1st Edition

Rethinking Law as Process Creativity, Novelty, Change

By James MacLean Copyright 2012
    222 Pages
    by Routledge

    224 Pages
    by Routledge

    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


    James MacLean is Lecturer in Law at the University of Southampton, where he teaches legal reasoning and legal theory. He is co-editor of The Universal and the Particular in Legal Reasoning, a collection of essays on the work of the late Professor Sir Neil MacCormick.