According to Nietzsche's hypothesis, the consciousness of guilt originates simply as consciousness of a debt. The relation of contract between creditor and debtor, which is as old as the earliest primitive forms of human intercourse in buying, selling, bartering, etc.—this is the relation that underlies it. The debtor (in order to inspire confidence in his promise of repayment) pledges something he possesses: his liberty, his woman, his life; or he gives his creditor the right of cutting a larger or smaller piece of flesh from his body, according to the amount of the debt. (The Roman Code of the Twelve Tables; again in The Merchant of Venice.)
The logic of this, which has become somewhat strange to us, is as follows: as compensation for his loss the creditor is granted a kind of voluptuous sensation, the delight of being able to exercise his power upon the powerless.
The reader may find evidence in Rée (op. cit., p. 13 ff.) for Nietzsche's dictum, that for milleniums this was the view of mankind: The sight of suffering does one good.
The infliction of suffering on another is a feast at which the fortunate one swells with the joy of power. We may also find evidence in Rée that the instincts of pity, fairness and clemency, which were afterwards glorified as virtues, were originally regarded almost everywhere as morally worthless, nay, as indications of weakness.
Buying and selling, as well as everything psychologically connected therewith and older than any form of social organisation, contain the germs, in Nietzsche's view, of compensation, assessing, justice and duty. Man soon became proud of himself as a being who measures values. One of the earliest generalisations was this: Everything has its price. And the thought that everything can be paid for was the oldest and most naïve canon of justice.
Now the whole of society, as it gradually develops, stands in the same relation to its members as the creditor to the debtor. Society protects its members; they are assured against the state of outlawry—on condition that they do not break their pledges to the community. He who breaks his word—the criminal—is relegated to the outlawry involved in exclusion from society.
As Nietzsche, who is so exclusively taken up by the psychological aspect, discards all accessories of scholarship, it is impossible to examine directly the accuracy of his assertions. The historical data will be found collected in Rée's paragraphs on resentment and the sense of justice, and in his section on the buying-off of revenge, i. e. settlement by fines.
Other thinkers besides Nietzsche (such as E. von Hartmann and Rée) have combated the view that the idea of justice has its origin in a state of resentment, and Nietzsche has scarcely brought to light any fresh and convincing proof; but what is characteristic of him as a writer is the excess of personal passion with which he attacks this view, obviously because it is connected with the reasoning of modern democracy.
In many a modern cry for justice there rings a note of plebeian spite and envy. Involuntarily many a modern savant of middle-class or lower middle-class origin has attributed an unwarrantable importance to the atavistic emotions prevalent among those who have been long oppressed: hatred and rancour, spite and thirst for revenge.
Nietzsche does not occupy himself for an instant with the state of things in which revenge does duty as the sole punitive justice; for the death feud is not a manifestation of the thrall's hatred of his master, but of ideas of honour among equals. He dwells exclusively on the contrast between a ruling caste and a caste of slaves, and shows a constantly recurring indignation with doctrines which have caused the progressive among his contemporaries to look with indulgence on the instincts of the populace and with suspicion or hostility on master spirits. His purely personal characteristic, however, the unphilosophical and temperamental in him, is revealed in the trait that, while he has nothing but scorn and contempt for the down-trodden class or race, for the slave morality resulting from its suppressed rancour, he positively revels in the ruling caste's delight in its power, in the atmosphere of healthiness, freedom, frankness and truthfulness in which it lives. Its acts of tyranny he defends or excuses. The image it creates for itself of the slave caste is to him far less falsified than that which the latter forms of the master caste.