On the Genealogy of Morality (Chap. 3.10)

As it acquires more power, a community no longer considers the crimes of the single individual so serious, because it no longer is entitled to consider him as dangerous and unsettling for the existence of the totality as much as it did before. The wrongdoer is no longer “outlawed” and thrown out, and the common anger is no longer permitted to vent itself on him without restraint to the same extent as earlier— instead the wrongdoer from now on is carefully protected by the community against this anger, especially from that of the immediately injured person, and is taken into protective custody. The compromise with the anger of those particularly affected by the wrong doing, and thus the effort to localize the case and to avert a wider or even a general participation and unrest, the attempts to find equivalents and to settle the whole business (the compositio), above all the desire, appearing with ever-increasing clarity, to consider every crime as, in some sense or other, capable of being paid off, and thus, at least to a certain extent, to separate the criminal and his crime from each other—those are the characteristics stamped more and more clearly on the further development of criminal law. If the power and the self-confidence of a community keep growing, the criminal law also grows constantly milder. Every weakening and deeper jeopardizing of the community brings its harsher forms of criminal law to light once again. The “creditor” has always became proportionally more humane as he has become richer. Finally the amount of his wealth even becomes measured by how much damage he can sustain without suffering from it. It would not be impossible to imagine a society with a consciousness of its own power which allowed itself the most privileged luxury which it can have—letting its criminals go without punishment. “Why should I really bother about my parasites?” it could then say. “May they live and prosper; for that I am still sufficiently strong!” . . . Justice, which started with “Everything is capable of being paid for; everything must be paid off” ends at that point, by shutting its eyes and letting the person incapable of payment go free—it ends, as every good thing on earth ends, by doing away with itself. This self-negation of justice: we know what a beautiful name it calls itself—mercy. It goes without saying that mercy remains the privilege of the most powerful man, or even better, his beyond the law.