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Rejoinder: The Possibility of a Fair Paretian |
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Howard F. Chang [View as PDF]
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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."
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