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

I read Frank to mean that all law is, to a large degree, magic insofar as it remains inseparable from human subjectivity and contingency. Magic fills the void left by the realms of human activity without control "by the ordinary techniques" practiced by rational man (42). In effect, magic and science stand anthropologically in opposition to each other: where one exists, the other dies. In our day, Frank uses the example of an engineer to demonstrate the failure of science for predicting the law. "...an engineer," writes Frank citing another scholar, "trained to analyze a relatively simple situation into its elements, and then to recombine them so as to reach a solution of a problem, can exhaust the variables because they are few; he can predict, and control, the result with comparative ease. If now you put to the engineer a problem in social relations, he finds that his techniques won't work, because the variables are too numerous and their inter-actions too complicated, while the evidence...is insufficient and often unreliable. The engineer, therefore, is likely to throw up his hands, muttering that, since science is inapplicable, the problem cannot be solved by intelligence" (217). Since law as a network of "social relations" falls short of science, it represents an art largely regulated by the signs and symbols of man-made magic. As an art, nothing is necessary, and thus everything is contingent, irregular, and formally inexplicable. Instead of imposing our logical structures to explain the magic of law, Frank encourages us as lawyers to eschew the positivism of science, recognize the magic inherent in law due to human contingency, and adopt the "spirit" of science to combat deception (219). Though deliberate, Eben's validation of rent control in the FCC opinion did not necessarily force Rehnquist's hand to rule in favor of it in the future case; instead, it was a contingent event by virtue of the fact that the strategy of one man influenced the giant structure of American government and history of jurisprudence which, as Rehnquist's previous writings on rent control suggested, were on a different course. That, in the very ordinary sense of the word, was magical.

If, in our readings, the pendulum swung from a transcendental conception of the law filling the ether of pre-19th century history to Holmes's more scientific approach focused on prediction, Frank is perhaps halting the force of Holmes's push. To Frank, it is impossible to predict the law by a scientific method, as the physical sciences attempt, because the law as a descriptive matter is regulated partly by "invariants, uniformities, regularities" (210) and partly by magic and contingency.

-- JesseCreed - 02 Feb 2008