Between Facts and Norms - Contributions to a ... - Blogs Unpad

59The Sociology of Law vs. the Philosophy of justiceargumentation, we are not dealing with the problem of applying atheory presupposed as valid. We face rather the question of how thenormative concept of a well-ordered society can be situated in thecontext of an existing political culture and public sphere in such away that it will in fact meet with approval on the part of citizenswilling to reach an understanding. In this context, the concept of"reflective equilibrium" assumes an ambiguous role, one Rawlshimself has not sufficiently differentiated.The term "reflective equilibrium" designates a method that isalready supposed to work at the stage of theory construction. Thereit refers to the procedure characteristic of reconstructive theoriesin general: one draws on a sample of exemplary expressions withthe purpose of explicating the intuitive knowledge that subjects useto generate these expressions. The procedure of rational reconstructionassumes a different role at the second stage, where thetheory of justice refers reflexively to the context in which it shouldbe embedded. Here the point is to explain how and why itstheoretical propositions merely articulate the normative substanceof the most trustworthy intuitions of our everyday political practice,as well as the substance of the best traditions of our political culture.By demonstrating that the principles ofjustice reflect only the mostreasonable convictions actually held by the population, the theoryof justice is supposed to find its "seat" in political life: "The aim ofpolitical philosophy, when it presents itself in the public culture ofa democratic society, is to articulate and to make explicit thoseshared notions and principles thought to be already latent incommon sense; or, as is often the case, if common sense is hesitantand uncertain, to propose to it certain conceptions and principlescongenial to its most essential convictions and historical traditions."26In the course of the seventies, Rawls weakened the stronguniversalist claim to justification for his theory ofjustice. This hassomewhat blurred the different meanings of his appeal to our bestnormative intuitions: on the one hand, in the context of thetheory's justification before philosophical experts and, on the otherhand, in the context of the public defense of, and the politicaladvocacy for, the theory before citizens of an actual community.The more Rawls believes he should base the theory ofjustice on thepublic support for culturally molded intuitions that none "of us"