Tuesday, 31 October 2000
110 Yale L.J. 237 (2000)
In other writing, we advance the thesis that legal policies should be evaluated solely on the basis of their effects on individuals' well-being, meaning that no independent evaluative weight should be accorded to notions of fairness. In that work, we consider a variety of principles of fairness, justice, and corollary concepts that are conventionally employed in the assessment of legal rules. In the course of our research, we discovered that each of the leading notions of fairness that we examined could be shown to conflict with the Pareto principle; that is, consistent adherence to any of the notions of fairness would, in some circumstances, make everyone worse off. This observation led us to inquire about the generality of the conflict, and we explored it in two articles. In the first, we demonstrated that, in symmetric settings (in which every person is similarly situated), every individual will necessarily be made worse off whenever a welfare-independent notion of fairness is decisive. In the second, a short, technical article intended for economists, we presented a formal proof of the proposition that, in all cases (symmetric or not), if a welfare-independent notion of fairness is given any weight in making social decisions, there will exist circumstances in which everyone is made worse off.
Howard Chang has written an article in this journal that addresses aspects of our second article. He accepts the validity of our formal proof, but he challenges the appeal of our assumptions. Furthermore, he suggests that certain notions of fairness that do not satisfy these assumptions, including his own conception of liberal welfarism, could be sufficiently modified so that they would not conflict with the Pareto principle. (Chang's precise claim is unclear, however. The overall thrust of his article may give the reader the impression that many familiar notions of fairness might be susceptible to modification so as to avoid conflict with the Pareto principle, yet the analysis itself suggests only the logical possibility that the conflict can be circumvented with respect to modifications of certain types of notions of fairness, which are not formally specified. )
We begin this Reply by summarizing the demonstration in our first paper of the conflict between notions of fairness and the Pareto principle. This demonstration, which Chang does not contest, is easier to understand than our second, and it is independently sufficient to establish our conclusion. Then we consider our second, more technical demonstration of our conclusion. We emphasize that the two assumptions that Chang challenges are really minimal in character; in essence, they amount to requirements that normative theories be logically consistent. (Indeed, the relevance of centuries of moral philosophers' normative discourse depends on one of these assumptions.) We also explain how, even when one does not require logical consistency in the respects to be articulated, Chang's effort to show that certain notions of fairness can be altered so as to avoid conflicts with the Pareto principle is unsuccessful. Finally, we offer brief remarks on Chang's liberal welfarism, drawing upon arguments from our larger work.
Before proceeding, we should note that we are well aware that many readers will be reluctant to accept our claims. First, the idea that all plausible notions of fairness conflict with the Pareto principle may seem surprising; indeed, it came as a surprise to us during the course of our research. Yet, analysis has revealed it to be true to a general extent. Second, some of our analysis--particularly the second demonstration with which Chang takes issue--is of a technical nature. We endeavor to explain the relevant points in accessible terms so the reader can see what is really involved in considering them. Third, the fact that notions of fairness have broad intuitive appeal to everyone--including to us--seems in tension with our critique. In our conclusion, however, we briefly draw upon our other writing to sketch some of the ways that this appeal can be reconciled with our overall thesis that notions of fairness should not be employed as independent evaluative principles in the assessment of legal policy.
Tuesday, 31 October 2000
110 Yale L.J. 251 (2000)
In their reply to my article, Kaplow and Shavell deny that either F* or F** is "a Pareto-conflict-free notion that is not solely based on individuals' well-being." The basis for their claim is obscure, but Kaplow and Shavell apparently seek to expand their definition of welfarism to include F* and F** and accordingly add new restrictions to their definition of fairness. In their reply, Kaplow and Shavell suggest for the first time that their notion of welfarism would allow rankings to depend on more information than just individual utility levels. First, they assert that rankings under their framework could depend on information about individuals, so that social choices "could give more to Joe because he is tall and less to Jill because her preferences are objectionable." Even assuming that the definition of welfarism allows such information about the characteristics of individuals to be morally relevant, this concession is still insufficient to bring F* and F** within the definition. If F is liberal consequentialism, for example, then F* and F** require not information about individuals but rather information about the effect of each alternative on the type of utility enjoyed by each individual. Under either F* or F**, it is insufficient to know that Jill has objectionable preferences. We must also know the degree to which each alternative satisfies her personal preferences.
Perhaps Kaplow and Shavell now intend to include such information about alternatives within their framework. They suggest, for example, that they do not intend to include any fairness regarding distribution in their definition of fairness. In their prior writing, however, they exclude only "some" distributive concerns, namely those based "solely on individuals' well-being." They contrast these welfarist concerns with "theories bearing on the just distribution of income . . . not based solely on individuals' well-being," which "can be shown sometimes to . . . conflict with the Pareto principle." Indeed, they claim specifically that their formal proof of a conflict between the Pareto principle and fairness "encompasses distributive theories that are not based only on individuals' utilities" as subject to their claim. Thus, because the distributive fairness in F* and F** is based not only on individuals' utilities but also on other information, they are among the fairness theories supposedly subject to their claim regarding a conflict with the Pareto principle.
Kaplow and Shavell can bring F* and F** within their definition of welfarism only by modifying that definition to allow in any fairness information that can affect the distribution of utility. After all, the fairness criterion F could give weight to any fairness notion criticized by Kaplow and Shavell, including corrective justice and retributive justice. I gave liberal consequentialism as only one example of a fairness theory F. If F instead is a theory that gives weight to notions like retribution and corrective justice, then so will F* and F**, which make the fairness optimum under F relevant for ranking alternatives. Thus, F* and F** would allow in considerations that Kaplow and Shavell specifically seek to exclude from our analysis of legal rules. If they seek to define welfarism this broadly, then they have departed radically from the standard definition and left themselves with a notion of welfarism with little content. Given that they cite the Pareto principle in support of their sweeping attack on all such fairness notions, their readers may be surprised to find out that Kaplow and Shavell now agree that giving weight to all these notions in functions like F* and F** is in fact consistent with the Pareto principle. That is, regardless of what Kaplow and Shavell mean by "welfarism," my article demonstrates that the Pareto principle by itself cannot provide support for their general recommendation that legal policy should be evaluated using a framework "under which assessments of policies depend exclusively on their effects on individuals' well-being."