Nietzsche & Lawfulness: On the Opening of the Genealogy of Morals, Second Essay

Remarks delivered at the NPSA 2022 conference in Boston, MA. The paper is linked below. It is still a work in progress:

I remember when Josh Parens--no slouch as a scholar, an expert on Maimonides and Farabi--ended class by saying that for Aristotle, what is not expressly stated in the law is forbidden. This is, to say the least, incredibly exaggerated. Any regime which tried this would last 30 seconds. After all, the law can't be conscious of everything. It cannot tell you how and when to breathe.

Still, this seemed like a point of contrast between ancient and modern approaches. An ideal ancient code tries to declare every detail, whereas a more modern approach tries to create a space for rights.

However, this may be too understated to be useful. When I opened Nietzsche recently, what I found were repeated allusions to a classical portrait of law. I saw him in dialogue with Socratic rhetoric about what the law can provide and where it will necessarily fall short. It's a rich account, one that aims at explaining law's majesty. To quote my own paper:

To obey the law is to demonstrate a consistency emblematic of rationality. To respect the law is to appreciate how it makes us equal, united in purpose. And to consider the law is to understand its service as a foundation for greater truths. Only with lawfulness can humankind be truly free.

Nietzsche alludes to these propositions in order to attack them. He's after something more chaotic. Something noble because of its directness and honesty, and also more true to each of our individual lives. When I puzzled over other comments of his about promise-making, the "sovereign individual," and German cruelty, I saw a Nietzschean philosophy of the future entailing a radical embrace of rights.

Nietzsche himself probably wouldn't say it that way. He'd leave one or a hundred misogynistic comments, rant about socialism, and reinforce the worst approach to a distinction between the high and the low. A contempt for democracy permeates his work.

But if we want clarity for ourselves about the "sovereign individual," then we want to think about rights over against the stricture of lawfulness. We want to think about what the higher, if not the highest human types, look like.

I want to begin by placing Nietzsche's account of forgetting and memory in dialogue with a choice line from Plato. That line, from Plato's Minos, states that law "wishes to be the discovery of what is." You can see the scope of ancient lawgiving in Socrates' statement. Law "wishes to be the discovery of what is:" it hopes not just to be a final declaration of the truth of being (e.g. "what is"), but it wants to be the means to that truth. It takes on no less than the aspirations of the natural sciences.

Socrates does not mean to compliment law. He's working with a proposition that can be cynical and brutal. If law makes claims upon "the discovery of what is," it will conflict with those actually trying to discover "what is." Then, as reasonable as it might seem to be, law will demonstrate its power. Still, what's most important for our purposes is that its aspirations are tied to its consistency. The respect we have for law in part comes from respect for its consistency. But that leads to law wanting everything to be as consistent as it is.

In contrast, let's look at how Nietzsche depicts the promise-making animal, us. He holds that forgetting is "an active and in the strictest sense positive faculty of repression.” Already, this does not sound like rational consistency. It does not even feel like it mimics rational consistency. A quote from the paper, highlighting Nietzsche's words: because of "forgetting," "what we experience and absorb enters our consciousness as little while we are digesting it." We repress our ability to remember in order to manage what enters our consciousness. It sounds harsh and horrible, but it can be interpreted another way:

To forget means to continually reencounter what we live through and try to grasp. That reencountering becomes part of the depth of what we dearly remember. We make ourselves conceive an object again and again, starting from a new premise, a new standpoint, each time. We add fragments of these conceptions together, building the images which stay with us.

Nietzsche, I believe, replaces the consistency of our very memory with this management of consciousness. I imagine it to be a constant bumping into the things that matter to us. In like manner, he denies that we can say "I will" or see ourselves as causing a given effect via the promises we make. How many things occur between the time a promise is made, an "I will" is stated, and something is considered a result? The denial of consistency here is not simply skepticism about our memory. He's targeting our ability to submit to the law and pointing to another way our intellect works. Maybe all we do is obsess over a thing and call it thinking.

The rest of the paper covers Nietzsche's "sovereign individual" and the topic of cruelty and memory. The "sovereign individual" is a unique being with the explicit right to make promises. "Autonomous and supramoral," they are the ripest fruit of the tree of morality. They are a historical development. The law is in their bones, but because of that, they know it so well it is an instinct they can challenge and transcend. They are the spirit of the law, you might say. In Plato's Crito, Socrates depicts himself as having a dialogue with the laws of Athens. It does seem like he is a "sovereign individual." He knows the laws and the limits of the law all too well.

What Nietzsche attacks is the notion that the law makes us more equal for the sake of a greater good. Socrates has to explain himself to Crito so that Crito can follow the law while Socrates breaks the spirit of the law. That condescension is, in a strange way, a nod to equality, a recognition that Socrates and Crito are equal in a key respect. Nietzsche has no use for equality conceived this way. If you are a higher type of human being, someone who points at something we all ought to know, be, or do, then it is important to accentuate the inequality involved.

Moreover, Nietzsche goes into gory detail about how a people (the Germans. You knew this) formed themselves through pain. Let's read about the pains they inflicted on many to create an identity:

...stoning (the sagas already have millstones drop on the head of the guilty), breaking on the wheel (the most characteristic invention and speciality of the German genius in the realm of punishment!), piercing with stakes, tearing apart or trampling by horses (“quartering”), boiling of the criminal in oil or wine (still employed in the fourteenth and fifteenth centuries), the popular flaying alive (“cutting straps”), cutting flesh from the chest, and also the practice of smearing the wrongdoer with honey and leaving him in the blazing sun for the flies.

This is not just about punishment or law. It's about collective memory, a people's sense of what is and is not acceptable. In other words, who they want to be. In Xenophon, Socrates gets into a fight with Hippias, the latter believing that the equation of justice with lawfulness is far too unsophisticated a proposition. Socrates wins because the argument happens in front of a number of Athenians who are not eager to hear that they are unjust for fighting in a war they themselves may not like.

All these considerations—a rejection of law's consistency and its equalizing, as well as an emphasis on how it uses cruelty—bring us to another picture entirely. Maybe there are those who aren't enamored with consistency as much as being devoted. Maybe they can't be perfectly equal to others because they're trying for something more. And maybe they know because they know their own pain. I'm thinking of someone like Félix González-Torres, and his sculpture Untitled (Portrait of Ross in L.A.),

...a deceptively simple sculpture: a pile of candies individually wrapped in colored cellophane and piled into a pyramid. Untitled (Portrait of Ross in L.A.) consisted of 175 pounds of candy, corresponding to the weight of his lover, Ross Laycock, before his deterioration and eventual death from AIDS.

Audiences are encouraged to take a piece of candy.

You can see how considering these passages from Nietzsche in the context of classical lawfulness brings forth a richer consideration of rights. I feel like we're looking, ultimately, at a portrait of an advocate for others. Someone who understands pain because they've endured so much, someone who revisits their experience as much as they can stomach it, someone not afraid to be different. It can be argued that there's plenty in Nietzsche about rejecting compassion and mercy, but I'd suggest another way of thinking about Nietzsche is as follows. You can imagine his ideal individuals stemming from an exaggerated version of classical virtue. The logical consequence, you might say, of those virtues is that you get extremely virtuous people, who demonstrate moderation as an attitude toward life as opposed to one about ethics. Life, with this question: do I need it or not?

It is a fundamentally tragic pose, but one we may need to fulfill the promise of rights. When you've been through a lot of pain, you can't understand exactly what someone else is going through, but you can relate. An Aristotlean thought makes itself visible at this juncture: a notion of right can make you think others who share your notion are reasonable. In like manner, you sacrifice, on a Nietzschean line of thought, for that greater sense of who you are. A "you" whose very invocation empowers others.