June 21, 2024

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Legal Theory Lexicon: Reflective Equilibrium

Introduction

When we argue about the legislation we routinely deploy normative arguments.  Sometimes our normative arguments attraction specifically to our intuitions (or regarded judgments) about particular instances occasionally we rely on common theories (e.g., welfarism or Locke’s social deal concept).  This qualified prospects to the question: how can we justify our normative judgments and theories?  One solution to this question is furnished by the concept of “reflective equilibrium,” strongly affiliated with the function of John Rawls.  We could just take our intuitions about particular instances and examination them towards our ethical common beliefs, e.g., ethical rules or theories–and vice versa.  Through a process of revision and reflection, we could goal for a steady established of beliefs–exactly where our judgments about particular instances ended up steady with a coherent established of common rules.  We can call this level of repose, “reflective equilibrium.”

This entry is in the Lawful Theory Lexicon provides a quick introduction to the concept of reflective equilibrium for legislation students (particularly first-calendar year students) with an interest in lawful concept.  Although the main emphasis will be on the job of reflective equilibrium in normative lawful concept, we will also investigate reflective equilibrium as a system for lawful reasoning.

The Fundamental Notion

Lawful concept is full of normative judgments.  We argue that a particular statute is just or that it produces morally great implications.  We believe that a particular courtroom determination is mistaken in the ethical perception–that it violates someone’s rights or that its on balance impact is damaging.

How can we justify our normative judgments?  We could consider the system of geometry–commencing with indubitable ethical axioms and then reaching particular instances by chains of deductive argument, but this system will run into challenges if someone issues the self-evidence of our beginning premises.  The system of reflective equilibrium delivers an substitute to the system of geometry.  It begins with our present-day established of  beliefs–our ethical theories, the ethical rules we settle for, and our judgments about particular instances.  We appear for contradictions and inconsistencies and then revise.  These revisions could function at the degree of particulars–we could transform our thoughts about a particular situation (genuine or hypothetical) because it appears inconsistent with a common principle.  Or the revisions could go the other way.  We could uncover that a ethical concept or principle that appeared accurate is inconsistent with firmly held beliefs about particular instances.  By doing work back and forth, concerning and among our beliefs at different concentrations of generality and particularity, we could finally access a point out in which all or almost all of our ethical beliefs ended up steady and mutually supporting–in other text, a point out of reflective equilibrium.

Two Clarifications

Intuitions vs . Regarded as Judgments

Sometimes the system of reflective equilibrium is said to rely on “intuitions” or our intuitive judgments about particular instances.  This could be problematic, because our intuitive judgments could be defective–for example, they could be the products of prejudice, self-deception, or ideological indoctrination.  Rawls introduces the notion of a “regarded judgment” to replicate the concept that our prereflective intuitions can be examined, both of those for resources of mistake and for coherence with every other.

Ranges of Generality

Another misunderstanding of reflective equilibrium is the notion that it should get started with our judgments about particular instances, i.e., that it proceeds from the particular to the common.  This could be the situation, but it want not be.  The system can function on our judgments at any degree of generality.  For example, we could analyze our judgments about ethical rules and examination their consistency with every other.

Large and Narrow Reflective Equilibrium

In additional sophisticated conversations of reflective equilibrium, a distinction is occasionally produced concerning “vast” and “slender” reflective equilibrium.  For the purposes of this post, we can characterize the variation this way:

Narrow Reflective Equilibrium:  The regarded judgments of an specific on constitutional concept are in slender reflective equilibrium when they are steady and mutually supportive with every other.

Large Reflective Equilibrium: The regarded judgments of an specific on constitutional concept are in vast reflective if they look at the “conditions less than which it would be good for fair folks to decide on among competing rules [of constitutional concept], as well as evidence that the resulting rules represent a possible or secure conception of justice, that is, that folks could maintain their dedication to these kinds of rules.”

Large reflective equilibrium takes into account the fair sights of other people, exactly where as slender reflective equilibrium can be achieved on the basis of the an individual’s have sights.

Reflective Equilibrium and Normative Lawful Theory

So how can the lawful theorist use the concept of reflective equilibrium?  The most noticeable deployment of this concept is as a system of justification in normative lawful concept.  This could arise at the “macro” degree–for example, as a system for justifying welfarism as a normative concept of legislation.  Or it could arise with respect to area precise normative lawful theories, e.g., as a justification for a corrective-justice concept of tort legislation or a retributivist concept of legal punishment.

In the same way, reflective equilibrium could play a significant job.  One could argue towards a normative lawful concept on the floor that the concept is inconsistent with our regarded judgments about particular instances or situation varieties.  Of program, this use of reflective equilibrium is tricky–due to the fact a person can argue that the recalcitrant judgments should be modified in purchase to attain reflective equilibrium.

Reflective Equilibrium and Lawful Reasoning

Sometimes the information of the legislation can be established by roughly formalist techniques.  There is an authoritative lawful textual content (a clause in the structure, a statutory provisions, a rule or regulation) the textual content provides a additional or significantly less vibrant-line rule that guides behavior or resolves a dispute.  But occasionally the information of the legislation is significantly less obvious.  There is particularly noticeable in typical-legislation programs, in which the information of the principles is established in a sophisticated way by instances.  What do we do when the effects of the instances are not absolutely steady or when diverse instances point out the principles in varying and inconsistent language?  One possible solution to this question is “use the system of reflective equilibrium!”

For example, we could just take the made a decision instances as providing the equal of regarded judgments about particular instances, and we could just take rule statements as the equal of ethical rules.  Our quest would be for the established of principles that accounts for the greatest selection of instances and possesses the maximal degree of internal coherence.  If the instances are in tension with a person another, there some instances will have to be counted as “problems”–the doctrine in reflective equilibrium would call for them to be overruled or confined to their facts.

Of program, a little something like this system is acquainted to most legislation students, because courts do seem to be to seek a little something like “reflective equilibrium” at least some of the time.  In lawful concept, the system of reflective equilibrium resembles Dworkin’s concept, “legislation as integrity” and the “reasoned elaboration of the legislation” affiliated with the “Lawful Approach” college.

Criticisms of the Technique of Reflective Equilbrium

The system of reflective equilibrium is controversial.  One could argue that the system depends on our “intuitions” about particular instances and that these intuitions are unreliable.  Or a person could argue that reflective equilibrium can generally be content by ethical rules with multitudinous exceptions for recalcitrant judgments about particular instances.  And these simplistic objections are just the commencing.

Summary

Reflective equilibrium is a person of the most crucial resources in the lawful theorists toolkit.  And even if you never embrace this system your self, you are positive to run into other people who rely on it. 

Linked Lexicon Entries

  • Lawful Theory Lexicon 006: The Veil of Ignorance 
  • Lawful Theory Lexicon 008: Utilitarianism
  • Lawful Theory Lexicon 010: Deontology
  • Lawful Theory Lexicon 012: Virtue Ethics
  • Lawful Theory Lexicon 016: Favourable and Normative Lawful Theory
  • Lawful Theory Lexicon 032: Match and Justification
  • Lawful Theory Lexicon 059: The Regulation Is A Seamless Net
  • Lawful Theory Lexicon 067: The Precedence of the Specific

Bibliography

  • John Rawls, A Theory of Justice: Authentic Version (Harvard University Push 1971) & A Theory of Justice Revised Version.
  • John Rawls, Define of a Determination Technique for Ethics,  60 Philosophical Critique 177–97 (1951), reprinted in John Rawls, Gathered Papers  (Samuel Freeman ed., Harvard University Press 1999).
  • Norman Daniels, Large Reflective Equilibrium and Theory Acceptance in Ethics, 76 Journal of Philosophy 256–82 (1979), reprinted in Typical Daniels, Justice and Justification: Reflective Equilibrium in Theory and Observe (Cambridge Research in Philosophy and Public Plan) 21-forty six (Cambridge University Push, 1996).
  • John Mikhail, Rawls’ Concept of Reflective Equilibrium and its Authentic Functionality in ‘A Theory of Justice’, three Washington University Jurisprudence Critique 1 (2010).

Means on the Net

  • Norman Daniels, Reflective Equilibrium, Stanford Encyclopedia of Philosophy (2011).
  • Massimo Pigliucci, Five Minute Thinker Video clip: Reflective Equilibrium (2011).
  • Reflective Equilibrium, Phil Papers (edited by Edited by Christopher Michael Cloos).

(This entry in the Lawful Theory Lexicon was final revised on July twelve, 2020.)