The Need for a New Legal Imagination

The law, as the quintessential institution of order, is increasingly under pressure to rethink its foundations. Beneath the surface of codified statutes and judicial procedures, the persistence of violence — both implicit and explicit — reveals the sacrificial origins of legal systems. René Girard’s mimetic theory uncovers the hidden mechanism through which societies, confronted with escalating rivalries, achieve a precarious peace: the collective expulsion of a scapegoat. Law, in its traditional form, emerges as a ritualized structure to contain mimetic violence by channeling it into controlled frameworks of accusation, judgment, and punishment.

Yet, the question remains: can the law transcend its sacrificial origins? Is it possible to imagine a legal order that does not perpetuate the cycle of victims? Here, the work of Hans Kelsen becomes pivotal. Known primarily for his “pure theory of law” and his insistence on legal positivism, Kelsen may at first seem distant from Girard’s anthropological insights. However, a deeper reading suggests that Kelsen’s drive for the autonomy and formal neutrality of the law can be interpreted as a secular attempt to purge the legal system of its violent and sacrificial residues. Between Girard’s anthropological diagnosis and Kelsen’s legal constructivism lies the possibility of a truly non-sacrificial law — one that recognizes its origins without replicating them.

Girard’s Mimetic Insight and the Origins of Legal Order

Girard’s discovery of mimetic desire — the idea that we desire according to the desires of others — leads inexorably to rivalry and violence. When the competition for shared objects intensifies, communities risk descending into chaotic conflict. To avoid total collapse, early societies develop the scapegoat mechanism: by channeling collective aggression onto a chosen victim, they achieve a cathartic peace. Religion, myth, and law all crystallize around this founding event. What begins as spontaneous violence becomes ritualized, sacralized, and eventually codified into social and legal norms.

Law, from this perspective, is not originally born as an instrument of justice in the modern sense, but as a mechanism to regulate violence through structured procedures of accusation and punishment. The legal system offers society a way to continue sacrificing — but in an organized, often less visible, manner. Trials, sanctions, and penalties repeat the pattern of communal accusation, but with the procedural veneer of impartiality.

Nevertheless, the revelation inaugurated by the Judeo-Christian tradition, particularly through the passion of Christ, begins to unravel the sacrificial logic embedded in law and culture. In unveiling the innocence of the victim, Christianity initiates a slow but irreversible process of desacralization. It exposes the arbitrary violence at the heart of human institutions and opens the possibility for a new, non-sacrificial order. However, as Girard himself warns, the exposure of violence does not automatically lead to its elimination. Without structures consciously designed to resist mimetic escalation, society remains vulnerable to ever more refined forms of persecution.

Kelsen’s Legal Positivism Revisited: Toward a Non-Sacrificial Framework

At first glance, Hans Kelsen’s rigorous formalism — the idea that law must be separated from morality, politics, and metaphysics — might seem inimical to Girard’s anthropological concerns. Yet Kelsen’s “purification” of law can be seen as a different but complementary response to the same problem Girard identifies: the entanglement of law with the passions and violence of human communities.

By insisting on the autonomy of legal norms and grounding legal validity solely in procedural criteria (the “basic norm”), Kelsen sought to neutralize the arbitrary and potentially violent inclinations of those who wield legal authority. His vision of law as a closed, self-referential system is an attempt to ensure that coercion, when necessary, remains bound within a rational and universally applicable framework, rather than serving as a tool for persecution. In this light, Kelsen’s project can be reinterpreted as a secular effort to create a non-sacrificial legal order — one in which the law no longer legitimizes scapegoating but instead contains it through procedural rigor and formal neutrality.

However, Girard’s insights suggest that no purely formal structure can fully escape the gravitational pull of mimetic violence. Even the most impersonal systems are inhabited by human actors whose desires and rivalries cannot be entirely regulated by rules. A truly non-sacrificial law must therefore go beyond Kelsenian formalism. It must integrate an anthropological awareness of mimetic dynamics into its very conception of justice. This means fostering a legal culture that actively works to recognize, defuse, and transform mimetic rivalries before they escalate into acts of institutionalized violence.

Toward a Non-Sacrificial Legal Intelligence

The dialogue between Girard and Kelsen, though never explicit, opens a vital horizon for reimagining the future of law. A non-sacrificial legal order would not merely be one that follows neutral procedures; it would be an order animated by a vigilant intelligence regarding the dynamics of desire, rivalry, and victimization. Such a legal intelligence would understand that the greatest threat to justice is not the absence of rules but the unacknowledged persistence of sacrificial mechanisms beneath them.

To move beyond the scapegoat is to commit the legal imagination to a new task: the cultivation of forms of judgment and mediation that refuse to produce victims, even when disguised as lawful punishment. It is to recognize that peace through law cannot simply mean the regulation of violence, but must aim at its radical prevention — not through force, but through the patient unraveling of the mimetic knots that bind human societies together. In this task, both Girard’s anthropology and Kelsen’s formalism offer indispensable, if partial, resources. It is now up to us to weave them into a more comprehensive, humane, and non-sacrificial vision of justice.