My intuition is the same as yours, Theodor. Additionally, I feel that it is from our capacity to empathize that our conceptions of morality derive. I believe Hutcheson was the innovator of this idea which was then built upon by Smith. A great illustration for this is to recall a time when you may have seen a comedic film for the fourth time. The jokes have worn themselves out with you, but because you are watching it with someone who has never seen it before, all of a sudden the punch lines possess nearly the same novelty that they did when you first saw the film. You find yourself laughing right along with your friend who is seeing it for the first time. This is indicative of our tendency to place ourselves in the position of others. Fundamental is the idea that we are not not feeling for the person, but we are feeling as though we are the person. I believe it is from this that our conceptions of morality derive.

-- JonathanGuerra - 05 Feb 2009

In Frank’s reading he distinguishes between R, the rule which is allegedly in controversy in a court of law, and F, the facts which are actually in controversy. To find the facts, we either rely on technical knowledge devised through observation and direct control of the environment, or, where this is insufficient, magic – rituals which allegedly minimize the chanciness of life, such as the ancient ordeals. This is a manipulation of the external world by techniques and formulae which are assumed to operate automatically, a stereotyped form of wishful thinking. The oath is the latest form of these. (Incidentally, this sort of wishful cause/effect thinking is not exclusively human. Animals, if given food at random intervals will look for (unconnected) clues to when food is given and visibly connect these to the delivery of food even contrary to later experience (Dawkins))

Then, the ‘modern’ trial, magic is invoked again to guard against the vicissitudes of the inadequacies of language and communication. Language is insufficient, as is human perception. Yet we rely on them to account for ‘justice’ in trials. As John Seymour said:

"Words are anchors for sense experience, but the experience is not the reality and the word is not the experience. Language is thus two removed from reality. To argue about the real meaning of a word is rather like arguing that one menu tastes better because you prefer the food that it is printed on."

Yet the legal theory is that only R, not F is in dispute, while (mostly) the opposite is blatantly the case. This is, as Frank puts it “a convenient lie”, a “magical device”, or, (as I would put it) a fiction. Rules are not ‘mechanically adopted’. Judges have vast ‘fact discretion’ Frank takes skillfully and rightly apart the arguments of various distinguished writers who praise the predictability of the law, finally quoting Morris Cohen who stated that “uncontrolled discretion of judges would make modern complex life unbearable” (a.k.a. bonkers!)

In the other chapter, Frank continues to take apart illusions of predictability. Legal science fails, if there ever was such a thing. Legal thinking is but a ghost science, divorced from reciprocal checking of data with theory and theory with data. And although it is human and scientific to simplify, the error margins of facts simply eat up any legal theory out there, which makes the difference between legal and ‘real’ science. This is the reason why every prediction-creating machine, theory and idea fails. He’s right, too. Even statistics or economics do not offer any solution. The variables are too numerous, their interactions too complicated – the problem cannot be solved by intelligence. (Sidenote: There is an unspoken word here: …cannot be solved by intelligence alone? Is there another resource we should be drawing on?)

Hence in courts we create and assemble functions in which evidence can be sorted. Yet the results are too unreliable to be called just, and the error margins are simply too big.

I have now regurgitated about 50 pages of Frank’s work with something hopefully approaching accuracy within brevity.

It was not without excitement that I turned the page, expecting to find the answer to these pressing problems of modern justice. Franks tells us that we have to choose “some sort of democratic planning inside a profit system, planning which seeks a working compromise, in which government would be efficient without being despotic, ensuring individual political freedoms without crumbling into anarchy. Democratic planning should be exceedingly flexible and circumspect.” (page 216) – That’s it. No more details, no blueprint to the brave new world. This short half paragraph was the only piece of constructive criticism in the entire print. And what’s more, in the words of Felix Cohen, this is a lot of transcendental nonsense. Why is this? Why indulge on a rant to criticize the status quo if there is no hint of having the slightest idea of how to improve on it?

Franks answers this question after two pages of surprising science-bashing, dismissing sciences which have prized efficiency over values. His answer is a quote from Samuel Butler: “This is as important as discovery. Surely the glory of getting rid of and burying… a troublesome matter should be as great as that of making an important discovery.” (p220) But he is quite mistaken. We have not gotten rid of anything. For all the criticism, does he have a replacement in place? Does he propose we replace the trial with a lottery, or a flip of a coin? He does not. To overcome the inadequacies of language and perception, does he have the key to telepathy? He does not. The ‘old’ legal system still abounds, fifty years later (for lack of a better one?) We still are using the same tools, for we have not been given any new ones. This is why this whole realism debate is somewhat empty, as it still, fifty, sixty years on leaves unanswered the all-important question: so what?

Why is it then that we cling on to magic, to fictions? We obviously know that a trial judge has discretion. Yet for some reason, flipping a coin instead offends us (or the voter, whoever that may be), while the accuracy of the legal system might be the same (well not quite… I do like to think that today’s legal system is an improvement over the dark ages, even though it may not deserve the title of ‘justice’ due to the large error and arbitrariness factors).

I believe the reason to be this: As a matter of evolution, we have developed empathy, allowing us to step into someone else’s shoes and to feel like what it would be like being him/her. This is a sort of future-predicting mechanism creating an evolutionary edge. This is why we cringe at watching or imagining torture. This is why we despise the idea of flipping a coin to determine guilt or innocence. We can imagine being that guy. Rawl’s veil of ignorance is built on this empathy. Various cultures have developed all kinds of empathy-negation machines, such as divine guidance, authority (remember Milgram’s experiment and the banality of evil ), great causes, the greater good, justice, morality and free will. If a man is guilty due to actions of his own volition, found guilty by a justice system, that is two such devices at work divorcing us from feeling sorry for the man (unless he is not guilty of course, which is when we see the cracks in the system). The modern legal system is the latest development in this long chain. Might it be possible that it is imperfect, but, like democracy (incidentally another piece of magic), no better one has been conceived of as yet?

-- TheodorBruening - 05 Feb 2009

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