Senseless Kindness: The Politics of Cost-Benefit Analysis

57 Pages Posted: 14 Oct 2011

See all articles by Louis E. Wolcher

Louis E. Wolcher

University of Washington School of Law

Date Written: Winter 2007


This essay dwells on a social phenomenon that the Russian Jewish novelist and war correspondent Vasily Grossman calls "senseless kindness." Emerging without prior warning from certain face-to-face encounters between human beings, the striking reversal of preferences that characterizes this phenomenon can be used to cast a critical light on the practices of Cost-Benefit Analysis ("CBA"). Not only does senseless kindness highlight the troubling theoretical problem of determining the "correct" ex ante -- the point in time at which CBA measures people's preferences -- it also suggests a more general critique of CBA's indifference to how preferences are formed and expressed.

This essay shows that CBA ignores the concrete experiences of everyday human sociality and communicative action by modeling them in all instances as "transaction costs" to be reduced or avoided rather than celebrated, or at least studied for their meaning. Missing from CBA is any sense that the face-to-face encounter between human beings is, or can be, a moment of both individuation of the participants and transformation of their preferences, in which genuine freedom and politics, in the largest senses of these words, are first made possible.

Obsessed with what preferences are, CBA ignores the question of how they emerge. The result is not just a partial and partisan view of the possibilities for human decision making, but also a technique that puts the validity of individual preferences beyond all question and rational deliberation. Skeptical or afraid of government's ability to change culture, certain scientistically-minded decision makers are happy to rely on a technique that purports merely to reflect information about "what the people want." However, CBA does not in fact mirror preferences as they are; instead, it constructs them as they would be if the entire meaning and value of human reason were reduced to purely instrumental (means-ends) calculations on the basis of correct technique, and if (per impossible) all context of people's concrete life histories were somehow removed. Purporting to be a descriptive science of what people just happen to prefer, CBA's theoretical model actually often produces a peculiarly asocial account of what their preferences ought to be.

Keywords: law and economics, cost-benefit analysis, philosophy of law, ethics

Suggested Citation

Wolcher, Louis E., Senseless Kindness: The Politics of Cost-Benefit Analysis (Winter 2007). Law and Inequality: A Journal of Theory and Practice, Vol. 25, No. 1, 2007, Available at SSRN:

Louis E. Wolcher (Contact Author)

University of Washington School of Law ( email )

William H. Gates Hall
Box 353020
Seattle, WA 98105-3020
United States

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