In their current Las Vegas act, “bad boys of magic” Penn and Teller make the U. S. flag disappear from a flagpole, somehow seem to set fire to it while it is wrapped in a copy of the Bill of Rights, and then display the document, while Penn proclaims, “[T]he flag is gone but the Bill of Rights remains!” They then end the illusion by “magically” restoring the flag to its pole. The trick is well done, if a little heavy-handedly symbolic, and it emphasizes the similarities between magic and law. In order to make the flag and document reappear “magically,” Penn and Teller do and say ritualistic things.
Penn then asks the question, "Did we burn a flag? Did we symbolically burn a flag? Or did we merely vanish a flag in a patriotic flash of fireworks? It’s all of those, it’s none of those. It’s up to you. Most shows, and movies, and tv are all fake, they’re phony, they’re fiction. And news and sports are supposed to be real. But Penn & Teller, we like to drive fast, right on down the middle, because sometimes we’re showing you and telling the truth as we see it, from the bottom of our hearts. And sometimes we’re lying, and cheating, and swindling. And it’s up to you to figure that out."
Penn & Teller do not intend their fancy footwork solely as entertainment. They, like all accomplished magicians, engage in a number of principles intended to distract and deceive audience members. By adding “magic words” to their on-stage movement, which employs the cardinal principle of misdirection, one of the principles known to all magicians, with which they distract the willing, paying, audience, which involves itself intellectually in the performance to see the deception, they create the illusion that they have burned the flag. The magic words have nothing to do with what is really going on behind the scenes (or on the stage); that is, Penn and Teller could accomplish the trick without saying the words (although not without the movements required to hide the flag). Both the audience and the magicians know that the words do not create the result. But the audience wants the magicians to engage in the ritual - the saying of the magic words, and the use of the magic wand - and the magicians oblige, because all of this ritual is part of the spectacle. To return the flag, Penn says the appropriate language and he and his partner engage in the appropriate movements. The trick ends. When the audience leaves the theater, both it and the magicians know the illusions and the performance are over.
One lawyer-magician suggests that lawyers engage in misdirection as well. “Everyone knows that magicians misdirect audiences, that they visually and verbally disguise their dirty work... Lawyers also engage in verbal misdirection by “blindsiding witnesses, focusing attention on strengths and away from weaknesses, substituting jury charm for legal substance, and bobbing and weaving with words to deflect, convince and prevail.”
Are “magic words” also a form of misdirection and ritual? Is much of required courtroom behavior simply ritual and incantation? When judges use “magic words” or “magic formulas” in writing opinions, are they engaging in the same behavior? Do they create anything substantive by using those words that were not there before? Do the words themselves “mean” anything? Or are they simply a distraction, serving as misdirection, and perhaps because of our insistence on them, denying due process to the clients of those who negligently omit them? Do the wizards behind the curtain manipulate the system in some unfathomable way for their purposes while sending the rest of us on self-serving quests for witches’ broomsticks? To what extent can we compare the use of magic to the practice of law, and make magical analogies to legal practice? To what extent are such comparisons helpful and/or interesting? When parties, jurors, judges, lawyers, witnesses, and onlookers leave the courtroom, are what “magic words” and ritual leave behind more “real” than what is on a magician’s stage?
I do not intend to make legal formalism the entire subject of this Article. Others discuss that subject elsewhere in greater depth. Consider for example Pierre Schlag’s discussion of the law student’s first encounter with “magic words” in law study.
Still another aspect of the juridification of legal thought is the reliance on "magic words."
"Students, during their first year of law school, learn that in some legal contexts certain words are magic, in that their mere invocation can be guaranteed to induce certain effects upon legal actors. Such words might include "notice," or "possession," or "strict scrutiny." Legal thinkers often exhibit a haughty derision for the magic words - treating them as unfortunate (though perhaps necessary) legacies of formalism. Nonetheless, legal thinkers clearly have their own set of magic words - words like "values" and "rights" and "reason." These are words which, when accompanied with their usual grammar, will simply arrest thought upon impact."
In a few pages one cannot re-examine such a debate. But what one can begin to do is examine the repeated comparison that exists in the literature between magicians and attorneys, and question why this particular comparison should be so prevalent. Why do we so often see the phrases “magic words,” “the rabbit in the hat,” and “smoke and mirrors” applied to attorneys and the legal profession? Why do lawyers and judges apply such phrases to themselves and their behavior and what do they mean to convey by such usages? Do practicing lawyer-magicians put magic into practice in the courtroom in order to translate stagecraft into “practical magic?” If so, how do other members of the legal profession react?
That a magician knows that magic words do not themselves create a particular effect is one thing. That he uses them to create the illusion that they do so is quite another. That becomes the substance of the magical effect, even though without the words, the trick or illusion would still come off. Lawyers also know that words might or might not create a particular legal effect - hence the importance of the phrase “magic words.” Words may seem to be interchangeable but they may not be so. Attorneys and judges spill a great deal of ink over just such issues. They know that magic phrases might create important illusions, and in law illusions can become reality. However, if courts or legislatures require magic phrases in order to create effects, then those phrases we must have, and the magic phrases then become the substance of law. If the existence of such phrases might be lacking, and the desired effect might still occur, if the lawyers drawing up a document, for example, provide for all the legal requirements. Thus we agree that in order to create the legal effect, we must have the particular magic words, even though we might ordinarily think that other words might do just as well.
Finally, some magicians, like Penn and Teller, have a particular interest in the legal meaning of the magical act. When Penn Jillette says that the difference between “burning a flag” on the Las Vegas stage and then restoring it is fiction, and that entertainment generally is fiction, he has a point. But the act is still “real.” Penn and Teller “really” make the flag vanish. When Penn discusses the law, and the Supreme Court opinion, that protects the act, he takes us further along a journey into discussion of the comparison between magic and law. Such “burning” and restoring is a magic trick, but it is also real, in the sense that it can be speech, just as the real burning of an American flag might also be speech.
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