A theory of adjudication: law as magic.

• Author: Allen, Jessie

Law is a "strange compound which is brewed daily in the caldron of the courts."

Hon. Benjamin N. Cardozo (2)

1. INTRODUCTION

   At least since the Legal Realists' early twentieth-century critique, legal theorists have struggled to understand the relationship between law and reason. Other disciplines can help with that project. The longstanding trend toward economic analysis is one well-developed approach. Recent scholarship looks to both economics and psychology to analyze the law of risk. (3) In this article, I use anthropological theories of ritual and magic to reconsider the role of doctrinal reasoning and formal procedure in adjudication and adjudication's role in social change. I argue that aspects of law regarded as irrational "magic" may contribute to adjudication's social effects and meaning.

   The idea that law has something in common with magic is not new. In the 1920s and 1930s, the American Legal Realists expressed their critique of legal rationality by complaining that judges practice "legal magic." (4) According to the Realists, legal outcomes were actually determined by judges' individual preferences and ideology. Traditional legal methods-precedential hierarchies, doctrinal formulas, and procedural rules-were nothing but "magic solving words," (5) "word ritual," (6) and "legal myth" (7) that obscured the real reasons for court decisions. Although the most important Realist writings were produced some seventy years ago, they exert a powerful continuing influence. (8) Today's ascendant economic approach to legal analysis is a Realist descendent. And while little has been written about the Realists' analysis of legal magic, references to "talismanic" legal reasoning and "magic words" crop up with some regularity in case law to this day. (9) Moreover, a few scholars have recently begun again to recognize the connections among law, magic, and ritual. (10)

   I want to reconsider law's magical aspects in a way that both extends and critiques Realism. I accept the core view of the Realists and of today's radical legal critics and economic pragmatists that categorical doctrinal reasoning, precedent, and formal procedures do not objectively determine legal decisions. (11) But I reject the assumption that those features of adjudication must therefore be irrational and false or superficial and unconnected to law's social effects. Legal magic may have a fruitful role to play in a legal system we conceive as helping to create the social world.

   My thesis is that the Realists were right that law works like magic but wrong about how magic works. The Realists' understanding of the magic they identified in legal forms and doctrines was foreclosed by their adoption of the Victorian anthropological definition of magic as a kind of false science. Modern field anthropologists, however, revised that view observing that magic and ritual are not necessarily in tension with reason. Indeed, much of the work of twentieth-century anthropology, across a wide theoretical spectrum, re-envisions magic and ritual outside the Victorian identification of magic and primitive irrationality. Early functionalist and structuralist theories; "structural-functionalist" approaches that stress the social work of ritual; and cultural analyses that interpret magic and ritual in terms of performance, language, and symbol all reject the necessary opposition of ritual magic and reason. Viewing law as magic from these perspectives produces two important challenges to the Realist view. First, it allows us to see that magic and ritual aspects of adjudication do not necessarily conflict with rational legal decision-making. Second, it suggests some ways that the legal magic the Realists criticized might actually enhance law's legitimacy and effectiveness.

   Following the Realists, however, many legal theorists today view the ideal of law as instrumental: policy decisions made by intelligent, conscientious individuals who combine clear-eyed empirical assessments with thoughtful value judgments to produce sensible and just social regulation. (12) In that paradigm, any aspects of adjudication that smack of ritual magic appear corrupt and dysfunctional. But in the model of law as socially constitutive--shaped in part by the Realists' own criticism of law's persistent failure to dispense social justice--law interacts with society in much more pervasive and complex institutional ways. In this view, law constitutes and transforms social meaning by helping to create and recreate the social situations at issue in adjudication. Ritual magic is a long-recognized mechanism of such transformations.

   In law, as in ritual magic, transforming the meaning of a set of social circumstances can happen through common formal and performative techniques that may look like mere distractions or ways to disguise what is really going on. In fact, some functions of law in our society may depend on these techniques, not because they confer logical-rational correctness or predictability, but because they may contribute to judicial impartiality and because they may provide a mechanism through which official legal decisions take on some of the affective power of lived experience and so generate the personal and collective commitment that leads to social transformation. Particularly as the social influence of extralegal religious and community norms becomes more evident and opposed to judicial articulations of the secular "rule of law," it seems important to consider aspects of adjudication that may elicit similar forms of social commitment. (13)

   The "magic" that I mean to reference as my point of anthropological comparison is a broad category. Magic, in this sense, encompasses practices in diverse cultures that aim to achieve some kind of transformative effect through a combination of physical and verbal techniques that are distinct from ordinary technical interventions. These practices have sometimes been categorized separately as magic, sorcery, and shamanism; but, like the Realists, I shall sweep them all under the heading of "magic." (14) I will also consider some ritual practices aimed at producing transformations that even Realist skeptics might be prepared to recognize as in some sense real, such as initiation rites. Not all "ritual" is "magic," and perhaps not all magic requires ritual, but most of my analysis will focus on the intersection of these two categories. I explore practices in other settings that are understood to transform the meaning of a set of circumstances through a combination of performative, formal, metaphoric, and temporal techniques in order to illuminate the use of similar techniques in adjudication. For instance, I argue that in some specific ways, adjudication resembles the rites conducted by Trobriand magicians to protect the yam harvest from depletion. (15)

   Much of what I discuss as magic might also be analyzed as aspects of religion. By speaking in terms of ritual magic I do not mean to endorse a clear objective distinction between the practices or concepts of magic and religion. Indeed, the breakdown of such an imagined boundary is part of the modern anthropological discourse I embrace here. (16) By sticking with the label of magic, I mean to signal that I am considering aspects of legal practice that when recognized have generally been vilified as irrational and out of place in legitimate democratic institutions. I also mean to stress my debt to the Realist thinkers who first systematically critiqued legal magic.

   This article proceeds in four parts. Part I traces the techniques that adjudication and ritual magic have in common. Both law and magic enact performances to transform reality. In law, those performances are trials, hearings, arguments, rulings--all the public processes of adjudication. These legal and magical rituals are characterized by a rigidly formal structure that diverges from everyday behavior and language and by a transgressive approach to historical time. The efficacy of both magic spells and judicial determinations partakes of the "performative" force of language, so that when judges and sorcerers speak in the proper ritual contexts, the act of saying it does make it so. (17) And both law and magic make use of metaphors to accomplish transformations. (18)

   In Parts II and III, I show how the Realist critique of adjudication parallels the Victorian anthropological view of magic and offer an alternative approach culled from twentieth-century anthropology. The Victorian scholars who developed the academic discipline of anthropology saw magic as false science. (19) But there are other ways to conceptualize magic. Bronislaw Malinowski, for instance, observed that among the Trobriand Islanders he studied, magic worked alongside the accurate empirical observations and technical capacity needed to build seaworthy canoes and cultivate productive gardens (20) The magic Trobrianders practiced over their canoes and crops, therefore, was something other than a misguided attempt to interfere with natural processes. (21) Trobriand magic was "a special department; ... a specific power, essentially human, autonomous and independent in its action." (22) Malinowski observed that magic had an organizing and regulating effect on activities, like gardening and Kula voyaging, that were central to the Trobriand economy. Thus, among other early field anthropologists, he opened up the possibility that instead of ineffective science, magic might be an effective social and cultural practice. (23)

   Part IV reconsiders legal magic through this alternative theoretical lens. First, I theorize an authentic ritual-magic mode of legal practice. Then, I propose three potential ways to re-conceptualize legal magic's role in adjudication: (1) as a way to imbue official articulations of legal norms and decisions with the affective moral force of lived experience, (2) as an institutional practice that may enhance judicial impartiality, and (3) as a method for...