Download this publication - PULP

Theory, practice and the legal enterprise 377
circumstances of a case influence the way in which it is justified and the more
abstract principles and theory that result. Yet, abstract theory and higher level
principles also condition the way in which the concrete circumstances are
viewed. 37 This interplay between the concrete and the abstract is a
productive one and a decision is arrived at when congruence exists between
the different levels. The idea is less about a construction where one block is
built upon another; rather, it involves the notion of a network of intersecting
considerations that help justify a concrete decision.
This method of proceeding appears to be very similar to the method of
justification in political philosophy that John Rawls refers to as ‘reflective
equilibrium’. 38 This method requires us first to identify what Rawls terms
certain considered judgments about justice. These are judgments that are
arrived at by considering ‘what one thinks about the question at hand rather
than by consciously applying some principle or theory’. 39 Such judgments
are considered in the sense that they are arrived at under certain conditions:
For instance, individuals will be aware of relevant facts, they are not upset or
frightened, and do not stand to gain or lose by those judgments. 40 They are
also not arbitrary 41 and are stable over time. 42 Ultimately, these considered
judgments place constraints on the theory that we will develop. For instance,
if a moral theory leads to the result that slavery is just, we will rather give up
the theory than the considered judgment that slavery is unjust. Considered
judgments thus help to test theory. Yet, such judgments appear groundless
without some form of justification.
This leads to the desire to formulate certain general principles that can
account for the various judgments we make about concrete cases which
cohere together. In developing those principles, we will find that they do not
immediately capture all our considered judgments. The ambition would be to
obtain a set of principles that can adequately account for all our convictions. In
trying to achieve that ambition, we may formulate particular principles that
provide a compelling account of most of our considered judgments. Such
principles may, however, require us to give up some of these judgments that
are not consistent with the principles. On the other hand, certain considered
judgments may be so firmly held as to lead us to give up a particular set of
principles that cannot adequately account for them. ‘One is then to continue
in this way, working back and forth between principles and judgments, until
one reaches a set of principles and a set of judgments between which there is
no conflict. This state is what Rawls calls reflective equilibrium.’ 43
37 The order of priority is also not only from concrete to abstract as Woolman suggests at
3.
38 Rawls Theory of justice (1973) 47.
39 TM Scanlon ‘Rawls on justification’ in SR Freeman (ed) The Cambridge companion to Rawls
(2003) 143 - 144.
40 Rawls (n 38 above) 47 - 48.
41 Rawls (n 38 above) 48.
42
J Rawls Collected papers (2001) 6.
43 Scanlon (n 39 above) 141.