Law in Contemporary Society

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ModernLegalMagicCritique1 5 - 30 Jan 2008 - Main.CarinaWallance
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Frank argues 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." He analogizes this fear to the fear that prompted "primitive" societies to believe in magic. I want to know, fear of what? Under Frank's analogy, HUMAN subjectivity in general (NOT the specific threat of perjury) is the analogue of whatever existential threat-mystery the ancients dealt with by magic; judicial use of magical subjectivity is an incidental application of this power, just as the ordeal was a convenient application of divine power by channeling it into bread or the oath. Maybe some conditions of post-WWII America made Frank think of human subjectivity as an existential threat to a process of achieving justice. (5)
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-- AmandaHungerford - 30 Jan 2008

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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

 
 
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Revision 5r5 - 30 Jan 2008 - 22:30:18 - CarinaWallance
Revision 4r4 - 30 Jan 2008 - 20:29:02 - AndrewGradman
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