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FrankDiscussionSummary 3 - 20 Feb 2008 - Main.AndrewGradman
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Summary of Discourse on “Courts on Trial” (Jerome Frank) | | |
i. Science can’t discern accurately whether people are guilty or innocent. | |
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> | * Frank first describes "magic" as the primitive response to the unknown and frightening, to problems. The ordeal was a "magic" solution to the problem that guilt was unknowable. | | | | |
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< | 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. | >
> | 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 | | |
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. | | | 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. | |
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< | 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. | >
> | ---+++ 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. ---+++ 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. |
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