Minding the Gaps: Fairness, Welfare, and the Constitutive Structure of Distributive Assessment

Despite over a century’s disputation and attendant opportunity for clarification, the field of inquiry now loosely labeled “welfare economics” (WE) remains surprisingly prone to foundational confusions. The same holds of work done by many practitioners of WE’s influential offshoot, normative “law and economics” (LE). A conspicuous contemporary case of confusion turns up in recent discussion concerning “fairness versus welfare.” The very naming of this putative dispute signals a crude category error. “Welfare” denotes a proposed object of distribution. “Fairness” describes and appropriate pattern of distribution. Welfare itself is distributed fairly or unfairly. “Fairness versus welfare” is analytically on all fours with locutions of the form “warmth versus clothing” or “35 mph versus tennis balls.” Framing disputes in this way leads us nowhere. It only miscarries our thinking. A more venerable source of perplexity is found in the hallowed Pareto criterion (PC) and its conceptual kin. One proffered advantage of the PC is its purportedly enabling “us” to sidestep contested questions of interpersonal comparison, aggregation and distribution. But what manner of collective agent – what “we” – might plausibly be expected to take interest in unavoidably resource-distributive prescriptions, without view to the propriety with which these treat each member of the collectivity effectively addressed by the prescriptions, is left unidentified. And as soon as we plausibly fill-in the gap, the PC and kin prove prescriptively sterile. We get nowhere until we confront distributions – and de facto distributors – head-on. This Mongraph seeks to lay out with some care both when, and how, such confronting should be done. It specifies both the conditions, and the appropriately structured mode of analysis, under which distributive-ethical assessment is called for and apt to bear fruit. The means to success lie in carefully mapping the constitutive structure – the full valence grammar – of distribution-implicative claims. Effectively normative claims concerning distributions wrought by legal rules, programs or policies, if they would be so much as cognitively complete let alone ethically assessable, must assign values to all variables opened by the case grammar of “to distribute” and cognate infinitives – “to allocate,” “to apportion,” “to mete out,” etc. They must, that is, determinately and inter-compatibly indicate to whom claims are in effect being addressed, what is effectively being distributed, pursuant to what pattern the latter is being distributed, by what means and to whom. To be normatively defensible, in turn, such claims must not only carefully specify, but also must ethically justify, the jointly compatible values they proffer for filling those variables. The normative payoff of the mode of analysis proposed here is a compelling distributive ethic, a means of rendering past and present foundational disputes both tractable and conclusively resoluble, and in the end a new research agenda for what the Article labels an “ethically intelligible law and economics.