Stephen Kershnar

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 some cases, the U.S. should adopt a policy of assassinating national leaders. On just war theory, national leaders are sometimes combatants. This is because some leaders are both causal and logical agents of an unjust military campaign. Such leaders occupy this logical role because in some cases their position has an essential link to their nation’s military projects. In addition, such a policy aligns with some of the policies that motivate just war theory in that assassination does not target innocent persons, is connected to self-defense, and does not violate any international agreements. Just war theory should probably be rejected, however, since it rests on dubious claims about the non-contractual essentialist conditions of combatant. On a self-defense theory, some national leaders may be killed because they are threats. They are threats because they originate a causal process that will likely bring about large amounts of unjust harm. In so doing, they forfeit those moral rights that protect them against injurious action and thus remove one of the major constraints against violence and killing. On a consequentialist theory, such a policy would likely bring about the best consequences since it would be a vital tool in the protection against genocide, unjust military aggression, and other horrendous state actions that have characterized the twentieth century. It is unlikely that the harm that would result from such a policy (e.g., its misuse) would outweigh the expected gain from it.

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.

George Schedler raises interesting issues with regard to the amount of reparations owed for slavery, the parties who are owed reparations, and the standard for these reparations. His arguments, however, do not hold up upon analysis. His analysis of the case for the descendants of slaves being owed compensation seriously overestimates the case for such reparations. He does not identify the grounds for such compensation, i.e., either stolen inheritance or the descendants’ trustee-like control over the slave’s estate, and this results in his not identifying the metaphysical and epistemic problems that accompany the descendants’ claim to reparations. In analyzing whether the U.S. government owes compensation, Schedler provides arguments based on its small role in bringing about slavery and the break in national identity that followed the Civil War. Such arguments fail but his conclusion can be supported by other arguments, specifically the nature of the federal government’s relation to slavery and the limited nature of its powers. Thus, the case against reparations is overwhelming but not for the reasons Schedler provides.

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.

A particular amount of punishment is justified if and only if that amount of punishment is deserved and the desert claim is not overridden. In the case of some multiple murderers or people who perform serious violent acts in addition to murder, the deserved punishment must involve torture. I argue that this legitimate desert claim is not overridden by objections based on notions of brutality and inhumanity, the Kantian concern that persons be treated as ends, the intuitive distaste that many persons have for torture, the negative consequences of institutionalized torture, the concern for bias in the imposition of punishment, and the need for accuracy in measuring harms.

In David Boonin’s Should Race Matter? Unusual Answers to the Usual Questions, Boonin addresses some of the most controversial race-policies. Specifically, he addresses reparations for slavery, affirmative action, hate-speech penalties, hate-crime laws, and racial profiling. The book is excellent, but in the end the arguments do not succeed. Consider first his argument on reparations for slavery. In general, problems with the relevant compensation-counterfactuals undermine our ability to gage the amount of compensation owed. Similarly, because no one knows how much of the black-white gap is due to genetics or African cultural influence or other factors, judging the amount of the black-white gap due to slavery and subsequent oppression is nearly impossible. When paid via tax dollars, both unwarranted compensation and unpaid compensatory debts are unjust. Hence, when it is murky whether or to what extent compensation is owed, compensatory justice pulls us in two directions. Consider, also, how much of the debt has been paid off already via affirmative action and disproportionately filling government jobs with blacks. If blacks are doing better than how they would in the absence of slavery and past discrimination because of government benefits, then it is not clear if further compensation is owed. Boonin needs to consider whether blacks occupy more professional roles or have more income than they would have but for past discrimination. This might come about if we discovered that affirmative action was widely applied or that large numbers were hired by the government and it pays a lot more than the private sector.

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.

In this article, I argue that as a theoretical matter, a population's health-level is best quantified via averagism. Averagism asserts that the health of a population is the average of members’ health-levels. This model is better because it does not fall prey to a number of objections, including the repugnant conclusion, and because it is not arbitrary. I also argue that as a practical matter, population health-levels are best quantified via totalism. Totalism asserts that the health of a population is the sum of members’ health-levels. Totalism is better here because it fits better with cost-benefit analysis and such an analysis is the best practical way to value healthcare outcomes. The two results are compatible because the theoretical and practical need not always align, whether in general or in the context of population health.

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 essay aims to establish two theses. First, hell is unjust. Second, God ought not (or perhaps cannot) impose hell on human beings. In support of these theses, Stephen Kershnar argues that human beings do not deserve hell because they either cannot cause an infinite amount of harm or are not responsible for doing so. Also, since humans don’t have infinitely bad characters, hell can’t be deserved on the basis of character. Since humans don’t deserve hell, God may not (or perhaps cannot) impose unjust punishments and hence may not (or cannot) send or allow persons to go to hell.

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.

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.

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.

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.

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.

There are three attractive principles that are held by many desert theorists. (1) Character-Desert Principle: A person’s character is a ground of moral desert. (2) Limited Responsibility for Character Principle: Persons are not fully morally responsible for their character. (3) Moral Responsibility Principle: If something grounds moral desert in a person, then she is fully morally responsible for it. Each of these principles is backed by some strong intuitions or arguments. In this paper, I argue that we should reject the Moral Responsibility Principle. This principle is not supported by an analysis of act-based desert. This rejection is in line with the observation that desert is affected by a number of factors that are outside of an individual’s control, e.g., degree of autonomy and desire content. It also fits with an explanation of desert in terms of fittingness.

If God is essentially all-good, then he is not morally responsible. If God is maximally great, then he is essentially both omnipotent and omniscient and these latter properties ensure that he is essentially all-good. From essential all-goodness, it follows that he does not have the power to choose evil. This in turn results in his lacking the power to do evil and thus his not being responsible for avoiding it. This conclusion is not defeated by objections that differ based on whether they deny, assert, or are independent of the claim that God is essentially all-good. I conclude that a maximally great being is not possible. Theism might remain true, however, if God is not a maximally great being. However, I claim, without defense here, that the best arguments for theism assume or entail that God is a maximally great being.

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.

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.

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.

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.

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 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.

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

Sexual fantasy is a non-perceptual thought that is sexually arousing. It has several paradigmatic features. The structure of a fantasy involves an agent taking pleasure in an object that is often a visual depiction of an event. The fantasy is under the agent’s control and has a semantic content. Since mere sexual fantasizing about someone respects the individual who are depicted in the fantasy, the rightness of a sexual fantasy depends on whether consequentialism is true and, if so, whether the particular fantasy brings about better results an alternative activities. Sexual fantasies can be intrinsically good or bad depending on whether the pleasure is malicious and whether the fantasy contains a false statement. The vast majority are not intrinsically bad since they neither involve an unfitting attitude toward something that is itself bad nor commit the subject to a falsity. Hence, if one rejects consequentialism, then most sexual fantasies, including many of the most violent ones, are neither wrong nor intrinsically bad.

In "Kant on Freedom and the Appropriate Punishment," the author begins by noting that in The Metaphysics of Morals , Kant asserts that a wrongdoer should be given a punishment that is similar to his wrongdoing. He then makes two interpretive claims with regard to this assertion.First, he claims that the best way to understand this assertion in the context of other things Kant says is that the state is obligated to punish a wrongdoer in a way that imposes on the wrongdoer an amount of suffering equal to what he caused and through an action that is similar in type to the wrongdoer's offense. The argument in support of this claim occurs in section II and rests on two more specific interpretive claims about Kant's theory: that state punishment should resemble the wrongdoer's acts and should involve the same level of suffering as was involved in the original wrongdoing and that punishment in accordance with these constraints is an obligatory duty.Second, the author claims that on Kant's theory this principle of appropriate punishment is justified because it restores equality in the distribution of freedom for members of the state. The argument in support of this claim occurs in section III. The argument rests in part on Kant's justification of the state and coercion in terms of the value of equalized freedom. By applying this same justification to Kant's principle of appropriate punishment, the author claims to be able to account for the principle as well as to relate the principle to Kant's political theory. Der vorliegende Beitrag beginnt mit der Feststellung, daß Kant in der Metaphysik der Sitten geltend macht, ein Übeltäter solle eine Bestrafung erleiden, die mit seiner Tat vergleichbar ist. Im Hinblick auf diese Forderung Kants werden zwei Thesen aufgestellt.Erstens wird behauptet, die genannte Forderung sei vor dem Hintergrund sonstiger Äußerungen Kants am besten dahingehend zu verstehen, daß der Staat verpflichtet sei, einen Übeltäter in einer Weise zu bestrafen, die diesem ein Maß von Leid zufügt, das dem von ihm selbst verursachten gleichkommt. Geschehen müsse dies durch eine Handlung, die in ihrer Art dem vom Übeltäter begangenen Verbrechen entspricht. Die Begründung dieser These erfolgt in Abschnitt II und stützt sich wiederum auf zwei mehr in die Einzelheiten gehende Thesen zu Kants Theorie: Staatliche Bestrafung sollte den Handlungen des Übeltäters ähneln und Leid in einer Größenordnung mit sich bringen, wie es auch die ursprüngliche Tat zur Folge hatte. Bestrafung in Übereinstimmung mit diesen Bedingungen ist eine Pflicht.Zweitens wird die Auffassung vertreten, dieses Prinzip angemessenen Strafens sei im Rahmen der Theorie Kants gerechtfertigt, weil es für die Mitglieder des Staates die Gleicheit in bezug auf die Verteilung der Freiheit wiederherstelle. Die Begründung dieser These findet sich in Abschnitt III und beruht zum Teil auf Kants Rechtfertigung von Staat und Zwang durch den Verweis auf den Wert gleichmäßig verteilter Freiheit. Die Übernahme eben dieser Rechtfertigung auch für Kants Theorie angemessenen Strafens soll sowohl dazu dienen, das Prinzip selbst zu begründen, als auch dazu, es in Kants politische Theorie einzuordnen

If the ground of punishment is a culpable wronging, what is it about a culpable wrongdoing that allows it to morally justify deserved punishment? In particular, we want to know what it is about a culpable wrongdoing that accounts for the intrinsic value of punitive desert or the punitive-desert-related duties that comprise retributivism. I analyze both together in the context of seeking a justification for The Principle of Deserved Punishment, (1). (1) The Principle of Deserved Punishment. A person deserves punishment because, and only because, she has performed a culpable wrongdoing. One approach is that more general moral principles justify it. On this approach, these moral principles support the claim that deserved punishment is morally justified and the claim that it is justified on the ground of a culpable wrongdoing. In this article, I argue against this approach. Elsewhere I argue for the truth of retributivism (which focuses on deserved punishment) based on its being the best explanation of our considered moral judgments. This latter account allows punitive desert and retributivism to function as more fundamental normative entities than is suggested by theories that attempt to derive it from other moral principles.