|
Second EssayGuilt, Bad Conscience and Related Matters10
As it acquires more power, a community considers the crimes of a single individual less serious, because they no longer make him as dangerous and unsettling for the existence of the community as much as they did before. The wrong doer is no longer "left without peace" and thrown out, and the common anger can no longer vent itself on him without restraint to the same extent it did before. It is rather the case that the wrong doer from now on is carefully protected by the community against this anger, particular from that of the injured person, and is taken into protective custody. The compromise with the anger of those most immediately affected by the wrong doing, and thus the effort to localize the case and to avert a wider or even a general participation and unrest, attempts to find equivalents and to settle the whole business (the compositio), above all the desire, appearing with ever-increasing clarity, to consider every crime as, in some sense or other, capable of being paid off, and thus, at least to some extent, to separate the criminal and his crime from each other - those are the characteristics stamped more and more clearly on the further development of criminal law.
If the power and the self-confidence of a community keeps growing, the criminal law grows constantly milder. Every weakening and profound jeopardizing of the community brings the harsher forms of criminal law to light once more. The "creditor" always became proportionally more human as he became richer. Finally the amount of his wealth itself establishes how much damage he can sustain without suffering from it. It would not be impossible to imagine a society with a consciousness of its own power which allowed itself the most privileged luxury which it can have - letting its criminals go free without punishment. "Why should I really bother about my parasites," it would then say. "May they live and prosper - for that I am still sufficiently strong!" . . . Justice, which started by stating "Everything is capable of being paid for, everything must be paid off" ends at that point, by covering its eyes and letting the person incapable of payment go free - it ends, as every good thing on earth ends, by doing away with itself. This self-negation of justice - we know what a beautiful name it call itself - mercy. It goes without saying that mercy remains the privilege of the most powerful man, or even better, his movement beyond the law.
|
