John Rawls on Two Concepts of Rules

Abstract

Over fifty years have passed since the publication of John Rawls’ paper ‘Two Concepts of Rules’ (1955). The paper remains a unique work. Rawls’ seminal ‘distinction between justifying a practice and justifying a particular action falling under it’ (1955: 3) provides us with a powerful analytic proposition that can have extensive theoretical and empirical consequences for the social sciences, as I seek to demonstrate below. In footnote 1 on page 3, Rawls states that ‘practice’ is a technical term that refers to ‘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.’ Rawls’ philosophical objective was to defend utilitarianism vis-à-vis ‘punishment and the obligations to keep promises.’ The general idea was to provide a clearer understanding of a rule regardless of whether or not it is defensible. The notion of two conceptions of rules is central to his discussion. I ask: can Rawls’ unique analytical notion of two concepts of rules be clarified by empirical research in the social sciences? I present some recent data from a criminal justice case to illustrate the notion’s potential and limitations. The empirical circumstances are somewhat dramatic. The case involved an allegation of inter-racial sexual molestation and two counts of Grand Theft. The sexual molestation allegation is a theme at the heart of deep-seated cultural tensions between Caucasians and African Americans that can be traced back to initial importation of slaves from Africa. The inter-racial sexual molestation allegation was documented in detail by two law-enforcement agencies but was never pursued. Once major consequence of this decision was to render empirically problematic the issue of when a case is said to fall under a rule of law.