Not `Social Justice': The Housing Association, the Judges, the Tenant and his Lover Fitzpatrick v. Sterling Housing Association [1997] 4 All E.R. 991; [1998] 1 F.L.R. 6 (C.A.); [1999] 4 All E.R. 705 (H.L.)

This note analyses the decision of the House of Lords in Fitzpatrick, which held that gay partners could fall within the legal definition of ‘family’ for some purposes. The note argues that despite the real (if overstated) benefits that this case bestows on gay partners in the form of legal rights, under analysis, the decision self-deconstructs to reveal that it is grounded on the principle of discrimination on the basis of sexuality. However, it is also suggested that the encounter between discursive legal reasoning (underpinned by normative heterosexuality), and aversion of the family which is ‘other’ to this discourse, is one which leaves its mark on law, as the potential undermining or deconstruction of law’s normative assumptions. The note further argues that although this decision is properly seen as a moment in the struggle for gay rights, it also serves as a reminder that the fortunes of critical theories and political movements that seek to challenge the legal paradigm of the white, heterosexual male are inextricably linked. Fitzpatrick, whatever else it is, is also an object lesson in the debt that current campaigns for gay legal rights owe to feminist critiques of, and campaigns that have successfully challenged, the role of this norm in legal discourse. This revised version was published online in July 2006 with corrections to the Cover Date.     

Quantifying distributive justice: An approach to environmental and risk-related public policy

The most fundamental philosophical objection to cost-benefit analysis is that it fails to account for the distinction between more-necessary and less-necessary benefits. For example, it provides no way to avoid trading off a few cancer deaths in exchange for a more cost-effective but also more hazardous technology which provides cheaper paper or plastic products for the many. Since unjust distribution of benefits and burdens results primarily from the failure to prefer more-necessary goods (such as health and safety) over less-necessary ones (such as cheaper plastic razors), we shall see that a correct calculation of the rate at which marginal utilities diminish in value (as they become less necessary to their users) can determine degrees of necessity and thus the most just possible distribution of benefits and burdens. One way to measure the rate of diminishing marginal utility is provided by the wealth effect in occupational risk studies. Wealthier workers will not assume the same risk in exchange for a given salary increment (which to them is not very necessary) as poorer workers would assume for that same salary increment (which to them is more necessary). It is therefore possible to construct a mathematical model for the effect of necessity/non-necessity on quantitative decision principles for environmental and risk-related public policy, thus making such decisions more distributively just than traditional cost-benefit analysis would allow.