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MagicAccordingToFrank 25 - 06 Feb 2008 - Main.VishalA
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| META TOPICPARENT | name="TextDiscussionCohenandFrank" |
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Eben alluded to us not quite getting the meaning of "magic" according to Frank. Let's use this space to work it out.
-- AdamCarlis - 02 Feb 2008 | | | -- JesseCreed - 06 Feb 2008 | |
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< | I agree with the Julia’s reading of the text, and particularly the idea that magic and legal fact-finding science are essentially functionally equivalent (in either case, the function served is to decide rather than to discover the truth). However, I disagree that his thesis is purely deconstructive. Frank believes that when legal thinkers are under the mistaken assumption that judges are controlled by precise legal rules that determine the truth, they are merely disguising what is to them a terrifying reality (p. 59) and thus masking existing realities. But, he suggests (through Shaw’s writing) that, “future possibilities…can be realized only by tearing the mask and the thing masked asunder.” | >
> | I agree with the Julia’s reading of the text, and particularly the idea that magic and legal fact-finding science are functionally equivalent (in both cases, the function served is to decide rather than to discover the truth). However, I disagree that his thesis is purely deconstructive. Frank believes that when legal thinkers are under the mistaken assumption that judges are controlled by precise legal rules that determine the truth, they are merely disguising what is to them a terrifying reality (p. 59) and thus masking existing realities. But, he suggests (through Shaw’s writing) that, “future possibilities…can be realized only by tearing the mask and the thing masked asunder.” | | | Frank believes that merely by acknowledging the inherently subjective nature of judicial decision-making, and by understanding that subjectivity is not always evident to the naked eye (as Morris Cohen does not – p.59-60), we are taking a very tangible step towards reform. We might, then, begin to base the legitimacy of a court’s murder conviction, for example, not on the unrealistic and dangerous notion that it represents the truth, but on the more grounded idea that it is the best the court could do given its limitations. Perhaps, I think Frank is implying, we’d be more likely to take new facts into account once they arise, such as DNA evidence in today’s death penalty cases. |
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| Revision 25 | r25 - 06 Feb 2008 - 21:58:41 - VishalA? |
| Revision 24 | r24 - 06 Feb 2008 - 17:20:33 - VishalA? |
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