Whitehead's metaphysics and the law: a dialogue..

• Author: Tidmarsh, Jay
• Position: Alfred North Whitehead

"That `all things flow' is the first vague generalization which the unsystematized, barely analysed, intuition of men has produced."(1)

1. INTRODUCTION

   The purposes of this Article are to explore the relationship between Alfred North Whitehead's process philosophy and the nature of law, and to develop from that exploration a theory of "process jurisprudence." To some extent, this Article is a process of interpretation and imagination. Whitehead himself devoted little attention to the nature of law. Therefore, rather than attempting to declare definitively the implications of Whitehead's thought for the nature of law, this Article is structured in the form of a dialogue between "Whitehead" and a lawyer whom I have called "Chris." In Part II, as he discusses his system of metaphysics and its relationship to human civilization, "Whitehead" will take the leading role. In Part III, as Whitehead's understanding of civilization is applied to the specific role of law within a civilization, "Chris" becomes a more active participant in shaping a jurisprudence of process. This Article does not pretend to predict how Whitehead himself would have resolved the jurisprudential issues (such as the nature, forms, and limits of law) that Part III poses; rather, it suggests the way that a Whiteheadian attitude should make us think about these issues.

   Before the dialogue begins, a brief sketch of Whitehead and his work will be provided.(2) Born in England in 1861, Whitehead became a Fellow at Trinity College, Cambridge, in 1885.(3) For many years, Whitehead was known primarily as a mathematician; between 1910 and 1913, he authored, along with his former student Bertrand Russell, the famous three-volume Principia Mathematica.(4) After Whitehead went to the University of London in 1910, however, his work moved toward an exploration of the nature of science, religion, and existence.(5) Subsequent to Whitehead's arrival at Harvard in 1924, this philosophical turn was accompanied by the publication of the three major works which staked out his mature process metaphysics--Science and the Modern World,(6) Process and Reality,(7) and Adventures of Ideas(8)--and by four other works which dealt with aspects of his thought.(9) Whitehead died in 1947.(10)

   Because of his later works, Whitehead is regarded as an important figure in twentieth-century philosophy.(11) Many of his ideas overlapped with those of realists such as Russell, who is himself among this century's great philosophers, and the solutions he offered to the problems confronting philosophical realism were often elegant.(12) His ideas also overlapped with, and were influenced by, pragmatists such as William James and John Dewey, whose work has in turn been influential in the American legal academy.(13) Process metaphysics has spawned a significant branch of theology known as process theology;(14) it has influenced biologists, chemists, and physicists, including David Bohm and Nobel Prize winner Ilya Prigogine.(15) It has also recently led to the emergence of process sociology and political theory.(16)

   At the same time, it is fair to say that mainstream analytical and critical philosophy, as well as most other disciplines, have taken little account of Whitehead's metaphysics.(17) That statement is certainly true of law, which until now has paid scant attention to process philosophy's jurisprudential implications.(18) As Whitehead's biographer has noted, "Whitehead is one of the most quoted philosophers of our century--and one of the least understood."(19)

2. WHITEHEAD'S METAPHYSICS

   "Let me begin," said Whitehead, shifting in his chair, "by describing the nature of speculative philosophy(20) and its inadequacies when I began my own metaphysical inquiries. Once those inadequacies, and my methodology for seeking to overcome them, are made plain, perhaps the argument for my own metaphysical scheme will be clear. Then we might profitably consider its relevance to the question which interests you: the role of law in human affairs."

   "Very well," replied Chris. A fire kindled with chestnut twigs cracked through the darkness of the autumn evening. Whitehead's hands invited Chris to sit on the sofa across from him.

   1. Whitehead's Methodology for the Practice of Metaphysics

      "Speculative philosophy," said Whitehead, "consists of the attempt to state the self-evident facts which form the basis of all existence. The goal of a system of metaphysics should be a `coherent, logical, [and] necessary system of general ideas in terms of which every element of our experience can be interpreted.'(21) A metaphysical scheme must also be `applicable' and `adequate,' meaning that the system must in fact apply to our experience and that no element of our experience can escape its explanatory power.(22) `We can never catch the actual world taking a holiday from [the] sway [of our metaphysical first principles].'(23) They must be capable of explaining our lived experiences, the observations of the physical sciences, and the intuitions of art, literature, religion --"

      "And law?" asked Chris.

      "Yes, even law," replied Whitehead. "Now, given this view of the role of philosophy, and of metaphysics within philosophy, any work in metaphysics must, as an initial matter, be strictly empirical. We must begin with that which we know, and that which we know lies entirely within our human experience.(24) Thus, we have a metaphysical rule of evidence: `that we must bow to those presumptions, which, in despite [sic] of criticism, we still employ for the regulation of our lives. Such presumptions are imperative in experience.'(25)

      "From that empirical basis we can attempt to generalize to those aspects of experience in which the totality of the Universe shares. These universal aspects of existence then lead us to establish a working hypothesis about the nature of existence. Next, we can test the hypothesis against additional empirical evidence in order to determine whether the hypothesis adequately explains the real world. If all aspects of our actual world can be explained by the hypothesis, then the hypothesis is validated on the basis of existing knowledge; but if some aspects of the world escape its explanatory reach, then the hypothesis must fail."(26)

      "So you are a philosophical empiricist," said Chris.

      "Yes, I follow in the line of British empiricists and thus stand in opposition to philosophical rationalists such as Descartes and Hegel, who insist that metaphysics is a process of a priori deduction from incontestable first premises. At the same time, I am not antirational; I recognize the role of reason in generalizing from initial observation to universal experience. My insistence on a `coherent' and `logical' metaphysics on the one hand, and on an `applicable' and `adequate' one on the other, demonstrates my desire to bridge the canyon separating rationalists from empiricists in modern philosophical discourse.(27)

      "My initial empirical orientation leads to another important philosophical consequence: Metaphysics will always have a tentative quality about it. `Philosophers can never hope finally to formulate these metaphysical first principles. Weakness of insight and deficiencies of language stand in the way inexorably.'(28) As our experience unfolds new data about ourselves and about the physical world in which we live, we must be willing to re-examine, and perhaps even reject, our metaphysical system. `Each method of limited understanding is at length exhausted. In its prime each system is a triumphant success: in its decay it is an obstructive nuisance.'(29)

      "In short, any philosophical system, including my own, must be evaluated for its internal coherence and logic and, more important, for its applicability to and adequacy for other topics of human experience. The greatest disappointment in my subsequent treatment by followers and detractors alike has been their emphasis on issues of internal coherence and logic. Most of the commentary on my work has been philosophical and theological exegesis--efforts to explain my system, to interpret ambiguities, or to divine the implications of my system for topics like politics, theology, and ethics, none of which I ever addressed in significant detail.(30)

      "Although I must admit that I have not emerged unscathed from these examinations into internal consistency,(31) the consistency of my own system is somewhat besides the point. I did not expect it to be treated as a final statement of incontestable first principles. Too little attention has been directed toward the more important points: determining whether, with appropriate modification, a system descended from my own is consistent with the recent evidence in the fields of mathematics, physics, biology, history, and psychology, which were the fields of knowledge from which I primarily drew my own evidence;(32) considering whether such a system might explain adequately the evidence of other topics of human experience--law, art, medicine, and so on--in which I demonstrated a lesser interest; and developing such a system to the point that it could serve as a source of ideas for these topics of experience."(33)

   2. Whitehead's Metaphysics: The Primacy of Becoming Over Being

      "But enough methodology; let us turn to my metaphysical system," said Whitehead. "If I were to ask you what is the most basic entity, the most basic `stuff,' which should form the beginning of any metaphysical reflection, what would you reply?"

      "I suppose," said Chris, "I would say that it is matter--trees, squirrels, rocks, atoms, electrons. We would need to find some commonality among those sorts of things."

      "Excellent," said Whitehead. "I think that I have just asked what you lawyers refer to as a leading question. And you answered exactly as someone grounded in Western philosophy should have answered.

      "Now let me ask a second question: What do you think of the epistemological dualism of Descartes, Hume, and Kant?"

      "Excuse me," laughed...