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Wither Reflective Equilibrium

Some thoughts on Richard Posner's hastily sketched moral skepticism and Jon Mandle's reply centered on Rawlsian reflective equilibrium will be placed below the fold as meta-ethics is no longer really an area I work on.

I think that a more fleshed-out version of Posner's views (such as that provided in The Problematics of Moral and Legal Theory) can be made compatible with most of the insights of reflective equilibrium theory. The remaining issues regard the status of reflective equilibrium and its utility, rather than the validity of the basic account.

First to status. We face the world with a jumbled-up set of moral beliefs -- some strongly held views, some fairly vague principles, some issues we haven't thought about, and some questions where we have mixed feelings. From time to time, almost all of us are faced with a situation where we would like to come to some reasonably sharp conclusion about a moral issue we may not have strong antecedent convictions about. Rawls' reflective equilibrium puts itself forward as a good way of trying to reach conclusions in these cases. We start by looking at our strongly held convictions, and asking which of our somewhat vague principles seem relevant to them. Then we ask if it isn't possible to come up with sharper formulations of these principles, such that the sharp formulation still support our strongly held convictions. Reflection may prove that this is impossible, but that a given formulation supports most of what we deeply believe in, and supports something close to our other settled convictions. Once you have some sharp principles in hand, you can try to apply them to novel cases and to reach conclusions.

Importantly, nothing about the viability of this procedure really tells us anything one way or the other about moral skepticism. All it requires is that we not be skeptics about the possibility of doing inferences from broad principles to narrower conclusions. Rawls at times writes as if reflective equilibrium is supposed to be a defense of moral realism (in some sense) and certainly one could try and make this argument work. But you don't need to. You could take the root intuitions as having no special validity, and the procedure just as a way of crafting something more workable out of these root intuitions. You might think that the process is ill-motivated without a belief in objective moral rightness of some sort, but I think a reply is available. It just happens to be the case that (many) people are (often) bothered by the vagueness or apparent inconsistency of their beliefs and are therefore motivated to develop something more systematic. Hence, reflective equilibrium.

That's not an argument for moral skepticism, but it is an argument that reflective equilibrium is not something that, as such, leads us to any robust meta-ethical conclusions. Rawls comes close to this view -- call it meta-ethical agnosticism -- in Political Liberalism and it's implicit in some passages of Theory, though its converse is also implicit in some other passages. The ambiguity is well captured by the title of Rawls' first paper "Outline of a Decision Procedure for Ethics." On one level, this seems to be promising us a discovery procedure for moral truth. On another level, it's simply observing that people want to make up their minds, and that we're getting a procedure through which decisions might be made in the face of perplexment which persists irrespective of our meta-ethical views.

On to the utility of reflective equilibrium. Posner's main point is that this method is of limited usefullness in the face of moral disagreement. The only way two parties to a dispute are going to use reflective equilibirum such that one person can convince the other one (or that the two will agree on a third procedure) is if they already agree about a great deal. Unless there's an awful lot of overlap about core commitments and vague principles, the sort of reasoning Rawls advocates won't get you anywhere. Faced with serious disagreement about deep matters, you have basically two option -- you can fight, or you can bargain. Fighting, though sometimes necessary, is generally undesirable. Often, two parties can reach an agreement centered around some set of rules such that they both prefer following the rules rather than fighting. This, however, is negotiation, not genuine moral agreement. Posner takes all this to be a major flaw in Rawls' approach. It's not clear, however, that this is right. Reflective equilibrium is put forward primarily as a way for a person to argue with himself and reach decisions, not as a way for different people to reach consensus. Since I'm naturally enough going to agree with myself about most things -- even if I'm "of two minds" as the saying goes about others -- reflective equilibrium works well enough.

Posner, as a judge, is naturally geared to circumstances where people disagree. This is just a somewhat different orientation. One of the observations he makes in his aforementioned book -- and it's an observation I agree with -- is that in many cases you can reach policy agreement without achieving moral agreement. This is because moral disagreements are often pre-empted by facts from social or natural science. Famously, courses in normative ethics or political theory involve a lot of "stylized facts," where you stipulate this or that to motivate a purely moral dilemma. In the real world, this tends not to happen. You rarely get clear-cut, zero-sum tradeoffs between economic efficiency and the well-being of the poor. Ill-motivated wars of conquest are not pragmatically advisable, making ethical considerations somewhat obscure. A question like, "suppose you had to choose between pressing a button that wiped out the entire population of Africa, and a button that led everyone to survive, but dropped the world's median income to the current level observed in Africa" is an interesting one, but these issues do not, in practice, happen.

Hence, pragmatism has, as it were, a pragmatic justifcation. This remains the case whether or not (some) people find questions of moral truth interesting and worth debating.

December 29, 2004 | Permalink


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Academic ethicists often seem to think that sophisticated analysis of moral dilemmas has some practical value. Real moral dilemmas are rarely about conflicting moral imperatives; they are more likely to arise because a bully or a mob or an institution is pressing upon an individual a course of action at odds with the individual's idea of what is right or just, or just personally desirable. And, by the same token, when people do act in accord with ethical principles, rather than purely selfish desire and calculation, it is usually because some father-figure, membership group, or institution is pressing the individual toward that course.

Moral dilemmas or disputes are neither matters of individual reflection, nor matters of negotiation between contending parties. They are inextricably embedded with the individual's relationship to power, within society.

Posted by: Bruce Wilder | Dec 29, 2004 1:16:38 PM

What do you mean, "no longer really an area I work on"? Yesterday you were discussing fish consumption among medieval Norse wanderers. This is a blog, and you're a pundit. You contain multitudes. You work on every area of human endeavor, or at least of American domestic policy. I say, don't box yourself in - especially when you got yourself a degree related to that topic less than two years ago. Put it above the fold and declaim away.

Posted by: The Navigator | Dec 29, 2004 1:24:20 PM


You are describing "effect morality", while not addressing the actual cause of morality. I think that's what Matt Y. was attempting to do (although he lost me a bit). In other words, the question should be why does person A have their particular set of morals, and why does person B have theirs? Simply saying that person A's feathers are ruffled by person B pressing their own version of morality onto them tells us nothing.

A person's morality can, as you say, be pressed onto them by a father-figure, membership group, or institution, but that is, once again, saying nothing. The real question is: Why do the father-figure, membership group, or institution have the morals that they do? Furthermore, how can we peacefully inter-act with those who have different morals than ourselves?

Morals can have a hundred (or thousand) different sources: religion, secular philosophy, etc.

Posted by: Matt (not MY) | Dec 29, 2004 1:56:40 PM

I don't quite see how the issue of moral skepticism vs. moral realism, moral rationalism, moral intuitionism etc., etc. bears one way or another on the question of what is permissible legislation under American law.

We live in a constitutional democracy. There are constitutional prohibitions on the kinds of laws that can be enacted. If a legislative enactment is not constitutionally prohibited, then it is constitutionally permissible. A legislative majority is constititutionally empowered to enact laws for whatever purpose, or on the basis of whatever priinciples, happen to move the members of that majority, so long as that purpose is not constitutionally proscribed or limited.

Whether the principles involved are true or false, defensible or indefensible, superstitious or sober, eternal verities or projections of personal preference would seem to make no difference to the question of legal permissibility.

Posted by: Dan Kervick | Dec 29, 2004 1:57:04 PM

Please, please, please, Matt... use the correct word, "whither", if you mean "where goes?" instead of "shrivel and die". I try not to be a spelling nazi-- although the all-too-common misuse of "reign" for "rein" drives me crazy as well-- but this is a common mistake of yours in post titles, and it's a consistent enough one that I think it's not just a typo.

[end nitpicky rant]

Posted by: latts | Dec 29, 2004 2:00:28 PM

"Whether the principles involved are true or false, defensible or indefensible, superstitious or sober, eternal verities or projections of personal preference would seem to make no difference to the question of legal permissibility."

Wow. Um, doesn't this fly in the face of everything we supposedly stand for?

Posted by: Matt (not MY) | Dec 29, 2004 2:05:37 PM

Matt(not MY),

What do you mean?

Posted by: Dan Kervick | Dec 29, 2004 2:09:16 PM

I thought "Wither Reflective Equilibrium" was a witty summary of Posner's thesis? Though some punctuation might help: "Wither, Reflective Equilibrium!"

Posted by: Anderson | Dec 29, 2004 2:15:08 PM

"Um, doesn't this fly in the face of everything we supposedly stand for?"

Not unless you assume that only things we "stand for" can be legally permissible, and nothing else.

One of the things we are generally understood to "stand for" is the rule of law, and this of course constrains our actions, but does not fully constrain them. It is within that remaining discretion that we must seek to achieve the other things we "stand for", understanding that we don't necessarilly AGREE as to what all those things are.

Posted by: Brett Bellmore | Dec 29, 2004 3:30:16 PM

Dan & Brett,

Perhaps I've misunderstood what you are attempting to state/explain. What I take your meaning to be (and correct me if I'm mistaken) is that something's veracity or common sense doesn't factor into its legality.

Dan, you mentioned "superstitious or sober" principles making "no difference to the question of legal permissibility." On the contrary, if I feel as though homosexuality should be illegal, based upon my religious beliefs, that is not good enough reason to make it illegal, unless we're living in a theocracy, which we're not (at least, not yet). That would be an infringement on someone else's religious beliefs, or lack thereof. That's why we have separation of church & state. Concern over someone's soul, based upon an unprovable religious belief, is not the sort of thing to make law over.

Laws change over time, often with the changing of general morality. Slavery was considered moral for hundreds of years. That morality changed. Most of the time, laws are changed over the time in order to reflect a more reasoned form of thought and morality.

Now, if I've totally misunderstood what you were saying, and have expended finger energy by typing something that isn't remotely related to what you were getting at, then I apologize. If not, food for thought.

Take care.

Posted by: Matt (not MY) | Dec 29, 2004 3:55:30 PM

"What I take your meaning to be (and correct me if I'm mistaken) is that something's veracity or common sense doesn't factor into its legality."

Exactly. This is not to say that the legislature ought to be making policy based on irrational considerations. But that's not a legal consideration, IMO. It's something for the voters to address at the next election.

Posted by: Brett Bellmore | Dec 29, 2004 4:01:07 PM

The point being, I guess, that the judiciary isn't supposed to be a policy making institution, it's just supposed to be an umpire, enforcing rules crafted by others. Deciding whether a given policy is a good idea is an inherently legislative function.

Barring a constitutional amendment requiring laws to be logical, and based on empirically true beliefs, of course. ;)

Posted by: Brett Bellmore | Dec 29, 2004 4:08:15 PM

"Deciding whether a given policy is a good idea is an inherently legislative function."

Hmmm, interesting. So, do you disagree with the Brown v. Board of Education ruling? If we're talking about the judiciary, I guess I don't see where we've had any 'activist' judges lately (as they have been labeled by the president, etc.)

Things like racial segregation and denying gay marriage are clearly unconstitutional on a national level, given the wording of our Constitution and, on a less legal but still important level, the wording of our Declaration of Independence. This is why there is a conservative movement to add a Federal Marriage Amendment.

Of course, I've just picked two of the more obvious judicial decisions which have caused controversy, but yet we're not looking at the judiciary making policy or law, but rather enforcing it. Our Constitution is a beautiful document. The founding fathers really were brilliant men, ahead of their time. Ahead of this time, even.

Posted by: Matt (not MY) | Dec 29, 2004 4:26:40 PM

You can infer public policies from principles; but moral prudence, phronesis, is by cases. Instead of shaking out our principles in hopes of getting consistency, we should get used to their occasional but inexorable failure to gibe with each other: bickering siblings are for all that still siblings. Anyway the best we can hope for from a set of principles is an approximation, better or worse, to our considered judgment in individual cases. We might have learned, from Aristotle among others (if we didn't from the conduct of our lives), that those cases are so circumstantially ingrown that looking to principles or maxims or policy statements will miss the deciding details of the cases or leave us uncertain as to how exactly to apply the highfalutin watchword to the lowly particular. As for dilemmas, they are good for writing textbooks, but always put me in mind of Holmes's dictum that hard cases make bad law. Most of the time we know what to do in even the vexed textbook cases: divert that trolley so it kills fewer people, for example (though a rule generalized from that case could be a bad one). We get into trouble trying to deduce what to do from principles. Better to try to generalize the principles, if we must have them, from the cases with the understanding that much is lost in the generalization, so the resulting principles can have not the first or last but only _a_ word. Even in public policy, better to appeal to the project we've been working on these centuries by telling its story than argue that an agenda follows from, say, "life, liberty, and the pursuit of happiness" or "respect for persons" or (Heaven forbid) "ordered liberty". Bush's partial privatization of SS would have been a tough sell to Burke.

Posted by: Dabodius | Dec 29, 2004 4:43:14 PM

Matt, I'm basically with Brett Bellmore on all this.

It may be that a sound constitutional argument can be made that shows that laws prohibiting homosexual behavior are in fact unconstitutional. If so, it is legally impermissible, in the United States, to outlaw homosexual behavior. If, on the other hand, no such argument can be found, then it is not legally impermissible to outlaw homosexual behavior, and people are legally entitled to do so.

We want judges to decide questions of law. If law doesn't prohibit legislators from doing something, then judges are not legally empowered to use their power to prohibit them from doing it. Of course there may be other kinds of good reasons - moral ones, prudential ones - not to outlaw homosexuality. If that is the case, we should work to persuade a majority of our fellow citizens not to do it. Under our democratic system, that is the way we block constitutionally permissible legislation - through working the legislative process. We do not have tribunals of morality or tribunals of common sense empowered to strike down laws on extra-legal grounds.

You may be persuaded my some arguments in moral or political philosophy that outlawing homosexuality is wrong, in some non-legal sense of "wrong". You may believe it violates Christian principles of charity. Or you may be persuaded by some contractarian arguments to the effect that our society is implicitly committed to certain conventions or guiding principles against "legislating religious beliefs", and that even if we are constitutionally permitted to outlaw homosexual behavior, there is a tacit societal commitment to the effect that we shouldn't do so. You may be successful in persuading some other Americans to accept these contractarian arguments, and thus dissuade them from doing something they might otherwise do.

But this goes beyond the constitutionally established power of judges. It is the business of judges to decide what is legal and what is illegal - not to decide whether our society is or ought to be governed by certain extralegal conventions, tacit social contracts or eternal moral verities.

Now what actually is constitutional is obviously a very difficult issue, and constitutional legal doctrine evolves as judges make decisions on constitutional cases. I'm sure we would all disagree strenuously with many of these decisions, but as the decisions pile up they turn theoretical speculation into established constitutional doctrine. Some of those established doctrines give judges a great deal of latitude. For example, I believe it is established doctrine that where a "liberty interest" rather than a "fundamental right" is concerned, infringements of that interest must pass the test of reflecting a "legitimate governmental interest." In deciding such cases, judges are empowered to determine whether the proposed legislation does further some legitimate governmental interest, and that involves relying on some mix of precedent and common sense. But this space for the exercise of constrained and disciplined individual judgement is a a legally established power.

Posted by: Dan Kervick | Dec 29, 2004 6:27:27 PM

Soory about the italics. Off.

Posted by: Dan Kervick | Dec 29, 2004 6:28:11 PM

Wow, Dan.

It's going to take me awhile to respond to this, but let me just say that that's some really intelligent stuff you just wrote (even if I don't agree with all of it).

Interesting stuff. Thanks!

Posted by: Matt (not MY) | Dec 29, 2004 7:16:32 PM

Honest to goodness, I read thru MY's post looking to where Kervick and Bellmore found the stuff about judges making law, and failing, then checked the Posner piece, and I have yet to see it.

Help me out here, guys. I thought we were talking about methods of discourse and conflict resolution in public reason.

Posted by: bob mcmanus | Dec 29, 2004 7:54:24 PM

In case anyone cares, Rawls actually says explcitly that his view is (as MY puts it) meta-ethically agnostic in his paper, "Justice as Fairness: Political, not Metaphysical".

Posted by: Scott E. | Dec 29, 2004 8:46:53 PM


Here's the rationale for my initial comment:

Posner's target seems to be various liberal arguments to the effect that religion should not be allowed to influence public policy, because disagreements about religion are "nondiscussible", that is, not susceptible to resolution by rational argument.

Posner's point in raising the topic of morality seems to be, in part, to catch up liberals in an inconsistency by putting morality and religion in the same boat. His argument, partly implicit, seems to be this: "Liberals say religious beliefs shouldn't influence public policy because religion is a non-discussible matter of faith, preference, etc.; but morality is also a non-discussible matter of faith, preference, etc. Thus by their own lights, liberals should be committed to the view that morality should not be allowed to influence public policy; but they don't say this - instead liberals frequently give moral arguments in defense of public policy proposals. Hence there is something wrong with the liberal position."

Posner then offers his diagnosis of an underlying flaw in the liberal position. He says it rests on a misunderstanding of representative democracy. American democracy has nothing to do with whether the beliefs motivating legislation are discussible or non-discussible. It is a body of social practices concerned with such things as voting, representation and law-making, and imposes no intellectual or "discussibility" constraints on the legitimate reasons for the majority to turn its will into law.

My own inclination is to agree with Posner on this last point, but then to observe that this conclusion renders moot the questions of the "discussibility" of morality, moral skepticism, moral rationalism etc., since Posner's ultimate point is that it simply doesn't matter to the question of what is permissible under representative democracy whether morality, religion or any other body of beliefs informing legislation are discussible or not.

Matt's Y's posting, and a number of the comments here and at Crooked Tiber, seemed to me to be distracted by the issue of moral skepticism vs. moral objectivity, and by theories such as Rawls's purporting to explain how moral disputes are resolved, so as to miss Posner's main point.

Posted by: Dan Kervick | Dec 29, 2004 9:00:42 PM

"miss Posner's main point."

Or Posner's main purpose. Which is maybe providing support for Scalia's dissent in Lawrence? Is that what this is about?

Reread the Posner piece and it does seem to me to be more about Rawl's "Public Reason" if I have that right, which is a subject discussed at length in the blogosphere, most of which I have forgotten. I had presumed that Rawls might allow religious arguments to be used in Utah or the Vatican, the "Public Reason" had to do with the possibility of reaching consensus, compromise, and community and a liberal society needs a formally secular public discussion to be a liberal society. Ok. I am getting it. I think. As Matt says, a society split along the lines of opposing ontologies can only negotiate, and I doubt can come up with universally legitimate policy in matters in dispute.

Posner is saying the legitimacy is formal, based on rules for negotiation. That Scalia so seldom uses religion in his opinions leads me to believe Posner is wrong. Posner is smart; Scalia smarter.

Posted by: bob mcmanus | Dec 29, 2004 10:50:21 PM

Dan, in this you are spot on:

"My own inclination is to agree with Posner on this last point, but then to observe that this conclusion renders moot the questions of the "discussibility" of morality, moral skepticism, moral rationalism etc., since Posner's ultimate point is that it simply doesn't matter to the question of what is permissible under representative democracy whether morality, religion or any other body of beliefs informing legislation are discussible or not."

The point I hope Posner remembers is that constitutional courts often find themselves presented with basic moral attitudes which inform expressed legislative purpose. (e.g. "We hold these truths to be self-evident", "shall not establish any religion")

Burdened by a legislated morality, a court can't properly use non-Rawlsian unreason to uphold the Rawlsian product of a contrary morality.

Posted by: AlanDownunder | Jan 3, 2005 12:13:27 AM

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