REMORSE AND SANCTION

Remorse lacks proportionality precisely because it is perfect retribution: the full return of the crime never to be disassociated from the self Remorse does not have a natural end or moment of redemption for the criminal ‘‘The disgust with dirt can be so great that it keeps us from cleaning ourselves - from ‘justifying’ ourselves” (Nietzsche 1966, p.

86) It does not make the criminal once again a member of the community of free willers. It only locks out the criminal, for the criminal’s will is henceforth divided against itself placed to suffer at the deed again and again a deed that cannot be undone repaid fixed or compensated The offender must suffer eternally because nothing can vitiate or change the past Remorse then is a form of hell, and hell a way of characterizing ‘‘the immeasurability of punishment and guilt’’ (Nietzsche 1969, pp. 91-92) Again to quote McEwan’s character Briony: ‘‘The problem of these fifty-nine years has been this: how can a novelist achieve atonement when with her absolute power of deciding outcomes she is also God? There is no one no entity or higher form that she can appeal to or be reconciled with or that can forgive her There is nothing outside her.” (McEwan 2003 p- 350) All of Briony’s victims are dead; they cannot forgive her except in her own fiction But Briony’s conundrum points to a way out of the hell of remorse - it must come from outside the offender from an other with the standing to forgive and renew

In A Separate Peace, Gene by contrast, does in the end receive Phineas’ forgiveness: ‘‘It is okay because I understand and I believe you You have already shown me and I believe you.” (Knowles 1988, p. 183) Gene has ‘‘shown’’ Phineas in many ways: by confessing by keeping his place as roommate by not running away and enlisting by agreeing to allow Phineas to ‘‘trade places’’ with him by training for an imaginary Olympics by recognizing that he does not know himself as well as Phineas knows him by knowing (through loving) Phineas’s character even better than Phineas does and finally by feeling that he belonged with Phineas in his pain and even in his death ‘‘I could not escape a feeling that this was my own funeral ’’ (Knowles 1988, p.

186) Gene’s sense of union with Phineas guiding his life by what ‘‘Phineas would do’’ is what ultimately allows him to overcome the ‘‘savage underneath’’ and achieve redemption

So ironically rather than being a reason for foregoing punishment, remorse creates the necessity for punishment, but not as more pain (punis), but as sanction (sanctification) Punishment as pain at best brings home the crime to the unrepentant criminal (Morris 1981) in hopes that he will feel his pain as his victim’s pain awaken his empathy and the retribution of remorse ‘‘This is how it feels This is how serious it is Now do you understand what you have done?’’¹

Punishment as pain is not necessary for the remorseful defendant (though it may be welcome as it dulls his own pain for awhile) Instead the remorseful require sanction Sanction sets the conditions of reunion: it has an end It shows faith in the remorseful defendant and grace in extending

another chance trusting in someone who has lost self-confidence caring for someone who has lost self-love Sanction is purgatory rather than hell. This is the element of grace or mercy the allowance that there can be renewal, satisfaction of a wrong done The past cannot be changed but the future can be freed from its chains by fiat by settlement by grace Sanction is the outward penance or settlement that ends the inner hell of remorse Sanction is not justice but mercy It is arbitrary precisely not measured by the wrong of the crime precisely not ‘‘equal” in any respect to the suffering of the victim.

If one ‘‘deserves” the retribution of remorse sanction gives ‘‘less” than someone ‘‘deserves” and is thereby unjust Nietzsche’s response is that we must embrace this injustice Zarathustra Nietzsche’s vision of a strong lifeaffirming human thanks the adder (of conscience) for its ‘‘bite’’ but then orders it to ‘‘take thy poison back! Thou art not rich enough to present it to me’’ The adder of remorse then licks the wound it inflicted (Nietzsche, 1950) Zarathustra then affirms himself as the ‘‘destroyer of morality’’ He overcomes remorse (the adder) but in overcoming remorse he also overcomes justice So as Nietzsche says we need ‘‘justice which is love with seeing eyes’’ and which is an unjust justice a ‘‘justice which acquitteth every one except the judge!’’ (Nietzsche 1950, p.

72).

In sum the only justice that allows for grace is necessarily unjust in both of the traditional senses of giving what is deserved (retributive justice) or even what is equal (distributive justice) Punishment as the rebound of crime (retributive justice) would be the hell of remorse; punishment as the payment of debt (distributive justice) would be the currency of cruelty (equal suffering is justice) Neither is satisfactory So as Nietzsche says we need an unjust justice

The need for this ‘‘unjust justice’’ is highlighted by the experience of those in prison for life without parole those condemned to live their lives ‘‘in one room without a door.” Lifers express remorse but say how impossible it is to expect eternal remorse remorse every day of one’s life As lifers say one cannot live like that for the urge to live and change and grow and contribute is cut off by the requirement of eternal remorse (Bergner, 2003). Understood in light of the discussion here the penalty of life imprisonment is no sanction but a living hell

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Source: Anderson Matthew (ed.). Toward a Critique of Guilt: Perspectives from Law and the Humanities. JAI Press,2005. — 168 p.. 2005

REMORSE AND SANCTION

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