Ex-Post Egalitarianism and Legal Justice

In any legal system, one finds numerous rules, practices, and constitutional provisions that are incompatible with utilitarian considerations. It is not merely utilitarianism that fails to explain a diverse range of rules and practices. Other theories that, like utilitarianism, involve ex ante considerations cannot explain them as well. There are two possible primary explanations for the prevalence of these nonutilitarian rules and practices: Kantian (deontological) explanations and a view we label ex post egalitarianism, which requires that the state decides on its action in an egalitarian manner ex post. Our approach allows for comparisons among different societies by giving meaning to statements like ‘‘Society A is more egalitarian than society B.’’ Furthermore, we show that the more egalitarian societies should also employ less extreme criminal law rules and should be more sensitive to various kinds of injustice, whether it is caused by individual wrongful behavior or by criminal law rules.