Preference, well-being, and morality in social decisions

This review essay of Fairness versus Welfare evaluates the strategy of incorporation that Louis Kaplow and Steven Shavell use to defend the exclusive use of welfarist criteria in the evaluation of legal rules and institutions. The strategy of incorporation includes every concern that motivates the agent with the agent's preference ordering. More specifically, this extended preference ordering encompasses her concerns arising from deontological constraints and consideration of justice. The essay argues that a strategy of incorporation presents two difficulties for an analyst committed to welfarist evaluation. First, incorporating concerns about rights does not resolve the tension between ex ante and ex post evaluation of institutions. Second, extended preferences should not be aggregated as welfarism directs. The strategy of incorporation ignores the distinction between "preference" (narrowly understood) and "judgment."