Law as Process; Legal Decision-Making as an Actual Occasion in Concrescence
For Whitehead, an actual occasion is a whole, undivided occasion of experience that becomes immediately in a quantum of time but which, for the purposes of analysis may be distinguished into several logically successive and mutually related phases of its concrescence. In its initial receptive phase, the present occasion of experience comprises a double inheritance from the past, which Whitehead terms ‘conformation of feeling’. But each moment of human subjective experience not only involves a reception of data from the immediate past; it also involves some personal response to what is inherited. And while no control can be exercised over what is received, how it is responded to will involve some measure of choice. The responsive and integrative phases of the process of concrescence are where the personal decision about this reaction is formed. While no restatement of the previous summary description of Whitehead’s philosophical scheme will be presented here, the earlier definitional discussion of nomenclature should be assumed throughout the following analysis. At this point, then, we may attempt some preliminary integration of Law and Process.
The sum total of Whitehead’s contribution to thinking about law amounts to no more than a few brief comments on common law, legal systems, legal determinations, legal organisations, legal agencies, and legal contracts, and a slightly longer passage on the foundations of property and contract law. However, this lack of a sustained treatment of the subject of law may be due rather more to the unavailability of any systematic or sufficiently detailed theory of law which it could address than to the inapplicability of his philosophy to law as such. Absent such a theory it is difficult to see how Whitehead could possibly have provided the sort of analysis for law that he does in relation to the history of Western civilisation, and that might, in turn, have confirmed his doctrine of the self-creativity of actual entities and his metaphysical system. Nonetheless, recent developments from a variety of theoretical perspectives, particularly those that can be gathered under the banner of an ‘institutional’ theory of law, appear to adopt precisely the sort of common strategy that, given their shared emphasis on the nature of law as a normative institution combining norms affecting general conduct with those providing authorisation to officials, may now allow that hitherto unavailable form of access.
In what follows, I aim, first, to recall our earlier discussion of MacCormick’s institutional theory of law, noting how this fully worked out theory of law defines and deploys its basic unit of explanation, ‘the institutional fact’: second, with recourse to a Whiteheadian process-theoretical model (Dibben 2001), to provide a theoretical description of the institutional theory of law and its practical application in terms of the meaning structure of process thought and, in so doing, to explore more fully how a legal decision is created and maintained within the legal decision-making process; and, third, thereby help to extend the application and broaden the appeal of process thought beyond its existing boundaries.
The discussion presented earlier outlined MacCormick’s theory of the development of institutional normative order and its relation to the common law practice of decision-making through its interaction with a theory of legal reasoning that stresses the significance of the justifying relationship between reason and decision. However, although this theory highlights the importance of understanding the temporal development of law as normative in a way that affirms its dual aspects as momentary and dynamic, no attempt has yet been made to relate this to any wider theory of process or even to suggest that this might be possible.
This chapter argues that not only is such integration possible, it is desirable and necessary. In order to comprehend more fully the deeper complexities of the process under consideration, to increase our awareness of the likely constitution and structure of the judicial decision-making experience, a more detailed analysis of the interaction of the different types and levels of influence will be attempted. This analysis presents an outline of the basic elements of process described by Whitehead and uses these to explore the way in which a discrete instance of legal judgement is created and maintained within the decision-making process.
In an analysis of trust as process, Dibben suggests that the:
accuracy of a theory of process to trust development depends, ultimately, on selection of the appropriate unit of analysis. Given the concrescing actual entity as the central concept, or irreducible unit of analysis, in Whitehead’s explication of the process of the development of experiential existence … integration is made easier by the establishment of four simplifying conditions:
(1) a purposeful distinction can be made between an actual entity and an actual occasion, whereby (a) the actual occasion is the unit under immediate discussion (that which is in the process of becoming) and (b) the actual entity is the unit which is formed, ‘is immortal in the past’, and which the actual occasion prehends in its coming into existence;
(3) the appropriate actual entities affecting the concrescences are identified and discussed and;
(4) the appropriate eternal objects are identified and discussed.
(Dibben 2001: 5)
Assuming Dibben’s simplifying conditions, it should now be possible to outline a proposal for how this model might usefully be employed in law (how the legal system might be understood as a society of societies of actual occasions and how the various phases of the theory of concrescence of an actual entity might be seen to map onto the different phases of judicial decision-making) and submitted for confirmation/refutation by a more extensive study of legal decision-making and the decision-making process.