I feel I owe Eben a note of clarification. I want to make perfectly clear I was using the term "judeo-christian" in the most innocuous way possible. I, too, am completely unaware of its negative connotations so I, too, am looking forward to your elaboration (sorry i digress everyone).

According to wikipedia, the term appeared in the Oxford English Dictionary in 1899. I ran a google search with the term and I went through the first 40 hits and did not come up with one that detailed what Eben was getting at. However, I do not believe wikipedia or google is the end all be all. I am merely writing this to show that, after some cite (or rather site) checking, I chose to use the term because it seemed academically appropriate, rather than insulting. Reviewing the information online, i see a breadth of criticism regarding the term's religiously ambiguous nature, but I do not see anything about the Reagan years.

Eben, as I spent a great deal of time with this term in a history course in undergrad, could you trace a quick history in a little more detail?

-- AdamGold? - 07 Feb 2008

I hate to digress but I find Eben's comment about the etymology of the term "Judeo-Christian" intriuging. I have always understood Judeo-Christian to be an innocuous term used to describe a body of concepts and values thought to be held commonly by Judaism and Christianity. I had no idea anyone considered it contemptuous. Can you elaborate, Eben?

-- JuliaS - 07 Feb 2008

"How would the legal system look absent ‘legal magic’?"

Once we accept Frank's view that most (if not all) fact finding is based on the interpretations of the fact finders, our current system loses its legitimacy. With "magic" or "logic" or whatever term one wants to use, the methods used and the results of our judicial system may be explained in such a way to always conform to our ideals of blind justice, fairness, etc...

So I think that Adam is correct in saying that our current system requires "magic" or "logic" in order to work.

Absent "legal magic", we would need to scrap the entire system and start again. In designing our new system we would first need to clearly define the goals we were trying to achieve. What do we mean by "fair"? Fair to individuals? Fair to society as a whole? Is the focus of the system rehabilitation? Redistribution? Once we clearly understand what we want, it may turn out that our propensity for relying on "magic" might actually be somewhat helpful. The trick may be in recognizing the weakness and then incorporating it into the system from the ground up.

-- SandorMarton - 06 Feb 2008

• "Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation: - 'I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.'" It appears that the only requirement, with respect to taking an oath, is for the president to state their commitment to doing their job as described in Article II and to try real hard to keep the Constitution as the supreme law of the land.

Adam, I don't think "gaps in certainty" is quite on target when it comes to the meaning of MagicAccordingToFrank. To him, magic is more related to attempts to explain, understand, or control the world. What differentiates it from some of the hard sciences is that, given the types of things it seeks to explain, understand, or control it fails to be successful.

Adam’s point that “a thorough reading of Frank lends the inference that a bit of magic may be necessary for a functioning legal system” led me to the question of what Frank thinks should be done, or perhaps the question is what could be done – if anything. I didn’t come away with the idea that magic may be “necessary” for a functioning legal system.

Perhaps you can say that given human nature it is an unavoidable reality (is this what you are saying Adam?). I think though that Frank suggests that it is the “subjective” and “un-ruly” process of fact-finding that is unavoidable in our legal system. However, modern legal magic according to Frank is the “refusal to recognize such unruliness (61).” As I understood, he is not suggesting this is necessary for a functioning legal system.

This goes to Julia’s observation that magic is fundamentally scientific. Taken together, I think there is a suggestion that we as people rely on what we consider rational and scientific mechanisms as we work in and understand our legal system precisely to avoid facing the reality that it is permeated by such “unruly” subjectivity. It is this blind reliance on the certainty we draw from science that manifests in a “desire to be deceived.” This seems quite dangerous. To go back to the question Adam raises: can this be avoided, or given human nature is it inevitable? What are the consequences? How would the legal system look absent ‘legal magic’?

-- CarinaWallance - 06 Feb 2008

• What is a Judeo-Christian based society? There is no such thing as Judeo-Christianity so far as I know. Christians--by which we mean Gentile believers in Pauline and Petrine versions of some scarcely-accessible precedent concepts mostly not originally held or presented by Joshua of Nazareth, a reformist Jew, and written down in Greek, a language of which he was completely ignorant, between 100 and 350 years after his death--have regarded Jews as either "guests and strangers" or enemies to be segregated and murdered for the last thousand years at least. Has everyone forgotten the etymology of the word "ghetto"? Lately, in the time of Reagan, some pre-millennialist American Protestants who support Israel for anti-Semitic reasons and who have noticed that support for Israel and opposition to abortion are held in common with conservative American Jews, began referring to "Judeo-Christian" this-and-that as a pander-marker for a right-wing coalition of convenience. To me, or others in my intellectual and cultural neighborhood, this is language specifically breathing contempt for the actual historical condition of Jewishness, like saying "Some of my best friends are Negroes," and just as ugly. Because I assume for many reasons that you're not using it in that style, I imagine you have something else in mind. What?

-- EbenMoglen - 5 Feb 2008

From the Ordeals to the swearing of oaths, our society has always to some degree relied on religious beliefs and practices to facilitate the legal process.

• There is no requirement to swear on a bible, or to swear anything at all, in order to be President of the United States. That would be a religious test for office prohibited by the document itself. You have misread. Someone with historical knowledge of the relevant struggle in the history of English-speaking Christianity and English law, and its profound consequences for American development, should pick up the responsibility to explain here what Article II, Section 1 means by what it actually says.

-- EbenMoglen - 05 Feb 2008

• Actually, magic is a near-synonym for "science."

-- EbenMoglen - 05 Feb 2008

-- EbenMoglen - 05 Feb 2008

Adam, I don't think "gaps in certainty" is quite on target when it comes to the meaning of MagicAccordingToFrank. To him, magic is more related to attempts to close those gaps that appear objective, but are subjective.

You raise an interesting point about the role of theology. I have always looked at things like swearing on the bible as a show: more form than function. I could be wrong, but I don't believe people get comfort from Bill Clinton swearing, on the bible, to uphold the Constitution. In that sense, his acts were not MagicAccordingToFrank, since they failed to bridge an otherwise treacherous gap with a seemingly objective action.

-- AdamCarlis - 05 Feb 2008

I would like to add a thought that occurred to me as I was reading Frank to this thread in the hopes that someone else might have thought about this as well.

When you take a Judeo-Christian based society and interpose on it a secular based legal system, you are bound to find gaps in certainty - i.e. magic as Frank would call it.

From the Ordeals to the swearing of oaths, our society has always to some degree relied on relgious beliefs and practices to faciliate the legal process.

I would infer from the reading, as Daniel pointed out above, that Frank is tracing the evolution of solutions to this problem of uncertainty/magic. My view is that as long as we are a God-fearing society, we will continue to permit various levels of uncertainty within our secular legal system rooted in our beliefs regarding a higher moral being. In other words, swearing to God on a Bible is enough for the swearing in of the President of the United States. I cannot see, any time soon that is, the Judiciary inventing a truth telling robot to make sure the President will faithfully execute the duties of his or her office. I think a little magic is unavoidable.

-- AdamGold? - 05 Feb 2008

If I interpret Frank correctly, he begins by describing "magic" as the primitive response to the unknown and frightening. He then describes how primitive people invoked magic in situations where they were faced with a problem they did not know how to solve (like not being able to clearly determine guilt or innocence). The ordeal became a "magic" form of dealing with the fact that true guilt was often unknowable. 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.

If I read Frank correctly, the question isn't really why subjectivity was a sufficient threat. The fact that our culture over time has continually devised and revised such complex ways of dealing with this issue shows that we consider it a problem, and Frank simply traces the evolution of our solutions to it. On the other hand, it seems like a serious threat to me. If we were to acknowledge that there was only a small correlation between committing a crime and being sent to jail, our whole conception of criminal justice would collapse.

-- DanielButrymowicz - 31 Jan 2008

Andrew, I understood Frank to suggest that the fear referred to man's inability to control his environment - and to do so through the empirical techniques he knows: namely reason, experience, etc. I think that this fear exists with regard to human nature which is itself not subject to what Frank suggests is "primitive science." To that extent, I don't know that what human subjectivity (if I am correctly understanding your use of it) is so separate from the threat of perjury - rather that the very fact that litigation is centered largely around human actors brings this sense of "magic" TextDiscussionCohenandFrank into the courtroom.

-- CarinaWallance - 30 Jan 2008

Andrew, I’m having a little trouble understanding your critique because I’m having trouble understanding your analysis of Frank. Could you give me a five-sentence summary of what you think Frank is saying?

I also interpret Frank’s criticism of Cohen differently than you do. Cohen suggests that rule by discretion would be bad, true. I don’t think Frank is disputing that rule by discretion would be bad. I think his point is instead that just because rule by discretion would be bad doesn’t mean we don’t currently live in a society of rule by discretion, and that recognizing that is valuable.

I don’t necessarily disagree that rules are important. But Frank’s point, which seems on, is that rules don’t actually eliminate the discretion, because we have to apply necessarily subjective facts to those rules.

It’s very, very possible that I am (a) misunderstanding you or (b) misunderstanding Frank. Thoughts?

-- AmandaHungerford - 30 Jan 2008

Frank criticizes people who think they can predict the outcome of cases from clear, deterministic legal rules. I only disagree with his labeling their error as "rule magic" (p57). If "magic" is willful ignorance (part 3 pp 40-46), he does a weak job proving that "rule magic" is willful. Of course, Frank's essay becomes relevant to our class when we inquire into MODERN self-deceptions, and the questions will be: 1) ARE WE SELF-DECEPTIVE? and 1) WHAT SELF-INTEREST IS RESPONSIBLE?. I don't doubt the causal connection between self-interest and self-deception, but I'll question the existence or degree of jurisprudential self-interest.

Frank defines "magic" as an explanation reached by James's "faith ladder": "What I want might conceivably be true. It may be true. It must be true. It is true." (p43) In order to prove that modern jurisprudence is magic, he knows he needs to show that "fear accounts for much of the unwillingness of many lawyers today to acknowledge the immense hazards of litigation and the guessiness of legal rights," and to do so he starts with "an historical detour." (40) Historically, he says, belief in magic arose under two conditions: 1) "Where ignorance is thickest about the way of things" and 2) "where dangers are the greatest". (42-3) These included the following: "forces at large that the so-called savage cannot [control by science], evils that stalk him, perils which strike at his food supply, that capsize his boats, destroy his houses, take his life." (42)

The argument breaks down when he tries to analogize this fear, which prompted "primitive" societies to believe in magic, to the modern fear of flawed justice (42-46): "Since a trial's just outcome depends on truth-telling," (that's condition 1) "and since the outcome may deprive a man of his life, or his dearest possessions," (condition 2) "successful perjury is as grave a danger as drought disease, lightning or the fierce claws of wild beast." (44) Well, no. The "ancient" faith ladder was grounded in existential terror. Their condition 2 threatened the whole tribe, magicians included. Yes, their magic imperiled people, but that ancient judges employed that magic in ordeals (41-2) is only incidental: perjury, not peril, is the "want" that justified ordeals. Successful perjury just threatens the existence of defendants, not society. It's hard to have existential self-interest in someone else's problems. Frank skirts around this weakness when he calls magic "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." (43) Magic starts from "peril," then "need," and then just plain old "strong desires." Looks like people will self-deceive at the drop of a hat!

But maybe lawyers are softies, and a flawed justice system is an existential threat to us. Frank pokes fun at Morris Cohen, who says that "Uncontrolled discretion of judges would make modern complex life unbearable." (59) I'd have to read the quote in context, but I doubt that Cohen asserted this as an argument--his only argument--"as if to clinch the matter"--and that "Cohen would have it that what one considers desirable, what one thinks ought to be, one must take as true." I only see a normative statement: rule by discretion would be very very bad. I don't see a descriptive one. Perhaps Cohen doesn't appreciate that judges always use discretion. But "uncontrolled discretion" seems to be Cohen's critique of extreme legal realism, fiat by breakfast. Am I wrong to say that he's right, that rules do matter?

Finally, Frank wrongly claims that mechanical=dogma=magic (55). The only possible explanation I find is that science (says Benedict) is "essentially mechanistic, involving a manipulation of the external world by techniques and formulae that are assumed to operate automatically." (43) In that case, Frank has forgotten for the moment that ALL explanations are mechanical, by definition. Maybe that's why Frank says that Pound harks back to the "mechanical" magic of the ordeals. But the distinctive problem with "magical" explanations is that they aren't empirical; they're derived by a ladder of faith, not logic. Frank applies the distinction between R and F inconsistently. When Pound says that "nothing is unique about promissory notes," that "All such cases are alike" (54), I don't see Pound saying that R controls F, but that there is no F. When Frank replies that "it is always possible to introduce some question of fact relating to fraud, negligence, mistake, alteration, or estoppel," he's not attacking R at all, but asserting the existence of F.

None of the "mechanistic" judges he criticizes think R overrides F. Dickinson is a special case, since he's the F he claims R quashes is the subjective F of the judge. Judges are biased, lazy, stupid, of course; but denying this is not MAGIC: it's just stupidity.

-- AndrewGradman - 30 Jan 2008

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