Law's Sacrifice

Approaching the Problem of Sacrifice in Law, Literature, and Philosophy

Brian Nail, Jeffrey Ellsworth, Brian Nail, Jeffrey Ellsworth, Brian W. Nail, Jeffrey A. Ellsworth

• Publisher: Routledge
• Year: 2019
• ISBN:
  9780429602115
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This volume examines the relationship between law and sacrifice as a crucial nexus for theorizing the dynamics of creation, destruction, transcendence, and violence within the philosophical and legal discourse of western society.

At a time of populist political unrest, what philosophical and theoretical resources are available for conceptualizing the discontent that seems to emanate from practically every sphere of society? What narrative strategies have been employed within literary, theological, philosophical, and legal discourse to tame or mystify human violence? Engaging with the work of preeminent theorists of sacrifice, such as Georges Bataille, René Girard, Giorgio Agamben, and Jacques Derrida this collection examines from an interdisciplinary perspective the sacrificial logic that characterizes the cultural and political dynamics of law in society.

The book will be of interest to students and scholars in the field of legal theory and philosophy.

1 Introduction

Approaching the Problem of Sacrifice in Law, Literature, and Philosophy

Brian W. Nail

This volume explores the relationship between law and sacrifice, focusing in particular on how the two concepts relate to questions of violence, power, political agency, and the future of liberal democracies in an era of populist political unrest. Throughout this book, sacrifice is employed as a theoretical heuristic for interpreting the “creative-destructive” dynamics at work in the production and maintenance of juridico-political order. Although this collection is highly interdisciplinary, with contributions from scholars working in fields such as legal theory, philosophy, anthropology, religious studies, and literary theory, the purpose of this book is not simply to demonstrate the crucial role that the concept of sacrifice plays in these various disciplines; its aim is, most importantly, to demonstrate how theories of sacrifice might be applied toward an explication of the conceptual aporias underlying political liberal understandings of the function of law in society. The title of this volume, Law’s Sacrifice, inspired by Jeffrey Ellsworth’s contribution entitled “The Sacrifice of Law’s Madness,” encapsulates the dual focus of the book. On the one hand, each chapter elucidates the extent to which philosophical conceptions of legal order are bound up with expressions of force or authority that might be regarded as sacrificial, that is the sacrifice that may be considered epistemologically and ontologically coterminous with law; on the other hand, the final chapters point to the crisis tendencies of political liberalism and the potential for law itself to be sacrificed either to the demands of anti-liberal populism or to liberalism’s own coercive logic—that is the sacrifice of law.

Why sacrifice? Is the concept of sacrifice too obscure or perhaps too encumbered with religious or moralistic connotations to be useful for describing the dynamics of presumably secular cultures? In his influential lecture, “The Force of Law,” Jacques Derrida (1989) argues that “there is no law without enforceability, and no applicability or enforceability of the law without force, whether this force be direct or indirect, physical or symbolic, exterior or interior, brutal or subtly discursive or hermeneutic, coercive or regulative” (925–7). One of the key presuppositions of this volume is that the institutionalization of such force, the foundational violence that inaugurates juridico-political order, may be understood through the hermeneutic lens of sacrifice. Because sacrifice often evokes notions of archaic violence or moralistic notions of altruism, its presence within political and social discourse is often considered problematic, pointing to some effort to disguise victimization or rationalize acts of injustice which give rise to severe inequalities within a given society (Strenski 2003, 1). Although for many modern thinkers the very idea of sacrifice is considered to be morally and politically suspect, in a quotidian sense, the language of sacrifice remains as prominent and potent as ever. As Ivan Strenski (2003) observes, the notion of sacrifice continues to carry so much rhetorical weight “because it is so thoroughly embedded in our cultural traditions and moral history” (1). Despite the fact that many thinkers tend to approach the term with caution, Strenski (2003) asserts that “when we need, as we inevitably do, to consider curtailing individual interests for the sake of others, we find it hard indeed to resist falling into talk about ‘sacrifice’” (2). The persistence of the language of sacrifice in the Western cultural imaginary may indeed be the product of religious traditions, and perhaps most importantly, the theological and philosophical discourses that these traditions have given rise to.

Although legal scholarship has not typically engaged with the language of sacrifice, the study of law and religion has emerged as a distinct field within legal studies. While scholars within the emerging discipline of law and religion typically focus on either secular laws pertaining to religious expression or the religious laws of particular faith traditions, as Russell Sandberg (2011) points out, the discipline also includes “the study of the relationship between law and religion” in terms of their cultural, philosophical, and even theological interconnectedness (5–10). This volume seeks to expand this disciplinary scope through its engagement with the problem of sacrifice in law, literature, and philosophy. It aims to explore the sacrificial dynamics at work within modern political and legal discourse by drawing insights from academic disciplines that are particularly attuned to discourses of cultural production. While legal studies has been dominated by various empirical approaches to legal theory which have emphasized the study of law as a kind of technical, even scientific, discourse, this volume is inspired by the work of scholars in the fields of critical legal studies, law and literature, and the emerging field of cultural legal studies. Unsettling the scientification of legal studies is a particularly critical task at a time when law, in its various forms, is increasingly functioning as “a technological servant of economic rationality” (Everson 2013, 111). The law and economics school of thought, which is the primary purveyor of classical notions of economic rationality within the study of law, may itself be regarded as a kind of legal-scientific approach to the problem of sacrifice in law (Nail 2015, 251–60). Philosophers such as Georges Bataille, Jacques Derrida, Giorgio Agamben, and Jean-Luc Nancy, each in their respective ways, disclose the violence that is implicit in the expressions of sovereignty that have given rise to the institutions and discourses of law in modernity. And the concept of sacrifice has featured prominently within their work.

Across a number of fields in the humanities and social sciences, scholarly interest in sacrifice as a theoretical concept developed rapidly following the publication of René Girard’s highly influential book Violence and the Sacred in 1972. Although his own study of sacrifice has proven less influential than Girard’s, Walter Burkert’s study of ancient Greek religion, Homo Necans, was also published that same year, and like Girard, his study also offered what might be regarded as a general theory of sacrifice. For Girard as well as Burkert, human sociality and indeed culture itself originate through sacrificial practices that found as well as sustain the life of a community. Girard and Burkert are, of course, not the first scholars to focus on sacrifice as a locus of social formation. The apparent ubiquity of sacrificial rituals motivated many modern scholars to regard it as a universal feature of religious cultures. According to the nineteenth-century biblical scholar William Robertson Smith, who is widely credited as one of the earliest modern theorists of sacrifice, the ritual of sacrifice evokes “certain ideas that lie at the very heart of true religion, the fellowship of worshippers with one another in their fellowship with the deity, and the consecration of the bonds of kinship as the type of all right ethical relation between man and man” (Smith 1903, 138). While there is a great deal of scholarship within the field of religious studies ostensibly pointing to the universality of sacrifice as a universal feature of religious practice (Carter 2003, 7), Smith’s assertion that sacrifice constitutes an essential component of “true religion” demonstrates the totalizing tendencies of the modern study of religion. The assumption that sacrificial rituals constituted a universal feature of all religious practices may be considered a demonstration of what Timothy Fitzgerald has described as “the invention of the modern concept of religion” through which religious experience has been theorized as a universal feature of human society that may nevertheless be opposed to the putatively secular project of capitalist modernity (Fitzgerald 2003, 8). Although “sacrifice-like” rituals may be observed in a wide range of religions, the concept plays a particularly prominent role within what might be considered the Western religious tradition, which includes Judaism, Christianity, and Islam. Consequently, it should be noted that theories of sacrifice remain bound up with the theological traditions as well as cultural and political ideologies from which they emerge. And, therefore, efforts to formulate a “universal” theory of sacrifice are often justly critiqued as far too reductive.

To a certain extent, then, the idea of sacrifice obtains its explanatory power within the context of a cultural milieu that is already predisposed to regard it as an essential moral or religious concept. Departing from Smith’s totemic interpretation of sacrifice, in their comparative study of Vedic and Jewish sacrificial rituals, Sacrifice: Its Nature and Functions, Henri Hubert and Marcel Mauss theorize sacrifice as a ritual act that establishes communion between humans and the divine: “Sacrifice is a religious act which, through the consecration of a victim, modifies the condition of the moral person who accomplishes it or that of certain objects with which he is concerned” (Hubert and Mauss 1964, 13). Noting the contemporary relevance of Hubert and Mauss’s definition of sacrifice, Gavin Flood argues that “literal sacrifice changes the community and metaphorical sacrifice, the relinquishing of personal desire for something or someone else, also brings about change” (Flood 2013, 118). It is important to note that, in particular, Marcel Mauss’s later work on gift-giving took place within the context of his political support of placing a moratorium on Germany’s obligations to pay reparations after the First World War (Mallard 2010). The idea of sacrifice, as an object of philosophical inquiry, retains its relevance not simply because it appears to be universal in some religious sense. But perhaps most importantly, the concept of sacrifice provides a pathway for thinking about how individuals and communities create as well as overcome conflict.

For Girard, human sociality is established through a founding murder that is subsequently reenacted through rituals of scapegoating that serve to quell internal violence while also fostering social cohesion. Similarly, Burkert theorizes that rituals of sacrifice first emerged as a way of deflecting intraspecies violence onto an animal who was also simultaneously prey within a community of hunter-gatherers. These rituals of sacrifice initially associated with the hunt eventually became memorialized and incorporated into the political and religious traditions of the Greek polis. Burkert claims, “Although sacrifice began in the hunt, it appeared at its most meticulous and brilliant in the ancient city cultures[.] … It maintained its form and perhaps even acquired its religious function outside the context in which killing was necessary for life” (Burkert 1983, 23). Therefore, Burkert’s theory of sacrifice suggests that the commemoration of the hunt in ancient Greek religion was fundamental to the founding of its civic and political institutions, ones which many scholars regard as the basis of Western culture.

Although their respective theories of sacrifice differ in crucial ways, Girard and Burkert each posit that human culture originates in primitive rituals of sacrifice. Most notably, Girard maintains that modern judicial systems continue to demonstrate the sacrificial logic that was once the domain of religious ritual: “Primitive religion tames, trains, arms, and directs violent impulses as a defensive force against those forms of violence that society regards as inadmissible. It postulates a strange mixture of violence and nonviolence. The same can perhaps be said of our own judicial system of control” (Girard 1979, 20). Although Girard looks to literary texts, in particular works of ancient Greek tragedy, in order to elucidate the logic of scapegoating, his literary theory of sacrifice is also an anthropological theory of the palliative role of violence in society. The pharmakon of law serves as both the poison and the cure for the violence that otherwise threatens society because, as Girard (1979) notes, “The judicial system never hesitates to confront violence head on, because it possesses a monopoly on the means of revenge” (23). In the next chapter of this book, Wolfgang Palaver elucidates the parallels between Girard’s critique of the sacrificial violence implicit to law and similar theories of the relationship between law and sacrifice in the work of Walter Benjamin and Sigmund Freud. Palaver’s chapter concludes with a discussion of the theologico-political figure of the katechon in the New Testament in an effort to develop a theological critique of what he regards as the archaic logic of sacrifice that continues to operate within modern expressions of law. For Palaver, as well as other theologians and scholars committed to peacemaking, the logic of scapegoating that remains embedded within contemporary society’s political, legal, and cultural institutions must be subverted through a theological and philosophical reconceptualization of the idea of sacrifice.

Despite the widespread influence of their theories of sacrifice, Girard and Burkert have also attracted significant criticism. Scholars within the fields of biblical studies, theology, and history have been critical of such efforts to create a general theory of sacrifice, suggesting that both the diversity of sacrificial rituals as well as the specificity of the religious and cultural contexts within which they are practiced defy efforts to define sacrifice according to a single theoretical schematization (Janzen 2004, 75). The archeologist and historian Paul Veyne argues that sacrifice “belongs to a particular category of sociological object” that encompasses such a wide range of ritual activities that it fails to provide any real explanatory power. He suggests that “sacrifice is widely distributed across centuries and across societies because this practice is sufficiently ambiguous for everyone to find in it their own particular satisfaction” (quoted in Parker 2011, 126). In short, Veyne and other historians consider the idea of sacrifice to be primarily a theoretical construct rather than an empirically coherent phenomenon. Elsewhere, theologians and religious scholars have taken issue with the reduction of sacrificial rituals to a mode of institutionalized violence, particularly within the context of Girard’s theory of sacrificial scapegoating (McClymond 2010; Hedley 2011). Girard’s insistence that the violence of scapegoating has only been fully disclosed through the revelatory death of Jesus Christ, as portrayed in the Gospels, has also motivated debate among scholars, who are otherwise persuaded by his theory of sacrifice, to consider whether or not Girard subscribed too narrowly to a theological and philosophical worldview of Christian exceptionalism (Daly 2017; Kirwan 2017). The theologian Sarah Coakley has attempted to articulate an evolutionary theory of sacrifice as cooperation in an effort to defend the rationality of religious, specifically Christian, belief against modern secularist assertions of the irrational and inherently violent nature of religious practice (Coakley 2012). Similarly, in his recent book, Radical Sacrifice, Terry Eagleton seeks to resurrect the notion of sacrifice as a founding principle in the pursuit of a radical politics, recasting Marxist revolution as “a modern version of what the ancient world knew as sacrifice” (Eagleton 2018, 181). These critiques are important, and when taken as valuable contributions to the study of sacrifice, rather than mere dismissals of its relevance, they provide an important counterbalance to the sort of hasty interpretations of religious practices as “[v]iolent, irrational, intolerant, allied to racism and tribalism and bigotry” that tend to define certain contemporary approaches to religious belief and practice (Hitchens 2008, 56).

Nevertheless, the explanatory power of theories of sacrifice such as those offered by Girard and Burkert, in addition to the various theorists discussed in this volume, does not lie expressly in their ability to empirically elucidate the complexities of religious practice across a variety of traditions, cultures, and time periods. Rather, their import is derived from their ability to elucidate the otherwise obscure epistemological and ontological status of violence within human culture. As Wolfgang Palaver observes:

Girard and Burkert are “seismographs” above all with regard to their registering of violence, an issue often avoided by cultural theorists. Both thinkers approach the study of human society by focusing on social discord, not on times of peace, one reason for the importance each attributes to violence in the formation of culture. (Palaver 2010, 124)

In the various studies contained in this volume, the notion of sacrifice provides a framework for conceptualizing the foundational role that violence plays in the establishment and maintenance of social and juridico-political order.

Drawing upon Jean-Luc Nancy, Maurice Blanchot, and Jacques Derrida’s respective engagements with Georges Bataille’s philosophy of sacrifice, in her chapter, Marie Chabbert offers a reexamination of his critique of the aneconomic self-sacrifice pursued by ontotheology in an effort to demonstrate the lasting legacy of the obscure librarian’s work in contemporary philosophy. According to Chabbert, Bataille’s fascination with ancient rituals of sacrifice is not merely, as his critics suggest, an expression of religious fetishism, but rather, she argues that there is a complex ethical dimension to Bataille’s philosophy of sacrifice that seeks to disclose the economic threat posed by aneconomic self-sacrifice while also revealing the aneconomic logic at work within ancient rituals of sacrifice. Chabbert’s chapter draws out the political and philosophical implications of Bataille’s theory of sacrifice. Likewise, in his discussion of sacrifice and Maurice Blanchot’s essay “Literature and the Right to Death” in chapter three, Arthur Cools examines the philosophical implications of sacrifice’s transformation from a concept rooted in religious practice into an imaginary concept within the context of secular modernity. Linking the conceptualization of sacrifice to the general trend of desacralization in secular society, or in other words the decline of social forms of the sacred, Cools argues that sacrifice is displaced to the realm of the imagination. Consequently, it no longer connects humans to a common transcendence but rather isolates and singularizes the individual. While each author in these opening chapters approaches the idea of sacrifice from a ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Acknowledgements
• List of contributors
• 1. Introduction: Approaching the Problem of Sacrifice in Law, Literature, and Philosophy
• 2. Sacrifice and the Origin of Law
• 3. Towards a Sacrificial Aneconomy? Georges Bataille and the Aporia of Sacrifice
• 4. (Misguided) Self-transcendence and the Imagination of Sacrifice
• 5. A We Not Modeled on the I: The Law of Law, and Futurity
• 6. Homo Sacrificus: Sacrificial Economization and Neoliberal Subjectivity
• 7. Law, Authority, and the Sovereign Exception: The (Im)possibility of Political Agency
• 8. The Gift of Time and the Hour of Sacrifice: A Philosophical-Anthropological Analysis of the Deep Difference between Political Liberal and Populist Politics
• 9. Sacrificial Liberalism: The Politics of Zeal and its Selective Denial in Rawls’s Political Liberalism
• 10. The Sacrifice of Law’s Madness
• Index