Stephen Kershnar

The most qualified applicant is the one who has the propensity to maximally satisfy the employer’s preferences. An applicant’s propensity is a function of her willingness to work hard together with the relevant capacity or potentiality to do the tasks constituting a job. Given this account of the most qualified applicant, there is only a weak duty, if any, to hire persons based on their being the most qualified. Such a duty is not justified by reference to rights, desert, fairness, or the maximization of welfare. However, such a duty may come about via promises made by the employer or the employee who does the hiring. These results suggest that anti-discrimination laws cannot be justified based on merit, although other justifications might still be available.

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.

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.