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MagicAccordingToFrank 26 - 07 Feb 2008 - Main.TheodoreSmith
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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 | | | -- VishalA? - 06 Feb 2008 | |
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I feel like Frank would acknowledge the benefit of moving away from the "knees of god," I just don't think it buys you much. When we had god to base the law on, we could be explicit about magic. We were taking no responsibility for our actions; we were simply the agents of divine justice. When you lose God, you must either attempt to craft a system to explain and justify the law, or face the terrifying fact that you are personally responsible for sending men to their death based on imperfect knowledge.
I don't think it was an accident that Frank was writing only six years after Sartre's "Being and Nothingness." Sartre writes:
"The most terrible situations of war, the worst tortures do not create a non-human state of things; there is no non-human situation. It is only through fear, flight, and recourse to magical types of conduct that I shall decide on the non-human, but this decision is mine, and I shall carry the entire responsibility for it." (Sartre, Being and Nothingness)
The main point I am carrying from Frank is analogous. There is no justification to be found for our verdicts simply because we are following a system. Such a system stands on facts, and all we do with legal rules is convince ourself that "in a vast majority of instances, prediction ceases to be hazardous for the trained and expert judgment." (p. 56, Frank quoting Cardozo). Frank attacks this presumption at the facts, because facts are the base upon which the logical tower stands.
I think in the end, he is ending up in a similar place to Sartre. Our problem is "an unwillingness to face courageously the occurrence of such tragedies [as killing a man for a murder he did not commit]." (p.61, Frank). We are unwilling to take on ourselves the responsibility of what we do, claiming instead it is in the name of law, and that our commitment to legal rules can somehow serve as justifications for our actions.
My only minor quibble is that I do not agree with Frank that this is caused by an "addiction to legal magic." I think it is rather the other way round, that we are addicted to magic to escape what Sartre refers to as 'anguish,' or "the feeling of our total and deep responsibility." (Sartre, Existentialism and Human Emotions). We cannot bear to face the idea that we are choosing to send a man to jail for the rest of his life - that this is a decision we are making as imperfect beings, that we are wholly responsible for it, and that we cannot shift the blame.
As Eben pointed out in class today: "You know what is right."
-- TheodoreSmith - 07 Feb 2008 | | |
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| Revision 26 | r26 - 07 Feb 2008 - 05:06:58 - TheodoreSmith |
| Revision 25 | r25 - 06 Feb 2008 - 21:58:41 - VishalA? |
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