Although this paper is one of the group we are reading that focus on fundamental issues in moral theory, Rawls also addresses specific examples concerning the application of this theory—in particular, regarding the justification of punishment.
His paper is divided into four sections. I have assigned only one page from the third of these, but you can find some discussion of its content below.
• 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 that issue. 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 more generally. It is an important aspect of justifying the law, and this is the only point in the course when we will encounter it directly. So ask yourself if and when punishment is justified and, when it is justified, how it is justified.
• Section II considers more briefly another example, the duty to keep promises. This is another traditional problem for utilitarianism. In this case, it will probably be best to focus on the moral issue without trying to make connections to the law; for, although the justification of contract law is in some ways analogous, the philosophical problems regarding that tend to be somewhat different, and we will look at them later in the course.
• The approach Rawls takes to the problems considered in the first two sections is similar to a view called “rule-utilitarianism.” Section III of the paper looks at the difference between this view and what is now called “act-utilitarianism” in more abstract and general terms. Rawls makes the distinction between the two sorts of utilitarianism by way of a distinction between two ways of thinking about rules. You’ve seen Dworkin refer to this distinction when distinguishing being bound by a rule from making something a rule (“The Model of Rules,” p. 30).
• Rawls calls the latter the “summary view” of rules. It is the view most appropriate for act-utilitarinism, the form of utilitarianism that evaluates specific acts on utilitarian grounds, because the rules described by this view amount to rules of thumb stating generalizations about the acts that maximize utility under given sorts of conditions. Such rules summarize the results utilitarian evaluation would yield when applied to the cases falling under the rule. Someone who employed such a rule of thumb would “make it a rule” (in Dworkin’s sense) to act in the way it indicated.
• The second view of rules, the “practice view,” describes rules that serve to define practices. As in the example of baseball that Rawls considers on p. 25, what Rawls calls “practices” only exist because of rules, so the sorts of actions that are part of the practice depend for their existence on the practice. Because of this priority of practices over actions, utilitarian evaluation is naturally applied to rules in the first instance to ask whether the practices they define serve to maximize utility; this is what rule-utilitarianism does. Actions are then mandated by rules rather than by direct utilitarian evaluation. In this case, Dworkin would speak of people taking those actions as being “bound by” the rule.
• Section IV of the paper functions mainly as a summary and conclusion in which Rawls notes how this distinction applies to the examples of punishment and promising that he considered in the first part of the paper. (His final footnote distinguishes the view he describes here from a full-fledged “rule-utilitarianism,” which would apply something like the practice conception to all moral issues.)