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. 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.” 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,” “word ritual,” and “legal myth” 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. 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. Moreover, a few scholars have recently begun again to recognize the connections among law, magic, and ritual. . . .