Law in Contemporary Society
Eben alluded to us not quite getting the meaning of "magic" according to Frank. Let's use this space to work it out. -- AdamCarlis - 02 Feb 2008

DanielButrymowicz made progress on your question. Combining our work:

"Magic" and "technology" are both tools to solve practical problems, but technology relies on science (experience); magic on hope. Magic supplants science when 1) "ignorance is thickest about the way of things" and 2) "dangers are the greatest".

I. What's necessary for magic: unknown, danger, and circumstances where luck plays a major role. The magical trial-by-ordeal arose when facts/history ["unknown"] was needed to determine perjury ["danger"]. Modern "rule magic" arises out of a similar reality where finding facts is subjective (unknown) and so there is great uncertainty and potential danger.

II. What's sufficient for magic: unknown and danger ... in sufficient degree? What makes modern lawyers SUFFICIENTLY unwilling to "acknowledge the immense hazards" etc.? Since a just outcome depends on truth-telling ["unknown"], and since the outcome may deprive a man of his life ["danger"], successful perjury is as grave a danger as storm flood or lightening (44) and the modern trial warrants magic as much as deep-sea fishing (43). But this answer doesn't satisfy. Maybe Frank, writing in 1949, had the Munich Agreement in mind when he realized that subjectivity could be a general threat, and that faith in rules were a form of self-gratifying denial.

DanielButrymowicz replied: 1) our evolving struggle to write a trial history ["unknown"] is itself a sign we consider the task very important ["dangerous"], and 2) if we acknowledged its inaccuracies ["unknown"], our whole conception of criminal justice would collapse ["danger"]. [Daniel, fix my paraphrase!]

-- AndrewGradman - 02 Feb 2008
Additional edits made AdamCarlis - 02 Feb 2008
[Adam, I think your edits improve clarity at the cost of correctness. Frank includes "circumstances where luck plays a major role", but I omitted it because it seemed to describe ANY activity before the application of science or magic, and seemed synonymous with "unknown". Also, your paraphrase of my last sentence omits the quote from Frank which includes the "necessary" element of danger, so that we get uncertainty and danger out of uncertainty. Now it looks like I'm saying "1 + 0 = 2"] -- AndrewGradman - 02 Feb 2008

  • There is a difference between luck and "unknown," at least in the historical context. Frank differentiates between events that couldn't be rationally predicted by "primitive" folks because they didn't understand the way the world works (boats capsizing in the open ocean) and knowledge itself. Basically, magic (in the form of rituals) was used, not to predict the unknown, but to ensure good luck. Later, it was used to divine the past (trial by ordeal). To me this matters in the analogy he makes to the modern court system where scholars use magical thinking to assert rules of jurisprudence that, while appearing to solidify the objectivity of our trial system (an attempt at taking luck out of the equation), don't stand up to scrutiny. -- AdamCarlis - 02 Feb 2008

Andrew, I think Frank's quote on the top of page 43 supports your definition of magic: "Magic, then, appears to be primitive man's ways of dealing with specific practical problems when he is in peril or in need, and his strong desires are thwarted because his rational techniques, based upon observation, prove ineffective."

What seems central in your calling magic a "tool" to solve practical problems and Frank's calling it a "way of dealing" with practical problems is that magic is defined in terms of the function it has in a culture, not in terms of its inherent qualities.

I'm not sure I get the reason behind defining magic in terms of "necessary" and "sufficient." It seems to complicate things, but maybe there's a good reason I'm missing.

-- ChristopherWlach - 02 Feb 2008

I agree that magic shouldn't be defined as it is above.

Frank argues that magic is a tool used to create certainty where there is none. It is a slight of hand designed to make the subjective appear objective in order to create a sense of reliability on or confidence in an otherwise dangerous and unpredictable circumstance.

-- AdamCarlis - 02 Feb 2008

I read Frank to mean that all law is, to a large degree, magic insofar as it remains inseparable from human subjectivity and contingency. Magic fills the void left by the realms of human activity without control "by the ordinary techniques" practiced by rational man (42). In effect, magic and science stand anthropologically in opposition to each other: where one exists, the other dies. In our day, Frank uses the example of an engineer to demonstrate the failure of science for predicting the law. " engineer," writes Frank importing the example from another scholar, "trained to analyze a relatively simple situation into its elements, and then to recombine them so as to reach a solution of a problem, can exhaust the variables because they are few; he can predict, and control, the result with comparative ease. If now you put to the engineer a problem in social relations, he finds that his techniques won't work, because the variables are too numerous and their inter-actions too complicated, while the insufficient and often unreliable. The engineer, therefore, is likely to throw up his hands, muttering that, since science is inapplicable, the problem cannot be solved by intelligence" (217). Since law as a network of "social relations" (think Cohen) falls short of science, it represents an art largely regulated by the forces of man-made magic. As an art, nothing is necessary, and thus everything is to a large degree contingent, irregular, and formally inexplicable. Instead of imposing our logical structures to explain the magic of law, Frank encourages us as lawyers to eschew the positivism of science, recognize the magic inherent in law due to human contingency, and adopt the "spirit" of science to combat deception (219).

Eben provided us with an example in class. Though deliberate, Eben's validation of rent control in the FCC opinion did not necessarily force Rehnquist's hand to rule in favor of it in the future case; instead, it was a contingent event by virtue of the fact that the strategy of one man influenced the giant structure of American government and history of jurisprudence which, as Rehnquist's previous writings on rent control suggested, were on a different course. That, in the very ordinary sense of the word, was magical. Yet, there are a hundreds of competing human strategies or plots, making it therefore hundreds of times more magical.

If, in our readings, the pendulum swung from a transcendental conception of the law approximately before the 19th century to Holmes's more scientific rationalization focused on prediction, Frank is perhaps pushing the pendulum towards a third phenomenological course. To Frank, it is impossible to predict the law by a scientific method, as the physical sciences attempt, because the law as a descriptive matter is regulated partly by "invariants, uniformities, regularities" (210) and partly by magic and contingency.

-- JesseCreed - 02 Feb 2008

To say "X is Y" (rule-faith is magic), you're just saying, "X meets the necessary and sufficient conditions for Y." It's not a way of defining "magic," Christopher -- it's a way of defining "defining!"

-- AndrewGradman - 02 Feb 2008

  • I mean, it is a way to define "defining," but I think it might be a little confusing for people who haven't taken philosophy. For example, one might assert that reading Frank is both necessary and sufficient to understanding "magic." Even if this is true, the statement that therefore reading Frank is the same as understanding magic is not really in line with most people's understanding of equivalence. =) -- TheodoreSmith - 03 Feb 2008

In response to Jesse: I read Frank differently with respect to the relationship between magic, science and law. I don't think Frank would agree that "magic and science stand anthropologically in opposition to each other." Rather than a bright, distinctive line between the two, I think his analysis lends itself more to a spectrum. Magic in the Frankian sense is very science-like. It lies on the opposite end of the spectrum from so-called hard sciences, but they are both creatures of the same species. Both describe activities that developed as responses to practical problems. Both are somewhat technological; Magic is “essentially mechanistic, involving a manipulation of the external world by techniques and formulas.”

So imagine we’ve got this spectrum. On the one end are hard, empirical sciences and on the other end is superstitious, primitive magic. Almost every human discipline can be placed somewhere along the line – from mathematics and computer science to law and history; from economics and psychology, to religion, esthetics and superstition. The spectrum essentially describes all human methods of problem-solving, measured in degrees of conjecture and predictability.

With that in mind, Frank’s notion of the judicial process being “permeated with magic” is very clear. We’ve come a long way since witch trials, but because our legal system it is ultimately, fundamentally an endeavor in truth-telling, it will (probably) always contain an element of unpredictability. The truth is a black box that science has yet to crack; it is conjectural – what Frank calls magic. Just like our primitive ancestors, we find ourselves at an epistemological impasse, so we turn to “magic” to fill the gap. We’ve taken great pains to science-ify our legal inquiries. The legal process itself is essentially a formula for deciding truth – what Bentham described as a “mechanical jurisprudence.” But ultimately, of course, we are still deciding truth, not discovering truth - because at our legal formula is built around that black box.

-- JuliaS - 03 Feb 2008

Julia and Jessie - I loved your analyses. I think they go really well together.

As has perhaps been implied, Andrew (or Daniel?) may be oversimplifying with the statement that "technology relies on science (experience); magic on hope."

I don't know whether Frank would agree with this, but it seems as though the type of magic Frank is referring to is not completely cut off from the casual realm. Empirical science is based (to some degree) on our ability to differentiate and reduce. We are able to divide systems into component elements and investigate causes on an increasingly subtle level.

With magical thinking, it seems as though we are simply refusing to reduce the system past a certain point. In law and social science, I think this reluctance is generally due to the extreme interrelated complexity of the system. If you look at a judicial decision as a Cohen-esque nexus of social forces, a logical and scientific reduction becomes about as meaningful as an attempt to uncover the "purpose" of a single neuron in the brain.

This is not to say that the scientific system necessarily has the "truth" advantage over magic. To unwisely extend Godel's terminology, both systems are almost certainly both incomplete and inconsistent. I don't think Frank has a problem with magic, so much as our tendency to pretend that it is science.

All this said, I do not know how it gets at the question that I feel like Frank is dancing around - given that truth in the judicial system is constrained by the limitations of human ability, and will likely always contain some element of magic, how do we approach reform of the system? Do we continue to 'science-ify' the system in order to encourage public confidence, or do we throw off the trappings of "mechanical jurisprudence" to expose the magic and conjecture behind the institution?

"He is a barbarian, and thinks that the customs of his tribe and island are the laws of nature." - George Bernard Shaw

-- TheodoreSmith - 03 Feb 2008

Ted, I don't think Frank has any interest in prescribing reform. I think his project is purely deconstructive, and I find it very frustrating for that reason. As far as I can tell, the issues he raises are unavoidable. I think perhaps the only "reform" suggested by Frank's article is that we stop deceiving ourselves and admit the true nature of our legal system. I'm not sure, however, what that would accomplish.

-- JuliaS - 05 Feb 2008

  • The one thing these attempts at reform have done, in Frank's eyes, is to prove his point that reform (in as much as it attempts to be predictive of judicial outcomes or provide laws about our administration of justice) merely disquises the subjectivity rather than explain it.

-- AdamCarlis - 05 Feb 2008

I firmly agree with JuliaS? above. I read Frank to be pointing out the true nature of our subjective legal system. I think "unavoidable" is the proper term to describe the intangible mechanisms that get us from dispute to resolution.

Basically, whether we choose to subject someone to the Ordeals or whether we subject them to a jury trial, there will be an element of human subjecitvity, maybe even magic!!, that we as a society must accept. In fact, I believe that a thorough reading of Frank lends the inference that a bit of magic may be necessary for a functioning legal system. After all, without omnipotent and omnicient judges and juries, how else would we find OJ not guilty?

-- AdamGold? - 05 Feb 2008

In the interest of clarity, here’s an attempt at briefly summarizing our approach to the issues Eben has raised. Please critique/improve this.

  • What is magic?

Magic is an attempt by primitive man to understand and solve practical problems that cannot be explained by the science he derives from observable/rational means.

“Magic, then, appears to be primitive man’s ways of dealing with specific practical problems when he is in peril or in need, and his strong desires are thwarted because his rational techniques, based upon observation, prove ineffective.” (Frank)

Magic is not antithetical to science. They exist on a spectrum, with problems that can be easily handled by technological/observable means on one end and problems that require a “non-empirical, illusory” approach on the other. (Julia)

  • What is the fundamental problem?

The fundamental problem faced by anyone trying to enforce a system of laws is that observable/technological science can’t discern accurately whether people are guilty or innocent.

  • How do magic and the ordeal relate to the fundamental problem?

The ordeal is the primitive “magic” solution to the fundamental problem. It relies on divine or magical forces that manifest themselves in a physically observable way to indicate guilt or innocence. The goal of the ordeal is to discover the facts (F). The ordeal suggests that the command of theological ideas can control and discover what these facts (F) are.

On Julia’s spectrum, the problems posed by a trial are outside the realm governed by non-magic science. A magic solution is necessary.

We still have not fixed the fundamental problem (our technology still can’t accurately separate guilt from innocence). We have, however, jettisoned the ordeal as irrational and replaced it with a series of constructed rules that, Frank argues, constitute a “non-empirical, illusory” method of determining guilt. These rules, like the ordeal, attempt to get at the facts (F). The facts (F), no matter how perfect the rules (R) may be, are distilled in the system by human subjectivity and thus can never be accurately revealed.

-- DanielButrymowicz - 06 Feb 2008

I made a few substantive additions and typographical edits.

-- JesseCreed - 06 Feb 2008

I agree with the Julia’s reading of the text, and particularly the idea that magic and legal fact-finding science are functionally equivalent (in both cases, the function served is to decide rather than to discover the truth). However, I disagree that his thesis is purely deconstructive. Frank believes that when legal thinkers are under the mistaken assumption that judges are controlled by precise legal rules that determine the truth, they are merely disguising what is to them a terrifying reality (p. 59) and thus masking existing realities. But, he suggests (through Shaw’s writing) that, “future possibilities…can be realized only by tearing the mask and the thing masked asunder.”

Frank believes that merely by acknowledging the inherently subjective nature of judicial decision-making, and by understanding that subjectivity is not always evident to the naked eye (as Morris Cohen does not – p.59-60), we are taking a very tangible step towards reform. We might, then, begin to base the legitimacy of a court’s murder conviction, for example, not on the unrealistic and dangerous notion that it represents the truth, but on the more grounded idea that it is the best the court could do given its limitations. Perhaps, I think Frank is implying, we’d be more likely to take new facts into account once they arise, such as DNA evidence in today’s death penalty cases.

However, I think Frank may not be fully acknowledging the benefits of a legal system that has gone from placing its rights on the ‘knees of gods’ to placing them on those of men (p. 50). It may be true that lawyers are sometimes reluctant to admit the ‘chanciness’ inherent in decisions that depend on subjective interpretation of facts, but this may be more true of his pre-legal realist time than ours. I think many people have already disabused themselves of the idea that fact-finders are objective. Couldn’t some of our instinctive trust in fact finders have to do with our need for repose, and an aversion to endless litigation of factual issues that can be examined in multiple ways (especially given their vulnerability to subjectivity)?

-- VishalA? - 06 Feb 2008

I feel like Frank would acknowledge the benefit of moving away from the "knees of god," I just don't think it buys you much. When we had god to base the law on, we could be explicit about magic. We were taking no responsibility for our actions; we were simply the agents of divine justice. When you lose God, you must either attempt to craft a system to explain and justify the law, or face the terrifying fact that you are personally responsible for sending men to their death based on imperfect knowledge.

I don't think it was an accident that Frank was writing only six years after Sartre's "Being and Nothingness." Sartre writes:

"The most terrible situations of war, the worst tortures do not create a non-human state of things; there is no non-human situation. It is only through fear, flight, and recourse to magical types of conduct that I shall decide on the non-human, but this decision is mine, and I shall carry the entire responsibility for it." (Sartre, Being and Nothingness)

The main point I am carrying from Frank is analogous. There is no justification to be found for our verdicts simply because we are following a system. Such a system stands on facts, and all we do with legal rules is convince ourself that "in a vast majority of instances, prediction ceases to be hazardous for the trained and expert judgment." (p. 56, Frank quoting Cardozo). Frank attacks this presumption at the facts, because facts are the base upon which the logical tower stands.

I think in the end, he is ending up in a similar place to Sartre. Our problem is "an unwillingness to face courageously the occurrence of such tragedies [as killing a man for a murder he did not commit]." (p.61, Frank). We are unwilling to take on ourselves the responsibility of what we do, claiming instead it is in the name of law, and that our commitment to legal rules can somehow serve as justifications for our actions.

My only minor quibble is that I do not agree with Frank that this is caused by an "addiction to legal magic." I think it is rather the other way round, that we are addicted to magic to escape what Sartre refers to as 'anguish,' or "the feeling of our total and deep responsibility" (Sartre, Existentialism and Human Emotions) as truth deciders. We cannot bear to face the idea that we are choosing to send a man to jail for the rest of his life - that this is a decision we are making as imperfect beings, that we are wholly responsible for it, and that we cannot shift the blame.

As Eben pointed out in class today: "You know what is right."

-- TheodoreSmith - 07 Feb 2008

Vishal, your point is well taken, but I think you may be being too generous to Frank. You're right that he wants us to disabuse ourselves of false realities, but again, I really don't think Frank sees this act of becoming aware as a means to any end. What would it mean in practice if we started "basing the legitimacy of the courts" on a more honest understanding of their relationship to the world? It's an entirely perceptual distinction; the system would continue to function in precisely the same way. I think the idea that we might be more willing or able to accept reform if we acknowledged that our system is a false reality is somewhat misguided. Reforms are ultimately a token of progress, an effort to perfect. If our system really is predicated on an irreducible magical element, there is no where to progress. We can tweak its mechanisms a bit, sure, but where will that get us? It certainly will not defuse the issues central to Frank's critique. If anything, it will only serve to soothe our collective conscience - to satisfy us that we have improved - and engender an even more comfortable escapism.

In my own estimation, modern legal magic is a token of our colonial legacy. We science-ify our legal processes not only to make it easier to bear the chanciness (as one interpretation of Frank might suggest), but also because "officializing" is key to the project of power. When the British began colonizing (or rather, “discovering”) India - and the Americas, and Africa, for that matter - their first project was to science-ify it. That is, they undertook a series of exploratory missions; they surveyed, observed and investigated, they wrote encyclopedias and histories and statistical returns. By methodically classifying and cataloging the territory of history, the colonialists transformed the vast, vague space of the Indian sub-continent into something familiar, knowable and most importantly, controllable. What is knowable in this way is manipulatable.

We see the same methodology of power operating in our legal system. Recall Frank’s discussion of the trial court as a historian; both engage in the project of forming the data of history out of facts they cannot see. When we recreate events through courtroom ordeals, we bring them under our own control – we assert the power to judge and redress them. Our legal order is and expansion of that power – the power we seize when we conquer knowledge.

-- JuliaS - 07 Feb 2008

Julia, I sympathize with your frustration about Frank (and to a certain extent legal realism and deconstructionism) tearing down without offering any ideas for how to build back up. And I really like your critique Frank, and reforms in general. However, I wonder if change is truly impossible

I think on a small scale we can certainly apply Frank’s critique and improve the criminal justice system. For instance, the overriding belief that criminals who convicted are guilty is part of what makes it difficult to release persons who are exonerated by evidence (many times, despite new evidence, prosecutors and judges will still leave those people in jail). The sentiment that criminals must be guilty is also part of what makes the stigma so great upon re-entry into society – perhaps if more people questioned the fallibility of the system, criminals would be welcomed more readily into society upon their release.

On a larger scale, questioning the accuracy and efficacy of the criminal justice system would go a long ways to tearing it down completely. I know some people don’t see that as a goal, but certainly everyone can agree that there are alternatives to incarceration that just might be better for everyone.

I have to run to class now, but I’ll continue this post when I get back. And I’d like to hear what you think – whether, if everyone embraced Frank’s ideas (which is obviously a long shot) any of the things I’ve proposed would be possible.

-- AmandaHungerford - 07 Feb 2008

This discussion seems to be missing much of the constructive side of Frank's writing. After pointing out the flaws in the system, Frank's conclusion is that we must approach each flaw with the “scientific spirit” to try to find a better solution, even an imperfect one. (219-220).

To Frank the scientific spirit is not the “faith in science” on page 218, but consists of “the discipline of suspended judgement; the rigorous weighing of all the evidence; a consideration of all possible theories; the questioning of the plausible, of the respectably accepted and seemingly self-evident; a serene passion for verification [and] constructive skepticism”. (219). The scientific spirit is “the spirit which encourages the search for, or the invention of, means to the desired end” (220).

In practicing law Frank recommends that we “try to ascertain what social changes must be made, if that [end] is to be actualized”. (220). When we run up against a problem that is unsolvable, we must turn to more productive endeavors, but realize that our broken theory may have produced imperfect means that may be incorporated into our art of legal practice. This is what he means when he quotes Tourtoulon: “There is no need to throw to the dogs all that is not fit for the altar of the Gods...”. (221).

In short, Frank is telling us to realize that a perfect system of law may be (and likely is) unattainable, but that we must use the scientific spirit with the goal of moving the imperfect towards perfection, even if it can never get there.

-- JustinColannino - 07 Feb 2008



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r30 - 07 Feb 2008 - 18:01:28 - JustinColannino
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