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

I would like to add a thought that occurred to me as I was reading Frank to this thread in the hopes that someone else might have thought about this as well.

When you take a Judeo-Christian based society and interpose on it a secular based legal system, you are bound to find gaps in certainty - i.e. magic as Frank would call it.

From the Ordeals to the swearing of oaths, our society has always to some degree relied on relgious beliefs and practices to faciliate the legal process.

I would infer from the reading, as Daniel pointed out above, that Frank is tracing the evolution of solutions to this problem of uncertainty/magic. My view is that as long as we are a God-fearing society, we will continue to permit various levels of uncertainty within our secular legal system rooted in our beliefs regarding a higher moral being. In other words, swearing to God on a Bible is enough for the swearing in of the President of the United States. I cannot see, any time soon that is, the Judiciary inventing a truth telling robot to make sure the President will faithfully execute the duties of his or her office. I think a little magic is unavoidable.

-- AdamGold? - 05 Feb 2008