Drawing Parallels between the Criminal Trial and Levitical Sacrifices: Criminal Trial as a Ritual of Restoration

-- By TaeSangYoo - 14 Feb 2008

Introduction – Society as a Living Organism

Frank points out that magic is the “primitive man’s way of dealing with specific practical problems when he is in peril or in need” and cannot find an effective way of dealing with it. This probably reflects why so many concepts of magic and ritual are closely linked with issues of birth and death [death and rebirth religions, ranging from Osiris cult to Christianity]—for averting death is something that all living organisms desire but have difficulty in doing so. Similarly the society that we live in is also a living organism that struggles to avert its “death” and perpetuate its existence. It does so like any other living organisms: by preventing harms to its existence and healing wounds that it has already received. More specifically, it tries to identify and restrict potential sources of conflict that it regards to be undermining its cohesiveness and when it fails to do so, tries to restore whatever harm it perceives to have occurred. Within such context I believe that the criminal trial is our society’s “magical ritual,” similar to the Levitical sacrifice rites, that serves the latter function of maintaining the cohesion of a society by conjuring a sense of restoration.

The Problem: Perception of Crime Undermines Social Cohesion

As Arnold points out, societies have their own institutional attitudes and myths, including a “national Devil.” Such attitudes and myths by in large define what acts are criminal or “heretical.” These acts may range from the more widely acknowledged types of “crimes” such as murder and stealing to more cultural specific ones such as polygamy. Whether these acts are truly threatening to social cohesion is insignificant just as the question of whether consumption of blood in violation of the Levitical laws is truly a sin is insignificant. What is important, instead, is the sense that a violation of such code of conduct has resulted in some kind of harm to the society as a whole or, in the biblical context, God. Such senses of wrongdoing either against the society or an all powerful God generates a sense of guilt [in that such a violation was allowed to occur] as well as a sense of “injustice.” Unless the crime or “heresy” is properly dealt with, such emotions may turn in to doubt against the “orthodoxy,” thereby undermining what Arnold labels as creeds and myths that sustain a social organization.

The Restorative Powers of a Criminal Trial: The Scapegoat

I believe that the criminal trial fosters a sense of “restoration” of the orthodoxy by, to borrow Rene Girard’s terminology and idea, providing a “scapegoat.” In Violence and the Sacred, Girard argues that members of a society, when faced with tremendous risks, single out an individual as the source of all problems and restore social order by killing the person in public. This is consistent with the use of scapegoats in Levitical sacrificial rites to not only restore the relationship between the “sinner” and God but also the “sinner” and the society s/he belongs to. By purging the symbols of sin and trouble, the rest of the society is restored to its original state. Drawing from such views, I believe that the conviction of a criminal through trial serves a similar function.

• What has this got to do with Leviticus? There, I would ask you to remember, the goats are goats.

Some may object to such view and the usage of the term “scapegoat” to describe a criminal, especially since the term is usually perceived as placing blame on an innocent victim. However, I believe that this term is appropriate if one realizes how the criminal trial legitimately transforms the criminal from an individual who committed an illegal act to a symbol representing moral blameworthiness. Once the criminal is convicted “properly” through the ritual of criminal trial [through our established procedures of fact finding], he or she “legitimately” becomes an embodiment of the “heresy” and the harms, both moral and legal, associated with it. This is largely similar to the function of the scapegoat as the symbol of atonement in the Levitical sacrifices. The bull or lamb, once in the hands of priest, is no longer a livestock but a vessel in which moral blame and legal guilt can be legitimately transferred to. Under such circumstance and the line between blaming the criminal for the act itself and blaming the criminal for any other social ills that are that trouble the other members of society often becomes blurred. Thus the petty drug dealer is not only seen as being guilty of selling drugs on a street corner, but also perceived as being morally depraved.

Such transformative effect that the criminal trial has upon “criminals,” in turn legitimatize the usage of public force upon the criminal. In our criminal trials, this takes the form of sentencing the punishment. However, here the emphasis should not be placed on the severity of the punishment but rather to the fact that such public act of condemnation once again makes clear the distinction between orthodoxy and heresy for the society. By punishing the criminal, the public is sacrificing the scapegoat that has become a symbol of “heresy” and moral blameworthiness. This act generates the sense that the “orthodoxy” and “justice” has been restored and ultimately contributes to the maintenance of social cohesion.

Conclusion

Considering that no single system can be perfect, I do not think it is a problem that our criminal trial system operates as a way of producing “scapegoats” to maintain the status quo in our society. Our society’s heavy ritual emphasis on acquiring legitimacy through “proper” procedures in fact probably prevents scapegoats that are more true to its dictionary meaning from emerging. While this does not mean that we should not look for better alternatives, I believe there is still value in our existing system no matter how flawed it may be.

• Don't you feel even a little silly, trying to explain every shoplifting and prostitution arrest on the basis of some grand pop-soc Theory of the Scapegoat? I don't think you could get an anthropologist of any seriousness to agree that scapegoating is the motive of sacrifice, any more than you could get a serious priest, rabbi, druid, bonze to agree. But you would surely have even more trouble getting a cop or ADA to join you in the theory that this is the reason that the community breathes a little easier when someone with 25 or 30 armed robberies on his rap sheet goes back to Elmira or Dannemora. The problem, I think, is that most "big thinking" about the criminal justice system behaves as though it were only its "big" cases. It's the "systemicity" of the system, its sheer endlessness, its inhuman relentlessness in the grinding up of lives it doesn't even notice, that have no rap sheet and aren't, officially, "victims" that you can't catch with redemptionist mythmaking. Every time you get set to talk about the Scapegoat, remember the two thieves who died on the same day, and who apparently weren't the son of anybody's god or even the son of anybody's sainted mother.

• That a goal of criminal process is to reharmonize what has been disrupted, to restore a sense of social solidarity, probably at the partial expense of the "criminal," is all but obvious, and forms--I agree-- a perfectly sound starting place for an essay. What you need to do in order to improve this one is to begin rather than end there: to drop the exclusivity of the claim (differentiating between a purpose and the purpose) and to back off the drums and cymbals, doing instead the work of going beyond the starting point, rather than orchestrating it, as you do here.