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

-- JesseCreed - 06 Feb 2008

• 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.

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 serious of constructed rules that, Frank argues, constitute a “non-empirical, illusory” method of determining guilt.

-- DanielButrymowicz - 06 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