This chapter contains section titled: Introduction The Consequentialist Argument for Rule‐Consequentialism The Reflective Equilibrium Argument for Rule‐Consequentialism The Focus on Internalization of Rules The Majority of People in Each New Generation Expected rather than Actual Value of Rules Distribution Old Objections New Objections.

Genuine rules cannot capture our intuitive moral judgments because, if usable, they mention only a limited number of factors as relevant to decisions. But morally relevant factors are both numerous and unpredictable in the ways they interact to change priorities among them. Particularists have pointed this out, but their account of moral judgment is also inadequate, leaving no room for genuine reasoning or argument. Reasons must be general even if not universal. Particularists can insist that our judgments be reflective, (...) unbiased, informed, and sensitive, requiring a background of experiences that expand sympathy and empathy for others. But beyond this, our judgments must be coherent. This requirement provides a way to reason to the correct answer to a controversial issue—the answer most coherent with or body of settled judgments. Rawls' account of coherence in terms of reflective equilibrium, where we adjust particular judgments to match rules and adjust rules to match judgments, is rejected since rules have no independent force. Instead, the central requirement is that we not judge cases differently without being able to cite a morally relevant difference between them. Such differences must make a difference else-where as well, although they need not do so universally. Factors cannot be relevant in only one context because they reflect values that must recur to be maintained. The method of moral reasoning based on this requirement is specified as follows: first, the specification of competing values or interests in the problematic case; second, the location of paradigm cases in which these competing values are prioritized, making sure that these settled judgments are reflective, informed, and sensitive; third, the search for relevant differences between the settled and problematic cases or the location of alternative, more closely analogous paradigms. The paper ends with an illustration of the method applied to the issue of doctor assisted suicide. (shrink)

This fine book is a comprehensive and careful survey of the current situation in the methodology of economics. It is directed primarily at economists and students of economics. Indeed, the economist who reads it with the care it deserves will have a better grip on matters of methodology in economics than most philosophers of science, but philosophers and historians of science will also find the work rewarding and interesting. Though a few examples may be beyond the economically untutored reader, they (...) are not essential to the exposition, and other examples are accessible and enlightening: the brief discussions of Paul Samuelson's revealed preference approach and Julie Nelson's criticism of Gary Becker's work on economics of the family are good instances. Chapter 2, “The Methodological Tradition in Economics,” is a calm and brief introduction to its subject.Until quite recently practicing scientists, economists among them, and philosophers of science presupposed several strong theses about science and knowledge: that all genuine knowledge is scientific; that the objects of this knowledge are eternal and free of context; that all knowledge and all science is one, unified at least by a common scientific method; that, though not infallible, this method is progressive—it approaches truth as a limit—and operates in independence of the nonscientific beliefs and values of its practitioners. These principles cannot be presupposed today. Those who would accept any of them must be ready to meet serious criticisms. The import of this contemporary Methodenstreit as it affects economics is the dominant theme of Reflection without Rules. The reader is left with the conviction that the science of economics and the study of its methodology are inseparable and that it was only dedicated and myopic attachment to The Legend that kept this messy business at bay. Nor can there be any return to the age of innocent division of labor—economists to economics, philosophers to methodology.There are too many topics treated in the book even to list in a brief review. There are calm and clear accounts of Thomas Kuhn's work; of logical positivism ; of the deep effects of the collapse of The Legend on Walrasian equilibrium models; of Daniel Hausman's work on the nature of economics; of the strong program, which strives to reduce scientific activity to the effects of the social interests of scientists; of Alvin Goldman's reliabilism and social epistemology ; and of the important differences between pre‐ and post‐Legend views of science and knowledge.The question of values in science arises for economics in a special and pointed way, for economics studies many sorts of values. It also, at least since Adam Smith, deals in the unintended collective consequences of individual intentional actions. Economics evidently consists in the largely unintended consequences of the intentional actions of individual economists, and, once The Legend is discredited, economics is seen to navigate the very currents that it studies. This opens the door to the virtuous possibility of self‐criticism in tune with the strong naturalism of contemporary epistemology.It is not the least virtue of Reflection without Rules that its author wears his impressive erudition gracefully and well. The book is sophisticated and at the same time naive in the best sense. It will fortunately be the standard reference for work in the methodology of economics for some time to come. (shrink)

A constructivist approach to ethics must include some process—such as Rawls’ (1971) reflective equilibrium—for moving from initial evaluative judgments to those that one can affirm. Walker’s (1998; 2003) feminist version of reflective equilibrium incorporates what she calls “transparency testing” to weed out pernicious, ideologically shaped intuitions. However, in light of empirical work on the plurality of values and on the cognitive processes through which people arrive at moral judgments (i.e. an automatic, intuitive process and/or a controlled reasoning process), (...) I raise one concern: some moral requirements can only be grasped intuitively and should not have to be affirmed from the perspective of other confidently held values. The “requirements of love” (Frankfurt 2004) are one such example; failing to fulfill these requirements is, for someone who loves, unthinkable (Frankfurt 1988); one transgresses the associated values merely by considering sacrificing them. I suggest—citing empirical work on “sacred values” (Tetlock 2000; 2003)—that to subject these requirements to transparency testing would be to transgress them by having “one thought too many” (Williams 1981). One’s confidence in these values, and the authority of these values, depend on an automatic process. I consider the risks, and the necessity, of embracing both intuitive and reasoning processes for affirming the authority of a plurality of moral values. (shrink)

John Harris has made many seminal contributions to bioethics. Two of these are in the ethics of resource allocation. Firstly, he proposed the “fair innings argument” which was the first sufficientarian approach to distributive justice. Resources should be provided to ensure people have a fair innings—when Harris first wrote this, around 70 years of life, but perhaps now 80. Secondly, Harris famously advanced the egalitarian position in response to utilitarian approaches to allocation (such as maximizing Quality Adjusted Life Years [QALYs]) (...) that what people want is the greatest chance of the longest, best quality life for themselves, and justice requires treating these claims equally. Harris thus proposed both sufficientarian and egalitarian approaches. This chapter compares these approaches with utilitarian and contractualist approaches and provides a methodology for deciding among these (Collective Reflective Equilibrium). This methodology is applied to the allocation of ventilators in the pandemic (as an example) and an ethical algorithm for their deployment created. This paper describes the concept of algorithmic bioethics as a way of addressing pluralism of values and context specificity of moral judgment and policy, and addressing complex ethics. (shrink)

This book offers a comprehensive account of logic that addresses fundamental issues concerning the nature and foundations of the discipline. The authors claim that these foundations can not only be established without the need for strong metaphysical assumptions, but also without hypostasizing logical forms as specific entities. They present a systematic argument that the primary subject matter of logic is our linguistic interaction rather than our private reasoning and it is thus misleading to see logic as revealing "the laws of (...) thought". In this sense, fundamental logical laws are implicit to our "language games" and are thus more similar to social norms than to the laws of nature. Peregrin and Svoboda also show that logical theories, despite the fact that they rely on rules implicit to our actual linguistic practice, firm up these rules and make them explicit. By carefully scrutinizing the project of logical analysis, the authors demonstrate that logical rules can be best seen as products of the so called reflective equilibrium. They suggest that we can profit from viewing languages as "inferential landscapes" and logicians as "geographers" who map them and try to pave safe routes through them. This book is an essential resource for scholars and researchers engaged with the foundations of logical theories and the philosophy of language. (shrink)

Reflective equilibrium is overdue a twenty-first century update. Despite its apparent popularity, there is scant evidence that theorists ever thoroughly implement the method, and fewer still openly and transparently publish their attempts to do so in print—stymying its supposed justificatory value. This paper proposes digitising reflective equilibrium as a solution. Inspired by the global open science movement, it advocates for coupling a novel, digital implementation of the equilibrating process with new publication norms that can capitalise on the (...) inherent reproducibility of digital data. The argument is structured around three main claims: that digitising will make it easier to (a) methodically construct, (b) widely disseminate, and (c) thoroughly critique reflective equilibria. Practical guidance is also provided throughout. Altogether, it is argued that digitisation will not only help theorists to better realise reflective equilibrium’s latent theoretical potential, but also greatly extend its value as a justificatory device in contemporary academic discourses. (shrink)

The method of reflective equilibrium focuses on the relationship between principles and judgments. Principles are relatively general rules for comprehending the area of enquiry. Judgments are our intuitions or commitments, ‘at all levels of generality’ (Rawls 1975: 8), regarding the subject matter. The basic idea of reflective equilibrium is to bring principles and judgments into accord. This can be achieved by revising the principles and/or the judgments. -/- I first look at normative political judgments (Section 2) before considering (...) the role of principles, arguments, devices of representation and background theory in wide reflective equilibrium (Section 3). I then consider two of the main challenges to the method (Section 4), and show how to use it to deliberate about substantive political principles (Section 5). I conclude with an extended example of the method in action (Section 6). (shrink)

As Helen Longino's overview of Hypatia's engagement with feminist epistemology suggests, the last twenty-five years’ contributions to this field reveal a strong focus on the topic of knowledge. In her short outline, Longino questions this narrow focus on knowledge in epistemological inquiry. The main purpose of this article is to provide a framework for systematically taking up the questions raised by Longino, one that prevents us from running the risk of becoming unreflectively involved in sexist, racist, or otherwise problematic inquiry. (...) I argue that a specific form of the method of Reflective Equilibrium, as it is widely discussed in moral epistemology, logic, and theories of rationality, enables us to cope with the problems of traditional epistemology, which feminist theorizers such as Sally Haslanger have pointed to. With the account of Reflective Equilibrium I am offering—drawing in many respects on the model provided by Catherine Z. Elgin—we have an ameliorative method that allows us to rethink epistemological values, goals, and standards in a systematic way, and that largely avoids implicit and explicit biases in epistemology. (shrink)

In this article, we develop an approach for the moral assessment of research and development networks on the basis of the reflective equilibrium approach proposed by Rawls and Daniels. The reflective equilibrium approach aims at coherence between moral judgments, principles, and background theories. We use this approach because it takes seriously the moral judgments of the actors involved in R & D, whereas it also leaves room for critical reflection about these judgments. It is shown that two norms, (...) namely reflective learning and openness and inclusiveness, which are used in the literature on policy and technological networks, contribute to achieving a justified overlapping consensus. We apply the approach to a case study about the development of an innovative sewage treatment technology and show how in this case the two norms are or could be instrumental in achieving a justified overlapping consensus on relevant moral issues. (shrink)

Two challenges to the method of reflective equilibrium have been developed in a dispute between Michael D. Resnik and Stewart Shapiro: because the method itself involves logical notions, it can neither be specified in a logic-neutral way nor can it allow logical pluralism. To analyse and answer these claims, an explicit distinction is introduced between judgements held prior to the process of mutual adjustments and judgements in agreement with the systematic principles, which result from the process. It is then (...) argued that from the presystematic perspective, the method of reflective equilibrium permits developing and justifying rival logics, and hence it allows reasonable disagreement about logics; but such pluralism is no longer available from the perspective of fully developed logical systems. (shrink)

Reflective equilibrium is a proposal to justify general norms (not only moral norms) by adjusting them to a pre-systematic practice. The paper investigates the method of constructing a reflective equilibrium as a method for ‘disappointed connoisseurs’ with regard to alternative ways of justification. The example of no-smoking norms that have emerged within the last twenty years serves several purposes: It is used to illustrate under which conditions requests for justification arise and to investigate which role a worked-out practice (...) can play in the justification of general norms. Additionally, the construction of a reflective equilibrium with respect to a no-smoking norm shows the necessity of implementing systematic considerations in the process of justification. The paper closes with some remarks concerning the characteristic quality of justification one can achieve by the method of reflective equilibrium. (shrink)

The method of reflective equilibrium (MRE) is a method of justification popularized by John Rawls and further developed by Norman Daniels, Michael DePaul, Folke Tersman, and Catherine Z. Elgin, among others. The basic idea is that epistemic agents have justified beliefs if they have succeeded in forming their beliefs into a harmonious system of beliefs which they reflectively judge to be the most plausible. Despite the common reference to MRE as a method, its mechanisms or rules are typically expressed (...) in a metaphorical or simplified manner and are therefore criticized as too vague. Recent efforts to counter this criticism have been directed towards the attempt to provide formal explications of MRE. This paper aims to supplement these efforts by providing an informal working definition of MRE. This approach challenges the view that MRE can adequately be characterized only in the negative as a set of anti-essentialisms. I argue that epistemic agents follow MRE iff they follow four interconnected rules, which are concerned with a minimalistic form of foundationalism, a minimalistic form of fallibilism, a moderate form of holism, and a minimalistic form of rationality. In the critical spirit of MRE, the corresponding working definition is, of course, provisional and revisable. In general, the aim is to contribute to a reflective equilibrium (RE) concerning MRE. If it is successful, this working definition provides a better grasp of the most basic elements of the method and thereby enhances our understanding of it. (shrink)

Reflective equilibrium has been criticized for various reasons ever since the publication of Rawls’ A Theory of Justice. Recent empirical research into moral decision-making poses new challenges to RE because it questions the reliability of moral intuitions. This research might discredit moral intuitionism in general and RE in particular insofar as it ascribes epistemic value to moral intuitions. These findings suggest, for instance, that moral intuitions vary with cultural background, gender or framing. If it could be shown that (...) all or certain kinds of moral intuitions are unreliable, this would diminish the plausibility of the claim that they provide good reasons to believe in the truth of their content, especially given the growing evidence that professional philosophers are just as biased and susceptible to distorting factors as lay people. In this paper I critically discuss three recent defenses of RE against this unreliable intuitions objection. Two of these defenses argue that the UIO misses its target, because RE does not depend on intuitions, or because the relevant considered judgments in RE are not intuitions. The third defense grants that RE depends on intuitions and that some Rawlsian considered judgments are intuitions. But it argues that the notion of considered judgments can be revised, and that wide reflective equilibrium has the means to adopt the criticism because it can use information about unreliable intuitions and exclude those from further consideration. I argue that the first two defenses do not succeed. The third defense is the most promising one. However, I argue that this defense also fails. In this defense, RE is not a distinctive moral epistemic theory: different versions of RE would be conceivable, all of which are deeply problematic. I conclude with a discussion of the broader philosophical implications of the UIO, specifically whether or not accepting the UIO would warrant skepticism regarding moral knowledge. (shrink)

Two challenges to the method of reflective equilibrium have been developed in a dispute between Michael D. Resnik and Stewart Shapiro: because the method itself involves logical notions, it can neither be specified in a logic-neutral way nor can it allow logical pluralism. To analyse and answer these claims, an explicit distinction is introduced between judgements held prior to the process of mutual adjustments and judgements in agreement with the systematic principles, which result from the process. It is then (...) argued that from the presystematic perspective, the method of reflective equilibrium permits developing and justifying rival logics, and hence it allows reasonable disagreement about logics; but such pluralism is no longer available from the perspective of fully developed logical systems. (shrink)

It is notoriously difficult to find an intuitively satisfactory rule for evaluating populations based on the welfare of the people in them. Standard examples, like total utilitarianism, either entail the Repugnant Conclusion or in some other way contradict common intuitions about the relative value of populations. Several philosophers have presented formal arguments that seem to show that this happens of necessity: our core intuitions stand in contradiction. This paper assesses the state of play, focusing on the most powerful of (...) these ‘impossibility theorems’, as developed by Gustaf Arrhenius. I highlight two ways in which these theorems fall short of their goal: some appeal to a supposedly egalitarian condition which, however, does not properly reflect egalitarian intuitions; the others rely on a background assumption about the structure of welfare which cannot be taken for granted. Nonetheless, the theorems remain important: they give insight into the difficulty, if not perhaps the impossibility, of constructing a satisfactory population axiology. We should aim for reflective equilibrium between intuitions and more theoretical considerations. I conclude by highlighting one possible ingredient in this equilibrium, which, I argue, leaves open a still wider range of acceptable theories: the possibility of vague or otherwise indeterminate value relations. (shrink)

An interpretation of John Rawls’ ‘justice as fairness’ as a deliberative critical argumentative strategy for evaluating existing institutions is offered and its plausibility is discussed. I argue that ‘justice as fairness’ aims at synthesizing the moral values claimed by existing social institutions into a coherent model of a well-ordered society in order to demand that these institutions stand up to the values that they promise. Understood in such a way, ‘justice as fairness’ provides a set of idealizing ‘mirrors’ through which (...) power dynamics in society can be viewed but does not function as a model for an ideal society. Key Words: distributive justice • immanent criticism • justice as fairness • political liberalism • public reason • John Rawls • reflective equilibrium. (shrink)

The introduction of new technologies in society is sometimes met with public resistance. Supported by public policy calls for “upstream engagement” and “responsible innovation,” recent years have seen a notable rise in attempts to attune research and innovation processes to societal needs, so that stakeholders’ concerns are taken into account in the design phase of technology. Both within the social sciences and in the ethics of technology, we see many interdisciplinary collaborations being initiated that aim to address tensions between various (...) normative expectations about science and engineering and the actual outcomes. However, despite pleas to integrate social science research into the ethics of technology, effective normative models for assessing technologies are still scarce. Rawls’s wide reflective equilibrium is often mentioned as a promising approach to integrate insights from the social sciences in the normative analysis of concrete cases, but an in-depth discussion of how this would work in practice is still lacking. In this article, we explore to what extent the WRE method can be used in the context of technology development. Using cases in engineering and technology development, we discuss three issues that are currently neglected in the applied ethics literature on WRE. The first issue concerns the operationalization of abstract background theories to moral principles. The second issue concerns the inclusiveness of the method and the demand for openness. The third issue is how to establish whether or not an equilibrium has been reached. These issues should be taken into account when applying the methods to real-world cases involving technological risks. Applying the WRE method in the context of engaged interdisciplinary collaboration requires sensitivity for issues of power and representativeness to properly deal with the dynamics between the technical and normative researchers involved as well as society at large. (shrink)

Chapter 1: An Introduction: The ‘Semantic Sting’ Argument Describes Dworkin’s theory as concerning the conditions of legal validity. “A legal system is a system of norms. Validity is a logical property of norms in a way akin to that in which truth is a logical property of propositions. A statement about the law is true if and only if the norm it purports to describe is a valid legal norm…It follows that there must be certain conditions which render certain norms, (...) but not others, legally valid. Hence it also follows that there can be two types of disagreement over the truth or falsehood of propositions about the law. People can disagree over the question ‘What are the conditions of legal validity?’, in which case their disagreement is a theoretical one. Or they can agree on the conditions of validity, and disagree as to whether or not those conditions actually obtain in a given case or not.” Argues that the best way to interpret Dworkin’s ‘semantic-sting argument’ is as a general argument against conventionalism in legal positivism. Summarizes the outcome of Dworkin’s argument as follows: “[I]f Dworkin is right about the legal reasoning of lawyers and judges, conventionalism would be self-defeating: if lawyers and judges recognize as legally binding not only those norms which are uncontroversially identifiable under the Rule of Recognition, that is, if what they recognize as binding is not only source-based law, then conventionalism turns out to be false on its own terms. In other words, either law is not what lawyers and judges think that it is, in which case law is not a matter of conventions, or – if it is what lawyers and judges think – conventionalism is false, as they do not see the law as purely a matter of conventions.” Dworkin’s theory, then, is a new conception of jurisprudence aiming to present itself as a rival to conventionalism. The book will be concerned with re-examining positivism in light of the interpretative challenge. Chapter 2: Meaning and Interpretation “[R]oughly, interpretation can be defined as an understanding or explanation of the meaning of an object.” Interpretation in this narrow sense is distinct from a less formal and broader use of interpretation that makes it equivalent to explanation. “Hence also, only those objects which are capable of bearing some meaning qualify as objects of interpretation.” [Why shouldn’t we think of interpretation as object-identification? This seems to be closer to what Dworkin has in mind.] Thus, a consideration of the philosophical work on meaning is appropriate. First, a consideration of Davidson on interpretation. The thesis is that Davidson’s “radical interpretation” can only account for sentence meaning and not for linguistic interpretation in general. Davidson cannot account for the non-rule-governed aspects of communication. “Semantics, as opposed to interpretation, concerns those aspects of communication which are rule or convention governed…but such rules are normally unavailable as reasons or justifications for an interpretation. On the contrary, interpretation is usually required because the issue is not determined by rules or conventions.” Interpretation, rather, is parasitic with understanding the meaning of an expression and not equivalent with it. As Dummett notes, any reflection on the meanings of words assumes prior knowledge of ordinary meanings. “This leads to the conclusion that understanding or explaining the meaning of an expression and interpreting it, are two conceptually separate things. It also indicates that seman ics can only be employed, if at all, to elucidate the concept of interpretation by way of contrast: interpretation concerns those aspects of communication which are under-determined by semantic rules or conventions.” Pragmatics, the study of problems posed by discrepancies between utterer’s meaning and sentence meaning, would seem to be closer to inquiry into interpretation. Both are concerned with understanding how meaning is possible where conventional rules leave off. Contemporary pragmatics, moreover, recognizes the logically indeterminate character of communicative inferences beyond conventional meaning and that the contextual conditions that account for the possibility cannot be realized in the semantic structure of the sentence. However, different criteria of success may be at work in pragmatics than interpretation. Pragmatics is concerned with how communication is achieved and thus the criteria of success would be grasping a speaker’s intentions. Many think, however, that communication is unimportant in certain spheres of communication, e.g. artistic interpretation, and that in these cases the aim of interpretation is not to uncover the actual artist’s intentions. What kind of meaning is interpretation aimed at then? It cannot be the meaning the object has for the interpreter. “Interpretation purports to be a statement about the object interpreted, not about the subject who offers the interpretation…it is crucial to remember that not everything we say about a work of art, or any other text, amounts to an interpretation of it. Only those aspects of a text which can shed light on its meaning form part of the text’s interpretation. What the text means for someone rarely entails anything about what the text means.” [This is puzzling to some extent for it remains somewhat ambiguous what it means to talk of subject-independent meaning.] Interpretive meaning attribution is, rather, counterfactual. “In general, I will suggest that the answer to this question consists in the fact that meaning is assigned by a counterfactual statement. Given that x is the meaning attributed to, for instance a text T, and x is not the literal meaning of T, nor is it the meaning of T intended by its author, then the attribution of meaning x to T can only be understood as the contention that on the basis of certain assumptions a certain fictitious or stipulated speaker would have meant x by expressing T.” Thus, on this account, interpretation, when it does not concern an actual speaker, turns out to be a kind of counterfactual intention attribution. Twofold point: “First, that interpretation is essentially a matter of attributing intentions, that is, in the pragmatics sense of ‘meaning’, namely, meaning that such-and-such by an act or expression. At the same time, interpretations need not be based on the intentions of actual authors; the meaning of an act or expression is understandable in terms of counterfactual intentions.” [Are we really restricted to understanding the coherence and integrity of meaning in such a way? Presumably the author is a kind of device for organizing meaning, much like Dworkin’s integrity, but need it take that format?] The logic of interpretation is typically reducible to intention attribution. [What role does the counterfactual author play in structuring meaning?] The criteria of interpretive success will depend upon the object, whether it is the real author or the counterfactual author. If the former, success will depend upon the retrieval of the author’s actual intentions. “Likewise, if the author is characterized in terms of some ideal representative of a certain genre, for instance, the presumptions which are taken to determine this c aracterization would provide the criteria of success for the particular interpretation offered.” [The criteria of success would seem, then, to be the principles, ideals, etc. that we attribute to the counterfactual author. These attributed qualities would be doing all the work – is the attribution of intention to the hypothetical author, then, really necessary at all?] [Does this account presuppose a weird dichotomy between what an object is and what it means? This dichotomy is different, if present at all, in Dworkin.] Chapter 3: Dworkin’s Theory of Interpretation and the Nature of Jurisprudence Three main insights of Dworkin’s theory of interpretation: “First, that interpretation strives to present its object in its best possible light. Second, that interpretation is essentially genre-dependent. And third, that there are certain constraints that determine the limits of possible interpretations of a given object.” Why the best light? Dworkin doesn’t really address this question in depth but claims that otherwise we are left with no way of justifying and choosing an interpretation or we are left with the author’s intention model, which we should reject. [Marmor doesn’t seem clear on what precisely it means to present something in its best light – seems to conflate it with most appealing light which, I take it, is different than what Dworkin has in mind.] “Dworkin is quite right to maintain that without having some views about the values inherent in the genre to which the text is taken to belong, no interpretation can take off the ground. The values we associate with the genre partly, but crucially, determine what would make sense to say about the text, what are the kinds of meaning we could ascribe to it.” There is no necessity for an interpretation to present an object in its best light with regards to the genre it is taken to be part of. Interpretations “could simply strive to present it in a certain light, perhaps better than some, worse than others, but in a way which highlights an aspect of the meaning of the text which may be worth paying attention to for some reason or another.” [What kind of reasons would count in choosing to present it in one light rather than another?] There is simply zero grounds for Dworkin’s assertion that we have no reason to pay attention to an interpretation that does not present it in its best light. Take a psychoanalytic interpretation of Hamlet, for example – not the best light, but a legitimate one. [This seems related to the next criticism – clearly Dworkin would have to loosen his insistence on the best, though not to detriment.] Moreover, especially with regards to art, it doesn’t appear possible to make an all things considered judgment about the best interpretation given the incommensurability of different values that are taken to inhere in a given genre. [Dworkin can respond here that we may have different available interpretations that could be justified with respect to the relevant value. Moreover, a lack of common denominator does not prevent any comparison whatsoever.] Constructive interpretation concerns social practices constituted by norms – it imposes a purpose or value rendering intelligible the normative character of the practice. There is a separate aspect of constructive interpretation that maintains that elements of the practice are sensitive to the point of the practice. It is important to note that different social practices will institutionalize themselves in different ways – thus, different practices will establish varying conditions on how the practice can be altered. The position of the positivists is that evaluative judgments concerning what the law should be are insufficient for determining what the law is given the nature of law’s institutionalization.&nb p; [This would seem to reside on a certain conception of law, i.e. an interpretation about where the value of law lies.] “[T]his being one of the main points of dispute between Dworkin and his positivist opponents, Dworkin cannot at this initial state presume law to be sensitive to its value in the manner that other, non-institutional practices might be, without incurring the charge of having assumed the very point at issue.” The upshot for Dworkin is that any explanation of a social practice such as law requires the same kind of reasoning as participation in that practice. This will be called the hermeneutic thesis. We can try to reconstruct a justification for this view based on the necessity of shared background assumptions – but this will not do since Dworkin’s claim is stronger: it contends that participants’ and theorists’ must “adopt one and the same normative point of view.” [The sense of normative here is unclear. It is true, though, that shared background assumptions do not imply viewing the law as valuable in any particular way, or at least it does not imply this in any strong sense.] Dworkin makes two distinct points with the hermeneutic thesis: “First, that the explanation of a social practice, like law or the arts, is essentially interpretative, and as such, necessarily value laden. Second, that the interpretation of such social practices, which Dworkin calls ‘argumentative’, is unique in the sense that the practice itself is an evaluative enterprise, and that therefore the interpreter of such a practice must form an evaluative judgment of her own about those values which are inherent in the practice that she purports to interpret.” [As stated, the first thesis is terribly ambiguous – for Dworkin, it clear implies a commitment to constructive interpretation. For Marmor, who accepts it, it is totally unclear what commitment he intends to make. He seems to mean simply that we have criteria for success concerning what counts as a successful explanation.] Mamor denies the second thesis. “What Dworkin seems to ignore here is that there is a crucial difference between forming a view about the values which are manifest in a social practice, like law, and actually having evaluative judgments about them.” [The problem, however, it that it is a contentious matter what values are part of the law – a theorist’s account of what values are constitutive of a particular legal system must rely on the kind of arguments which participants rely on. Of course, a theorist might simply note a debate about values and attempt to remain agnostic, but this will fail to be a full theoretical account of what law is!] Dworkin’s thesis seems to depend exclusively on his account of constructive interpretation. [This seems exactly right.] Chapter 4: Coherence, Holism, and Interpretation: The Epistemic Foundation of Dworkin’s Legal Theory Begins with discussion of Rawls’ reflective equilibrium. Sums up dual criticism as follows: “[T]he assumption that intuitions are independently true and the converse one, that their truth depends on fitting a coherent scheme, both seem to yield paradoxical results.” Dworkin, in his article “The Original Position”, claims that Rawls cannot commit himself to ethical realism. “[T]he natural model presupposes some form of ethical realism, while the constructive model does not. One important difficulty arising from an attempt to apply the natural model to Rawls is, that under the natural model, any theory which dopes not account for an intuition, at least for one which is held firmly, cannot be wholly satisfactory, just as scientific theory which does not account for certain observational data it is supposed to cover, would not be satisfactory in a familiar way.” Rawls, rather, is committed to a constructivist view of morality. Moreover, the reason we value coherence epistemically in moral theory is that it itself is a value of political morality – fairness requires consistency and publicity in the application of moral standards. Marmor notes the following problem with such a view: “[I]f coherence is justified, as it is here, with reference to certain moral values, that is, a specific conception of fairness, then we face the following problem: the presupposed values of fairness must themselves be based upon intuitive convictions, in which case the question of their truth cannot be ignored. If they are taken to be true…we are driven back to the perplexities of the natural model.” Discusses, helpfully, the Fish/Dworkin debate. The upshot is that Dworkin’s interpretive model is best off if it commits itself to a Quineian holism. However, this undermines his distinction between internal and external skepticism since holism must deny that moral judgments constitute a closed system. [This analysis seems exactly right.] Endorses Simmonds view that Dworkin’s theory does not meet the requirements of complexity he identifies as necessary to avoid vicious circularity in interpretive judgments of fit and identity. Coherence is doing the work through and through and therefore the interpretive theory of law is circular. [Will require further investigation, though it is unclear how coherence is doing any work in the pre-interpretive stage. At this stage, the judgments, if interpretive, seem to be derived from different sources. In any case, using coherence as a value seems to be highly suspect.] Why doesn’t Dworkin just reject Fish’s assumptions: because of his jurisprudence. “If legal texts can have a meaning that is not entirely dependent on a process of interpretation, then it is at least sometimes the case that the law can simply be understood, and applied, without the mediation of interpretation. And if that is the case, then the argument from interpretation against legal positivism collapses. It is no longer the case that every conclusion about what the law is, depends on evaluative considerations about what it ought to be.” Chapter 5: Semantics, Realism, and Natural Law Assessment of Michael Moore’s legal realism and its implications. [The final criticisms of Moore are not decisive.] Chapter 6: Constructive Identification and Razian Authority A consideration of Dworkin’s denial that the communication model of interpretation is appropriate for legal interpretation. Marmor argues that intentions do play a crucial role in the identification of legal norms in a way that is incompatible with Dworkin’s “coherence thesis”. Marmor takes Dworkin to be committed to the constructive identification thesis: that the identification of something as part of the legal, artistic, etc. genre can be done sufficiently by evaluative considerations. “Here, one must maintain that evaluative considerations are sufficient to determine whether something is a legal norm or a work of art”. [Fit, however, constrains possible evaluative considerations – thus evaluative considerations are not sufficient in themselves.] “Now the crucial point here is this: if you maintain the possibility of constructive identification in art, you must assume that works of art can be identified as such on the basis of certain features they happen to possess, features which contain no reference to any particular intention to create a work of art…unless we take intentions into account, how can we discriminate between the concept of an aesthetic artifact and the con ept of a work of art?” [It is unclear, and I think false, that constructive interpretation of anything requires identifying something irrespective of an artificers intentions. Those intentions may be relevant, dependent upon the genre under which we are trying to classify the object. Nothing, seemingly, about constructive interpretation in general excludes this possibility.] Marmor’s point is that it turns out to be impossible to identify art as art without reference to an artist’s intentions – especially given the state of contemporary art. [It is notable that Marmor’s response to counterexample implicitly depends upon a fully developed theory of aesthetics. His cursory comments on the matter of identifying art seem insufficient to say the least.] The rest of the chapter considers the incompatibility of Raz’s account of authority with constructive interpretation. The incompatibilities mentioned do not move beyond what Raz identifies in his article “Authority, Law and Morality”, but a defense of this notion of authority is defended in several [inconclusive] respects. [Raz and Marmor want to separate identification from content. This is not clearly a defensible separation.] Chapter 7: No Easy Cases? Chapter defends notion that there is a distinction between easy and hard cases in the positivist sense. Takes a Hartian approach and ultimately defends the distinction by associating it Wittgenstein’s conception of rule following. The point is that one need to look the purpose of rule in order to understand what the rule requires. Chapter 8: Legislative Intent and the Authority of Law Examines the following doctrine concerning the role of legislative intent in adjudication: “[F]irst, it would hold that laws, at least in certain cases, are enacted with relatively specific intentions, and that this is a matter of fact which is discernible through an ordinary fact-finding procedure. Second, that in certain cases the presence of such a fact, namely, that the law was enacted with a certain intention, provides judges with a reason to decide the legal dispute in accordance with the relevant legislative intent.” [It is important that for Marmor, interpretive strategies are only appropriate in hard cases. However, we should wonder what grounds positivism can offer for deciding a hard case in any manner which is not the morally best manner according to the judgment of the judge. There are no legal grounds, by definition, in hard cases and so what justificatory strategy would endorse any judicial decision except for the morally best one?] We can ascribe intentions to a legislative body, when this is possible at all, by taking the shared intentions of the majority, rather than some group intention, to be the significant intentions. Moreover, we should expect a good deal of consensus about intentions for otherwise it is hard to explain how legislative bodies are able to produce so much legislation. Discussion of kinds of intentions concludes as follows: “I have distinguished between three main types of intention that are potentially relevant from the legal point of view. Apart from the intentions that are manifest in the language of the law itself, legislators typically have further intentions in enacting a given law, and sometimes they would have certain intentions bearing on its proper application. I have also suggested that some of these further intentions may be essentially non-avowable, in which case they are rendered initially irrelevant. Finally, I have pointed out that considerations of consistency require that the legislator’s application intentions be taken into account only if, and to the extent that, they are in accord with his further intentions.” The manner in which intentionalism is to be justif ed relies on the distinction, Marmor maintains, between expert and mere collective action authority. “The point I wanted to make is strictly conditional: if, and only if, a certain law is justified on the basis of the expertise branch of the normal justification thesis, would it make sense to defer to the legislature’s intentions in the interpretation of the law, that is, to the extent that there is, in fact,; such an intention and it can clarify something that needs clarification.” Insofar as a legislature can be considered an expert on the matter requiring adjudication and interpretation should the body’s intention be taken into account. Chapter 9: Constitutional Interpretation Begins by laying out general necessary features of a constitution. Then Marmor moves on to consider general questions of constitutional legitimacy. First, he considers what grounds might be offered for the legitimacy of a constitution at all. He notes that the central question is what permits a single generation to bind future generations. He then examines four arguments to avoid this problem. The first is based on the moral legitimacy of the constitution; Marmor rejects this solution for the [truly dubious] reason that the constitution would make no practical difference because it would not supply reasons in addition to those provided by morality [but, presumably, the point is that these legally valid rules would be institutionally enshrined]. The second is based on the moral authority of the framers and Marmor rightly rejects this on the basis of the idealization of the framers it requires and less rightly on the basis that there cannot be moral authorities. Third is the “argument from interpretation” which claims that “as long as the particular content of the constitution is determined by its interpretation, and the authoritative interpretation at any time correctly instantiates the values which ought to be upheld in the community, the constitution would be morally legitimate”. The fourth is Raz’s which argues that a constitution is valid so long as its constraints are morally permissible because conventions of this type might aid the continuity of the legal system, i.e. it is important to have a convention of this type and the constitution is a kind of this type. Marmor appears to endorse these two approaches and concludes: “The conditions for the legitimacy of a constitution must comprise the following conditions. First, the values and principles enshrined in it must be morally permissible…Second, when certain choices are made in particular cases, they would be legitimate if they are either morally underdetermined, or else, morally correct…It follows from this that both arguments must assume that at least in those areas in which the constitution would make a moral difference, it can be interpreted to make the difference that it should, that is, according to the true moral principles that should apply to the particular case...the moral legitimacy of constitutions very much dependent on the practices of their interpretation. In other words, a great deal of the burden of moral legitimacy is shifted by these arguments to the application of the constitution, thus assuming that the constitution is legitimate only if the courts are likely to apply the constitution in a morally desirable way.” [This implies that the only significant value constitutions have is in providing a conventional practice where some such practice is required.] Moves on to argue that courts typically rely, and rightly so, on moral considerations when deciding constitutional issues because typically, in cases of the kind that reach the supreme or constitutional court, there is no law on the case. Much of this relies on his earlier discussion about the nature of interpretation in the law – that legal interpretation is always a matter of cha ging the law. (shrink)

This book examines the relationship between the idea of legitimacy of law in a democratic system and equality, conceived in a tripartite sense: political, legal, and social. Exploring the constituent elements of the legal philosophy underlying concepts of legitimacy, this book seeks to demonstrate how a conception of democratic legitimacy is necessary for understanding and reconciling equality and political legitimacy by tracing and examining the conceptions of equality in political, legal, and social dimensions. -/- In the sphere of political equality (...) this book argues that the best construction of equality in a democratic system - which resonates with the legitimizing function of majority rule - is that of equality of political opportunity. It is largely procedural, but those procedures represent important substantive values built into a majoritarian system. In the sphere of legal equality it argues that a plausible conception of non-discrimination can be constructed through a "reflective equilibrium" process, and should reject a thoughtless assumption that the presence of some particular criteria of differentiations necessarily taints a legal classification as discriminatory. Finally, the chapters on social equality explore, in some detail, the currently influential, and presumptively attractive, "luck egalitarianism": the idea that social equality calls for neutralizing the disparate effects of bad brute luck upon a person's position in society. (shrink)

The primary goal of this monograph is to justify the possibility of building a hybrid theory of normative ethics which can combine ethical consequentialism, deontology and virtue ethics. The aim of the book is to demonstrate the possibility of constructing a synthetic theory from ethical traditions that are generally considered to be contradictory. In addition, I propose an outline of an original theory which tries to carry out such a synthesis. I call it Institutional Function Consequentialism. The justification for a (...) hybrid theory of normative ethics requires the resolution of certain meta-ethical issues. I discuss them in part 1.1. After a brief overview of my research aims I consider the answer to the following questions: “What kind of meta-ethical beliefs must we assume for normative ethics?” and "Why should we build ethical theories?". I also discuss the various forms of ethical scepticism, which should be rejected if we develop a hybrid theory of normative ethics. I also describe possible methods of justifying any ethical theory. At the end of part 1.1 I explain that the best method for justifying any ethical theory is the method of wide reflective equilibrium. In parts 1.2, 1.3 and 1.4 I analyse three main types of normative ethics which are considered to be competitive: consequentialism, deontology, and virtue ethics. Part 1.2 is about consequentialism and its difference between utilitarianism and teleological theories. I also present the main reasons for the popularity of consequentialism. In part 1.3 I define deontology, present its variations and show important benefits that motivate its continuous growth. In part 1.4 I discuss virtue ethics, which is often referred as the viable alternative to consequentialism and deontology. If we want to build any new ethical theory, first we should describe the problems of the old ones. For this reason, in chapter 2 I describe the most important arguments against ethical consequentialism, and in chapter 3 I explain the difficulties of deontology. Critical remarks on virtue ethics are considered in part 1.4. The last two chapters directly concern the main aim of the monograph. Because in chapter 3 I show that deontology suffers from a number of problems such as the paradox of deontology, in chapters 4 and 5 I present only consequentialist versions of hybrid theories. These versions try to avoid the common pleas of utilitarianism and combine the advantages of opponents to utilitarianism. I answer the question (4.1) "What is hybrid consequentialism?" and briefly describe (4.2) the most important examples of hybrid theories by others. I discuss the prerogatives without restrictions idea by Samuel Scheffler, rule consequentialism by Brad Hooker, Kantian consequentialism by Richard M. Hare, David Cummiskey and Derek Parfit and consequentializing procedure proposed by Douglas W. Portmore. In the last chapter I present a new hybrid version of consequentialism that I call Institutional Function Consequentialism. I start from the thesis (5.1) that traditional meta-ethics of analytic philosophy incorrectly defines the main field of its research. Rather than focusing on the philosophy of language and metaphysics it should try to answer one question: “What should morality and ethics be for?”. Therefore I introduce an original methodology for meta-ethics that I call the Functional Model of Analysis (FMA). It is a meta-ethical framework in which the fundamental questions concern the practical functions of normative domains such as morality and ethics and the most rational way of achieving them. FMA is meta-ethical project that (a) explains the persistence of fundamental ethical disagreement among experts, (b) sets the background for explaining or justifying the correct structure of the ethical theory, (c) gives the possibility to create a hybrid theory of normative ethics. In part 5.2 I formulate a generalized argument against various popular theories of normative ethics which states that most of the popular theories are too narrow and one-sided, causing permanent dispute between them. There are many distinct practical functions of morality that are usually based on different types of normative theories such as Aristotelian ethics, utilitarianism, contractarianism and contractualism. In order to remove these conflicts, the correct ethical theory should try to take into account all of these relevant features of moral life. Unfortunately, most ethical theories are mono-functional. This means that their supporters consciously or unconsciously (1) recognize or accept only one genuine practical function, (2) think that this one practical function overrides all other practical functions or (3) try to reduce all practical functions to the one that is chosen. In part 5.2 I present a description and justification of a new normative account that I call Hybrid Function Consequentialism. The formal scheme of this consequentialism can be summarized in the following way: we should act according to some important focal points P1…Pn with contents C1…Cn that are selected on the basis of considerations about which kind of P with C will bring the best realization of the best mix of normative functions F1...Fn. In the next part (5.2.2) I present the new way of “consequentializing” particular theories of normative ethics by applying the scheme of Hybrid Function Consequentialism. As an example of the use of this procedure, I formulate perfectionist virtue consequentialism, contractarian institution consequentialism, contractualist rule consequentialism and consequentialism of salvation. In part 5.3 I formulate an original theoretical concept that I call Institutional Function Consequentialism (IFC). It is a hybrid theory that is based on the previously described Functional Model of Analysis and a reflection on the role of institutions in modern developed societies. IFC claims that we should always act according to some rules, virtues, motives and intentions that constitute the homeostasis of normative institutions whose internalization by the overwhelming majority of each new generation has maximum expected value in terms of the best realization of the equilibrium of the most important practical functions of normative domains. Responsibility and sanctions related to wrongful actions should be dependent on the particular institution whose standards have been violated. IFC has several unique features which are described and justified in part 5.3. It is a form of hybrid consequentialism – it mixes features of consequentialism, deontology and virtue ethics. It does this on three different levels: justification, structure and content. The main focal point of the theory is not rules or virtues, but normative institutions. Values to be optimized in the framework of consequentialism are not "happiness", "well-being" or "preferences", but the fulfilment of normative functions. IFC is not limited to the field of ethics only, but it is a meta-normative account of justification for an entire social order which is comprised of a number of different institutions. It also assumes a specific, circular relationship between practical ethics (e.g. research on such important issues as civil disobedience, fair distribution of wealth, philosophy of punishment or autonomy of conscience), and the content of the general rules that may constitute the optimal homeostasis of institutions. It rejects the simplistic belief that moral thinking is based solely on deductive implications from general ethical principles or meta-ethical beliefs. (shrink)

According to an influential characterisation of reflective equilibrium, it is a kind of algorithm for licensing explicitly normative claims in philosophical inquiries. Call this the machine-view of reflective equilibrium. The machine-view implies a causal relation between input and output data that is devoid of human agency in any significant sense. In this paper, I argue for a neo-Aristotelian alternative view. According to this view, the judgement that is called forth in the decision procedure of reflective equilibrium is (...) a rational response of an epistemic agent, which integrates the whole of her character as a knower, both cognitive and affective, and which cannot be reduced to the explicit following of rules or an algorithm. Unlike the machine-view, this alternative account is able to support the dynamic structure and the normative status of the decision procedure. (shrink)

This article aims to stimulate dispute about the justification of Paul Ricœur’s hermeneutic reading of John Rawls. Offering a close, methodically point-for-point textual engagement, I shall propose that Ricœur’s misreading of certain hermeneutic circularities in Rawls is owed to some confusion about the role of the procedural nature of Rawls’ theory. Generally speaking, the problems with Ricœur’s interpretations center on the question of whether there is something “pre-understood” within the formal theoretical understanding of the procedural theory of justice and the (...) substantive convictions and judgments that figure within the reflective equilibrium of deliberations about the terms of justice. Arguably, Ricœur has not made a satisfactory case that the difference and liberty principles are considered convictions that anticipate their discovery and establishment. Ultimately, Ricœur has not demonstrated that there is a single presuppositional form that renders Rawls’ procedure self-defeating. Instead, he has proposed to us several potential forms of damaging presupposition, each of which is based on a questionable reading of Rawls’ text. (shrink)

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. (shrink)

Many normative theorists want to contribute to making the world a better place. In recent years, it has been suggested that to realise this ambition one must start with an adequate description of real-life practices. To determine what should be done, however, one must also fundamentally criticise existing moral beliefs. The method of reflective equilibrium offers a way of doing both. Yet, its practical usefulness has been doubted and it has been largely ignored in the recent practical turn of (...) normative theorising. This paper offers a complementary methodology to the method of reflective equilibrium, referred to as Rawlsian constructivism, which brings forth its practical merits. With the support of Rawlsian constructivism, the method of reflective equilibrium becomes a tool for public reasoning about practical problems which aims to facilitate shared solutions. The process of reflective scrutiny is used, not in the search of moral truth, but rather to highlight what stands in the way of solutions to problems agents face in different domains of social life. The practical value lies in scrutinising reasons for action that are taken for granted, explicating new rationales for action and highlighting neglected points of agreement. The paper exemplifies this approach with a process of justifying individual obligations to combat climate change. Normative theorists who share the practical agenda have correctly noted the importance of bottom-up investigations of subject domains. This paper argues that the next step should be to utilise this version of the method of reflective equilibrium to explore the potential for morally progressive solutions to these problems. (shrink)

The method of reflective equilibrium is typically characterized as a process of two kinds of adjustments: hold fixed one’s current set of commitments/intuitions and adjust rules/principles to account for them, then hold fixed those rules while making adjustments to one’s set of commitments. Repeat until no further adjustments are required. Such characterizations ignore the role of precedent, i.e., information about the commitments and rules of others and how those might serve as guides in one’s own process of deliberation. In (...) this paper we develop a model that narrows in on a local part of a reflective equilibrium process in which a group of peer agents start with identical lists of commitments and work towards finding the rule that captures that set. If successful, we say they reach rest stop interpersonal convergence. The trouble is that, without precedent, reaching this convergence rests on implausible deterministic assumptions. We analyze how far the inclusion of a kind of soft precedent goes towards aiding the group in reaching said convergence when those assumptions are relaxed. (shrink)

For over a century now, American scholars (among others) have been debating the merits of “bad Samaritan” laws — laws punishing people for failing to attempt easy and safe rescues. Unfortunately, the opponents of bad Samaritan laws have mostly prevailed. In the United States, the “no-duty-to-rescue” rule dominates. Only four states have passed bad Samaritan laws, and these laws impose only the most minimal punishment — either sub-$500 fines or short-term imprisonment. -/- This Article argues that every state should criminalize (...) bad Samaritanism. There are three main reasons. First, criminalization is required by the supreme value that we place on protecting human life, a value that motivates laws against both homicide and manslaughter. Second, criminalization is recommended by the “proportionality principle” — i.e., the principle that a law’s level of punishment should be directly proportional to the moral severity of the offense. Third, criminalization would yield a number of significant benefits, including helping to minimize needless deaths and injuries and providing society with an institutional outlet for its outrage against bad Samaritans. -/- Still, many objections have been leveled against bad Samaritan laws. This Article will argue that while some of these objections — for example, the objections involving foundational criminal law principles such as the actus-reus requirement, the harm principle, and causation — are all easily refuted, five other objections are not. These five objections involve pragmatic considerations such as the difficulties with obtaining evidence against bad Samaritans and psychological considerations such as people’s understandable reasons for not wanting to “get involved.” This Article will then put these five objections into reflective equilibrium with the moral arguments for bad Samaritan laws and conclude that while bad Samaritanism should indeed be criminalized, the punishment that convicted bad Samaritans receive should be mild — certainly milder than the level of punishment recommended by the “proportionality principle.” The corollary of this conclusion is that the criminal law should sometimes abandon the proportionality principle. (shrink)

This dissertation is a contribution to the field of empirically informed metaethics, which combines the rigorous conceptual clarity of traditional metaethics with a careful review of empirical evidence. More specifically, this work stands at the intersection of moral psychology, moral epistemology, and philosophy of action. The study comprises six chapters on three distinct (although related) topics. Each chapter is structured as an independent paper and addresses a specific open question in the literature. The first part concerns the psychological features and (...) cognitive function of moral intuition. Chapter 1 (“Moral intuition, strength, and metacognition”) is focused on the concept of intuitive strength, which is one of the defining features of moral intuition. I provide a metacognitive account of intuitive strength and show why such a view is preferable to emotional or quasi-perceptual accounts. Then, in Chapter 2 (“Dual process reflective equilibrium”), I will discuss the interplay between intuition and reflection in moral reasoning. I will contend that the influential “default-interventionist” model of reasoning, theorized by Greene, is insufficiently supported by the evidence. In light of some recent studies, I outline an account of moral reasoning in which intuition and reflection are not in conflict but cooperate to reach a reflective goal. I call this model dual process reflective equilibrium. The aim of the first part is descriptive, i.e., it argues for an accurate understanding of moral intuition and reasoning in light of the available empirical evidence. In contrast, the second part addresses a normative question: is a subject epistemically justified in forming a belief on the basis of a moral intuition? Skeptics of moral intuition argue that accepting moral intuitions should be the exception rather than the rule to the extent that epistemically defective processes determine the content of moral intuitions. Chapter 3 (“Moral intuitionism and the reliability challenge”) introduces the recent empirical challenges to the reliability of moral intuitions and elaborates a promising strategy for defending intuitionism. In short, I consider whether subjects can track the reliability of their intuitions with their confidence. In Chapter 4 (“The argument from limited cognitive resources”), I evaluate a different strategy to defend moral intuitionism. Specifically, I develop an argument according to which accepting moral intuitions is legitimate because it is the most rational option that a subject has, given her limited resources. The third and final part of the dissertation concerns the role of moral intuitions in action. The influence of automatic processes on moral conduct raises different challenges to moral philosophy. The first challenge is to explain how a subject can be motivated by certain values without the mental effort of deliberation. Chapter 5 (“Caring, moral motivation, and automatic conduct”) tackles this issue. Chapter 6 (“Moral sensitivity as skillful automaticity”) aims to explain how moral agents can be sensitive to good reasons through automatic mental processes. (shrink)

EDITOR’S ABSTRACTThis article argues that Shang Yang’s philosophy of law was not only a means to enrich the state and strengthen its army, but also envisioned the orderly rule of all All-under-Heaven. Through a fair, universal, and reliable use of rewards, punishments, and also teaching, this vision of laws could ultimately lead to the promotion of moral values, popular consensus, and people’s self-governance. While the authors admit that in Shang Yang’s own historical context, law was no more than a tool (...) used by the ruler to suppress his people, potentially his ideas could contribute to a future Chinese society fully ruled by law and morality, and inspired by the rule of law. (shrink)

Resumen: Aunque la funcionalidad y versatilidad de la perspectiva comparada es una cuestión prioritaria para una total optimización del análisis de las migraciones internacionales. No toda perspectiva o metodología de investigación comparada puede ser considerada comparación jurídica. Este artículo no pretende ser ni recoger un compendio de virtudes y defectos atribuibles a la investigación jurídica comparada en el ámbito concreto de la inmigración. Más bien, revisando algunas publicaciones, se propone reconsiderar críticamente cual es el rol de la comparación jurídica en (...) el estudio interdisciplinar de la inmigración. A tal efecto, a modo ilustrativo se han valorado los puntos débiles y fuertes de algunos ejemplos de análisis comparados sobre la inmigración y la integración a nivel europeo.Abstract: Currently, despite the functionality and versatility of the comparative approach are priority questions for the full optimization of the international immigration framework’s analysis. All kinds of comparative research method could not be peacefully considered stricto sensu a comparative law. This article does not pretend to be a compendium of attributable virtues and defects to legal comparative research on the specific field of migration. Rather, reviewing some publications, I propose to reconsider critically what is or should be the role of comparative law in the interdisciplinary study of migration. Consequently, the strengths and weaknesses of some comparative analysis regarding immigrant integration at European level have been illustratively valued. (shrink)

The book asks how, and how much, we can improve our ethical standards—not lift our behaviour closer to our standards but refine the standards themselves. To answer this question requires answering most of the major questions of ethics. So the book includes a discussion of what a good life is like, where the bounds of the natural world come, how values relate to that world (e.g. naturalism, realism), how great human capacities—the ones important to ethics—are, and where moral norms come (...) from. Throughout the book, the question of what philosophy can contribute to ethics arises. Philosophical traditions, such as most forms of utilitarianism, deontology, and virtue ethics, are, the book contends, too ambitious. Ethics cannot be what philosophers in those traditions expect it to be because agents cannot be what these philosophies require them to be. The book starts by questioning the adequacy of both appeals to intuition and the coherence method of justification in ethics (e.g. wide reflective equilibrium) and ends with a description of the sort of justification available to us. (shrink)

Rule consequentialism (RC) holds that the rightness and wrongness of actions is determined by an ideal moral code, i.e., the set of rules whose internalization would have the best consequences. But just how many moral codes are there supposed to be? Absolute RC holds that there is a single morally ideal code for everyone, while Relative RC holds that there are different codes for different groups or individuals. I argue that Relative RC better meets the test of reflective equilibrium (...) than Absolute RC. In particular, I contend that Relative RC is superior because it accommodates our convictions about costless benefits. Some have charged that Relative RC threatens our convictions about the generality of moral codes and that it leads inevitably to what Brad Hooker calls “runaway relativism.” I argue that Relative RC has principled reasons for stopping this imagined slide down the slippery slope. (shrink)

This paper examines recent attempts to defend Rule-Consequentialism against a traditional objection. That objection takes the form of a dilemma, that either Rule-Consequentialism collapses into Act-Consequentialism or it is incoherent. Attempts to avoid this dilemma based on the idea that using RC has better results than using AC are rejected on the grounds that they conflate the ideas of a criterion of rightness and a decision procedure. Other strategies, Brad Hooker's prominent amongst them, involving the thought that RC need contain (...) no overarching concern to maximize the good are acknowledged to avoid the original dilemma, but lead to further problems of motivating and justifying RC in the absence of such a concern. The paper argues that Hooker's attempt to deal with these problems by using a 'Reflective Equilibrium plus method is unsuccessful. (shrink)

South Africa is experiencing an HIV/AIDS epidemic of enormous proportions. The workplace, like all the other sectors, is adversely affected. The tendency of a significant proportion of employers has been to discriminate against employees and job applicants living with HIV/AIDS through use of HIV testing to exclude those that are HIV‐positive. In the case of Hoffmann v South African Airways, the Constitutional Court was asked to determine the constitutionality of excluding a job applicant on account of an HIV‐positive status. The (...) Court ruled in favour of the applicant and ordered instatement. Through an analysis of Hoffmann v South African Airways, the article examines how constitutional values are impacting on HIV/AIDS‐related ethics in the workplace. (shrink)

Rule-consequentialists tend to argue for their normative theory by claiming that their view matches our moral convictions just as well as a pluralist set of Rossian duties. As an additional advantage, rule-consequentialism offers a unifying justification for these duties. I challenge the first part of the ruleconsequentialist argument and show that Rossian duties match our moral convictions better than the rule-consequentialist principles. I ask the rule-consequentialists a simple question. In the case that circumstances change, is the wrongness of acts determined (...) by the ideal principles for the earlier circumstances or by the ideal ones for the new circumstances? I argue that whichever answer the rule-consequentialists give the view leads to normative conclusions that conflict with our moral intuitions. Because some set of Rossian duties can avoid similar problems, rule-consequentialism fails in the reflective equilibrium test advocated by the rule-consequentialists. (shrink)

To improve on the argument presented by classical economists, many authors have tried to rely as much as possible on a value-free approach. In this paper, reasons to reject the propositions made by neoclassical economists are briefly recalled. We then turn toward Kirzner’s proposition which is to evaluate a policy, or a rule, according to the extent to which it promotes coordination. This proposition, however, must also be rejected because, if it introduces some dynamics in the picture, it is (...) a dynamics towards equilibrium, while real life, entrepreneurial dynamics can either be towards coordination or discoordination. Coordination is not monotonously linked to progress. It therefore appears preferable to rely on Hayek’s notion of order; a notion specifically designed to allow progress to take place, while maintaining a ‘satisfactory’ level of coordination. For such an order to prevail, any rule or policy deliberately introduced must be compatible with the existing order, that is, it must protect legitimate expectations. Following a reflection on the definition of ‘legitimacy’ we then reach the conclusion that the quest for a value-free welfare economics is lost, and that even the quest for a value-free economics will have, in a certain sense, to be left, or at least reconsidered.Afin d’améliorer l’argument présenté par les économistes classiques, beaucoup d’auteurs ont essayé de se reposer autant que possible sur une approche sans jugements de valeur. Dans cet article, nous rappelons brièvement les raisons de rejeter les propositions faites par les économistes néoclassiques. Nous nous tournons donc vers la proposition de Kirzner qui est d’évaluer une politique, ou une règle, par rapport à la manière dont elle promeut la coordination. Cependant, cette proposition doit aussi être rejetée car si elle introduit une dynamique dans l’analyse, c’est une dynamique du côté de l’équilibre, alors que dans la vie réelle, la dynamique entrepreneuriale peut initier plus de coordination ou plus de discoordination. La coordination n’est pas liée de manière monotone au progrès. Il apparaît aussi préférable de se rattacher à la notion d’ordre de Hayek, notion construite précisément pour permettre au progrès d’avoir lieu, tout en maintenant un niveau “satisfaisant” de coordination. Pour qu’un tel ordre existe, toute règle ou politique délibérément introduite doit être compatible avec l’ordre existant, c’està- dire, qu’elle doit protéger les anticipations légitimes. Après une réflexion sur la définition de “légitimité”, nous arrivons à la conclusion que la quête d’une science économique du bien-être sans jugement de valeur est un échec, et que la quête d’une science économique sans jugement de valeur doit être, dans un certain sens, abandonnée ou au mieux reconsidérée. (shrink)

Military employees face all sorts of moral dilemmas in their work. The way they resolve these dilemmas—how they decide to act based on their moral deliberations—can have a substantial impact both on society and on their personal lives. Hence, it makes sense to support military employees in dealing with these dilemmas. Military organizations already support their personnel by adopting compliance‐based approaches that focus, for instance, on enforcing moral rules. At the same time, however, they struggle to develop value‐based approaches (...) that could foster moral learning by improving employees' understanding of personal values, others' values, and their responsibility for others. Consequently, military employees are not adequately supported in their ethical decision‐making when confronted with complex situations. To address this issue, drawing on a design research approach, we develop and evaluate the use of a value‐based reflection tool to support military employees with their moral decision‐making. The design and evaluation of the value‐based reflection tool were informed by five semistructured interviews, notes on 45 joint reflection meetings with trainers, and evaluation notes of 755 participants. Our findings suggest the value‐based reflection tool is a promising way to foster actors' moral competence in organizational settings by triggering the social mechanisms of reflection, empathy, and psychological safety. This study is the first to illustrate that value‐based ethics support can complement compliance‐based ethics support in a military organization. Furthermore, it demonstrates design research's potential to develop actionable knowledge for ethics support practices in organizations. (shrink)

As the year 2022 ends, we continue to face challenging issues and uncertainties about what should be the right approach to various ethical problems society face. In approaching these problems we reflect on our existing guiding values but also discover new ones. We then try to figure out how our actions and decisions could align with our well-considered judgments until we achieve some degree of reflective equilibrium.

The objective of this thesis – Reflective Equilibrium as a Form of Life – is to contribute to the deepening of understanding of the method of reflective equilibrium – a method of internal epistemic justification. In the first part of the study, four paradigmatic conceptions of the method will be analyzed in order to carve out a conceptual core: The ones by John Rawls – who coined the name of the method – Norman Daniels, Michael DePaul and Catherine (...) Elgin. I will argue that the conceptual core of the method contains four elementary rules: 1) A minimalistic fallibilism, 2) a moderate holism, 3) a minimalistic rationality, and 4) a weak foundationalism. Compliance with these rules is necessary and jointly sufficient for any epistemic procedure of justification to be in accordance with the method of reflective equilibrium. The second part of the study is intended to answer some of the open questions concerning this definition of the conceptual core of the method. It will be argued that the a minimalistic fallibilism, as a very central element of the method, is justified since there is no belief whose truth is transparent to an epistemic agent. Even if it were the case that such beliefs exist, there would be attractive options of retreat which provide a quasi-universal justification of minimalistic fallibilism. It will also be argued that all alternative methods of justification are either compatible with the method of reflective equilibrium or are not justified. While a metajustification of the method – understood as a justification of the method employing the method itself – is on the one hand not completely satisfactory, as it presupposes the acceptance of the method before it is justified, it is epistemically acceptable on the other hand, since it allows for a critical inquiry and is open-ended. It will be pointed out that a moderate foundationalism can be justified by the method for some specific area of inquiry insofar as basic beliefs can be identified. Yet, the default-position of the method is only a weak foundationalism (often also termed “coherentism”). With regard to the possibility of a formal interpretation of the method with which one could specify key terms used in the definition of the conceptual core, I will sketch general ways such a formalization might take. However, I will argue that the informal interpretation of the method has priority over any formal interpretation. In the third and concluding part of the study, I will present the claim that one should interpret the method of reflective equilibrium as a form of life. This means that the method is at least implicitly accepted by some epistemic agents: they have developed a disposition and ability to act according to the method. This interpretation of the method can be related to the notion of critical thinking, which, as a civic virtue and educational ideal, is subject of empirical research and practical application. A possible misunderstanding with respect to the method of reflective equilibrium as a form of life should be avoided: To interpret the method as a form of life does not indicate that it must be a comprehensive form of life. Acknowledging it in private life is optional. According to the proposed understanding of the method it is primarily a public and political form of life. (shrink)

This paper is about a tension between two theses. The first is Value of Evidence: roughly, the thesis that it is always rational for an agent to gather and use cost‐free evidence for making decisions. The second is Rationality of Imprecision: the thesis that an agent can be rationally required to adopt doxastic states that are imprecise, i.e., not representable by a single credence function. While others have noticed this tension, I offer a new diagnosis of it. I show (...) that it arises when an agent with an imprecise doxastic state engages in an unreflective inquiry, an inquiry where they revise their beliefs using an updating rule that doesn't satisfy a weak reflection principle. In such an unreflective inquiry, certain synchronic norms of instrumental rationality can make it instrumentally irrational for an agent to gather and use cost‐free evidence. I then go on to propose a diachronic norm of instrumental rationality that preserves Value of Evidence in unreflective inquiries. This, I suggest, may help us reconcile this thesis with Rationality of Imprecision. (shrink)

On the question of precisely what role common sense (or related datum like folk psychology, trust in pre-theoretic/intuitive judgments, etc.) should have in reigning in the possible excesses of our philosophical methods, the so-called ‘continental’ answer to this question, for the vast majority, would be “as little as possible”, whereas the analytic answer for the vast majority would be “a reasonably central one”. While this difference at the level of both rhetoric and meta-philosophy is sometimes – perhaps often – problematised (...) by the actual philosophical practices of representative philosophers of either tradition, I will argue that this norm (and its absence) nonetheless continues to play an important justificatory role in relation to the use of some rather different methodological practices. In particular, many analytic philosophers not only explicitly invoke the value of common sense, but they also implicitly value it via techniques like conceptual analysis that want to explicate folk psychology and/or lay bare what is already embedded in the linguistic norms of a given culture, the widespread use of thought experiments and the way they function as ‘intuition pumps’, as well as the general aim to achieve ‘reflective equilibrium’ between our intuitions and reflective judgments in epistemology and political philosophy. Such methods, I will argue, enshrine a conservative, or, more positively, a modest understanding of the philosophical project in that it is invested in cohering with both a given body of knowledge and common sense. These methods are notably less perspicuous in continental philosophy. To bring some of the reasons why this might be so to the fore, this paper considers Deleuze’s sustained attack on both good and common sense, which he argues are fundamental to the prevalence of a dogmatic image of thought. If Deleuze is right about this, and if the analytic tradition distils and perfects certain methods that are closely associated with this image of thought, then we have here a rather stark methodological contrast that calls for elaboration and evaluation. (shrink)

Continuing tensions exist between mainstream bioethics and advocates of the disability rights movement. This paper explores some of the grounds for those tensions as exemplified in From Chance to Choice: Genetics and Justice by Allen Buchanan and coauthors, a book by four prominent bioethicists that is critical of the disability rights movement. One set of factors involves the nature of disability and impairment. A second set involves presumptions regarding social values, including the importance of intelligence in relation to other human (...) characteristics, competition as the basis of social organization, and the nature of the parent–child relationship. The authors’ disapproval of certain aspects of the disability rights movement can be seen to be associated with particular positions regarding these factors. Although the authors intend to use a method of ‘broad reflective equilibrium,’ we argue that their idiosyncratic commitment to particular concepts of disability and particular social values produces a narrowing of the moral significance of their conclusions regarding disability rights. (shrink)

In classical game theory the idea that players randomize between their actions according to a particular optimal probability distribution has always been viewed as puzzling. In this paper, we establish a fundamental connection between n-person normal form games and quantum mechanics, which eliminates the conceptual problems of these random strategies. While the two theories have been regarded as distinct, our main theorem proves that if we do not give any other piece of information to a player in a game, than (...) the payoff matrix—the axiom of “no-supplementary data” holds—then the state of mind of a rational player is algebraically isomorphic to a pure quantum state. The “no supplementary data” axiom is captured in a Lukasiewicz’s three-valued Kripke semantics wherein statements about whether a strategy or a belief of a player is rational are initially indeterminate i.e. neither true, nor false. As a corollary, we show that in a mixed Nash equilibrium, the knowledge structure of a player implies that probabilities must verify the standard “Born rule” postulate of QM. The puzzling “indifference condition” wherein each player must be rationally indifferent between all the pure actions of the support of his equilibrium strategy is resolved by his state of mind being described by a “quantum superposition” prior a player is asked to make a definite choice in a “measurement”. Finally, these results demonstrate that there is an intrinsic limitation to the predictions of game theory, on a par with the “irreducible randomness” of quantum physics. (shrink)

How should scarce healthcare resources be distributed? This is a contentious issue that became especially pressing during the pandemic. It is often emphasised that studies exploring public views about this question provide valuable input to the issue of healthcare priority setting. While there has been a vast number of such studies it is rarely articulated, more specifically, what the results from these studies would mean for the justification of principles for priority setting. On the one hand, it seems unreasonable that (...) public values would straightforwardly decide the ethical question of how resources should be distributed. On the other hand, in a democratic society, it seems equally unreasonable that they would be considered irrelevant for this question. In this paper we draw on the notion of reflective equilibrium and discuss the relevance and roles that empirical studies may plausibly have for justification in priority setting ethics. We develop a framework for analysing how different kinds of empirical results may have different kinds of implications for justification. (shrink)

[Comment] I am sympathetic to Avner de Shalit’s position that a political philosophy should incorporate public values, but I see their role differently. Philosophers of science standardly distinguish between values being introduced in the context of discovery (inputs into the investigation or arguments) and in the context of justification (acceptance or rejection of substantive claims in light of the arguments or investigation). I argue that de Shalit is wrong to put the public values in the context of discovery; with respect (...) to normative theories (such as political theories), the values should be introduced in the context of justification. [Open access]. (shrink)

HLA Hart and Joseph Raz are usually interpreted as being fundamentally opposed to Lon Fuller’s argument in The Morality of Law that the principles of the rule of law are of moral value. Hart and Raz are thought to make the ‘instrumental objection’, which says that these principles are of no moral value because they are actually principles derived from reflection on how to best allow the law to guide behaviour. Recently, many theorists have come to Fuller’s defence (...) against Hart and Raz, refuting the ‘instrumental objection’ and affirming the non-instrumental moral value of conformity to the principles of legality. This article argues that although this moral value should be affirmed, the orthodox view is incorrect, because Hart and Raz never understood their arguments about the instrumental or ‘purposive’ value of the principles of legality as denials of their moral value, as a close reading of their work shows. (shrink)