ABSTRACT
A common objection to mixed theories is that they are not action-guiding, since either one theoretical approach must take priority over the other, making it no longer a mixed theory, or the two theories are equally weighty, meaning that conflicts between the two are settled arbitrarily. Chapter 11, “Jury Nullification and Reflective Equilibrium,” explains how the two-tiered model accommodates both consequentialism and retributivism, without choosing either horn of the dilemma. When lawmakers act justly, the legislative power strictly limits what a community can do to express its resentment. Using this method of narrow reflective equilibrium, we test and revise our specific intuitions and policies against some general theory of value that itself remains unchanged. When the legislature aims at unjust principles, makes bad calculations about what will accomplish its ends, or act retributively, judges and juries can check the power of the legislature. Jury nullification is an example of the community undergoing a process of wide reflective equilibrium, in which it tests general principles – in this case, legislative decisions that purport to advance the aims of justice – against our moral intuitions.
