As in other areas of the academy, post-metaphysical assumptions dominate modern and post-modern legal theory. Two contemporary quandaries in legal theory, however, provide an occasion for a revival of interest in the metaphysical or ontological principles presupposed by the law. First, the debate about legal indeterminacy has made it clear that law cannot function autonomously and raises the specter that judicial decisions in hard cases are illegitimate. 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 attempts to demonstrate how the process philosophies of Alfred North Whitehead and William James support a new theory of natural law that can eliminate the perceived illegitimacy arising from legal indeterminacy and close the ontological gap between legal theory and legal practice. In this process theory of natural law, the telos of beauty provides a comprehensive normative justification for the law and the so-called “extra-legal norms” relied on by judges when the positive law is indeterminate. Process natural law, however, does not advocate judges relying on fixed, antiquated natural laws for resolving legal indeterminacy. Rather, judges must determine what maximizes beauty in accordance with the circumstance of the case and the social perfection possible within that society. Process natural law also closes the ontological gap between legal practice and legal theory by providing an ontology that unifies the moral insights of religion with the insights of modern science. As a result, a process theory of natural law shows great promise for solving the two most important quandaries in contemporary legal theory.
(title of post is the link to quoted abstract from SSRN.)