Open and Shut

Measured always by the standard of antiquity (this antiquity, moreover, is present or again possible at all periods), the community stands to its members in that important and radical relationship of creditor to his owers.” Man lives in a community, man enjoys the advantages of a community (and what advantages! we occasionally underestimate them nowadays), man lives protected, spared, in peace and trust, secure from certain injuries and enmities, to which the man outside the community, the “peaceless” man, is exposed,—a German understands the original meaning of “Elend” (elend),—secure because he has entered into pledges and obligations to the community in respect of these very injuries and enmities. What happens when this is not the case? The community, the defrauded creditor, will get itself paid, as well as it can, one can reckon on that. In this case the question of the direct damage done by the offender is quite subsidiary: quite apart from this the criminal is above all a breaker, a breaker of word and covenant to the whole, as regards all the advantages and amenities of the communal life in which up to that time he had participated. The criminal is an “ower” who not only fails to repay the advances and advantages that have been given to him, but even sets out to attack his creditor: consequently he is in the future not only, as is fair, deprived of all these advantages and amenities—he is in addition reminded of the importance of those advantages. The wrath of the injured creditor, of the community, puts him back in the wild and outlawed status from which he was previously protected: the community repudiates him—and now every kind of enmity can vent itself on him. Punishment is in this stage of civilisation simply the copy, the mimic, of the normal treatment of the hated, disdained, and conquered enemy, who is not only deprived of every right and protection but of every mercy; so we have the martial law and triumphant festival of the vae victis! in all its mercilessness and cruelty. This shows why war itself (counting the sacrificial cult of war) has produced all the forms under which punishment has manifested itself in history.