With Rawls, we move to the second part of the course. We have been looking at a variety of views on the nature of law, especially concerning the relation between what the law is and what it ought to be. We will now focus on the latter question, specifically on philosophical issues that arise when considering the moral justification of various parts of the law. The paper by Rawls is one of two that focus on fundamental issues that arise in moral justification generally and, in particular, on the understanding of certain moral concepts. Rawls will always address a couple of special problems of justification; the one that is most important for our purposes is the justification of punishment. His paper is divided into four sections.

Assignment for Mon 10/18, sections I-II (pp. 3-18)

Rawls has one main concern throughout the paper, a certain sort of problem that can arise in applying utilitarianism to moral issues. The justification of punishment is a standard example of this and section I is devoted to it. A similar problem will arise with any justification in terms of what Dworkin would call policies or goals, so it will arise even for a non-utilitarian who wishes to justify punishment in terms of such goals as deterrence or rehabilitation or, more broadly, the good of the community. You should, of course, pay attention to the general points Rawls wishes to make using this example; but, for the purposes of the course, it is good also to think about the problem of justifying punishment for its own sake since it is an important aspect of justifying the law and this is the only point in the course when we will encounter it directly.

Section II considers another example, keeping promises, more briefly. This is another traditional problem for utilitarianism. Here it will probably be best to focus on the moral issue for its own sake; although the justification of contract law is in some ways analogous, the philosophical problems regarding that tend to be somewhat different (and we will consider some of them later in the course).

Assignment for Wed 10/20, sections III-IV (pp. 18-32)

The approach Rawls takes to the problem that arises in justifying punishment or the practice of promises on utilitarian grounds has come to be called "rule-utilitarianism," and the last two sections of the paper (the last section functions mainly as a summary and conclusion) look more closely at the difference between it and what is now called "act-utilitarianism." Part of the significance of this discussion for our purposes is that these are two important varieties of moral theory, and anyone considering moral justifications of anything needs to be conscious of their differences. To put this another way, if any aspect of the law is justified in terms of moral rules (and, for example, one way of justifying contract law is as a legal support for some parts of the practice of promising), it is important to understand the significance of those rules.

Rawls makes the distinction between the two sorts of utilitarianism by way of a distinction between two ways of thinking about rules. The second concept that Rawls considers, what he calls the "practice conception" of rules, is based on the idea that rule may serve to define a practice. Something like that idea lies behind Hart's idea of power-conferring rules but, while Rawls considers rules the define offices and their powers, he doesn't emphasize that function as much as Hart. The term "constitutive rule" (due to John Searle) is now often used to capture that broader range of uses that Rawls considers. (Searle uses the term "regulative rule" for what Hart calls a "duty-imposing rule"; but Rawls isn't concerned to distinguish two kinds of rules under his second conception so he doesn't have terminology for the distinction between constitutive and regulative.)