Stephen Kershnar

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.

There is a series of candidates for the ground of intrinsic value. Different theories posit that the ground consists of some or all of the following: types of experiences, desire-satisfaction, virtue, meaningful relationships, true beliefs, desert-satisfaction, etc. The ground can be local or global depending on whether it grounds value of a spatial, temporal, or fact-specific part of the universe (e.g., Jones enjoying this ice cream) or all facts considered (e.g., the universe over time). In this paper, I argue that the single ground of global intrinsic value is the total amount of desert-adjusted well-being. I begin by providing a sketch of moral desert. I then argue that desert-adjusted well-being alone satisfies our intuitions about global intrinsic value.

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.

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.

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.

George Sher's theory of deserved punishment is unable to account for cases in which wrongdoing does not result in unfair advantages. Sher attempts to connect punishment with distributive justice by suggesting that punishment is deserved inasmuch as the unfair advantage gained by wrongdoing is offset. According to Sher's diachronic theory of fairness, punishment is also deserved when it occurs in response to transgression of a first-order ethical norm. A problem for the theory concerns the justification it provides for disparate treatment of wrongdoers who are morally indistinguishable.

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.

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.

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 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.

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 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.

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.

In this essay, I argue for the claim that the MVP is the player who provides the greatest net benefit to his team. I then argued for the following model of a player’s net benefit to her team. (1) A person’s, X’s, net benefit to the team is a function of the difference in team success when X plays and when her actual or likely backup plays. I argued that this model best satisfies our intuitions, measures actual value rather than expected value, does not depend on arbitrary assumptions, and tends to track the way in which a team would economically value a player. The two do not align exactly, since economic valuation is future looking and net benefit is backward looking. Leaving aside concerns about player-related contribution, this model provides a right answer to the question of who is a league’s MVP. It also captures the comparative value of players within a team.

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.

Carl Cohen’s and James Sterba’s debate is an impressive discussion of the legality and morality of various types of affirmative action and a must read for researchers in this field. These two issues bifurcate. The legality of preferential treatment consists of two different issues: Is preferential treatment Constitutional? Does preferential treatment violate laws other than the Constitution? The morality of preferential treatment also consists of two issues: Is preferential treatment right? Is it good? The discussion in this book is wide-ranging and the authors provide a fascinating set of legal and empirical arguments that are a nice complement to the moral arguments that underlie their positions on affirmative action. The only problem with the book is that the moral arguments are somewhat abbreviated. In summary, the debate between Cohen and Sterba is insightful, well researched, and worth reading. Their legal arguments are particularly interesting. In the end, however, neither Cohen nor Sterba provide a plausible argument with regard to whether preferential treatment has effects that make it worth pursuing. Nor does either provide a strong moral case for or against preferential treatment as compensation.

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.

This book provides a philosophical analysis of adult-child sex and pedophilia. The sex intuitively strikes many people, including myself, as sick, disgusting, and wrong. The problem is that it is not clear whether these judgments are justified and whether they are aesthetic or moral. By analogy, many people find it disgusting to view images of obese people having sex, but it is hard to see what is morally undesirable about such sex. Here the judgment is aesthetic. This book looks at the moral status of such adult-child sex. In particular, it explores whether those who engage in adult-child sex have a disease, act wrongly, or are vicious. In addition, it looks at how the law should respond to such sex given the above analyses.

We should adopt the following principle with regard to compensatory justice. (1) If an unjust act benefits an innocent person and there is no reasonable way to assess the amount of damages to the victim, then compensatory justice does not require that the innocent beneficiary pay compensation for those damages. We cannot reasonably assess the amount of damages to current racial minorities that have resulted from past discriminatory acts. Problems arise in determining the identity of the injured parties, the identity of the injuring agents and injuring acts (and omissions), and the degree of injury that directly resulted from these acts (or omissions). Since such compensable damages cannot be accurately estimated and since white male applicants are innocent beneficiaries of past discriminatory acts, the value of compensatory justice does not justify strong affirmative action programs.

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.

Violation pornography is pornography where the depicted behavior includes unjust sexual acts, e.g., rape. In this paper I argue that it is unclear whether the enjoyment of violation pornography is bad for the viewer. My essay has three parts. First, I set out an account of flourishing. I adopt a composite account, whereby flourishing is a function of the degree to which an individual has pleasure and various objective-list elements. Objective-list elements are things (e.g., knowledge and meaningful relationships) that make my life go better independently of their effects on pleasure and desire-fulfillment. In the next two parts, I relate violation pornography to each component of flourishing. Thus, in the second part, I explore whether violation pornography promotes or hinders pleasure. In the third part I explore whether pornography is compatible with these objective-list elements, particularly virtue.

Stephen Kershnar’s model of the most valuable player fails. It does not track total value and this is what a team values, although perhaps the best model should focus on player-related value. In any case, the model does not succeed as a model of player-value because player-value is indeterminate. The indeterminacy results from boundary problems with the player-role and, perhaps also, indeterminacy in the baseline state. In addition, Kershnar’s framework is misguided because winning is not intrinsically valuable and is not even something wanted for its own sake. The MVP problem remains unsolved.

George Sher's theory of deserved punishment is unable to account for cases in which wrongdoing does not result in unfair advantages. Sher attempts to connect punishment with distributive justice by suggesting that punishment is deserved inasmuch as the unfair advantage gained by wrongdoing is offset. According to Sher's diachronic theory of fairness, punishment is also deserved when it occurs in response to transgression of a first-order ethical norm. A problem for the theory concerns the justification it provides for disparate treatment of wrongdoers who are morally indistinguishable.

Slavery harmed the slaves but not their descendants since slavery brought about their existence. The descendants gain the slaves’ claims via inheritance. However, collecting the inheritance-based claim runs into a number of difficulties. First, every descendant usually has no more than a portion of the slave’s claim because the claim is often divided over generations. Second, there are epistemic difficulties involving the ownership of the claim since it is unlikely that a descendant of a slave several generations removed would have retained the claim of inheritance given the loss of wealth and disinheritance that often characterizes families. There are also problems in determining the amount of inheritance. This is in part because of the problems of calculating in the effects of offsets, especially crime-related offsets, which are owed by a significant portion of the descendants. Even if this inheritance claim can be established with sufficient confidence certain entities may not be asked to pay it. The federal government does not owe compensation since as a historical matter it permitted but did not cause enslavement. The beneficiaries of slavery do not owe compensation since merely receiving the benefit of an unjust activity does not by itself generate a debt of compensation. When combined these problems constitute an overwhelming case against reparations.

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 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.