AIMS IN GAMES AND MORAL PURPOSES

Lornd Ambrus-Lakatos
(This Draft: June 2002)
John Searle writes that constitutive rules are those that, in addition
to regulating forms of activities, also constitute these activities, that
is the existence of these activities is logically dependent on the
existence of the rules.1 Let us call the view according to which moral
practice is constituted by moral rules the thesis of constitutive moral
rules, or in short, the Constitutive Rules thesis. This thesis has
always been supported by the claim that there is a close and
significant analogy between moral rules and rules of games, as game
playing is surely governed by constitutive rules. There have been
numerous attempts to vindicate and employ this thesis, together with
the analogy, but two prominent statements stand out.
In his Two Concepts of Rules, John Rawls asserted that rules
manifesting utilitarian considerations ought to be conceived as rules
of institutions rather than as rules generated by successive attempts
of individuals to apply, directly, the dictates of utilitarianism. In turn,
activities within these institutions or practices are constituted by
rules. So once these rules are in place, one has to relate to them as a
basketball player has to relate to the rules of his game; and just as
one cannot checkmate his counterpart outside of the confines of
chess, one cannot carry out ones obligations outside of the confines
of some background practice.2
The thesis, together with the analogy, has also been invoked in a
well-known criticism of the once ruling fact-value distinction in metaethics. John Searle argues that the proposition that says, for
example, that Jones promised to pay back five dollars to Smith, is
both descriptive and evaluative at the same time, as it not only
records a fact but also entails that Jones ought to pay back that sum
1

John Searle, How to Derive Ought From Is?, Philosophical Review 73 (1964), p. 55.

See John Rawls, Two Concepts of Rules, in his Collected Papers, Harvard University Press (1999),
pp. 20-46. Rawls hesitation in extending the analogy to moral rules is striking. At the beginning of his
paper he writes that upon embracing his favored conception of rules one can state utilitarianism in a
way that makes it a much better explication of our considered moral judgements than traditional
objections seem to admit. (p. 21) In his last footnote, however, he adds, one should not take it for
granted that [the practice or game conception of rules] applies to many so-called moral rules. It is my
feeling that relatively few actions of the moral life are defined by practices and that the practice
conception is more relevant to understanding legal and legal-like arguments than it is to the more
complex sort of moral arguments. (p. 43) This ambivalence complements his lack of commitment to
utilitarianism while offering the best defense of it.

to Smith as he promised.3 This argument is supported by a

conception of morality that regards it is a practice that is constituted
by a set (or system) of rules. These rules do not only regulate
activities that exist prior to them, rather activities falling under their
jurisdiction are created and governed upon their adoption. Not only
is it the case that an act of promising cannot be undertaken without
the acknowledgment of stipulations that bind promiser and promisee
alike; it cannot even be made sense of independently of these rules.
In this, it is on par with institutions like bequeathing, and that of
using money. Now, games appear as the paradigm of the activities
governed by constitutive rules; it is preposterous for a basketball
player to argue with a referee that he has a right to play on, because
he wants his team to win so much, after he committed his fifth foul.
At the beginning of his essay Games and Aims, Aurel Kolnai quotes
with appreciation the following statement:4
The theory of Games is never likely to provide a calculus of Morals;
but it may well provide models on which to sharpen our logical teeth
and develop our moral sense.(103)5
Now, for him, one lesson that an adequate theory of games, not to be
equated with the game theory of von Neumann and Morgenstern,
can provide is that there is no close analogy between rules followed
by players of games and rules that morally inclined agents are eager
to follow throughout the course of their lives. (121) Of course, it
would be entirely mistaken to think that Kolnai wished to reinstate
the centrality of the fact-value distinction in ethical theory, or, for
that matter, to resolve the disagreement there are between actutilitarians and rule-utilitarians. Rather, he urged that games should
be analyzed for the sake of understanding better the nature of moral
purposes and how the will is shaped through deliberation, in moral
and non-moral contexts alike. He writes: the lusory antics of human
willing may in glaring simplicity manifest some aspects of the logic of
multiple purposes which in diversified forms underlies the whole
fabric of self-regarding and joint practice, however serious.(123)
In this essay, I would like to argue, with Kolnai, both against the
Constitutive Rules thesis and the supplementary analogy between
morality and game-playing. Whether the thesis can be upheld or not
3

Searle, How to Derive Ought From Is?, pp. 43-58.

Aurel Kolnai, Games and Aims, Proceedings of the Aristotelian Society N.S. 46 (1966), pp. 103128. In the text, numbers in brackets refer to page numbers of this paper.
5

The quote is from J. R. Lucas, Moralists and Gamesmen, Philosophy (1959), p.11.

is significant in itself. But, in my view, it also gives way to conceiving

institutions as the first subject of moral assessment, and therewith to
presenting moral deliberation as a subsidiary topic in moral
philosophy.6 Indeed, my main argument against the thesis states that
it leads to an incorrect conception of moral deliberation.
Within Kolnai study of the social practices of game-playing, the
examination of the status of moral rules and the relationship
between games and morality is presented only as a sketch. So my
other aim here is to attend to a task that Aurel Kolnai sadly could not
have had occasion to finish. By this, I also hope to contribute to the
explication of his moral philosophy.

Cf. John Rawls, Kantian Constructivism in Moral Theory, in his Collected Papers, Harvard
University Press (1999), pp. 347-349.

1.1 According to the Constitutive Rules thesis, moral rules constitute

moral practice. Then as actions in a game are constituted by its rules
as well, one is to understand better what moral rules are if one
understands better the social practices of game-playing. However,
sufficiently keen, philosophical, analyses of these practices are few
and far between; and this circumstance thus justifies paying special
attention to Kolnais Games and Aims. He takes chess as the
paradigm of games, a paradigm that has three core features.(107)
First, its operational field is independent from the serious
practices men and women otherwise choose to or need to engage in;
it follows that a completed game can produce nothing real for the
players. Instead, this field is constituted by a body of artificial
stipulations and rules. In contrast, one is to ride very hard in the
course of fox hunting, which is arguably a social game, but one can
ride very hard on other occasions as well. Second, the paradigm
game has only two players, and the rules ought to allow only three
sorts of outcome, a player either wins or loses, or attains a tie. Then
winning or at least not losing appear as aims for both players. The
third feature is that available actions are to be represented by a
denumerable sequence of moves; these moves then can be conceived
as being separable from the psycho-physical reality surrounding
the players. In contradistinction to, say, billiards or golf, chess can be
played by correspondence. To collect further foils, the several kinds
of races, or contests like drawing competitions, only exhibit gamelike features; and due to the possibility of coalition-building in the
course of playing them, many of the card games also fail to fit into
the above pattern. Also, a serious practice like participating in a
two-bidder auction for oil-tract leases is not a proper game, despite
of the fact that it could be played by correspondence. 7
With this conception of a game set on one side, Kolnai makes two
objections against claiming a close analogy between moral rules and
rules in games. (121-122) First, ordinary moral practice frequently
exhibits debates, arguments etc. concerning the acceptability of the
moral demands or precepts that claim our attention. Views on what
morality consists of many times are of a revisionist character. In
contrast, challenging the rules of a certain game is never part of its
being played. Kolnai adds that concordant adoption by a
community of some constitutive rules that are to govern their
practices does not offer any close analogy to the fact of moral
consensus.
7

The general lack of care in the characterization of what games are may be attributed to the belief that the
forefathers of game theory have already accomplished this task. It is noteworthy, on the other hand, that Kolnais
game paradigm owns a great deal to the model of games presented in John von Neumann and Oskar Morgensterns
Theory of Games and Economic Behavior (Princeton University Press [1944, 1947]); indeed his discussion
betrays, throughout Games and Aims, a thorough acquaintance with that book.

It is not to be presumed that those who promote the analogy

between games and moral practices also claim that moral rules are
issued by any consensus. Nevertheless, understanding Kolnais
position on the status of moral rules requires an explication of his
conception of moral consensus. It is, to begin with, concerned with
moral evidence that is irreducibly evaluational. Moral evaluations
converge in a moral consensus that is itself not conventional. Neither
are they derived from non-moral considerations, that is from
considerations going beyond the individual human concerns with
being moral. The consensus is subject to refinement and to
breakdown. Still, it is there before someone becomes related to it;
however, it is sustained by the immersion into it by moral agents. It
follows that moral rules are not creative in the way rules of games
are. Nevertheless, it is possible to gloss the content of the moral
consensus; it includes, to give one example, items like the Rule of
Pittakos. Indeed, while debates, struggles, and discourses about
what morality demands keep the consensus alive, urging moral
improvement is not always commendable. While the actual ethos
prevailing in a community may well be different from what the moral
consensus demands, it could also be the case that moral reformers
propagate doctrines that are pernicious from the moral point of view.
The warranted aim of a moral critic is the restoration of the moral
order.8 Nevertheless, the problem posed by the fact that prevailing
moral rules tend to be challenged can be appreciated without
embracing the above conception of moral consensus.
The second objection grants that many moral concerns present
themselves in the form of requirements to keep to well-defined and
generally accepted moral rules. While it is natural to think that living
according to the dictates of moral rules is a grave and central
challenge in human lives, just keeping to the rules is not a special
difficulty in games. It is not particularly hard in chess to make a
move with the knight in the appropriate and legitimate way. Consider
the case of someone whose adopted goal is to compose good poems.
Suppose that she decided for writing sonnets in their Petrarchan
form. Then conforming to that form is not in itself a particular
challenge, as anyone can count syllables and everyone knows what a
rhyme to flits by could be. Producing good poems in confines of the
Petrarchan rules is, however, a challenge. But the challenge to be
moral is not to be conceived of in this way.

See Aurel Kolnai, Moral Consensus, in: Ethics, Value, and Reality, Athlone Press (1977), pp. 144164.

1.2 Kolnais paper is concerned with the lessons analysis of games

can offer to moral philosophy. The critique of the analogy between
moral rules and game rules is only one of the many issued raised in
the essay. Indeed, the topic is treated only cursorily and tentatively. 9
But the current philosophical exercise is only indirectly concerned
with the soundness of raising the analogy. My task is rather the
assessment of the thesis according to which moral practice is
constituted by rules, together with the clarification of the
background doctrine that issued the objections of Kolnai. So while I
will employ both of them in the discussion that follows, I sidestep the
task of examining them closely, and also set aside the obvious but
somewhat nebulous question whether they are redundant or not.
Let us first note that Kolnai also offers an argument against the
Constitutive Rules thesis itself. If it is acknowledged, he writes, that
morality is neither a separate practice, nor a sum-total of all the
practices, but is embedded in practice, and further that human
practices are not constituted by rules, it follows that moral rules are
not constitutive of moral practice.10 But what could a separate
practice mean?
The arguably most common challenge to the thesis states that it does
not afford an appropriate characterization of how we relate to
putative moral rules. Searle himself acknowledges that one can
always ask the question whether moral rules are justified or not, but
he dismisses this as an external question. Those who are within the
practice of, say, promising, if they recognize something as a promise
will grant that it ought to be kept.11 The two questions of ought one
to keep promises? and ought one to accept the institution of
promising? are distinct. But in light of Kolnais first objection to the
thesis, it can be asserted that the urge of raising the second question
is an inherent feature of moral practice. A serious problem with this
challenge is that it implicitly endorses the claim that moral rules may
be conceived as institutions, and also endows them with thematic
primacy.
9

He writes, [a]nalogies between MORAL rules and rules of games have often been stressed in recent
ethical writingsbut the subject is too vast and complex to be discussed in the limits of this paper.
(120-121) His discussion, he adds, falls short even of the beginnings of anything like a worked-out
theory. (123)
10

Note that this argument also amounts to an objection to the game analogy. However, given the first
characteristic of his game paradigm, this objection could seem too strong. Still, while those who allow
the analogy indeed hold that games are among the practices governed by constitutive rules, it is safe to
presume that they would not want to bank on the distinction between serious and facile practices.
11

Searle, How to Derive Ought From Is?, p. 51. Cf. Philippa Foot, Introduction, in P. Foot (ed.)
Theories of Ethics, Oxford University Press (1967), pp. 11-12.

So I will attempt to make another argument that presents first a

rudimentary account of moral deliberation that is to be compared
favorably to that offered, albeit implicitly, by the Constitutive Rules
thesis. I propose to start this argument by a reference to the second
of Kolnais objections against the game analogy, which states that
there are special difficulties in keeping to rules of morality. What
special difficulties are there with obeying moral rules? I take it that
the challenge is not related to the compromises we need to make, if
we are to act morally, to further demands issued by our other
practices.
So the difficulty needs to be of a different nature. Consider the case
of Roberta. She faces a situation laden with moral challenge: she
promised to pay back hundred dollars to Cuthbert but she would
very much like to spend that money on something else. Take it that
keeping promises is a prevailing moral rule and that Roberta knows
it is. Then if she is to be moral, she should pay back the sum as she
has promised. Now on the Constitutive Rules thesis, by abiding to
the rule she attains the status of being moral. Next, if at the same
time, Roberta knows that Cuthbert will spend the money on efforts to
deface Cancer Relief Foundation home-pages, and there is no way to
stop him in doing this, her problem is more complicated. Take it that
not assisting evil is an acknowledged moral demand, and that, again,
Roberta knows that it is. She does not know whether any of these
rules could trump the other, nor whether there is a way to hedge the
force of these two rules; she has no access to a full-blown moral
theory.
Does her very indecision, or her opting for one alternative without
conviction, or even her undertaking a putatively wrong action,
disqualify her from being moral? According to the Constitutive Rules
view, there must be a way to find out what action counts as moral on
such an occasion; by the game analogy, one should consult a moral
rulebook or, possibly, a moral umpire.12 By supposition, she does not
find the answer in any such book. And it is odd to suggest that she is
required to seek out, for resolving her dilemma, a moral umpire who
can determine what the right course of action is, so let us also
suppose that none is available to her. All in all, it seems that even
under these circumstances she may assure her status of being moral,
provided she aims at doing the morally demanded action. So the first
charge against the Constitutive Rules thesis is that it
mischaracterizes the status of being moral.
12

That there are indeed moral rule books is an explicit view of many rule utilitarians. Consider the arguments of J.
J. C. Smart in his Extreme and Restricted Utilitarianism, Philosophical Quarterly 6 (1956), pp. 344-354.

Now, what is it to attain the status of being moral? I propose to posit

it as constituting the main moral purpose, so the aim to achieve and
maintain the status of being moral as the fundamental moral aim. It
may well be the case that this purpose could be further described as
the aim of keeping oneself, in general practice, to rules of conduct
dictated by morality. Nevertheless, being moral then is certainly a
special aim, and while it appears as a focal practical purpose, the
nature of its demands still have to be determined.
1.3. But what is it then to aim at being moral? We may turn to the
analytical framework offered by the paradigm game for the
explication of this problem; as the objections against the game
analogy do not claim or entail that the analysis of games offers no
lesson whatsoever for ethics. It may indeed provide, albeit somewhat
indirectly, tools for moral analysis. Well, what aim is pursued in
games?
In Kolnais model, rules of a game determine a small set of possible
outcomes. These then, in turn, normally also induce the aims players
have in that game. In chess, both participants normally endeavor to
win or at least not to lose the game. Further, while what winning or
losing amounts to in a given situation could in general be interpreted
in several ways, and also there are well-established criteria for
success in many games: in a game like chess, being constituted
entirely by a set of definite rules, the meaning of victory or defeat is
determined.
However, winning is not the only goal in chess, surely there is also an
aim prior to that, that of playing that game at all. (112-113) Now it is
natural to suppose that one plays chess in order to provide
entertainment for oneself (of a certain sort). But one does not engage
in the play in order to entertain oneself, rather immersion into the
game is a specification of the aim of entertaining oneself. Chess is
played for its own sake. This consideration introduces a paradox.
Playing a game is an essentially eirenic activity; he that plays chess
does so in concert with the other, they pursue a shared aim. But as
he also aims at winning the game, or at least of not losing it, he has
to participate in an agonistic context. This aim could be attained only
at the expense of the other failing to attain his goal. To rephrase the
paradox, players cooperate in order to defeat the other; and also
strive to outdo the other in a framework of collaboration.
So two aims are pursued by game-players and these are interrelated.
Can their relationship be described by the standard terms of
teleological analysis? Let us say that activities that are pursued for
8

their own sake are ends in themselves, or autotelic. The state of

affairs they aim at become ends by adopting them as such. Activities
that are pursued for the sake of something outside of themselves are
to be referred to as instrumental, or heterotelic; these are means to
achieve an end already adopted. Clearly, a given activity can be both
an end in itself and instrumental at the same time; a standard
example is that of playing basketball. This game does not only
provide entertainment but it is also conducive to the purpose of
being in good health and of nurturing ones sense of team spirit. Now
it is certainly not the case that one always has to act for the sake of
achieving one paramount end. An activity could have parallel ends,
i.e. be syntelic, if it amounts to pursuing more than one end, each
being independent of the other. Playing basketball does not fit this
description then; but going to the theater in order to see a play and
in order to meet friends, does. In contrast, suppose that someone is
engaged in a complex activity that has one outstanding and
overarching aim, like becoming very rich, then the various means
that are conducive to the attainment of that end are said to be
arranged in a well-organized, or orthotelic structure. Such an activity
certainly cannot be directed at independent and parallel ends. (113)
According to Kolnai, the aims of chess-players cannot be
characterized by any of the teleological categories sketched out
above. They are certainly not parallel ends as one could not make
sense of the aim of winning without conceiving the aim of playing the
game; and, in turn, in normal cases one does not play it without
trying to win. And while it is true that aiming at winning is
instrumental to playing, this aim is not in a proper heterotelic
relationship with the end of playing the game, as an instrumental
activity properly so-called can serve its end only if there is a need for
it being successfully accomplished. However, winning is not
necessary for playing a satisfactory chess game. Instead, the two
aims of chess players are in an enveloping, or paratelic, relation.
(113) While the aim of winning is subordinated to the aim of playing,
both are autonomous aims; the secondary or internal aim of doing
well in the game is characterized as the lateral implicate of the
primary or enveloping aim of playing the game at all.
Even if it is but rarely recognized that there are activities that could
be described only as serving two (or more) aims in an enveloping
relation, according to Kolnai they are very widespread. Is it the case
that we can find them only in contexts that are essentially game-like,
or rather chess was only a convenient example by means of which
the enveloping relation could have been properly explicated? We
need to note that the argument just presented centered around a set
of formal requirements. First, the primary and secondary aims
9

cannot be independent from each other, there must be a

subordination relationship between them. More specifically,
secondary aims are generated by the pursuit of the primary aim.
Second, the subordinate aim is not to be instrumental with respect to
the primary aim; indeed just trying to achieve the secondary aim
suffices for serving the enveloping aim. Finally, the internal aim is to
be still autonomous. It follows that whenever the pursuit of an
activity involves two aims that meet these requirements, we are
entitled to regard it as paratelic.
It is still reasonable to suppose that whenever an activity is pursued
in a game-like context, we should be ready to locate an enveloping
relation between the aims pursued there. Whether a certain practice
is more or less like a game is determined by the degree to which it
conforms to the strictures of the paradigm game of chess. The moral
philosopher might well find reasons for concurring with Kolnais
claim that the lusory character of many social institutions and other
setups can be cashed out by locating what paratelic activities are
undertaken in them. Examples abound. The various academic
endeavors, then trials of lawsuits, or even agricultural shows all
feature overarching aims like gathering knowledge, developing
suitable techniques, and finding out the truth; together with local
goals such as doing just a little bit better than our peers. (118-120)
Moreover, in all of these contexts competition for honors, promotions
and other distinctions may even be guided by an eirenic spirit. Note,
further, that such institutions of paramount importance as political
contests in an established constitutional order can be best
understood if we recognize that two aims are pursued in them. (125128) The sharp practices of partisan politics could still remain within
the bounds set by the democratic ideal. Indeed, we do well in
viewing politics in a pluralist constitutional order as conducted in
confines of sufficiently game-like rules. In well-settled parliamentary
democracies keeping to the constitutional rules is to be considered
as a fundamental norm.13
1.4 As participating in these sorts of practices and doing well in their
confines are aims in the requisite subordinate relation, and as
striving to succeed amounts already to participating in them, the
formal test for the enveloping relation is met almost automatically.
What about moral practices?

13

In contradistinction, moral and legal thought, when directed at political issues, are concerned with what is
objectively desirable for a political system. (128) The criteria of acceptability of rules that are to regulate and
guide political activities in constitutional regimes is among the most significant moral themes. I will not discuss
here this subject further.

10

Recall the case of Roberta. She finds herself in a problematic moral

situation, and cannot derive from acknowledged rules what the right
action for her to make would be. Now, it is reasonable to state that
she can still aspire to the status of being moral. However, after the
analysis of aims in games, we can further characterize what it is for
her to pursue moral aims. Robertas concern is with the fact that she
has promised to pay back a certain amount of money to Cuthbert.
First of all, fulfilling her promise may be taken as a means for
achieving some further end, namely, of achieving or sustaining the
status of being moral for herself. But this is not so: the concern with
fulfilling particular duties on given occasions is not so related to the
aim of leading a moral life, the overarching moral purpose. Fulfilling
ones duties is not just instrumental for the purpose of being moral.
Kolnai writes that it is also given body and determined at the level
of actual reality, by the diversified intention of obeying the moral
commandments in a way appropriate to the given situations or
necessities of decision. (122) This may mean that sometimes it
suffices to do everything in ones power in order to pay the sum as
had been promised. Or it could be that someone like Roberta is to do
her best to ascertain whether indeed she should hand over the
promised sum to Cuthbert who she suspects, nay is quite sure, will
use it to finance the activities of hackers who regularly deface the
homepages of charitable organizations for fun. So she has two aims,
that of doing well in that situation and that of being moral; and these
aims are, for her, not identical. And it is absurd to claim that she is to
keep her promise JUST for the sake of being moral. At the same time,
to do the right action when this is called for derives its meaning
from the blanket aspiration to moral goodness. (122) So the two
aims are not parallel; it is not possible to endeavor to fulfill some
duty, like fulfilling a promise, without at the same time regarding this
strife as also related to the concern with being moral. We are to note
then the two moral aims respect the formal criteria for two aims
being in an enveloping relation.
The above discussion may be formulated now as a thesis. According
to this thesis, the Enveloping Aims thesis, we have two kinds of
moral aims; one is to endeavor to do what morality requires
whenever this is called for, and the other is that of achieving the
status of a moral person; and these two aims are in an enveloping
relation. This formula further specifies then the argument according
to which the Constitutive Rules view cannot give an appropriate
characterization of what it is to be moral. This is because upon this
latter thesis, by keeping to acknowledged moral rules one satisfies
the demand to be moral; but then it is answered that it is not true
that one can meet all the various obligations one has without
considering how this affects ones overall moral status. If the
11

proposal is that there is one possible moral aim, that of keeping to

acknowledged moral rules, it is answered that someone who cannot
straightforwardly apply these rules in a possibly problematic
situation can still act in accordance with the chief moral purpose.

12

2.1 The case against the Constitutive Rules view would be

substantially weakened if the Enveloping Aims thesis was shown as
incorrect. So consider that by claiming that local aims such as
fulfilling a particular duty or moral task are in an enveloping relation
with the general aim of being moral, the thesis also claims that the
local aim is not instrumental with respect to the blanket, and also
that while fulfilling a particular duty is to be an autonomous goal, it
still derives its meaning from the blanket aspiration of being moral.
It can be objected that one cannot hold these last two claims
together.
According to this objection, those who embrace the Enveloping Aims
thesis should grant that we all seem to acknowledge that moral
demands can be presented as rules. (123) Suppose it is also accepted
that rules in general have to issue criteria on the basis of which it
can be ascertained, on any occasion when they are to be applied,
whether they are satisfied or not. Now one can surely acknowledge
that moral agents should both aim at following the moral rules and
aim at being moral. But if by following these rules one also satisfies
the encompassing aim, the two aims are not in an enveloping
relation. A moral agent may indeed encounter difficulties in some
situation with moral emphasis, but not in the form of finding out
what the rules require her to do. For this person, the ensuing
sequence of instances of rule-following constitutes the attainment of
the end she adopted. The Enveloping Aims thesis fails, and not only
because it is not enough that a person intends to do the right thing
at the right time with sufficient assiduity. Arguably, in order to fulfill
this kind of an aim she has to actually accomplish the series of tasks
demanded by following the rules; as there are clear criteria for what
this takes and as opposite inclinations should have only limited moral
relevance. It is more decisive that a local aim such as fulfilling a
particular promise could not any longer be regarded as autonomous;
the succession of carrying local moral tasks constitutes carrying out
the main moral purpose. Note also that this argument resists to
admit the possibility inscribed into Robertas case (1.2).
2.2 One defense against this objection is to insist that putative moral
rules are not always straightforwardly applicable in each situation
with moral emphasis. More precisely, there is more to meeting moral
demands than just application of rules; something may mediate
between a moral situation, on the one hand, and the relevant moral
rules, on the other. This seems to be the case in chess as well, where
one cannot derive rules for winning from the rules of that game. So
what can in general mediate between enveloped aims? Consider the
game of billiards. It is plausible to say that the actions to be taken in
this game are more or less meaningless outside of its confines, and
13

here as well there are two goals that players normally pursue. So it
resembles chess to a considerable extent. Moreover, in principle, one
can specify what actions have to be taken in order to achieve a
victory, in at least the vast majority of the situations that arise in the
course of playing this game. Still, the inherent difficulty of carrying
out the best means to winning, in billiards, is a matter of outstanding
dexterity, eye-sight, nervous condition and so on. At the same time,
the view according to which factors like dexterity and eyesight
should be regarded as mediating between moral rules and their
applications, is quite implausible.14
Or it could be proposed that what could hamper the application of
moral rules in particular situations is the inevitable presence of other
agents; as morally motivated actions, just like playing chess, tend to
take place in social contexts. Assessments of what the others future
actions will be feature in reasoning about what to do; but one cannot,
generically, foist these assessments in terms of moral rules. Consider
two agents engaged in a Prisoners Dilemma game in the case of
which many confidently say that there is a morally warranted
outcome. One can claim that no matter what putative moral rule is
followed, it cannot be assured that that outcome is reached.
However, that acting upon a moral rule is justified does not imply
that that rule has to call for the achievement of some specific
outcome. In the Prisoners Dilemma game in question, one may be
called upon choosing the action that is merely conducive to the
attainment of the supposed morally warranted outcome. The
proposal that the presence of others necessarily mediates between
moral rules and their application is not sufficiently clear.
Indeed, it is not even true that in chess ONLY the presence of the
other player mediates between the two aims of winning and that of
playing that game at all. Suppose now that a chess player becomes to
know, somehow, a complete strategy of his counterpart. A complete
strategy is to be conceived of as a full contingent plan of what will be
done, in each situation that may occur in the game. Let us say that a
winning strategy is one that assures victory to someone who is in
possession of such a full contingent plan of his counterpart. But in
chess we cannot tell whether there is a winning strategy responding
to each such plans. It follows that the complexity of chess is mainly
responsible for the fact that satisfying the aim of trying to win
requires special attention to details, including the assessment of
what the other players upcoming moves may be. As by the removal
14

However, Thomas Nagel observed that not managing to save a child from a building on fire due to
clumsiness has moral relevance; see his Moral Luck, in his Mortal Questions, Cambridge University
Press (1979), p. 25.

14

of the agonistic features of chess a pursuit of victory may still remain

an enveloped goal, one might be tempted to ascribe the requisite
mediating role to complexity and intellectual challenge alone. 15
Enveloping aims appear then in sufficiently complex games. By
analogy, it can be proposed that what mediates between the
secondary and primary moral aims is an intellectual difficulty. Doing
well in a problematic moral situation requires the solution of an
intellectual problem, that of finding out, even deducing, what
morality requires us to do in that situation.
Nevertheless, the argument against the autonomy of local moral
aims is not refuted, as there is no warrant for claiming that dealing
with moral rules is like playing chess, where there is no winning
strategy known to either of the two players. It is to be granted that
following moral rules could be quite challenging, just as, in some
games, finding a winning strategy could pose a challenge.
Nevertheless, strategies are also rules, and a winning strategy, if
known, is to be derived from the rules of the game it solves. Now
morality can also be taken as a practice where rules are sometimes
not that easy to apply. It can then be allowed that in problematic
moral situations one is to derive further rules from those that are
publicly available. Compare addition. Even if one has a sure grasp of
how to do it, adding many very large numbers could be difficult and
may require the employment of some suitable supplementary
techniques. But it is odd to state that rules of addition do not apply to
cases when freakishly large numbers are to be dealt with. But it
would be equally odd if the criticism of the Constitutive Rules view
would bank on invoking some specific feature of the game of chess. 16
A major premise of the argument against the autonomy of the
internal moral aim was that proper rules always have clear criteria
on the basis of which it can be determined, on occasions when they
are to be applied, whether they are satisfied or not. This premise is
to be examined next.

15

Pondering the psychology of ones partner could contribute to the charms of chess. But attempts at
determining what he will do never loses reference to the rules of the game. Recall the third
characteristic of Kolnais paradigm, that it can be displayed as a sequence of abstract moves (that it can
be played by correspondence).
It is to be noted that following what a good strategy dictates is not following public rules. One can deviate from
it and still play the game in question; a strategy can be revised in the course of the contest, rules of the game
cannot be. Also, in any game the aims of winning and that of playing are still different, notwithstanding the fact
that when the internal aim generated by the aim of playing is taken seriously, then a winning strategy, if known, is
to be implemented. However, it seems that the Constitutive Rules thesis can be amended so that this difficulty is
met, maybe as in Rawls, Kantian Constructivism in Moral Theory, p. 348.
16

15

Consider the case of Madeline, who is trying to solve a mathematical

puzzle. Let her endeavor be that of finding the proof of a theorem.
Striving for proving theorems is a specification of doing
mathematics, and grant that one can prove a mathematical theorem
only by abiding to a range of rules characterizing the practice of
mathematics. What aims are pursued by Madeline? Suppose that it is
not yet known, in the community of mathematicians, what the proof
is. Let us say that, enveloped by the aim of doing mathematics, she
has the aim of coming up with a significant result. So it appears that
she has two aims, if we bracket characteristic ambitions generated
by the academic practices of mathematicians. But suppose, in
contrast, that the proof of the theorem is well-known, indeed that
Madeline has already once worked it out. Wanting to solve the puzzle
is still an aim that is different from doing mathematics. Consider that
she thinks that only by solving this puzzle herself can she gain a real
understanding of the theorem, or can truly master the mathematical
field she is interested in. Doing mathematics, for her, amounts to
solving such puzzles as she encounters them. Indeed, she desists
looking up the proof in some books that are right behind her on the
shelf. Arguably, proofs of mathematical theorems can be regarded as
applications of rules, here conceived in a very broad sense. What
Madelines case shows is that doing mathematics generates internal
aims irrespective of whether particular puzzles have solutions or not.
The above example is not meant to prejudice the question whether it
is legitimate to regard moral requirements, or even moral consensus,
as an axiomatic system where from principles and maxims publicly
accepted, corollaries need to be derived. At the same time, one can
reasonably think that discovering what the moral consensus dictates,
in simple or in difficult cases with moral relevance, is part of what
pursuing the overarching moral aim demands. This suggests that the
Enveloping Aims thesis may have been presented in terms that are
too restrictive. In the case of Roberta, if she indeed had promised to
pay Cuthbert hundred dollars, and there is nothing more than this
that characterizes her situation, she should pay back that sum. But,
just like Madeline, she should aim at ascertaining that this is what
morality requires, she should strive at finding out and implementing
what morality demands.
However, in mathematics, there are criteria for what it is to
accomplish a proof. If indeed, striving to solve a particular
mathematical puzzle is an enveloped aim, it still can be checked
whether its real solution has been found or not. It is tempting to add
that it is not enough trying if one wishes to be a mathematician, or a
good mathematician. However, one imagines that in some cases it is
enough for a good mathematician to try very hard to solve a
16

challenging puzzle; there is a difference between the aim of being a

mathematician and between the aim of bringing to light new and
significant results. But in the current cases the focus is on the aim of
actually proving a theorem. So it is natural to suggest that for there
to be an enveloping relation between two ends, there must be some
criteria that settle what it is to attain the internal aim. And it would
be fallacious to equate an assurance that an agent will achieve her
aim with the criteria specifying what that achievement amounts to. If
there are no criteria for what it is to attain the enveloped aim, the
two kinds of moral aims will appear as independent, and this
threatens with undermining the thesis. One may add that lacking
such criteria moral agents appear as dangerously disoriented; and
also that conceiving success in employing moral rules to ordinary
moral situations on analogy of success in chess and in mathematics
is just too harsh.
2.3 As the strategy of accounting in precise terms for what mediates
between the two moral aims fails, an other line of defense of the
Enveloping Aims thesis is to be adopted. An other major premise of
the argument raised against it in 2.1 is that moral demands tend to
present themselves in terms of moral rules. But do we need to refer
to moral rules in formulating the thesis?
First, there are games, fitting Kolnais paradigm (1.1), in which the
aims pursued appear not to be in an enveloping relation. Suppose
that two persons are engaged in the following Table Filling game.
They play on a board of round shape, each has an infinite amount of
round pieces at his disposal, and these are much smaller than the
board (let us say that white alone could put at least seventeen pieces
on the board). One of them has white pieces only and the other has
black pieces only. The one who has the white pieces starts with
putting a piece on the board and then they take turns in putting
further pieces down. The criteria for putting down a piece are this.
Pieces cannot overlap (especially as they are three-dimensional, say)
and they have to be strictly within the boundary of the board. The
party that cannot any longer place a piece on the board loses. In this
game, as it is well-known, the first mover has a winning strategy;
furthermore this winning strategy is peculiarly easy to follow. If he
knows what this strategy is, there cannot be a difference for him
between the aims of winning and of playing, respectively. It can be
claimed then that the presence of explicit constitutive rules is not
sufficient for the generation of enveloping aims, unless it is insisted
that the very strive, to achieve the internal, enveloped aim, no matter
how intensive this strive needs to be, mediates between the two
aims. I will return to this issue shortly.

17

Now, next, it is not necessary for two aims to be in an enveloping

relation that they are pursued in contexts that are rule-bound.
Consider Kolnais Wittgensteinian example of a man who may induce
himself to swim just by jumping into the water. 17 (The example can
obviously be further dramatized.) That is, entering a practical
context is likely to generate purposes, or one paramount purpose,
appropriate to that context.(116-117) This neither grim nor
properly hedonistic immersion in deep water creates not only a
purpose but also a more or less crisp criterion for what it is to attain
it. However, there are criteria on the basis of which one can tell
whether an other swims or not, or whether he has indeed swum
ashore, albeit these criteria cannot be expressed as a set of rules. 18
But chess is then a special context, where an enveloped aim is
generated by submitting, specifically, to a set of public and
constitutive rules. These rules then create a context that in turn
brings about a clear purpose, and these rules indeed span criteria
that settle what achieving this purpose amounts to; just like jumping
to the water gives rise to the aim of swimming, let us say, ashore. In
normal cases, whether that has been achieved can be
straightforwardly verified. But then the counterargument to the
Enveloping Aims thesis presented in subsection 2.1 is disarmed.
And if one is to reject the view according to which the need for
striving to achieve an internal aim is capable of generating an
enveloping relation between aims, the two arguments in this
subsection, taken together, also point to a conceptual independence
between an enveloping relation between aims and constitutive rules.
But the view in question may not be taken as already rejected on the
strength of the considerations presented at the end of subsection
2.2, as there it was still presumed that moral demands take the form
of moral rules, that in turn feature criteria for their correct
application. So we seem to face now two options. If we POSIT that
striving can mediate between local and enveloping moral aims, the
objection that the sequence of the former of these aims constitute
the latter aim is met. But this is no more than positing that this is
true. Or, alternatively, we can disemphasize the issue of striving, and
of trying, to achieve the local aim. In this case, however, the
constitutedness objection has not been met. This is because the
objection can be rephrased in different terms: whatever is the main
17

Ludwig Wittgenstein, Philosophical Investigations, 613.

18

A clear difficulty with this example is that jumping into the water may just be a matter of whim. Of
course, while you may see the merits of forcing yourself to swim, you may as well just be playful in the
jumping episode. To complete the description of the example, the primary aim, giving meaning to the
goal of swimming, has to be supplied. In contrast, everybody should have the aim of being moral,
indeed, for Kolnai human beings are constitutively moral beings. (122)

18

moral purpose is, carrying out what it demands in a particular case is

part of that moral purpose. So local moral aims may not be
autonomous. As we will see, this is not, after all, a dilemma.
2.4 It was charged against the Constitutive Rules thesis in section 1
that it cannot account for the intuition that there may be cases when
even if someone, like Roberta, is not able to apply appropriately
straightforward moral rules, she may still be regarded, if further
facts also hold, as having retained her status of being moral.
Juxtapose this now to the further claim according to which, upon the
thesis, if someone always keeps to moral rules, taken as constitutive
of moral practice, then this person meets all the requirements there
are for him to be regarded as moral. However, one should be called
moral only if, in addition, he also aims at keeping these rules of
morality. What is required of moral agents, and what could indeed
present itself as a great challenge, is endeavoring to do what
morality demands on the relevant occasions.19
For an amplification of this point, consider the oldish distinction
between internal and external sanctions that accompany moral
injunctions.20 Now on the Constitutive Rules thesis, one should say
that whoever has breached a promise has, ceteris paribus,
transgressed moral requirements. One may refrain from such
violations of moral requirements because of the fear of external
sanctions. Of course, these need not be legal sanctions. Even if a
promise has been made in a non-legal form, whoever does not keep
it, again ceteris paribus, acts against moral requirements; and as a
promise involves a promisee, any instance of violation of moral rules
is public and will likely be met with resentment. Suppose that this
sort of sanction traces clear criteria for ascertaining that a
transgression has indeed occurred. The Constitutive Rules thesis is
to admit that a man who kept his promise only because of fear of
external sanctions is still to be considered as moral. According to the
Enveloping Aims thesis, one should aim at keeping ones promise,
ceteris paribus, for its own sake, not for the sake of something else.
It can refer to the internal sanction of recoiling not only from the
thought that a breach of promise is contrary to following the moral
purpose, but also from not regarding keeping a promise as an aim in
its own right. To summarize, the main objection against the
Constitutive Rules thesis is that keeping to putative moral rules is
neither necessary nor sufficient for sustaining ones moral status.
19

A fuller statement would claim that one has to will to keep the rules of morality. I do not find it
necessary to involve the subject of willing in this paper.
20

See John Stuart Mill., Utilitarianism, Oxford University Press (1991), pp. 158-160

19

Thus it misapprehends the aim and the status of being moral, and
this is because it lacks resources for accounting for the structure of
moral aims.
Now, at the same time, the Enveloping Aims thesis can come
together with an account of the status of moral rules. It can identify
criteria for attaining a local moral goal in terms of moral consensus;
these criteria are to be thought of as being inscribed into the moral
consensus. But cannot the moral consensus always be expressed in
terms of a set of rules? Note that moral consensus is sustained by
agents being actively engaged with it, so it is prior to moral rules. So
even if it could span a set of rules, as it is only by establishing
oneself firmly within the moral perspective that one can learn fully
what serving the moral purpose demands, moral requirements, we
should say, appear as a system of rules only for those who had been
acting, in a long series of cases, having that purpose foremost in
view.21 It follows that keeping to moral rules is not a matter of their
straightforward application to particular cases; and there is no
guarantee that applying moral rules would never pose a major,
possibly intellectual, challenge to agents. Also, the conception of
moral consensus invoked here admits that disagreements about the
dictates of morality are part of moral practice. And if there are
legitimate and significant disagreements concerning what moral
rules we should follow, being moral cannot be the same as doing
always what prevailing moral rules require us to do.
Three residual problems remain, however. First, moral rules are felt
to be public rules, tend to be expressed as such, and more often than
not keeping to them does not appear to issue an intellectual
challenge. Second, one cannot claim, in light of the discussion at the
end of subsection 2.3 that the force of the objection according to
which local moral aims are not autonomous has been completely
discharged. Finally, the Constitutive Rules thesis, in the form it has
been so far examined, could be thought of as just incomplete or
elliptical. Accordingly, it may be restated as claiming that moral
agents indeed are to aim at being moral and also that, in particular
cases, they are to aim at following moral rules. It could even be
granted that all the formal requirements for these aims to be in an
enveloping relation are to be taken as satisfied. Is this revisionary
view coherent?
I will discuss these problems in the last section.
21

John Rawls identifies a version of this statement as a component of the view that is the main rival to
conceiving practices as constituted by rules, Two Concepts of Rules, pp. 34-36.

20

3.1 In ordinary conduct, imposing rules on oneself could be an

expedient device.22 Now, practices without moral emphasis also
generate aims that are in an enveloping relation: [A] paratelic nexus
also appears discernible between the single practical purposes
subsisting or emerging in a persons life and his possible indeed,
virtually always present ensemble of permanent and paramount
aims: that which traditional philosophies have arbitrarily and
forcedly, but not altogether imaginarily, construed into the final end
of man.(123) That paratelic, or enveloping, aims appear in generic
practical contexts as well is not surprising, as moral deliberation is
not essentially different from deliberation in general; moral decisions
cannot be reached without first asking the core practical question,
what shall I do?. Now, deliberation is primarily about the end or
ends that we wish to attain.23 Indeed, the need to find out our main
ends presents itself as a demand of practical rationality. This is
because by identifying our ends, we enhance the likelihood of
attaining states of affairs that are advantageous or otherwise good
for us; consider what it would be like to live without any end we wish
to reach.24 Above, it has been proposed that the overarching moral
aim is related to what has been called moral consensus. However,
non-moral practical ends are best conceived as lacking any reference
to a consensus, individuals have enough authority in setting them up.
So how may we account for the relation between secondary and
primary aims in generic practices?
Suppose a person has as a permanent and paramount aim the
understanding of the literary genre of the epic; suppose also that he
is ready, nay quite happy, to seek this aim for its own sake. It appears
to him that this end is a specification of his further ambition of
understanding how human characters are shaped by the
circumstances they encounter during their lifetime. Now his interest
in the epic is in the background when he sets up his current aim of
mastering what it is to know about the Victorian novel. As this is
currently his main hobby, it is certainly a focal practical purpose for
him. For his two aims to be in an enveloping relation, first, he should
not regard the Victorian project as just a means to the achievement
of the enveloping aim, that of understanding the epic. This criterion
According to the Constitutive Rules thesis moral rules are public. Of course, self-imposed prudential rules are
not really public, unless there arises the need to make them public, possibly in order to enhance their efficacy.
22

23

Aurel Kolnai, Deliberation is of Ends, in: Ethics, Value, and Reality, pp. 44-62.

24

See Harry Frankfurt, On the Usefulness of Final Ends, in his Necessity, Volition, and Love,
Cambridge University Press (1999), pp. 82-94. Also, we may accept that everybody has an ensemble
of permanent and paramount ends before addressing issues like how far shall one look ahead when
pondering what ends to adopt, or whether it is reasonable to regard rational persons as seeking one
settled, even final, end?

21

is likely to hold because of the inchoateness of his primary end.

Further, his thorough engagement with the world of the threedeckers should derive its meaning from his purpose of attaining a
satisfactorily good grasp of what epic narratives really are. This
requirement is more problematic. We surely need to suppose that
some achievement in his project, the study of the Victorian novel, is
necessary for it to qualify as an aim that derives its meaning from the
enveloping end. Just recounting compulsively how many novels
Wilkie Collins wrote, or getting lost in the details of the secondary
literature on Dickenss biographies, will not do. But can the
corresponding criteria really be spelt out with exactness?
Let us say that upon accepting a paramount aim one is also to
determine what its achievement amounts to, and how it can generate
a secondary purpose, or purposes. We may even suppose that once
such an aim has been embraced, it is advisable to submit to rules
that bind oneself; even if tentatively, putatively, and only temporarily.
This is because by endeavoring in confines of rules, we make criteria
of progress more explicit by creating a more or less structured
hierarchy of purposes. Kolnai writes, [on] the pre-moral level of
Commitment, submission to objectively given standards of
rationality (not without properly moral implications) still fills an
essential place but the central postulate here is the self-limitation of
freedom as a condition of its efficacy. By submitting myself to rules,
I create further goals for myself, compromising my freedom to
pursue what may subsequently seem best to pursue.
Moreover, it is often efficacious to commit oneself to rules in a quest
for identifying what ones end is. Suppose that in my zeal to become
a worthy poet, I decide to write poems in the sonnet form; given the
pedigree of this prosodical device and my admiration for many
wonderful poems written in this form, I judge that I do well limiting
myself to its rules. Then when actually composing my poetry
subsequent to this decision, I am committed to the rules of sonnetwriting. Even if I feel that somewhere in the third verse I could
express myself better if my line would not need to rhyme with so
bracing, I should not for that reason abandon my resolve to
complete my work in confines of the rules I imposed on myself. I seek
my aim of perfecting my poetry through writing sonnets, and it could
also be the case that it is during my sonnet-writing episodes that I
discover what prosodical form really suits my vein; then I am to
switch to that. But my submitting to rules does not entail that my
main aim is to keep them.
It is indeed possible that the man who is a student of the epic could
better serve his paramount aim if he strives to erect sufficiently
22

sharp criteria for what it means to attain it. But it would be odd to
suggest that he can employ straightforwardly available rules. So we
are to return to the dictum that he does best by wholeheartedly
adopting a project pursued for its own sake, like that of determining
who is the most Homeric author among the great Victorians, and at
the same time not losing sight of the aim of putting his finger on the
essence of the epic genre. [The] individual shapes his own will
through deliberation, which means a swinging to and fro between
distinct and partly incompatible sets of purposes tied up, inevitably,
also with successive re-examinations and tentative revaluations of his
firmament of constant and ultimate aims.(126)
3.2 At one point, in the course of a short discussion of the
relationship between morality and practice in general, Kolnai
explicitly invokes the idea of the game of morality. He claims that
serving the moral purpose is, at the end of the day, in an enveloping
relationship to the aim of achieving overall happiness in ones life. 25
The structure of the argument is familiar: it cannot be the case that
we aim at being good or moral just for the sake of being happy. To be
fully consistent, he would have needed to add that the aim of being
moral derives its sense from the blanket aspiration of leading a
happy life. Instead, skirting confusion, he states that happiness
reached by transgression of the rules of the moral game, in
disrespect of its constitutive rules, would be deprived of value
(123); as if happiness derived its meaning from being moral, consider
that attaining happiness is the primary aim in his discussion. I
suggest, however, that his brief reference to constitutive rules of
morality ought not to be dismissed as an instance of selfcontradiction.
For consider how moral deliberation could be conceived of if we
denied that there were public rules of morality. On Kolnais account,
criteria for attaining the status of being moral is assured by the
moral consensus. If this is not present as a set of public rules, it has
to be accessed by moral learning, as at the outset its terms are only
available in a rudimentary manner. Indeed, the very contours of what
the moral purpose amounts to may become sharpened only if one
most assiduously seeks, on the basis of ones current understanding,
what that purpose actually is. This is potentially very demanding;
sustained attitudes like wholehearted attention and a keen interest
in the details of the situations one encounters may not be enough.
25

A case might be made out, further, for morality itself relating in a paratelic mode to the agents
conspectus of concerns, or ideal life or happiness or self-realization or summum bonum or
whichever of these and similar misleading terms one may choose to accept with due reservations.
(123)

23

In contrast, submission to public moral rules generates a more or

less organized structure of moral purposes and concomitant criteria
for attaining the status of being moral; just as in the case of chess,
where people subject themselves to rules in order to have no more
than sheer enjoyment. Is this proposal compatible with the
Enveloping Aims thesis? First, as it has been argued, even if
following public moral rules is posited as the dominant moral aim,
aiming at doing the right action on particular occasions could still be
an autonomous task. Also, it is a non-negotiable demand that
prevailing moral rules are derived from the background moral
consensus. While that consensus is not essentially rule-like, it might
be capable of being converted into rules, precisely for the sake of
erecting criteria for the rightness of moral actions on particular
occasions. This is arguably expedient for both the community and the
individual moral agent alike; and this could even give rise to some
residual eirenic mood that may accompany such gestures of
submission. But it does not follow that the paramount moral aim is
that of always following public rules of morality. These only
approximate what the consensus demands; just as by submitting to
the rules of the sonnet, the poet does not need to aim only to keep its
rules or even to be a worthy writer of sonnets.
Now public moral rules are frequently up to challenge. However, this
does not mean that everyone would be ready to scrutinize or even to
criticize the prevalent ethos. The case of a moral zealot is special.
She is ready to call for taking the prevailing rules more seriously, or
even to setting up as a task for herself to find the right public rules,
appealing possibly to the terms of what is called here the moral
consensus. If the zealot judges that the current public rules fall short
of what the consensus demands, she may proceed to announcing how
the prevalent rules could be reinforced or even improved. 26 John
Rawls would say that being a moral zealot amounts to holding a very
special office.27

26

Consider again chess. Its enthusiasts play it partly because they think that its rules are conducive to
their entertainment or to improving their mental abilities or to something else. To that extent its rules
are good. But as the aim of entertaining oneself properly is prior to that of playing chess, one can
reasonably ask the question whether the rules of chess could be improved. It is not only because of the
inchoateness of this aim that this question is actually not frequently asked. Indeed, one needs to be a
very accomplished and very bold man in order to raise seriously the question of what other rules could
a game have that would entertain chess players better; and it is not to be presumed such a person will
be found among the best players or among those who love chess most fervently. Should, however, such
a question somehow arise, it is the opinion of these latter sort of people one would care for the most.
27

See Rawls, Two Concepts of Rules.

24

3.3 The immediate context of Rawls version of the Constitutive

Rules view is a debate about the authority of the Utilitarian
Principle.28 As an overarching, and still putative, moral principle, it is
available to each moral agent. Those who endorse it are also ready to
employ it in situations with moral emphasis. But authorizing moral
agents to act according to this principle leads to well-known
problems. On a certain occasion, Roberta may not keep her promise
because she judges that the overall good would be better served by
breaching it. But we all think that promises should just be kept, and
that it is not really up to an agent to excuse himself from doing what
has been promised upon considerations relating to the overall good.
Similarly, serving the overall good may dictate that a certain person
may be punished in order to deter others from committing bad acts
in the future, even if he is totally innocent. But we all think that
innocent people ought not to be punished. So Rawls writes that we
can better account for our considered moral judgements if we seek
to justify whole practices instead of actions falling under these
practices. And one can hardly imagine rules erected on the basis of
the Utilitarian Principle that would allow the punishment of
innocents, or that would allow particular persons to judge whether
keeping their promises furthers the overall good or not.
For Rawls, punishment and promising are practices that are
constituted by rules. Indeed, his account of what strategy
utilitarianism should follow relies on the claim that rules are prior to
actions falling under them. On the other hand, the problems outlined
above arise only if we allow agents to employ the Utilitarian Principle
in particular cases, and to derive rules that are no more than useful
generalizations to guide future actions. If, on the contrary, rules are
to constitute practices, actions themselves are not to be justified, as
they only make sense within a certain practice. The right question
about the warrantedness of an action is whether the rules of the
practice call for it or not. What is to be justified is the practice that is
constitutive of the actions falling under it. How odd would it be if in
the game of basketball, spanned indeed by constitutive rules, a
player who has just committed his fifth or sixth personal fault would
ask why he really has to leave the court; it would be even more
absurd if he would not want to leave the court because of his
disagreement with the rules of the game.
Now are punishment and promising really practices constituted by
rules? Punishment and promising have moral relevance. For the case
of punishment, Rawls argues that the legal framework in which
punishment tends to take place is constituted by rules. In forwarding
28

See Rawls, Two Concepts of Rules.

25

this argument, Rawls shimmies out of the strict sphere of moral

practices, but notwithstanding his disclaimer at one point, Rawls
thesis is partly a thesis about moral judgements. 29 Furthermore,
there are very many, ordinary and small-scale, punishments that both
take place outside of the legal framework and may be even be
morally justified. But grant to him that punishments that are
significant for a moral theory ought to be dealt with by some
appropriately designed legal framework. The case of promising is
different. Here he argues that by performing the utterance I hereby
promise you one already acts upon the rules defining the practice
of punishment.30 Now suppose Sally has at one point did utter those
words, saying that she promises to pay back hundred dollars in a
month, but now finds that she is not inclined to carry out what she
has promised, because of her judgment that the promisee will use
the sum for some palpably bad purpose. In Rawls view, this woman
should be corrected; given that she participates in the practice of
promising, she is not justified to challenge the rules of this practice.
But what practice does this person participate in? Practices are
defined by their rules, that are themselves created on the basis of
some encompassing principle. It matters for the content of the rules
whether they were derived on the basis of the Utilitarian Principle or
not. Now it is a mistake to think that Sally has to understand that she
is part of a practice generated on the basis of the Utilitarian
Principle. On the other hand, other kinds of justifications for the
rules that are to bind a promiser may allow her to judge whether the
sum she is to pay back will be used for some palpably bad purpose or
not, and act accordingly. This argument is not about whether it is
right of Sally to ask after the justification of the rules that are to bind
her at the wrong time and in the wrong place. It is rather claimed
that she may just wonder what exact rules are to bind her as THIS is
determined by the justification of the rules themselves. But if
promising is not a practice constituted by rules, the Constitutive
Rules thesis fails. Of course, it could be taken as a practice
constituted by rules, if the principles that generated its rules are
accessible and justified to all. However, given that Sally understands
what promising is before she would know which rules concerning
promise-keeping binds her, shows that her moral practice is not
constituted by rules prior to that practice.
Kolnais conception of moral consensus is to give an assurance that
the requisite principles can be found by all. In the case of practices
like chess or basketball, there is no warrant to posit that a requisite
consensus exists, as what their players seek through them are
29

See footnote 1.

30

This statement is the starting point of the argument of Searle, How to Derive Ought from Is.

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purposes suitable only to them. So they do well in agreeing to a set

of constitutive rules that are to regulate their entertainment and
contests. Be this as it may, for moral practice, even if it was entirely
constituted by rules, the aim of following these rules cannot be made
sense of without the justification of these rules, and therefore
without considering what the aim of being moral demands of agents.
So the Constitutive Rules thesis cannot generate two kinds of moral
aims that are in an enveloping relation. And as it radically dissociates
these two sorts of aims, it is to be discarded or otherwise
substantially revised.

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