Fairness Beyond Efficiency: A Neo-Kantian Framework for Antitrust in Digital Platform and AI Markets

This proposal targets the section theme “Kantian Philosophy in the Age of Technology” and speaks most directly to the suggested panel topic “The social contract in the digital age”, while also connecting to “Kant, artificial intelligence, and political agency” through the role of algorithmic systems and platform “gatekeepers” in structuring market agency and choice. Recent years have witnessed a striking re-emergence of “fairness” in European competition law and policy—especially in relation to digital platform markets, Big Tech, and AI-adjacent forms of market organisation. This shift is often narrated as a move away from an exclusive focus on neoclassical “efficiency” and toward a broader political-economic conception of competition policy that is also attentive to distributive and moral constraints on market power. At the same time, crisis contexts (most vividly the COVID-19 pandemic and the politics of “price gouging”) have made unusually visible the limits of welfarist and Kaldor-Hicks style reasoning when public authority confronts exploitative pricing, inelastic demand, and severe informational asymmetries. This paper argues that the recurring “fairness vs. efficiency” debate in antitrust cannot be resolved by simply adding fairness as an optional policy “goal” alongside efficiency. Rather, the debate reflects a deeper conflict between (i) utilitarian and wealth-maximisation standards dominant in strands of law-and-economics and (ii) a rights-based tradition, strongly present in European legal thought, in which fairness functions as an intrinsic normative constraint. Drawing on a Neo-Kantian approach to law and political economy, the paper reconstructs fairness as a regulative idea that can be made administrable through legal doctrine—particularly via the conceptual architecture of “unfair in itself / unfair when compared” in exploitative abuse analysis and related fairness-framed regulatory developments. Methodologically, the paper combines legal-philosophical argument with doctrinal analysis and comparative political economy. It develops a Neo-Kantian framework for assessing exploitative conduct in digital and AI-enabled markets, clarifying how fairness constraints on profit-seeking can be justified without collapsing into either moralistic intuition or technocratic welfare calculus. The payoff is a principled account of why—and how—competition policy can legitimately discipline undue wealth transfer in platform and AI markets while remaining faithful to core commitments of autonomy, public justification, and non-instrumental treatment of persons. The paper’s central claim is that fairness in antitrust is best understood Neo-Kantianly as a constraint of right—not a discretionary add-on—because exploitative market power can involve treating market participants merely as means (e.g., through structurally unavoidable terms, crisis profiteering, or platform gatekeeping that removes meaningful exit/voice). On this view, the familiar attempt to quarantine “equity” from “efficiency” (or to treat fairness as non-economic) misdescribes both human behaviour (fairness preferences, punishment of perceived unfairness) and the legal tradition that already operationalises fairness via doctrinal tests and justificatory standards.