An interesting article from the London Review of Books examining capital punishment as an outgrowth of commercialism , and an unintended warning about building intellectual structures on the thought of Nietzsche.

An excerpt.

‘Whence comes this bizarre, bizarre idea,’ Jacques Derrida asks, reading Nietzsche on debt in On the Genealogy of Morals, ‘this ancient, archaic (uralte) idea, this so very deeply rooted, perhaps indestructible idea, of a possible equivalence between injury and pain (Schaden und Schmerz)? 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?’ 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.’

In the first volume of The Death Penalty, Derrida considers the jus talionis, the principle of equivalence according to which a relation is set up ‘between the crime and the punishment, between the injury and the price to be paid’. Debt, in On the Genealogy of Morals, gives Nietzsche a way of understanding how ‘the “consciousness of guilt”, “bad conscience”’ came into the world. Earlier he laments ‘that whole sombre thing called reflection’, in which the self becomes its own object of relentless scrutiny and self-punishment. If one wants to keep a promise, one must burn memory into the will, submit to – or submit oneself to – a reign of terror in the name of morality, administer pain to oneself in order to ensure one’s continuity and calculability through time. If I am to be moral and keep my promises, I will remember what I promised and remain the same ‘I’ who first uttered that promise, resisting any circumstances that might alter its continuity through time, never dozing when wakefulness is needed. The promise takes on another meaning in Nietzsche when what I have promised is precisely to repay a debt, a promise by which I enter into, and become bound by, a certain kind of contract. What I have apparently burned into the will, or had burned there, is a promise to remember and repay that debt, to realise the promise within a calculable period of time, and so to become a calculable creature. I can be counted on to count the time and count up the money to make the repayment: that accountability is the promise. I can count on myself, and others can count on me. If I prove capable of making a contract, I can receive a loan and be relied on to pay it back with interest, so that the lender can accumulate wealth from my debt in a predictable way. And if I default, the law will intervene to protect his interest in the interest he exacts from me.

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. As injury comes to be conceived as payment in default, the psyche develops a penitentiary logic. The psychic form that payment takes is guilt, understood as a kind of perpetual payment, the debt never finally discharged. Punishment thus becomes a form of subjectivation: in punishing the criminal for having inflicted an injury/incurred a debt, a subject is formed who punishes her or himself for having failed to be calculable. And if she or he had proven to be calculable, would no injury have occurred? Not quite, for the only way to become a promising and calculable animal, according to Nietzsche, is precisely by inflicting injury on oneself, burning a memory into the will such that the memory burns time and again, every time the promise is broken and all the time until the promise is fulfilled.

Guilt becomes the psychic modality of the debtor who can neither quit nor fulfil the contract. What, then, is the psychic modality of the creditor? Nietzsche remarks on those Roman laws that allowed for debtors to be dismembered by their creditors or their legal proxies. Derrida continues the thought:

The creditor is granted a psychic reimbursement … Instead of a thing, instead of something or someone, he will be given some pleasure, some enjoyment [jouissance], a feeling of well-being or greater well-being (Wohlgefuehl), he will be given a pleasure that consists in the voluptuous pleasure of causing the other to suffer … ‘faire le mal pour le plaisir de le faire,’ that is, of doing harm for the pleasure of it … In place of some equivalent, something or someone, one grants in return, as payment, the pleasure of doing violence (Genuss in der Vergewaltigung).

Retrieved July 22, 2014 from http://www.lrb.co.uk/v36/n14/judith-butler/on-cruelty