Rethinking Law as Process
Creativity, Novelty, Change
Routledge – 2011 – 224 pages
Rethinking Law as Process draws on insights from 'process philosophy' in order to rethink the nature of legal decision-making. While there have been significant developments in the application of ‘process’ thought across a number of disciplines, little notice has been taken of Whiteheadian metaphysics in law. Nevertheless, process thought offers significant opportunities for serious inquiry into the nature of legal reasoning and the practical application of law. Focusing on the practices of organising, rather than their effects, an increased processual awareness re-orients understanding away from the mechanistic and rationalist assumptions of Newtonian thought, and towards the interminable ontological quest to arrest or to classify the essentially undivided flow of human experience. Drawing together insights from a number of different fields, James Maclean argues that it is because our inherited conceptual framework is tied to a ‘static’ way of thinking that every attempt to offer justifying reasons for legal decisions appears at best to register only at the level of explanation. Rethinking Law as Process resolves this problem, and so provides a more adequate description of the nature of law and legal decision-making, by repositioning law within a thoroughly processual world-view, in which there is only the continuous effort to refine and to redefine the continuous flux of legal understanding.
Part 1: Legal Decision Making and Legal Reasoning 1. Locating the Problem in Law: The Conjoined Twins Case, Re A 2. Justifying Legal Decisions in Hard Cases: Different Approaches Part 2: Developing an Alternative Approach 3. Alfred North Whitehead's Philosophy of Organism 4. Lessons From Organization Theory 5. Towards a Process Reconstrual of ‘The Middle’ 6. Two Ways of Thinking; Two Types of Knowledge 7. Michael Polanyi’s ‘Tacit Knowledge’ Part 3: Exploring Formal Legal Contexts 8. Legal Institutional Knowledge 9. The Judge as Institutional Actor and Decision Maker 10. Legal Contexts as ‘Practices' 11. Chaos and Complexity 12. Closing the Gap: Narrative and the Law Part 4: Integrating Law and Process 13. Law’s Institutional Becoming: Law as Process – Creativity, Novelty, Change. 14. Law as Process; Legal Decision Making as an Actual Occasion in Concrescence. Conclusion