It's a thoughtful explanation of how law and magic, seemingly disconnected are related through the lens of anthropology;,it includes a review of various legal approaches to the treatment of magic and a definition of "magic," (in order to get the discussion moving). The authors also present a straightforward review of the problem facing legislators and judges: how do societies, and their legal regimes, differentiate between genuine belief, which might include practices that look magical, and therefore objectionable, but need protection, and fraudulent behavior and practices, which look awfully similar and also objectionable, and don't need protection?
We all want to ban something. It is a staple of our political culture. All of us are perhaps one moment away from seeking to ban what someone else is saying or doing. The nod-a-long responses of "it shouldn't be allowed" or "there should be a law against it" are the common solutions to many perceived problems.
However, to "ban" something is not actually to eliminate it, whatever "it" is. The "it" is not extinguished; the "it" may just be attended by some different consequences. The legalistic prose in a solemn document is not some magic spell which banishes horrors by invocation. To say there should be a law against a thing is often no more than saying there should be a spell against it.
In fact, "banning" things often creates new problems. In its correct legal form, a prohibition establishes certain legal and coercive consequences should the prohibited act occur: a court order for damages, say, or a prison sentence. Being banned does not thereby stop the thing from happening. It just means that the legal system will be engaged in a way it otherwise would not be.
Now, he's talking about "bans" and not "banns," which are the posting of the announcement of an upcoming marriage. Some people might say that "banns" mean also mean all sort of things are now banned as well, a number of them a lot of fun, but that's a discussion for another day.
This Article starts with a puzzle: Why is the doctrinal approach to “proximate cause” so resilient despite longstanding criticism? Proximate cause is a particularly extreme example of doctrine that limps along despite near universal consensus that it cannot actually determine legal outcomes. Why doesn’t that widely recognized indeterminacy disable proximate cause as a decision-making device? To address this puzzle, I pick up a cue from the legal realists, a group of skeptical lawyers, law professors, and judges, who, in the 1920s and 1930s, compared legal doctrine to ritual magic. I take that comparison seriously, perhaps more seriously, and definitely in a different direction, than the realists intended. Classic anthropological studies reveal several telling structural similarities between traditional proximate cause analysis and ritual magic. Moreover, it seems that in diverse cultural contexts, magic not only survives skeptical exposure, it feeds on it. Drawing on the anthropological literature, I propose that exposing doctrinal indeterminacy functions as a kind of ritual unmasking that ultimately increases rather than diminishes the credibility of doctrinal analyses. The Article concludes by considering how unmasking doctrinal indeterminacy works to strengthen faith in doctrine and by raising some questions about the implications for law’s legitimacy. Does unmasking doctrine only further mask judicial power? Or can ritual theory help us see some potential legitimate value in maintaining doctrine as the form of legal decision making, even as we acknowledge doctrine’s inability to determine legal outcomes?
Lawyers are given license to suspend what philosophers have called sincerity conditions. We ordinarily take people as being sincere in their speech. They expect us to do so, just as we, when we speak, expect others to take us as being sincere. Lawyers, however, are given license to be insincere. They are trained to be simultaneously truthful and insincere. On the one hand, they are required to tell the truth in the context of legal proceedings. On the other, they are insincere in that they routinely structure their speech to lead others into drawing inferences that will serve the lawyer’s goals, whether or not those inferences reflect a fair assessment of facts or law. This paper looks at the distinction between lying and deception, and finds some moral distinction, but not enough to justify the conduct acceptable by the legal profession on moral grounds. The paper discusses aspects of our psychology that make us vulnerable to the kind of deception practiced by lawyers, and concludes by criticizing American legal education for not imbuing a sense of responsibility in young lawyers that should accompany the license to be insincere. While the article focuses on lawyers working in the American adversarial system, many of the observations and issues apply to lawyers working in other legal systems, as well.
Professor Solan says in part:
Lawyers are given license to suspend what philosophers have called sincerity conditions. We ordinarily take people as being sincere in their speech. They expect us to do so, just as we, when we speak, expect others to take us as being sincere. The assumption of sincerity is generally suspended when we know that a person is speaking on behalf of someone else and taking an assigned position, making lawyers‘ insincere speech a special case of a more general phenomenon. Just as debaters and actors can and should put their own beliefs aside, lawyerly conduct can, in broad terms, be justified by the attorney‘s obligations in the adversarial system, which is often discussed under the rubric of role morality. After all, how can a lawyer represent a party in litigation without advocating for that party‘s position, whatever the lawyer believes?
Not all forms of insincerity are acceptable, however. Lawyers are trained to be simultaneously truthful and insincere. While they may structure their speech to lead others into drawing inferences that will serve the lawyer‘s goals, whether or not those inferences reflect a fair assessment of facts or law, they must not lie. It is acceptable to use cross-examination to direct a jury toward a theory that the evidence supports but which the lawyer does not believe to be true. It is not acceptable, however, for the lawyer to misstate the evidence in a closing argument.
This distinction – between lying and deception by misdirection – is accepted as a skill at which lawyers should become facile. Yet it rests on a shaky moral foundation. People typically have strong intuitions that lying is bad per se, and that that it is better to frame something deceptively than to lie about it. But many moral philosophers do not give much credit to this intuition. A person who is the victim of a deceptive practice generally feels no less violated just because the deception was not accomplished through a bald-faced lie. This essay explores this distinction, on which so much of lawyerly practice is based.
Moreover, the best lawyers are so convincing that they are able to cause their audience to let down their guard and to forget that they are dealing with an advocate. The essay also explores some of the psychology that leads to this sometimes unwise placement of trust. Thus, lawyers can be truthful, insincere, and effective all at the same time. In fact, they must be both truthful and insincere to be effective advocates, because zealous advocacy requires some degree of insincerity, and lawyers are not permitted to lie. This, in turn, explains why it is easy to distrust lawyers while, at the same time, admiring them. As Robert Post observed, lawyers ―are simultaneously praised and blamed for the very same actions.
Hmmm. Sort of like magicians (but less fun, and more expensive)? Download the essay from SSRN at the link, and pay no attention to the person behind the curtain.
In a new article published in the Cornell Law Review, scholar Yishai Blank examines the "reenchantment of law": the reworking, remaking, or recreating of bases of law so that it can provide what seem to be more substantial ideals about morality and justice.
Here is the abstract.
The religious revival observed throughout the world since the 1980s is making its mark on legal theory, threatening to shift the jurisprudential battleground from debates over law’s indeterminacy and power to conflicts over law’s grounds, meaning, unity, coherence, and metaphysical underpinnings. Following the immense impact of the legal-realist movement on American jurisprudence, the major jurisprudential conflicts in the United States throughout the twentieth century revolved around the themes of the indeterminacy and power inherent in adjudication (and the resulting delegitimization of it), pitting theories that emphasized these critical themes against schools of thought that tried to reconstruct and reconstitute the determinacy and legitimacy of adjudication. Over the past couple of decades, however, a new jurisprudential dividing line has emerged without attracting much notice or attention. This new divide, which I draw in this Essay, is between thinkers who adhere to a disenchanted, instrumentalist, and secularized view of the law and theoreticians who try to reenchant it by reintroducing a degree of magic, sacredness, and mystery into the law; by reconnecting it to a transcendental or even divine sphere; by finding unity and coherence in the entirety of the legal field; and by bringing metaphysics “back” into the study of law.
Thus a new stage in the evolution of modern legal theory is emerging in which formal legal rationality is no longer the high point of legal disenchantment (as Max Weber saw it) but a model for law’s reenchantment as against the almost universally accepted disenchanting legal theories. And although the question of legal interpretation - and the possibility of objective and legitimate adjudication - is still motivating some of these theories, the reenchanting theories aim to shift the jurisprudential debates from questions of the consequences of legal principles and rules to fundamental questions concerning the grounds of law. This ground shifting might invoke new jurisprudential conflicts between secularism and religiosity, between pragmatism and metaphysics, and between critical and magical thinking. In order to evaluate and demonstrate my claim I analyze four exemplary (though not exhaustive) modes of legal reenchantment that have emerged over the last thirty years: the reenchantment of legal formalism, the reenchantment of virtue, the reenchantment of law as art, and the reenchantment of legal authorities.
This essay attempts to delineate, trace, and reconstruct the main features of three interacting language paradigms significant in legal discourse, practice and theory: rhetoric, representationalism, and performativity. The examples discussed are narratives of institutionalized and customary law that share linguistic attributes with literary forms and theological puzzles. Law, as a complex linguistic activity, is thus placed in a long tradition of linguistic theory ranging from Plato and Protagoras to Wittgenstein, Austin and the linguistic turn (Sapir-Whorf); as well as supernatural uses of law, exercised both by divine fiat and lesser practices - namely the linguistic aspects of magic - especially in determining rights and settling disputes.
Download the full text from SSRN at the link, or from the journal here.