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Matt Adler, Well Being and Fair Distribution: Beyond Cost-Benefit Analysis (Oxford University Press, 2012).

Matt Adler’s book Well Being and Fair Distribution is first an articulation and then a defense of a particular social welfare function with which analysts and critics, whether from academia or elsewhere, can morally assess various large scale governmental regulatory or legislative decisions, such as the decision to use public moneys to build a dam or a highway, or to discontinue funding of the Violence Against Women Act, or to re-authorize No Child Left Behind, or to regulate carbon emissions in some way, or to continue the use of drones in warfare, or to close Guantanamo Bay, or to shrink or expand the role of the federal government in the War on Drugs.  The means of moral evaluation of these large governmental decisions for which Matt argues is consequentialist — it is the outcomes of choices that determine the morality of those choices, rather than any other attribute of the actions or any constellation of motives of the actors that do so –– and, second, welfarist — it evaluates those decisions by reference to their propensity to increase or diminish human wellbeing –- and, third, prioritarian – meaning that it gives priority, or greater weight, to increases in the wellbeing of the less well off, when comparing the relative moral virtues of possible policy changes.  So, one policy choice is morally better than another if it increases the wellbeing of those who are affected, as measured by the utility of their alternative life histories, and as ascertained by the other-regarding ideal preferences of a sympathetic spectator, with the wellbeing of the increase to the less well off given additional weight.  Thus, the title of the book: this is a defense of a consequentialist mode of evaluating decision making that centers human wellbeing and fair distribution both.

Obviously for those of us who have spent time with it, Matt’s book stands as a monumental achievement; it is philosophically and economically sophisticated, and exhibits a mastery of multiple literatures, from the analytic-philosophical work of the last three decades on identity, equality, and wellbeing, as well as a sizeable normative economic literature spanning three quarters of a century on social welfare functions and their various competitors, most significantly of course cost-benefit analysis.  It is also, though, monumentally important, given the current state of normative jurisprudence, and for three reasons not made obvious by the book itself: the first, internal to utilitarian jurisprudence, the second, on debates between utilitarian and deontological theories of legal evaluation, and third, in legal scholarship more generally.   I want to spell those out and then I will then raise some questions and objections about its methodology.

So, first, within utilitarian jurisprudence.  To borrow a metaphor popularized by the Obama Administration’s successful campaign for the presidency, Well Being and Fair Distribution might “break the fever” that led to the current hegemonic dominance of Cost Benefit Analysis within what might be called legal utilitarianism, by which I mean the use of utilitarian metrics for the moral evaluation of law and regulation.  Within law, over the past several decades, the entire utilitarian tradition, as well as the utilitarian impulse itself – the impulse, that is, decisions by reference to the tendency of that decision to decrease human suffering or increase human happiness of wellbeing – has been compromised by the resolute insistence of many economists and some philosophers that neither the legal decision maker nor the critic can compare utilities across persons – that we are all so disabled by our inability to penetrate the minds of others, or,more mildly that we are all so superbly knowledgeable about our own internal hedonic sensibilities that no one else can come close.  Either way – either because of our inability to know the pains of others or our absolute competence regarding our own hedoninc lives, there is no way a legal decision maker, an actor, or his critic can know that a blow from a baseball bat hurts me more than a prick with a pin hurts you, or even if that actor, decisionmaker, or critic knows that quite well about himself, or, more concretely, that the worth of one dollar is quite a bit higher to the person who is hungry or cold than its worth to the person for whom it is proverbially impossible to shop.  The result has been a reduction – at least within normative jurisprudence –of basically the entire utilitarian tradition of moral criticism to an economic analyses of costs and benefits that assume that it is the satiation or frustration of desire, rather than happiness, that should be furthered by governmental actions such as law and regulation, and therefore should be the coin of the utilitarian realm, and as ascertained by quantifiable, revealed, actual preferences, rather than through  the exercise of our sympathetic moral sense and what it teaches us about the wellbeing of others – others who are not all that dissimilar to ourselves.

Matt’s project both deftly and exhaustively — and that’s a trick – demonstrates the possibility of a utilitarian moral criterion for the evaluation of governmental and legal action that in some ways returns us to that tradition’s roots, to wit, a recognition of human suffering as that which is to be minimized and happiness or well being as that to be maximized by legal action, and with a recognition of our capacity for sympathetic engagement with the wellbeing of others as the way to both know the extent and quality of human suffering and as giving us the motivation to do something about it.  His constructed spectator’s understanding of the life histories of persons affected by various governmental actions, and his description of that spectator’s ideal “preferences” for the histories that reflect their highest wellbeing, is in effect a modernized depiction of the spectator of the moral sense tradition seeking to first sympathetically understand and then evenhandedly and non-self interestedly minimize human suffering.   This return to an unrestrained assumption that the moral actor, including the  moral governmental actor and his critic, is able to interpersonally compare utilities, and likewise to a method that relies on an idealized capacity for sympathy, rather than the ability to add values attached to expressions of willingness to pay for proffered alternatives in survey documents, has decided virtues: first it avoids the multiple problems – of false consciousness, sour grapes, uninformed preferences, etc. – associated with the reliance on actual preferences as a window to wellbeing, and second, it employs a method – an eucumenical regard for the human suffering and happiness of those impacted by regulation and governmental action – that is recognizably and unequivocably moral. For this reason the book is a breakthrough, I believe, most importantly, within the development of legal utilitarianism.  It returns that tradition to its moral foundations.

Second, although it is not the book’s focus, it has a contribution to make to debates between utilitarianism, or consequentialism more generally, and their deontological critics.   Matt does not directly engage too many of these critics – the book is within welfarism, as he reminds his readers several times – but he does make telling observations, and he constructs a social welfare function that does attend to the heart of their critique. Matt agrees with utilitarianism’s critics that any moral view must take the separateness of persons seriously, and he takes seriously the complaint that utilitarianism doesn’t do so.  But he also believes, this time with the classical utilitarians, that a moral view must indeed take all of those separate persons seriously – and must do so equally, and he faults, although often by indirection, deontological theories for not doing so.  There is a problem with a moral view that lumps people together crudely as utility maximizers, as utilitarianism’s critics have argued now for several decades, but there is an equally disabling problem with a moral view that puts the importance of some, or even one separate person, ahead of the importance of many of those separate people.  Deontological views often indirectly prioritize not the worst off, but rather, the interests of the one person who could be harmed by an intentional act of a decision maker over the interests of the handful of people, or the many, who could be harmed by the passive decision of that actor not to act, even at the risk of knowingly risking more lives, by virtue of his inaction.  It prioritizes, in other words, the interests of the party who will be hit by the runaway trolley if the actor changes course, over the interests of the persons in the path of the trolley if the actor does “nothing,” and it does so on the basis of a presumably widely shared intuition that this is what morality requires of actors, regardless of the greater carnage that results.  In law, deontological arguments that track these anti-utilitarian intuitions tend to prioritize the interests of the one against the many, most famously, of course,  the interests of the individual rights holder – whether the speech right holder or the property right holder – well ahead of the interests of the many who might be harmed by exercise of that right where there is no consequentialist justification for doing so, and so on.  Matt points out, astutely in my view, that while these anti-utilitarian results may take seriously the separateness of persons, they don’t seem to take very seriously the equality of all those separate persons and the legitimacy of all who have moral claims on decision makers, whether the decision is a decision to act, or a decision to do nothing and let whatever happens happen.  He is right to so object, and his resulting project, which takes very seriously both the separateness and the equality of all moral claims on decision makers, stands as a needed rebuke.

Third, with respect to legal scholarship generally.   Matt’s book first enriches normative jurisprudence, by introducing readers to the social welfare literature, a literature with which many of us are simply unfamiliar.  More specifically, though, it opens up normative critiques of law by moving both welfarism and utilitarianism away from their current focus on satiation of actual preferences, pareto superiority, Kaldor Hicks, and WTP/WTA metrics. Normative criticisms of law tend to fall into one of three camps: they are either based entirely on law itself –for example, when a decision is criticized as being out of accord with precedent, or a statute is criticized for being unconstitutional — or, in some fields, on deontological assumptions, such as when a particular criminal statute declares behavior culpable where there is no ready explanation of blameworthiness, or a tort regime predicates liability on cost avoidance rather than corrective justice — or, lastly, on economic cost benefit analysis – where a law or regulation imposes more costs than benefits, as measured by various willingness to pay or willingness to accept metrics.  This tripartite structure – law itself, deontological assumptions, and CBA, as the bases for moral critique of law — leaves huge gaps.   Most notably, it leaves us with no moral vocabulary for talking about the value of legal decisionmaking on people’s felt lives, and for criticizing or defending law on moral grounds accordingly.  The closest to that sort of moral critique is cost benefit analysis: it too is concerned, albeit indirectly and on shaky assumptions, with human wellbeing, but it is extremely constrained.

Matt’s book invites a focus for moral criticism of legal and regulatory decision making that is appropriate to the target of that type of decision making – human wellbeing – and commensurate with its scope and reach.  It is a marked improvement over our current limited reliance on the criticism of law by prior law, criticism of law by reference to deontological premises in a few fields, and critique of the rest of it by reference to preference-maximization techniques familiar from economic analysis.

I want to register three objections.  First, I don’t understand why welfarists such as Matt who grant the possibility of inter-personal comparisons of utility, construct abstract and counterfactual idealized preferences, both self and other regarding, as the vehicle for understanding and even discussing human wellbeing.  Why are we talking about the idealized “preferences” of a spectator for the comparative life histories of those affected by legislation, and then using those idealized preferences as the measure of wellbeing?  Why is that thing the ideal spectator is feeling a preference at all, rather than a belief about what makes people happy or well off?  And if it’s the latter, why not talk directly and simply about wellbeing, and leave the fictional spectator and his fictional preferences out of it? This seems to me an overhang of the mid-century turn to actual preferences, away from wellbeing, itself necessitated by the belief in the impossibility of interpersonal comparisons of utility –a turn that Adler finds problematic and wants to repudiate.  So why retain the preference apparatus to which it leads?  There are plenty of other ways to talk about wellbeing: by reference to objective goods, such as security, safe intimacy, meaningful work, good health care and so on, or alternatively, by reference to subjective happiness, pleasure, pain and suffering.  I don’t see the need for the added layer of complexity introduced by the spectator and his idealized preference for the value of some life histories over others.

Second, Matt relies heavily on intuitionist modes of reasoning – what he and others call reflective equilibrium — for justifications for at least some of his most important philosophical premises.  It seems to me that this reliance is in tension with his insistence, repeated at several points throughout the book, that moral criticism must stand apart from the social norms (including law and governmental action) that are the objects of criticism. The shift to an idealized rather than actual preference is in part a product of this very insight: actual preferences are too much a part of the social milieu, and their legal and cultural determinants, to double as the source of the moral norm against which that milieu is criticized.   But the moral intuition on which Matt is pretty happy to rely seems similarly situated; in fact, the intuition and the actual other regarding preference might be two phrases for the same subjective state of mind.  I prefer that you live a chaste rather than promiscuous life, after all, isn’t all that different from my moral intuition that chastity is a virtue.  Aren’t the moral intuitions that appear as the foundation for some of the philosophical priors in this book subject to the same objection as the reliance by economists on actual preferences for their Cost Benefit Analyses?

This problem becomes pronounced, I believe, in an early argument in the second half of the book for prioritarianism over straight-up utilitarianism.  The prioritarian will weigh the improvements in wellbeing of the less well off heavier than those who are better off, with the result being that an outcome that has less overall utility than some may be adjudged morally better, if the increase in the wellbeing of the worst off is sufficiently robust, and the better off are also improved or at least not harmed by the contested action.  The argument for this turns pivotally on our intuitive responses to a hypothetical introduced into the social welfare literature by Derek Parfit.  Parfit hypothesizes parents of two children – one with serious learning disabilities or emotional disorders — deciding between a move to two different locales, each with comparable job prospects.  One locale has an excellent school system, sports programs, music instruction and so on that will further enrich the healthy child’s life.  The other has an excellent program for learning disabled children, but doesn’t have the sources of enrichment for the healthy child.  Parfit argues and Matt agrees that most parents will choose the locale that benefits the disabled child, even at the cost of overall utility to both, and that most people will agree with their judgment.  From this intuition, we are to infer that it is sensible for governments, in the position of parents, to do likewise, thus justifying the book’s claim that the social welfare function will further not only well being but fairness as well.

It’s a shaky foundation.  Even the intuition seems dubious.  It’s not that clear that “most parents” would reach this result or that most people would agree, and for good reason.  Plenty of research as well as anecdotal reports caution parents against neglecting the needs of healthy siblings, when attending to the needs of disabled or more challenged kids.  Whichever move the parents make they will have to adapt to accommodate the needs of whichever child is ill served by the local school system.  The “intuition” that the family should move to the city that best accommodates the needier child may reflect not “prioritarianism” but an educated guess that the needs of the healthy child will be more easily met anywhere – for healthy children, a good-enough school, a local library and a baseball field will generally do – coupled with a judgment that the misery of the unhealthy child is of such a profoundly greater magnitude that meeting that child’s needs really does raise the overall utility of the family more robustly than meeting the healthy child’s needs.  Either way, what may be felt as an anti-utilitarian intuition may simply be a judgment regarding overall utilities, but based on known but somewhat buried facts.  There may not, in other words, be a conflict between the intuition that favors the worst off child, and therefore seemingly favors prioritarianism as well, and the calculation that would favor the better off child, and utilitarianism. 

And so it may be with prioritarianism in the world of government, law and citizens.  Utilitarianism may be fairer than our intuitions instruct – it may be simply true that just as the marginal value of the dollar increases for the worst off, so the marginal intensity and magnitude of suffering likewise increase, the further down the scale of suffering.  Perhaps prioritarianism is best defended within utilitarianism, rather than as a challenge to it, and by reference not to intuition, but to real world accounts of the cascading disadvantage that makes profound poverty such a trap: it may be that cascading effect that justifies the greater resource allocation to worst off, over allocations that make it possible for the well off to become phenomenally well off.  Alleviating the sickest of the sick or the most miserable of the misery-ridden might give us greater overall gains in wellbeing than aiming for the middle, and certainly more than aiming at the top.  If so, then prioritarianism might better be understood as a subtle implication of utilitarianism rather than a challenge to it. 

Lastly, I wondered as I read Matt’s book where democracy fits into this.  Other reviewers on the book have noted the miniscule role played by law and legal argumentation.  But Matt’s ideal regulator or critic also seems to make decisions in a political void.  Where are the people in all of this? Is this form of moral argument about the merits of large scale governmental action even compatible with democracy, or is it the exclusive preserve of elites?  Or, should we reshape our civic education to so to make prioritarianism a more strongly felt impulse in our democratic conversations?  Do these prioritarian judgments come naturally, so to speak, to moral adults with decent upbringings and education?  How does the prioritarian judgment fit, on the scales of moral development discovered by moral psychologists such as Kohlberg and Gilligan?  Should prioritarianism be taught as a part of civic education?  I tend to think it should be, but that is itself simply an intuition, the full argument for which still requires, and deserves, development.

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Cite as: Robin West, Justice and Utility, JOTWELL (April 26, 2013) (reviewing Matt Adler, Well Being and Fair Distribution: Beyond Cost-Benefit Analysis (Oxford University Press, 2012)), http://juris.jotwell.com/justice-and-utility/.