Analyzing Rawls Two Concepts Of Rules

In Rawls’ paper, “Two Concepts of Rules”, he sheds light on fact that a distinction between justifying a practice and actions that fall under said practice, must be made. This distinction, according to Rawls is crucial in the debate between Utilitarianism and Retributivism, more specifically in defending the Utilitarian view against common criticisms, which will be addressed further in this essay. This essay will be examining the troubling moral question that Rawls addresses; The subject of punishment, in the sense of attaching legal penalties to the violation of legal rules. Rawls acknowledges that most people hold the view that punishing, in broad terms, is an acceptable institution. However, there are difficulties involved with accepting

If punishment can be shown to promote effectively the interest of society, then it is justifiable, otherwise it is not. Seeing as the main characteristic of Utilitarianism is to maximize utility (i.e happiness/good), it consequently follows that punishment should be applied when it leads to improved overall circumstances in a given situation. One main argument for punishment in the Utilitarian view, is that of the deterrent effect it has, hence, threatening potential offenders in order to discourage them from breaking the law. This places the practice of punishment under strictly preventative and deterrent means. In light of this, Rawls points to the shortcomings and common criticisms of the Utilitarian model for justifying punishment. One fundamental criticism, and moral dilemma, is that it sanctions an innocent person being punished for the benefit of society. On the other hand, however, Utilitarianism agrees that punishment is to be put into effect only in the event of the violation of a law. Utilitarianism seeks to limit the use of punishment by declaring it justifiable only if it can be shown to foster effectively the good of society. Consequently, the Utilitarian principle is accused of justifying too much. Rawls alludes to a certain institution of punishment referred to as telishment, in which an innocent person is punished in order to

The Utilitarian view is considered a consequentialist theory, and is thus, concerned with the future consequences of punishment whereas Retributivism sees punishment as the deserved outcome resulting from a crime that has been committed. Rawls clarifies this distinction with the example of asking why person x has been sentenced to time in jail as opposed to why people are generally sentenced to time in jail. When asking the first question, it requires looking in the past and determining that the person is guilty for what they have done, and consequently punishing them. In contrast, the second question requires looking in the future and asserting that it will further interests of society in the long run to establish the institution of punishment. In light of this, we can conclude that when dealing with individual cases under the practice of punishment, a judge looks in the past, and examines the case, in order to determine accordingly a punishment for the offender, this is the Retributive model being put into effect. Conversely, the Utilitarian model is put into effect when dealing with the general practice of punishment, wherein a legislator looks into the future in order to determine punishments that will prevent the potential consequences of offenders committing crimes. Rawls argues that the Utilitarian view is more fundamental since it applies to a more fundamental office, conducting the