The Varieties of Normativity: an Essay On Social Ontology

II. Rawls and Rule-Utilitarianism

In 1955, at the beginning of his career, Rawls published an important article called “ Two Concepts of Rules”,[^7] a work which was unfortunately overshadowed by his laterA Theory of Justice, [^8] but which has nonetheless exerted some considerable influence along the way. It has been translated into numerous languages and it is a mainstay in anthologies dealing with moral philosophy. It consists of an attempt to defend utilitarianism against certain traditional objections relating to the alleged incapacity of utilitarians to deal with the institutions of the promise and of punishment, and to the widespread supposition that utilitarians must perforce allow on felicific grounds the occasional breaking of promises and the punishing of innocents.

Rawls’ defense of utilitarianism, which has become a commonplace in many philosophical circles, goes roughly as follows: utilitarianism should not be seen as a theory that seeks to maximize general welfare in every instance. Rather, it is a theory that seeks to devise general rules of behavior of a sort that wouldtend to maximize welfare. The idea is that, once the rules have been established, then they must be followed, even if violating rules on this or that occasion yielded a net increase in general welfare. It is then unlikely that human beings would ever endorse on felicific groundsrules that would authorize the breaking of promises or the punishment of innocents.

In this way Rawls draws the nowadays familiar distinction between act- and rule-utilitarianism, and this constitutes the first half of his article. It is however the somewhat neglected second half which is important for our purposes. Indeed, the distinction which occupies him in the first half Rawls himself considers to be rather obvious.[^9] What he considers not obvious is the existence of a certain ambiguity regarding the notion of a rule, as between what he calls summary rules and practice rules.

A summary rule is simply a guide for action, formulated on the basis of experience. For example, if upon encountering caustic persons in the past one has established that the best course of action has been to keep a low profile, one might decide on encountering a caustic person now that it is best to do the same. Summary rules are inductive. The decisions they are based upon are logically prior to the rules themselves.

Rawls’ practice rules, in contrast, are not inductive; they are not the result of such recollection of past events, and they are logically prior to the cases in which they are applied. An example of a practice rule would be the rules involved in games like baseball. Here the rules precede the game. What counts as a ‘run’ in baseball is not the result of looking back at what things have counted as ‘runs’ in past baseball games and then concluding: “well, this must also be a ‘run’”. Practice rules, rather, give rise to the very possibility that the cases in which they are applied can indeed occur. Thus they are not mere generalizations from past behavior. Practice rules define the very behavior which they at the same time permit. In chess, bishops move diagonally; the issue as to whether or not to move a bishop diagonally is not a genuine dilemma within the context of playing chess. If someone were to insist on moving his bishop non-diagonally, then he wouldeo ipso no longer be playing chess.

According to Rawls the rules of rule-utilitarianism are precisely practice rules. They are rules which define the very institutions they regulate. The normativity of rule utilitarianism, as Rawls conceives it, is the logical normativity of the system of propositions which describe institutions that rule-utilitarianism itself creates, such as promising and punishment. The State, for example, does not really have the option of whether or not to punish an innocent person, for punishing the innocent is logically forbidden by the very practice rule which sets up the institution of punishment itself.[^10] Deciding to punish an innocent person is analogous to deciding to move a bishop non-diagonally in chess. As Rawls would have it: “To engage in a practice, to perform those actions specified by a practice, means to follow the appropriate rules”.[^11]

On Rawls’ interpretation, then, the main difference between act- and rule-utilitarianism is not merely related to the issue of where to apply the welfare-maximizing measure (namely, to rules concerned with act-types rather than with act-tokens). Rather, rule-utilitarianism differs from act-utilitarianism in that it is alogical theory. In defending himself against charges that his view might be too conservative (insofar as he may be taken to blindly endorse the status quo of existing social institutions), Rawls states: “The point I have been making is rather a logical point”, and then he continues: “where a form of action is specified by a practice there is no justification possible of the particular action of a particular person save by reference to the practice”.[^12] Utilitarianism in the hands of Bentham and Mill is a moral theory concerned with the same substantial normative issues as are addressed by natural law theorists; Rawls transforms it into a logical doctrine.

Where in “Two Concepts of Rules” Rawls seeks to defend utilitarianism, inA Theory of Justice and other later works he seeks to develop a neo-Kantian theory of the justice of social institutions that is opposed to utilitarianism. Yet there is nonetheless a certain connecting thread between the two works, which is the importance Rawls gives to the logical structure of institutions. The emphasis on procedural and formal justice inA Theory of Justice [^13] can be seen as a reflection of the logicist leanings found in his early defense of utilitarianism. Focusing on Rawls’ concern with the logic of institutions allows us to see the two works within a single context, and it allows us also to see the challenge which Rawls faces: in transforming normativity as traditionally conceived into a matter of the logical consequences of rules of a certain type, rules which we adopt when we choose to engage in certain practices, Rawls (like Hart) makes questions like: “Why should we keep promises?” or “Why should we endorse a social order based on these or those principles?” of a piece with the question “Why should we play the game of chess rather than some other, slightly different game?” Let us turn now to Searle, and see how he seems to face a similar fate.