When we argue about the law we frequently deploy normative arguments. Sometimes our normative arguments appeal directly to our intuitions (or considered judgments) about particular cases; sometimes we rely on general theories (e.g., welfarism or Locke's social contract theory). This leads to the question: how can we justify our normative judgments and theories? One answer to this question is provided by the idea of "reflective equilibrium," strongly associated with the work of John Rawls. We could take our intuitions about particular cases and test them against our moral general beliefs, e.g., moral principles or theories--and vice versa. Through a process of revision and reflection, we could aim for a consistent set of beliefs--where our judgments about particular cases were consistent with a coherent set of general principles. We can call this point of repose, "reflective equilibrium."
This entry is in the Legal Theory Lexicon provides a short introduction to the idea of reflective equilibrium for law students (especially first-year students) with an interest in legal theory. Although the primary emphasis will be on the role of reflective equilibrium in normative legal theory, we will also investigate reflective equilibrium as a method for legal reasoning.
The Basic Idea
Legal theory is full of normative judgments. We argue that a particular statute is just or that it produces morally good consequences. We believe that a particular court decision is wrong in the moral sense--that it violates someone's rights or that its on balance effect is harmful.
How can we justify our normative judgments? We might try the method of geometry--beginning with indubitable moral axioms and then reaching particular cases by chains of deductive argument, but this method will run into difficulties if someone challenges the self-evidence of our starting premises. The method of reflective equilibrium offers an alternative to the method of geometry. It begins with our current set of beliefs--our moral theories, the moral principles we accept, and our judgments about particular cases. We look for contradictions and inconsistencies and then revise. These revisions might operate at the level of particulars--we might change our mind about a particular case (real or hypothetical) because it seems inconsistent with a general principle. Or the revisions might go the other way. We might discover that a moral theory or principle that seemed correct is inconsistent with firmly held beliefs about particular cases. By working back and forth, between and among our beliefs at various levels of generality and particularity, we might eventually reach a state in which all or almost all of our moral beliefs were consistent and mutually supporting--in other words, a state of reflective equilibrium.
Intuitions versus Considered Judgments
Sometimes the method of reflective equilibrium is said to rely on "intuitions" or our intuitive judgments about particular cases. This might be problematic, because our intuitive judgments might be defective--for example, they could be the product of prejudice, self-deception, or ideological indoctrination. Rawls introduces the notion of a "considered judgment" to reflect the idea that our prereflective intuitions can be examined, both for sources of error and for coherence with each other.
Levels of Generality
Another misunderstanding of reflective equilibrium is the notion that it must start with our judgments about particular cases, i.e., that it proceeds from the particular to the general. This might be the case, but it need not be. The method can operate on our judgments at any level of generality. For example, we could examine our judgments about moral principles and test their consistency with each other.
Wide and Narrow Reflective Equilibrium
In more advanced discussions of reflective equilibrium, a distinction is sometimes made between "wide" and "narrow" reflective equilibrium. For the purposes of this post, we can characterize the difference this way:
Narrow Reflective Equilibrium: The considered judgments of an individual on constitutional theory are in narrow reflective equilibrium when they are consistent and mutually supportive with each other.
Wide Reflective Equilibrium: The considered judgments of an individual on constitutional theory are in wide reflective if they consider the “conditions under which it would be fair for reasonable people to choose among competing principles [of constitutional theory], as well as evidence that the resulting principles constitute a feasible or stable conception of justice, that is, that people could sustain their commitment to such principles.”
Wide reflective equilibrium takes into account the reasonable views of others, where as narrow reflective equilibrium can be reached on the basis of the an individual's own views.
Reflective Equilibrium and Normative Legal Theory
So how can the legal theorist use the idea of reflective equilibrium? The most obvious deployment of this idea is as a method of justification in normative legal theory. This might occur at the "macro" level--for example, as a method for justifying welfarism as a normative theory of law. Or it might occur with respect to domain specific normative legal theories, e.g., as a justification for a corrective-justice theory of tort law or a retributivist theory of criminal punishment.
Similarly, reflective equilibrium could play a critical role. One might argue against a normative legal theory on the ground that the theory is inconsistent with our considered judgments about particular cases or case types. Of course, this use of reflective equilibrium is tricky--since one can argue that the recalcitrant judgments should be modified in order to achieve reflective equilibrium.
Reflective Equilibrium and Legal Reasoning
Sometimes the content of the law can be determined by roughly formalist methods. There is an authoritative legal text (a clause in the constitution, a statutory provisions, a rule or regulation); the text provides a more or less bright-line rule that guides behavior or resolves a dispute. But sometimes the content of the law is less clear. There is especially noticeable in common-law systems, in which the content of the rules is determined in a complex way by cases. What do we do when the results of the cases are not fully consistent or when different cases state the rules in varying and inconsistent language? One possible answer to this question is "use the method of reflective equilibrium!"
For example, we might take the decided cases as providing the equivalent of considered judgments about particular cases, and we could take rule statements as the equivalent of moral principles. Our quest would be for the set of rules that accounts for the greatest number of cases and possesses the maximal degree of internal coherence. If the cases are in tension with one another, there some cases will have to be counted as "mistakes"--the doctrine in reflective equilibrium would call for them to be overruled or confined to their facts.
Of course, something like this method is familiar to most law students, because courts do seem to seek something like "reflective equilibrium" at least some of the time. In legal theory, the method of reflective equilibrium resembles Dworkin's theory, "law as integrity" and the "reasoned elaboration of the law" associated with the "Legal Process" school.
Criticisms of the Method of Reflective Equilbrium
The method of reflective equilibrium is controversial. One might argue that the method relies on our "intuitions" about particular cases and that these intuitions are unreliable. Or one might argue that reflective equilibrium can always be satisfied by moral principles with multitudinous exceptions for recalcitrant judgments about particular cases. And these simplistic objections are just the beginning.
Reflective equilibrium is one of the most important tools in the legal theorists toolkit. And even if you don't embrace this method yourself, you are sure to run into others who rely on it.
Related Lexicon Entries
- Legal Theory Lexicon 006: The Veil of Ignorance
- Legal Theory Lexicon 008: Utilitarianism
- Legal Theory Lexicon 010: Deontology
- Legal Theory Lexicon 012: Virtue Ethics
- Legal Theory Lexicon 016: Positive and Normative Legal Theory
- Legal Theory Lexicon 032: Fit and Justification
- Legal Theory Lexicon 059: The Law Is A Seamless Web
- Legal Theory Lexicon 067: The Priority of the Particular
- John Rawls, A Theory of Justice: Original Edition (Harvard University Press 1971) & A Theory of Justice Revised Edition.
- John Rawls, Outline of a Decision Procedure for Ethics, 60 Philosophical Review 177–97 (1951), reprinted in John Rawls, Collected Papers (Samuel Freeman ed., Harvard University Press 1999).
- Norman Daniels, Wide Reflective Equilibrium and Theory Acceptance in Ethics, 76 Journal of Philosophy 256–82 (1979), reprinted in Normal Daniels, Justice and Justification: Reflective Equilibrium in Theory and Practice (Cambridge Studies in Philosophy and Public Policy) 21-46 (Cambridge University Press, 1996).
- John Mikhail, Rawls' Concept of Reflective Equilibrium and its Original Function in 'A Theory of Justice', 3 Washington University Jurisprudence Review 1 (2010).
Resources on the Internet
- Norman Daniels, Reflective Equilibrium, Stanford Encyclopedia of Philosophy (2011).
- Massimo Pigliucci, Five Minute Philosopher Video: Reflective Equilibrium (2011).
- Reflective Equilibrium, Phil Papers (edited by Edited by Christopher Michael Cloos).
(This entry in the Legal Theory Lexicon was last revised on September 30, 2018.)