THE PSYCHIC LIFE OF PUNISHMENT (KANT, NIETZSCHE, FREUD)

• DOI: https://doi.org/10.1016/S1059-4337(03)30009-2
• Pages: 211-245
• Date: 09 December 2003
• Published date: 09 December 2003
• Author: Klaus Mladek

THE PSYCHIC LIFE OF PUNISHMENT

(KANT, NIETZSCHE, FREUD)

Klaus Mladek

ABSTRACT

This article seeks to recover and uncover the non-utilitarian excess (jouis-

sance) in crime and punishment since Kant. Jouissance is sharply contrasted

with Nietzsche’s account of ressentiment. The latter is analyzed as the

predominant sensation of our penal system which until today structures the

subjects and institutions of punishment from within. Jouissance, on the other

hand, is obscured in philosophies of punishment that attempt to account for

the will to punish but ultimately fail to cover over the excess that constitutes

penal theories and practices. Whether it is visible in Kant’s punitive fervor,

in the exploration of perversion in de Sade and E. A. Poe, in theories of

deterrence and prevention or punitive convictions in our contemporary legal

culture, Freud’s discovery of a realm beyondthe pleasures principle remains

crucial for the understanding of the motives for crime and punishment. The

essay concludes with a discussion of Nietzsche and his exploration of the

ramifications of recognizing the roleof new affects in crime and punishment.

Qu’est-ce que c’est la jouissance? Elle se r´

eduit ici `

an’

ˆ

etre qu’une instance n´

egative. La

jouissance, c’est ce qui ne sert `

a rien. Je pointe l`

alar

´

eserve qu’implique le champ du droit-`

a-

la-jouissance. Le droit n’est past le devoir. Rien ne force personne `

a jouir, sauf le surmoi. Le

surmoi, c’est le imp´

eratif de la jouissance – Jouis!(Lacan, 1975, p. 10).

Evenguilt andpunishment donottell uswhat thelaw is,but leaveit ina stateof indeterminacy

equalled only by the extreme specificity of the punishment (Deleuze, 1991, pp. 82–83).

Punishment, Politics, and Culture

Studies in Law, Politics, and Society,Volume 30, 211–245

Copyright © 2004 by Elsevier Ltd.

All rights of reproduction in any form reserved

ISSN: 1059-4337/doi:10.1016/S1059-4337(03)30009-2

211

212 KLAUS MLADEK

(O)ne need only to look at our old penal codes to discover what amount of effort it takes to

breed a “people of thinkers” on earth (G 38).

PUNISHMENT AND JOUISSANCE

(KANT, NIETZSCHE, FREUD)

Our politics, our history and our fantasies are bathed in the jouissance1of law

and punishment. Surprisingly few have noticed that Nietzsche’s second treatise

in the Genealogy of Morality is predominantly about this surplus-jouissance in

the history and theory of law and punishment. The question of jouissance arises

once we become aware of the stark difference between usefulness and enjoyment,

between the officially legitimized ends and the non-theorizable surplus of punish-

ment. Lacan has traced the concept of jouissance back to its juridical etymology.

In law, it is nothing else but the legal notion of “usufruct” (ius utendi fruendi),

the right to temporarily enjoy the use of certain rights of others. In Roman law,

it is usually associated with the enjoyment of someone else’s property. Nietzsche,

on the other hand, systematically extends the legal concept of usufruct to the

enjoyment of rights over someone else’s body. Punishment for Nietzsche derives

from the contractual right to enjoy the power over another body.2However,

the legal concept of usufruct also introduces limits into jouissance, for one is

allowed to enjoy this power, but not abuse or squander it: “Precisely this is the

essence of law – to divide, to distribute, to spread out that which is jouissance”

(Lacan, 1975, p. 10).

Without mentioning the term usufruct (Nießbrauch) explicitly, Nietzsche links

the notion of usufruct to the origin of debt or guilt (Schulden). “Schuld” itself has

its roots not in penal but in contract law.To guarantee the payment of the debt, the

debtor pledges to the creditor something that he possesses, “for example his body

or his wife or his freedom or even his life (...), finally even his peace in the grave”

(G 40). The creditor thus has legally established power over the debtor’s body,

rights and possessions. The creditor is “granted a certain feeling of satisfaction as

repayment and compensation – the feeling of satisfaction that comes from being

permitted to vent his power without a second thought to one who is powerless,

the carnal delight ‘de faire mal pour le plaisir de le faire,’ the enjoyment of

doing violence.” Nietzsche concludes that the idea of compensation and Schuld

originates in the establishment of a “right to cruelty” (G 41). It is important to

notice that Nietzsche is not so much interested in the means or ends of cruelty

(to enforce the validity of contracts or to deter one from breaking promises), but

rather in the “senseless” satisfaction of legally inflicting pain “without a second

thought,” for the mere pleasure of doing it. Punishing jouissance is thus to enjoy

The Psychic Life of Punishment 213

the violation of someone else’s body without guilt: to commit violent acts in the

name of law and morality. This particular constellation of usufruct reminds one of

de Sade’s enjoyment of crime as universal law – the crime as end in itself, where

the law functions solely as support for the jouissance of transgression.3

The law may distribute, domesticate or prohibit jouissance, but something

escapes from this, something that is not useful or utilitarian and which has no

reason or determined origins and neither clear means nor ends. For Nietzsche,

the good is not determined at the level of use, its “goodness” is rather decided

upon by the notion of control and power. Thus, the good of punishment does not

reside in its various goals (betterment, deterrence, etc.), but in the creation and

manifestation of power. Outside of use value and the notion of good, Nietzsche

emphasizes something radically new which could be called, with Lacan, the

“jouissance use” (Lacan, 1992, p. 229):

The judgment ‘good’ does not stem from those whom ‘goodness’ is rendered! Rather it was

the ‘good’ themselves, that is the noble, powerful, higher-ranking, and high-minded who felt

and ranked themselves and their doings as good, which is to say,as of the first rank, in contrast

to everything base, low-minded, common, and vulgar. Out of this pathos of distance they

first took for themselves the right to create values, to coin names for values: what did they

care about usefulness! The viewpoint of utility is as foreign and inappropriate as possible,

especially in relation to so hot an outpouring of highest rank-ordering, rank-distinguishing

value judgments: for here feeling has arrived at an opposite of that low degree warmth

presupposed by every calculating prudence, everyassessment of utility – and not just for once,

for an hour of exception, but rather for the long run (G 10–11).

Nietzsche reveals that the domain of the good marks the birth of power,difference

and distinction. The notion of control of the goods and the creation of values

is crucial, not their use value. The contemplation of goods and uses only keeps

us in the mediocre “warmth” of pleasure but prevents us from our confrontation

with jouissance. The mere fact of exercising control and exacting punishment

is thus infinitely more important than the actual use or regulation of goods and

bodies. The “high-minded” must therefore not be concerned with defending

their goods, but with inventing them and naming their own values instead. Both

Nietzsche’s will to powerand Lacan’s jouissance are directed against the ideology

that persuades us of the link between pleasure and the good – the pleasures of

good or the good as pleasurable. Instead, a “hot” and enduring “feeling” (“not

just for once”) lies at the very heart of Nietzsche’s “will to power” (see Deleuze,

1983, p. 62). The “outpouring” of pure will is thus nothing else but the surge

of jouissance, a “feeling” and a principle so “hot” that they compel us to move

beyond the calculus of pleasure. Both will to power and jouissance recognize acts

of destruction and aggression as potentially joyful.4Accordingly, the “pathos of

distance” treats the dull warmth that flows out of the nexus of pleasure and good