“Cost-benefit analysis” (CBA) denotes the class of qualitative or quantitative methodologies that evaluate governmental policy choices in light of overall well-being. CBA plays a major role in non-constitutional U.S. public law. Executive agencies are required by Presidential order to employ CBA; courts construe ambiguous statutory language as permitting or requiring CBA; and courts also frequently find that administrative agencies’ mistakes in applying CBA are “arbitrary and capricious” under the Administrative Procedure Act. By contrast, CBA plays virtually no role in US constitutional law. It is generally absent not only from constitutional rights doctrine, but also from separation-of-powers and federalism doctrines. If overall well-being indeed plays a significant ethical role in determining the ethical status of governmental choices – which is what would justify the centrality of CBA to non-constitutional U.S. public law – its absence from constitutional law is quite puzzling. This can’t be justified by the premise that constitutional rights “trump” overall well-being (since CBA is absent even from those various parts of constitutional law where no such trumps are in play); nor the Constitution’s text (since the actual practice of the Supreme Court is only loosely textualist); nor original meaning (since the Court’s doctrines, on many questions, are not originalist); nor democratic legitimacy (since the Court could accommodate democratic legitimacy via a deferential version of CBA).

A rights-based theory of property relies heavily on practical reason. “Practical reason” is the domain in which people apply fundamental principles of moral reasoning to practice. This chapter contrasts practical reason with theoretical reason. It introduces specification (reasoning from broad moral rights to specific entitlements between right- and duty-holders), determination (the implementation of moral directives in law and other social conventions), and reasoning with core cases. This chapter’s argument dispels the “copy view” of morality, in which theories of morality must recommend in practice rules and institutions that follow closely from what they recommend in principle. This chapter also shows how practical reason considers the consequences of different proposed rights and policies, without becoming consequentialist or prioritizing social welfare over individual rights. This chapter shows how practical reason applies with speed limits and customary rights in snow-covered parking spaces.

The social welfare function furnishes the primary tool of normative economics: It aggregates the utilities of different agents, by summing them for example. That technique is no longer available when preferences are incomplete since agents then cannot be modeled by utility functions. Agents can however have well-defined utility functions for groups of goods, though they will not know how to weigh the functions for different groups against one another. A policymaker can aggregate these utilities across agents and thus pin down a unique normatively optimal allocation for each group of goods. Government policies are usually debated in this fashion. Rather than solve a global welfare optimization problem, governments and advocates attack each domain of policymaking separately, whether it be education or health. The chapter’s approach illustrates Sen’s criticisms of welfarism.

This chapter provides a critical history of international environmental law. It suggests that the ideologies at the heart of international law and international environmental law projects cannot protect the environment. First, the chapter considers the influence of classical liberalism on the conception of nature in international law prior to World War II, especially in the context of fisheries. Then, the chapter turns to emerging environmental issues after World War II, when international law was concerned with marine pollution. During this period, international law took a welfarist approach to environmental problems, but with no substantial change to a liberalist conception of nature. Thereafter, international environmental law as a distinct branch emerged in the 1970s. This new branch remains rooted in liberal principles, but is also influenced by neoliberalism, as reflected in its general principles and marketised approach to problems such as climate change and biodiversity protection. As international environmental law has failed to provide solutions to the problems for which it was enacted, the conclusion calls for an ideological rethinking of founding principles.

This chapter briefly examines contract law trends over the past 200 years or so. The chapter explores the development of the common law of contract, identifying the broad shift from the classical law of the 1800s to the neo-classical law characteristic of the second half of the twentieth century. By the second half of the twentieth century, thanks to the rise of the consumer and empirical evidence demonstrating the minor role played by contracts and contract law in business practice, the classical law model appeared to be under considerable pressure from realist and contextualist rivals that stressed the life of a contract outside its formal express terms. The shift to a more standards-based, neo-classical contract law in response to these tensions was not easily confined to consumer contracts, and there was plenty of scope for importing the broad values of ‘consumer-welfarism’ into commercial contracts. The move to a contextual method of interpretation and the willingness to relax doctrines such as consideration in response to business realities suggested further classical law disintegration. The chapter notes that this process now seems to have gone into reverse.

This chapter asks whether prioritarianism – the view that social welfare orderings should give explicit priority to the worse-off – is consistent with the normative theory of equality of opportunity. We show that there are inherent tensions between some of the axioms underpinning prioritarianism and the principles underlying equality of opportunity; but also that these inconsistencies vanish under plausible adjustments to the domains of two key axioms, namely anonymity and the transfer principle. That is: reconciling prioritarianism and equality of opportunity is possible but allowing room for individual responsibility within prioritarianism requires compromises regarding the nature and scope of both impartiality and inequality aversion. The precise nature of the compromises depends on the specific variant of the theory of equality of opportunity that is adopted, and we define classes of social welfare functions and discuss relevant dominance conditions for six such variants. The conflicts and the paths to reconciliation are illustrated in an application to South Africa between 2008 and 2017, where results suggest broad empirical agreement among the different approaches.

Although humans prize freedom above all else, we routinely deny freedom to nonhuman animals with whom we share our planet. We imprison and enslave animals, we exploit them for their labor and their skin and bodies, we constrain what they can do and with whom they can interact. Captivity—including physical confinement, social isolation, and chronic exposure to stress—leads to measurable physiological and psychological trauma. Captive animals also suffer the harm of being denied the opportunity to live their own lives, on their own terms. In captivity, animals cannot achieve higher order needs such as exercising control over their lives, making choices, forming meaningful relationships with others, and engaging in forms of play and creativity. Although there might be some reasonable conversation or debate about the appropriateness of incarceration for humans, there is no reasonable justification for incarcerating animals.

We re-examine Pigou’s ethics in welfare economics with respect to welfarist or non-welfarist (more broadly, utilitarian or non-utilitarian) concepts based on various perspectives, such as incommensurability among utility and people, basic need information approach, non-welfarist justification of the national minimum, and methodological individualism in axiology. Consequently, we could detect certain non-welfarist approaches in his welfare economics, which squarely challenges the orthodox understanding of his works. We can assert that the deviation from simple welfarism was a result of practical considerations. Furthermore, apart from the dichotomy about welfarist and non-welfarist viewpoints, we present novel assessments of Pigou’s welfare notion: a hybrid strategy for the enhancement of people’s well-being. We show that his overall welfare idea involves both subjective and objective accounts and has a three-layered welfare strategy: bare and raw preferences turn into educated and refined ones via objective needs.

John Hicks played a crucial role at birth of the “new” welfare economics founded on the informational basis of interpersonally non-comparable and ordinal utilities. Toward the end of the 1950s, however, Hicks took a bold step by declaring his farewell to the welfarist informational basis of normative economics altogether. The purpose of this paper is to gauge the depth and reach of Hicks’s farewell to the welfaristic approach to normative economics.

This paper characterizes Kenneth Arrow’s contribution to justice issues in economics. When he established the fundamental theorems of welfare economics and the general impossibility theorem, his approach was seen as “welfarist”; however, he gradually came to accept that the consequences of economic and political decision-making are not always just, even when Pareto-optimal. The paper begins with some of his contributions to formal theory. Second, this paper illustrates how Arrow designed political and economic decisions using the same framework in the 1950s, and how he recognized that the significance of justice cannot be reduced to economic efficiency, as neither could it be defined in the strict welfarist informational framework. Finally, this paper argues that Arrow insisted that a criterion of justice can be deduced from the collective decision-making process in the hypothetical original position, because this position assumes equality. The paper concludes that Arrow’s idea of justice is based on a variety of values beyond utility, including non-welfaristic aspects such as freedom, equality, and fundamental rights.

The chapter reflects on reasons economists have departed from welfarism when considering practical problems. Economists generally accept that using ethical values other than individual utility requires departing from neutrality but, if confronted with political contexts involving issues such as distribution, the environment or discrimination, they find it hard not to take an ethical position. Merit or public goods cannot be reduced to the satisfaction of individual utilities insofar as they are meaningful only in a social context. The individualism imposed by welfarism is also debatable when facing the interdependencies that exist between real-world individuals. Lastly, while welfare economics aims to avoid paternalism, reliance on preferences alone can be problematic. The paternalism implied by going beyond welfarism raises issues regarding democratic values such as agency and public reasoning that suggests that, instead of merely substituting non-welfarism for welfarism, there is a need for public debate on moral values. We conclude that economics, when inspired by theory and involved in practices with political consequences, should become more of a moral science.

The Introduction explains the concepts of welfarism and non-welfarism, relating it to the way economistss have typically approached the problem of welfare. Drawing on the chapters in the volume, it explores ways in which economists have departed from welfarism when tackling practical problems and discussing public policy.

The capability approach is widely considered to be a promising alternative to welfarist approaches in welfare economics. Indeed, prominent criticism of the informational basis of utilitarianism and resource-based approaches in welfare economics and political philosophy stand at the origins of the approach. What is not straightforward is whether the capability approach can indeed overcome the problems that motivated its origins. This chapter discusses the latter issue, covering the intrinsic importance of freedom, issues of preference adaptation and the neglect of diversity linked to paternalism. Drawing both on the wide diversity of the literature on capabilities and on the axiomatic literature on freedom rankings, we show that the characteristic features of the capability approach are not enough to respect these three criteria together. We conclude that any promising non-welfarist approach will require further scrutiny of the conceptualisation of freedom, and the modalities of application of value pluralism.

For Barbara Wootton, international thought was a medium to explore her concerns for social and economic justice, concerns which she argued had to be viewed through a lens attuned to both global and domestic forces. Writing briefing papers and pamphlets for both the British political group Federal Union and the think tank Chatham House, Wootton proposed practical solutions and policies for a wide, non-academic readership, and opposed ‘abstract thinking’ on principle. Her federalist proposals of the 1940s fused liberal and socialist analyses and form part of the intellectual history of European integration and welfarism. Implicitly, Wootton argued for Britain to sever relations with its imperial possessions in a ‘turn to Europe.’ However, she did so without analyzing how the injustices and inequalities of empire could be undone. This unresolved tension in her thought makes her newly relevant in an era of imperial nostalgia and profound disillusionment with the European project.

Social choice is concerned with the selection of an ideal (or social) option, which can be a so-called ‘social state’, or a social ‘utility’, or a social ‘preference’, or a social choice ‘set’, on the basis of individual utilities, or individual utility functions, or individual preferences, or individual choice sets, or individual choice functions. A number of scholars have outlined the limited aspect of the notion of utility, including, notably and pre-eminently, Amartya Sen and Martha C. Nussbaum. Although they did not put it in such a strong phrase, the basic idea is to replace the notion of utility by the notion of capability (leaving aside ‘happiness’, a notion which for many is hardly distinguishable from utility). As has been remarked by Mozaffar Qizilbash, the development of the capability approach has been focused on the capability of an individual; and the idea of amalgamating or aggregating individual data is consubstantial with social choice. The purpose of this text is to propose some preliminary ideas regarding the aggregation of individual capabilities.

This chapter analyses the colonial branch of the League of Nations, the Mandate System, and its pivotal role in the transmission and reconfiguration of ‘civilisation’ between the two world wars. Focusing on the workings of the Permanent Mandates Commission, it documents how ‘civilisation’ developed a rich institutional life and became an important argumentative tool for those both supporting and opposing the emancipation of Iraq from the British Mandate. Emphasising both transformation and continuity, this chapter examines the administrative and bureaucratic turn of the ‘standard of civilisation’ and the ways it became entangled with practices of counting, reporting and standard-setting. Furthermore, the rise of a basic level of welfarism as a marker of the ‘civilised state’ indicates that the ‘logic of improvement’ is not static, but it evolves in response to the changing imperatives and ideals of the capitalist state. The case of Iraq shows that even though international law does not determine imperial interests or major political evolutions, it does nonetheless provide a vocabulary to articulate and contest them.