Document Type
Article
Publication Date
2008
Abstract
This Article analyzes China's efforts to implement the rule of law and proposes a constructive, post-modern normative theory of law based on the Process Philosophy of Alfred North Whitehead and the Radical Empiricism of William James. This "process theory of natural law" provides a novel theory of natural law that eliminates the perceived illegitimacy arising from legal indeterminacy and closes the ontological gap between legal theory and practice. Process natural law also mediates many of the cultural differences between the East and the West through the 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). In accordance with the telos of beauty, process natural law further supports a culturally sensitive conception of the rule of law because, as Whitehead emphasizes, "[e]ach society has its own type of perfection." This conception of the rule of law allows for important cultural differences to be reflected in the interpretation of democracy and formal legality and in the instantiation of individual rights in the law. Thus, the ideal rule of law may look quite different in the United States ("U.S.") and China and may continue to evolve in our constantly changing, pluralistic, and multicultural world.
Recommended Citation
26 Penn. St. Int'l L. Rev. 607 (2008).