The sacred law: the philosophical origin of René Girard's scapegoat mechanism and Giorgio Agamben's «Homo sacer»

In spite of the growth of secularism after the Enlightenment era in the Western societies and its impact on the legal structure of these societies, whether the legal system has been stripped of the religious thinking is a question that is far from being answered. The idea of the sacred as one of the elements of religious thinking is the subject which many jurists and sociologists take into consideration in their studies on the relationship between the religion and the law. Since the nineteenth and the twentieth centuries many thinkers such as William Robertson Smith, Émile Durkheim, and Marcel Mauss have studied the impact of the sacred on the social life and placed it at the center of the social order. Yet, although these theories have shed light on the role of the sacred in the formation of the legal systems, they have also brought up some new questions which contribute to the complexity of the above-mentioned relationship. In the twentieth century, two authors, René Girard and Giorgio Agamben also addressed the subject of the correlation between the law and the sacred. While René Girard, similar to Émile Durkheim, perceives the sacred as a religious idea which constitutes the origin of social life, Giorgio Agamben opposes any religious narrative of the sacred and defines it as a juridico-political phenomenon, which is excluded from both divine and human laws. However, both thinkers depart from the theories of other scholars such as Durkheim since they believe that the sacred as the origin of the law belongs to an originary zone in which human relations are governed by violence. The use of violence enables the legal structure to establish itself on the life of human beings. Thus, given that Girard, contrary to Agamben's formulation, identifies the sacred with the religion, the main question of the present study is whether it is possible to reconcile Girard's and Agamben's theories of the sacred, and determine if the Girardian idea of religion has affinity with the juridical nature of the sacred which Agamben proposes. To answer these questions, earlier writings of Girard and Agamben which belong to the domains of literary criticism and modern aesthetics are taken into consideration because these literary and aesthetic studies present some themes such as the negative foundation of humanity which later take the center stage in their theories of the sacred. In addition, their literary and aesthetic studies have philosophical roots which create a link between these theories. Proximity of their early writings shows that in spite of Agamben's and Girard's different methods, their theories of the sacred point to the same violent origin of law, which belongs to a zone of indistinction between law and religion.

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