2. Connecting External and Internal Approaches

There's a difference between on the one hand justifying playing chess, punishing, or giving grades on papers, and on the other hand justifying a particular move, a particular sentence, or a particular grade.^[18] Justifying a practice (such as legal punishment) is different from justifying an action within a practice (such as acquitting a defendant shown to be insane). In order to justify—to make good an argument, or show a person or action to be just or right, or defend as right or proper, or give adequate grounds for an action^[19] —we need to appeal to some standard of what is right, proper, or just. When we justify an action that is part of a practice, to make our case we can often point to rules of the practice. It's less clear from where standards come in justifying a practice (a point on which I shall elaborate below).

One philosopher, John Rawls, argues that a practice is by definition stipulated by rules,^[20] and suggests that from within a practice a practitioner can justify her act only by appealing to the rules of the practice: "when the challenge is to the particular action defined by the practice, there is nothing one can do but refer to the rules."^[21] But this can't be quite right, since there are practices lacking rules, or with conflicting rules or principles. Of course, lots of practices—especially

[18] On the distinction between justifying a practice and justifying an action within a practice, see John Rawls, "Two Concepts of Rules," Philosophical Review , vol. 64 (1955), reprinted in Michael Bayles, ed., Contemporary Utilitarianism (Gloucester, Mass.: Peter Smith, 1978), from which edition I cite page numbers.

[19] Oxford English Dictionary.

[20] Rawls, "Two Concepts of Rules," p. 88 ("rules define a practice"). Yet Rawls acknowledges that "practice" is an "involved concept" and most likely has "border-line cases" (p. 93).

[21] Ibid., p. 91. Rawls does note that there are different sorts of rules: "rules of practices (rules in the strict sense), and maxims and 'rules of thumb'" (p. 93). But he implies that "rules of thumb" don't belong to practices, since practices, by definition, have "rules in the strict sense." On this point I disagree with Rawls: many practices lack "rules in the strict sense."

games or contests—have rules or other clearly acknowledged standards to which we point in order to justify actions we take as participants. In criminal law there are statutes, precedents, sentencing guidelines, and parole board recommendations to which a judge might point to justify a sentencing decision. But some practices have no fixed standards or rules.^[22] Take the practice of gift-giving. There's no book in which we can look up how much we should spend (though there are rules of thumb).^[23] Lacking rules or clearly acknowledged standards, we might justify an action we've taken within the practice by arguing that it was consistent with our understanding of the point of the practice. Suppose a judge had no rules to guide her in deciding what punishment a convicted felon should receive. Not wanting to be arbitrary, the judge might reflect on the point of the practice of legal punishment to help decide. If she thought the point was to mete out just deserts, she might decide on one sentence; if she thought it was to deter future crimes, she might decide on another. Contrary to Rawls's position that justifications of actions within a practice are given without consideration of the justification of the practice, we do sometimes justify our actions by appealing to our understanding of the justification of the practice to which the actions belong.^[24]

[22] Cf. John Heritage, Garfinkel and Ethnomethodology (Cambridge, England: Polity Press, 1984), p. 126: "[F]or vast areas of social conduct, no rules of action at all are formulated or entertained by the participants."

[23] There are books on manners with such general guidelines: for example, Letitia Baldridge, The New Manners for the '90s (New York: Rawson Associates, 1990). Other practices lacking clearly defined rules include lecturing, grade-giving, and courtesy.

[24] Rawls is closer to the truth regarding practices like chess or baseball; in games with fixed rules we don't typically justify actions that are part of the game by appealing to our justification for playing the game at all. (Still, we might; we might want to change the rules of baseball, for instance, by arguing that our proposed rules better serve the purpose of the game.) But with practices like punishment or grade-giving, we typically appeal to the point of the practice.

Even when a practice has rules, sometimes we may think an action that accords with them is nevertheless bad. In such a case, it's hard to argue that the action was not justified, since there are rules to which the actor can point to justify her actions; but sometimes we argue for a change in the rules. We might do this by arguing that the rules in question don't properly serve the purpose of the practice. Sometimes we appeal to the point or purpose of the practice (which, of course, itself might be a matter of interpretation and disagreement) to justify acting against the rules.^[25] If a police officer stops a man who is going 5 m.p.h. over the speed limit because he is rushing his wife, who is in labor, to the hospital, the officer will, I would hope, bend the rules. He might justify doing so on the grounds that the point of the practice of giving tickets to speeders is to promote the welfare of the community, and in this case the community's welfare is best served by getting the pregnant woman to the hospital as soon as possible.

There are still other situations in which we might justify an action within a practice that goes against the rules of the practice, but not because we think these rules don't serve the purpose of the practice. Suppose I play chess with a shy, withdrawn child. It might be "bad" for me to make the strategically "right" move, but not according to the rules of chess, or of any other practice (unless we think that kindness is a practice). In making a "wrong" move we step out of the practice—we might say we're no longer really playing chess. We are willing to sacrifice a value internal to chess-playing (winning) for the sake of a conflicting value external to the practice (boosting the confidence of a child).

[25] Zimmerman notes how the importance of formal rules is decided by practitioners on a case-by-case basis, in Don Zimmerman, "The Practicalities of Rule Use," in Jack Douglas, ed., Understanding Everyday Life (Chicago: Aldine, 1970), p. 225. Harold Garfinkel criticizes the entire model of rules as regulative; he argues that rules don't determine our actions but, rather, provide a "grid" "by reference to which whatever is done will become visible and assessable" (Heritage, Garfinkel and Ethnomethodology , p. 117; cf. pp. 120, 126, 128).

Practitioners, in justifying actions within a practice, can (though they need not) appeal to the practice's standards or rules, if it has any, or to an interpretation of the point of the practice as a whole or of the principle(s) immanent in it. One way we know we are engaged in a practice is that there are such features, either rules or a point, to which we can appeal to justify our actions.

But what happens when we justify the whole practice? Practitioners don't often engage in this activity. Someone playing chess justifies her moves by pointing to the rules and strategies of the game. When challenged, she might justify playing chess ("because it's challenging," "it sharpens the mind," "it's an outlet for my suppressed anger"), but making such challenges is not part of the practice of playing chess, is not something the practitioners—the chess players—are likely to do. If a challenge is made, the context in which it arises will determine what counts as a good answer. Consider: "Why are you playing chess instead of doing your homework?" "Because I like playing chess better." Or, "Why are you playing chess instead of checkers?" "Because checkers is mostly luck, chess is mostly skill." Here the context determines in part the reason given. But it would be strange to consider, abstracting from all particular contexts in which such a question could arise, what the justification is of playing chess. Maybe because it's fun, or because it develops the mind. Why not? What would count as a satisfactory answer? Unlike the cases in which we justify actions that are part of a practice, in cases in which we justify the practice as a whole there are no clear standards to which we can point.^[26]

We rarely, if ever, justify the practice of chess. It takes some imagination to think of a context in which doing so would make sense (perhaps I am at a toy store thinking of which

[26] In chapter five, section 2, I elaborate on this point by arguing that social practices lack fixed grounds, or "foundational" justifications. In justifying practices we can give only reasons that persuade, perhaps by appealing to a system of shared convictions: justifications of practices ultimately are "nonfoundational."

game to buy, or my daughter wants to dedicate her life to chess-playing instead of becoming a lawyer, so I ask, "Why chess?"). But for other practices, legal punishment included, we have no problem making sense of the question "Why do it?" and much depends on our arriving at a satisfactory answer.^[27] I shall argue that to know how we should go about determining the guilt of a defendant or the sentence for a convicted person, we need to know what the point of punishing is—we need a convincing answer to the question "Why punish?" Practitioners don't often ask the question, yet they determine guilt, sentence, lock up, and do all the other things that are part of legal punishment. But, as we shall see, many of us don't accept what is done, and think it should be done differently. We see a dire need to step outside the practice in order to find a convincing account of its purpose, so that we can come back inside and guide practitioners. But when appealing to a justification for the practice as a whole, we must keep in mind that there are no obvious guidelines for judging what's the "right" justification. Perhaps there are more than one.