Daphna Lewinsohn-Zamir


The Objectivity of Well-Being and the Objectives of Property Law

Daphna Lewinsohn-Zamir

Assuming that the enhancement of people’s well-being is a worthy goal for the state to pursue, the question of what well-being consists of arises. This fundamental question has been debated extensively by philosophers, but it is mostly ignored in the legal literature, mainly due to the dominance of the economic-analysis-of-law movement in legal scholarship. The shortcoming of the efficiency analysis is that it primarily focuses on satisfaction of preferences, while disregarding other possible criteria of welfare. Thus, if the preferences considered are people’s actual, subjective ones, then whenever a person’s desires are based on misinformation, prejudice, or lack of self-esteem, the fulfillment of these preferences might result in a reduction-rather than advancement-of that person’s welfare. This Article argues in favor of an objective approach to welfare.

According to an objective approach, certain things, such as knowledge of ourselves and the world around us, accomplishment of worthwhile goals, and attainment of deep and meaningful relationships, are intrinsically valuable, notwithstanding one’s preferences. The Article shows that an objective theory need not be rigid or elitist, and can be sufficiently flexible to respect people’s autonomy and allow many paths to achieving a good life. It further demonstrates that the obvious attractions of preference theories-their antipaternalistic flavor and practical simplicity-are misleading. In fact, objectivity cannot be avoided even in seemingly subjective theories of well-being. The Article explains the importance and normative implications of an objective theory of well-being for legal theory and develops an objective approach to property law. Objective standards justify certain requirements of property law, in terms of both quantity and quality. These requirements are manifest in existing legal rules, such as property exemptions in bankruptcy, the numerus clausus principle, and restrictions on owners’ power to control property after death.