Stephen Kershnar

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.

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.

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.

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

In summary, Hellman’s book is well worth reading. It is powerful, well-written, and interesting and explains much of the prominent case law on discrimination. Her theory, however, is false because her explanation of wrongful discrimination fails to track a wrong-making feature. Her theory does not focus on a right-infringement in or unfair treatment of the person whom is discriminated against. It also does not focus on an incorrect attitude in the person who discriminates. These intuitively seem to exhaust the reasons that make an act wrong because it wrongs someone. Her account of wrongful discrimination fails to identify the correct wrong-making feature.

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.

Interrogational torture is torture that is done in order to gain information. It is wrong if it either wrongs the person being interrogated or is a free-floating wrong. In the relevant cases, interrogational torture need not wrong the person being interrogated. This is because in many cases it doesn’t, and is known not to, infringe on the tortured person’s moral rights. It is not clear whether interrogational torture is a free-floating wrong since we lack confidence in judging whether it violates a consequentialist duty. Even if interrogational torture is morally permissible, it doesn’t follow that it is the best policy for a country to adopt.

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.

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.

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 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.

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.

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.

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.

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