Prolegomena to a Process Theory of Natural Law
1 HANDBOOK OF WHITEHEADIAN PROCESS THOUGHT pp. 507-19 & pp. 533-36, Michel Weber, Will Desmond, eds., Ontos Verlag, 2008
18 Pages Posted: 7 Jun 2007 Last revised: 7 May 2008
Two contemporary quandaries in legal theory provide an occasion for a revival of interest in natural law theories of law. First, the debate about legal indeterminacy has made it clear that law cannot function autonomously (as a self-contained set of rules) but requires a normative justification of judges' decisions in hard cases. In addition, Steven D. Smith has persuasively argued that there is an "ontological gap" between the practice of law, which presupposes a classical or religious ontology, and legal theory, which presupposes a scientific ontology (i.e., scientific materialism) that rejects religious ontology. This article demonstrates how the process philosophy of Alfred North Whitehead and the radical empiricism of William James support a new process theory of natural law. Under this theory, judges resolve legal indeterminacy by determining what maximizes the telos beauty (in accordance with the circumstances of the case and the social perfection possible within that society) rather than by relying on fixed, antiquated natural laws. Process natural law also closes the ontological gap by providing an ontology that unifies the moral insights of religion with the insights of modern science.
Keywords: Legal Theory, Natural Law, Jurisprudence, Alfred North Whitehead, William James, Legal Indeterminancy, Process Philosophy
JEL Classification: K1, K3, K4, K10, K19, K30, K39, K40, K49
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