The radically constructive nature of legal and economic concepts emerges quite clearly in the brilliant second essay of The Genealogy of Morals. Here, Nietzsche sets out his view of how the concept of a contract creates persons, how the ethical subject is not found but made. For Nietzsche, the law, a set of human practices, ‘creates’ its subjects by acting upon humans to make them into beings capable of obeying the law. The inversion Nietzsche forces upon us takes from the notion of a contract as a legally enforceable promise to the notion of a promise as a morally enforceable contract.
In The Genealogy of Morals Nietzsche suggests the debtor-creditor relationship—a legal relationship, an economic one, made formal and enforceable—is responsible for “instilling memory in humanity.” This relationship, a legal artifact, requires enduring identity over time, which requires memory, and is created by the pain engendered by punishment, administered by a legal system. The creditor must remember it is owed; the debtor that it owes, and that it “is a thing that persists through time.” The debtor must realize that it is the same person who acquired the debt–a temporally enduring object. Punishment and the fear of it functions to reinforce this belief in personal identity; the debtor reasons that if it repays the debt in the future and it will exist in the future, then it will avoid punishment, so it will repay. Legal punishment thus constructs a ‘subject’ who remembers and feels ‘responsible’ for the debt. This reasoning, made ‘natural’ and ‘automatic’ by the law, produces belief in an ego or self that endures–this belief is displaced onto objects to create the concept of a “thing”’–another enduring, determinate object. Here two legal concepts, punishment, a legal sanction, and contract, a legally binding promise, do constructive work; one creates the subject, the other objects in this world. Legal sanctions forge the human subject so that the metaphysical and moral person and its world are created.
Thus is our phenomenalistic self-view transformed into an objectual one by legal punishment. It convinces an otherwise fleeting sense of impressions that an enduring sensation speaks to an enduring subject of pain; if the pain persists then so must that which feels and suffers from the pain. Constraint and force are creative but they are not exerted by arbitrary entities; legal ones inflict punishment. They make threats backed up by sanctions and the authority of the sovereign; they claim to hold a monopoly of legitimate power, a task easily accomplished by taking law to be the earthbound shadow of morality. Force and compulsion acquire greater traction if viewed as pressed into the service of morality. The linkage of law with morality aids and abets law’s constitutive and constructive functions.
Thus does the law “breed an animal with the right to make promises” by first making “men to a certain degree…uniform.” The making of ‘man’ in the general, as a universal term, is the task of law; it makes the moral man as required for contracts and the assignment of blame; we do not retain our ‘primitive’ forms; we are modified into the legal subjects we know now. The qualities the law requires become human ones; to be human is to be a legal subject; a human without a law is to not be so. If Aristotle suggested the polis was where men went to become citizens, or a multitude of social theorists suggested the social makes us who we are, Nietzsche adds a twist: it is the law that makes the entity we regard as the liberal political subject, the legal subject, the mythical sovereign human. Sovereign man is made, not found, by a long and tedious process of enforcing law and custom.
The law imposes an uncompromising and tightly regulated social reality to create its subjects; its punishments, its penal code exert themselves to do so. For Nietzsche, a phenomenological flux gives way to the solidity of the temporally enduring person; this process is facilitated by the molding of the law, from the metaphysical forge of the law emerges sovereign man. Nietzsche’s signal contribution to social theory is that he shows human interaction of very particular kinds—the legal and economic and transactional—to be the basis of moral development.
For Nietzsche, freedom of the will is a derivative notion, as are the distinctions made between “intentional,” “negligent,” “accidental,” “accountable,” and their contraries, all of which came about as a means of making finer and more precise determinations of punishments. Such posits—which induce a fine-grained granularity into our ontology of mental states—are required for the ‘making of man.’ They enable better explanations of penal phenomena, which would otherwise have to rest content with invoking the mysterious workings of nature; they make possible a penal system, allow the establishment of clear criteria for punishment, and supply a vocabulary for speaking about legal transgressions. In this theoretical vocabulary, new entities appear—‘sovereign man,’ ‘free man,’ and later, ‘contracting man’—as do new mental states.
For Nietzsche, the freely acting human is a theoretical construct that makes punishment comprehensible to a creature driven by drives and instincts and automated determinations of its behavior; freedom of the will appears ‘natural’ and ‘unavoidable’—like a good theoretical or ideological construct or posit should. Even responsibility, whether moral or legal, is a theoretical construct, a post-facto abductive explanation of a particular punishment. A new relationship ‘responsible-for’ or ‘held-accountable-for’ is posited to make punishment comprehensible for prior to such a conception “punishment was not imposed because one held the wrongdoer responsible…thus not on the presupposition that only the guilty one should be punished.” Instead punishment was animated by the idea that “every injury has its equivalent and can actually be paid back…through the pain of the culprit.” This primitive idea’s power, its equivalence between injury and pain, is grounded in a legal relationship, “in the contractual relationship between creditor and debtor [which] points back to the fundamental forms of buying, selling, barter, trade, and traffic.”
For Nietzsche it is in the “sphere of legal obligations” that the moral world comes about with its concepts of “guilt,” “conscience,” “duty,” “sacredness of duty”. This domain, the legal relationship of buyer and seller and debtor and creditor, enabled moral evaluation of humans on terms dictated by them: to violate a contract came to mean violating a promise, and hence a moral failure. A new prescriptive language emerged: to disobey the laws pertaining to contract repayment was to be guilty of a moral failure.
From here on, social and political developments follow from legal rights, created by a system of law, for “a sense of exchange, contract, guilt, right, obligation, settlement” was “transferred…to the coarsest and most elementary social complexes.” Thus, legal rights preceded and enabled the formation and sustenance of social complexes; a social contract is a legal arrangement that forms the basis of social and political formations. Without law, there is no society and consequently, no politics. Our notions of justice and injustice are legal creations; without the law, they lack meaning. Now that law is instituted, offences—such as “violence and capricious acts”—become offences against the law, not against individuals. The criminal law becomes impersonal; crimes committed by individuals against individuals are crimes against the state and the legal system. An extra-human entity has appeared on the scene: the Law.
For Nietzsche then, we are not born moral agents. We are made moral; the mark of the moral is an imprint of our history; it bears traces of our past, of our most important social, economic and legal relationships. The conventional debate over natural law in theories of the law is inverted by Nietzsche: law does not finds its normative ground in morality, rather morality is grounded in law, whose expressive impact and ability to order social relations undergirds and fills out morality.