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