- The Washington Times - Tuesday, July 9, 2002

That law should be based on fairness is an axiom of our age. The premise of many policies is moral: The prohibition against murder reflects the Judeo-Christian conception of human beings made in the image of God and possessing transcendent value. But in "Fairness Versus Welfare," Louis Kaplow and Steven Shavell, both Harvard law professors, challenge this conventional wisdom. They argue that what matters most is whether a particular policy promotes the general welfare, saying "we discover very little basis for the use of notions of fairness as independent evaluative principles."

It is an irritating, counter-intuitive argument, yet the authors joyfully take on all comers. They base their case on welfare economics, which focuses on individual well-being as the measure of policy. In contrast, relying on fairness, they contend, creates a host of problems: What is fair, for instance? They say simply that, "satisfying notions of fairness can make individuals worse off, that is, reduce social welfare."

In some cases, basing law on fairness will make everyone worse off, a result which they find to be unacceptable. And, they add, "the conclusion that in some circumstances all individuals will be made worse off as a consequence of pursuing any notion of fairness reveals that fairness-based analysis stands in opposition to human welfare at the most basic level."

Torts, for instance, typically presume that fairness requires compensation for those harmed through others' negligence. The authors make their case in extraordinary, sometimes excruciating, detail (the book is accessible to laymen, while the authors are law professors). The very distinction between victims and injurers, they suggest, is often arbitrary.

The authors contend that the emphasis on supposed fairness often harms the general welfare. Although the idea of separating torts from fairness generates a primeval scream, the authors make a strong case: "Mistakes in policy judgments in the area of tort liability seem inevitable if the discourse and analysis are, as they have been, so influenced by notions of fairness that they fail to incorporate in a systematic and careful manner instrumental factors of central importance to everyone's well-being."

In the area of contracts the authors suggest that firmly enforcing promises is likely to make many people worse off. The oft-argued contrast between all versus no promises being kept "provides no basis for insisting on a version of the institution that reduces individuals' well-being relative to the level achievable under an intermediate version in which most promises would be kept."

The toughest case involves law enforcement. Here, surely, fairness must determine punishment. No, say the authors. For one thing, fairness is not self-defining. If a "fair" punishment results in more murders, they argue, greater injustice is occurring. They augment their case by pointing to the inherent imperfection of the criminal justice system. The possibility of punishing the innocent doesn't deter them. After all, tougher penalties, even if "unfair," will, through more effective deterrence, reduce the number of not only innocent victims, but also innocent people erroneously punished.

Every system makes trade-offs, they argue, and "it would be especially peculiar to suggest that the retributive conception of fairness should be favored out of a special concern to avoid punishment of the innocent when insisting on the level of punishment deemed to be fair under retributive theory is precisely the cause of many innocent people being punished."

It is hard not to grant much of the authors' case. Notions of fairness are often arbitrary; pursuit of fairness may well make many, and perhaps almost all, people worse off in specific cases.

There are natural human rights that cannot be traded away. The issue is sharpest when distinguishing between intentional and inadvertent.

For instance, it is one thing to adopt policies with a greater risk of convicting the innocent, since doing so might reduce the number of other innocents harmed. It is quite another to convict intentionally an innocent person. There is something inherent to the relation of the individual to the state, which is created to secure pre-existing human rights that bar government from violating those very rights, even if doing so would seem to advance the "general welfare."

"Fairness Versus Welfare" is academically rigorous and intellectually challenging. Messrs. Kaplow and Mr. Shavell have rolled a philosophical hand grenade into the practical world of policy.

Doug Bandow is a senior fellow at the Cato Institute.

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