ‘Kant avec Sade’, Nietzsche seeks to expose the joyous cruelty of Kant’s morality
But Nietzsche also writes something more, namely that commercial contracts model the social contract, which requires that humans undergo an internalisation of their aggressive drives. What is internalised or, indeed, repressed by entering into the social contract is ‘hostility, cruelty, joy in persecuting, in attacking, in change, in destruction’.
This internalisation can operate as sublimation, giving rise to the soul, the entire inner world, bad conscience and guilt – everything that makes man interesting. The development of this capacity comes at a very high price, what some would call neurosis, and what Nietzsche describes as that ‘serious illness that man was bound to contract under the stress of the most fundamental change he ever experienced – that change which occurred when he found himself finally enclosed within the walls of society and of peace’.
The social contract, which requires the subject to forfeit the option of acting aggressively and destructively, produces a psychic formation in which the subject pummels her or himself and thereby risks becoming her or his own executioner.
Can those who oppose the death penalty escape cruelty? Nietzsche intimates that cruelty may well be primary.
It can be repressed, which is a way of turning cruelty on oneself, or directed towards others in some moralised version, for example by preferring imprisonment to the death penalty (protracted cruelty, that is, over immediate death).
The prohibition on aggressive action is an aggressive attack on aggression which paradoxically preserves, or redoubles, aggression even as it seeks its eradication. No one can finally do away with it. ‘The figure of abolition,’ Derrida writes, ‘is that of a death of the death penalty.’