ABSTRACT
Much of contemporary legal theory is effectively the expression of a continuing concern to bridge this gap that opens up in legal decision-making between living reality and legal representation, two supposedly separate and distinct but connectable domains, most obvious in respect of hard cases such as Re A where the interface between the so-called theoretical and the practical is revealed as problematic but nonetheless true of other cases where the anomalies are not so obvious or so easily recognised. Such an understanding of the legal task plainly has its roots in a Parmenideaninspired universe, in particular in the teachings of Democritus of the Eleatic school; that is, with the understanding of an entitative conception of reality in which the ultimate building blocks of reality are atomic entities, basic and undividable, whose relative motions and relationship to each other are regulated and apprehended through the use of general predictable laws. Clearly, only on the basis of such an understanding as composed of fixed, or fixable, and relatively constant entities can we make any further assumption about the accuracy of their linguistic and conceptual representation within a correspondence theory of truth. The counter view to this Parmenidean theory of essentially unchanging reality has its roots in the tales of Heraclitus. Unlike Parmenides, Heraclitus contended that ‘everything is in flux, and nothing is at rest’ (Popper 1989: 44), so that rather than it being this outward appearance of stability which most truly represents reality, reality is more accurately thought of as a world of continuous but imperceptible change. The proposal offered here is that although the minutiae of legal decision-
making and the relations between them are often thought of in terms as separate but connectable and essentially stable elements in the ongoing process of law they should not be thought of as ‘simply locatable’, or isolatable, elements whose forms and functions can be abstracted to imply separate fixed points with connections and correspondences between them. Rather, they should be thought of as outlining a mutually constitutive process of
becoming, not reducible to each other or to anything else; that is, interpenetrating and interrelated. But how might we begin, and where should we look to, to develop further such a view of law? According to Alfred North Whitehead (1938):
creative activity … is the process of eliciting into actual being factors in the universe which antecedent to that process exist only in the mode of unrealised potentialities … [I]n conceiving … an occasion of experience, we must discriminate the actualised data presented by the antecedent world, the non-actualised potentialities which lie ready to promote their fusion into a new unity of experience, and the immediacy of self enjoyment which belongs to the creative fusion of those data with those potentialities. This is the doctrine of the creative advance whereby it belongs to the essence of the universe, that it passes into a future.
