47 Pages Posted: 6 Jul 2007 Last revised: 29 Jul 2008
The Rule of Law faces critical challenges both at home and abroad. At home, legal indeterminacy and the ontological gap between legal theory and practice defy resolution by contemporary normative theories of law. Legal indeterminacy raises the specter that judicial decisions in hard cases are illegitimate (political not legal) because judges must rely on personal political, moral, or religious beliefs. The "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), further reveals the irrelevance of legal theory (including conceptions of the rule of law) to the practice of law. Abroad, the rule of law is debunked as a Western construct that aims to advance U.S. imperialistic ambitions. Without a sufficient normative theory, the rule of law or "the soul of the modern state" is in serious peril in the U.S. and even more questionable as an export abroad.
To address this predicament, this article analyzes China's efforts to implement the rule of law and proposes a constructive, post-modern normative theory of law based on the process philosophy of Alfred North Whitehead and the radical empiricism of William James. This "process theory of natural law" provides a novel theory of natural law that eliminates the perceived illegitimacy arising from legal indeterminacy and closes the ontological gap. Process natural law also mediates many of the cultural differences between the East and the West through the telos of beauty (unity-in-diversity), which entails maximizing both an Eastern aesthetic sense of order (emergent harmony or spontaneous order) and a Western rational sense of order (complexity arising from diverse individual orderings). This conception of the rule of law further allows for important cultural differences to be reflected in the interpretation of democracy and formal legality and in the instantiation of individual rights in the law. Thus, the ideal rule of law may look quite different in the U.S. and China and may continue to evolve in our constantly changing, pluralistic, and multicultural world.
Keywords: Jurisprudence, Legal Theory, Rule of Law, China, Natural Law, William James, Alfred North Whitehead, ontology, legal indeterminacy, social theory, Confucius, human rights, pragmatism, metaphysics
JEL Classification: K10, K40
Suggested Citation: Suggested Citation
Modak-Truran, Mark C., A Process Theory of Natural Law and the Rule of Law in China. Penn State International Law Review, Vol. 25, p. 607, 2008; Mississippi College School of Law Research Paper No. 2008-08. Available at SSRN: https://ssrn.com/abstract=997755