DanielButrymowicz made progress on your question. Combining our work:

"Magic" and "technology" are both tools to solve practical problems, but technology relies on science (experience); magic on hope. Magic supplants science when 1) "ignorance is thickest about the way of things" and 2) "dangers are the greatest".

I. What's necessary for magic: unknown, danger, and circumstances where luck plays a major role. The magical trial-by-ordeal arose when facts/history ["unknown"] was needed to determine perjury ["danger"]. Modern "rule magic" arises out of a similar reality where finding facts is subjective (unknown) and so there is great uncertainty and potential danger.

II. What's sufficient for magic: unknown and danger ... in sufficient degree? What makes modern lawyers SUFFICIENTLY unwilling to "acknowledge the immense hazards" etc.? Since a just outcome depends on truth-telling ["unknown"], and since the outcome may deprive a man of his life ["danger"], successful perjury is as grave a danger as storm flood or lightening (44) and the modern trial warrants magic as much as deep-sea fishing (43). But this answer doesn't satisfy. Maybe Frank, writing in 1949, had the Munich Agreement in mind when he realized that subjectivity could be a general threat, and that faith in rules were a form of self-gratifying denial.

DanielButrymowicz replied: 1) our evolving struggle to write a trial history ["unknown"] is itself a sign we consider the task very important ["dangerous"], and 2) if we acknowledged its inaccuracies ["unknown"], our whole conception of criminal justice would collapse ["danger"]. [Daniel, fix my paraphrase!]

-- AndrewGradman - 02 Feb 2008

Additional edits made AdamCarlis - 02 Feb 2008

Andrew, I think Frank's quote on the top of page 43 supports your definition of magic: "Magic, then, appears to be primitive man's ways of dealing with specific practical problems when he is in peril or in need, and his strong desires are thwarted because his rational techniques, based upon observation, prove ineffective."

What seems central in your calling magic a "tool" to solve practical problems and Frank's calling it a "way of dealing" with practical problems is that magic is defined in terms of the function it has in a culture, not in terms of its inherent qualities.

I'm not sure I get the reason behind defining magic in terms of "necessary" and "sufficient." It seems to complicate things, but maybe there's a good reason I'm missing.

-- ChristopherWlach - 02 Feb 2008

I agree that magic shouldn't be defined as it is above.

Frank argues that magic is a tool used to create certainty where there is none. It is a slight of hand designed to make the subjective appear objective in order to create a sense of reliability on or confidence in an otherwise dangerous and unpredictable circumstance.

-- AdamCarlis - 02 Feb 2008