Stephen Kershnar

In Grutter, preferential treatment was held to be Constitutional on the basis of the contribution of “diverse” students to the education of their classmates. An implicit assumption in this argument, at least given how schools such as Michigan have interpreted it, is that the contribution involves making it more likely that the other students adopt the beliefs (or perspective) of the minorities. Three beliefs seem relevant here: justice is concerned with equality, racial and ethnic minorities are currently treated unequally, and the state has a mandate to combat this type of injustice. I argued that the first two beliefs are likely false and that in any case they are already well represented on campuses. If my arguments succeed, then this narrow experiential diversity argument is incapable of establishing the moral permissibility, let alone Constitutionality, of these programs. A broader consequentialist argument may avoid this objection but only at the extent of introducing Constitutionally irrelevant considerations.

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

The compensatory‐justice justification of affirmative action requires a comparison of the actual world in which the injured person lives with a relevantly similar possible world in which this person lives but where the unjust injuring act never occurred, in order to identify the degree of harm brought about by the unjust injurious act. The problem is that some unjust injuring acts, particularly acts of slavery, led to intercourse and the later creation of the ancestors of many members of minority groups. Hence, there is no possible world in which these individuals exist and in which the injustice, e.g., slavery, did not occur. As a result, the counterfactual test does not allow us to measure or even understand the existence of a compensatable injury to these persons. I provide an inheritance‐based account of compensation that escapes this.

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 the middle of the twentieth century, many philosophers came to believe that the problem of morally justifying punishment had finally been solved. Defended most famously by Hart and Rawls, the so-called “Mixed Theory” of punishment claimed that justifying punishment required recognizing that the utilitarian and retributive theories were in fact answers to two different questions: utilitarianism answered the question of why we have punishment as an institution, while retribution answered the question of how to punish individual wrongdoers. We could thus reconcile the two great competing theories of punishment, and show how they were both right and not in conflict at all. Unfortunately, it gradually became apparent that the solution would not work. This essay attempts to set out thereasons why the Mixed Theory was bound to fail, and why the problem of reconciling the utilitarian and retributive goals remains with us. In this paper, Stephen Kershnar argues that character alone grounds desert. He begins by arguing that desert is grounded by a person’s character, action, or both. In the second section, He defends the claim that character grounds desert. His 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, he argues that actions do not ground desert. He gives 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.

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.

The issue of the time of intrinsic value focuses on the time during which a state has a level of intrinsic value. This is distinct from the time that desert makes a state of affairs good or bad (time of desert) and the time that statements about desert are true or false (time of the desert statement). To arrive at this conclusion, I assumed that intrinsic value is a function of desert-adjusted well-being. Both desert and well-being should be understood as contemporaneous properties that occur at a particular moment in time. Hence, the time of intrinsic value is a point in time since the relevant property occurs at a point, albeit one that refers to the past. This result is significant because it relates to the dual-ledger account of intrinsic value. On one version of this account, desert is treated as similar to credits and well-being as similar to debits. It thus presents a tidy and intuitively appealing account of intrinsic value at a time and across times and persons.

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 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.

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.

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.

Retributivism is the notion that punishment is justified because, and only because, the wrongdoer deserves it. Proportionality is central to retributivism. A proportional punishment is one in which the severity of a punishment is proportional to the seriousness of the offense (for example, its wrongness or harmfulness). Michael Tonry’s collection is must reading for punishments theorists. The articles are well-chosen and the reflections of theorists such as Andreas von Hirsch, R. A. Duff, and Douglas Husak who have shaped punishment theory and who now consider the future of the principles that have governed their work, makes for interesting reading. The tie-in between retributivism and the practice of punishment is enlightening and sometime too often absent in the philosophical literature.

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.

The slavery contract is not a rights violation since the right not to be enslaved and the right not to give out a benefit are waivable and the conjunction of their voluntary waiver is not itself a rights violation. The case for the contract being pejoratively exploitative is not clear. Hence given the general presumption in favor of liberty of contract, such a transaction ought to be permitted. The contract is also not invalid on the grounds that the wrongdoer’s consent to it necessarily reflects involuntariness or irrationality or on the grounds that it is logically impossible for the wrongdoer to satisfy the contract. Allowing such contracts may not have desirable consequences, but for the liberal this by itself is not a sufficient reason against allowing them. One case where the slavery contract might be relevant is where a victim’s agent or the state agrees to waive its claim to harsh punishment in return for the offender agreeing to be enslaved.

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.