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