Text Discussion Cohen and Frank

Frank: Gods and Juries

I must confess; thus far I have understood very little of the reading. Nevertheless, I will share with you my understanding of this passage with the hope that you all will challenge my thinking, and broaden my understanding. Thanks in advance.

Frank argues that “primitive man could say that legal rights were on the knees of the gods. We must say that they are on the knees of men – of the trial judges or the juries.” (p.50)

Basically, he is analogizing the subjectivity inherent in the ability of our modern finders of facts (judges and juries) to those embodies by the purely haphazard (or sometimes rigged) trials by ordeal of the past.

As Frank points out in the example drawn from United States v. Schipp, even the Supreme Court, based off a written record, can vehemently disagree about the facts of the case. With the problems of competing witnesses, the degrading memories of a historical event, and the incentives on both sides to present the “facts” in a way that supports their argument, true objectivity – a clear, unadulterated picture of what occurred – cannot be produced. When faced with the possibility of deceit or uncertainty, our ancestors chose a different route. Instead of the false comfort in the objectivity of a judge, they were reassured by the omniscience of “magic” and later by the swearing of oaths, the truthfulness of which God, apparently, took some great interest.

A critique that I have regarding this analysis is whether “magic” was really used to divine the right outcome of a trial or whether, by people’s sincere belief in Godly retribution, oaths were instituted to force truthfulness. Frank alludes to this when he states that the swearing of oaths, under the threat of magical justice, as the ultimate adjudication of a trial came to an end when “skepticism [arose].” p. 45. Now that organizations like the innocence project are creating skepticism about our current magic-like system which often convicts the guilty will we be forced to replace it with something that appears less penetrable by the forces of subjectivity?

-- AdamCarlis - 31 Jan 2008