Svein Eng

In order to determine whether two participants in a discussion are in real dis/agreement, one must compare their propositions. Comparison presupposes yardsticks in common. Analysis of Dis/agreement thematises such yardsticks, in that it demonstrates the existence, content and factual significance of a relatively well-delimited set of proposition types and proposition patterns, with their accompanying tenability criteria and motivating interests. The book is a work in the field of legal theory by virtue of its demonstrating how lawyers' power of judgement is constituted in and through these yardsticks. The book is interdisciplinary by virtue of its demonstrating how the same yardsticks come into play more generally in argumentation formulated in everyday language, i.e. independently of law. And the book is a work in the field of philosophy by virtue of its demonstrating the existence and factual significance of language and argumentation actions with a certain independence in relation to the level of controversial fundamental philosophical positions.

In A Theory of Justice (1971), John Rawls introduces the concept of “reflective equilibrium.” Although there are innumerable references to and discussions of this concept in the literature, there is, to the present author's knowledge, no discussion of the most important question: Why reflective equilibrium? In particular, the question arises: Is the method of reflective equilibrium applicable to the choice of this method itself? Rawls's drawing of parallels between Kant's moral theory and his own suggests that his concept of “reflective equilibrium” is on a par with Kant's concept of “transcendental deduction.” Treating these two approaches to justification as paradigmatic, I consider their respective merits in meeting the reflexive challenge, i.e., in offering a justification for choice of mode of justification. My enquiry into this topic comprises three parts. In this first part, I raise the issue of the reflexivity of justification and question whether the reflexive challenge can be met within the framework of A Theory of Justice.

In A Theory of Justice (1971), John Rawls introduces the concept of “reflective equilibrium.” Although there are innumerable references to and discussions of this concept in the literature, there is, to the present author's knowledge, no discussion of the most important question: Why reflective equilibrium? In particular, the question arises: Is the method of reflective equilibrium applicable to the choice of this method itself? Rawls's drawing of parallels between Kant's moral theory and his own suggests that his concept of “reflective equilibrium” is on a par with Kant's concept of “transcendental deduction.” Treating these two approaches to justification as paradigmatic, I consider their respective merits in meeting the reflexive challenge, i.e., in offering a justification for choice of mode of justification. My enquiry into this topic comprises three parts. In the first part (Eng 2014a), I raised the issue of the reflexivity of justification and questioned whether the reflexive challenge can be met within the framework of A Theory of Justice. In this second part, I shall outline a Kantian approach that represents a paradigmatic alternative to Rawls

According to the received opinion there is a theoretical incompatibility between Herbert Hart's The Concept of Law and Alf Ross's On Law and Justice, and, according to the received opinion, it stems above all from Hart's emphasis on the internal point of view. The present paper argues that this reading is mistaken. The Concept of Law does not go beyond On Law and Justice in so far as both present arguments to the effect that law is based on a shared understanding between participants in a project perceived by every participant to be a project in common. The paper demonstrates that there are substantive parallels between Hart's combination of “acceptance” or “acknowledgement” and a “critical reflective attitude” and Ross's combination of “motivation” or “feeling” and a “coherent whole of meaning and motivation.” The main conclusion is that the views of norms and normativity put forward in The Concept of Law and On Law and Justice are very close in essential respects, and, more specifically, that the two works are at root identical in their representation of the basis of normativity in reality.

In A Theory of Justice (1971), John Rawls introduces the concept of “reflective equilibrium.” Although there are innumerable references to and discussions of this concept in the literature, there is, to the present author's knowledge, no discussion of the most important question: Why reflective equilibrium? In particular, the question arises: Is the method of reflective equilibrium applicable to the choice of this method itself? Rawls's drawing of parallels between Kant's moral theory and his own suggests that his concept of “reflective equilibrium” is on a par with Kant's concept of “transcendental deduction.” Treating these two approaches to justification as paradigmatic, I consider their respective merits in meeting the reflexive challenge, i.e., in offering a justification for choice of mode of justification. In the first part of this enquiry (Eng 2014a), I raised the issue of the reflexivity of justification and questioned whether the reflexive challenge can be met within the framework of A Theory of Justice. In the second part (Eng 2014b), I outlined a Kantian approach that represents a paradigmatic alternative to Rawls. In this third and final part, I shall argue that Rawls's reflective equilibrium cannot justify the choice of itself and that in the broader perspective thus necessitated, we cannot escape the metaphysical issues integral to the Kantian approach

The aim of this paper is to point out the salient patterns of agreement and dis‐ agreement between Alf Ross and Hans Kelsen's analyses of valid law and efficacy. I argue that the disagreement has the character of systemic postulation on the part of both interlocutors. My main thesis is that the disagreement is not one of philosophical principle, but one that must be resolved on the basis of pragmatic considerations, i.e., the choice between the two valid‐law schemes pertains neither to necessity nor to truth, but to expediency and values.

This paper investigates the actual use of truth as a criterion in the setting up of and choice between descriptive characterisations. The consideration for truth is often weighed against other considerations. This weighing character is illuminated through examples from everyday life, politics, law, and science. In everyday life the weighing character shows itself inter alia through the categories of ‘white lies’ and ‘great questions’, and in politics, inter alia through the categories of ‘personal character’ versus ‘the party’. In law there are numerous examples of norms that increase the probability of untrue characterisations being taken as a basis for the application of the law. This paper focuses on the categories of ‘exclusion of evidence’, ‘burden of proof’, and ‘adjusting of facts as a means to concretely reasonable and just results’. The paper concludes by showing that burden of proof considerations are also found in an area in which many people assume that the truth criterion is paramount, namely science. The method is thus casuistic. However, the aim is a certain representativity in relation to the problem aspects.

In this reply to Dahlman (2004), the focus is on aspects that I take to be of general interest. The point to be emphasised is the absence of a critically reflexive mode of questioning on the part of Dahlman and, in general, on the part of the position he represents, namely, an empiricist and logical paradigm of atemporal cognition and control. It is argued that lawyers’ thinking de lege lata—with its distinctive connection to normativity and morals, through the unity of the temporal and institutional dimensions in fused modality—can never be understood within such a framework.

I introduce the concept of ‘fused descriptive and normative proposition.’ I demonstrate that and how this concept has a basis in reality in lawyers' propositions de lege lata, and I point out that and why we do not find fused modality in language qua language, morals and the relationship between parents and children. The concept of ‘fused descriptive and normative proposition’ is of interest in a number of contexts, inter alia in relation to law, cf. the debate about the status of lawyers' propositions de lege lata (“exactly what kind of propositions are lawyers' propositions about what is the law?”), and in relation to philosophy, cf. the debate about the relationship between ‘the is‘ and ‘the ought.’ As a consequence of the reality basis and interest of this concept, I see the concepts of ‘descriptive proposition’ and ‘normative proposition’ as the extreme points on a graduated dimension, from the purely descriptive to the purely normative.