The Grounds of Welfare
35 Pages Posted: 18 Mar 2003
Date Written: 2003
In Fairness versus Welfare, Kaplow and Shavell argue that legal practice and calls for its reform ought to be assessed exclusively by their expected impact on welfare. In particular, they argue that insofar as considerations of fairness are not aspects of an individual's welfare, they have no place to play in the evaluation of the law. In this review essay, I show that this claim is not only inadequately defended in the book, but in fact indefensible. In particular, I argue: (1) whereas the central claim of the book requires a normative argument, all Kaplow and Shavell offer is an empty tautological claim; (2) that in addition they offer an evolutionary argument that is either a non-sequitor or is so strong as to undermine their own thesis; (3) that the arguments they purport to offer work as well to defend fairness as against welfare as they work to defend welfare as against fairness - that in either case they do not work at all; (4) that they offer an inadequate conception of human welfare, one that makes the claim that the law should be evaluated exclusively in the light of its impact on welfare, not merely implausible, but altogether mysterious; and (5) that any more plausible account of welfare that would be adequate to explain why the law ought to be assessed by its impact on welfare is also sufficient to explain why the law ought to be assessed by its impact on fairness.
Suggested Citation: Suggested Citation