Abstract
Beginning with the current environment of populism, this article considers the scapegoat as a general notion and as it appears in the work of René Girard and Sigmund Freud. For the latter thinkers, myth, ritual remembrance and current practices in the present, as proposed, for example, by Hobbes, form the basis of the method that would expose the reality of the violent origin of society, the law and the political. The reliance on secondary data means that the origin is only grasped speculatively, not scientifically. The article develops the implications of this for an understanding of the status of the law as a bulwark against scapegoating. The conclution is that to combat injustice, law must be united with a certain transcendence.
We begin with an outline of populism as it is currently encountered because, in the past, if not now, it has been closely linked to scapegoating, that is, to the implementation of punishment based on prejudice rather than evidence, which is the basis of injustice.
Thus, the third decade of the 21st century has seen the revival of a populism that is not only manifest in populist leaders (such as Hungary’s Viktor Orbán) and populist movements (such as the French ‘National Rally’ party), but is also manifest in opposition to conventional science as witnessed by the ascendancy of the antivax movement, conspiracy theories, and appeals to emotion and identity, something that has led various commentators (see Newman, 2024) to designate the current era as one of ‘post-truth’. A key thread of populism, then, sees science, the law and the knowledge of experts as being above and therefore against the people 1 as the majority – hence the constant references to ‘élites’.
In the populist mind, law qua law is often viewed with suspicion because, it is claimed, law is against the people (especially when enforcing rules of social behaviour). Or again, as Coglianese (2020) has argued, populism often makes the law itself a scapegoat for the people’s ills. And, for her part, Lacey (2019) has pointed out a feature of populism is precisely that it puts the rule of law under pressure.
Does the term ‘witch hunt’ thus fit with today’s populist imagination? Here there has perhaps been an interesting reversal. Even though the British ‘Witchcraft Act’ of 1735 (repealed in 1951) made it illegal to accuse someone of witchcraft, populist leaders, such as Donald Trump, still claim to be the victims of witch hunts. The presidential candidate (as he was at the time) thus called the various legal proceedings brought against him a ‘witch hunt’. While in the past (e.g. the Salem witch trials of 1692–3) conspiratorial fantasies were called ‘truth’, now, hard evidence is often characterized as prejudice or fantasy, that is, as ‘evidence’ of a witch hunt. Nevertheless, it has also been pointed out that
real witch hunts are occurring under the veil of newly enacted laws and lawsuits targeting women, communities of color, and the LGBTQ community. Often, the arguments supporting this legislation and litigation are not based on science or verifiable data; rather, they are based on ‘spectral evidence,’ meant to stir fear and drum up rage. (Sherwin, 2023: 3)
In other words, the law has seemingly failed to fulfill what many would see as its mission to stem injustice.
Muller (2021), relying on René Girard’s work, has pointed to the strong connection between populism and scapegoating. In particular, populism turns the ‘outsider’ (the migrant, the stranger, the one who is different) into a scapegoat. Hence, the targeting of Mexican immigrants in Donald Trump’s 2016 and 2024 rally speeches.
The idea of a scapegoat as an arbitrarily chosen, thus innocent, victim is then, from the perspective of Western judicial institutions, the height of injustice. 2 In a perspective broader than can be addressed in this article the question arises as to just how successful has been the law – pillar of the said institutions – in preventing injustice in general and injustice as regards the scapegoat in particular? The answer is that without a vision of the good – of ‘right’ – as its basis, the law – especially statutory law – has often failed when and where it was most needed.
For his part, Girard (1979, 1989) takes us to the fate of the scapegoat in, as he says, ‘archaic’ societies. Here, a victim is encountered, one arbitrarily chosen (therefore a ‘surrogate’) for sacrifice, ostensibly so that violence can be brought under control. ‘Arbitrarily chosen’: who today does not wince at the injustice evoked by this phrase? Modern society, Girard tells us, has, for its part, erected ‘judicial institutions’ with the exact purpose of only convicting those who are proven to be guilty ‘beyond reasonable doubt’. In other words, the law is supposed to protect the innocent. Has it always done so? Does it succeed in the present in doing so? A response to these questions must be ‘no’; for, indeed, there are and have been bad laws.
Can the origin of the term ‘scapegoat’ illuminate the law’s actual status and functioning? As already noted, the main purpose of the scapegoat mechanism is to prevent violence, or to end violence. For, according to Girard, as contagious, the latter threatens the very existence of society or any communal grouping. However, a less straightforward picture emerges if one acknowledges both the Old Testament depiction of the scapegoat and its status in arenas such as that of ancient Greece. In the latter domain, calamitous droughts, famines and plagues prompted the selection of what today would be called a scapegoat. Thus, in a study of scapegoating in ancient Greece, Jan Bremmer (1983: 301) reports that: ‘In Leukas a criminal was cast off a rock into the sea for the sake of averting evil during a festival of Apollo.’
To turn to the Judaeo-Christian context, it is well known that the figure of a goat that becomes a scapegoat appears in Leviticus 16:10, which reads: ‘But the goat, on which the lot fell to be the scapegoat, shall be presented alive before the Lord, to make an atonement with him, and to let him go for a scapegoat into the wilderness.’
What interests us here is the scapegoat’s role as medium. Thus: ‘The goat shall bear all the [children of Israel’s] iniquities upon him to a solitary land and he shall let the goat go into the wilderness’ (cited in Douglas, 1995: 7). For Douglas, the idea of a figure that is not itself responsible for iniquity but becomes the bearer of the other’s wickedness gives rise to the notion of substitution as captured in the popular terms ‘whipping boy’, ‘fall guy’, ‘dupe’, ‘setup’ (p. 10).
The goat, then, becomes the medium through which a community might purge itself of its sins. Apparently, rituals like the Azazel (the Jewish name for the ceremony of releasing the scapegoat into the wilderness) were widespread in the ancient world (Rashkow, 2023: 88). And, indeed, Girard finds a situation analogous to that of the Azazel in Christ’s encounter with the man from Gerasa possessed by demons. The demons beg to be cast out into a herd of pigs, and Jesus agrees to this request. One pig, then the rest, rush over a cliff and are drowned, thereby confirming, according to Girard, the mimeticism thesis, 3 or the principle of ‘the crowd mentality’ (1989: 185). As will be revealed shortly, for Serres (2015 [1982]) the scapegoat as medium becomes the arbitrary, third element, or the ‘excluded middle’.
Moreover, as medium, the scapegoat shares features with Serres’s conception of the parasite. Girard’s emphasis on the arbitrary status of the surrogate victim thus implies that the scapegoat too is a medium, if not an entity of parasitic complexion.
While Girard refers to Leviticus in passing (1987: 33), his key terms – ‘scapegoat’, ‘surrogate victim’ and ‘stereotypes of persecution’ – are not explicitly related to the biblical rendition. Instead of debating the meaning of the term, Girard shifts the focus onto the nature of events that have a scapegoat component – the first of these being the sacrifice – the ‘crime’ – that gives birth to society and, in Freud’s version, of the primal horde where the sons, in killing the father, give birth to the law (see Freud, 2001: 141–6). Sacrifice and the sacred is thus the key theme of Girard’s highly influential Violence and the Sacred (1979), while ‘stereotypes of persecution’ is the dominant theme of his book The Scapegoat (1989).
‘The function of sacrifice’, Girard argues, ‘not only allows for but requires a surrogate victim – in other words, violent unanimity. In ritual sacrifice the victim, when actually put to death, diverts violence from its forbidden objectives within the community’ (1979: 101, emphasis added). 4 The victim, arbitrarily chosen, is thus, in a modern legal sense, ‘innocent’, the putative aim of the law being to protect the innocent and to convict only those who are proven guilty ‘beyond reasonable doubt’.
Of course, one hardly needs to be remined that the law has often been manipulated to convict the innocent. Before Auschwitz there was, in 1894, the notorious Dreyfus Affair in France where a Jew, Alfred Dreyfus, an artillery officer in the French army, was twice convicted of treason based on fabricated evidence. Dreyfus, then, was a modern-day scapegoat, a person persecuted in a climate of vicious antisemitism. 5
Even though the law was corrupted, the difference with Girard’s characterization of the ‘original’ sacrifice is that the persecution of Dreyfus was not unanimous, due in good measure (it might be supposed) to the presence in French society of the idea of the law as the incarnation of justice. Zola, in ‘J’Accuse’, thus refers to Dreyfus’s convictions as a ‘miscarriage of justice’ and saw his entreaty to the President of the Republic as a ‘cry for justice’ (see Zola, 1898). Girard’s comment is pertinent here: ‘sometimes the persecutors choose their victims because they belong to a class that is particularly susceptible to persecution rather than because of any crimes they have committed’ (1989: 17). Thus, during the plague in northern France from 1349 to 1350, ‘Jews were massacred at the mere mention of the plague being in the area, even before it had actually arrived’ (p. 3).
For Girard, and those who follow him, the scapegoat mechanism – where ‘all against one’ brings a return to order – explains the origin of society, an origin that is essentially religious in nature. But within the scope of modern law, sacrificial violence is ‘unjust, illegal, and illegitimate’ (1989: 23).
Viewed more generally, the question arising is: what is the nature, or origin, of the law – what, ultimately, is the law’s raison d’être? In response, let us say that the law, as rational and dedicated to revealing what is essential, is opposed to the arbitrary basis of sacrifice.
A full response to this question must remain for another time. In what follows, we will see that the scapegoat mechanism is present in notions of the political and that the law, the political and society are coloured by the assumption of violence at the origin.
Further illumination of scapegoating and injustice is provided by the situations of the slave, the foreigner and the refugee. The theme is discussed by Émile Benveniste in Le Vocabulaire des institutions indo-européennes (Benveniste, 1969). As Benveniste shows, not only are ‘slave’ and ‘scapegoat’ interchangeable, but a slave is frequently a foreigner, as slaves were in many domains predominantly prisoners of war from foreign lands and could be bought and sold. On the other hand, foreigners come under the auspices of the rules of hospitality – rules aimed at reducing, if not preventing, hostility between groups and individuals.
Of equal significance is the derivation of the word ‘slave’ from ‘slav’ and from wealh, meaning ‘the Celt’ (cf. Old English term; Benveniste, 1969: 360), Celts being, says the linguist, ‘a subjugated people’ (p. 360). 6 To bring ‘slave’ and ‘foreigner’ into the picture considerably broadens the scapegoat perspective. Moreover, the image of a subjected people puts the scapegoat theme in contact with Arendt’s (1968a: 121–3) Totalitarianism and the concept of an ‘objective opposition’ or enemy under totalitarian government, compared to a ‘hostile opposition’ or enemy. The former refers to an opposition that is designated as dangerous to society, even though no actual hostile act or crime has been committed. Examples given by Arendt are the bourgeoisie under Stalinism and the Jews under Nazism. 7
Carl Schmitt’s theory (see Schmitt, 2007) of the friend-enemy opposition as the essence of the political inevitably leads to a privileging of the ‘objective’ enemy, an enemy designated as such without any hostile act being committed. 8 The ‘objective’ enemy – the enemy innocent of any specific hostile act here and now – would conform precisely with the scapegoat, to the extent that this enemy is arbitrarily designated. Therefore, if Schmitt’s argument that the ‘friend-enemy’ dichotomy as the essence of the political were valid, it would imply that the scapegoat mechanism is at the heart of the political – that the political is at least partly, if not wholly, totalitarian. What needs to be discussed when dealing with Schmitt is whether, in his theory, an enemy is always needed, something which suggests that the enemy could well be anyone, or any group.
Indeed, Schmitt, in one definition of the enemy, defines it as ‘the other, the stranger; and [he continues] it is sufficient for his nature that he is, in a specially intense way, existentially something different and alien so that in the extreme case conflicts with him are possible’ (1985: 27). We have already seen that there is a close link between the other (the migrant, the outsider, one who is different) and the scapegoat. Schmitt thus reinforces this link.
Again, in another passage, the claim is that for the political to hold, a decision must be made regarding the friend-enemy dichotomy:
as long as a people exists in the political sphere, this people must, even if only in the most extreme case [. . .] determine by itself the distinction of friend and enemy. Therein resides the essence of its political existence. When it no longer possesses the capacity or the will to make this distinction, it ceases to exist politically. (1985: 49, emphasis added)
Although the term ‘existential’ is used by Schmitt on a number of occasions to refer to the enemy, thus suggesting a real and actual threat, the whole idea of an a priori concept of the political as the friend-enemy dichotomy and the decision-making just cited, mitigates against any notion of the primacy of the existential. 9
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Inspired by Girard’s notion of the scapegoat (and thereby indicating the scope of the influence of Girard’s scapegoat theory), Michel Serres, in his book Rome (2015), aligns the scapegoat with the ‘third’ or excluded middle. The scapegoat is also the ‘third’ as medium, as is depicted in Leviticus. But an adherence to Girard’s theory means that – for Serres, too – violence is at the origin: Romulus, after all, killed Remus – a point that Serres does not tire of repeating: ‘The culture founded on death only returns to death, repetitively. The knowledge founded on murder returns to murder multiplied by knowledge’ (2015: 91). Moreover:
The hatred between twins grows like ivy in the group; it goes towards extinction, and there is no foundation unless, stopping the reciprocal throat-slitting, the crowd turns against one among them. René Girard’s lesson, the schema he has proposed, makes these two contradictory stories compatible; it even makes them complementary. (2015: 91)
Here, Serres tells us, with reference to the ‘excluded middle’, that we are in touch with the anthropological explanation of society: ‘The excluded middle or third is the scapegoat: the scapegoat is the foundation of anthropology, the excluded middle is the foundation of our logic. They bear the same name’ (2015: 126). In keeping with Serres’s overall project to show that the abstract and the concrete are always two faces of the same figure, the scapegoat is the concrete incarnation of the logical principle. Thus:
What is this logic? What is this logic whose genealogy we have just traced? This logic, this principle, this pure form of the excluded middle is not so pure or so formal. This principle, in the principle, beyond ontology, beyond classical theology, goes back to mythology, to the anthropology of sacrifice. (2015: 141)
However, if it is claimed that: ‘In the beginning therefore is violence’ (p. 136) – the violence of sacrifice – how can it sustain the abstract excluded middle, the principle of non-violence, as it were?
On first blush, this does not seem plausible. However, once the excluded middle is equated with the ‘excluded third’, as this is defined in Serres’s theory of the parasite, a different picture emerges, as the following passage reveals: ‘Who is the third? Someone, anyone. The noise stops; someone leaves. Someone, anyone: both formal and random’ (Serres, 1982: 55). Here, the comparison of the parasite with the surrogate victim would seem to be justified, for Girard claims that, ‘anybody can play the part of surrogate victim [. . . ] The crucial fact being that the choice of the victim is arbitrary’ (1979: 257).
Despite the conceptual nature of the ‘excluded third’, Serres, like the anthropologist, tarries with the sacred and violence at the origin – at the origin of society and culture and, thus, of the political. The origin here is one of pure immanence. It is also the violence that for so many commentators would give rise to the law. Were there no violence, there would be no law.
Let us summarize this situation before continuing our analysis: while the scapegoat introduces the arbitrary, the random, the innocent surrogate victim, the third, the parasitical, law, as justice, aims to reveal: the essential, the deliberate, the rational, the guilty, the factual, the true. Of course, bad laws have sullied the notion of the law as justice and have no doubt encouraged negative critiques. The underlying questions in what follows are: does it make sense to investigate the origin of law and the political? Or is the very notion of an immanent (materialist) origin part of the problem? My point is that the latter is very much the case. The reason for going into detail concerning what I will call ‘immanentism’ is to highlight the predominance of its purely speculative underpinning – such as the origin of the political as couched in the myth of the state of nature, or the idea of human nature as inherently violent.
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Of course, in current parlance (the parlance of the ‘plane of immanence’), the binary opposite of immanence is transcendence. But my claim, inspired by Levinas, is that the relation between immanence and transcendence is not symmetrical. This entails that transcendence is not to be understood in idealist terms (which allows it to become an object of thought), even though it could be conceded that it is an ‘idea’ that ‘comes to mind’. Transcendence is beyond immanence and thus cannot be translated into its terms, even if the material basis of reality is not to be denied. Justice, then, is not the simple opposite of injustice, but is beyond the terms and reality of injustice (scapegoating). If law is connected to transcendence, it is in the sense that its foundation is transcendent – that is, beyond law as encountered in the world, as, for example, in the history of law. This, then, is what law as doit, as Recht, as diritto, etc., alludes to.
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Consequently, in light of the foregoing, a thorough examination of the law and the political conceived as immanence and as the other of transcendence offers us an insight (albeit indirect) into justice as transcendence as inspired by Levinas’s philosophy of ethics as transcendence, a philosophy that indeed may well have the measure of the putative dominance of the origin of the political as exemplifying immanence. The thesis is that politics, if not the political, posited as essentially founded in violence and conflict – in war – is the domain of immanence and the negative, if not of evil. This implies that ethics and the law as ‘right’ must remain separated from politics and the political. An ethics inspired by Levinas is about conflict and violence, if not transcended, then bypassed. 10
Hence, not only is war essentially opposed to ethics, but the political – thus, politics – is war (von Clausewitz was right!) or conflict at the highest level. Being, totality – the ontological – freedom, as essential immanence, harbour the political. Consequently, Levinas states in Totality and Infinity (Levinas, 2012) that: ‘Heideggerian ontology affirms the primacy of freedom over ethics’ (p. 45)
With Hobbes, says Levinas, one cannot ‘set a limit on the state’ (p. 93). Nevertheless, ‘one cannot say that there is no legitimate violence’ (p. 93). Consequently, the term ‘scapegoat’ can signify the injustice of innocent individuals being treated as guilty. If the scapegoat can only be defined as such in relation to law, a critique of the law is called for. There is a transfer of guilt onto the innocent – but innocent in relation to what? Just as there is no crime without law, so the scapegoat is only visible in relation to law.
Girard’s Scapegoat and the Method of Myth
Reference to the ‘purely speculative’ above prompts an examination of Girard’s method of myth. The concern of this section, then, is to introduce a hiatus. For while the main focus in the previous section was on the relation of the scapegoat to law and justice, this is not Girard’s key concern. On the contrary, for Girard and, I would say, for a majority of thinkers in this field, the central issue is the origin of society, the political and the law, an origin steeped in violence, in murder – in a crime. The scapegoat becomes, in a certain sense, ‘proof’ of violence at the origin. Such is the way that the predominance of immanence and finitude is reinforced in an explanation of law and society and, at the same time, the connection between law and justice is rendered problematic. Consequently, the primacy of violence in explanations of law, society and the political, and the method involved in establishing this, must be challenged. For if violence at the origin is assumed – if immanence is privileged – then law, as the supposed bulwark against violence, is also steeped in immanence and, consequently, iniquitous laws are forever a possibility.
It is, then, impossible to grasp the deeper sense of ‘scapegoat’ and of ‘violence’ for Girard without also becoming conversant with his method. The latter, as will become apparent, enables our theorist to link the scapegoat with the sacred and thus with violence at the origin of society. In short, more than an exemplar of justice or injustice, the scapegoat – as we saw earlier in Serres’s summation – is evidence that society is founded on sacrifice as the killing of a scapegoat. Already, we have seen that Serres concedes this point. And Freud’s presentation of the primal horde and ‘collective murder’ is invoked by Girard to confirm the thesis of original violence, even if he rejects key aspects of Freud’s psychoanalytic framework, such as the theory of the unconscious.
In the opening paragraph of his collection of essays on the notion of the scapegoat, Girard offers an observation of considerable methodological importance, namely: ‘a series of catastrophic events’ as recounted in the opening of the Judgment of the King of Navarre, a work of the 14th century by the French poet Guillaume de Machaut (1300–77), which raises the question of the truth of the account. Crucially, Girard remarks that, ‘the account leaves the impression that something must actually have happened’ (1989: 1). Here, it is ‘the account’ – later, it will be ‘the myth’ that will, the author proposes, leave a strong impression on the reader that something must have happened. Actual empirical evidence of the events themselves may not be available, but the impact of these events, as gained through secondary material such as poetry and myth, is, for Girard, fully available. In effect, Girard proceeds as though the consequent affirms the precedent: If A then B; B therefore A. Or rather, we should say, simply: B therefore A because A has not been encountered in any historical sense. 11 For Girard, there was an original murder that gave rise to the sacrifice of the scapegoat. But evidence of this only exists in Girard’s presentation through the interpretation of various myths, the argument being that if the violent events evoked in myths did not occur there would be no myths. The existence of myths in the present thus confirms, it is claimed, ‘that something must actually have happened’. It is important to keep in mind the method set out here as we proceed to a more detailed interpretation of the inquiries into the scapegoat mechanism in Girard’s book The Scapegoat (1989).
The Scapegoat and Secondary Sources
The status of Girard’s claim to be rigorous and scientific is now at issue. Myths, according to our theorist, never refer directly to an original murder, nor, indeed, do they provide direct evidence of collective murder even if, in fact, they have their roots in real persecutions. Myths tell the story from the persecutor’s perspective. Persecutors endeavour to conceal the fact of collective murder – that is, the killing of scapegoats. Thus, the ‘golden rule of persecution texts’ is that: ‘the mind of a persecutor creates a certain type of illusion and the traces of this illusion confirm rather than invalidate the existence of a certain kind of event, the persecution itself in which the witch is put to death’ (Girard, 1989: 11). The very existence of persecution myths entails that ‘a real victim lies behind the text’ (p. 26), and yet myth at the same time aims – as has been said – to conceal this reality. The latter involves the sacred and the sacred involves a victim, the scapegoat:
The victim is a scapegoat. Everyone has a clear understanding of this expression; no one has any hesitation about its meaning. Scapegoat indicates both the innocence of the victims, the collective polarization in opposition to them, and the collective end result of that polarization. (1989: 39)
Ultimately, Girard maintains, ‘[t]he foundation and structure of every community is based on violence that is and should have remained destructive at its very essence, but by some miracle the community has been able to ward off this violence’ (p. 94). Here, to reiterate, violence at the origin means the privileging of immanence over transcendence.
However, the meaning of ‘scapegoat’ and ‘victim’ that Girard and others assume is self-evident is in fact based on a number of implicit factors. First, as Girard’s commentary on myths reveals, persecutors never recognize the persecuted as scapegoats. To do so would be to acknowledge the innocence of those persecuted. For the persecutors, the persecuted are guilty. Thus, Brian Leiter observes that in a pre-modern era:
The adulterer became the victim of the wrath of the community ravaged by disease, since the community wrongly believed the adultery caused the harm to the community as a whole. So harmed, that adulterer [sic] simply became another seething cauldron of ressentiment looking for a target for its distress (perhaps the community as a whole, perhaps the religious leader who led the community to make him the target of its anger). (Leiter, 2019: 86)
Consequently, a scapegoat exists so long as the persecutors believe in the guilt of the persecuted victim.
In the modern era, a post-enlightenment concept of law aims to adjudicate between guilt and innocence. This is implicitly recognized by Girard when he proclaims that Christ’s passion reveals the truth that sacrificial societies of the past have engaged in the collective murder of scapegoats. Thus: ‘The passion reveals the scapegoat mechanism, i.e., that which should remain invisible if these forces are to maintain themselves’ (1989: 166). The aim is ‘to put an end to humanity’s imprisonment in the system of mythological representation based on the false transcendence of a victim who is made sacred because of the unanimous verdict of guilt’ (p. 166).
At the present time, the principle that supposedly prevents scapegoating is the law, hence the importance of having ‘good’ laws. Bad laws attribute guilt where there is innocence and innocence where there is guilt. The experience of National Socialism is a prime exemplar of this.
The secular law in Anglo-European culture has been the harbinger of what counts as guilt and innocence. This is why so much hinges on the proclamation of good laws. If a bad law – such as Nazi laws persecuting the Jews – gives rise to the scapegoat (persecution of the innocent), how is it that the persecutory status of the law becomes evident if not through reference to a higher law? Is this the law of ethics of which Levinas speaks? An upshot amongst others is that to speak of law in general is misleading. For there is no law in itself – at least not in a secular context; there are only particular laws. Thus, as concerns the scapegoat victim it makes no sense to invoke the law in general as the harbinger of innocence and guilt. In the legal/jurisprudential philosophy literature, the content of the law, quite evidently, is not up for discussion. Rather, the issues debated have to do with how laws are implemented and whether, in relation to existing laws, the presumption of innocence and other safeguards for those accused have been implemented. To be argued in this study is that innocence and guilt only make sense and are of crucial importance when considered in relation to the content of laws.
Speculation and Innocence/Violence at the Origin
Highlighted thus far is Girard’s method, where myth, poetry and other secondary materials are taken as evidence of an original event. It is necessary now to elaborate on this theme, for it constitutes an influential and widespread mode of thought ultimately based on speculation. While, on the one hand, scapegoating prompts a sense of injustice, on the other hand, Girard’s ‘method’ reveals a certain flight of fancy. The positing of an original state of nature is one version of this. But it is also manifest within a genre of thought that animates ‘violence and the sacred’. The latter concerns the very origin of social and cultural life as inextricably linked to violence and – in the case of Girard’s work – to the surrogate victim (that is, to the scapegoat).
Earlier, we noted that, for Girard, there was an original murder. According to him, this is known because tragedy, for example, ‘is a tendentious reenactment, a mythic inversion of an event that actually took place’ (Girard, 1979: 203, emphasis added). Moreover, the ‘act of violence performed in the course of a rite or a festival points the way clearly enough, for it hinges on sacrificial practices or on ‘“totemic” ceremonies’ (p. 221). Again: ‘Even today, legitimized sexuality in the West reveals traces of its sacrificial character’ (p. 220). In other words, and to reiterate, even though primary evidence from the time of the actual murder does not exist, there are, in the present, many cultural practices, myths and other artifacts – that is, secondary or indirect evidence – that are deemed to confirm the event’s actual occurrence. While it would seem reasonable to place the violent and sacred origin of society and culture within the purview of prehistory – which is based on primary documentation – Girard places the origin in history. Girard thus summarizes his position in which the origin is historical as follows:
My theory depends on a number of basic premises. Even if innumerable intermediary stages exist between the spontaneous outbursts of violence and its religious institutions, even if it is only these imitations that come to our notice, I want to stress that these imitations had their origin in a real event. The actuality of this event, over and above its existence in rite and record, must be kept in mind. We must also take care not to restrict this event to any one context, any one dominant intellectual framework, whether semantic or symbolic, which lacks a firm basis in reality. The event should be viewed as an absolute beginning, signifying the passage from nonhuman to human as well as a relative beginning for the societies in question. (Girard, 1979: 309, emphasis added)
Previously, we saw that myths provide Girard with evidence that the scapegoat mechanism (collective murder) is at the origin of society. Again, secondary evidence is thus called upon to validate the thesis that murder constitutes the origin of social life.
Hobbes, too, calls upon secondary evidence to confirm his assertion that the state of nature did exist. Thus, in a key passage in the Leviathan its author claims that certain signs and practices in present-day society imply that the state of nature was a reality. Those who deny this are called upon to explain why a person acts in the following way:
when taking a journey, he arms himself, and seeks to go well accompanied; when going to sleep, he locks his doors; when even in his house, he locks his chests; and this when he knows there are laws, and public officers, armed, to revenge all injuries shall be done him; what opinion he has of his fellow subjects, when he rides armed; of his fellow citizens, when he locks his doors; and of his children, and servants, when he locks his chests. Does he not there as much accuse mankind by his actions as I do by my words? (1971: 100–1)
Hobbes’s method is thereby revealed. Despite the absence of primary evidence (evidence of palaeontology, for example) confirming the existence of the state of nature as a state of war, secondary evidence is invoked to prove the point. As with Hobbes so with Girard, secondary takes precedence over primary evidence: deduction is thus privileged over induction, and history over prehistory.
Freud’s theory, in Totem and Taboo (2001), of an original murder also comes within the purview of the genre of thought in question. Thus, the killing of the father in the primal horde is deemed to have given rise to society, culture and civilization. Because it focuses on an original murder, Freud’s thesis attracts Girard even if, as we have noted, he also takes issue with its psychoanalytical orientation.
For his part, Schey (2013), in his insightful interpretation of Freud on the primal horde and the killing of the father, begins to outline, not only what is wrong with Freud’s thesis, but also what is wrong with a genre of thought that relies on the kind of secondary evidence – what Schey designates as ‘ritual remembrance’ – that both Freud and Girard invoke.
If we put to one side the argument about whether or not Freud succeeds in making the myth of the primal horde the origin of the Oedipus complex, the points of interest in Schey’s analysis concern, firstly, Freud’s attempt to posit an original murder as the origin, and, secondly, whether ritual remembrance of the original murder can be realised given that the repetitions that ritual remembrance entails distort the evidence. If ritual remembrance leads to distortions, how can it assume the status of evidence in the present of the original murder? The following passage from Freud’s text quoted by Schey is thus significant:
Totemic religion not only comprised expressions of remorse and attempts at atonement, it also served as a remembrance of the triumph over the father […] Thus it became a duty to repeat the crime of parricide again and again in the sacrifice of the totem animal, whenever, as a result of the changing conditions of life, the cherished fruit of the crime – appropriation of the paternal attributes – threatened to disappear. (Freud, 2001: 145; cited by Schey, 2013: 111)
What this passage shows is that, at the level of method, the approaches of Freud and Girard converge: they both call upon forms of ritual remembrance (which includes festivals and myths as well as various other repeated rituals, such as those to do with fertility) as evidence of the original event – the murder of the father for Freud and the murder of the surrogate victim, or scapegoat, for Girard.
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Could one not go further and say that, pushed to its limit, the method implies that the mode of existence of present-day society is evidence of the historical past? To interpret culture would thus be equivalent to revealing the events of the past. Paradoxically, the present would be the key to a knowledge of the past, rather than the reverse, and deduction would dominate over induction. Schey, quite predictably, does not go so far in this line of thought. What he does show, however, is that the whole enterprise of invoking secondary evidence in the present is problematic, to the point where it becomes clear that the effort to reveal the origin by such means is impossible:
As Freud’s text demonstrates, however, understanding totemic ritual as an archival technique does not explain the primal murder or the origin of totemism. Instead, it demonstrates why such an explanation is impossible, for the archival process Freud describes repetitiously re-creates and re-erases collective memory across time. Freud’s unconvincing oedipal explanation of the murder is therefore not simply aberrant; rather, this explanation draws attention to the aberrancy inherent in any attempt to explain the origin of history and civilization. What Totem and Taboo thematizes is the impossibility of truly knowing such an origin. (Schey, 2013: 112)
In the broadest terms, at issue is whether or not researchers engaged in establishing the origin of society and culture assume what they set out to prove. As Schey confirms, ritual remembrance entails distortions: ‘For the entire history the primal murder puts into place explicitly concerns a form of historical transmission in which a collective memory of this act is continually distorted through the habitual repetition of remembrance rituals’ (Schey, 2013: 112). Moreover, ‘each ritual repetition is shown to simultaneously erase and refigure the previous understanding of the murder’ (p. 113).
If ritual remembrance entails distortions, how is it possible to prove that that society derives from a violent origin? If this is not assumed, however, is there any basis for the status of the scapegoat as the quintessential embodiment of injustice? The answer is that there is no need to refer back to an original murder to make the case. Nietzsche on guilt showed, for example, that events in recent history, such as witch trials, are sufficient to confirm what it is that constitutes scapegoating.
Conflict – Violence – and the Origin of the Political
Engagement with Girard’s thesis leads us to appreciate just how widespread is the idea of the origin of the political as an original violence. In effect, if the human were not that being who was and potentially is inexorably engaged in violent conflict, there would be no political sphere.
Thus, in his analysis of ‘agonistic democracy – of democracy understood as starting with “kratos”’ (Vardoulakis, 2017: 703), Dimitris Vardoulakis points to the primacy of violence or conflict at the origin of the political, if not of society as a whole. Thus, our author writes that: ‘This scheme means effectively the substitution of discord with concord as the basis of the political’ (p. 706). Although Vardoulakis is concerned with a full elaboration of the term ‘stasis’, he does not fail to note in passing ‘the primacy of conflict or discord – of stasis – for the political. Democracy signifies that regime of power for which conflict is primary’ (p. 720, emphasis added). In other words: ‘the primary term in the compound word “democracy” is kratos [power, force]. We can speak here of an agonistic democracy’ (p. 720.).
Where is it not declared or silently assumed that there would be no political without the assumption of the impossibility of eradicating conflict (violence) from human society and culture? So, the origin of the political is conflict/violence/war/polemos. The political, however, is but one aspect of the culture called ‘Western’. What of philosophy? Here, we know that the origin of Western philosophy is not just historical; for the origin of philosophy turns on the philosophy of the origin. It is not only a matter of determining which material tradition of philosophy is the most pertinent, as Heidegger attempted to do. 13 Rather, the issue centres on the relation between transcendence and immanence. The latter is in the ascendency when an historical approach is taken to the nature of philosophy. By contrast, transcendence is in the ascendency when the focus is on the nature of thought itself.
Our investigation into the scapegoat has, however, revealed the dominance of the origin as violence – thus, the dominance of immanence in explaining the nature of society and culture. At the same time, we have seen that knowledge of – or is it belief in? – the violent origin derives exclusively from what has been called ‘secondary’ evidence of remembrance – evidence as ritual, prohibition, festival and myth. As has been said, this implies that the past does not explain the present; rather, the present explains, or opens up, a knowledge of the past. What is truly striking here is the widespread acceptance of this, namely, that there was a crime at the origin even though there is no direct proof thereof.
Does Giorgio Agamben’s theory of homo sacer not follow a similar path? The answer is ‘yes’ if we refer to Agamben’s invocation of paradigm rather than history. In effect, the paradigm of sovereignty becomes the secondary evidence that would indicate – as I have shown elsewhere (Lechte, 2023a: 88–92) – that it is as if the existence of homo sacer as the one who can be killed without this being murder or sacrifice is the basis of sovereignty.
Moreover, contemporary sovereignty as manifest in the figure of the sovereign entity becomes a remnant of the Hobbesian ‘state of nature’: ‘in Hobbes’, Agamben claims, ‘the state of nature survives in the person of the sovereign’ (Agamben, 1998: 35). As such, the sovereign is the secondary evidence of the prior existence of the state of nature. Or rather, it is as if the sovereign were the evidence of the prior existence of the state of nature.
Like Girard, Agamben invokes the secondary evidence of Carnival to argue that law and anomie are inseparable. Carnival is the overturning of law for a time. Law, so it is claimed, needs anomie to be the law that it is. Thus,
[d]uring these feasts [of Carnival] (which are found with similar characteristics in various epochs and cultures), men dress up and behave like animals, masters serve their slaves, males and females exchange roles, and criminal behavior is considered licit or, in any case, not punishable. That is, they inaugurate a period of anomie that breaks and temporarily subverts the social order. (Agamben, 2005: 71, emphasis added)
Here, Agamben is attracted to studies by the Swiss ethnologist Karl Meuli, and the latter’s interpretation of various ‘charivari’ (popular punishment rituals) as being the basis of law. Thus, Agamben observes: ‘If Meuli’s hypothesis is correct, the “legal anarchy” of the anomic feasts does not refer back to ancient agrarian rites, which in themselves explain nothing; rather, it brings to light in a parodic form the anomie within the law, the state of emergency as the drive contained in the very heart of the nomos’ (Agamben, 2005: 72).
To Conclude
The logic of sacrifice – or, as Serres proposes, of the excluded middle or third – is a logic of the arbitrary. With regard to the scapegoat there is no reason as to why one person is chosen over another, the point being that someone is chosen. In principle, the law – in its transcendent foundation as doit, Recht, etc. – opposes the arbitrariness of scapegoat logic. The transcendence of law would be the law beyond law as immanence – the law that participates in a transcendence that is more, as has been proposed, than simply the symmetrical other of immanence.
It is true, however, that there have been bad – read: iniquitous – laws. A positivist, such as H.L.A. Hart, has said that an iniquitous law is still law. But if law only truly exists as the incarnation of justice, objectivity and reason, would it not be the case that iniquitous laws are in fact pseudo laws and not law as such? This is the question that calls for a response.
The argument of this article is that a historical and immanent approach, while it is not be denied, at the same time cannot provide an answer to this question. Only law in its transcendent mode can do this, law the foundation of which – to repeat – is beyond immanence.
We have seen that an immanentist approach assumes that at the origin (whether of society or the law) is violence (‘murder’) and disorder. Rather than bringing clarity to an understanding of how law is opposed to scapegoat logic, the assumption in question only muddies the waters. It is thus necessary to accept – contra the times in which we live – that law, understood in the strictest sense, has no history: it is always already in place. And so, despite what Hobbes, Freud, Girard and others claim, law is primary – not violence.
