In the Region of Middle Axioms: Judicial Dialogue as Wide Reflective Equilibrium and Mid-level Principles

This article addresses the use of foreign law in constitutional adjudication. We draw on the ideas of wide reflective equilibrium and public reason in order to defend an engagement model of comparative adjudication. According to this model, the judicial use of foreign law is justified if it proceeds by testing and mutually adjusting the principles and rulings of our constitutional doctrines against reasonable alternatives, as represented by the principles and rulings of other reasonable doctrines. By this, a court points to a wide reflective equilibrium, justifying its own interpretations with reasonable arguments, i.e. arguments that are acceptable from the perspectives defined by other constitutional doctrines, as endorsed by other courts. The point of a judicial engagement of this sort is to work out an overlap between different, reasonable, doctrines in the judicial forum, as part of a liberal forum of public reason. Here, the exercise of public reason filters out the premises of comprehensive doctrines so as to leave us in the region of an overlapping consensus: a region of mid-level principles that can be shared, notwithstanding the fact of legal pluralism.

Conclusion

In this book I have presented and defended a coherent philosophical method. It rests ultimately on intuitions. It draws on scientific results so far as the scientific community considers them established or at least well supported. It entitles itself to prefer Moorean facts to a priori philosophical assumptions. And it tries to bring all these into a (very) wide reflective equilibrium....

Ethics as Design and Its Two Distinctive Methods

The new conception of rationality as non-formal reason is completed by an explanation of how design in engineering can be brought to the design of practical problems in ethics, from which the notion of ethics as design for flourishing is developed. The conventional notions of balancing and specification in applied ethics are rejected and replaced by two methods that use non-formal reason: fully engaged moral compromise and wide reflective equilibrium. A case depicts a disagreement between a nurse and a doctor in an intensive care unit that is resolved by a compromise that emanates from a process of deliberation among the staff. Reflective equilibrium was widely adopted into moral philosophy, and it quickly expanded into wide reflective equilibrium. Here it is further enhanced by adding the three features of liberation, extension, and enrichment. The upshot of these developments is a completed initial account of non-formal rationality with four resources, two specific methods, and a shift from principles to values.

Rawlsian Objectivity

In a 1981 letter to H .L. A. Hart, John Rawls sketches a view of moral objectivity that substantially differs from that of contemporary constructivists. The view he describes does not rely on constitutive features of agency as Korsgaard's does, and it does not bottom out in a form of realism as Scanlon's moral theory does. Instead, Rawls's view grounds objectivity on the fundamental conceptions that could be shared in wide reflective equilibrium. Constructivism grounds objectivity in a kind of intersubjectivity, and Rawls finds the relevant kind of intersubjectivity in the alignment between fundamental convictions. This article develops this Rawlsian view of objectivity and highlights its strengths.