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