On what normative foundation should the edifice of law and public policy be built? What are proper grounds for claims of individual right, and how, generally, do those grounds relate to considerations of individual well-being and social welfare? In this Essay, I argue that individual well-being and a related concept of social welfare should be important considerations in the design of legal rules, but not the exclusive ones. When the notion of well-being receives substantive content, the most plausible and attractive definitions all allow a distinction between what will best promote a person's well-being and what that person might rationally judge to be most choice-worthy, typically in light of a moral or aesthetic ideal. This distinction is important. Once it is recognized that the greatest possible well-being is not what everyone necessarily values most, the notion that public policy should be based exclusively on social welfare - defined as an increasing function of the well-being of individuals - loses plausibility. It becomes important to explore the relationship between well-being and other values and to ask what else people might rationally value, sometimes more than their own well-being, and why. In the answers to these questions lie the foundations of rights.
Richard H. Fallon Jr.,
Should We All Be Welfare Economists?,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol101/iss4/5