All's Not Fair; What Is the Definition of True Legal justice?(OPED)

Article excerpt

Byline: Doug Bandow, SPECIAL TO THE WASHINGTON TIMES

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. …