Matthew D. Adler

Does individual desert matter for distributive justice? Is it relevant, for purposes of justice, that the pattern of distribution of justice’s “currency” (be it well-being, resources, preference-satisfaction, capabilities, or something else) is aligned in one or another way with the pattern of individual desert? This paper examines the nexus between desert and distributive justice through the lens of individual claims. The concept of claims (specifically “claims across outcomes”) is a fruitful way to flesh out the content of distributive justice so as to be grounded in the separateness of persons. A claim is a relation between a person and a pair of outcomes. If someone is better off in one outcome than a second, she has a claim in favor of the first. If she is equally well off in the two outcomes, she has a null claim between the two. In turn, whether one outcome is more just than a second depends upon the pattern of claims between them. In prior work, I have elaborated the concept of claims across outcomes, and have used it to provide a unified defense of the Pareto and Pigou-Dalton axioms. Adding some further, plausible, axioms, we arrive at prioritarianism. Here, I consider the possibility of desert-modulated claims—whereby the strength of an individual’s claim between two outcomes is determined not only by her well-being levels in the two outcomes, and her well-being difference between them, but also by her desert. This generalization of the notion of claims suggests a new axiom of justice: Priority for the More Deserving, requiring that, as between two individuals at the same well-being level, a given increment in well-being be allocated to the more deserving one. If individual desert is intrapersonally fixed, this new axiom, together with a desert-modulated version of the Pigou-Dalton principle, and the Pareto axioms, yields a desert-modulated prioritarian account of distributive justice. Trouble arises, however, if an individual’s desert level can be different in different outcomes. In this case of intrapersonally variable desert, Priority for the More Deserving can conflict with the Pareto axioms (both Pareto indifference and strong Pareto). This conflict, I believe, is sufficient reason to abandon the proposal to make claim strength a function of individual desert on top of well-being levels and differences. If distributive justice is truly sensitive to each individual’s separate perspective—if the justice ranking of outcomes is built up from the totality of individual rankings—we should embrace the Pareto axioms as axioms of justice and reject Priority for the More Deserving. In short: desert-modulated prioritarianism is a nonstarter. Rawls was right to sever distributive justice from desert.

This book addresses a range of relevant theoretical issues, including the possibility of an interpersonally comparable measure of well-being, or “utility” metric; the moral value of equality, and how that bears on the form of the social welfare function; social choice under uncertainty; and the possibility of integrating considerations of individual choice and responsibility into the social-welfare-function framework. This book also deals with issues of implementation, and explores how survey data and other sources of evidence might be used to calibrate both a utility metric and a social welfare function, and whether distributive goals are ever best pursued through regulation rather than the tax system. In working through this range of theoretical and practical issues, the book draws from a wide variety of literatures, including philosophical scholarship on equality, responsibility, the nature of well-being, and personal identity over time; the social choice literature within economics; applied economic literatures concerning the measurement of inequality and poverty; legal and policy-analysis scholarship on cost-benefit analysis, environmental justice, and the choice between regulation and taxation; and the burgeoning field of “happiness studies”.

Cost-benefit analysis is a widely used governmental evaluation tool, though academics remain skeptical. This volume gathers prominent contributors from law, economics, and philosophy for discussion of cost-benefit analysis, specifically its moral foundations, applications and limitations. This new scholarly debate includes not only economists, but also contributors from philosophy, cognitive psychology, legal studies, and public policy who can further illuminate the justification and moral implications of this method and specify alternative measures. These articles originally appeared in the Journal of Legal Studies. Contributors: - Matthew D. Adler - Gary S. Becker - John Broome - Robert H. Frank - Robert W. Hahn - Lewis A. Kornhauser - Martha C. Nussbaum - Eric A. Posner - Richard A. Posner - Henry S. Richardson - Amartya Sen - Cass R. Sunstein - W. Kip Viscusi.

Should we remain neutral between our interests and those of future generations? Or are we ethically permitted or even required to depart from neutrality and engage in some measure of intergenerational discounting? This Article addresses the problem of intergenerational discounting by drawing on two different intellectual traditions: the social welfare function (“SWF”) tradition in welfare economics, and scholarship on “prioritarianism” in moral philosophy. Unlike utilitarians, prioritarians are sensitive to the distribution of well-being. They give greater weight to well-being changes affecting worse-off individuals. Prioritarianism can be captured, formally, through an SWF which sums a concave transformation of individual utility, rather than simply summing unweighted utilities in utilitarian fashion. The Article considers the appropriate structure of a prioritarian SWF in intergenerational cases. The simplest case involves a fixed and finite intertemporal population. In that case, I argue, policymakers can and should maintain full neutrality between present and future generations. No discount factor should be attached to the utility of future individuals. Neutrality becomes trickier when we depart from this simple case, meaning: (1) “non-identity” problems, where current choices change the identity of future individuals; (2) population-size variation, where current choices affect not merely the identity of future individuals, but the size of the world’s future population (this case raises the specter of what Derek Parfit terms “the repugnant conclusion,” i.e., that dramatic reductions in the average level of individual well-being might be compensated for by increases in population size); or (3) an infinite population. The Article grapples with the difficult question of outfitting a prioritarian SWF to handle non-identity problems, population-size variation, and infinite populations. It tentatively suggests that a measure of neutrality can be maintained even in these cases.

:Preference-aggregation problems arise in various contexts. One such context, little explored by social choice theorists, is metaethical. ‘Ideal-advisor’ accounts, which have played a major role in metaethics, propose that moral facts are constituted by the idealized preferences of a community of advisors. Such accounts give rise to a preference-aggregation problem: namely, aggregating the advisors’ moral preferences. Do we have reason to believe that the advisors, albeit idealized, can still diverge in their rankings of a given set of alternatives? If so, what are the moral facts when the advisors do diverge? These questions are investigated here using the tools of Arrovian social choice theory.

A welfarist basic minimum is a level of well-being which is the threshold for minimally adequate lives and which serves, in some sense, as a line of moral priority. In his ambitious and philosophically sophisticated book, Dale Dorsey takes on the task of specifying a welfarist basic minimum. His account revolves around the concept of a “project”: a long-term preference that determines the subject’s actions and decisions and provides narrative unity to her life. Dorsey argues that the welfarist basic minimum is a life whose subject achieves at least one valued project. In this review essay, I present three objections to Dorsey’s views. First, his distinction between projects and other preferences is unclear, and his treatment of the problem of adaptive valuations inadequate. Second, it is very implausible that every life with at least one valued project is better than every life with none. Finally, Dorsey’s specific account of moral priority yields the Nauseating Implication (my term) that giving a single below-threshold person a single valued project morally justifies depriving an indefinite number of worse-off individuals of all their non-project goods.

The law within each legal system is a function of the practices of some social group. In short, law is a kind of socially grounded norm. H.L.A Hart famously developed this view in his book, The Concept of Law, by arguing that law derives from a social rule, the so-called “rule of recognition.” But the proposition that social facts play a foundational role in producing law is a point of consensus for all modern jurisprudents in the Anglo-American tradition: not just Hart and his followers in the positivist school, most prominently Joseph Raz and Jules Coleman, but also the anti-positivist Ronald Dworkin, who argues that law necessarily synthesizes moral considerations with social facts. But which group’s practices ground each legal system? In particular, which group’s practices undergird U.S. law? Positivists since Hart have universally pointed to either officials or judges as the “recognitional community” (my term): the group such that its rules, conventions, cooperative activities, or practices in some other sense are the social facts from which the law of a given legal system derives. So Hart and all other positivists would identify either U.S. officials or U.S. judges as the recognitional community for U.S. law. This Article grapples with the tension between the positivist’s official- or judge-centered account of the recognitional community and the “popular constitutionalism” now so widely defended by constitutional scholars such as Larry Kramer, Robert Post, Reva Siegel, Mark Tushnet, Jeremy Waldron, and many others. Surely the popular constitutionalist would want to claim that U.S. citizens, not judges or officials, are the recognitional community for U.S. law. I term this position “deep popular constitutionalism.” Indeed, it turns out that Dworkin’s account of law, in its ambition to generate associative moral obligations for the citizenry as a whole, implies deep popular constitutionalism. Here there is a disagreement, hitherto unnoticed, between Dworkin and the positivists. My solution to this disagreement – to the debate between deep popular constitutionalists and deep official or judicial supremacists -- is to dissolve it by providing a group-relative account of law. Social norms, such as norms of dress or eating, are clearly group-relative. A particular dressing or eating behavior may be socially appropriate relative to one group’s norms, yet socially inappropriate relative to another’s. This Article extends the group-relative view from social norms to law itself, with a particular focus on U.S. law and constitutionalism. Part I surveys the jurisprudential literature. It shows how Hart and successor positivists identify the rule of recognition as a social practice engaged in by officials or some subset of officials (judges), rather than citizens generally, and argues that Dworkin by contrast sees the citizenry as a whole as his recognitional community. Parts II and III defend a group-relative account of law. Part II argues, with reference to the U.S. experience, that multiple groups can simultaneously instantiate the kind of social fact that undergirds law, be it a convention, a social norm, a “shared cooperative activity” (SCA), or something else. At many points in U.S. constitutional history, multiple official or citizen groups, defined along departmental, partisan, regional, state-federal, religious, or other lines, have accepted competing rules of recognition for U.S. law. Part III argues that “law” functions, primarily, as either an explanatory or a normative construct, and that insisting on a single recognitional community for each legal system would be arbitrary, both for explanatory purposes and for normative purposes. Part IV considers the many implications of the group-relative account for U.S. constitutional theory – in particular, for popular constitutionalism.

How should we make interpersonal comparisons of well-being levels and differences? One branch of welfare economics eschews such comparisons, which are seen as impossible or unknowable; normative evaluation is based upon criteria such as Pareto or Kaldor-Hicks efficiency that require no interpersonal comparability. A different branch of welfare economics, for example optimal tax theory, uses “social welfare functions” to compare social states and governmental policies. Interpersonally comparable utility numbers provide the input for SWFs. But this scholarly tradition has never adequately explained the basis for these numbers. John Harsanyi, in his work on so-called “extended preferences,” advanced a fruitful idea. While an ordinary preference is a ranking of outcomes, an “extended preference” is a ranking of individual histories. To say that individual k has an extended preference for history over means something like the following: k prefers to have the attributes of individual i in outcome x, as opposed to having the attributes of individual j in outcome y. Harsanyi’s proposal was to endow individuals with “extended preferences”; to represent such preferences using “extended” utility functions; and to employ such functions, in turn, as the basis for interpersonal comparisons of well-being levels and differences. Harsanyi’s analysis, however, had various gaps and flaws. In this Article, I both diagnose these difficulties, and show how they can be remedied - yielding a viable account of interpersonal comparisons, one sufficient for the needs of the SWF approach.