Mercy, Reprised!?

PORTIA: Do you confess the bond (of marriage or social contract?)?

ANTONIO: I do.

PORTIA: Then must the Jew be merciful.

SHYLOCK: On what compulsion must I? tell me that.

PORTIA: The quality of mercy is not strain'd,
It droppeth as the gentle rain from heaven
Upon the place beneath: it is twice blest;
It blesseth him that gives and him that takes:
'Tis mightiest in the mightiest: it becomes
The throned monarch better than his crown;
His sceptre shows the force of temporal power,
The attribute to awe and majesty,
Wherein doth sit the dread and fear of kings;
But mercy is above this sceptred sway;
It is enthroned in the hearts of kings,
It is an attribute to God himself;
And earthly power doth then show likest God's
When mercy seasons justice. Therefore, Jew,
Though justice be thy plea, consider this,
That, in the course of justice, none of us
Should see salvation: we do pray for mercy;
And that same prayer doth teach us all to render
The deeds of mercy. I have spoke thus much
To mitigate the justice of thy plea;
Which if thou follow, this strict court of Venice
Must needs give sentence 'gainst the merchant there.

SHYLOCK: My deeds upon my head! I crave the law,
The penalty and forfeit of my bond.

- William Shakespeare, "Merchant of Venice"

The anger of the injured creditor, the community, gives him back again to the wild outlawed condition, from which he was earlier protected. It pushes him away from itself—and now every form of hostility can vent itself on him. At this stage of cultural behaviour “punishment” is simply the copy, the mimus, of the normal conduct towards the hated, disarmed enemy who has been thrown down, who has forfeited not only all legal rights and protection but also all mercy; hence it is a case of the rights of war and the victory celebration of vae victis [woe to the conquered] in all its ruthlessness and cruelty:—which accounts for the fact that war itself (including the warlike cult of sacrifice) has given us all the forms in which punishment has appeared in history.

10

As it acquires more power, a community no longer considers the crimes of the single individual so serious, because it no longer is entitled to consider him as dangerous and unsettling for the existence of the totality as much as it did before. The wrongdoer is no longer “outlawed” and thrown out, and the common anger is no longer permitted to vent itself on him without restraint to the same extent as earlier— instead the wrongdoer from now on is carefully protected by the community against this anger, especially from that of the immediately injured person, and is taken into protective custody. The compromise with the anger of those particularly 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, the 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 a certain 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 keep growing, the criminal law also grows constantly milder. Every weakening and deeper jeopardizing of the community brings its harsher forms of criminal law to light once again. The “creditor” has always became proportionally more humane as he has become richer. Finally the amount of his wealth even becomes measured by 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 without punishment. “Why should I really bother about my parasites?” it could then say. “May they live and prosper; for that I am still sufficiently strong!” . . . Justice, which started with “Everything is capable of being paid for; everything must be paid off” ends at that point, by shutting 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 calls itself—mercy. It goes without saying that mercy remains the privilege of the most powerful man, or even better, his beyond the law (ubermensch/over man?).

- Nietzsche, "Genealogy of Morals"