Ex - Post Egalitarianism ∗

In any legal system, one finds numerous rules and practices as well as constitutional provisions which are incompatible with utilitarian considerations. These rules and practices often grant benefits to an individual whose wellbeing is at risk; yet the costs of these benefits to other individuals outweigh the benefits. Thus, for instance, despite the persistent belief of economists that efficiency requires to impose the harshest possible sanctions, legal systems often impose light sanctions and consequently have to bear the high costs of increasing the probability of detection. 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. An ex-ante analysis ranks distributions of ex-ante utilities, before people know the actual outcome they receive. Expost analysis, on the other hand, relates to the final distribution of utilities. This analysis too is done before uncertainly related to the distribution of final outcomes is revealed, but relates to the evaluation of distributions of final outcomes. ∗We thank Ariel Rubinstein for helpful discussions. Zvi Safra thanks the Israel Institute of Business research for its financial support. Uzi Segal thanks NSF Grant 0111541 for financial aid. †Hebrew University School of Law, Jerusalem 91905, Israel, [email protected] ‡Faculty of Management, Tel Aviv Uni., Tel Aviv 69978, Israel, [email protected] §Department of Economics, Boston College, Chestnut Hill, MA 02467, [email protected] Note that when we use the term ‘ex-ante’ we do not discuss the extreme situation of ex-ante decision process — the situation in which the decision is made behind the ‘veil of ignorance,’ before the individual is even aware of his personal characteristics.