Stephen Kershnar

In two recent cases, Grutter v. Bollinger, 539 U.S. 306. and Gratz v. Bollinger, 539 U.S. 244., the Supreme Court held that the Equal Protection Clause permitted state schools to use race-sensitive admissions in order to obtain the educational benefits that flow from a diverse student body. The diversity-based argument for race-sensitive admissions, scholarships, awards, and other opportunities at universities should have been rejected because it does not consider the full range of costs and benefits and because the more narrow educational effects probably weigh against such programs. However, this does not suggest that applicants' race, ethnicity, and gender should be ignored. Rather the same consideration that led to the defeat of the diversity argument, i.e., reasoning capacity, supports the consideration of demographic factors. However, attention to such factors further undermines the consequentialist case for affirmative action

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.

Moral responsibility and morality lie at the heart of how we view the world. In our daily life, we feel responsibility-related emotions: gratitude, pride, love, forgiveness, resentment, indignation, and shame. We love those who freely and reciprocally love us. Also, we feel that people act rightly or wrongly, make the world better or worse, and are virtuous or vicious. These policies are central to our justifying how we see the world and treat others. In this book, I argue that our views on these matters, except love, are false.

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 essay, I argue that colleges and universities should permit hazing. I argue that if hazing is wrong, then it wrongs someone and if it wrongs someone then it violates someone’s right. Hazing does not violate someone’s right when the person who is hazed gives informed consent. I then argue that because hazing is permissible, colleges should permit it. I consider and respond to objections that hazing is wrong for reasons that are not right-based. Here I consider objections relating to deception, coercion, unnecessary harm, degradation, and exploitation. I also consider two more objections. First, hazing is wrong because it violates the colleges’ rights. Second, colleges need not permit hazing because they own the rights to the groups or the materials that the groups use and hence they may exercise their property rights in such a way as to make hazing wrong.

In this paper, I argue that Threshold-Hell Christianity conflicts with the pro-life position on abortion. The specific type of Christianity is that which also accepts threshold deontology and the existence of hell. Threshold deontology is the view that ordinarily moral duties consist of non-consequentialist side-constraints on the pursuit of the good but that in some cases these side-constraints are overridden. My strategy is to establish that a person who brings about an abortion guarantees that the aborted individual goes to heaven and that it is morally permissible to guarantee someone goes to heaven. It follows that if Threshold-Hell Christianity is true, then abortion is morally permissible.

In this paper, I argue for the Complex Experiential Theory. It asserts that pleasure is a pro-attitude toward a de se experience. I argue that it is better than its competitors. In particular, it is better than monadic theories that view pleasure as a distinct type of experience or a pro-attitude in isolation. It is also better than other non-monadic theories. In particular, it is better than accounts that involve pro-attitudes and beliefs in states of affairs or propositions (or ones that obtain, are true, or that focus on the subject’s own life). When conjoined with hedonism, this theory fits nicely into a building block theory of well-being.

This paper argues for a policy of assassination. Foreign leaders causing unjust wars forfeit their rights against being killed. Killing them also satisfies the conditions on defensive violence that accompany forfeiture (consider, for example, imminence, necessity, and proportionality). Assassination sometimes maximizes the good. In some cases, then, assassination is right and good. A separate issue is whether it is good policy. To the extent that traditional just war theory disallows assassination, it should be revised or rejected.

The Principle of Universality asserts that a part retains its intrinsic value regardless of the whole in which it is a part or even whether it is part of a whole. The idea underlying this principle is that the intrinsic value of a thing supervenes on its intrinsic properties. Since the intrinsic properties remain unchanged so does the thing’s intrinsic value. In this article, I argue that, properly understood, the Principle of Universality can handle seemingly troublesome intuitions about the relative intrinsic value of a vicious person having pain and his having pleasure. I specifically argue that the intuition that the former state is better is explained by the nature of the basic intrinsic-value states, which involve a person having a level of well-being and desert at a time. One implication of this is that given the nature of such basic intrinsic-value states, pleasure and pain are not value-bearing parts of virtuous and vicious attitudes.

If an individual is morally responsible, then there is a responsibility-foundation that makes him morally responsible, but there is no responsibility-foundation that makes him responsible. This rested on the notion that if there were a responsibility-foundation, it would be either an ungrounded choice or an ungrounded character state and that neither can serve as the foundation. The paper then considered three types of objections. First, moral responsibility does not require a responsibility-foundation. Second, a character state can serve as the foundation. Third, we know people are responsible even if we don't know what the foundation is. These objections fail.

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.

This book is about how the systematic application of some basic principles of applied ethics yields some surprising and very unpopular results. In particular, Kershnar investigate three areas: sex, discrimination, and violence. The book argues that the following are some permissible in theory and practice. (1) Adult-child sex (2) Watching rape-pornography (3) State universities discriminating against women (4) The U.S. denying welfare to immigrants (5) Interrogational torture (6) Assassination In addition, the book argues that different races likely have different per capita moral value and that equal opportunity is not valuable. These controversial conclusions will no doubt spur animated and thoughtful discussion amongst readers

In general, capitalists deserve profits and losses for their contribution to the general welfare. Market imperfections and the range of permissible prices (at least within the boundaries of exploitation) prevent the alignment from being a direct one, but the connection generally holds. In the context of the market, this thesis preserves the central place of moral responsibility in moral desert. It also satisfies the fittingness and proportionality conditions of moral desert and provides a backward-looking and pre-institutional ground of it. In addition, the focus on contribution unifies several different types of act-based desert, specifically deserved profits and losses, deserved punishment, and deserved wages. Hence, to the extent that desert-satisfaction is relevant in the selection of an economic system, this result strengthens the case for capitalism.

Affirmative action programs are not justified by compensatory justice. They place a disproportionate burden on white-male applicants. White-male applicants do not owe compensation because they committed a relevant wrongdoing or because they benefitted from another’s wrongdoing. They did not commit a relevant wrongdoing. Receipt of an unjust benefit, when unavoidable and mixed with hard work, does not justify a duty to compensate a victim of the injustice. Thus, the compensatory-justice argument for affirmative action fails.

A concern that accompanies the recognition that people are not morally responsible is how this affects our relationships. In particular, there is concern as to whether the absence of these things eliminates or lessens love. Love is relevant on some of the most plausible theories of well-being. In particular, it might be thought to cause pleasure and fulfill desires and thus bring about well-being on hedonist and desire-fulfillment theories of well-being. It might also be included on the objective list of things that make someone’s life go better independent of pleasure and desire-fulfillment. In this article, I argue for the Intense Pro-Attitude Theory, specifically, that love is a disjunctive combination of intense affective, cognitive, intentional, and valuational pro-attitudes that focus on something’s well-being. If this account is correct, then love is empirically and conceptually independent of moral responsibility. Hence, love is independent of moral responsibility.

A contract in which the potential immigrants to the U.S. waive their right to non-emergency welfare benefits in return for their being allowed to come to the U.S. is not unjust. This is because the right to allow persons to immigrate in return for their waiving any future claim on non-emergency welfare benefits is included in other moral rights that the U.S. has. Nor is the transaction exploitative since it is beneficial to the average immigrant and since he gains a fair share of the transactional surplus. Thus, if such a transaction is permissible for the U.S. citizens and they favor it, then the U.S. government as their agent is other-things-equal obligated to implement it.

In an earlier paper, Stephen Kershnar argued for the following thesis: An instance of trash-talking is permissible if and only if the relevant sports organization’s system of rules permits the expression. One person trash-talks a second if and only if the first intentionally insults the second during competition. The above theory sounds implausible. Surely, the conditions under which a player may insult another do not depend on what the owners arbitrarily decide. Such an approach doesn’t appear to be true in the workplace, bar, or sandlot, so it is hard to see why it should be true in sport. With this general skepticism in mind, this paper evaluates Nicholas Dixon’s objections. Dixon rejects Kershnar’s argument because trash-talking conflicts with the internal value of a sport, violates a right, and degrades the person toward whom the trash-talking is directed.

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.

Extremely harsh treatment (for example, unanesthetized tooth, branding with a hot iron, violent shaking, repeated beatings, and car-battery shocks to the genitalia) is often considered unjust. On different accounts, extremely harsh treatment fails to respect persons because it infringes on an absolute right, fails to respect a person’s dignity, constitutes cruel or inhumane treatment, violates rules that rational persons would choose under fair and equal choosing conditions, or results in a person losing his agency to another. Others respond that in some cases extremely harsh treatment is just because some individuals forfeit their moral rights against extremely harsh treatment or because it is the fair way to distribute a danger that was created by the person to be so treated. In this paper, I develop an argument that is designed to sidestep these criticisms.

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 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.

In this paper, I explore whether harsh treatment fails to respect the criminal as a person. I focus on the most extreme treatment because if such treatment can satisfy the duty to respect a criminal as a person then less extreme cases (e.g., incarceration, fines, shaming practices) can also do so. I begin by filling out the notion of a duty to respect a person. Here I set out an account of autonomy and then show that it grounds the duty to respect a person. Next, I use this account of the duty to lay out a three-part test for whether harsh treatment respects a criminal as a person. I then apply this test and conclude that it does where the treatment does not infringe on the criminal’s rights, exploit him, or express contempt for him.

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.

There are puzzle cases that forfeiture theory has trouble handling, such as the issue of what happens to the rights of two qualitatively identical people who simultaneously launch unprovoked attacks against the other. Each person either has or lacks the right to defend against the other. If one attacker has the right, then the other does not and vice versa. Yet the two are qualitatively identical so it is impossible for one to have the right if the other does not. The Problem of Symmetrical Attackers is a problem for non-consequentialism because the most plausible non-consequentialist theories assume that people have rights and can lose them by forfeiting them or waiving them. This article considers whether consequentialism can get around this problem.

Alan Wertheimer’s book, Consent to Sexual Relations, is an important investigation of consent to sex. The book contains many interesting and insightful arguments and does a nice job of distinguishing the considerations that are relevant to moral and legal consent. The book is both broad and narrow. It is broad in that it discusses a broad array of interesting issues, including the psychology of rapists, the types of psychological harm that rape victims suffer, the moral status and nature of consent, and the conditions that make consent invalid. The book is also narrow in that it focuses on issues surrounding consent to sexual relations, rather than the broader issue of rape and other sex crimes. Wertheimer’s analysis has some defects. The first defect relates to his claim that sex to which the participants have validly consented is not immune to moral evaluation. The second defect involves Wertheimer’s model of morally valid consent. Wertheimer adopts an interest model of morally valid consent to sex whereby valid consent is the conclusion of moral argumentation about whether it’s in someone’s interest to hold that she (or the relevant class of persons) has validly consented in that type of situation.

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 introduces a novel approach to evaluating theories of the good. It proposes evaluating these theories on the basis of their compatibility with the most plausible ways of calculating overall intrinsic value of a world. The paper evaluates the plausibility of egalitarianism using this approach, arguing that egalitarianism runs afoul of the more plausible ways of calculating the overall intrinsic value of a world. Egalitarianism conflicts with the general motivation for totalism and critical-level totalism, which is that independent contributions of each individual’s life should be counted separately. It conflicts with the most plausible version of averagism because only the highly implausible simultaneous life-segment version of egalitarianism can make sense of inequality being disvaluable at a time. Egalitarianism combined with a diminishing marginal value theory also fails because it holds that, other things equal, the world is a better place when we reduce inequality by adding many people whose lives go very badly but whose sheer numbers lessen inequality. The discussion moves the debate about egalitarianism forward by circumventing the oft-discussed, but intractable, debate concerning the leveling down objection. It also reveals a promising new approach to critiquing theories of the good.

Americans are very grateful to veterans. Veterans are celebrated via speeches, statues, memorials, holidays, and affirmative action. They are lavishly praised in public gatherings and private conversations. Contrary to this widespread attitude, I argue that U.S. citizens should not be very grateful to veterans. In evaluating whether the significant gratitude toward veterans is justified, I begin by exploring the nature of gratitude. On my account, one person should be very grateful to a second person just in case the second person reasonably attempted to provide a significant benefit to the first and was primarily motivated by concern for the first’s well-being. I then look at whether veterans typically satisfy these conditions and argue that they do not.

Here, we argue for a mathematical equation that captures desert. Our procedure consists of setting out principles that a correct equation must satisfy and then arguing that our set of equations satisfies them. We then consider two objections to the equation. First, an objector might argue that desert and well-being separately contribute to intrinsic goodness, and they do not separately contribute. The concern here is that our equations treat them as separate contributors. Second, our set of desert-equations are unlike equations in science because our equations involve multiple desert-equations with the applicable equation depending on how the variables are filled out. Neither objection succeeds.

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.