Sacrificial Punishment and the Penal Comedy of Innocence: Unveiling Family Resemblances Between Sacrifice and Criminal Law with James Whitman

Abstract

In this paper, I will adduce a number of important arguments to prove the existence of a nexus between sacrifice and punishment. In order to achieve this objective, I will base my approach on the anthropology of religion, in the sense that I will take sacrifice as the conceptual lens or hermeneutical prism through which to observe and, more importantly, redescribe the history of criminal law from around the later Middle Ages until the fall of the ancien regime. In doing so, ample proof can be unearthed that an unmistakable sacrificial dimension pervades criminal history, at points becoming so tangible that the existence of a phenomenon I propose to call penal sacrifice or sacrificial punishment-ie a punishment that is for a variety of reasons to be situated on the threshold of indifference between sacrifice and punishment-is, at least to my mind, difficult to deny. The strength of my case, now, is to a considerable extent determined by the work of James Whitman. When one is out to trace the family resemblances between sacrifice and punishment, Whitman is remarkably" good to think with"-to use a celebrated Levi-Straussian expression. 2 In fact, some of the most telling structural parallels between criminal law and sacrifice I uncovered were virtually presented to me on a silver platter in Whitman's writings.