6 - Nietzsche and punishment without remorse

Summary

Kant does not consider that the aim of punishment is to arouse bad conscience, and thus the criminal's remorse as well. If punishment were to be imposed in the service of such an aim, it would not occur – as Kant requires – merely because the criminal broke the law, but instead in order that a certain situation might come about. Since the arousing of bad conscience or remorse seems to be a minimalistic aim, which has moreover a clear reference to the criminal's dignity, some interpreters of Kant develop a conception of retributive punishment directed toward this aim. If one proceeds under the assumption that retributive punishment especially respects the criminal's human dignity and that it can generate – as Hegel points out (see Section 5.5) – even in the simplest mind a connection between crime and punishment, then one can expect the criminal's remorse from retributive punishment.

It is Nietzsche who best shows us that such a justification is not self-evident but instead very problematic. Nietzsche's “polemic” writing On the genealogy of morality (1887) opposes such a moralizing conception of retaliation and of punishment. From Nietzsche's perspective, retaliation does not stem from concern for human dignity in the criminal's person but instead in the victim's and other human beings' active Schadenfreude. Also, the expiation of punishment cannot possibly be an inducement to moral conversion, but rather strengthens the criminal's felonious will. It is punishment that is directed toward deterrence which proves to be the more humane option of penal law.