1,721,049 research outputs found
Rediscovering the 3 R's: resonance, recursion and resemblance
No full textAs a product of the Enlightenment, causality is an archetypically modernist concept: causal explanations reflect a perceived need to rationally re-connect, and re-integrate within an explanatory schema, otherwise apparently disparate ‘fragments’ of reality. Modern legal theory, in the analysis of events, circumstances and relationships within social situations, adopts almost uncritically, and deploys widely as an explanatory tool, this model of causality, attempting to link deterministically observed phenomena with underlying tendencies and generative mechanisms. However, while such understandings may help to reinforce notions of reality as objective, stable, orderly and predictable, ‘tightly coupled’ causal explanations sit uneasy alongside postmodern understandings of the world as consisting of creative processes. This paper argues the need for a more radical reconceptualising of the role of causation within law and legal theory, suggesting that postmodern ideas of ‘resonance’, ‘recursion’ and ‘resemblance’ offer a better approach for more accurately reflecting the nature of social phenomena and how they are coupled together to create semblances of regularit
Justifying legal decisions in hard cases: a Whiteheadian perspective
No full textThis paper examines legal reasoning from a process point of view; that is, it seeks to demonstrate how Whitehead’s thinking can be applied to legal decision making to bring to light its underlying processual nature. I begin by identifying a way of looking at law and legal problems that centers on the relation of particulars and universals, focusing on the problem of finding justifying reasons for legal decisions in hard cases. The difficulties involved in attempting to articulate the legal decision-making experience in this way are well documented in contemporary literature, being variously described as ‘the particularity void’, ‘the aporia’, ‘the phronetic gap’. In light of a discussion of these difficulties I utilize a mainly Whiteheadian approach to question the ontological and epistemological assumptions of the institutional theory of law (MacCormick) and attempt to re-present law and legal reasoning in process terms. I suggest that such a repositioning of law within a processual world-view allows a better understanding of the dynamic between institutions and practices (MacIntyre) and provides a more adequate description of the nature of law and legal reasoning; in particular, how a legal decision is created, maintained and employed within the decision making system
Rethinking law as process: creativity, novelty, change
No full textRethinking 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 understandin
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