Sacred Power and Sacrificial Punishment. On Sacrifice as a Politico-Theological Paradigm for the History of Criminal Law

Sacrifice, this interdisciplinary investigation asserts, offers a fascinating hermeneutical paradigm to shed new light on the history of criminal law and political power from about the later Middle Ages until the fall of the ancien régime. By teasing out sacrificial tenets of Western political theology, the sacrificial interpretation of penal history which I propose can be contextually embedded. René Girard, above all others, provides the main inspiration for this endeavor.

To recognize sacrificial patterns in European history, an overview of the anthropology of sacrifice is indispensable (Girard, Burkert, Laum, Maccoby, Valeri,…). In order to find out how sacrifice and punishment are genealogically related, what structural analogies they share, and which principles can be deduced to trace the sacrificial dimension in criminal law, the anthropology of sacrifice is mined to interpret established theoretical reflections on law (Verdier, Tricaud, Durkheim, Robert, McBride, Kahan, Miller, Schmitt, Esposito…).

Since punishment is a manifestation of power, a sacrificial interpretation of criminal law should ideally be grafted upon a sacrificial conception of the political. For that reason, the anthropological pattern of sacrificial kingship is explored next (Girard, Scubla, Simonse, de Heusch). This pattern fits accounts of sovereignty like Agamben’s - whose homo sacer can be inserted into the sacrificial paradigm - and is equally attestable in Roman (Serres), medieval and early modern kingship (Bloch, Walzer, Turchetti, Kantorowicz, Bertelli,…). The ensuing hypothesis of sacrificial politics can be further reinforced by an analysis of the state of exception. While legal historians (Saint-Bonnet, de Wilde) have identified the state of exception as the engine of absolute power, I argue it operates on sacrificial logic.

Because the political and the theological mirror each other, the sacrificial dimension of the political can be enshrined in an overarching sacrificial politico-theological dispositif. Identifying in this context a theological substratum for the hypothesis of sacrificial punishment is the following step on our path.  Drawing on Kotsko, the image of god construed since the central Middle Ages can be unmasked as that of a satanic and sacrificial deity who is to be appeased through suffering, while hell and purgatory are identified as the sacrificio-penal apparatus upon which divine power depends. Taking the mirror hall of political theology into consideration, I propose to regard the sacrificio-penal system in the afterlife as the mimetic model for its earthly pendant.

Finally it is against the backdrop of a sacrificial politico-theological dispositif that the sacrificial dimension of punishment can be plausibly brought to light. I aspire to do so by identifying essential developments in the making of a sacrificio-penal system (Radbruch, Immink, Bartlett, Sellin, Whitman, Moore, Chiffoleau, Peters…); by inspecting the sacred aura of the penal process (e.g. the sacralization of the convict, the executioner as homo sacer, sacrificial doctrines of punishment (Cohen, Friedland, Bée, Evans, Merback, van Dülmen, Stuart, Spierenburg, Carpzov, Maihold)); by relating the modalities of punishments - even those devoid of bloodshed - to sacrifice; and by unveiling sacrificial logic in criminal procedure - especially in the exceptional regime under which it may operate to tackle the most heinous crimes like lese-majesty (Schmoeckel, Langbein, Kéry, Théry, Sbriccoli, Fraher, Whitman,...).

In short, the shaping of the penal system and its modus operandi can be understood as that of an hitherto un(der)acknowledged sacrificial system, functioning within the wider context of sacrificial political theology. The penal system may thus come to the fore as a sacrificial engine, which by sacralizing violence (Girard) produces the sacralization of the state (Gauchet) and the sacralization of the penal process as a whole.