Equality Between Efficiency and Distribution—A Law-and-Economics Reconceptualization of a Principle of Justice

This chapter sheds light on the principle of equality from the perspective of normative (law and) economics as a theory of justice. In this reconceptualization, equality appears in two forms: On the one hand, specific equal-treatment rules can be derived from the efficiency goal. Law and economics thus offers a novel justification of such rules and their proper scope. On the other hand, equality figures prominently in the just distribution of wealth. To analyze this dimension, normative economics offers the social welfare function as an analytical tool. From the economic perspective, distributional equality is directed at equality in the satisfaction of preferences or needs (as opposed to merit-based approaches). Overall, law and economics favors a functional separation between distributional and efficiency goals: The fair distribution of welfare is to be achieved through tax and social security law, while all other areas of law and their principles of equality are to be oriented toward the criterion of efficiency