You are on page 1of 9

Legal Theory Lexicon: Welfare, Well-Being, and Happiness


Normative legal theory is concerned with the ends and justifications for the
law as a whole and for particular legal rules. Previous entries in the legal
have examined exemplars of the three great traditions in normative theory--
consequentialist, deontological, and aretaic (or virtue-centered)
perspectives. There are important differences between these three families
of theories at a very general and abstract level: for example, deontologists
emphasize rights and wrongs while consequentialists emphasize the
goodness or badness of states of affairs. And there are differences between
particular theories within the broad families: within consequentialism, for
example, welfarists emphasize preference satisfaction, whereas hedonistic
utiliarians emphasize pleasure and pain.
Despite these disagreements, I think it is fair to say that many or most of
the reasonable views about normative theory agree that what is good or bad
for individual humans is morally salient. Welfarists believe that humans are
better off if their preferences are satisified. Hedonistic utilitarians believe an
individual is better off if she experiences more pleasure and less
pain. Aristotle believed that humans flourish if they live lifes of social and
rational activity that expresses the human excellences or virtues under
conditions of peace and prosperity. A deontologist who believes that
autonomy is the central value might believe that humans are better off if
they are autonomous and worse off if they are not In other words, a wide
variety of moral theories agree that what is good for humans is morally
This entry in the Legal Theory Lexicon will examine three related concepts
that are related to the good for humans, welfare, well-being, and happiness-
-and along the way we will explore some related ideas
like pleasure, satisfaction, pain, flourishing, and eudaimonia. Of course, the
nature of the human good is a deep topic--one that that has been debated
by philosophers, psychologists, economists, theologians, and others for
millennia. All of the great moral and political philosopher, from Plato and
Aristotle, through Hobbes, Hume, Kant, Bentham, and Mill, to contemporary
figures like Thomas Scanlon and Derek Parfit have engaged in debates about
the nature of the human good. This entry in the Legal Theory Lexicon will
only scratch the surface of these debates. As always, the Lexicon is aimed
at law students, especially first-year law students with an interest in legal
Three Concepts

Let's begin by saying a few words about each of the three concepts. Our
aim in this section is not to provide a canonical definition, but instead is to
give a sense for the way these terms are used in normative legal theory:
Welfare--The term "welfare" is heavily theory laden. For contemporary law-
and-economics scholars, welfare sometimes operates as a technical
term. One's welfare is a function of one's utility, and most contemporary
economists understand utility as a function of one's preferences over states
of affairs. If I prefer a world in which I eat an ice cream cone after lunch to
one in which I am abstemious, then the ice cream cone increases my
welfare. But the term "welfare" is also used in a much broader sense, in
which my "welfare" is a function of what is good (and bad) for me. In this
sense, my "welfare" might be synonymous with my "well-being" or
"flourishing or "happiness." We might say that there are competing
conceptions of the general concept of welfare.

Well-Being--The term "well-being" is similar to "welfare" in the broad and

nontechnical sense. In ordinary language, we frequently associate "well-
being" with health--primarily physical health but mental health as
well. Philosophers use this term to refer to what is noninstrumentally good
for someone.

Happiness--In ordinary language, the term "happiness" is frequently used to

refer to a mental state. One might think of happiness as a feeling of
pleasure, contentment, satisfaction, or enjoyment. But the word
"happiness" is also used as a translation for the Greek word "flourishing,"
and even in ordinary talk the use of phrases like "true happiness" suggests
that not one can have pleasant feelings from moment to moment, but lack
"happiness." Some theorists would reserve the term "happiness" for a
stable or enduring quality that is produced by the appropriate features of
one's life. Thus, it might be the case that "a job well done" can make you
"happy," but a delicious desert can only give you "pleasure" or "enjoyment."
As is apparent from this very brief introduction of these three concepts, they
are connected with others like "pleasure," "pain," "preference," "utility,"
"flourishing," "enjoyment," and so forth. But rather than defining each of
these concepts, we will now move to a more abstract level and discuss three
general views about the nature of human well-being (or welfare in the broad
sense). These three views are offered only as illustrations. I am not going
to attempt to provide a comprehensive catalog.
Three Theories of the Human Good
One way for us to get a better handle on the concepts of welfare, well-being,
and happiness is to examine three particular theories of the good for
Hedonism: Philosophical hedonism (which may or may not be related to the
view that the good human life is produced by lots of sex, drugs, and rock 'n
roll) is the view that the good for humans is pleasure (or more generally
positive or enjoyable mental states) and bad for humans is pain (or negative
mental states). Hedonists might believe that pleasure is a distinctive brain
state that varies continuously, with the intense pleasure induced by opiates
or cocaine at one end of the spectrum, and that pain is similar, with the
intense pain of passing a kidney stone at the other end. But some hedonists
believe that pains are differ qualitatively. John Stuart Mill, for example,
thought that there were higher pleasures (e.g., from listening to great music
or reading a great novel) and lower pleasures (e.g., from strong drink,
drugs, or playing video games). There are deep questions about the nature
of pleasure and pain, but for our purposes let us simplify greatly and assume
that all hedonic values (positive or negative) consist of mental states (or
brain states, which may or may not be equivalent) that are experienced as
positive or negative.

Welfarism: In the legal academy, "welfarism" is strongly associated with

normative law and economics. (But in other disciplines, the terms "welfare"
and "welfarism" have other meanings.) Of course, economists differ among
themselves on the nature of welfare, but let us stipulate (for the sake of
simplicity) that "welfare" in the economic sense is a function of "utility" and
that utility for an individual is a function of the individual's ordinal
preferences among states of affairs. If my preferences are satisfied, then
my utility and welfare goes up. If the world moves in a direction that I
would rank lower (and hence disprefer), then my level of welfare goes
down. We might call this theory of "welfare" a "preference satisfaction"

Eudaimonism: The third view that I will outline is based on Aristotle's claim
that the highest humanly achievable good is "eudaimonia," which I will
translate as "flourishing". Aristotle believed that humans flourished if they
both fared well (lived under the right circumstances) and did well (engaged
in valuable activities): hence, Aristotle's claim was that eudaimonia
consisted in faring well and doing well. Let's put faring well aside, and focus
on doing well. Aristotle believed that the nature of "doing well" depends on
human nature. Humans are rational and social creatures. So a flourishing
human life consists of rational and social activities done well. "Done well"
for Aristotle means "expressing the human excellences or virtues." In sum,
a flourishing human life is a life of rational and social activity that expresses
the human excellences, and hence a life under conditions of peace and
prosperity sufficient to support or enable such activity.
Let's try to make this more concrete by offering examples of three different
The Life of Pleasure: The first life is lived by Ben, who takes great pleasure
in sex, drugs, and rock 'n roll. Ben does what it takes to get enough money
to party hard. He is careful not to overdo or to party so hard that he screws
up his life. Ben's wits are somewhat dulled, and his social interactions might
be a bit superficial, but he has a ton of fun almost every day. It turns out
that lots of the time, things don't go the way that Ben prefers--his favorite
bands always break up, he doesn't get job he wants, his girlfriends cheat on
him. But Bob doesn't let disappointment interfere with pleasure--if things
don't go well, he grabs a brewski, takes a couple of tokes, and chills.

The Life of Satisfaction: Alice has many preferences about how things
should go. She wants her children to get a good education and live up to
their potential. She wants her city to care for the homeless. She wants
endangered species to be saved. She works for those things, and as a result
of her efforts, her kids do well. For reasons that were largely out of her
control, her city does care for the homeless and many endangered species
are saved. Things go as she wants them to go, but because Alice worries a
lot, her satisfaction is only rarely translated into pleasure. Some of Alice's
friends observe that she had the potential to do more with her life, as things
turned out, she has what she wants.

The Life of Accomplishment: Phillipa grows up in an loving and nurturing

family and gets an excellent education. As a result, she becomes an adult
who is smart, wise, courageous, temperate, good tempered, caring,
responsible: she is a truly excellent human beings, or to put it differently,
she is virtuous. She is reasonable fortunate in her life circumstances as
well, so she has a good and stable relationship with her partner, many
friends, and meaningful work as an architect. She lives a balanced life, with
periods of intense and difficult work, but also times for fun. Many of her
preferences are satisfied, but many are not.
I hope the description of the three lives is not so oversimplified that it
becomes unrealistic. The point is that the three theories we have described
will evaluate the three lives differently. At least some varieties of hedonism
will count Ben's life as the best life--it is a life of pleasure. There may be
pleasure in Alice and Philippa's lives as well, but not as much as in Ben's. A
welfarist who counts all preferences equally might view Alice's life as the life
that goes the best: her preferences are satisfied. Although she doesn't get
as much pleasure as Ben, she doesn't prefer a life of pleasure; likewise, she
doesn't want to live up to her potential for excellence: she is satisfied with a
more passive life. Philippa gets much of what she wants and experiences
her share of pleasures, but as things turn out, her life is worse than Ben and
Alice's lives are if the scale is either pleasure or preference satisfaction. A
eudaimonist or virtue theorist will nonetheless say that Philippa's life is the
best life.
The Conceptual Space of Debates about the Nature of the Good for

Things are about to get abstract, so watch out. The next step we will take
involves mapping the ways in which the three theories of human good
differ. This is not the only way we could map the conceptual space, but it
illuminates some of the important issues. This map is going to rely on a
distinction between the subjective (which is associated with our minds or
inner lives) and the objective (which is associated with the world, including
our bodies and our environment). That distinction will then be applied in
two dimensions: one concerned with the source of the standards for value
and the other concerned with the things that can satisfy those standards. I
warned you--this is abstract, but bear with me.
Objective and Subjective Views of the Sources of the Standards for Human
Good: What is the source of our criteria for well-being, happiness, welfare,
or the human good? One possibility is the standards are subjective--they
are relative to what we think or feel. Another possibility is that the
standards are objective--they depends on the nature of the world and not
our feelings or beliefs about it.

Objective and Subjective Views of the Conditions to Which the Standards for
Human Good Are Applied: Once we have standard for human good, we need
to apply them to something. We could apply them to things that are
subjective--to our mental states. Or we could apply them to things that are
objective--to states of the world.
OK. Now we can characterize our three theories of value in light of the two
dimensions in which a theory of human value can be objective or subjective.
Hedonisim is usually understood as having both a subjective understanding
of the sources of value and a subjective understanding of what those
standards apply to. Our mental states determine what is good or bad for us:
it depends on what we get our kicks from and what makes us feel bad. And
our mental states or subjective experiences are what the standards apply
to. So hedonism is subjective in both senses.

Welfarism is committed to a subjective view of what is good and bad for

humans. Our preferences (which are mental states) provide the criteria or
standards by which utility and welfare are judged. But welfarists are
objectivists about what these standards are applied to. Utility is a function
of preference over states of the world. My utility goes up if the world moves
to a state I prefer.

Eudaimonism as I have described is a hybrid theory on both levels. The

basic standard of a flourishing life is objective--it is derived from an account
of human nature and the virtues. But for any particular individual, a
flourishing life will also be a function of that individuals plans and goals and
also a function of what that individual finds satisfying, rewarding, and to
some extent pleasurable. Likewise, a virtue-centered theory of human
flourishing takes how one fares (faring well) and how one does (doing well)
as the conditions to which the theory is applied. So the conditions are
partially objective. But the human virtues involve subjective states. Doing
well involves doing the right actin for the right reason. A flourishing human
being has the right preferences and takes enjoyment from the right kinds of
things: for this reason, the conditions to which the criteria for the human
good are applied are partially subjective.
In other words, hedonism is a subjective-subjective view, welfarism is a
subjective-objective view, and eudaimonism is a hybrid-hybrid view. One
can imagine views that might be objetive-objective: for example, if you
believed that well-being was cashed out by a list of objective goods, such as
health, meaningful work, and an active social life, you might have a view
that the standards for human good are objective and that they are satisfied
by objective features of particular human lives.
Arguing About (or Investigating) the Nature of Welfare, Well-Being,
and Happiness

Which of these rival accounts is the best one? Of course, the nature of the
human good has been the subject of philosophical debate and cultural strife
for more than two millennia. So it will surprise no one that the Legal Theory
Lexicon will just skim to the surface of the arguments that can be made for
and against various conceptions of welfare, well-being, and happiness.
Let's begin with methodology. What kinds of reasons might be offered for
and against various conceptions of the human good? Now that is a big topic
in itself, but we can identify three of the common strategies used to advance
our thinking about this topic:
Reflective Equilibrium: One strategy is to attack the problem directly
using the method of reflective equilibrium. We can begin with intuitions
(our unreflective beliefs and the opinions of others) about the topic at
hand. Some of those beliefs will be general and abstract (e.g.
"happiness is a feeling"). And some of those beliefs will be quite
particular: a serious illiness involves a loss of well-being even if the
pain is completely managed). We can then attempt to formulate a
theory of the good for humans (or of welfare, well-being, or happiness)
that best fits those intuitions. Some of our intuitions may need to be
revised in light of the tentative theory, and some aspects of the theory
may need to be revised in light of recalcitrant intuitions. Eventually, we
can reach a reflective equilibrium between beliefs that have become
well-considered judgments and our general theory.
Ethical Theory & Metaethics: There is a second method that we might
employ. We might begin with our best understanding of metaethics (at
what we might think of as the highest level or "top" of normative
theory.) We could then work down through ethical theory to our
conception of the human good. For example, if we adopted an
internalist view of moral motivation (i.e., that what is morally good
necessarily provides motivation) then we might conclude that our view
of the human good must have a certain form if it is to play this
motivational role. We might call this the top-down strategy: we
proceed from axioms of metaethics to deduce the postulates and
lemmas of our theory of the human good.
Thought Experiments: The notion of a thought experiment (or
"hypothetical") is familiar to all legal theorists. One of the problems of
the method of reflective equilibrium may be the tendency of various
conceptions of human good to coincide or converge in particular
cases. Our preferences and subjective experiences of happiness may
align with elements of objective well-being such as health. In order to
pry these things apart, we might want to construct thought
experiments in which force us to evaluate cases in which our subjective
happiness diverges from our preferences or health.
The Experience Machine
Robert Nozick is famous for a thought experiment that can be used to test
the subjective exerience conception of well-being. Suppose you have a
choice between two lives. One is roughly equivalent to your current life (or
a typical human life). You experience pleasure and pain; some of your
preferences are satisfied and some aren't. The other life involves your being
attached to an experience machine that directly feeds experiences into your
brain. You will be given an amnesiac when you are attached so that you will
forget the fact that you are on the experience machine: it will seems as if
you current life is continuing. But your life on the experience machine will
be supremely good from the subjective point of view. You will feel
supremely happy. You will be successful, adored by your friends and
partners, and everything that makes you feel good (whether it be career
success or Jimmy Choo shoes) will come your way. This life will involve very
little or no pain, frustration, or disappointment. Finally, the experience
machine is well tested, and you are truly convinced that it will cause you no
serious physical harm. Which life would you choose?
Many people would choose a normal life with real experiences and would
believe that there life on the experience machine would go very badly--
although it would seem as if it were going well. If you have this reaction to
the thought experiments, then you have a reason to believe that you have
metaethical intuitions that are inconsistent with a hedonistic-subjectivist
conception of well-being.
Of course, this thought experiment can be criticized in various ways. It
might be argued that you aversion to the experience machine is improperly
influence by a reaction that being on the machine would be "yucky"--when
(by hypothesis) it would not be. Or it might be the cases that you distrust
the long-range effectiveness of the machine. These issues have to be
considered carefully before we place too much stock in the results of a
thought experiment.
There is so much more to be said about the inquiry into the nature of the
human good, and my discussion of methodology and one thought
experiment does not even begin to scratch the surface. Nonetheless, I hope
I have given you an idea of how you might begin to think and argue about
this topic.
Why Does the Human Good Matter to Legal Theory?
I imagine that most readers of the Lexicon can see that the nature of the
human good has important implications for legal policy. If the preference
satisfaction view of welfare were correct, then normative law and economics
might provide the correct methodology for normative legal theory. If the
hedonistic approach were correct, then we would want to pay close attention
to empirical research on subjective happiness. Normative evaluation of legal
policy is one of the central activities of legal scholars, and one's views about
the human good surely plays a big rule in such evaluations. Of course, some
normative theories (e.g., consequentialism) will given the human good a
decisive role in the evaluation of legal policy, whereas others, e.g.,
deontological or rights based theories might give the human good a less
prominent role.
Can We Do Normative Legal Theory Without a Conception of the
Human Good?
Given the difficulty of arriving at confident conclusions about the nature of
the human good, you might ask, "Can we ever reach confident conclusions
in applied normative legal theory?" Or to put the question differently, "If I
can't make up my mind about the nature of the human good, can I still
reach confident conclusions about what legal rules are better than
others?" One answer to this question might invoke the Rawlsian idea of an
overlapping consensus. There may be a wide range of cases where the most
plausible theories of the human good converge, and legal theorists might
focus on those cases. A related strategy might invoke the idea of "public
reasons," and argue that controversial conceptions of the human good are
inappropriate as reasons for public policy. Another strategy might involve a
kind of what is called "pragmatism." (I am using the scare quotes, because
I have doubts about the use of that term, but those doubts can be set aside
for now.) That is, we could invoke the theory of the human good that seems
most appropriate or salient for each context. When we do tax policy, we
might use the welfarist conception of the human good, but when we are
thinking about health policy, we might focus on objective health
outcomes. Of course, there is always the option of abandoning normative
theory altogether. You might come to the conclusion that legal scholars can
only describe existing doctrine and provide information about the probably
effects of changing that doctrine.