I firmly agree with JuliaS? above. I read Frank to be pointing out the true nature of our subjective legal system. I think "unavoidable" is the proper term to describe the intangible mechanisms that get us from dispute to resolution.

Basically, whether we choose to subject someone to the Ordeals or whether we subject them to a jury trial, there will be an element of human subjecitvity, maybe even magic!!, that we as a society must accept. In fact, I believe that a thorough reading of Frank lends the inference that a bit of magic may be necessary for a functioning legal system. After all, without omnipotent and omnicient judges and juries, how else would we find OJ not guilty?

-- AdamGold? - 05 Feb 2008

Ted, I don't think Frank has any interest in prescribing reform. I think his project is purely deconstructive, and I find it very frustrating for that reason. As far as I can tell, the issues he raises are unavoidable. I think perhaps the only "reform" suggested by Frank's article is that we stop deceiving ourselves and admit the true nature of our legal system. I'm not sure, however, what that would accomplish.

As one of my college professor's once told me - Philosophy's not about answers. If you want answers, go watch Jeopardy.

-- JuliaS - 05 Feb 2008

• I mean, it is a way to define "defining," but I think it might be a little confusing for people who haven't taken philosophy. For example, one might assert that reading Frank is both necessary and sufficient to understanding "magic." Even if this is true, the statement that therefore reading Frank is the same as understanding magic is not really in line with most people's understanding of equivalence. =) -- TheodoreSmith - 03 Feb 2008

Julia and Jessie - I loved your analyses. I think they go really well together.

As has perhaps been implied, Andrew (or Daniel?) may be oversimplifying with the statement that "technology relies on science (experience); magic on hope."

I don't know whether Frank would agree with this, but it seems as though the type of magic Frank is referring to is not completely cut off from the casual realm. Empirical science is based (to some degree) on our ability to differentiate and reduce. We are able to divide systems into component elements and investigate causes on an increasingly subtle level.

With magical thinking, it seems as though we are simply refusing to reduce the system past a certain point. In law and social science, I think this reluctance is generally due to the extreme interrelated complexity of the system. If you look at a judicial decision as a Cohen-esque nexus of social forces, a logical and scientific reduction becomes about as meaningful as an attempt to uncover the "purpose" of a single neuron in the brain.

This is not to say that the scientific system necessarily has the "truth" advantage over magic. To unwisely extend Godel's terminology, both systems are almost certainly both incomplete and inconsistent. I don't think Frank has a problem with magic, so much as our tendency to pretend that it is science.

All this said, I do not know how it gets at the question that I feel like Frank is dancing around - given that truth in the judicial system is constrained by the limitations of human ability, and will likely always contain some element of magic, how do we approach reform of the system? Do we continue to 'science-ify' the system in order to encourage public confidence, or do we throw off the trappings of "mechanical jurisprudence" to expose the magic and conjecture behind the institution?

"He is a barbarian, and thinks that the customs of his tribe and island are the laws of nature." - George Bernard Shaw

-- TheodoreSmith - 03 Feb 2008

• There is a difference between luck and "unknown," at least in the historical context. Frank differentiates between events that couldn't be rationally predicted by "primitive" folks because they didn't understand the way the world works (boats capsizing in the open ocean) and knowledge itself. Basically, magic (in the form of rituals) was used, not to predict the unknown, but to ensure good luck. Later, it was used to divine the past (trial by ordeal). To me this matters in the analogy he makes to the modern court system where scholars use magical thinking to assert rules of jurisprudence that, while appearing to solidify the objectivity of our trial system (an attempt at taking luck out of the equation), don't stand up to scrutiny. -- AdamCarlis - 02 Feb 2008