Skip to main content
Contribution to Book
PROLEGOMENA TO A PROCESS THEORY OF NATURAL LAW
HANDBOOK OF WHITEHEADIAN PROCESS THOUGHT (2008)
  • Mark C Modak-Truran, Mississippi College School of Law
Abstract
Two contemporary quandaries in legal theory provide an occasion for a revival of interest in natural law theories of law. First, the debate about legal indeterminacy has made it clear that law cannot function autonomously—as a self-contained set of rules—but requires a normative justification of judges’ decisions in hard cases. In addition, Steven D. Smith has persuasively argued that there is an "ontological gap" between the practice of law, which presupposes a classical or religious ontology, and legal theory, which presupposes a scientific ontology (i.e., scientific materialism) that rejects religious ontology. This article demonstrates how the process philosophy of Alfred North Whitehead and the radical empiricism of William James support a new process theory of natural law. Under this theory, judges resolve legal indeterminacy by determining what maximizes the telos beauty—in accordance with the circumstances of the case and the social perfection possible within that society—rather than by relying on fixed, antiquated natural laws. Process natural law also closes the ontological gap by providing an ontology that unifies the moral insights of religion with the insights of modern science.
Keywords
  • Process Philosophy,
  • Natural Law,
  • Legal Indeterminacy
Disciplines
Publication Date
2008
Editor
Michel Weber and Will Desmond
Publisher
Ontos Verlag
Series
Process Thought
ISBN
978-3-938793-92-3
Citation Information
Mark C Modak-Truran. "PROLEGOMENA TO A PROCESS THEORY OF NATURAL LAW" 1stFrankfurtHANDBOOK OF WHITEHEADIAN PROCESS THOUGHT Vol. 1 (2008)
Available at: http://works.bepress.com/mark_modak_truran/5/