When Bad Things Happen to Other People (24 page)

Schopenhauer’s revulsion toward
Schadenfreude
leads to a virtual recommendation of revenge. It is the retributivistic way of thinking about punishment, with its problematic dependence on the notion of desert, that underlays primitive revenge rituals. Nonetheless, Schopenhauer relies on the distinctness of modern punishment from its predecessor. In Schopenhauer’s defense, modern penal codes do represent an advance over primitive thinking about revenge. Our system of criminal justice does not unreflectively punish offenders simply because they have violated laws: mitigating circumstances such as accident, duress, and reasonable mistake are all considered. The penalty we impose upon someone guilty of a misdemeanor does not correspond to the punishment we inflict upon someone guilty of a felony: the two misdeeds differ in kind, just as the two judicial responses to them do. Note too that it’s one thing to say that vengeful passions help fuel the legal institution of punishment, another to say that retribution is conceptually wound up with them. But numerous moralists have nonetheless insisted that our institution of retributive justice amounts to revenge, both historically and conceptually. One frequently quoted thinker, Joel Feinberg, has said: “I think it is fair to say of our community, however, that punishment generally expresses more than judgments of disapproval; it is also a symbolic way of getting back at the criminal, of expressing a kind of vindictive resentment.”4 This claim returns us to the 
lex talionis
 of “an eye for an eye” that reverberates throughout Greek tragedy and the Hebrew Bible. In his 
Jewish Social
 
Ethics
 David Novak maintains that vengeance can only be sublimated; to do more than that actually destroys criminal justice.5

The principle embodied in the 
lex talionis
 is one of appropriateness, of making the criminal suffer as much as the person whom he or she has harmed. The notion of an equivalence between a crime and its punishment must be a moral one if proportionality is to justify the punishment. The 
lex talionis
 gives no consideration to the mental state of the offender, or to the mitigating or aggravating circumstances of the crime. Yet someone who kills another out of negligence or recklessness, we feel, does not deserve the same punishment as a criminal who kills out of hatred, in a calculated fashion. The 
lex talionis
 seems ill-suited for punishing satisfactorily the person who deliberately aims a gun at another in order to kill, but who misses his or her target and fails. Additionally, the formula required for applying the 
lex talionis
 seems too crude and sometimes yields (as in the case of sadistic murderers) morally unacceptable punishments. For this reason we have a system of jurisprudence which purports to administer punishments with an eye to future good, not to revenge.

While I disagree with Schopenhauer on many scores, I nonetheless concede the possibility that some people seek justice without desiring revenge. Such people seek no personal benefit from the suffering of a wrongdoer; their only pleasure derives from a belief that the world has been made safer by the wrongdoer’s punishment. This conceptual possibility strains the word “
Schadenfreude
” because the operative joy or satisfaction for such people is not in suffering, but rather in justice. If there were such a word as “
Gerechtigkeitfreude
” (the joy of justice), Schopenhauer would probably have used it in opposition to 
Schadenfreude
. Ambivalence characterizes my defense of
Schadenfreude
: it is only because so many people agree with Schopenhauer’s view of justice that my defense of
Schadenfreude
makes any sense, yet I do not myself agree with Schopenhauer.

Some moralists believe there is no point whatsoever to punishment, because punishment involves doing to others something we generally consider wrong. Philosophers still debate whether punishing people according to what they deserve can be defended by the principles of justice. Mercy and clemency, various writers have argued, accomplish more than punishment does. Mercy toward offenders follows the principle that it is better to prevent wrongdoing than to punish it. It may well be preferable to accept human vulnerability in a spirit of forgiveness and understanding than to punish offenders out of rage. Our emotional reactions to insult and injury might then be directed not to revenge, but to reform. This premise fortifies much of Jewish and Christian moral thinking.

Forgiveness does not come cheaply in Judaism and Christianity, however. God forgives repentant sinners, but genuine repentance must precede forgiveness, and punishment exists to ease genuine repentance. Some Jews and Christians justifiably worry that mercy and forgiveness collude with evil; mercy and forgiveness tolerate sin, it may seem. It would be naive to accuse Jews or Christians of hypocrisy when they read God into the suffering of others. Jews, Christians, or members of any religion naturally defend rules and beliefs and, correspondingly, resent infringements of them. We cannot blame religious believers for adhering to rules, although we may reasonably object to the rules to which they adhere.

Most of us believe that compassion toward others can solve many of the world’s problems. We care about the world’s problems precisely because we care about the world’s people. We want others, like ourselves, to live well. We do not want the wicked to prosper, because we want the wicked to see the error of their ways. Should we show compassion to the wicked? The stronger our moral beliefs, the more difficult it will be to show compassion to others whose lives we consider fundamentally immoral, particularly if their immorality threatens us or our community in some way (think of rapists and child molesters here). Forgiveness may not come easily to us, for our moral beliefs may seem too important to com-promise. We may come to think of mercy in certain instances as indifference, or as a betrayal of our convictions.

Those whom we consider wicked (or at least deeply misguided) may consider us wicked (or deeply misguided) too. This is quite often the case. In part for this reason, and in part because of ongoing disputes over the moral justification of punishment, it remains a challenge to argue that punishment does not represent revenge. Nietzsche, for one, insists that such arguments can only fail.

The Pleasure of Seeing Another Punished

If we have learned the misery of suffering from personal experience, why would we make others suffer? How we respond to wrongdoing tells us something about our common morality (to the extent that we have one) and our cultural aspirations. It also no doubt reflects broad patterns of how individuals in a particular culture treat and respond to one another. It further indicates the extent to which we feel justified in meting out suffering and imbuing it with meaning. More to the point, our response to wrongdoing says something about how we are properly to respond to punishment emotionally.

Punishment aims to cause suffering, and perhaps even pain. According to Nietzsche, the legal institution of punishment represents a socially acceptable way of coming to grips with our own aggression. The legal institution of punishment amounts to a muted festival of cruelty, he holds, in which citizens are free to exercise their base emotions and their indirect enjoyment of power. Is Nietzsche right? If so, then part of the point of punishment is to provide enjoyment to onlookers, and there is a clear parallel between
Schadenfreude
and our emotional responses to the punishment of others.

Consider Edmund Burke’s challenge in 
A Philosophical Enquiry
, issued a century before Nietzsche took up the question:

Chuse [sic] a day on which to represent the most sublime and affecting tragedy...and when you have collected your audience, just at the moment when their minds are erect with expectation, let it be reported that a state criminal of high rank is on the point of being executed in the adjoining square; in a moment the emptiness of the theatre would demonstrate the comparative weakness of the imitative arts, and proclaim the triumph of the real sympathy.6

Burke’s “real sympathy” is the delight (“and that no small one”) we take “in the real misfortunes and pains of others” (p. 45). Burke does not believe that crowds at public executions had assembled to rejoice in the spectacle of justice; rather the crowd thrills to the sight of brutality. For Burke, we cannot make the problem of
Schadenfreude
disappear by claiming that love of justice extinguishes love of suffering.

Against Burke and Foucault, various moralists have credited moral progress for the disappearance of public spectacles of torture: whereas pre-modern societies reveled in savage spectacles, we moderns have no taste for such violent displays of revenge. We prefer courtroom justice. It may well be that we moderns have no time to march off to the public square to watch a hanging: we are too busy watching violent films and videos. Torture now takes place all around us—in televised court cases particularly.

Pieter Spierenburg has written a highly engaging but idiosyncratic book that details how much crowds appreciated public spectacles of torture in previous centuries.7 What is quite surprising about 
The Spectacle
 
of Suffering
 is that it does not mention Nietzsche. Instead, it focuses largely on Dutch society and theorists. Nonetheless, Spierenburg’s conclusion fits neatly with Nietzsche’s disdain for “the herd.” Spierenburg argues that the popular toleration of violence began to change in the Netherlands and elsewhere by about the middle of the eighteenth century; after 1800 the shift accelerated and led to what is recognizably our own sensibility toward violence, suffering, and the fate of others. According to Spierenburg, this shift was imposed on the masses by social elites, who had become disgusted by the crudeness of public displays of brutality, and by the evident enjoyment on the faces of those who watched the torturing. Only gradually did a studied and cultivated sensibility begin to take root among the masses.

Little by little, public executions were banned in Europe. Concurrently, enjoyment of the punishment of others was driven underground. Schopenhauer is one of the first philosophers to discern that this enjoyment continued. His attention to the mental state of punishers predates Durkheim’s slightly more developed account of the same phenomenon. David Garland’s formidable work 
Punishment and Society
, which contains an exemplary account of the emotional aspect of administering punishment, presents Durkheim’s findings as a key for unlocking a larger cultural text such as the nature of social solidarity or the disciplinary character of Western reason.8 In 
The Division of Labor
 (1895) Durkheim argues that the punitive passions emerge from collective sentiments and convey the moral energy of the citizenry against its criminal enemies. Durkheim explains:

In the first place, punishment constitutes an emotional reaction. This characteristic is all the more apparent the less cultured societies are. Indeed primitive people punish for the sake of punishing, causing the guilty person to suffer solely for the sake of suffering and without expecting any advantage for themselves from the suffering they inflict upon him the proof of this is that they do not aim to punish fairly or usefully, but only for the sake of punishing. Thus they punish animals that have committed the act that is stigmatised, or even inanimate things which have been its passive instrument. When the punishment is applied solely to people, it often extends well beyond the guilty person and strikes even the innocent—his wife, children or neighbours, etc. This is because the passionate feeling that lies at the heart of punishment dies down only when it is spent.9

Durkheim rejects the argument that modern societies now punish as a deterrent to future wrongdoing. For Durkheim, we do not punish out of a conviction that the consequences of punishment are good; instead, we punish out of a sense that such punishment is intrinsically good and fitting. He insists on a sense of proportionality between crimes and punishments in such a way as to make Burke’s challenge seem unreflective:

...reaction to punishment is not in every case uniform, since the emotions that determine it are not always the same. In fact they vary in intensity according to the strength of the feeling that has suffered injury, as well as according to the gravity of the offence it has sustained...Since the gravity of the criminal act varies according to the same factors, the proportionality everywhere observed between crime and punishment is therefore established with a kind of mechanical spontaneity, without any necessity to make elaborate computations in order to calculate it. What brings about a gradation in crimes is also what brings about a gradation in punishments; consequently the two measures cannot fail to correspond, and such correspondence, since it is necessary, is at the same time constantly useful. (p. 57)

Durkheim characterizes punishment as a social institution that reflects and enhances social solidarity. Punishments issue forth from strong bonds of moral solidarity and, when inflicted, reaffirm and strengthen these same social bonds.

As Garland has pointed out, Durkheim’s work can be taken as a reaction against turn-of-the-century criminologists who aimed to remove all traces of moral censure from penal law in order to give it a purely technical character. Durkheim insisted that the essence of punishment is not rationality or instrumental control but rather irrational, unthinking emotion stirred up by a perceived violation of the sacred. For Durkheim, punishment is not so much a means to an end as a release of psychic energy. The end or objective of punishment is not reform of the offender, but the common expression of social outrage, an expression that unites people and creates solidarity.

Garland’s analysis proceeds from Durkheim to Nietzsche, for whom there is more than dutiful moral sentiment in the fact of punishment—there is positive pleasure. As usual in Nietzsche’s vision, the least noble sentiments are to be found among the common people, the lower classes, the herd. It would be pointless to search for evidence to support the truth of Nietzsche’s snide view. But in the case of punishment, there is a specific explanation for this social distribution of cruel delight—for the act of punishing brings with it power. In punishing the debtor, the creditor shares a seignorial right. The creditor feels that finally he or she can bask in the glorious feeling of treating another human being as inferior—or if the actual punitive power has passed on to a legal “authority,” of seeing another person despised and mistreated.