Title: A Process Theory of Natural Law and the Rule of Law in China
Abstract:The Rule of Law faces critical challenges both at home and abroad. At home, legal indeterminacy and between legal theory and practice defy resolution by contemporary normative theories of law. Legal i...The Rule of Law faces critical challenges both at home and abroad. At home, legal indeterminacy and between legal theory and practice defy resolution by contemporary normative theories of law. Legal indeterminacy raises specter that judicial decisions in hard cases are illegitimate (political not legal) because judges must rely on personal political, moral, or religious beliefs. The ontological gap between practice of law, which presupposes a classical or religious ontology, and legal theory, which presupposes a scientific ontology (i.e., scientific materialism), further reveals irrelevance of legal theory (including conceptions of rule of law) to practice of law. Abroad, rule of is debunked as a Western construct that aims to advance U.S. imperialistic ambitions. Without a sufficient normative theory, rule of or the soul of modern state is in serious peril in U.S. and even more questionable as an export abroad. To address this predicament, this article analyzes China's efforts to implement rule of and proposes a constructive, post-modern normative theory of based on philosophy of Alfred North Whitehead and radical empiricism of William James. This process theory of natural law provides a novel theory of natural that eliminates perceived illegitimacy arising from legal indeterminacy and closes gap. Process natural also mediates many of cultural differences between East and West through telos of beauty (unity-in-diversity), which entails maximizing both an Eastern aesthetic sense of order (emergent harmony or spontaneous order) and a Western rational sense of order (complexity arising from diverse individual orderings). This conception of rule of further allows for important cultural differences to be reflected in interpretation of democracy and formal legality and in instantiation of individual rights in law. Thus, ideal rule of may look quite different in U.S. and China and may continue to evolve in our constantly changing, pluralistic, and multicultural world.Read More
Publication Year: 2008
Publication Date: 2008-01-01
Language: en
Type: article
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Cited By Count: 1
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