Download Rethinking Law as Process: Creativity, Novelty, Change by James MacLean PDF
By James MacLean
Rethinking legislations as approach draws on insights from 'process philosophy' so as to reconsider the character of felony decision-making. whereas there were major advancements within the software of ‘process’ proposal throughout a few disciplines, little detect has been taken of Whiteheadian metaphysics in legislation. however, technique suggestion deals major possibilities for critical inquiry into the character of criminal reasoning and the sensible software of legislations. Focusing on the practices of establishing, instead of their results, an elevated processual understanding re-orients realizing clear of the mechanistic and rationalist assumptions of Newtonian suggestion, and in the direction of the interminable ontological quest to arrest or to categorise the primarily undivided move of human event. Drawing jointly insights from a couple of diversified fields, James Maclean argues that it is simply because our inherited conceptual framework is tied to a ‘static’ state of mind that each try to supply justifying purposes for criminal judgements seems to be at top to check in in basic terms on the point of rationalization. Rethinking legislations as Process resolves this challenge, and so presents a extra enough description of the character of legislation and felony decision-making, through repositioning legislation inside of a completely processual world-view, within which there's purely the continual attempt to refine and to redefine the continual flux of felony figuring out.
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Frederick Schauer (1991) agrees with Raz that rules should be understood as entrenched generalisations. Rules ensure that the presence of certain operative facts always triggers certain prescribed consequences. So we follow a rule because it is the rule and we do so regardless of any underlying justiﬁcation. However, Schauer makes a distinction between the idea of exclusion and the force of exclusion to allow that, on occasion, one may look at the ﬁrst-order reason to determine if it is to control in that particular case: Insofar as it is possible for an exclusionary reason to tell an agent to look just quickly, if possible, at the excluded ﬁrst-order reason to see if Justifying legal decisions in hard cases 41 this is one of those cases in which the exclusion of that factor should be disregarded … (Schauer 1991: 91) Inasmuch as one is, in this way, always looking at ﬁrst order reasons, and looking just quickly rather than taking careful consideration, this might not necessarily be regarded as negating the idea of exclusionary reasons.
Of course, Christodoulidis is certainly correct to insist that ‘universalization is only justiﬁcation a posteriori’. Can it ever be anything else? Experience 44 Rethinking law as process is always experience of the past as it is presented to us in perception and, even at the most, will be experience of the immediate past. So the statement, that it ‘comes too late to guide the decision of the judge’, while correct, may not necessarily be understood to negate the understanding of justiﬁcation as, for example, MacCormick uses it.
Altman 1986: 211) In a nutshell, the legal realists’ argument strives for the substitution of formalism with a more pragmatic attitude towards law in general, one that ‘treats law as made, not found’. Understood thus, law is inextricably related to and bound up with human experience, tied to social, political and ethical circumstances and conditions, rather than formal logic: Legal principles are not inherent in some universal, timeless logical system; they are social constructs, designed by people in speciﬁc historical and social contexts for speciﬁc purposes to achieve speciﬁc ends.