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About the Author: John Rawls, who is now Professor of Philosophy Emeritus at Harvard University, is one of the major moral and political philosophers of the twentieth century. His A Theory of Justice (1971) set the stage for an entire generation of thinkers in their discussions of justice as fairness. His most recent book is Political Liberalism (1993)
About the Article: Rawls draws a crucial distinction between (1) justifying a practice or institution and (2) justifying particular actions that fall under it. He then applies this distinction to the question of how we justify punishment. He argues that utilitarian considerations justify the institution of punishment as a whole, while retributivist concerns dictate and justify the decision to punishment particular crimes in particular ways. He then shows why utilitarian justifications of punishment as a institution are not open to the kinds of abuses some critics of utilitarianism have alleged.
As You Read, Consider This:
TWO CONCEPTS OF RULES
*From "Two Concepts of Rules" by John Rawls, The Philosophical Review, Vol. 64 (1955), pp. 3 13. Reprinted by permission of the author.
This is a revision of a paper given at the Harvard Philosophy Club on April 30, 1954.
In this paper I want to show the importance of the distinction between justifying a practice1 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. While the distinction has frequently been made,2 and is now becoming commonplace, there remains the task of explaining the tendency either to overlook it altogether, or to fail to appreciate its importance.
To show the importance of the distinction I am going to defend utilitarianism against those objections which have traditionally been made against it in connection with punishment . I hope to show that if one uses the distinction in question then one can state utilitarianism in a way which makes it a much better explication of our considered moral judgments than these traditional objections would seem to admit.3 Thus the importance of the dis- tinction is shown by the way it strengthens the utilitarian view regardless of whether that view is completely defensible or not.
To explain how the significance of the distinction may be overlooked, I am going to discuss two conceptions of rules. One of these conceptions conceals the importance of distinguishing between the justification of a rule or practice and the justification of a particular action falling under it. The other conception makes it clear why this distinction must be made and what is its logical basis.
The subject of punishment, in the sense of attaching legal penalties to the violation of legal rules, has always' been a troubling moral question.4 The trouble about it has not been that people disagree as to whether or not punishment is justifiable. Most people have held that, freed from certain abuses, it is an acceptable institution. Only a few have rejected punishment entirely, which is rather surprising when one considers all that can be said against it. The difficulty is with the justification of punishment: various arguments for it have been given by moral philoso- phers, but so far none of them has won any sort of general acceptance; no justification is without those who detest it. I hope to show that the use of the aforementioned distinction enables one to state the utilitarian view in a way which allows for the sound points of its critics.
For our purposes we may say that there are two justifications of punishment. What we may call the retributive view is that punishment is justified on the grounds that wrongdoing merits punishment. It is morally fitting that a person who does wrong should suffer in proportion to his wrongdoing. That a criminal should be punished follows from his guilt, and the severity of the appropriate punishment depends on the depravity of his act. The state of affairs where a wrongdoer suffers punishment is morally better than the state of affairs where he does not, and it is better irrespective of any of the consequences of punishing him.
What we may call the utilitarian view holds that on the principle that bygones are bygones and that only future consequences are material to present decisions, punishment is justifiable only by reference to the probable consequences of maintaining it as one of the devices of the social order. Wrongs committed in the past are, as such, not relevant considerations for deciding what to do. If punishment can be shown to promote effectively the interest of society it is justifiable, otherwise it is not.
I have stated these two competing views very roughly to make one feel the conflict between them: one feels the force of both arguments and one wonders how they can be reconciled. From my introductory remarks it is obvious that the resolution which I am going to propose is that in this case one must distinguish between justifying a practice as a system of rules to be applied and enforced, and justifying a particular action which falls under these rules; utilitarian arguments are appropriate with regard to questions about practices, while retributive arguments fit the application of particular rules to particular cases.
We might try to get clear about this distinction by imagining how a father might answer the question of his son. Suppose the son asks, "Why was J put in jail yesterday?" The father answers, "Because he robbed the bank at B. He was duly tried and found guilty. That's why he was put in jail yesterday." But suppose the son had asked a different question, namely, "Why do people put other people in jail?" Then the father might answer, "To protect good people from bad people" or "To stop people from doing things that would make it uneasy for all of us; for otherwise we wouldn't be able to go to bed at night and sleep in peace." There are two very different questions here. One question emphasizes the proper name: It asks why J was punished rather than someone else, or it asks what he was punished for. The other question asks why we have the institution of punishment: Why do people punish one another rather than, say, always forgiving one another?
Thus the father says in effect that a particular man is punished, rather than some other man, because he is guilty, and he is guilty because he broke the law (past tense). In his case the law looks back, the judge looks back, the jury looks back, and a penalty is visited upon him for something he did. That a man is to be punished, and what his punishment is to be, is settled by its being shown that he broke the law and that the law assigns that penalty for the violation of it.
On the other hand we have the institution of punishment itself, and recommend and accept various changes in it, because it is thought by the (ideal) legislator and by those to whom the law applies that, as a part of a system of law impartially applied from case to case arising under it, it will have the consequence, in the long run, of furthering the interests of society.
One can say, then, that the judge and the legislator stand in different positions and look in different directions: one to the past, the other to the future. The justification of what the judge does, qua judge, sounds like the retributive view; the justification of what the (ideal) legislator does, qua legislator, sounds like the utilitarian view. Thus both views have a point (this is as it should be since intelligent and sensitive persons have been on both sides of the argument); and one's initial confusion disappears once one sees that these views apply to persons holding different offices with different duties, and situated differently with respect to the system of rules that make up the criminal law.5
One might say, however, that the utilitarian view is more fundamental since it applies to a more fundamental office, for the judge carries out the legislator's will so far as he can determine it. Once the legislator decides to have laws and to assign penalties for their violation (as things are there must be both the law and the penalty) an institution is set up which involves a retributive conception of particular cases. It is part of the concept of the criminal law as a system of rules that the application and enforcement of these rules in particular cases should be justifiable by arguments of a retributive character. The decision whether or not to use law rather than some other mechanism of social control, and the decision as to what laws to have and what penalties to assign, may be settled by utilitarian arguments; but if one decides to have laws then one has decided on something whose working in particular cases is retributive in form.6
The answer, then, to the confusion engendered by the two views of punishment is quite simple: One distinguishes two offices, that of the judge and that of the legislator, and one distinguishes their different stations with respect to the system of rules which make up the law; and then one notes that the different sorts of considerations which would usually be offered as reasons for what is done under the cover of these offices can be paired off with the competing justifications of punishment. One reconciles the two views by the time-honored device of making them apply to different situations.
But can it really be this simple? Well, this answer allows for the apparent intent of each side. Does a person who advocates the retributive view necessarily advocate, as an institution, legal machinery whose essential purpose is to set up and preserve a correspondence between moral turpitude and suffering? Surely not.7 What retributionists have rightly insisted upon is that no man can be punished unless he is guilty, that is, unless he has broken the law. Their fundamental criticism of the utilitarian account is that, as they interpret it, it sanctions an innocent person's being punished (if one may call it that) for the benefit of society.
On the other hand, utilitarians agree that punishment is to be inflicted only for the violation of law. They regard this much as understood from the concept of punishment itself.8 The point of the utilitarian account concerns the institution as a system of rules: utilitarianism seeks to limit its use by declaring it justifiable only if it can be shown to foster effectively the good of society. Historically it is a protest against the indiscriminate and ineffective use of the criminal law.9 It seeks to dissuade us from assigning to penal institutions the improper, if not sacrilegious, task of matching suffering with moral turpitude. Like others, utilitarians want penal institutions de- signed so that, as far as humanly possible, only those who break the law run afoul of it. They hold that no official should have discretionary power to inflict penalties whenever he thinks it for the benefit of society; for on utilitarian grounds an institution granting such power could not be justified.10
The suggested way of reconciling the retributive and the utilitarian justifications of punishment seems to account for what both sides have wanted to say. There are, however, two further questions which arise, and I shall devote the remainder of this section to them.
First, will not a difference of opinion as to the proper criterion of just law make the proposed reconciliation unacceptable to retributionists? Will they not question whether, if the utilitarian principle is used as the criterion, it follows that those who have broken the law are guilty in a way which satisfies their demand that those punished deserve to be punished? To answer this difficulty, suppose that the rules of the criminal law are justified on utilitarian grounds (it is only for laws that meet his criterion that the utilitarian can be held responsible). Then it follows that the actions which the criminal law specifies as offenses are such that, if they were tolerated, terror and alarm would spread in society. Consequently, retributionists can only deny that those who are punished deserve to be punished if they deny that such actions are wrong. This they will not want to do.
The second question is whether utilitarianism doesn't justify too much. One pictures it as an engine of justification which, if consistently adopted, could be used to justify cruel and arbitrary institutions. Retributionists may be supposed to concede that utilitarians intend to reform the law and to make it more humane; that utilitarians do not wish to justify any such thing as punishment of the innocent; and that utilitarians may appeal to the fact that punishment presupposes guilt in the sense that by punishment one understands an institution attaching penalties to the infraction of legal rules, and therefore that it is logically absurd to suppose that utilitarians in justifying punishment might also have justified punishment (if we may call it that) of the innocent. The real question, however, is whether the utilitarian, in justifying punishment, hasn't used arguments which commit him to accepting the infliction of suffering on innocent persons if it is for the good of society (whether or not one calls this punishment). More generally, isn't the utilitarian committed in principle to accepting many practices which he, as a morally sensitive person, wouldn't want to accept? Retributionists are inclined to hold that there is no way to stop the utilitarian principle from justifying too much except by adding to it a principle which distributes certain rights to individuals. Then the amended criterion is not the greatest benefit of society simpliciter [simply], but the greatest benefit of society subject to the constraint that no one's rights may be violated. Now while I think that the classical utilitarians proposed a criterion of this more complicated sort, I do not want to argue that point here.11 What I want to show is that there is another way of preventing the utilitarian principle from justifying too much, or at least of making it much less likely to do so: namely, by stating utilitarianism in a way which accounts for the distinction between the justification of an institution and the justification of a particular action failing under it.
I begin by defining the institution of punishment as follows: a person is said to suffer punishment whenever he is legally deprived of some of the normal rights of a citizen on the ground that he has violated a rule of law, the violation having been established by trial according to the due process of law, provided that the deprivation is carried out by the recognized legal authorities of the state, that the rule of law clearly specifies both the offense and the attached penalty, that the courts construe statutes strictly, and that the statute was on the books prior to the time of the offense.12 This definition specifies what I shall understand by punishment. The question is whether utilitarian arguments may be found to justify institutions widely different from this and such as one would find cruel and arbitrary.
This question is best answered, I think, by taking up a particular accusation. Consider the following from Carritt:
...the utilitarian must hold that we are justified in inflicting pain always and only to prevent worse pain or bring about greater happiness. This, then, is all we need to consider in so-called punishment, which must be purely preventive. But if some kind of very cruel crime becomes common, and none of the criminals can be caught, it might be highly expedient, as an example, to hang an innocent man, if a charge against him could be so framed that he were universally thought guilty; indeed this would only fail to be an ideal instance of utilitarian 'punishment' because the victim himself would not have been so likely as a real felon to commit such a crime in the future; in all other respects it would be perfectly deterrent and therefore felicific.13 Carritt is trying to show that there are occasions when a utilitarian argument would justify taking an action which would be generally condemned; and thus that utilitarianism justifies too much. But the failure of Carritt's argument lies in the fact that he makes no distinction between the justification of the general system of rules which constitutes penal institutions and the justification of particular applications of these rules to particular cases by the various officials whose job it is to administer them. This becomes perfectly clear when one asks who the "we are of whom Carritt speaks. Who is this who has a sort of absolute authority on particular occasions to decide that an innocent man shall be "punished" if everyone can be convinced that he is guilty? Is this person the legislator, or the judge, or the body of private citizens, or what? It is utterly crucial to know who is to decide such matters, and by what au- thority, for all of this must be written into the rules of the institution. Until one knows these things one doesn't know what the institution is whose justification is being challenged; and as the utilitarian principle applies to the institution one doesn't know whether it is justifiable on utilitarian grounds or not. Once this is understood it is clear what the countermove to Carritt's argument is. One must describe more carefully what the institution is which his example suggests, and then ask oneself whether or not it is likely that having this institution would be for the benefit of society in the long run. One must not content oneself with the vague thought that, when it's a question of this case, it would be a good thing if somebody did something even if an innocent person were to suffer.
Try to imagine, then, an institution (which we may call "telishment") which is such that the officials set up by it have authority to arrange a trial for the condemnation of an innocent man whenever they are of the opinion that doing so would be in the best interests of society. The discretion of officials is limited, however, by the rule that they may not condemn an innocent man to undergo such an ordeal unless there is, at the time, a wave of offenses similar to that with which they charge him and telish him for. We may imagine that the officials having the discretionary authority are the judges of the higher courts in consultation with the chief of police, the minister of justice, and a committee of the legislature.
Once one realizes that one is involved in setting up an institution, one sees that the hazards are very great. For example, what check is there on the officials? How is one to tell whether or not their actions are authorized? How is one to limit the risks involved in allowing such systematic deception? How is one to avoid giving anything short of complete discretion to the authorities to telish anyone they like? In addition to these considerations, it is obvious that people will come to have a very different attitude towards their penal system when telishment is adjoined to it. They will be uncertain as to whether a convicted man has been punished or telished. They will wonder whether or not they should feel sorry for him. They will wonder whether the same fate won't at any time fall on them. If one pictures how such an institution would actually work, and the enormous risks involved in it, it seems clear that it would serve no useful purpose. A utilitarian justification for this institution is most unlikely.
It happens in general that as one drops off the defining features of punishment one ends up with an institution whose utilitarian justification is highly doubtful. One reason for this is that punishment works like a kind of price system: By altering the prices one has to pay for the performance of actions, it supplies a motive for avoiding some actions and doing others. The defining features are essential if punishment is to work in this way; so that an institution which lacks these features, for example, an institution which is set up to "punish" the innocent, is likely to have about as much point as a price system (if one may call it that) where the prices of things change at random from day to day and one learns the price of something after one has agreed to buy it.14
If one is careful to apply the utilitarian principle to the institution which is to authorize particular actions, then there is less danger of its justifying too much. Carritt's example gains plausibility by its indefiniteness and by its concentration on the particular case. His argument will only hold if it can be shown that there are utilitarian arguments which justify an institution whose publicly ascertainable offices and powers are such as to permit officials to exercise that kind of discretion in particular cases. But the requirement of having to build the arbitrary features of the particular decision into the institutional practice makes the justification much less likely to go through.
1 I use the word "practice"
throughout as a sort of technical term meaning any form of
activity specified by a system of rules which defines offices,
roles, moves, penalties, defenses, and so on, and which gives the
activity its structure. As examples one may think of games and
rituals, trials and parliaments.
2 The distinction is central to Hume's discussion of justice in A Treatise of Human Nature, bk. III, pt. ii, esp. secs. 2-4. It is clearly stated by John Austin in the second lecture of Lectures on Jurisprudence (4th ed.; London, 1873), I, 116ff. (1st ed., 1832). Also it may be argued that J. S. Mill took it for granted in Utilitarianism,on this point cf. J. 0. Urmson, "The Interpretation of the Moral Philosophy of J. S. Mill," Philosophical Quarterly, vol. III (1953). In addition to the arguments given by Urmson there are several clear statements of the distinction in A System of Logic (8th ed.; London, 1872), bk. VI, ch. xii pars. 2, 3, 7. The distinction is fundamental to J. D. Mabbott's important paper, "Punishment," Mind, n.s., vol. XLVIII (April, 1939). More recently the distinction has been stated with particular emphasis by S. E. Toulmin in The Place of Reason in Ethics (Cambridge, 1950), see esp. ch. xi, where it plays a major part in his account of moral reasoning. Toulmin doesn't explain the basis of the distinction, nor how one might overlook its importance, as I try to in this paper, and in my review of this book (Philosophical Review, vol. LX [October, 195 I]), as some of my criticisms show, I failed to understand the force of it. See also H. D. Aiken, "The Levels of Moral Discourse," Ethics, vol. LXII (1952), A. M. Quinton, "Punishment," Analysis, vol. XIV (June, 1954), and P. H. Nowell-Smith, Ethics (London, 1954), pp. 236-239, 271-273.
3 On the concept of explication see the author's paper Philosophical Review, vol. LX (April, 1951).
4 While this paper was being revised, Quinton's appeared; footnote 2 supra. There are several respects in which my remarks are similar to his. Yet as I consider some further questions and rely on somewhat different arguments, I have retained the discussion of punishment and promises together as two test cases for utilitarianism.
5 Note the fact that different sorts of arguments are suited to different offices. One way of taking the differences between ethical theories is to regard them as accounts of the reasons expected in different offices.
6 In this connection see Mabbott, op. cit., pp. 163-164.
7 On this point see Sir David Ross, The Right and the Good (Oxford, 1930), pp. 57-60.
8 See Hobbes's definition of punishment in Leviathan, ch. xxviii; and Bentham's definition in The Principle of Morals and Legislation, ch. xii, par. 36, ch. xv, par. 28, and in The Rationale of Punishment, (London, 1830), bk. I, ch. i. They could agree with Bradley that: "Punishment is punishment only when it is deserved. We pay the penalty, because we owe it, and for no other reason; and if punishment is inflicted for any other reason whatever than because it is merited by wrong, it is a gross immorality, a crying injustice, an abominable crime, and not what it pretends to be." Ethical Studies (2nd ed.; Oxford, 1927), pp. 26-27. Certainly by definition it isn't what it pretends to be. The innocent can only be punished by mistake; deliberate "punishment" of the innocent necessarily involves fraud.
9 Cf. Leon Radzinowicz, A History of English Criminal Law.- The Movement for Reform 1750-1833 (London, 1948), esp. ch. xi on Bentham.
10 Bentham discusses how corresponding to a punitory provision of a criminal law there is another provision which stands to it as an antagonist and which needs a name as much as the punitory. He calls it, as one might expect, the anaetiosostic, and of it he says: "The punishment of guilt is the object of the former one: the preservation of innocence that of the latter." In the same connection he asserts that it is never thought fit to give the judge the option of deciding whether a thief (that is, a person whom he believes to be a thief, for the judge's belief is what the question must always turn upon) should hang or not, and so the law writes the provision: "The judge shall not cause a thief to be hanged unless he have been duly convicted and sentenced in course of law" (The Limits of Jurisprudence Defined, ed. C. W. Everett [New York, 1945], pp. 238-239).
11 By the classical utilitarians I understand Hobbes, Hume, Bentham, J. S. Mill, and Sidgwick.
12 All these features of punishment are mentioned by Hobbes; cf. Leviathan, ch. xxviii.
13 Ethical and Political Thinking (Oxford, 1947), p. 65.
14 The analogy with the price system suggests an answer to the question how utilitarian considerations insure that punishment is proportional to the offense. It is interesting to note that Sir David Ross, after making the distinction between justifying a penal law and justifying a particular application of it, and after stating that utilitarian considerations have a large place in determining the former, still holds back from accepting the utilitarian justification of punishment on the grounds that justice requires that punishment be proportional to the offense, and that utilitarianism is unable to account for this. Cf. The Right and the Good, pp. 61-62. I do not claim that utilitarianism can account for this requirement as Sir David might wish, but it happens, nevertheless, that if utilitarian considerations are followed penalties will be proportional to offenses in this sense: the order of offenses according to seriousness can be paired off with the order of penalties according to severity. Also the absolute level of penalties will be as low as possible. This follows from the assumption that people are rational (i.e., that they are able to take into account the "prices" the state puts on actions), the utilitarian rule that a penal system should provide a motive for preferring the less serious offense, and the principle that punishment as such is an evil. All this was carefully worked out by Bentham in The Principles of Morals and Legislation, chs. xiii-xv.