John Rawls: Two Concepts of Rules

3. Two Concepts of Rules

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In this section, I will summarise Rawls's essay, 'Two Concepts of Rules'. In Part I, he illustrates his thesis by considering a case of unjust punishment. In Part II, he examines the practice of promising. In Part III, he distils the lessons from the first two parts to formulate more formally the difference between the two ways of looking at rules. In his final part, he sums up with some concluding remarks.

Rawls [1955: 3] begins his essay by outlining its purpose:

I want to show the importance of the distinction between justifying a practice and justifying a particular action falling under it, and I want to explain the logical basis of this distinction and how it is possible to miss its significance.

Rawls brings out the distinction by considering two conceptions of rules. This distinction is not wholly new, though. He gives examples of how it is presumed by other major authors, including Hume, Austin, Mill, Mabbot and Toulmin. The importance of the distinction is illustrated in how it can be used to defend utilitarianism against objections centring on punishment and promise-keeping.

I – Punishment

In this first part of his essay, Rawls deals with supposed counterexamples to utilitarianism based on the unjust punishment of innocents. He has in mind here cases of the sort in which, in order to prevent future crimes of a very cruel kind, it becomes highly expedient to frame and hang an innocent man when none of the real criminals can be caught and the injustice can be hidden successfully from the public [1955: 10].

First, Rawls identifies two attempted justifications for punishment of legal wrongdoing. The retributive view justifies punishment on the grounds that it is morally fitting independently of any good consequences following from the punishment [1955: 4–5]. The utilitarian view, on the other hand, justifies punishment by looking to the future benefits to society through maintaining social order. In sum, utilitarianism justifies the practice of punishment while retributivism fits particular cases of wrongdoing to the general rules.

To illustrate the point, Rawls distinguishes between two types of questions:

  1. Why was a particular person put in jail?
    Answer: They committed a crime (this answer is backward looking).
  2. Why do people put other people in jail?
    Answer: To maintain peace (this answer is forward looking).

The apparent conflict of views disappears as the two questions are about two different and essential types of roles. In this case, these roles are:

  1. judge (looking back)
  2. legislator (looking forward)
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Utilitarianism justifies the institution of criminal law as a system of rules that enforces retributive punishment in particular cases of law-breaking [1955: 6–7]. Historically, the classical utilitarians advocated for the rule of law and objected to capricious legal judgments [1955: 8].

The retributionist can mount two objections here.

  • Objection 1: Utilitarianism may justify punishing the wrong behaviours.

  • Rawls's Answer: The retributionist agrees with the utilitarian that behaviours that spread terror and alarm throughout society deserved to be punished [1955: 8–9].

  • Objection 2: Utilitarianism justifies too much; that is, it justifies the framing and punishing of an innocent when it benefits society [1955: 9–10].

  • Rawls's Answer: Not if the utilitarian draws on the distinction between the justification of an institution and the justification of a particular action falling under it.

So, the utilitarian can define the institution of punishment as:

  1. "punishment" =df the legal deprivation of normal rights because of a violation of a rule of law
  2. the violation is established by trial according to due process
  3. the deprivation is carried out by the recognized legal authorities
  4. the rule of law clearly specifies both the offense and the attached penalty
  5. the courts construe statutes strictly and the statute was on the books prior to the offense [1955: 10]

Utilitarianism justifies the institution of punishment with specific roles. However, within this system, there is no role whose responsibilities include framing and punishing an innocent person that would survive utilitarian criticism and receive societal ascent.

Rawls [1955: 11–12] asks us to imagine an institution (called "telishment") designed and set up to frame and punish an innocent whenever it will benefit society, assigning such powers to various roles in parliament, law enforcement and the judiciary. It is unlikely such an institution will have utilitarian justification.

II – Promises

In this part, Rawls deals with cases of promise-keeping and promise-breaking. The objection to utilitarianism here is that it justifies the keeping of a promise only when it will lead to the best consequences [1955: 13].

A standard utilitarian defence to this objection is that breaking a promise diminishes the practice of promising and the general societal benefits that come with the practice.

Book cover: Foundations of Ethics by W. David Ross

David Ross has three objections to this kind of defence:

  • Objection 1: Even taking the diminishing of the utility of the practice into account, some promises would still be justified on utilitarian grounds.

  • Rawls considers Ross's argument unconvincing because it is low on specifics. However, Ross is right in that: 'For a general utilitarian defense is not open to the promisor: it is not one of the defenses allowed by the practice of making promises' [1955: 15].

  • Objection 2: The utilitarian appeal overestimates the damage to the practice of promise-keeping.

  • Rawls gives some prima facie weight to this objection.

  • Objection 3: The utilitarian appeal fails to account for the obligation where the promise is not public (for example, 'a promise a son makes to his dying father concerning the handling of the estate' [1955: 15]).

Rawls [1955: 16] points out that Ross's objections fail to make the distinction between the justification of the practice of promise-keeping and the justification of a particular act of promise-keeping. The utility of the practice of promise-keeping derives precisely from the promisor's abdication of utilitarian excuses. As Rawls [1955: 16] puts it:

But if one considers what the practice of promising is one will see, I think, that it is such as not to allow this sort of general discretion to the promisor. Indeed, the point of the practice is to abdicate one's title to act in accordance with utilitarian and prudential considerations in order that the future may be tied down and plans coordinated in advance. There are obvious utilitarian advantages in having a practice which denies to the promisor, as a defense, any general appeal to the utilitarian principle in accordance with which the practice itself may be justified.

Rawls likens the barring of utilitarian defences for breaking a promise to the barring of excuses for invalid game-play made by players in games such as chess and baseball. However, he does allow for promises to be broken in order to avoid extremely severe consequences. This excuse is allowed within the socially-mandated practice of promise-keeping.

A person breaking a promise with a general utilitarian excuse fails to understand what 'I promise' means. Pointing to this barring of general utilitarian excuses is how we teach children what it means to make a 'promise'. Nonetheless, every practice admits of defences for severe circumstances and these are not fully specified. However, the acceptance of these defences does not allow for general utilitarian calculations in ordinary cases.

III – Logical Status of Rules

In this part, Rawls expands on the difference between two concepts of rules that will illuminate the distinction between the justification of a practice and the justification of a particular action falling under it. He deals with the summary concept and the practice concept in turn.

1. Summary View: Rules are summaries of past direct applications of the utilitarian principle (induction from particulars).

Here, Rawls reviews the writings of Austin, Mill and Moore to conclude that they overtly espoused the summary view [1955: 19–21, f. n. 22]. However, in their writings and social advocacy, the classical utilitarians, in practice, applied the utilitarian principle to social institutions.

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Rawls [1955: 22] distinguishes four key features of the summary view:

  1. The point of using summary rules is to make decisions more quickly.
  2. Decisions on particular cases are 'logically prior' to the rule, meaning:

    1. a particular case 'may exist whether or not there is a rule covering that case'
    2. a particular case can be described as a particular case of a sort whether or not there is a rule regarding that sort of case
    3. A and B in the rule 'Whenever A do B' can be described whether or not there is the rule or practice

    Here, Rawls [1955: 22–3] gives the example of the summary rule of telling a lie to a fatally ill person to hide the seriousness of the illness.

  3. As rules are guides or 'rules of thumb' only, they are revisable in each instance.
  4. As a general rule, it is arrived at by estimating probabilities of outcomes in particular cases; that is, 'as a generalization from experience' and therefore given to exception [1955: 23–4].

2. Practice View: Rules define a practice set up to reduce confusion and coordinate social behaviour.

Rawls [1955: 25] explains the differences between this view and the summary view as these:

  1. The rules of a practice are logically prior to particular cases, meaning that there cannot be a particular case falling under a rule without a pre-existing practice.

    A practice defines offices, moves and offences (that is, penalties for a breach of rules).

    That a practice is 'logically prior' to particular cases means:

    1. an action/move falling under a rule cannot be described as that kind of action without the practice that defines it

    Here, Rawls gives the example of moves within the game of baseball. A player cannot 'steal base', 'strike out', 'draw a walk', and so on, without the rules of the game that define these moves.

    Rawls deals with the objection that a practice is not 'logically prior' as a practice presumes actual instances of actions falling under the practice by pointing out that an actual instance of an action still presupposes the practice [1955: 25–6, f. n. 23].

  2. To engage in a practice is to give up one's authority to question whether the rule applies in one's particular case. To raise a question is to misunderstand the practice.

    Here, Rawls [1955: 26] gives the example of the baseball batter asking, 'Can I have four strikes?', when the rules of baseball only allow three.

  3. and  4. The structure of a practice specifies its generality to particular cases. There is no 'exception' to a practice; rather a 'qualification' or 'further specification' of the rule [1955: 27].
Book cover: An Introduction to the Principles of Morals and Legislation by Jeremy Bentham

For Rawls, an action under a practice is explained or defended by referring to the rules of the practice and not by direct appeal to actual consequences of the action. (Question: 'Why are you in a hurry to pay him?' Answer: 'I promised to pay him today' [1955: 27]).

The summary view ignores the distinction between justifying a practice (defender) and justifying an action under a practice (office holder). On this view, there is only one 'office'; that of a 'rational person seeking case by case to realize the best on the whole' [1955: 28]. With no distinction between 'offices' on the summary view, there are no real 'offices'.

On the practice view, one's actions are justified by the specific 'office' one holds defined by the rules of the practice. Reformers question the practice from a different 'office' (for example, that of legislator).

Rawls revisits the case in which the promise is not public (a son's promise to his dying father on how to handle his estate). Here, the promiser steps out of his 'office' as promisor to consider utilitarian arguments for changing the rules for the practice of promising as they apply to promises made in private [1955: 28–9, f. n. 25].

Rawls [1955: 29] ends this section by stating three qualifications to what he has written in this essay:

  1. Not all rules are rules of practices. Some are maxims or 'rules of thumb'.
  2. There are yet other types of rules not considered in this essay.
  3. There are borderline cases between rules as summary and rules as practice.

IV – Summing Up

In this final part, Rawls [1955: 30–2] draws the various threads of his arguments together and makes some concluding remarks. He observes that philosophers have assumed uncritically the summary view of rules and missed the logical import of the distinction between justifying a practice and justifying an action governed by a practice.

Most importantly, a practice provides defined discretions by office holders (for example, a judge determining penalties), but it does not provide a general discretion to act on direct utilitarian grounds.

In particular, promising is a practice. Saying, 'I promise', is a performative act that commits the promiser to not use general utilitarian excuses to break the promise. Rules governing the practice of promising are not strictly codified, so there are variations in allowable defences. However, no practice governing promising allows for the general direct utilitarian excuse to break a promise.

For the practice of punishment, this practice defines the rights of citizens, laws, due process, trials, courts, and so on, 'none of which can exist outside the elaborate stage-setting of a legal system'. 'Punishment is a move in an elaborate legal game and presupposes the complex of practices which make up the legal order' [1955: 31].

Finally, Rawls emphasizes that his distinction between the two types of rules does not lead to social and political conservatism. Rawls's point is logical, leaving open the possibility of radical reformers challenging social practices. The import of the distinction he draws between the two concepts of rules is that it saves utilitarianism from several traditional objections.

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