Towards a process theory of Law: The jurisprudential implications of the process philosophy of Alfred North Whitehead
Maclean, James B
This thesis examines law from a mainly Whiteheadian, or ‘process’, perspective. Beginning with the judgement of Lord Justice Ward in the conjoined twins’ case, Re A, I identify a way of looking at law that centres on the relation between universals and particulars and show how the attempt to understand law in these terms encourages a dualism that results in a shortfall between lived experience and that which can be accounted for by legal representation. As a result, much of contemporary legal theory is, I suggest, effectively the expression of a continuing concern to ‘connect’ legal research with actual judicial decision making, to bridge the gap between rule-determination and rule-application. But, while legal theory and legal practice are indeed often thought of as if they were two separate but connectable areas, I argue that they are in fact more correctly understood as outlining a mutually constitutive process of becoming, interpenetrating and interrelating. Focussing on the position of judge as institutional actor and decision maker, I describe how the different types of institutional knowledge that exist in law interact with each other and can be seen to be founded on different features of the legal institutional context. Thus, while the ‘propositional’ structure of legal knowledge is fully realized within formal legal contexts in terms of ‘institutions’, these formal legal contexts are also ‘practices’, shared traditions in and out of which legal practitioners live and work, and in this latter sense legal knowledge has a ‘narrative’ structure. But these two features of legal institutional knowledge sit uncomfortably alongside each other. Drawing on several thinkers in the tradition of ‘process’ thought, such as Henri Bergson and Gilles Deleuze, and on the idea of ‘tacit’ knowledge developed by the social philosopher Michael Polanyi, I demonstrate how the judge’s role in managing these tensions can be seen to suggest an alternative understanding of the nature of law and legal reasoning that emphasises creative potential, novel adventure and continuous change. This in turn paves the way for a creative reconstruction of law according to process thought, integrating Neil MacCormick’s institutional theory of law within Alfred North Whitehead's scheme of metaphysical principles and relating his theory of legal reasoning to Whitehead’s analysis of the process of concrescence. In this way, I conclude with a presentation of the thesis in thoroughly Whiteheadian terms: law as process; legal decision making as an actual occasion in concrescence.