John Rawls: Two Concepts of Rules
4. In Retrospect
In this final section, I want to consider the legacy of Rawls's essay and its lasting impacts on the defensibility of utilitarianism as a moral theory. To begin with, I think Rawls's choice of practices to discuss was very prudent. His two choices span the entire spectrum of practices from the highly codified and complex practice of punishment within our legal systems to the relatively loose and unspecified rules governing promises. Lying parallel to, and entangled with, the uncodified end of the spectrum are those rules that Rawls points to as difficult to categorize as either a summary rule or a rule under a practice. Like all things in life and philosophy, nothing is easy.
A further complexity arising is that our social practices are a network of interlocking and overlapping systems, some of which can perhaps be organized into a hierarchy. So, for example, our criminal justice system consists in several sub-practices. These include law enforcement, legal representation, the courts and penal and rehabilitative systems. What characterizes each of these systems, drawing on Rawls's components, are the following:
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rules for behaviour (maximum driving speeds, treatment of the accused)
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roles (license holder, police, judge, jury member, witness)
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responsibilities (obtain licence, collect evidence, represent client)
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rewards and punishments (promotion, fine, imprisonment)
Rawls's insight is that the most defensible form of utilitarianism warrants these components of a social practice as a bundle. What I find most beneficial about Rawls's analysis is that it captures the deontological aspects of our moral rules. It explains concisely and precisely our intuitions condemning unjust acts that, nonetheless, on balance lead to more good than bad consequences, while at the same time explaining our allowance for excuses in extreme circumstances.
Even while explaining the deontological character of many of our rules, Rawls shows how this version of utilitarianism allows for, and even encourages, a reformist zeal against unjust social and political systems. And this reformist mindset has played out historically in the work of both classical and contemporary utilitarians. Campaigns driven by the utilitarian's fundamental principle of impartiality—that no one's interests ought to be discounted simply on the basis of their unchosen identity—have led to the substantial dismantling of racist, sexist, and homophobic practices in modern times. Currently, utilitarians are leading the charge begun by the classical utilitarians against the industrial level of cruelty found in our systems of food production.
A second benefit of utilitarian moral theory is that it explains the importance we place on moral character. Mill, for example, placed great emphasis on how repressive family and work institutions stunt the development of moral virtue and, consequently, the capacity for human happiness. (For an overview of Mill's approach, see, for example, Homiak [2019].) Turning back to Rawls, the institutions and practices that govern the education of our children, political enfranchisement and family relationships can either promote social goods or impoverish them. Applying Rawls's two concepts of rules, those social practices that build morally virtuous characters can also now be seen as obtaining their justification on utilitarian grounds.
Rawls identified a practice view of rules not recognized by act utilitarians. The particular form of rule utilitarianism that capitalizes on Rawls's insight has been labeled by Sinnott-Armstrong [2019] as public acceptance rule consequentialism. As this is a mouthful, I have been referring to this view as rules in practice utilitarianism. In places, Mill seems to have espoused this form of rule utilitarianism himself. In one place, he writes: 'For the truth is, that the idea of penal sanction, which is the essence of law, enters not only into the conception of injustice, but into that of any kind of wrong' [1861 (1962): ch. 5, 303]. Mill continues: 'When we call anything a person's right, we mean that he has a valid claim on society to protect him in the possession of it, either by the force of law, or by that of education and opinion' [1861 (1962): ch. 5, 309].
On a final note, I think it useful to consider how divergent the rules in practice utilitarianism that Rawls defended against objectors and his own social contractualism. I'm quite partial to Rawls's version of the social contract, with perhaps my only substantive concern being that it relegates our obligations to non-human sentient animals and to children to the status of indirect duties. I think there is a case to be made, though, that the rules agreed to by rational and informed persons deliberating behind Rawls's 'veil of ignorance' are co-extensive with that agreed to by a community of utilitarians. Whatever the case may be, we owe a great debt to Rawls originality and his essay remains as a landmark piece of work in moral philosophy.
