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2. (1)Explain Rawls’ distinction between practice rules and summary rules, giving examples of
each. Then explain why Rawls thinks that someone who wants to perform an action governed
by a practice rule can’t meaningfully ask whether or not he should follow the rule in this case,
if he accepts that the practice as a whole is justified. Why does Rawls think his distinction can
be used to defend the utilitarian theory of punishment against the charge that it would
condone the punishment of an innocent man, if doing so would produce the most welfare? Is
Rawls right?
(2)In On Liberty, Mill writes,
[T]he only purpose for which power can be rightfully exercised over any member of a
civilized community, against his will, is to prevent harm to others. His own good, either
physical or moral, is not a sufficient warrant. (p. 251)
In support of this claim, which has been called the “Harm Principle,” Mill seeks to establish that
“mankind are greater gainers by suffering each other to live as seems good to themselves, than
by compelling each to live as seems good to the rest.” (p. 253) Explain and evaluate Mill’s
arguments for this view. Do you think Mill’s Harm Principle is correct? Do you think he can
successfully defend the Harm Principle on the basis of utilitarian considerations alone? Why or
why not?
(3)When, if ever, is the state justified in restricting the liberty of those subject to its laws for
their own good?
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3. (4) Scanlon’s “Millian Principle” governing freedom of expression says:
There are certain harms which, although they would not occur but for certain acts of
expression, nonetheless cannot be taken as part of a justification for legal
restrictions on these acts. These harms are: (a) harms to certain individuals which
consist in their coming to have false beliefs as a result of those acts of expression;
(b) harmful consequences of acts performed as a result of those acts of expression,
where the connection between the acts of expression and the subsequent harmful
acts consists merely in the fact that the act of expression led the agents to believe
(or increased their tendency to believe) these acts to be worth performing. (p. 213)
Explain this principle, and explain and evaluate Scanlon’s argument for it. Give an example
of a government regulation of expression the principle would condemn, and an example of a
government regulation of expression the principle would allow, and explain how the
principle applies to each case. Do you think the principle is a good one
– that is, that it protects and restricts freedom of speech in the right way? Why or why
not? In defending your answer, be sure to consider potential counterexamples to the
principle – cases of acts of expression the principle protects (or allows to be restricted)
which someone might argue ought not to be protected (or restricted).
(5)Carefully explain and assess Langton’s argument that pornography violates women’s
right to free speech.
(6)Seana Shiffrin claims: “There seems to be a harm/benefit asymmetry built into our
approaches to hypothetical consent where we lack specific information about the
individual’s will. We presume (rebuttably) its presence in cases where greater harm is to
be averted; in the cases of harms to bestow greater benefits, the presumption is
reversed.” (p. 131)
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4. Explain Shiffrin's reasons for this claim. Does her argument work? Why or why not? And, in
light of your discussion, what should we think about Shiffrin's opening question: should a
child be able to seek compensation if she suffers from a painful, chronic illness brought
about by her parent's procreative negligence, even if she has a life that is well worth living on
balance? Be sure to defend your answer against possible objections.
(7)The British historian Thomas Macaulay once defined a lawyer as someone who would,
‘‘with a wig on his head, and a band round his neck, do for a guinea what, without those
appendages, he would think it wicked and infamous to do for an empire.”1
Does the role of the lawyer require her to do things that it would be wrong for her to do if
she were not a lawyer? And, given that she is a lawyer, can those actions be justified? Be sure
to defend your answer against possible objections.
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5. Introduction
In “Paternalism” [1], Gerald Dworkin asks whether or not the state is ever justified in restricting
the freedom of a person strictly for their own good. Dworkin thinks the state may be justified in
cases where the person is acting irrationally. This paper examines this claim. I begin by defining
paternalism and provide a preliminary argument against it. I then examine Dworkin’s proposed
justification for paternalism and its implications. I end by providing my own paternalistic
principle, arguing that paternalism can only be justified in a very limited set of cases. I believe the
extent to which paternalism can be justified is much more narrow in scope than what Dworkin’s
theory implies.
Paternalism
Breatharianism is the belief that food and water are not needed for sur vival. People adhering to
this lifestyle believe that only spiritual forces and sunlight are required to sustain life. A Swiss
woman practicing breathar ianism recently starved to death [3]. Should the state be allowed to
stop people against their will from participating in self-destructive lifestyles such
as breatharianism? Such a law would be paternalistic.
Paternalism is the interference with a person’s liberty solely for that per son’s benefit. This
does not include restrictions intended to protect people from secondary harms. For example,
restricting breatharianism to prevent others from being encouraged to participate would not
strictly be paternal ism. It would be paternalism if the only goal was to protect the health of
a person who wanted to try it. Deciding whether or not paternalism is jus tifiable requires
weighing the importance of allowing a person to make their own decisions against the duty to
protect a person’s well being.
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6. Paternalism does not include laws that require a person to be informed. For example,
requiring that a person be informed about current medical opinion regarding breatharianism
would not be a paternalistic law. Such a law does not restrict the person’s liberty, but rather
aims to provide relevant information so the person can make an informed decision.
Anti-Paternalism
It can argued that paternalism is generally not justifiable. Arguments that reject paternalism
appeal to the importance of autonomy. Autonomy is a person’s ability to act according to
their own reasons without external in tervention. It encompasses the idea that each person
is ultimately in the best position to judge what decisions they should make. Paternalism
denies a person their right to autonomy. It is perfectly fine to inform a person and
persuade them to make particular actions.
Dworkin’s Paternalism
Dworkin thinks paternalism can be justified in cases where the person is acting irrationally.
He uses the example of a paternalistic seat belt law. I decide to not wear my set belt. I fully
appreciate the risks and truly value convenience above anything else. In this case a seat belt
law cannot be justified.
However, I may decide to not wear my seat belt because I am acting irrationally. I don’t fully
appreciate the potential harm involved and weight it inappropriately when comparing it to
potential convenience. If I were given time to reflect, I would decide to wear my seat belt.
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7. Dworkin believes that in the above cases, a paternalistic seat belt law is justified and does not
conflict with my right to autonomy. My rational self would choose to wear a seat belt. That is my
actual preference. The seat belt law enforces my autonomy. The law allows me to fulfill my
rational autonomous desire to wear a seat belt.
Dworkin’s paternalistic principle can be summarized: Paternalism is jus tified when a person
makes a decision that imposes substantial risk which they would not make in a completely
rational and informed state of mind.
The Pragmatic Argument
The easy response to Dworkin is to reject his claim on pragmatic grounds. Dworkin says that the
burden of proof lies with authorities. It is up to the state to prove that the person being
restricted is acting irrationally and in a substantially risky manner. This leads to worries that
people will have to submit to the state’s concept of what is rational and what constitutes
substantial risk. Also, laws typically are not administered on a case by case basis. Laws apply to a
general class of people. In order for a paternalistic law to be implemented, the state would need
to prove that it is impossible for any person to rationally act against the law. This seems
theoretically impossible.
This type of opposition to paternalism is common. Take the prohibition of drugs for example.
Typical arguments attacking paternalistic drug laws claim that the state misrepresents harms and
is oblivious to the fact that many people find great moral value in drug use (especially with
regard to entheogens...or so I’m told...). It can be argued that a culture of safe use does more
good than absolute prohibition which encourages dangerous practices and misinformation.
These are all legitimate reasons to oppose paternalistic .
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8. Dworkin Revisited
Even though paternalism fails for pragmatic reasons, it is still worthwhile to consider whether
Dworkin’s justification for paternalism can be challenged on theoretical grounds.
Suppose the state has a futuristic machine that gives it perfect knowledge about the universe
in every way. The state goes person by person and con sults this machine about whether the
individual would choose to carry out a particular act in a completely informed and perfectly
rational state of mind. When it is determined that the person would not rationally carry out the
action, a paternalistic law is created for that individual.
An Alternative Paternalistic Principle
Even under ideal conditions, Dworkin’s concept of paternalism is objection able. Consider the
following example. I am playing a game of chess. A chess master is sitting beside me.
Occasionally, just before I am about to make a rash move, the chess master will stop me and
force me to make another move. As the game progresses I realize that because of the chess
master’s interven tions, the game has become extremely favorable for me. the motivations and
perspective of the chess master, I would have made the
same moves. Even though I am winning the game and am ultimately happy with the moves that
were made, I find the overall experience unenjoyable. This is because chess is about more than
making the correct moves. Chess is about making the correct moves because I have a developed
perspective and a deep understanding of the game. The chess master’s advice should be
disregarded. If I end up in a game state that is less than desirable, I can be content that it is
authentic and well deserved. The act of making poor moves, although immediately negative,
allows me to gain perspective and apply this perspective to future moves. The consequences of
my irrational moves contribute to my understanding of the
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game and enhance my ability to make good rational moves in the future.
This concept extends to the discussion of paternalism. It should not be the rational
decisions themselves that are valued, but the perspective that produces them and the
perspective that is gained from them. Even if it is known that I would perform an action in
a perfectly rational and informed state of mind, requiring me to perform that action makes
me do it for the wrong reasons. There is no value in performing an action devoid of
understanding.
Forcing me to act in a way consistent with a hypothetical rational per spective potentially
interferes with my ability to develop and fully realize that perspective. Mistakes are the best
learning experiences. Once I fully re alize that perspective, the decisions I make with that
perspective have more integrity. Even if my place in life is undesirable and is the result of irra
tional choices, it is genuine. The ability to make poor irrational decisions gives meaning to
the decisions that are rational and advantageous. There is value in irrational decisions
because they contribute to my life experience and ability to make good rational decisions for
the right reasons This idea implies that paternalism is not justified even in cases where it is
known what the person would do in a completely rational state of mind. Any action that
develops the perspective of the individual cannot be interfered with.
I should emphasize that not everyone needs to or even should value ir rationality in this way.
I’m only claiming that it is reasonable for a person to have these beliefs. If a person consented
to paternalism from the state because they wanted their rational desires to be enforced, that
would be perfectly acceptable. It is only the application of this type of paternalism against a
person’s will that is objectionable.

10. Implications
The above argument rejects paternalism in situations where Dworkin’s theory endorses it. Take
drug laws for example. Dworkin might think that a law forbidding me to take heroin is justified if I
would choose not take heroin in a totally rational and informed state of mind. The addictive and
irreversibly destructive nature of the drug is more reason to think the law is justified. Even if I
am irreversibly addicted and become at risk for lethal overdose, I might believe there is more
value in the decision to use heroin than in being
restricted from using it. There is more value in my regret than there could be in my oblivious
well being. If my drug use leads to a premature death, I can be content my life was the result of
my (possibly irrational) actions just as the chess player takes pride in not receiving outside help
even if the player loses the game quickly and might have rationally made other decisions. Suppose
I do manage to overcome my heroin addiction. My sober state is so much more meaningful than
if I were simply adhering to the law. I am sober because I fully understand the dangers of drug use
and have a deep appreciation I could never achieve through paternalistic laws.
This argument does not imply absolute anti-paternalism. An action with either of the following
properties may be paternalistically regulated given that it is known that the action would not be
made in a rational state of mind:
• The intent of the action is to achieve death or severe irreversible brain damage
• The action, regardless of intent, entails death or severe irreversible brain damage
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11. The reason these types of actions may be paternalistically restricted is that there is no
perspective to be gained from them. Using the chess analogy, this is equivalent to
purposefully sacrificing your king in an irrational state of mind. Sacrificing the king means
game over. An irrational will to end the game forfeits any appeal that the decision is
fulfilling and perspective
gaining. Similarly, there cannot be anything gained from irrational suicide, so it is
acceptable to paternalistically regulate it. The above principles are purposefully vague. Any
attempt at specificity is bound to fail. The above need not even be interpreted as implying any
less amount of paternalism than Dworkin’s theory (although I think it does). The primary
goal is to create a concept of paternalism that accepts irrationality as a value.
I believe this model fits well with our intuition. Irrational and risky activi ties contribute
profoundly to the life outlook of a person and are instrumental in development. They should
not be interfered with. However, when a per son seeks to irrationally end their life or cause
severe and permanent brain damage, intervention seems appropriate.
Conclusion
Dworkin makes a compelling case that paternalism seems reasonable in the face of irrational
action. However, there is value in irrational decisions.
Paternalism cannot interfere with the importance of perspective. Only actions that
intend to irrationally destroy that perspective can be paternalistically restricted.
In his paper, “Two Concepts of Rules” Rawls reexamines utilitarianism, and makes the
important distinction between justifying a practice and justifying a particular action that falls
under that broader practice in order to then defend utilitarianism against objections that have
been made against it with regards to punishment. The utilitarian view on punishment in terms
of maximizing total welfare runs into a contradiction between the fact that we think the state
ought never to punish a person it knows to be innocent, but sometimes maximizing total
welfare may require the punishment of an innocent person.
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12. In order to reconcile this problem, Rawls proposes that we examine rules as falling under
two different categories, summary rules and practice rules. What differentiates practice rules
from summary rules is that practice rules can be thought of as all jointly contributing or
pertaining to a single goal or purpose, which is the practice. Rawls believes that punishment can
be thought of as exactly such a practice, and argues that we can still use the utilitarian approach
to analyze the practice of the institution of punishment, but once we have done this, it is no
longer appropriate to judge individual acts within the practice outside of the context of the
practice. Finally, I will expand on Rawls’ ideas by making the utilitarian claim for the practice of
punishment where only the guilty can be punished through the framework of the time-
inconsistency problem.
In the traditional utilitarian view, punishment is only justified if it leads to an increase in
total welfare within society. If the choice of punishing a person results in lower social welfare
than the choice not to punish, then the punishment would not be justified. This definition of just
punishment runs into some difficulties when the question arises of whether it can ever be just
to punish an innocent person. Our intuitive feeling is that punishing an innocent man or woman
would not be just, but the traditional utilitarian argument for why this is the case is not very
strong. Bentham argues that the harm felt by the innocent person being punished would be so
great, that it would always outweigh any potential benefits. He believes that the principle of
utility would never justify punishing a person who has committed no harm.1
But this argument
isn’t very satisfying, because it doesn’t create an absolute rule against punishing innocents, but
instead leaves it up an empirical calculation.
There are hypothetical examples we can create in which punishing an innocent person
would actually lead to higher levels of total welfare, the classic one being the case of punishing
someone to make an example of them in order to prevent a riot, which would cause much
greater violence and destruction than the act of punishment. The traditional utilitarian
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13. explanation does not give us an absolute rule against punishing innocents, and it does not tell
us how to deal with a situation in which maximizing total welfare might require the state to punish
a person it knows to be innocent. Rawls uses the distinction between practices and actions within
those practices to argue on behalf of utilitarianism against these types of criticisms. Rawls makes
the argument that utilitarianism can in fact be consistent with the position that the state should
never punish a person it knows to be innocent by appealing to the separation between the practice
of punishment and the act of punishment.
In doing so, he begins by defining the difference between practice rules and summary rules.
Summary rules can considered as “rules of thumb” or rules of convenience; they represent a type of
summary of past decisions arrived at the direct application of basic reasoning. An example of a
summary rule would be the idea that we should look both ways before crossing the street or that
we should knock before entering a room. In the case of summary rules, we can always reconsider
the correctness of applicability of the rule in particular cases. We adopt summary rules because, on
the whole, following the rule leads us to be better off than we would be if we were to rely on basic
reasoning every time. This does not preclude us from using our own reasoning prior to acting, and
deciding that, in this particular case, it might be better to not apply the rule.
Rawls also defines a second type of rules, and these are practice rules. Practice rules are
logically prior to the particular actions governed by the rules. Practice rules set up offices, define
specific actions, and specify and establish appropriateness and consequences of actions. To explain
this relationship between practice rules and actions, Rawls uses the metaphor of baseball. Baseball
involves certain actions: throwing the ball, swinging the bat, or running to the base, but in order for
to say that we are playing the game of baseball, the rules of baseball must exist prior to us
engaging in these actions. We can imagine that before baseball was invented, people could still
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14. perform the actions of throwing a ball and hitting it with a stick, but they wouldn’t be
playing baseball until the rules were created which set up and defined the relationships in the
game.2
In addition, particular actions within the practice can only make sense in the context of
that practice. For example, in baseball, it is impossible to strike out or steal a base outside of the
context of following the rules of baseball. These actions are specific to the practice, and do not
exist outside of the game of baseball.
Furthermore, because the rules are logically prior to the actions, unlike in the case of
summary rules, it is impossible logically ask whether or not the rule should apply in a particular
case or instance. In baseball, the practice rules dictate that every batter get three strikes. If
someone were to ask for a fourth strike, the other players would say: no, we are playing
baseball; the rules of baseball only allow three strikes. It would not make sense for the first
person to then say: yes I agree that we are playing baseball, and that there should be 3 strikes,
but I think that in this case, I should get a fourth. Once we have established and accepted the
rules of a practice, it is irrelevant to talk about the merits of an action or rule outside of the
context of its role within the practice, since once we no longer follow the rule, we are no longer
participating in the practice. If we begin giving some batters three strikes, and some batters
four, we are no longer playing baseball. We cannot simultaneously participate in the practice of
baseball and also give batters different numbers of strikes.3
In some cases, however, we may feel that it would be acceptable to make individual or case
specific exceptions. What if you are playing baseball with young children and one of them hasn’t
been able to get a hit the whole game. You know she will be very upset if she strikes out again,
so you make an exception and allow her to take a couple more tries. You know that in baseball,
the rules say that there are only three strikes allowed, but in this case your ultimate goal is that
all the kids have fun rather
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15. than to adhere strictly to all the rules of baseball, so it would actually be better not to follow the
rule. However, given this difference in the ultimate goal here in this example, a supporter of Rawls
could respond that the practice of baseball could actually be divided into two sub-practices. There
is official baseball, where the rules must be followed strictly in order to ensure a fair game and
winner, and there is also recreational baseball, where the main objective is to have fun; and in
recreational baseball, the rules may actually allow for a change in the number of strikes for the
sake of making sure that everyone is enjoying themselves. If prior to beginning the game, it is
clearly established that recreational baseball is being played as opposed to official baseball, the
decision to allow the child to take an extra strike would no longer be problematic.
The above claim could imply that in any case where you think there may be a legitimate
exception to a practice rule, it shouldn’t be considered as breaking the rule, but instead as creating
a sub-practice where the rules are actually slightly different. But isn’t this problematic for
cheating, someone might ask. Every time you want to break the rules, you could simply say that
you are not actually participating in the original practice, but in a new sub-practice where your
actions are not actually against the rules and that you have no obligation to the rules of the
original practice. Here it is important to remember the definition of practice rules: practice rules
are set up prior to actions.
So in order for a cheater to make an appeal to a sub-practice, the sub-practice must already
exist and have rules that correspond exactly to the way that the cheater is behaving. If this is indeed
that case, then cheating can be prevented by clearly establishing consent for the practice in which
everyone is participating before anyone has committed to any particular actions. If, before the
game, the players come to a consensus that they are playing official baseball, thereby giving their
implied consent to be bound by the rules of official baseball, then any attempt to sneak in an
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16. additional strike cannot be attributed to the belief of the cheater that they were actually playing
recreational baseball, and even if it was truly a misunderstanding, it still would not be an exculpatory
defense for breaking the rules. So, if we can’t question whether to perform a particular action in the
case of practice rules, what is the correct way to exercise our judgment about whether we should be
following a rule? Rawls argues that the questioning whether to follow a practice rule must take the
form of questioning the rule itself, not its implications in a particular circumstance. In order to
question a practice rule, you must question whether the practice itself is effectively designed.4
Going
back to the baseball example, if you wanted to challenge the practice rule about strikes, you would
have to challenge the entire practice of allowing only 3 strikes. You can argue that the rules of official
baseball should be changed to allow four strikes, but you cannot argue that the rules of baseball say
there are only three strikes, but in this particular circumstance, you think you should be allowed a
fourth. If you want to defend or appeal a particular action within a practice, the argument must take
the form of appeals or defenses of the entire practice as a whole. It does not make sense to argue
about the correctness of an action outside of the context of its role or function within a practice.
By now I’m sure we are all wondering how this lengthy discussion of practices and rules relates
back to the original issue we wanted to address about how it can be possible to make a utilitarian
argument for never punishing a person that is known to be innocent. Well, Rawls believes that
punishment can be thought of as a practice, and all the rules regarding the appropriateness, nature,
and logistics of punishment can be considered practice rules. In order to create a practice or
institution of punishment, we must clearly define the common goal of punishment which all of its
practice rules contribute to. This common goal, or definition, of punishment is: to legally deprive
someone of their typical rights in the way permitted or described by the law due to that fact that he
or she has violated the law when that violation has been determined to have occurred by a fair and
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17. legal trial.5
This implies that punishment is defined by the guilt of the person who is being
punished, and that the practice rules of punishment require that the person who is being
punished by the state has been found guilty of a crime. This means that the practice laws of the
institution of punishment require proof of guilt in order to punish someone.
When we consider punishment as an institution, and accept its existence as practice in the
form of the definition above, it is no longer relevant to question whether it is appropriate to
punish an innocent person in a particular instance. In the same way that the rules of baseball
require three strikes and it is illogical to argue for four strikes under particular circumstances, the
rules of punishment require that the person being punished be guilty of breaking the law, and it
is irrelevant to argue that the person can be innocent under particular circumstances.
Punishment is defined as a consequence of law- breaking, so once you punish an innocent
person, you are no longer punishing them; you are participating in a completely different
practice, which Rawls names “telishment”6
.
The creation of practices and the enforcement of practice rules can be superimposed
relatively closely onto the roles of legislature and judiciary. The legislature has the job of
determining whether a certain practice is worth integrating into law, but once a practice has
been accepted into law, the judiciary cannot make a decision regarding the correctness of an
individual action outside of the context of the practice. We may usefully compare the roles of
judge and legislature can be compared to the roles of the creators of baseball and to the
umpire. Although there is indeed a major difference between the government and the baseball
team, I think they can be reconciled by examining the judiciary-legislature relationship in more
detail. Unlike in case of umpire, the checks and balances system of our government does allow
for some discretion and creation of new laws on the part of judges. However, in instances where
judges can use discretion, this ability to use discretion is built into the practice.
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18. For example, the rules of punishment often say something like: if the defendant is guilty of X,
the punishment is a fine of between 100 and 500 dollars. In this way, judicial discretion is directly
built into the practice of punishment. The judge can say: yes, this person committed X, but she
was simply very careless and did not commit the wrongdoing with scienter, so I will give her a
only the $100 fine. But, he only has the power to use that discretion to the extent that is allowed
by the practice. He cannot say that he thinks that we should not punish the defendant for her
actions at all, nor can he say that he thinks the defendant acted so badly that she should pay 600
dollars in fines since neither of these actions is within the range of discretion permitted by the
practice.
The second way in which discretion is built into punishment is instances where the law is
silent. In these cases the practice laws do not address whether punishment is acceptable in a
particular circumstance or not, so it is unavoidable that the judge make a discretionary
decision. If the
judge/umpire chooses not to enforce, then it sets one type of example, and if she does choose to
punish, it sets the opposite example. Given the efficiency constraints, it is not practical for the
judge or umpire to appeal to the legislature or creators of baseball for a decision. The practice
dictates that these individuals are trained in the intentions and purposes of the rule creators so
that they can interpret the rules in the best unbiased and scientific way. Just as rules are not
rewritten by umpires, judges do not rewrite rules, they only interpret them. The final way that the
judiciary can exercise discretion is through an appeal to the Supreme Court. In this case, I think it
is helpful to keep in mind the idea of practices and sub-practices explained earlier in the paper.
The ultimate practice to which the courts are beholden to is upholding the constitution. In this
way, the courts may appeal the correctness of a certain practice by saying that it violates the goal
of this ultimate practice. The practice of upholding the constitution may require additional sub-
practices with their own rules, but ultimately even they are answerable to this ultimate practice.
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19. We have the practice of baseball, which so far includes the sub-practices of official baseball
and recreational baseball. Someone may try to create a new sub-practice of baseball called British
Baseball in which the players use a flat bat and run back and forth instead of around the bases. It
can then be decided that this new sub-practice is sufficiently different from the original category
of baseball that it can no longer be called baseball, but falls into a different practice called cricket.
In the same way, it can be decided that a sub-practice within the law is sufficiently different from
the objectives of our legal system that it no longer falls within the practice agreed to in the
constitution.
Alright, so we have an idea of practices, and we have established two important conclusions:
first, that a practice which allows for punishing innocent as well as the guilty is a different from a
practice in which punishment is only applied to the guilty, and second, that we cannot question the
righteousness of actions within practices without questioning the practice itself. But, the question
we really want to answer is: why do we find that the practice which includes a rule allowing us to
punish the innocent is unjust while the practice which only allows us to punish the guilty is just?
Well, in this case, utilitarianism can be applied relatively straightforwardly in order to answer this
question.
Utilitarian considerations would not allow for a practice which allows us to punish the
innocent since such a practice would undermine the entire deterrent benefit of punishment.
Decisions about punishment have an inherent time-inconsistency problem, which is characterized
by circumstances under which the best course of action at a particular time may not be the best
course of action over all.7
In the case of punishment, the best course of action over all is an institution of punishment
where those that are guilty of breaking the law face certain consequences for their disobedience,
so that people are deterred from breaking the law in the future.
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20. However, in every particular instance, there is an incentive for the state to punish an
innocent person. Punishing an innocent person would be less costly than finding the guilty party
and going through the trouble of proving their guilt, but would serve the same purpose of setting
an example for those considering breaking the law. However, because people are forward looking,
once they can anticipate that the state is no longer adhering to this promise to punish only the
guilty, they no longer have any incentive to follow the law since their likelihood of punishment will
be same regardless of whether they are guilty or innocent.
The utility gain of punishing an innocent can only be realized if the people still believe that
punishment is only for the guilty. So once you have an established practice of punishing the
innocent, the arbitrage opportunity created by the discrepancy between the state’s actions and
the public’s beliefs about those actions no longer exists, and the system of punishment will
collapse. The classic example of this type of problem is when you have a professor with a class full
of students. The professor really wants everyone in the class to study and learn the material, but
he doesn't necessary want to give students exams since exams take away class time and he
doesn't want to grade them. So the professor tells the class that at the end of the semester there
will be a lengthy, challenging, cumulative final exam. However, once the end of the semester
approaches, the professor realizes that he really doesn't want to spend the first few weeks of June
grading all of these exams; so the logical thing for him to do would be to cancel the exam. The
system was based on the promise that there would be this tough exam at the end of the
semester, and as long as the students believe this promise and study for the exam, then the
professor does not need to keep his promise. But, just like people evaluating the consequences of
criminal actions, the students are smart and forward looking, they can anticipate that it's not
really in the professor's interest to have to proctor and grade all of the exams. And once they no
longer believe that the professor will keep his promise, then they no longer have an incentive to
study, and the system ceases to function.
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The final exam example contains the same problem as the punishment example since the
summation of individual utility maximizing decisions over a course of time does not actually
produce the overall utility maximizing decision over the course of multiple years or repetitions.
In each individual instance, it will be in the interest of the state to punish the innocent man as
opposed to the guilty man, but over time, this practice will produce a state where people no
longer deterred by punishment and no longer trust their government. In order to preserve a
practice which will ultimately be the most welfare maximizing action in the long run, we may
have to consistently make a series of individual decisions in which the highest welfare option for
each particular instance is not chosen.
I think Rawls’ use of a distinction between practices and individual actions characterized by
those practices was very enlightening for the understanding of the justification for never
punishing the innocent. Separating the practice of punishment from the individual actions
which make up the process of punishing someone allows us to contain utilitarian considerations
to only the practice in general, rather than applying them to individual cases. Furthermore, I
think the theory of the time-inconsistency problem provides additional insight into how this
distinction can be understood and supported from the utilitarian perspective. Utilitarianism calls
for welfare maximization, but it does not often specify a time frame. In cases where certain
decisions produce different welfare outcomes in the short and long run, practices can be
created precisely to preserve certain long run utilitarian benefits in the presence of short run
incentives to defect.