Justifying legal decisions in hard cases: a Whiteheadian perspective.
In, 6th International Whitehead Conference, Salzburg, AT,
03 - 06 Jul 2006.
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This 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.
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