vii. 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 product endeavors, but realize that our broken theory may have produced imperfect means that may be incorporated into our art of legal practice.

ii. In more "scientific" times, when magic is no longer considered "reasonable," we once again face the guilt problem. We instead believe that legal rules accurately separate guilt from innocence. But this too is magic.

The issue isn't that subjectivity was a big enough threat. That our culture has continually developed and complicated its responses to this problem issue shows that we consider it a big problem. It seems like a serious threat to me: if we were to acknowledge that there was a poor between committing crime and going to jail, our worldview would collapse. -- DanielButrymowicz? - 31 Jan 2008

I. What We Understand (Through Different Interpretations)

a. What is the “fundamental problem”?

i. Science can’t discern accurately whether people are guilty or innocent.

ii. When our society evolved to the point where magic was no longer considered "reasonable," human society was once again faced with this knowledge problem in determining guilt. Frank suggests that we created the illusion that legal rules more or less accurately separate guilt from innocence in order to fill the void left after we could no longer believe in magic.

iii. 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.

b. What is Magic?

i. Magic fills the void left by the realms of human activity without control ‘by the ordinary techniques’ practiced by rational man. Magic and science stand anthropologically in opposition to each other: where one exists, the other dies.

ii. Magic and science don’t stand in opposition to each other. Instead, they exist on a spectrum containing varying degrees of conjecture and predictability on which almost every human discipline falls.

c. When is Magic utilized?

i. Magic supplants science when 1) “ignorance is thickest about the way of things” and 2) “dangers are the greatest.”

ii. Magic has more recently been used to divine the unknown (past events), as opposed to a time when Magic was a ritual used to create good luck after having witnessed an event of misfortune (a boat capsizing in the open ocean).

iii. Magic is necessary when three elements are present: the unknown, danger and circumstances where luck plays a major role; Magic is sufficient when the unknown and danger are present (i.e. the unknown facts of a particular case and the danger present in the possibility of a man losing his freedom).

iv. With the problems of competing witnesses, the degrading memories of a historical event, and the incentives on both sides to present the “facts” in a way that supports their argument, true objectivity – a clear, unadulterated picture of what occurred – cannot be produced. When faced with the possibility of deceit or uncertainty, our ancestors chose a different route. Instead of the false comfort in the objectivity of a judge, they were reassured by the omniscience of Magic and later by the swearing oaths, the truthfulness of which God, apparently, took some great interest.

d. Why do we use Magic?

i. We are addicted to Magic to escape anguish, or “the feeling of our total and deep responsibility” 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.

ii. Modern legal Magic is a token of our colonial legacy. We hold our legal processes as scientific not only to make it easier to bear the chanciness of it, but because “officializing” is key to the project of power.

iii. We are still deciding truth, not discovering it.

e. What is Frank’s goal in writing this?

i. Frank is tracing the evolution of solutions to this problem of uncertainty and Magic.

ii. Frank is not prescribing any reform, other than recognition that the “science” of law is not scientific at all. His essay is purely deconstructive. The issues he discusses are unavoidable.

iii. Frank does not necessarily have a problem with science. He has a problem with the fact that we treat it as a science.

iv. Frank intends to show us that the law is not science but Magic, yet a little bit of this Magic is necessary for a functioning legal system.

v. 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.

vi. Frank believes that “future possibilities…can be realized only by tearing the mask and the thing masked asunder.” The first step to reform is acknowledging the inherently subject nature of judicial decision-making and beginning to base the legitimacy of a court’s murder conviction, for example, on the more grounded idea that it is the best the court could do give its limitations.

vii. 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 product endeavors, but realize that our broken theory may have produced imperfect means that may be incorporated into our art of legal practice.

This is a summary of the discussion inspired by Frank’s essay, organized into what we understand/would like to understand, and subdivided into various topics. The points below are a combination of direct quotes and paraphrasing of student postings on the Wiki. We hope you find it useful!

I. What We Understand (Through Different Interpretations)

a. What is the “fundamental problem”?

i. Science can’t discern accurately whether people are guilty or innocent.

ii. When our society evolved to the point where magic was no longer considered "reasonable," human society was once again faced with this knowledge problem in determining guilt. Frank suggests that we created the illusion that legal rules more or less accurately separate guilt from innocence in order to fill the void left after we could no longer believe in magic.

iii. 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.

b. What is Magic?

i. Magic fills the void left by the realms of human activity without control ‘by the ordinary techniques’ practiced by rational man. Magic and science stand anthropologically in opposition to each other: where one exists, the other dies.

ii. Magic and science don’t stand in opposition to each other. Instead, they exist on a spectrum containing varying degrees of conjecture and predictability on which almost every human discipline falls.

c. When is Magic utilized?

i. Magic supplants science when 1) “ignorance is thickest about the way of things” and 2) “dangers are the greatest.”

ii. Magic has more recently been used to divine the unknown (past events), as opposed to a time when Magic was a ritual used to create good luck after having witnessed an event of misfortune (a boat capsizing in the open ocean).

iii. Magic is necessary when three elements are present: the unknown, danger and circumstances where luck plays a major role; Magic is sufficient when the unknown and danger are present (i.e. the unknown facts of a particular case and the danger present in the possibility of a man losing his freedom).

iv. With the problems of competing witnesses, the degrading memories of a historical event, and the incentives on both sides to present the “facts” in a way that supports their argument, true objectivity – a clear, unadulterated picture of what occurred – cannot be produced. When faced with the possibility of deceit or uncertainty, our ancestors chose a different route. Instead of the false comfort in the objectivity of a judge, they were reassured by the omniscience of Magic and later by the swearing oaths, the truthfulness of which God, apparently, took some great interest.

d. Why do we use Magic?

i. We are addicted to Magic to escape anguish, or “the feeling of our total and deep responsibility” 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.

ii. Modern legal Magic is a token of our colonial legacy. We hold our legal processes as scientific not only to make it easier to bear the chanciness of it, but because “officializing” is key to the project of power.

iii. We are still deciding truth, not discovering it.

e. What is Frank’s goal in writing this?

i. Frank is tracing the evolution of solutions to this problem of uncertainty and Magic.

ii. Frank is not prescribing any reform, other than recognition that the “science” of law is not scientific at all. His essay is purely deconstructive. The issues he discusses are unavoidable.

iii. Frank does not necessarily have a problem with science. He has a problem with the fact that we treat it as a science.

iv. Frank intends to show us that the law is not science but Magic, yet a little bit of this Magic is necessary for a functioning legal system.

v. 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.

vi. Frank believes that “future possibilities…can be realized only by tearing the mask and the thing masked asunder.” The first step to reform is acknowledging the inherently subject nature of judicial decision-making and beginning to base the legitimacy of a court’s murder conviction, for example, on the more grounded idea that it is the best the court could do give its limitations.

vii. 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 product endeavors, but realize that our broken theory may have produced imperfect means that may be incorporated into our art of legal practice.

II. What We Would Like to Understand Better

a. Why is Magic defined in terms of “necessary” and “sufficient”?

b. Considering Frank’s exposure of our limitations in fact-finding, do we continue with the present ruse or reveal the truth of what we’re doing?

c. 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?

d. In an effort to reform, what do we mean by “fair”? What is the focus of our system?

e. How would the legal system look absent “legal magic”?

f. How does Cohen’s position relate to that of Frank?