We have seen in the previous entry how Nietzsche sees life “according to nature” as a life without mercy and justice. Does it mean that justice and mercy always go together, or can a society have a condition of justice without mercy, and, conversely, of mercy without justice?
Let us bring in a few short passages from Hobbes’s Leviathan to clarify the Englishman’s conception of justice:
“To this war of every man against every man nothing is unjust. The notions of right and wrong, justice and injustice have no place. Where there is no common power there is no law; no law, no injustice.” (Leviathan XIII.) “…In this law of nature is the fountain of justice. For, where no covenant has preceded, there has no right been transferred, and every man has right to everything, and, consequently, no action can be unjust. But when a covenant is made, then to break it is unjust, and the (nota bene!) definition of injustice is none other than the non-performance of covenant and what is not unjust is just.” (Leviathan XV.) And lastly: “By a good law I mean not a just law: for no law can be unjust.” (Leviathan XXX.)
Here is a most interesting contradiction to Nietzsche’s life according to nature as a life without mercy and justice, and it is Hobbes’ idea of justice, as Hobbes claims that no law is unjust (in other words, the phrase unjust law is to him oxymoronic), that there can only be good or bad laws. Thus, justice, to Hobbes, means living under the law, good or bad. (Now, isn’t there such a thing as ‘Laws of Nature,’ in which case, living ‘according to nature’ may still mean ‘without mercy,’ but by no means ‘without justice.’)
How does all this affect our general discussion of international justice? Let us consider the situation with capital punishment in Europe and in the United States for instance. According to the laws of Europe, capital punishment is injustice. According to American law, it is justice. Considering that there is a longstanding practice of commuting the sentences of condemned persons, each time an execution takes place anywhere in America, this is justice without mercy. On the other hand, the practice of clemency represents mercy without justice, as it is granted outside the judicial system, essentially overruling the final say of the proper judicial process basically on the “whim” of the executive power. As another example, whenever a country without a death penalty provides asylum to a criminal facing what it sees as a “cruel and unusual punishment” in his own country where executions are lawful, this is also a case of “mercy without justice,” as the said criminal does not fall under the liberal country’s jurisdiction.
Now, how does one reconcile this discrepancy in developing the umbrella of international justice? When two opposite legal opinions, representing the oppositely inclined laws of the nations, standing behind them, clash, the compromise ought to be necessarily worked out on the side of mercy, because the stand of mercy in such cases is uncompromising, whereas the law allowing capital punishment also allows the exercise of leniency, and is therefore extremely pliable and accommodating. In other words, the European law in this case is a strong law, because it is being enforced without contradiction, while the American law is weak, as even the American system of justice itself envisages that this law would be routinely undermined by the mechanism of clemency.
Another argument in favor of justice with mercy, as the stronger protagonist for the system of international justice, is the expected observance by all members of the world community of the Geneva Convention, with regard to the humane treatment of the Prisoners of Wars.
Which leads me to conclude that in a future convergence of mutually contradictory national laws (should it become possible at all!), the law of capital punishment, as well as any such law exhibiting a state of justice without mercy in such civilized countries which are still allowing it, will eventually be abolished.
Let us bring in a few short passages from Hobbes’s Leviathan to clarify the Englishman’s conception of justice:
“To this war of every man against every man nothing is unjust. The notions of right and wrong, justice and injustice have no place. Where there is no common power there is no law; no law, no injustice.” (Leviathan XIII.) “…In this law of nature is the fountain of justice. For, where no covenant has preceded, there has no right been transferred, and every man has right to everything, and, consequently, no action can be unjust. But when a covenant is made, then to break it is unjust, and the (nota bene!) definition of injustice is none other than the non-performance of covenant and what is not unjust is just.” (Leviathan XV.) And lastly: “By a good law I mean not a just law: for no law can be unjust.” (Leviathan XXX.)
Here is a most interesting contradiction to Nietzsche’s life according to nature as a life without mercy and justice, and it is Hobbes’ idea of justice, as Hobbes claims that no law is unjust (in other words, the phrase unjust law is to him oxymoronic), that there can only be good or bad laws. Thus, justice, to Hobbes, means living under the law, good or bad. (Now, isn’t there such a thing as ‘Laws of Nature,’ in which case, living ‘according to nature’ may still mean ‘without mercy,’ but by no means ‘without justice.’)
How does all this affect our general discussion of international justice? Let us consider the situation with capital punishment in Europe and in the United States for instance. According to the laws of Europe, capital punishment is injustice. According to American law, it is justice. Considering that there is a longstanding practice of commuting the sentences of condemned persons, each time an execution takes place anywhere in America, this is justice without mercy. On the other hand, the practice of clemency represents mercy without justice, as it is granted outside the judicial system, essentially overruling the final say of the proper judicial process basically on the “whim” of the executive power. As another example, whenever a country without a death penalty provides asylum to a criminal facing what it sees as a “cruel and unusual punishment” in his own country where executions are lawful, this is also a case of “mercy without justice,” as the said criminal does not fall under the liberal country’s jurisdiction.
Now, how does one reconcile this discrepancy in developing the umbrella of international justice? When two opposite legal opinions, representing the oppositely inclined laws of the nations, standing behind them, clash, the compromise ought to be necessarily worked out on the side of mercy, because the stand of mercy in such cases is uncompromising, whereas the law allowing capital punishment also allows the exercise of leniency, and is therefore extremely pliable and accommodating. In other words, the European law in this case is a strong law, because it is being enforced without contradiction, while the American law is weak, as even the American system of justice itself envisages that this law would be routinely undermined by the mechanism of clemency.
Another argument in favor of justice with mercy, as the stronger protagonist for the system of international justice, is the expected observance by all members of the world community of the Geneva Convention, with regard to the humane treatment of the Prisoners of Wars.
Which leads me to conclude that in a future convergence of mutually contradictory national laws (should it become possible at all!), the law of capital punishment, as well as any such law exhibiting a state of justice without mercy in such civilized countries which are still allowing it, will eventually be abolished.
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