Laments, Remedies, Rights: Nietzsche’s Genealogy of Morality through the Prism of Roman Law

• Published date: 01 September 2022
• Author: Tatjana Sheplyakova
• Date: 01 September 2022
• DOI: http://doi.org/10.1111/raju.12360

Ratio Juris. Vol. 35 No. 3 September 2022 (290–309)

© 2022 The Author. Ratio Juris published by University of Bologna and John Wiley & Sons Ltd.

Laments, Remedies, Rights:

Nietzsche’s Genealogy of Morality

through the Prism of Roman Law

TATJANA SHEPLYAKOVA*

Abstract. This article draws on the analysis of Roman law and on the Jewish tradition of lamen-

tation to offer an original reinterpretation of Nietzsche’s On the Genealogy of Morality. According

to Nietzsche, an archetype of a successful revolt against injustice is to be attributed to the

Jews— as the ones who were able to carry out “the most spiritual revenge” against the Roman

“masters” by transvaluing their values. The analysis of ancient Roman law helps to illuminate

Nietzsche’s enigmatic account of the “law of the masters” against which the transvaluation of

values takes place. Certain structural elements of the language of lament are then envisioned as

a resource for leaving the Roman legal order behind and, surprisingly, for bringing out the very

meaning of the modern conception of “rights.”

1. Nietzsche’s Genealogy Reconsidered

“The sense of right is a ressentiment; it belongs together with revenge,” or, in German:

“Das Rechtsgefühl ist ein Ressentiment, gehört mit der Rache zusammen”: Nietzsche

made this note in the summer of 1875 while reading Eugen Dühring’s The Value of Life

(1865) (see Thatcher1989, 589; my translation of Nietzsche). Two years later, in the

first essay of his famous work On the Genealogy of Morality, Nietzsche presented us

with the original scene of what he calls a successful revolt against injustice. This re-

volt is attributed to the Jews. The Jewish “slaves’ revolt in morality” is praised as “the

most spiritual revenge” ever performed against the Roman rulers whom he refers to

as the “masters” (Nietzsche2007, 20, 17).1 Nietzsche characterizes the Romans as

those who claimed the right to create values out of the “pathos of distance,” while the

1 In the translation, spiritual replaces deliberate, as it does throughout this text in the references

made to Nietzsche’s phrase “Akt der geistigsten Rache” (in Nietzsche1999a, 267).

This is an open access article under the terms of the Creative Commons Attribution License, which permits use, distribution

and reproduction in any medium, provided the original work is properly cited.

* A first version of this article was presented at the conference Lament and Revenge: On the

Violence of Language, held at Goethe University Frankfurt in April 2017. I am grateful to Ilit

Ferber and Juliane Prade- Weiss for organizing this event and to all participants for stimulating

comments and discussion. I would also like to thank Javier Burdman, André Möller, and Paul

Stephan for their constructive and critical comments on an earlier draft, as well as the journal’s

anonymous reviewers for their insightful feedback. Research for this article was supported by

the Normative Orders Research Centre at the Goethe University Frankfurt. Open Access fund-

ing enabled and organized by Projekt DEAL.

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Ratio Juris, Vol. 35, No. 3 © 2022 The Author. Ratio Juris published by University of Bologna and John Wiley & Sons Ltd.

Laments, Remedies, Rights

Jews are presented as the ones who were unable to undertake a real (physical) action

against their suppressors. Instead, by turning weakness into strength— and specifi-

cally by discovering a strength of an utterly different kind than that of the masters—

they took revenge in the most imaginative way possible, namely, by transvaluing

preexisting values, in fact by revolutionizing a whole culture of judgment.

Taking this as my lead, I will draw on the Jewish tradition of lamentation to pro-

pose a reinterpretation of Nietzsche’s Genealogy. I will suggest that the original scene

of change of “value- positing” views he confronts us with in the first essay of his

book is in fact indicative not of the genealogy of morality but of the genealogy of the

very idea of rights. The genealogical trajectory that will take shape in the course of

this paper will demonstrate that the emergence of the notion of “rights” requires an

overcoming of the Roman law paradigm. On the one hand, the emergence of that

notion rests on the crucial transformation that occurred within Roman law when

the strict formalism of legis actiones was replaced by the formulary procedure that,

in turn, gave the Roman law its distinctive form, its remedial structure. On the other

hand, as I will argue at the end of this paper, the very meaning of rights only becomes

comprehensible once we leave the remedial structure of Roman law behind.

Surprisingly, we can draw these conclusions from Nietzsche’s Genealogy. This,

however, requires reading Nietzsche through the prism of legal history, something

which is rarely done in Nietzsche scholarship. And yet it seems quite an obvious

thing to do. It is known that, although Nietzsche wrote this study within the space of

three weeks,2 its composition had been preceded by years of scholarly work. Among

the writings he consulted were also those of legal scholars. The main reference points

for Nietzsche were Alfred Hermann Post’s studies in ethnology and law, Josef

Kohler’s books on criminal law, and also, most likely, Rudolf von Jhering’s works

dealing extensively with Roman law.3 Also on the level of the text itself, the analogy

between some structural elements of ancient Roman law and some of the figures that

Nietzsche employs in his account of the “slaves’ revolt in morality” is striking and

hard to ignore. In what follows, I will pursue this analogy as a hermeneutic strategy

to understand the nature of this “revolt,” whose success resides in transvaluing the

formerly predominant form of valuation.

I will begin by briefly recapitulating what constitutes the “slaves’ revolt in moral-

ity,” which Nietzsche refers to as an “act of the most spiritual revenge” by the Jews

(Section2). Following this, I will make references to ancient Roman law in order to

illuminate the state of affairs against which the “slaves’ revolt” is directed. This section

seeks to understand what the predominant form of valuation looked like that would

be overthrown by the new type of thinking, namely, a new culture of judgment that

the Jews stand for in Nietzsche’s account (Section3). To address the question of how

this new culture of judgment could emerge, I will then turn to the Jewish tradition of

2 Specifically between June 10 and July 3, 1887 (see Brusotti2011, 125).

3 On this background, see Orsucci2001. For an overview of Nietzsche’s readings in legal his-

tory, see Sommer2019, 17. Among the works read by Nietzsche there must have been Albert

Hermann Post 1878; 1880– 81; 1884; Josef Kohler 1883; 1885a; 1885b; 1886; and Salomon

Stricker1884. Jhering’s influence on Nietzsche, discussed in Kerger1988 and 2001, is controver-

sial; it is certain, however, that Nietzsche was familiar with Jhering’s writings through

Stricker’s 1884 Physiologie des Rechts and also through Kohler’s criticisms of Jhering (see

Sommer2019, 267, 320).