Welfarism and Person-Centred Justice

Forthcoming, Canadian Journal of Law and Society 

Welfarism is the idea that government should always try to make individuals’ lives go better, for them, than they otherwise would, overall.   The goal of this paper is to demonstrate welfarism’s compatibility with, and potential to support, the ambitions of person-centered justice.  Welfarism is a normative theory applicable to public policy generally, but one which has distinct consequences in the realm of law and legal systems.  They are considered just to the extent that they generate the best possible expected welfare consequences for all of the individuals who are affected by them.   Welfarism is radically person-centred because it requires lawmakers to treat each individual affected by their work as a distinct locus of value, including those who have been subordinated or ignored.   

Introduction 

Person-centred justice offers a fresh and compelling way to think about justice systems.  The international and comparative perspective on access to justice offered by the OECD’s Framework and Good Practice Principles for Person-Centred Justice is especially helpful, given the predominantly domestic focus of the scholarship in Canada and some other countries.  This short paper seeks to trace connections between person-centred justice and welfarism.  Welfarism is a normative theory of public policy – an account of what government should do in the justice sector or in any other sector.  The central claim of welfarism is that government should always try to make individuals’ lives go better, for them, than they otherwise would, overall.¹   

This article explains welfarism’s central claim by unpacking it word by word.  It will emerge that, like person-centred justice, welfarism is focused on individuals, on their needs, and on evidence-based ways to make their lives better. The article concludes by suggesting how welfarism might helpfully support and expand the ambitions of person-centered justice. 

“Government…” 

Welfarism is a theory about public policy— the decisions and actions of governments. This includes national and subnational governments, municipalities, and public sector agencies charged with pursuing the public interest.  Law is a form of public policy, at least when it comes from a government entity of some kind.  This includes the common law, which is made by government officials (judges) exercising public power and also enforced by state actors. Justice-sector systems and procedures, upon which person-centered justice focuses, are also manifestations of public policy. 

Welfarism is a theory about what governments should do, not a theory about what individuals should do.² In particular, it is not about what individual agents of the government should do. For example, consider a corrections officer working in a prison. Although she works for the government, it doesn’t follow that she should make every workplace decision on the basis of what outcome would, in her view, make individuals’ lives go best overall. She might know with certainty that helping a certain young person escape from prison would do more good than harm overall, because the prisoner was wrongfully convicted and their life will be ruined if they don’t get out. Welfarism does not claim that the guard should help this person escape.  

However, the officer’s direct personal experience may well give her insight into how public policy in this area could be improved. Identifying and implementing good public policy is impossible without a vibrant democracy that draws on the knowledge of all citizens, especially those who understand a policy area best, including through lived experience.  The OECD’s call for a “people-centred culture in the justice sector” reminds us that insiders have special insight and a special duty to help the system do the right thing.³ 

“…should…”  

Welfarism is a normative theory about what government should do, not a descriptive theory about what government actually does. However, unlike some normative theories, welfarism does not depict an ideal or perfect world.  Instead, it seeks to practically guide public policy and make things steadily better.⁴  In other words, it is a remedial rather than utopian theory.  Public policy decisions, about law or anything else, are inevitably made in a complicated context of history, personalities, and existing arrangements. Making decisions that really outperform the alternatives depends crucially on understanding what is actually happening. 

Welfarism involves a sharp conceptual distinction between (i) government, and (ii) the individuals who are affected by what government does.  Each individual is a distinct locus of value, but the connections between individuals have enormous effects on their welfare, as will be explained below.  Thus, welfarism lends itself to functionalism. It directs government to care like a physician for the body politic, to promote welfare-enhancing social phenomena, and to suppress welfare-reducing ones.⁵ 

“…always…” 

Welfarism proposes a universal normative theory of public policy. Making individuals’ lives better might be the only thing that lawmakers and policymakers should try to do. The theory seeks to guide the largest government decisions (e.g. whether to join the European Union), the smallest ones (e.g. whether to install a stop light at a certain intersection), and the millions of decisions in between. Person-centred justice goals such as improving the quality of justice delivered, and improving its accessibility, are desirable because accomplishing them would make individuals’ lives better than they would otherwise be.⁶  

What about respecting human rights, obeying the constitution, giving people what they deserve, and so forth? These certainly seem to be things that governments should do, but they are non-welfarist principles.⁷ They propose to guide public policy on the basis of considerations other than the welfare of individual human beings.⁸  

Yet they are things that should be done because they can be expected to make life go better overall. Non-welfarist principles are essential rules of thumb, given the impossibility of calculating all welfare consequences for all affected individuals whenever any government decision must be made.⁹  The need for the law to respect human rights, for example, has gradually become evident over many centuries. The reason that human rights are entrenched in Canada and many other countries, and beyond the power of elected officials to easily tamper with, is not because they were engraved by any deity upon any tablet.  They are entrenched because humans have learned over time that violating these rights leads to bad results in terms of individual welfare. 

Identifying the welfare-maximizing course for government “requires the aid of more minds than one age can furnish,” as Edmund Burke wrote.¹⁰  Our laws are a record of what seemed wise to officials of previous generations.  Although the judgment of historical lawmakers was clouded by bias and self-interest, so too is our own and this is no reason to disdain their bequests. An entrenched bill of rights (like the Canadian Charter of Rights and Freedoms) enshrines principles that, to previous generations, seemed especially important and worthy of respect. 

However, because they are rules of thumb, laws and other non-welfarist principles must be subject to exceptions and amendment based on welfare predictions. For example, a person refusing vaccination while continuing to visit indoor public spaces was arguably exercising an inviolable human right in 2019. By late 2020, amidst the Covid-19 pandemic, governments seem to have had good reason to amend the scope of this right in order to protect welfare. The constitutional bills of rights in Canada and many other Western nations give elected governments opportunities to justify prima facie constitutional breaches, or even exempt laws from constitutional scrutiny.¹¹  Human rights are typically not inviolable sacred commandments, but rather topics of dialogue between lawmakers in the elected and judicial branches of government.¹² 

“…try…” 

It may seem ambitious – perhaps even arrogant – to boil down all of the things that government should do into a single principle.  However intellectual humility – humbleness about how much can be known –counterbalances welfarism’s normative audacity. Government can only try to find the policies that will make individuals’ lives go best. It never has access to full knowledge regarding the welfare consequences of any policy option.  

Risk and Uncertainty  

At best, the options open to lawmakers are subject to risk.  For example, environmental regulators must decide whether to forbid or allow proposed private sector activities, and what conditions to impose upon them.  They must do so without scientific certainty about the environmental and economic consequences of the proposed projects.  For example, an Ontario regulator had to decide in 2012 whether to permit the construction of a quarry on the Niagara Escarpment near Collingwood.¹³  Permitting the quarry was likely to generate welfare gains from new jobs and access to resources, but it also imposed risk of welfare losses from water problems and other environmental risk.   

In cases like this, expected welfare benefits and losses from the project can often be identified before the decision is made.¹⁴  Expected welfare effects are calculated by factoring in the chance that they won’t materialize.  For example, the employment-related welfare benefits of permitting a mine should be discounted for the possibility of the mine becoming uneconomical and closing within a few years.  Requiring rockfall fencing in a quarry in case of an earthquake-induced avalanche might turn out to be a job-killing waste of money if no earthquake occurs during the life of the mine. That doesn’t mean the regulator was wrong to require the fencing as a condition of the license. The expected welfare benefit of preventing a death or serious injury might more than justify the expense, even if there was only a small chance of the fence ever being needed. 

Public policy questions are often much more complex than this scenario. Governments confront not only risk but also deeper uncertainty.¹⁵ No government can precisely quantify how a project will affect complex economies and ecosystems. Not only can they not accurately quantify the likelihood of the various outcomes that can be imagined, but they also can’t even list all of the possible ways that a certain decision could affect individual welfare. A project like an aggregate mine might lead to the arrival of an invasive species, previously unknown in the jurisdiction, that devastates agriculture. On the other hand, it might uncover unexpected minerals, which create local economic benefits far beyond anything anticipated. One welfarist tool for dealing with uncertainty, enshrined in Canadian law, is the precautionary principle.  This states that  “where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures” to mitigate or prevent the threats.¹⁶ 

Intellectual Humility 

 Humility makes a person respectful and cautious; this virtue should have the same effect on our thinking about public policy. Some decisions can be made by quantifying and calculating welfare impacts on individuals. One example was the dramatic expansion of mental health funding in the UK in the 2010s, based on the proven and powerful capacity of talk therapy to relieve human suffering.¹⁷  But in other cases, government must defer to less scientifically explicit ways of knowing what policies are most likely to make lives go best.¹⁸ These include the rules of thumb mentioned above: respecting human rights, democracy, constitutions, and traditions. Those deep natural springs sometimes give forth progress that technocratic policy-making would never bring surface. For example, Canada’s constitutional rule of thumb against discriminatory laws, enshrined in the Canadian Charter of Rights and Freedoms and developed in a series of court decisions, led to the legalization of same sex marriage by 2005.¹⁹  

Litigation is inherently adversarial, and can serve as a check on government misdeeds or negligence.  However litigation is also a process by which an intellectually humble state can learn about and respond to welfare needs in its population. In addition to remedies granted to the parties by the courts hearing their cases, litigation is a way to call the attention of the elected branches of government to problems.²⁰ In Canadian family law, for example, explicit statutory formulae for matrimonial property division, for child support, and for spousal support were all enacted because spates of family law cases (none of which involved state parties) demonstrated that the common law was not providing sufficient clarity to ground out-of-court resolutions.²¹  

A lawsuit with an individual plaintiff is inherently person-centered, because it involves a person whose story will be heard and must be responded to, by the defendant and potentially by the court.²² As David Luban wrote, “litigants serve as nerve endings registering the aches and pains of the body politic, which the court attempts to treat by refining the law.”²³  Institutions such as judicial independence support this process, with better public policy as the payoff.²⁴  

The intellectual humility within welfarism includes a willingness to respect arrangements that are already working, even if we don’t understand exactly how.²⁵ In some cases, making individuals more free to pursue their own welfare is the course that can reasonably be expected to make lives go best.²⁶ Government should not lightly assume that it knows better than individuals do what will make their lives go best for them.  People tend to assiduously pursue their own welfare and the welfare of their loved ones. Sometimes good public policy is a matter of getting government out of their way.  On the other hand, liberty is not an end in of itself for a welfarist; only welfare is. Thus, laws requiring seat belt usage constituted welfarist progress (they prevented hundreds of thousands of injuries and premature deaths), even though declining to buckle up mostly harms only the individual non-buckler themself.  

“…to make…” 

Welfarism is a consequentialist theory. Consequentialism is the idea that whether or not a thing should be done depends on what can reasonably be expected to happen, if that thing is done. This approach “start[s] with a conception of what is good and define[s] right choice in terms of that.”²⁷ Under welfarism, outcomes are good to the extent that individuals have welfare in those outcomes. Government choices are right to the extent that they can rationally be expected to bring such outcomes about. If consequences were off the table – because the world were to end tomorrow or because God were to control everything that happens – then there would be no such thing as good or bad public policy, or good or bad law. 

Because public policy does have consequences, welfarism holds that we are morally bound to reform policy in order to bring about better consequences.  Within the complex systems in which we find ourselves, predicting consequences of public policy is often challenging.  Welfarism therefore demands evidence-based policy, thoroughly grounded in the natural and social sciences, to understand both needs and the likely consequences of alternative responses.²⁸  In this, welfarism it is highly compatible with person-centred justice’s focus on evidence and empirical data.²⁹   

Canada’s court system does not excel in tracking and publishing data that would allow it to be improved.³⁰  Some adjudicative tribunals do better, systematically gathering and disclosing information such as average time-to-disposition and the number of cases that are resolved at the different procedural stages.³¹  Surveys assessing tribunal users’ satisfaction with the procedure, a measure endorsed by the People-Centred Justice Framework,³² are also very helpful.  Again, in Canada it is not courts but rather tribunals such as the BC Civil Resolution Tribunal and the federal Social Security Tribunal that have taken the lead in providing such data.³³   

For some policy questions, there is no peer-reviewed scholarship or rigorous data available to inform the necessary decisions.  For example, today there is extensive evidence that legalizing same-sex marriage delivers major reductions in adolescent suffering and suicide, by sending a message of inclusion to young people.³⁴  However this evidence emerged only in the period after 2010, because of a “natural experiment” in the United States where some but not all states legalized. This type of evidence did not exist to inform Canada’s debate on same-sex marriage in 2003 and 2004.   Welfarism and person-centred justice call for evidence-based policy, and yet in some cases the best available evidence is not written down or formalized. Instead it is tacit, knowable informally by people who are close to the problem. We sometimes “know more than we can tell,” in the words of philosopher and scientist Michael Polanyi.³⁵  In the case of marriage legalization, the litigation process put before decision-makers the direct personal evidence of same-sex couples regarding the old law’s adverse effects upon them.  The OECD’s key text on person-centered justice refers to evidence-based policy dozens of times;³⁶ welfarism concurs but suggests that in some cases a more liberal approach to evidence might be required. 

“…individuals’…” 

It is only the welfare of individuals that is inherently valuable in public policy.  Jeremy Bentham, the father of welfarism, wrote 240 years ago that  

the community is a fictitious body, composed of the individual persons who are considered as constituting as it were its members. The interest of the community then is, what?—the sum of the interests of the several members who compose it.³⁷ 

Sometimes people will say that a certain policy or legal reform would be in the “national interest,” or the “public interest.” To a welfarist, such claims only make sense as a shorthand way to claim that the policy would favour the welfare of individuals who are (or will be) part of that nation or “public.”  Normative individualism is a basic commitment of welfarism.³⁸ 

However, Bentham went too far in describing communities as “fictitious.”  The welfare of any individual depends crucially on the structures and systems within which they live.  No one is an island. Good policy must pay attention to the connections between us, and to the intangibles that sustain us.  For example, the criminal law regarding parental corporal punishment of children must take into account not only the welfare effects of corporal punishment itself upon children, but also the welfare losses associated with justice system intervention into families, and the potential for that intervention to be biased in terms of race, class, or other factors.³⁹   The welfare benefit of legalizing same sex marriage includes the good it did for people who choose to enter such unions. But a larger welfare gain probably accrued to those who had no interest in marriage, but heard the policy’s message of inclusion and experienced the resulting de-stigmatization of sexual difference.⁴⁰ 

Welfarism is radical in its insistence that every affected individual matters, and in its demand that government make lives better if it can.⁴¹ Justice systems have an unfortunate tendency to take seriously only the interests of individuals who can make themselves heard within the systems’ formal procedures.  Welfarism calls attention to all those whose interests are affected.  It is therefore a way to interrogate the system’s selectiveness in terms of who is heard.  The OECD’s Framework notes an evolution in person-centered justice from “client-centered” approaches focused on those who actually seek assistance, toward an acknowledgement that most people with legal needs do not present themselves to any formal process of service-provider.⁴² They may not come forward because they don’t recognize the legal dimensions of their problems, ⁴³ or because they perceive the options for redress to be disproportionately expensive, stressful, or time-consuming.⁴⁴ 

  Welfarism aligns with movements to establish and vindicate the welfare-promoting legal rights of those who are politically invisible, such as migrant workers and unhoused people.⁴⁵  The high welfare cost of incarceration on the imprisoned must be weighed in any analysis of sentencing or bail law, along with whatever welfare benefits are obtained through incarceration.  Retributivism – in the sense of treating the suffering of offenders as an inherently worthy goal of policy– is incompatible with welfarism’s commitment to making lives better, not worse.  

At the same time, deterrence and incapacitation in the criminal justice system have legitimate welfarist purposes. Victims remain an afterthought in this system,⁴⁶ despite the 2015 passage of the Canadian Victims’ Bill of Rights.⁴⁷  Sometimes the rights of victims (or potential future victims) must be balanced against the rights of accused people, for example in bail law.  However, smart and evidence-based reforms that “bend the curve” and leave everyone better off are always preferable. Restorative justice, for example, can in appropriate cases leave victims much more satisfied than they would otherwise be while reducing recidivism and allowing the offender to repair the damage they caused in society.⁴⁸ 

More than some other areas of public policy, justice policy has to interrogate and confront power within our economy and society.  The OECD’s Framework calls for reflection on the justice system’s potential to privilege powerful repeat players.⁴⁹ Access to justice problems are not necessarily accidents. If government allows tribunals in which benefit claimants assert their rights against government Ministries and insurance companies to become so backlogged that claims are abandoned, it is important to understand that this state of affairs may favour the bottom line for the government or its friends.⁵⁰ 

“…lives go better…” 

Welfare can be defined as “what we have when our lives are going well for us.”⁵¹   But what makes life go well? The question is an ancient, apparently bottomless well of debate.  Three major schools of thought have emerged: 

• Hedonist theories of welfare hold that pleasure, and the absence of pain, make life good for the individual who lives it.⁵² 

• Objective list accounts identify important capabilities or achievements – such as access to education or having friends. These things, according to objective list accounts of welfare, make an individual’s life good to the extent that they are present in that individual’s life.⁵³ 

• Preferentist theories focus on the preferences individuals have about their own lives. One way to define “preference” is as a “disposition to choose.”⁵⁴  Another is to say that a preference reflects a person’s “comparative evaluation” of multiple outcomes.⁵⁵ Those in the preferentist camp suggest that an individual’s welfare depends on the extent to which their preferences about their own life are fulfilled.⁵⁶ 

If welfarism required a resolution to the debate between these schools of thought, it would be useless as a practical aide to government. No government knows, and no government should act as if it knows, what makes life good in the deep philosophical sense.  Fortunately – and perhaps counterintuitively – such knowledge is not actually necessary. Welfarism does not need to make judgments about the essence of welfare. It only needs acceptable ways to estimate the welfare of different individuals, as the next section will explain.  

“…for them…” 

Subjectivism 

How, then, can one estimate the welfare of the individuals who would be affected by a policy decision?  There might be hundreds of millions of them, and many of them might not be alive yet.⁵⁷  Lifetime income would be one easy proxy for a person’s welfare. Public policy could assume that the more money a person has, the more welfare they have. Indeed, growth or shrinkage in a country’s gross domestic product has sometimes been taken as a grade on the government’s performance. When law reform reduces incomes, that constitutes a welfare cost that must be compared to the welfare benefits of the reform.  Law and economics has developed sophisticated tools to predict the effects of legal regulations on incomes and access to resources.⁵⁸  

However, economic growth is definitely not the same thing as welfare growth.  This is especially so if economic growth imposes irreversible environmental costs, and if the new wealth flows to those who are already rich.⁵⁹ For this reason, the United Nations Human Development Index adds two other simple statistical measures to income — life expectancy and years of education — and ranks nations’ performance on this basis.⁶⁰ Such straightforward statistical measures serve a purpose.  And yet they also seem to miss a great deal about what makes life good. Knowing how long a person will live, how much money they will have, and how long they will go to school doesn’t seem to allow one to say, even approximately, how well their life will go for them.  

The author’s view is that welfarism is on thin ice if it measures individual welfare using these “objective” lists of attainments or capabilities. Government has no special insight into what actually makes life good.  It is presumptuous to operate as if a person will have welfare just because their life has certain attributes that politicians or philosophers consider to be important.  

Instead, estimates of individuals’ welfare that drive policy decisions should be based on the values of the individuals themselves. You don’t have welfare because your life conforms to what anyone else thinks your life should be. You have welfare to the extent that your life goes well for you.  

Thus, the approach to estimating welfare effects needs to be subjective. Something should count as a welfare change in someone’s life only if – and to the extent that – that person would see it as such.⁶¹ If a person doesn’t care about something, and won’t consider their life to be better if they get it, then the government has no business assuming that thing will improve that person’s welfare. 

 One subjective technique for evaluating welfare is life-evaluation.⁶² People are asked how satisfied they are with their lives overall, on a scale of 0-10. The higher the number a person gives, the more welfare they are assumed to have.⁶³ Another subjective technique is preference-fulfilment. Individuals have certain preferences regarding their own lives. The more that one’s preferences about one’s own life are met, the better one’s life is taken to be.  The People-Centred Justice Framework lauds the trajectory in health policy from a focus on disease toward a holistic focus on people’s needs, and calls for an analogous development of justice policy.⁶⁴  Holistic and subjective quantitative measures of individual welfare, such as life-evaluation and preference-fulfilment, are a step in this direction. 

Everybody to Count 

Welfarism holds that government exists only for the benefit of the individuals affected by it.  The interests of privileged people, and government insiders, should receive no premium weighting.  This is one straightforward manifestation of the rule of law principle which is central to many legal traditions.⁶⁵  Scrutiny of the public sector often reveals arrangements that put insiders or privileged people first, and the justice system is no exception .  As the People-Centred Justice Framework points out, “many justice pathways have been designed from a provider perspective,” without sufficient understanding of the needs of the people for whose benefit they purportedly exist.⁶⁶ This may reflect self-dealing by insiders, but it may also reflect a simple slowness to adapt public sector institutions and programs to changing needs and realities. 

 Canada’s civil justice system in the mid-20^th century, for example, generally assumed that all parties would be represented by lawyers.  It was mostly only corporations and affluent people who had reason to use the civil system at the time, because the substantive law did not endow anyone else with rights that were worth asserting in court.  That changed with the “Rights Revolution” beginning around 1960.  Legislatures created extensive new rights for individuals, including employees, consumers, and people leaving intimate relationships.  However, for many those whom legislators intended to assist, the new rights remained mere words on the pages of lawbooks, unless they could be successfully asserted against deep-pocketed and sometimes intransigent adversaries.   The willingness of Canadian governments to establish new substantive legal rights was not matched by a willingness to pay for lawyers or others to help people assert those rights in court, especially after civil legal aid was pared back in the 1990s.⁶⁷   The result was a wave of self-represented litigants struggling in a court system that was not designed for them.⁶⁸ 

The Framework notes a tendency for justice systems to evolve slowly over centuries, “often away from a people-centred focus.”⁶⁹  This might be because only insiders (especially lawyers and judges) take an interest in the system or have the opportunity to shape it.  Without denying the noble policy accomplishments of the common law, and in particular the evolution of procedural justice, justice system reform driven by evidence and non-lawyerly ways of knowing seems to be crucial at this juncture.  Design thinking – drawing on insights from disciplines including psychology and social work – is essential if we are to create systems that truly function for the real people who need to use them.⁷⁰   As Lorne Sossin observed,  the “best way to design a tribunal may draw on expertise from retail and hospitality sectors as much as courthouses and government agencies.”⁷¹  Canada’s tribunals are a promising site for major access to justice breakthroughs because, compared to courts, they can more readily be designed and held accountable for their performance.⁷² 

Everybody counts under welfarism, and that includes people who are affected indirectly by the justice system’s operations.   For example, providing real access to justice for victims of domestic violence is also often very important for the welfare of their minor children.  Reasonably prompt access to civil justice has also been identified as a crucial support for prosperity and business competitiveness.⁷³  The persons upon whom justice must be centred include those who are not parties or clients, but nevertheless have their interests at stake.  

“…than they otherwise would…” 

Welfare is a matter of degree; it is what one has to the extent that one’s life goes well for them. Comparisons are at the heart of welfarism. Policy options must be compared to alternatives, and individual lives must be compared to other lives, all in terms of welfare.  The theory holds that the welfare levels of individuals’ lives can be compared in several different ways:  

• First, it can be said that certain individuals will have more welfare if the government chooses one policy instead of another.  Suppose, for example, that a legal services regulator starts allowing candidates who have only completed two years of law school to become lawyers, if they meet the other requirements. (At present, a three-year J.D. degree is required across the country).  Some people who aspire to become lawyers, but cannot afford the extra tuition and foregone income involved in the 3L year, would be able to afford it after such a change.  Their lives would almost certainly be better for them, due to the fulfilment of their career preferences among other reasons.⁷⁴  This is an “intrapersonal” comparison, of the welfare of certain individuals under two different policies.  

• Second, it is possible to estimate how much better individuals’ lives will be if a certain policy is chosen, and compare this benefit to the welfare consequences of other public policy decisions.   Evidence about satisfaction and income in different careers should help the regulator understand, and perhaps even quantify, the difference that the proposed change would make for the overall lifetime wellbeing of those favourably affected by the change. How many people would become able to afford the process if the mandatory law school years were shortened, and how much better would their lives be? 

• Finally, welfarism holds that similar comparisons can be made between individuals (interpersonal comparisons).⁷⁵  Reducing educational requirements for lawyers would impose welfare costs on identifiable individuals.  This includes clients who will fall victim to forms of professional misconduct that a mandatory 3L year in law school would have prevented, and maybe even law professors or aspiring law professors who would lose their jobs if law schools reduce student bodies by one third. 

Because all of these welfare comparisons are possible, the gains and losses from a proposed policy can be analyzed together, allowing a rational and evidence-based conclusion about its advisability.   

Applying numbers to welfare effects is often very helpful. Some welfarist techniques seek to quantify all of the welfare effects of a policy option in terms of dollars or other money units.⁷⁶ Welfare can also be quantified without any reference to money. For example, the effect of depriving someone of a career in the law through the imposition of an unfunded and mandatory third year can be compared to the effect of depriving someone of their law-professor career by eliminating the third year, using techniques such as life-evaluation and preference-fulfilment. 

However, full quantification is not always possible, and welfarism does not necessarily require it. Even if the law society cannot fully quantify the welfare effects of the policy options confronting it, it might be able to at least estimate the number of people in each of the affected groups.  At very least, welfarism requires the decision-makers to think and consult as broadly as possible to understand who will be affected and how.  This may lead to the identification of practical alternatives that capture all or most of the welfare benefits of the original proposal, with fewer welfare costs.   

“…overall.” 

This word has a couple of key meanings within the theory. First, welfare is an attribute of someone’s whole life, and not of moments or episodes within that life.  If a government policy would make the next month of my life better than it would otherwise be, but would also impose burdens on me that will last for years to come, then that policy might reduce my welfare. Thus, each individual life must be considered overall. 

Second, it is the overall welfare effects of a policy option that are relevant, taking into account all of those who gain as well as all of those who lose from it.  In some cases, a policy might constitute a pareto improvement, making some people better off and no-one worse off.  The legalization of same-sex marriage seems to be an example.  While some people disagree with same-sex marriage, there is no evidence that anyone’s life is worse for them because of this policy change.  It is only the fulfilment of preferences about an individual’s own life that affects their welfare, according to the preferentist approach described above. 

However, most public policies create real welfare losses and well as gains.  They may be Kaldor-Hicks improvements, meaning that they generate welfare gains for some individuals more than large enough to compensate those who would lose from the change.⁷⁷  For example, Australia was in the 1990s burdened with a dairy industry supply management scheme that drove up food prices and created numerous international trade problems.  The government abolished all price controls in 2000, but earmarked $2 billion to compensate producers who would otherwise “lose” from the reform.  This was entirely funded by a 10-year surcharge on milk sales equivalent to 11 cents per litre, paid for by the chief beneficiaries of the reform: consumers of milk products.  Despite the surcharge, the price of milk fell by at least 18% within six years,⁷⁸ and fell further once the 10 year transition period ended.  In light of the compensation, the reform was popular and profitable in the long run for producers as well as consumers.⁷⁹ 

Inevitable Trade-offs 

Unfortunately, most policy decisions impose welfare losses on certain individuals that cannot or will not be compensated.  Policy-makers must usually slice or re-slice the “pie” in addition to trying to grow it. Welfarism includes an extensive scholarship focused on distributional questions, which are not always visible at first glance.  Seatbelt laws, for example, save lives. However, in light of the reality of systemic racism, seatbelt laws may also mean more police traffic stops for “driving while black,” generating many different types of welfare loss.⁸⁰   

In civil justice policy, some reforms may create “more access to less justice.”⁸¹   To take a straightforward example, consider simplified procedure used for cases with monetary value below $200,000 under the Ontario Rules of Civil Procedure.⁸² Parties are allowed only three hours to examine each other orally before trial, instead of seven hours under normal procedure. This makes litigation quicker and more affordable, but may also lead to miscarriages of justice in cases where the permitted time is insufficient to bring the truth to light.⁸³  For policy decisions of this nature, welfarism calls for reformers to maximize the expected welfare of all those affected by procedural reforms, taking into account both the welfare benefits of improved access, and the welfare costs of reduced justice.⁸⁴ 

Utilitarianism and Beyond 

How are welfare gains to a policy’s winners to be totted up against losses to its losers? The simplest approach, known as utilitarianism, was proposed by Jeremy Bentham.  Under utilitarianism the goodness of an outcome depends on the sum of the welfare of individuals in that outcome.⁸⁵  Suppose the expected welfare gains from eliminating the mandatory third year of law school (to aspiring lawyers, and to clients who would slightly pay lower fees) are equal to x. Suppose the expected welfare losses (to clients who will suffer from reductions in lawyer competence, to aspiring law professors, etc) are equal to y.  The policy should be adopted if and only if x is greater than y, according to a utilitarian analysis. 

Cost-benefit analysis (CBA) is the standard technique for applying utilitarian welfarist analysis to public policy initiatives.  It is used in Canadian law for analysis of regulations,⁸⁶ although it has been observed that CBA tends to conflate income with welfare.⁸⁷ The related technique of cost-effectiveness analysis (CEA) is deployed for decisions about public funding of drugs and medical technologies.⁸⁸  CBA and CEA, along with the newer and less widely deployed social welfare function technique,⁸⁹ are established ways to operationalize welfarism for public policy decision-making.  

Utilitarianism is not the only option, when it comes to determining the overall welfare effects of policies. Utilitarianism takes no account of the idea – which is entirely compatible with welfarism—that government should pay special attention to those with relatively low welfare.⁹⁰  Perhaps the individuals who would gain welfare from the elimination of 3L – students of modest means for whom this change would unlock a legal career – on average have less welfare than the law professors and clients who would lose from it.   Prioritarianism attaches more weight to the welfare of these relatively badly-off individuals within the alternative outcomes, and less weight to the welfare of better-off individuals.⁹¹   

Under prioritarianism, a policy that makes the distribution of welfare between individuals more equal may be preferred over one that produces a higher sum of welfare. Prioritarianism and utilitarianism are just two of many possible “outcome-ranking rules” for determining the overall attractiveness of a policy option based on its expected welfare consequences.  They are both compatible with the overall directive of welfarism: that government should always try to make individuals’ lives go better, for them, than they otherwise would overall. 

Conclusion : Person-Centred Justice and Welfarism 

Person-centred justice is an inspiring call to rethink our approach to law, to legal systems, and to the work we need to do to make them better.   This article has proposed that welfarism — an idea with ancient roots that has recently been rejuvenated by scholars from a variety of disciplines – is a helpful companion for person-centred justice.  In particular, it may help equip person-centred justice to tackle the distributional and philosophical questions inevitably associated with law.  Another dividend could be a better understanding of how and why access to justice makes people’s lives better than they would otherwise be.  Finally, welfarist person-centered justice clearly situates access to justice initiatives as public policy initiatives, and provides a frame to analyze them normatively as such.   Person-centred justice is a new idea; welfarism is a much older one; an alliance between them may do great things for access to justice in Canada and abroad.