There was an extraordinary judgment in an employee tribunal case over a Muslim woman, who insisted on wearing a scarf, not getting a job in a hair dressers. As reported in the Times

A Muslim woman was awarded £4,000 yesterday after the owner of a hair salon refused to employ her because she wears a headscarf.

Bushra Noah, 19, who has been rejected for 25 hairdressing jobs, had accused Sarah Desrosiers of religious discrimination after she failed to offer her a position in May last year. Ms Desrosiers, 32, said she needed staff to display their hairstyles to customers at the Wedge salon in King’s Cross, North London.

A panel at the Central London employment tribunal dismissed a claim of direct discrimination but upheld a complaint of indirect discrimination.

What is indirect discrimination? Well...

The panel refused an application by Mrs Noah for aggravated damages. But they did find that she had been badly upset by the 15-minute interview and awarded her £4,000 damages for “injury to feelings”

Does that make this clearer? Not to me. If your beliefs get in the way of doing your job, then surely you are not qualified to do that job. If your beliefs lead you to make your freedom of expression more important than having that job, and which specifically obstructs you in the performance of that job, then you are not only not qualified, you have chosen not to be qualified, even if this is an informal qualification, it sure is obvious in this field. Now a bald male can still be a hairdresser but it is not due to freedom of expression that they have nothing to show. Hairdressing is an image business - indeed one that ironically encourages freedom of expression - and employees are often required to reflect the ethos of many salons, having, if possible, hair styles that go with the styles on offer to their clients. If this is a potential issue, then chose another career, or accept that your employment prospects are going to be more limited.

Why did she chose this salon out of the other 25 that also rejected her? A pure guess is that in this case, it might have been not that it was more apparent there was a religious issue but rather the salon owner, was being helpfully honest, unlike others, in stating that that wearing a scarf would disqualify her from employment? Is the message here is to reject scarf wearers without telling them why they were rejected, assuming they were otherwise competent, to avoid the danger of costly civil actions? My guess is confirmed by a quick, albeit anecdotal, check with my few hairdresser friends who said this is exactly what they would now have to do, rather than give friendly and honest advice to the job applicant. And this includes hairdressing colleges!

Still I am puzzled over this "indirect discrimination". Searching other news articles did not help. In the Independent

The Tribunal also decided that that the woman had not been treated differently because she was a Muslim and they concurred with the owners assertion that: "I never in a million years dreamt that somebody would be completely against the display of hair and be in this industry", which is a fair point.

Sarah Des Rosiers' own site wedgehair shows what is likely to be expected of her employees, so I can agree it is highly that she never considered this possibility. Still no answer over this "indirect discrimination", what is it, if the tribunal agrees that Mrs Noah had not been the victim of Islamaphobia? Well in the Daily Mail (not the best recommendation for reporting this impartially, but it appears fine in this case) she is interviewed and says although she did not have to pay the original £34,000 claimed:

'I am a small business and the bottom line is that this is not a woman who worked for me,' says Sarah.

'She is simply someone I met for a job interview, who, for a host of reasons, was not right for the job. I cannot see how she deserves £4,000.

'As for the notion that I've injured her feelings - well, people's feelings get injured every day. I dread to think the sorts of things that people will try to claim injured feelings for now that this precedent has been set.'

Still finally we can see what "indirect discrimination" means here:

But with regard to the issue of indirect discrimination, they found that Sarah had pursued a 'legitimate aim - that aim being to promote the image of the business'.

However, the burden of proof was on Sarah to prove that her means of achieving that legitimate aim was proportionate.

She was not able to prove her contention that employing someone with a headscarf would have the negative impact on her business's stylistic integrity that she feared.

Ah now I see. People work to create businesses based on what they think will achieve their goals. A small business does not have the resources of a large business to employ marketing and business consultants and their ilk, who very likely could have made a decent argument - not that I am saying it is correct - that this could impair her business.How much resources are required for employing a stylist's assistant? The court should have born in mind what level of proof is required for a small business to operate. If every small business has to provide such proof from so-called expert and expensive consultants that charge say £2000+ per day, very few would be able start or carry on a small business. Imagine if small business bank loans were predicated on such evidence. Maybe if all her employees are required to have pink hair, and refusal to have pink hair would be indirect discrimination? It is up to the employee to decide what is required for the business including a dress (and hair) code. I once nearly lost a job for having a pony tail. Still if I had lost it, is that discrimination - could I have taken them to court over this? As it happens I kept the pony tail and the job (thankfully the pony tail is now gone forever).

Still £4000 for "hurt to feelings"? Over a 15 minute interview. This is truly ridiculous. We live in a world where peoples feeling get hurt all the time, welcome to life. Why cannot Sarah Des Rosiers sue over her hurt feelings and costs and damage to her business? Well I hope she probably ends with much free publicity and that anyone who wants pink hair in North London is more likely to go to her salon as a show of solidarity and freedom of expression. The idea of compensation for hurt feelings on such a minor scale is absurd. There is no right not be be offended or hurt. Indeed everytime I read something like this, my feelings are hurt - aaahh - and I have spent more than 15 minutes (just) writing this post. Now why can I not sue Bushra Noah and the Employee Tribunal over my hurt feelings?

Recently Alonzo Fyfe provided a pointer to this site stating

Readers interested in an alternative presentation of desire utilitarianism (or 'desire consequentalism' as he calls it) are encouraged to check out No Double Standards

Apart from being happy at this acknowledgment, I have thought about my alternative labeling and this post discusses why I have reverted to Alonzo's label Desire Utilitarianism.

Motivations for calling it Desire Consequentialism
First, it is a consequentialist theory - all utilitarian theories are. Secondly I wanted to avoid confusion over reading this as Act Utilitarianism, since it is not, nor is it Rule Utilitarianism, by calling it consequentialism I hoped to avoid this.

Most importantly, I have held the position in this blog that one does not need to be an expert on specific subjects, in order to use the products of such research, and this certainly goes for moral philosophy. As I have said before, if you need to study moral philosophy to know how to behave ethically, we are all in a lot of trouble! Now, not being nor having any pretensions to be a moral philosopher, I was looking for the best available theory I could endorse, if one existed. I have found that in Alonzo's work. I was worried that my take on this could have errors of my own making and could mislead people as to its power. Well this is always a risk, but if an effective theory is developed, others are going to use it and errors can be introduced. So I have recapitulated many of Alonzo's ideas in my own words with whatever other concepts I had that I deemed relevant. This led me go through various names for this theory, so till now, calling it Desire Consequentialism.

Different Types of Consequentialism
According to the peer reviewed Internet Encyclopedia of Philosophy there are three types of consequentialism in terms of who are the affected people, and rewriting this in terms of Desire Fulfillment value theory we get:

1. Ethical Egoism:an action is morally right if the affected desires of that action are more favorable than unfavorable only to the agent performing the action (only the agent's desires count).
2. Ethical Altruism: an action is morally right if the affected desires of that action are more favorable than unfavorable to everyone except the agent (only everyone else's desire count).
3. Utilitarianism: an action is morally right if the affect desires of that action are more favorable than unfavorable to everyone (everyone's desires without exception).

Clearly everything I have been arguing for is over the third view. Logic and objectivity have no bias to favor one over another, the default being everyone. Additional assumptions and arguments need to be made to select one or a group over everyone. So what I am arguing for is a version of Desire Consequentialism, namely Desire Utilitarianism, and that is what I will call it from now on.

Unfortunately
I am getting very busy and so cannot keep up a 5 days a week essay or semi-essay effort here. If you are interested in the ideas I do recommend Alonzo Fyfe's Atheist Ethicist blog. Unfortunately I have not found anyone who provides an equivalent analysis on UK specific issues, something that I might hope to, time permitting, do in the future. If anyone can recommend any blogs not already listed on my sidebar covering UK topics somewhat like this please add this in the comments. For the time being, I will blog any news items, more likely UK ones, that I feel are not getting good coverage in the atheosphere.

In the same week as the blasphemy laws were removed, the BHA had a relatively unpublicized but significant and important victory over discrimination in Christian charities using public money.

Employment Equality (Religion or Belief) Act
These regulations were enacted in 2003 and exempted religious organizations from anti-discrimination laws that applied to everyone else. Not only this but it enabled them to discriminate more than before these regulations were brought in! Now it is one thing for them to discriminate over issues that are specific to execution of their religion in terms of religious services and so on - who else would be interested in that? However this exemption is very broad and as more and more religious organizations are taking on public funding to provide local services this could be clearly abused, to deny people otherwise qualified for relevant jobs based on their religion. And that is what is happening.

When is religion a "Genuine Occupational Requirement"?
This discrimination worked by requiring for many jobs that one's religious belief is a "Genuine Occupational Requirement". However the danger is that this "Genuine Occupational Requirement" could be applied far too broadly, covering jobs for which there is no legitimate justification for one's religious belief as a qualifying requirement. This is what happened with the Christian charity Prospect in using public funding to provide services people with learning disabilities. They started employing only practicing Christians into all posts. A former employee took them to the Employment Tribunal arguing constructive dismissal and discrimination on grounds of religion or belief.

The Employment Tribunal
The BHA backed and funded this ex-employee's case. The core argument was that he was obliged to tell non-Christian staff that their worldview would prevent promotion and all new staff employed were Christians! The ex-employee won the case on all counts! Under UK common law processes this judgment sets a precedent over any other religious charity and as the BHA say

Our intervention to support this case should set a precedent in how religious organisations with public money behave: it's a spanner in the works of a machine that was becoming unstoppable.

Charities and Public Funding
I have no issue with religious charities proving public services providing (a) that their selection is on an even playing field with any other charity or service provider so that they are selected on their merits alone and (b) that none of these employees for such public funded services is selected on the basis of religion. The BHA victory serves to help with the second point. Certainly this is great example of Christian charity in action - helping their own to the detriment of all others.

What can we do?
However this is one situation, how many more are there? Surely any local council could make it part of the terms and conditions of this funding that the charity does not discriminate on religious grounds? Employment Tribunals are all very well but many cases do not get that far, due to the time, cost and stress involved. If you hear or know of any situation you can contact the BHA, write to your local paper, call your local radio station and ask local councilors as to why they are letting this discrimination occur. Lets all help in turning the tide.

The ethical approach being developed in this blog (and elsewhere) is available to everyone, regardless of their beliefs or disbeliefs whether you are a theist or atheist, religious or irreligious, naturalist or supernaturalist and so on. This post is the final one of round two of examining and explaining Desire Consequentialism. This is another introductory and, as far as possible, theory-free and universally accessible description of how to apply Desire Consequentialism.

The Two Questions
There are, at the core of Desire Consequentialism, two questions to ask to help understand and resolve ethical situations. The first helps in understanding, the second helps in resolutions. The first question is what would a good person do in this situation? The second is what would a good person do to remedy the situation? Desire Consequentialism gives us the means to determine what a good person is, without requiring or demanding any idealized insight into the situation or people - a demand that might be impractical or that many might not be capable of achieving. This is an approach that is available to anyone and everyone should they so choose.

What would a good person have done?
Desire Consequentialism argues that a good person is a person with good desires. Well what are good desires? First there many types of desire - appetites, tastes, needs, wants, preferences, interests, goals and so on but what they all have in common is an attitude to making or keeping something true and that is what is meant here by "desire". This "something" is what is valued, the means to make or keep this "something" true is what valuable and value, itself, is the relation between the desire and the states of the world where this "something" is or could be true. Now everyone values the realization of their desires and they disvalue the failure to realize their desires. Still this does not tell us whether a desire itself is good or bad. We need to find out what is the value of a desire but this depends on what we are comparing it against.

In questions of ethics, the central concern and the one relevant here, is over problematic interactions between people - any and all people, without special dispensations. So to find out if a desire is ethically good is to evaluate its realization against it material effects on all other desires, of everyone who is or could be effected - without exception or bias. This evaluation would say that an ethically good desire is one that realizes or tends to realize all other affected desires and an ethically bad desire is one that prevents or tends to prevent all other effected desires from being realized. So an ethically good desire is one that can benefit all in realizing their desires, whereas an ethically bad desire imposes a cost to all or prevents them in realizing their desires.

So now we can have an answer for any situation by asking what a good person - one with good desires - would do. We can determine that what a good person would have to do is obligatory, what a good person would not be able to do is prohibited and that everything else is neutral or permissible. And what is determined is universal in the sense that this applies to anyone and everyone, in suitably similar situations, without exception. We can use this question not only to evaluate what someone actually did in that situation - to determine whether their actual actions were ethical or unethical - but we can examine their possible justification for the way they did or could have acted. That is we can evaluate not only individual actions but also rules, laws, legal processes, moral codes, cultural and religious values - no exceptions - by comparing them to what a good person with good desires would have done.

What remedies would a good person suggest?
Now we know what for any situation is ethically good or bad, what would a good person suggest as a remedy? For a person who has or would behave unethically, they are either lacking a desire that a good person has or, has a desire that a good person lacks. Since anyone and everyone can only act on the desires that they have, the remedy is to promote this desire that they lack or, to inhibit this desire that they have - the one that leads to unethical conduct. To the degree that the person behaving unethically has false beliefs that are misleading, one can reason over these false beliefs. However one cannot use reason to change desires, you can only use this to change beliefs. To change desires - to inject or remove desires from anyone and to increase or decrease the strength of a desire - one needs to use such socially expressive and persuasive forces of praise, commendation and honor to promote good desires; and criticism, condemnation and ridicule to demote bad desires. These are means that appeal directly to their desires via their emotional responses, for example negative expressions can lead to emotional reactions such as shame, embarrassment and guilt and, if successful, can alter what one desires in the future.

It is important to note that this approach allows, indeed encourages, each individual to be the best judge of what they want, of what they value. This approach does not dictate what they should want but rather provides and encourages valuable means so that they just behave more ethically in achieving their own values. They behave more ethically because they want to, they do not have to reason most of the time as to what the right thing to do is, nor to need the fear of being punished if they do not, since most of the time no-one has all the data and time to analyze situations to decide what is the right thing to do, they just do it. This is aided by recognizing that there are common and numerous patterns where having certain desires or lacking other desires will typically lead to more ethical conduct. The two previous posts The Ten Aversions and Virtues and Vices covered some of these generalizations, all based on what a good person with good desires would do.

Finally what about remedies over formal and informal institutions - rules, laws, legal processes, moral codes, cultural and religious values? The same process applies but addresses the people who support, encourage, enforce and benefit from the unethical features of these institutions. Change the people to change the institutions. Both on the grass roots level and those in the public eye, one can use the social expressive and persuasive forces to praise all those who want to effect ethical changes and condemn all those who support keeping or making unethical changes.

The Two Challenges
There two challenges to achieving the above one in relation to evaluating situations and one to do with the proposed remedies.

The Evaluation Challenge
For the first, the real world is a messy, noisy place it might be very difficult to determine what the significant desires are that affect situations and to determine who are all the people and the relevant desires that are effected. This is true but this is not an argument against this approach, unless one can come up with a better way of analyzing these situations. In ethics the other approaches I am aware of are worse, not better. One has to do the best one can and sometimes one can only estimate, approximate or guess what these desires are and perform the analysis on this basis. Further this approach is not a magic wand, there will be dilemmas that are not easily resolvable, however it is conjectured that this is better able to limit and identify these dilemmas than other approaches. There will still be dilemmas but less of them. One could provisionally conclude that the more people that engage in performing this types of reasoning, the more likely that we will obtain better and clearer analysis of problematic situations.

The Remedy Challenge
For the second, in terms of remedies, not everyone will respond to such social forces as suggested and there is also the question of what are the appropriate methods to apply - some might work whereas as other might fail depending on people and situations. These two issues are really versions of the same challenge. We must note that Desire Consequentialism offers not an ideal solution but a pragmatic one, and there will always be some who fail to respond and continue to act unethically. Severe transgressions of this is why we have legal systems and these would not disappear. Those systems also serve, to the degree they reflect justice in terms of what good people would do, to reinforce the message, so that those who do not respond to these social forces and lack the relevant desires would be more likely to conduct themselves ethically to avoid the legal and social (such as disapproval) consequences. However this requires that the various formal and informal institutions to be both coherent in evaluations and consistent in application - and current incoherence and inconsistency is the root cause of this challenge.

Inadequate Socialization
The result of this incoherence of evaluation and inconsistency of application is that many are inadequately socialized. The material means of reward and punishment is available to parents, schools and other relevant institutions - media and peers - to as a temporary measure to help our children to learn to respond directly to expressive means of praise and condemnation. That is learning through initially only the, indirect, threat of material rewards and punishment and to eventually not even needing these threats. This also requires some coherence in evaluations and consistency in application. Without the effective use of these three components - material means to learn to respond directly and only to expressive means, coherency of evaluation and consistency of application, then that child might is likely to become inadequately socialized. As an adult they would not respond to praise and condemnation as properly socialized adults would, which ends up requiring material means for them as adults to learn the message they failed to get as children.

Resolving incoherence and inconsistency
Desire Consequentialism has not only identified the problem here but it is a proposed solution. It shows how to be coherent in evaluation and consistent in application and where and when material means should be used. This is the challenge, to make the world a better place, do you want to take it or not?

People value what they desire. Whether you actually call this a need, want, appetite, taste, preference, project, interest, goal or, indeed, desire itself, we can say here that what is valued is the target of the desire. This target being to have the world be a certain way rather than another and this can include the effects on others and their effects on you . When you do not get what you desire, your desire is thwarted - you do not value that. There are many ways this thwarting can occur but, when it involves the actions of others preventing the fulfillment of your desires, then question of ethics can come into play. And the same goes for your actions that prevent others having their desires fulfilled, whether you have done this accidentally or deliberately, directly or indirectly, knowingly or otherwise.

So some desires that you value in and of themselves can be quite detrimental to the values of others - and vice versa. And some of the means you use to achieve your desires can also be quite detrimental to the values of others - and vice versa. Would it not be better if we found desires and means to realize desires that, if possible, avoided such detrimental consequences? It would certainly be better for us if others took this into consideration. How are we to convince others of this? One way is that we attempt to do this ourselves - to set an example. However if others do not know we are doing this, will they care, let alone respond in kind? Surely it is in our interest to make this clear and to encourage others to do the same. The best result would be if we all did not want to have such detrimental desires and detrimental means to realize desires. That is for these options to not even occur, when deciding how to act and what to want. That is to have aversions to such things. To stop or keep those things from being or becoming true, or to make or keep these things false.

The Ten Aversions
The world is a big, complicated, messy affair and it would be useful if we had some general guidelines that could help in achieving this - to use both for ourselves and to guide others. Here is presented a tentative set of top ten aversions it would beneficial for us all to have.

1. An aversion to killing persons
2. An aversion to non-consenting violence
3. An aversion to theft
4. An aversion to sexual misconduct
5. An aversion to lying
6. An aversion to intolerance
7. An aversion to bigotry
8. An aversion to double standards
9. An aversion to corruption
10. An aversion to doing harm

These are not black and white rules or absolute laws but guidelines, to be used to evaluate and respond to others - to encourage those aversions where they are lacking through means such criticism and condemnation and, for them, to do the same to you. This does not mean there are situations where you are confronted with overcoming one or more of the above aversions, and have to make the most of what you can but, rather if everyone were to both coherently use these or similar aversions and consistently mutually reinforce each other, there would be far fewer situations where we would be so confronted in the first place. So having and encouraging these aversions is a preventive measure - a valuable means - that ends up with us encountering far fewer situations, directly and indirectly, where these aversions could be challenged.

Commentary
This provides the most concise amount of detail needed to clarify these aversions and avoid any misunderstandings the above list could cause.

1. An aversion to killing persons
A murder is an illegal killing, but a general aversion to killing persons encourages us to consider whether any killing is legal, that is under what circumstances this could be permitted. The default here would indicate that it is not, unless there is some good contrary argument. This is number one on the list to emphasize this is a means of last resort. Any who consider this option sooner than a last resort are condemnable and such condemnation would, hopefully, encourage more to consider this, at best, a last resort. This aversion is a guideline and it is not intended to resolve or impose solutions on problematic issues such as euthanasia, abortion or war, save whatever is resolved there, there should be clear standards in those domains.

2. An aversion to non-consenting violence
We all vary in our attraction to violence and when to apply it but our societies provides various safe outlets for this such as sports, games, martial arts, movies and so on. Anyone who has violent tendencies has no excuse not to use these legitimate outlets whether as a participator or spectator. An aversion to violence earns its place as the number two aversion here, to again emphasize that is another means of last resort to resolve disputes and manipulations between friends or strangers. Those who celebrate the actual use of violence and readily use the threat of violence are to be condemned, those who use it against those who condemn it, are to be doubly condemned. Still, like anything else here one needs to act sensibly as to when and how to condemn it. This is surely in itself a reason to encourage others to do the same and provide strength in numbers.

3. An aversion to theft
This is means not taking what is not yours to take. However this not only includes theft of one's property but also one's body and time. Theft of one's body means not only slavery but, still, there are over 5 million people in slavery today. An aversion here means not to profit or benefit from such slavery, or equivalent, and to condemn those who do. Now theft of time is in a sense milder but it does includes wasting one's time! Indeed needing to write these topics, including this post, is a result of too many people with mistaken and false views of morality, forcing a response from myself and others, which could be better devoted to dealing with real world and not manufactured problems - so all those who try to force their false solutions on us are guilty of wasting our time!

4. An aversion to sexual misconduct
This means to wanting to have honest and safe mutually consenting sex between adults. It is not up you to judge another for their preferences and choices of partner, only to encourage an aversion to any sexual misconduct.

5. An aversion to lying
There are situations were lying is not detrimental to our values - practical jokes, surprise parties and, arguably, to avoid hurts. Generally though we rely on not being lied to, to obtain reliable and true beliefs to best realize our values. Anyone who lies to us, directly or directly, can materially effect our values.

6. An aversion to intolerance
This very nicely deals withe dilemma of advocating tolerance - does this mean being tolerant of the intolerant? No. Encourage an aversion to intolerance in all. Anyone who is intolerant is to be condemned for lacking this aversion. Note that the primary purpose of this and all condemnations is to encourage these aversions, even if it initially fails with the target of the condemnation, it might succeed with others who hear the message and the more who spread this message, the more mutually reinforcing it is.

7. An aversion to bigotry
Bigotry means one assigning a person to a group that one has prejudged (usually) with negative attributes and assigning these negative attributes to that person. However much this has and still occurs there is no rational grounds for so doing. It is to be condemned and discouraged. On the other hand one who deliberately and voluntarily becomes a member of a group and so endorses negative attributes - such as contradicting the aversions listed here - can be condemned and this is not bigotry, since they, by joining, have chosen to identify with those negative values.

8. An aversion to double standards
This means imposing different standards on different individuals and groups of all forms, so one group preferentially benefits to the others detriment. And this applies to persons, organizations, state policies and evaluating states themselves. It applies to material needs, empirical standards and rational debate. Unless there is a good argument - which can only be made by initially assuming a single standard - it is not justified and should be condemned, most relevantly in the case of state policies, to help remove such double standards. That is to condemn those who benefit from such double standards, whether such a double standard directly affects you personally or not. If you do not, you are complicity endorsing the concept of double standards and another might be brought about that could bite you.

9. An aversion to corruption
There are many forms of corruption and this aversion is deliberately broad - from bribery to use of bad arguments - such as faith - to the indoctrination of minors.

10. An aversion to doing harm
This is the final catch all aversion. How do you know if you are doing harm in general? You need to ask are you thwarting other's values - their values and not yours - values that are not, in turn, thwarting anyone else's? That is where harm lies.

Epilogue
This is not a matter of my opinion or anyone else's. This is a tentative proposal of the top ten aversions it would be empirically beneficial for everyone to have and to mutually encourage in others. It is open to review and revision on the basis of which aversions best serve to increase value for everyone and that, in turn is determined by the material effects of having these aversion over not having these aversions. Finally it should be clear that this is a more honest and superior means of ethical guidance than dubious moral models that produce things like the Ten Commandments.

The dilemma to answer here is what justification is there for using harm to prevent harm? The legal process can lead to fines, imprisonment and other punishments on someone for harms they have committed, but this imprisonment and other actions are also prima facie harms. We will examine how these can be justified here.

Ethics, Value and Prescriptions
We have explored how the desire fulfillment theory of value can provide a basis for ethical value, that by taking everyone's interests (desires) into account one can determine the ethical value of a desire by its material effects on all those other desires. If it's presence is more likely to thwart or tend to thwart other desires - to harm or hinder others' ends - it is unethical and if it's presence is more likely to fulfill or tend to fulfill other desires - to help or benefit others' ends - it is ethical. We have also explored how the externalist reason to act theory of prescriptions can provide prescriptions both to have reason(s) to act that a person lack(s) or or remove reason(s) to act that a person has, determined in terms of how ethically valuable those desires (reasons to act) or, the lack of them, are.

Still this implies that if acting on desire thwarting desires are ethical harms or unethical, so what can be the justification for both the legal responses such as fines, imprisonment and other punishments - which is also acting on a desire thwarting desire and so are prima facie harms too and, also, those pre-legal and informal actions such as thwarting someone's desire thwarting desires in general? How can one distinguish between competing desire thwarting desires, that is, competing harms?

The Reality of Desire Thwarting
First of all, in day to day life, people's desires are already being thwarted - and some of those cases specifically by others' actions. One of the basic motives behind social forces is to discourage others from thwarting your desires, as they too discourage your actions from thwarting their desires. One means of this discouragement is to prevent or stop the actions of others that prevent your desire being fulfilled, as they might they might prevent or stop your actions that prevent their desires from being fulfilled. That is your or others desires are reactively thwarted, if you or others did not have the desire thwarting desires in the first place, there would be no action to react against. This is one of the means through which we and others learn as to whether our desires are desire thwarting to others desires. If mutual social conditioning is effective then you and others will not have or act on (make effective) desire thwarting desires, if it fails or is in the process of being applied, you or others might have desire thwarting desires that are thwarted rather allowed to be fulfilled.

This assumes that everyone is being coherent in only focusing on preventing such desire thwarting and consistent in application, without those assumptions the amount of desire thwarting gets worse. Still is not a reactive desire thwarting action also a prima facie harm, if, and especially if, the desire that one is reacting against is, in fact, harm too? Just because this is how we do things, is this a justification for doing it?

Coherent and Consistent Social Forces
For social forces to be effective there needs to be methods to challenge and update each other's desires. The positive social forces of praise, commendation, honor and the negative forces of condemnation, criticism, dishonor work expressively to change one's motivations. The material forces of reward and punishment can also be used. The expressive methods work with a properly socialized person through, for example negative expressions, generating emotive or affective reactions such as shame, embarrassment and guilt, reactions that can modify one's internal set of desires, which was the purpose of the negative expressions. The material means can help build these necessary emotive reactions - to help socialize a person - so that the material options are eventually not needed as expressive methods become more effective. This is particularly the case with children where the material punishments do not have to be directly physical - no pocket money, no internet or computer gaming etc. Still this does apply to adults, especially those who have inconsistent or inadequate socialization as a child. All we are noting here is that various material forms of desire thwarting are reactively carried out so that eventually one can use expressive social forces alone.

So there is a fourfold justification for reactive desire thwarting. First that it must be, in fact reactive - and not proactive. The second is that its purpose of this is to discourage future desire thwarting and third to enable no-material expressive methods to be used to achieve that. Finally that this can be emphasized by preventing current desire thwartinactions, sometimes of necessity. The last three points are justified if there is a net benefit. This is all very wel but who decides all this? Disputes can arise - is there a net benefit? Who started it first - is this really a properly reactive action? Is the reactive desire thwarting proportionate to the initial desire thwarting desire? Are there effective and efficient means for dealing with these disputes and preventing them?

Efficient and Effective Institutions
Well we can only go so far with informal means of social conditioning and, apart from what was noted above, there are many factors that can subvert this process - make it unfair - due to differential opportunities, abilities, education, money, power, status, connections and other resources . It is also inefficient for each and everyone to try and apply this, all are motivated to maximize their own values, to have their own desires fulfilled, but acting independently, ceteris paribus, more work is required to prevent others thwarting one's desires, which takes time away from fulfilling one's desires.

Culture exists partly to provide more efficient and effective institutions to achieve one's value. One can evolve informal institutions biased towards one's group's interest - family, clan or tribe within a multi-tribe society - this makes it more efficient and effective for members of that group, efficient as in each individual typically needs to use less time and resources to prevent interference with fulfilling their own desires and effective as the group can more consistently, coherently and powerfully block desires that thwart desires of members of the group. However the problem this served to diminish, can alternatively be amplified, as groups reactively evolve against each other and have different perspectives on desire to fulfill - on what they value. One can end up with the same two key issues - who started it first and are responses proportional.

So most people in a sufficiently large environment of other people, in the interest of efficiency, effectiveness and fairness, end up wanting some form of public service provision - of policing, a civil and criminal justice system and prison services to deal with severe and chronic excesses of desire thwarting - harmful - actions , whether a result of failed or deliberate transgressions of social interactions and to deal with all excesses equally.

Just Law
Such a formal institution can itself and often has and been corrupted (and, sometimes, even designed to be that way), failing the needs of at least some of its citizens to the benefit of others. A just law would be one that coherently reflects and consistently applies the type of ethical value we have previously analyzed. It would be a means of externally coherently reinforcing those empirical ethical values - to minimize harm and increase mutual benefit to all citizens.

The key questions of such institutions are again - who started it and is the response proportionate - coupled with is this a just - a fair - system, does it coherently focus on unethical actions to reduce those and only those or is this an unjust system - does it criminalize ethical actions - usually on behalf of one group over another - and so distort ethical values?

The challenge of making and keeping a just law system is an ongoing project that everyone should have some interests in, still if we assume that this is the case here we can revisit the specific question of the justification of reactive desire thwarting by the state via such institutions. The basic justification is in terms of benefiting all, and helping make such a process efficient and effective. Again if we grant this here this leaves the question of what is a proportionate response?

Forms of Justice
Once a person has been found guilty of a crime the issue becomes - in a fair and just system - what is the purpose of the punishment. Is it a deterrent - designed to discourage others from pursing the same crime? Is it it protection - designed to protect other citizens from further harms from this person? Is it retributive - designed to right a wrong through punishment. Is it rehabilitative - designed to re-socialize the person so that they can be a beneficial not harmful member of society?


Retributive Justice.
The most problematical one here is the retributive option. It is difficult to justify retribution once the guilty person is no longer able to commit and perpetuate more harm. Since once they are in the system everyone else is protected from future harms of that person. It seems that such a reactive desire would decrease the global value, not increase it. One harm has been done and another has been now done which, arguably. might balance it out, as far as victims and families of the initial harm is concerned. Still if done for this purpose it is decreasing the global value, and this a questionable power to assign to state sponsored public services. Apart from this power being abused - it also sets a precedent and endorses retributive actions for its citizens in general. Such policies serve as influencing the way sdocial forces work in culture. This is quite different to the reasoning behind informal reactive desire thwarting discussed above. As far as an overall position on retributive justice is concerned, lets for now remain agnostic, and focus here on the specific question being addressed here, and provisionally conclude that retribution is not a justification for reactive desire thwarting - formally or informally.

Rehabilitation and deterrence better work with the approach of protection. If rehabilitation works then that person can both rejoin society and society is also protected as that person will not re-offend (ideally of course). Similarly if deterrence works then this serves to reinforce the underlying ethical values and so less are likely to offend in the first place. Since we are concerned with the justification for state enacted prima facie harms, the basic argument becomes that if these harms prevent further harms so there is a net benefit, then they are justified.

Deterrent Justice
How does one know what and how many penalties and punishments are a deterrence? This is an empirical question and here today one can use available data from a variety of judicial systems around the world. For example over the death penalty, we know that this is correlated with higher murder rates, and one can posit a plausible theoretical explanation as for why this is. This is over the implications of the state endorsnig the death penalty in response to murder. (In many other times and still in places today, state sanctioned killing was for a far lesser crime than murder, these are undeniably dis-proportionate and condemnable). Now capital punishment as a deterrent only works if makes people consider killing is not an option - due to the severity of the punishment - as opposed to reading that the state endorses killing as an option. Arguably it seems to be the later not the former lesson that is drawn in those societies with death penalties. So being agnostic on the justification for a death penalty, the empirical data to date indicate that this is not an effective deterrent. In addition it is very dubious to use this as a basis for retribution - which only encourages that same false conclusion as to what society endorses - retributive death.

The above point was illustrative and not conclusive. Each penalty needs to be empirically examined on its own merits in terms of deterrence. What is desired is a just law system that will coherently and consistently reinforce the underlying ethical values and not the specific values of that society which might have non-empirically based views on retribution and deterrence.

Rehabilitative Justice
Assuming that the state has established guilt by a fair and just process then imprisonment is one means to protect society from offenders. The deterrence/social reinforcement has failed - otherwise they would not have committed the crime but this still leaves the rehabilitation option. Can they be rehabilitated? Whether current and past rehabilitative methods can work is again an empirical question, we have plenty of data to work on today but this outside the scope of the question here, save they methods would be reflective of and consistent with the means to generate ethical conduct via social forces. As to what the specific and best techniques are to do this again one can survey the present and past solutions and perform some similar, or better, analysis to what was cursorily examined above with respect to the death penalty as a deterrence.

Protective Justice
If the person fails to be rehabilitated and a best effort was made to achieve this, then if there is clear likelihood of re-offending then the prison service serves to protect everyone else. Different forms of rehabilitation should be applied in a parallel too.

Conclusion
Finally the proportionality question can be answered (sort of). In one sense this could only apply to a kidnapper, if they have kidnapped someone for x days do they go in for some punitive multiple of the period of time they imprisoned each person. This hardly makes sense, it might mean encouraging people kidnap someone for a short time, knowing there is not much criminal cost - time inside - to doing so. The proportionality issue is better related to the reinforcement of ethical values, and protective and rehabilitative justice. Maybe no simple formula results but these three are the empirical basis to justify the use of harm to prevent harm.