Law in Contemporary Society

Magic in Our Society as the Difference between Interdependence and Self-Reliance

-- By JenniferClark - 14 Feb 2008

The Nature of Magic

In Modern Legal Magic, Jerome Frank describes trial courts as operating as “historians” who reconstruct the past by interpreting facts gathered from second-hand reports. Consequently, the judicial process itself is highly conjectural, contrary to what lawyers and judges would have the larger society believe. The nature of imperfect fact-finding lends an air of uncertainty to the notion of “legal rights” and, in effect, this element of chanciness can create fear in the hearts of men who have put their trust and very lives on the line in reliance on the functioning of the judicial process. To distract the masses from the inherent uncertainties of the process and to address man’s great need for certainty in every avenue of life, the courts have employed the use of magic in the judicial realm as it has been used in almost every human discipline. Magic is man’s response to practical problems when his rationally conceived techniques fail him. Magic is man’s way of connecting cause and effect to better predict and control the forces which scare him. The judicial system is one of the forces.

Magic in the Judicial System

Every man is at the mercy of the judicial system and thus the ability to know its nature and predict its outcome is necessary for general human comfort. When men swear to “tell the whole truth and nothing but the truth” we are employing magic in order to be able to divine what is true testimony from what is false. We recognize this need as the trial court depends on true testimony in order to have a hope of a predictable outcome. According to Frank, “the integral cultural function of magic consists in the bridging-over of gaps and inadequacies in highly important activities not yet completely master by man”. Thus, since man has not yet mastered the quest for “truth”, we use magic in our quest to find it. We also use magic to better predict the outcomes of trials. When lawyers hire psychologists to examine jury members and make recommendations those lawyers are relying on magic. They are relying on their being a predictable correlation between a jury member’s gender, socio-economic status, race, or previous life experiences, and their verdict on the case. Thus, magic is a process through which lawyers better predict legal decisions.

“Rule magic” is a necessary by-product of subjective facts and uncertain trial outcomes. In order for clients to trust their lawyers they need to rely on their lawyers predicting the outcomes of cases. The lawyers know this and thus employ magic, which is “essentially mechanistic, involving a manipulation of the external world by techniques and formulas”. Much like science, magic is how we understand the world around us. How do I know that when I enter a room and flip a switch that the lights will come on? It is predictable and it is knowledge which is essential to the way I control the world around me. However, I do not know the first thing about the science behind it. To an electrical engineer the light-bulb represents science, to me its magic.

Our Society without Magic?

Magic, as described, seems a necessary part of life. It lends predictability and certainty to a fearful world and may be an essential component of an interdependent human society. Because of the nature of interdependence, it is important for every person to be able to predict the actions of others and the social consequences of those actions. Therefore, magic seems like an essential element of our society and, in particular, our legal system. But what does our society look like without magic? I believe a world without magic, would look much like Ralph Waldo Emerson’s conceptions of society in his essay Self-Reliance. According to Emerson, men react to fear with an increased obsession with the past and a desire for conformity and consistency. However, instead of resorting to magic, Emerson says men should instead seek self-reliance and harness their individual creativity.

Emerson believes that man is hindered by his obsession with the past. In a controversial speech he gave at Harvard University, Emerson denounced the church’s over-emphasis of miracles and encouraged the church to highlight and emphasize the importance of the “soul”. The miracles he speaks of are a type of magic which he believes distracts from the power of the individual to find refuge from fear by tapping into inner strength, rather than relying on platitudes. Regarding conformity, Emerson states that a conformist loses their individual identity, making it impossible for them to cultivate creativity. It can be argued that the judicial system, in its quest for predictability has sacrificed its own ability to garner creativity. It is arguable that in the quest for a judicial system which “works”, creativity is needed to make important changes in the future. However, because the success of the judicial system has been so often measure in terms of predictability, rather than in terms of its tangible effects on society, the need for creativity is rarely even acknowledged among legal academics.

Finally, Emerson also urges against consistency, the desire to avoid contradiction in life. In response to this desire, Emerson tells his readership not to fear inconsistency because they should not worry about being misunderstood. However, in the judicial system, the fear of being misunderstood is very real when confronted with life in prison; it is even more real when confronted with the death penalty. Because we as a society act as judge and jury over one another, to be misunderstood in our society is to be black-listed at the least and murdered at the utmost. This is where Emerson’s idea of a self-reliant society seems to break down when confronted with the realities of our society today. We are so inter-dependent that our desire to control the actions of others is great enough that we sacrifice our own freedoms to do so and call it “magic”.

  • The distance between the incommensurables you adduced here is simply too great. It's true that Emerson's version of realism offered in Self-Reliance bears just enough similarity to the realism of Jerome Frank that they can be made to resonate ever so slightly. But the juxtaposition doesn't illuminate either element at that vast distance, so that one learns neither what Emerson means nor what Frank intends, let alone what "we" ought to think about either. You could tell that this was true at the outline stage, where you found neither an introduction that could state a thesis, nor a conclusion that could fulfill the development of that thesis. Instead you begin abruptly with the first part of A and end on the last part of B, with no more than grammatical glue and one similitude holding the paragraphs together. The route to improvement is to evolve the thesis. In all likelihood Emerson then falls away altogether, or is present solely as an invocation, because the real point, whatever it is, that isn't merely a cliche restatement of Frank, will have emerged.

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