justice

The passion to punish

But thus I counsel you, my friends: Mistrust all in whom the impulse to punish is powerful. They are people of a low sort and stock; the hangman and the bloodhound look out of their faces. Mistrust all who talk much of their justice! Verily, their souls lack more than honey. And when they call themselves the good and the just, do not forget that they would be pharisees, if only they had — power.

Friedrich Nietzsche, Thus Spoke Zarathustra, Part 2, “On the Tarantulas”

Primary Source: Selections from the Twelve Tables (ca. 450 BC) (Introduction to Western Civilization 4.4)

The earliest attempt by the Romans to create a code of law was the Laws of the Twelve Tables. A commission of ten men was appointed in about 455 BC to draw up a code of law binding on both patricians and plebeians. It would be the job of the consuls to enforce this law. The commission produced enough laws to fill ten bronze tablets. The plebeians were not satisfied, so a second commission of ten men was appointed in 450 B.C. and two additional tablets were added. Below are some selections from the Twelve Tables.

TABLE IV

1. Monstrous or deformed offspring may be put to death by the father.

2. The father shall, during his whole life, have absolute power over his children. He may imprison his son, or scourge him, or keep him working in the fields in fetters, or put him to death, even if the son held the highest offices of state.

TABLE V

2. The provisions of the will of a paterfamilias [head of the household] concerning his property and the support of his family, shall have the force of law.

TABLE VII

7. Holders of property along a road shall maintain the road to keep it passable; but if it be passable, anyone may drive his beast or cart across the land wherever hechooses.

TABLE VIII

1. Whoever publishes a libel shall be beaten to death with clubs.

12. A person committing burglary in the night may be lawfully killed.

13. A thief in the daytime may not be killed unless he carried a weapon.

23. Perjurers and false witnesses shall be hurled from the Tarpeian Rock.

26. Seditious gatherings in the city during the night are forbidden.

 

Review Questions

 1. What kind of power does a father have over his son?

2. What is the responsibility of someone who owns property along a road?

Primary Source: Selection from the Code of Hammurabi (1772 BC) (Introduction to Western Civilization 2.2)

21. If anyone breaks a hole into a house to steal from it, he shall be put to death before that hole and be buried.

22. If anyone is committing a robbery and is caught, then he shall be put to death.

195. If a son hits his father, his hands shall be cut off.

196. If a man puts out the eye of another man, his eye shall be put out.

197. If he breaks another man’s bone, his bone shall be broken.

198. If he puts out the eye of a freed man, or break the bone of a freed man, he shall pay one gold mina.

199. If he puts out the eye of a man’s slave, or break the bone of a man’s slave, he shall pay one-half of its value.

200. If a man knocks out the teeth of his equal, his teeth shall be knocked out.

201. If he knocks out the teeth of a freed man, he shall pay one-third of a gold mina.

202. If any one hits the body of a man higher in rank than he, he shall receive sixty blows with an ox-whip in public.

203. If a free-born man hits the body of another free-born man of equal rank, he shall pay one gold mina.

204. If a freed man hits the body of another freed man, he shall pay ten shekels in money.

205. If the slave of a freed man hits the body of a freed man, his ear shall be cut off.

206. If during a quarrel one man hits another and wounds him, then he shall swear, “I did not injure him on purpose,” and pay the physicians.

207. If the man dies of his wound, he shall swear similarly, and if he was a free-born man, he shall pay half a mina in money.

208. If he was a freed man, he shall pay one-third of a mina.

209. If a man hits a free-born woman so that she loses her unborn child, he shall pay ten shekels for her loss.

210. If the woman dies, his daughter shall be put to death.

211. If a woman of the free class loses her child by being hit, he shall pay five shekels in money.

212. If this woman dies, he shall pay half a mina.

213. If he hits the maid-servant of a man, and she loses her child, he shall pay two shekels in money.

214. If this maid-servant dies, he shall pay one-third of a mina.

229 If a builder build a house for someone, and does not construct it properly, and the house which he built falls in and kills its owner, then that builder shall be put to death.

230. If it kills the son of the owner the son of that builder shall be put to death.

231. If it kills a slave of the owner, then he shall pay slave for slave to the owner of the house.

232. If it ruins the things inside, he shall make compensation for all that has been ruined, and inasmuch as he did not construct properly this house which he built and it fell, he shall rebuild the house from his own means.

 

Review Questions

1. What is the punishment if a man knocks out another man’s eye?

2. What is the punishment for a builder who builds a house that falls down and kills the owner?

3. Do you think the laws of the Code of Hammurabi are fair or unfair? Answer in a paragraph.

Protestantism and the decline of grace

The assumption now is that “gift requires a contrast” because it is implicitly assumed that for a gift to be received, the recipient must stand on an autonomous basis that does not depend upon any generosity — thus in the instance of the Creation, univocal self-standing of finite being permits a possessive appropriation of the initial gift of creation, when then allows the human creature to receive grace as a gift which she does not really need according to nature. Not accidentally, the assumed model here is of the property owner as the one who can alone receive gifts, because he already has all that he needs. The landless pauper, by contrast, can only receive “charity,” now reduced to modern “benevolence,” which is but the pseudo-gift of the guilty trying to render a belated justice in meager form under the guise of a dutiful generosity. Applied theologically, this gives us the notion that all human creatures are replete as regards nature, yet like indigent paupers as regards grace — since while the divine gift is “not needed” by nature, it is needed according to an inscrutable supernatural justice. Divine charity is now therefore reduced to something which “justifies,” in an extrinsic, imputed sense (whether we are talking about the Reformation or much of the Counter-Reformation), in such a way as to present God as being at once a benefactor to which we are beholden and yet also a landlord who must grudgingly “render justice” to the evicted.

John Milbank, “The Double Glory, or Paradox versus Dialectics: On Not Quite Agreeing with Slavoj Žižek,” in The Monstrosity of Christ: Paradox or Dialectic?, pp. 167-8

The prison cannot fail to produce delinquents

The prison cannot fail to produce delinquents. It does so by the very type of existence that it imposes on its inmates: whether they are isolated in cells or whether they are given useless work, for which they will find no employment, it is, in any case, not ‘to think of man in society; it is to create an unnatural, useless and dangerous existence’; the prison should educate its inmates, but can a system of education addressed to man reasonably have as its object to act against the wishes of nature? The prison also produces delinquents by imposing violent constraints on its inmates; it is supposed to apply the law, and to teach respect for it; but all its functioning operates in the form of an abuse of power. The arbitrary power of administration: ‘The feeling of injustice that a prisoner has is one of the causes that may make his character untamable. When he sees himself exposed in this way to suffering, which the law has neither ordered nor envisaged, he becomes habitually angry against everything around him; he sees every agent of authority as an executioner; he no longer thinks that he was guilty; he accuses justice itself’ (Bigot Préameneu). Corruption, fear and the inefficiency of the warders: ‘Between 1,000 and 1,500 convicts live under the surveillance of between thirty and forty supervisors, who can preserve some kind of security only by depending on informers, that is to say, on the corruption that they carefully sow themselves. Who are these warders? Retired soldiers, men uninstructed in their task, making a trade of guarding malefactors’ (La Fraternité, March 1842). Exploitation by penal labour, which can in these conditions have no educational character: ‘One inveighs against the slave-trade. But are not our prisoners sold, like the slaves, by entrepreneurs and bought by manufacturers. … Is this how we teach our prisoners honesty? Are they not still more demoralized by these examples of abominable exploitation?’

Michel Foucault, Discipline and Punish: The Birth of the Prison, pp. 266-67