Stephen Kershnar

In this paper, I argue that character alone grounds desert. I begin by arguing that desert is grounded by a person’s character, action, or both. In the second section, I defend the claim that character grounds desert. My argument rests on intuitions that other things being equal, it would be intrinsically better for virtuous persons to flourish and vicious persons suffer than vice versa. In the third section, I argue that actions do not ground desert. I give three arguments in support of this claim. First, there is little intuitive support for this supposed ground and to the extent that there is support, it is undermined when we consider what causes character and acts to diverge. Second, this type of desert doesn’t fit with a unifying account of the different aspects of intrinsic value. Third, the most plausible version of act-based desert leaves it unclear why acts should ground desert.

In the context of state educational institutions, young white males are owed a duty to respect their interest or desert tokens. Not all white males have waived this duty since many white males have not performed the relevant types of culpable wrongdoing. Merely having benefitted from an unjust injury act or being a member of a community that owe a debt of compensation to racial minorities and women are not sufficient grounds to override the duty owed to the white male. Since the three most plausible attempts to provide a compensatory justice justification for strong affirmative action programs at state educational institutions fail, I conclude that the following is false. (1) Other things being equal, a state educational institution may choose to hire a less qualified candidate over a more qualified candidate because the weight given to the race or gender of the less qualified candidate relates to the elimination of a debt of compensatory justice. Hence, unless strong affirmative action programs at state educational institutions can be justified by reference to some other value, such as the value of diversity, the state ought to eliminate such programs.

In this article, I argued that in contexts in which tipping is customary, there is a moral duty to tip or to explicitly tell the server that you will not be tipping. The evidence for this rests on anecdotes about people's mental states, and customers and server's intuitions about duties that would arise were a customer unable to tip his server. The promise is a speech act that is implicit in ordering food. The speech act must be matched by the server's uptake, which is implicit in her taking the order. The promise argument rests on an actual promise and not a merely hypothetical promise. If there is such a duty, then in the absence of an explicit content, its content is likely set by convention. The convention is that customers tip 15–20%. Thus, customers have a duty to tip servers 15–20%. Other purported moral considerations do not ground this duty. These include custom, desirable incentives, role‐relative obligation, and gratitude.

In this paper, I argue that many violent sexual fantasies are not vicious. In the first part of this article, I sketch out the nature of violent sexual fantasies and note that many people regularly have them. I then argue many violent sexual fantasies are not vicious. My argument strategy is to explore what makes an attitude vicious and then to note that the vice-making feature need not be present in such fantasies and is in fact probably not present in many of them. I then explore some of the implications of this finding for the nature of virtue and pornography policy.

In this article I argue that mercy does not prevent the imposition of harsh punishment from being morally permissible. This article has two parts. In the first part, I argue that mercy is an imperfect duty, because only such a duty-type explains the attributes that are commonly ascribed to mercy. In the second part, I argue that mercy does not present a sufficient moral reason against the regular imposition of harsh punishment because it neither undermines nor systematically overrides or weakens the retributive duties. This is in part because the imperfect duty to be merciful can be satisfied by actions taken in nonpunitive contexts alone. This is also in part because mercy is not particularly appropriate given the lack of positive desert of and good moral character in most of the culpable wrongdoers who deserve harsh punishment.

A person deserves a punishment if and only if he did a culpable wrongdoing and in virtue of this it is other-things-being intrinsically good that he receive punishment and if he were to receive that punishment then it would be through a non-deviant causal chain that includes the culpable wrongdoing. The wrongdoing may be institutional or pre-institutional depending on whether the moral right that the wrongdoer trespasses upon is dependent on a political institution’s goal. Desert in general, and punitive desert in particular, has a ground for which the agent is blameworthy or praiseworthy and it does not itself general a duty on anyone’s behalf. Both features make desert a different type of moral entity than a moral right. In addition, the two stand in a different relation to autonomy: rights protect a sphere in which autonomy may be exercises whereas desert, including punitive desert, provides a guide to the exercise of autonomy. They thus have different connections to one of the most important value-creating features of a person. This difference between desert and moral rights indicates the need for a separate analysis of each in the context of punishment.

Thomas Hurka has put forth a powerful account of virtue. The account rests on a specification of intrinsically good mental states and then explains what unifies them. On his account, virtue and desert also share the same structure. His theory of virtue has some difficulties that threaten the structure that unifies it. First, Hurka's account cannot provide a principled account of virtue and vice when they are constituted by attitudes toward things are not intrinsically good (e.g., nonexistent state of affairs). Second, Hurka's account does not have room for an important factor in determining the degree to which an attitude is virtuous or vicious: agent-relative goods. Hurka is thus faced with a abandoning the basic structure that makes his theory attractive or adopting counterintuitive positions.

A punitive desert-claim should be understood as a claim about the intrinsic value of punishment, where this value is grounded in an act or feature of the person to be punished. The purpose of my project is to explore the structure and justification of such punitive desert-claims. ;I argue that a true punitive desert-claim takes the form and , and that belief in these principles is justified on the basis of our considered moral judgments. The Principle of Deserved Punishment. A person who deserves punishment deserves it because, and only because, she has performed a culpable wrongdoing. The Principle of the Proportionality of Deserved Punishment. A person receives the punishments she deserves if and only if the punishment she receives is proportional to her culpable wrongdoing. ;My analysis proceeds as follows. In chapter two, I argue in favor of the claim that a culpable wrongdoing is the sole basis for deserved punishment. ;In chapter three, I put forth an account of the structure of a punitive desert-claim and argue that deserved punishment is not justified via the consequences that result from punishment. Having clarified the basis and structure of deserved punishment, I then set out to provide the justification for it. ;In chapter four, I argue that deserved punishment cannot be justified by an appeal to more general moral principles. My argument here rests on the criticism of different types of theory that attempt to justify deserved punishment on the grounds of more general principles. Here I criticize those theories that attempt to justify and on the grounds of: the culpable wrongdoer's choice, the culpable wrongdoer's hypothetical consent, the state's promise to punish, the demands of a justified institution, and distributive justice. ;In the last chapter I argue that and best account for our considered moral judgments about specific cases. From this, I conclude that our belief in both principles is justified

This book is an analysis and evaluation of torture. My take on torture is unique for four reasons. First, it provides a distinct analysis of what torture is. Second, it argues that on non-consequentialist grounds, specifically rights-based ones, torture is sometimes permissible. Third, it argues that torturers are not always vicious. Fourth, it argues that it is plausible that these conclusions apply to some real world cases. In short, it fills the following gap: it evaluates torture from a rights-based perspective and finds that in some cases it is permissible. My book is a unique philosophical exploration of torture. It combines a philosophical analysis of torture with a moral evaluation of it. The philosophical analysis of torture has not received a lot of attention. My analysis defends a minimal view of torture and one that distinguishes the analysis of the concept of torture from the moral evaluation of it. The resulting theory, the minimalist theory, differs noticeably from other analyses. My moral evaluation of torture sharply differs from the rest of the literature. The evaluation focuses on the non-consequentialist approach to morality, that is, it assumes that what makes an action right is not solely whether it brings about the best results. Using the central feature of non-consequentialism, moral rights, I argue that torture is justified in a number of theoretical contexts, including defense, punishment, and when the person to be tortured consents. I then look at the actual world and argue that it is plausible to think that there are real-world cases where torture is justified. My analysis also looks at whether torture is virtuous in an attempt to get at what intuitively repels us about torture. My analysis is not only the first look at the issue, but it also ties in with recent developments in virtue theory. As in the analysis of the permissibility of torture, I try to show that my findings with regard to virtue are not merely of theoretical interest, but are plausible given some real-world cases.

The article claims that a person who deserves punishment deserves it because, and only because, she has performed a culpable wrongdoing . The article thus rejects the theory that the basis of deserved punishment is a bad moral character. The argument rejecting The Character Theory of Deserved Punishment is divided into two parts:1) that it is not necessarily the case that an intentional act reflects the agent's moral character, and2) that it is not necessarily the case that a culpable wrongdoing reflects the agent's moral character. The article then proceeds to isolate instances of culpable wrongdoing and of bad moral character to see which of these factors accompanies the considered moral judgment that the agent deserves punishment. It concludes that our intuitions suggest deserved punishment and the amount of punishment someone deserves, correlate with culpable wrongdoing rather than with a person's bad moral character. Der Beitrag geht davon aus, daß eine Person dann und nur dann Strafe verdient, wenn sie eine rechtswidrige Tat schuldhaft begangen hat. Er wendet sich damit gegen die Auffassung, Basis für eine verdiente Strafe sei der schlechte Charakter der bestraften Person. Das Argument, das die letztere Lehre verwirft, zerfällt in zwei Teile. 1) Es ist nicht notwendigerweise so, daß eine Vorsatztat den schlechten Charakter des Handelnden, und 2) es ist nicht notwendigerweise so, daß schuldhaft begangenes Unrecht überhaupt den Charakter des Handelnden widerspiegelt. Anschließend untersucht der Beitrag Beispiele schuldhaftes Unrechttuns und Beispiele schlechten moralischen Charakters, um festzustellen, welcher dieser Faktoren das moralische Urteil, daß der Handelnde Strafe verdient, begleitet. Er kommt zu dem Ergebnis, daß unsere Intuitionen den Gedanken, jemand verdiene Strafe, und die Höhe der Strafe, die der Betreffende verdient, mit der Annahme einer schuldhaft begangenen rechtswidrigen Tat korrelieren und nicht mit der Annahme der Betreffende habe einen schlechten Charakter

David Boonin’s book, The Problem of Punishment, combines an incredible command of the literature with an organized and careful discussion. With the possible exception of Michael Moore’s book, Placing Blame, this is the best book ever written on the philosophy of punishment. His overall thesis is that legal punishment is wrong. Boonin argues that the purported justifications of punishment fail the Foundational Test or the Entailment Test. (1) Foundational Test: A theory satisfies the foundation test if and only if it does not have implications that are so counterintuitive that there is sufficient reason to reject the theory. (2) Entailment Test: A theory satisfies the Entailment Test if and only if it entails that legal punishment is permissible. Despite the book’s brilliance, Boonin’s overall strategy is mistaken. He tries to show that no theory can justify punishing all and only people who violate the law and entail that all such offenders should receive proportionate punishments. He also argues that many of the theories fail on their own terms, but let us leave aside these specific criticisms. Consider the following question: Are the laws in question are perfectly just or not? If the laws are perfectly just, then we are talking about an ideal set of laws. The ideal laws might well perfectly track one of the factors such as desert, forfeiture, or fairness because doing so is what makes them perfectly just. In this case, the theory in question will pass the Entailment Test. If the laws are not perfectly just, then it is not clear why it is desirable for a theory to justify punishing all offenders. For example, if the state does not allow someone to engage in free speech, practice the religion of her choice, or deny intercourse to her husband, it is not clear why in such cases we should think that an adequate theory should justify state punishment. Boonin’s book is must reading for anyone who wants to explore the moral status of punishment. His overall strategy, however, is mistaken.

The retributive duty is both held by and owed to the victim of a culpable wrongdoing. This reflexive account fits nicely with a Kantian emphasis on autonomy because the Kantian account allows us to explain how a person can have a duty to oneself. The reflexive account also fits nicely with, and is in part supported by, the notion that a culpable wrongdoer forfeits some of his rights . The waivability of the retributive duty in part explains why it is intuitively permissible for the victim not to punish the wrongdoer, but why the same is not true with regard to the state. The reflexive duty also fits into a consent-based account of state authority and the notion that natural duties are mostly negative. Das Opfer einer schuldhaften Verletzung seiner Rechte hat nicht nur Recht, sondern auch die Pflicht Vergeltung zu üben. Diese reflexive Erwägung paßt sehr gut zu einer Betonung des Autonomiegedankens nach der Weise Kants, da die Auffassung Kants zu erklären vermag, wie eine Person eine Pflicht gegen sich selbst haben kann. Ebenso gut paßt die reflexive Erwägung zu - und sie wird zum Teil auch gestützt von - der Erkenntnis, daß jemand, der schuldhaft Unrecht tut, einige seiner Rechte verwirkt. Freilich kann auf die Vergeltung verzichtet werden, und das erklärt teilweise, warum es unseren Intuitionen entspricht, daß es dem Opfer erlaubt ist, den Täter nicht zu strafen, während das für den Staat gerade nicht gilt. Die reflexive Pflicht paßt schließlich auch zu einer auf Einverständnis gegründeten Sichtweise staatlicher Autorität, und sie läßt sich gut vereinbaren mit der Erkenntnis, daß natürliche Pflichten zumeist negativ formuliert sind

In this paper, I provide an analysis of equal opportunity. I argue that equal opportunity occurs where two or more persons with equal natural abilities and willingness to work hard have chances at various jobs that are in the aggregate of equal value. I then argue that equal opportunity is neither valuable nor something that the government ought to pursue. First, it is not clear why we should value opportunities rather than outcomes. Second, the value of equal opportunity rests on the value of interest satisfaction. However, if interest satisfaction is relatively constant across different jobs and different job opportunities, then the concern for interest satisfaction will not ground the value of equal opportunity. Third, equalizing opportunities is not in itself valuable because persons are not equally valuable. Fourth, even if equal opportunity were valuable, the government can pursue it only by trespassing on individual rights.

The moral theory justifying punishment will shape the debate over numerous controversial issues such as the moral permissibility of the death penalty, probation, parole, and plea bargaining, as well as issues about conditions in prison and access to educational opportunities in prison. In this essay I argue that the primary goal of the criminal justice system is to inflict suffering on, and only on, those who deserve it. If I am correct, the answer to issues involving the criminal justice system should be answered in large part by considering whether the practice in question furthers the infliction of suffering on, and only on, those who deserve it.

A private property right is a collection of particular rights that relate to the control of an object. The ground for such moral rights rests on the value of project pursuit. It does so because the individual ownership of particular objects is intimately related to the formation and application of a coherent set of projects that are the major parts of a self-shaped life. Problems arise in explaining how unowned property is appropriated. Unilateral acts with regard to an object, e.g., mixing in one’s labor into it, probably don’t ground particular rights to private property. Nor do bilateral contracts since a stable pre-institutional contract with regard to appropriation is not likely to form. However, a conventional method of appropriation can allow for such appropriation while at the same time preserving the pre-institutional nature of such rights. This theory can also account for a person’s property rights in her own body. However, the value of project formation requires that persons have at least some private property that is to serve as the object of their projects. These positive rights to property undermine the libertarian claim that all non-commitment-based rights are negative. However, a further empirical argument is needed in order to justify protecting these positive moral rights to private property by positive legal rights.

Among the most controversial issues in the United States is the question of whether public or private agencies should adopt preferential treatment programs or be required to pay reparations for slavery. Using a carefully reasoned philosophical approach, Stephen Kershnar argues that programs such as affirmative action and calls for slavery reparations are unjust for three reasons. First, the state has a duty to direct resources to hose persons who, through their abilities, will benefit most from them. Second, he argues that, in the case of slavery, past injustice – where both the victims and perpetrators are long dead – cannot ground current claims to compensation. As terrible as slavery was, those who claim a right to compensation today owe their existence to it, he reasons, and since the events that bring about a person’s existence are normally thought to be beneficial, past injustices do not warrant compensation. Finally, even if past injustices were allowed to serve as the basis of compensation in the present, other variables prevent a reasonable estimation of the amount owed.

This paper argues that an instance of trash-talking is permissible if and only if the relevant sports organization’s system of rules permits the expression. The argument for this position rests on the notion that if there is no relevant side-constraint on trash-talking, then if the player commits to a moral boundary on trash-talking then that is the moral boundary on trash-talking. I then argued that there is no relevant side-constraint on trash-talking and that the players commit to the ownership theory as the moral boundary on trash-talking. Hence, the ownership theory is the moral boundary for trash-talking. I then considered a number of objections, the most important of which are that there is a side-constraint against trash-talking because it is degrading, disrespectful, exploitative, or objectifying and that the ownership theory is false because it confuses what is wrong with what is penalized.