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