Aness Webster: Torts, crimes, and beyond

This month we are in conversation with Aness Webster. Aness received her PhD in Philosophy from the University of Southern California in 2016. In the same year she joined the University of Nottingham’s Philosophy Department as an Assistant Professor. 

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Welcome to Legal-phi Aness! Why did you become a philosopher?

Aness: Thanks – and thanks for inviting me for this interview. My undergraduate degree (at Auckland University) was a conjoint Arts and Law degree. In the first year of the BA component of that degree, I was allowed to take classes in a variety of Arts subjects. I chose two philosophy courses: Reason and Argument and Introduction to Ethics. I thought they’d be interesting and also helpful for my law degree. But in those classes, I discovered a particular style of thinking and reasoning and I felt at home there. I really enjoyed the rigour and systematicity of some of the approaches in analytic philosophy. So I majored in philosophy and then did an MA in philosophy (knowing that I didn’t want to practise law). 

And how did you become interested in moral and legal philosophy?

Aness: Normative Ethics was my introduction to philosophy – I liked reflecting on intuitions (intuitions about particular cases as well as things that one might care about at the level of theory) and trying to make them coherent. I found that I had an interest in legal philosophy when I was studying the law – many questions that I was gripped by (although not always relevant to my law exams!) were philosophical questions: What were the assumptions behind the provocation defense in criminal law and were they justified? Why should the award of compensatory damages be the default remedy for breaking a contract (rather than the remedy of specific performance) and what does this say about contract law (and private law in general)? One thing that I loved about philosophy was that I could study other subjects by doing philosophy – philosophy of science, philosophy of religion, etc. And as I learnt more about the law, legal philosophy allowed me to pursue questions that I found really interesting about the law – not just questions about the nature of law, but conceptual questions about particular, substantive legal doctrines.

In your PhD, you’ve offered a new account of the distinction between criminal and tort law. I guess that some may be skeptical about the possibility of coming up with a principled distinction between the two. Some may think, for example, that some of the things that are within the boundaries of criminal law today may be on the tort’s tomorrow, or that attempts to distinguish the two domains will at best just serve one pragmatic purpose or another but will in the end fail to capture a fundamental difference between the two domains. What do you have to say to the skeptic?

Aness: In many ways, I’m sympathetic to the sceptical thought. I don’t think that we should necessarily expect the various domains of law to be carved up in principled ways. After all, depending on your goal or interest, there may be many different ways of carving up the law. You could carve the law up depending on what kind of histories various bits of the law have, or which bits of the law are adversarial and which are not, etc. So I don’t start with the premise that there must be is a unifying explanation of the similarities and the differences between criminal law and tort law. But when I look at the substantive doctrines of the criminal and tort law in the Anglo-American tradition (which is what I’m most familiar with), I think that we can glean a principled and coherent framework that can make sense of the similarities and differences between the two domains of law. At least, that’s what I argue in my dissertation. A sceptic may not be convinced by arguments, but I don’t think we have any deep methodological disagreements.

You’ve argued against previous attempts to draw the criminal-tort distinction, including the somewhat popular view according to which criminal and tort law are distinct because the former is governed by principles of retributive justice and the latter by principles of corrective justice. Why do you think this view is mistaken?

Aness: The existence of injuncitve remedies in tort law (which are not compensatory) and non-punitive responses in criminal law (community service orders, exclusion orders, mandatory psychiatric treatment as well as the maintenance of criminal records, for instance) suggest that there is more to tort law and criminal law than serving corrective and retributive justice, respectively. Of course, one could tell more complicated and nuanced stories about how these responses are, in fact, governed by the principles of corrective and retributive justice, but these responses seem to be, at least prima facie, counter-examples to appealing to the corrective-retributive distinction. In addition, an answer that focuses solely on the legal responses to verdicts that someone has committed a wrong (a tort or a crime) is, I think, incomplete. This is because, roughly, there are two components that we should pay attention to: (i) the act-types (including the mental states that must accompany performances of those act-types) that can make one criminally or tortiously liable; and (ii) the legal responses to the verdict that one has committed a crime or  a tort. To put it more concretely, an explanation of the differences between tort and criminal law should be able to explain the fact that an attempt to injure someone can attract criminal liability but not tortious liability. In short, these second-order principles can’t explain what count as the relevant wrongs in the two domains.

What is your proposed view on the distinction?

Aness: On my view, criminal liability implicates blameworthiness while tortious liability implicates a notion of responsibility that is weaker than blameworthiness. I argue for this by looking at what’s required by tort and criminal law when ‘intention’ is required to count as having committed a tort or a crime. I don’t need to intend to cause you physical injury to commit the tort of battery (even though I need to intend to perform the act that does cause you physical injury). In contrast, merely intending to perform an act that causes you physical injury is not sufficient for any crime. Also, insanity is an affirmative defence in criminal law, but not in tort law. John Hinkely, who attempted to assassinate Ronald Reagan, was acquitted on all criminal charges of attempt by reason of insanity, but his delusions didn’t negative his tortious liability (and was found liable for the tort of battery for shooting of a bystander.) These are some of the things that suggest that criminal liability implicates blameworthiness whereas tort law doesn’t.

But, to complicate matters, this distinction between different notions of responsibility is not sufficient on its own to explain the similarities and differences between criminal law and tort law. This is because the responsibility-based distinction doesn’t do any better than the corrective-retributive distinction at explaining what counts as relevant wrongful conduct in each domain (though non-compensatory tort remedies and non-punitive criminal responses are no longer counter-examples). So I supplement a responsibility-based distinction with an account of different rights and duties that are recognised by the two domains. This allows me to accommodate the fact that not all crimes are torts and vice versa. So I defend a two-pronged Right-and-Responsibility distinction between tort and criminal law.

In ‘Conjuring Ethics from Words you and your co-authors challenge the idea that we can draw conceptual or metaphysical conclusions about morality directly from the semantics of moral terms, such as ‘ought’, ‘right’, and ‘good’. Could you give us an example where you find it problematic to move from semantics to metaphysics?

Aness: Suppose you notice that in many occurrences of the word ‘ought’, it is explicitly relativised to an end (as in: “If you want to enrol in this course, you ought to fill out this form.”). You notice that there are other, non-instrumental, uses of ‘ought’, such as predictive uses (as in: “She ought to be home by now.”) and categorical uses (as in: “We ought to be kind to one another.”). But you think that a semantic account according to which ‘ought’ is implicitly relativised to an end in every ‘ought’-sentence is the best account because it’s unifying and more parsimonious than alternatives. So far so good. The problematic move that we object to in that paper is if moving from this view about the correct semantics of ‘ought’ to the claim that normativity itself is teleological; that all obligations are relativised to some end or other.

And why do you think this is a problem?

Aness: To start, we think that this sort of move ought to be justified. Why would we think that considerations that make one semantic theory more parsimonious than another provides reasons for thinking that one account of moral metaphysics is better than another? Well, if semantic analysis yielded conceptual or metaphysical conclusions, then we would have an answer. But we think that there are lots of reasons to doubt this answer. After all, when we’re doing conceptual analysis, our analysis should not only be sensitive to data about semantic analyses of utterances containing the word(s) associated with the concept in question. For instance, pragmatic facts about when and under what circumstances we say that an action is right or wrong, or when we say that something is a person, shed light on our conceptual commitments about rightness/wrongness and personhood. Moreover, there are important non-linguistic indicators of our conceptual commitments (such as what actions we resent, under what conditions we blame someone, and who we resent and blame). Moreover, why think that structural features of concepts are always (or almost always) represented as structural feature of language? And what counts as good semantic analysis may depend on prior conceptual knowledge.

Given that in the paper you also claim that there is ‘a close relationship between semantics and metaphysics’, what do you think is the place of semantic analysis in metaphysical or conceptual moral theories?

Aness: We don’t deny that meanings of words and sentences can provide a useful resource when doing conceptual analysis although we note that doing semantics requires (at first instance) sorting out which ‘ought’-sentences, say, are literal and sincere and which are merely rhetorical. We think that often, the pragmatic facts of a particular situation may be sufficiently complex and determining which count as paradigmatic uses of ‘ought’ to help narrow our query may be a complicated task. So semantics of a moral term provides evidence, but I think that it isn’t the only source of our evidence or evidence that should always be prioritised over other kinds of evidence.

In Burdens of Proof and the Case for Unevenness you argue that the case for the uneven distribution of the burden of proof benefits from a distinction between dialectical and attitudinal burdens of proof. Could you explain the difference between the two? How does the distinction help the case for the uneven distribution of the burden of proof? 

Aness: We don’t usually require people to give evidence for claims that are widely-held or obviously true. But suppose I were to reject such claims – you would want me to give you some compelling reasons for rejecting these claims. But that seems to conflict with the thought that it’s not rational to require evidence (or at least a more robust case) for one truth-value of a proposition than for the other. Surely we want to provide sufficient evidence for either truth-value. We think that there is no tension between these two thoughts. We should distinguish between having a dialectical burden which means being required to provide sufficient evidence for one’s position as a part of a deliberative process and having an attitudinal burden which means being required to possess sufficient evidence for one’s position. We can now see why there may be uneven distribution of the dialectical burden of proof: If I’m rejecting some widely-held claim, then I may be required to provide evidence for the falsity of that claim whereas you may not need to provide any evidence for the truth of the claim (even though you should possess sufficient evidence for it). But we also think that there can be uneven distribution of the attitudinal burden of proof. This is because of differences in expected utility. Here’s a slightly silly example. Suppose I like beer, but that I really hate lagers. (This is true!) If I believed that this beer in front of me is s a lager, then it’s rational for me to not drink it. If I believed that it’s not a lager, then it’s rational for me to drink it. Now suppose that I can’t tell whether this beer in front of me is a lager or not and I have no way of finding out for sure. Since the grossness of lagers far outweighs the enjoyment I’d get from drinking a non-lager, it’s rational for me to not drink it. That is, the proposition that this beer is a lager has an expected utility imbalance. We think that heavier attitudinal burden of proof is required for that proposition (that the beer is a lager) than is required for the denial of that proposition.

You’ve also been working on a response to the demandingness objection (roughly, the objection that some ethical theories postulate ethical standards that are too hard to be met by most of us). What is your reply to this objection?

Aness: We can’t always expect people to do what’s right and refrain from doing what’s wrong. But some have claimed that if the standard that determines rightness of actions is very high such that beings like us can’t reasonably be expected to do what’s right and refrain from doing what’s wrong, then that is a mark against that standard. I think that we shouldn’t calibrate the standards that determine the rightness of actions (or rationality of decisions or beliefs) by appealing to the level of achievement that we can expect from beings like us. Of course, this is not to deny that the level of achievement that can reasonably be expected is irrelevant to any moral evaluation. In fact, it seems relevant to our evaluation of agents in the sense of thinking well/badly of them or blaming/praising them.

But I reject the inference from unreasonableness in expecting agents to comply with a particular standard (of morality or of rationality) to thinking that agents are not required to conform to that standard. When we think about what would justify the rejection of this kind of inference, I think we uncover some theoretical orientations or commitments about what we want from our ethical theory or from our theory of rationality. Suppose you think that morality or rationality is inherently a human enterprise. Then the kind of beings that we are (and what can be expected of us) and what kind of distinctions that we find morally salient (between, say, doing and allowing) may be things that you can appeal to in order to justify the inference that I want to deny. However, if you think that the features of us that are morally and rationally salient are features that can be shared with other (possible) creatures (e.g. sentience, ability to believe, plan) and so in theory we can be compared along moral and rational dimensions with these other creatures (that share some of these small number of features), then you may be more inclined to reject the inference. Some people (David Sobel, for instance) have noted that the demandingness objection is not a stand-alone objection. I agree, but I want to go further and think about some meta-theoretical orientations that may explain what seems like a somewhat intractable issue.

You’ve also been exploring the relationship between racism and shame. What is the focus of your work on this topic?

Aness: The main focus is to make sense of shame that is felt by some targets of racism in response to racism. One common reaction to the claim that targets of racism can feel shame in response to racism is that they shouldn’t feel shame. The perpetrator of racism should feel shame, but not the target of racism. I think this is a perfectly intelligible reaction, but I think it trades on an assumption about what the targets of racism feel shameful about. If a target of racism is made to feel shame about her race by the racist incident (even though she doesn’t endorse that judgement), this kind of reaction seems justifiable. But I think that some targets of racism sometimes feel shame not about their race, but something else. Suppose someone asks me where I’m from and I say ‘New Zealand’. Why do I feel shame when I’m asked where I’m really from or where I’m originally from? I don’t think I’m ashamed of being Asian. So I draw on David Velleman’s analysis of shame and claim that when an individual is racialised as non-white and stereotyped in a racist incident, she can feel shame about her inability to choose when her race is made salient. I think that focusing on this inability can help make sense of the shame response to certain kinds of racism as well as highlighting some harms of racism that have their root in shame that have been underappreciated.

Any other ongoing or future project that you could tell us a little about?

Aness: One paper I’ve been working on is on blameworthiness for negligence. In that paper, I examine some arguments for thinking that we can’t be blameworthy for negligence (at least not for mere forgettings and such). I think that these arguments don’t work if what they’re trying to establish is that although we can’t be blameworthy for negligence, we can be blameworthy for other things. At least, that’s what I try to argue. So if you think we can’t be blameworthy for negligence, then I think you have good reasons to be a more global skeptic about blameworthiness altogether.

I’m also working on a couple of co-authored pieces. One is on disability with Katharine Jenkins, inspired by Elizabeth Barnes’ The Minority Body where we propose a different account of disability as well as a different account of impairment that we think isn’t subject to Barnes’s criticism. The other piece is with Steve Bero. We’ve been thinking about shame for different reasons, but we both think that regarding moral shame as the paradigmatic example of shame might set aside other kinds of shame in problematic ways.

I have also been wondering about the ways in which we should think about agency if we take the idea that we’re social creatures seriously. Even when humans are described as social creatures, one might start from the perspective of an individual and think about how that individual interacts with others. But one lesson from social philosophy is that we are embedded in the social world and this isn’t something that happens after or separately from the individual. So I want to propose an account of agency that is compatible with this kind of interdependence while maintaining autonomy of human agents. The guiding thought is the locus of agency is in the exercise of the ability to negotiate between various features of oneself, some of which are socially influenced or determined which means that we should reject accounts that assume that agents are self-sufficient, coherent, or transparent to themselves.

How was grad school in philosophy?

Aness: I loved grad school! I don’t mean to sweep under the rug the stresses of grad school – I missed my family and friends who I left behind in New Zealand; I wasn’t sure (and possibly I’m still unsure) whether I can produce the high level of work that was being demanded of me, and the impending gloom that was the job market that was coming closer and closer as the years went on. But (and it is a big ‘but’) the fact that my job, my full-time job, was to do philosophy – write philosophy, read philosophy, talk philosophy, teach philosophy – was wonderful. I made great friends at grad school, had amazing mentors, and were taught by people who really cared about my philosophical education. I also got to live in LA which was a fantastic experience and it’s a city that holds a special place in my heart (as many who know me know!).

Any habits that helped you during grad school and now in your work?

Aness: I’m not sure if this is a habit, but what certainly helped me was sharing your work. I’m very grateful for faculty as well as fellow grad students who read my work and who shared their work with me. I also have somewhat varied interests (ethics, legal philosophy, philosophy of agency, and more recently philosophy of race) and I learnt a lot from both those with shared interests and those without. Many people I met at USC continue to be a wonderful source of insight and since coming to Nottingham, I’ve organised and participated in many works-in-progress workshops.

Any advice to grad students and junior academics?

Aness: Learn how you work – a strategy that works really well for some may not work for you. Do you need a weekly meeting to chat through your ideas, do you like to do a ton of reading and thinking before you put pen to paper (or fingers to keyboard)? When is it helpful (and not too stressful) for you to get comments on your drafts?  Find out what recharges you and what drains you. Trying to have a good work/life balance seems impossible at times. As grad students, we are sometimes forced to think about the short-term. (What do I need to in the next few years so I can get a job?) But when you have a job, the goal posts change – whether it’s tenure/promotion, a book, or a grant application, there are always goals that seem super pressing. I think it’s important to remind ourselves that we want to have long, sustainable careers and I think having a good work/life balances goes a long way towards that.

Most challenging aspect of being a professional philosopher?

Aness: Juggling the different demands of the job: teaching, research, admin, and service. It would be easier if I could prioritise one of the aspects and give it my all, but since I care very much about teaching, and get a great deal of enjoyment out of doing research, and think it’s important to contribute to a well-functioning and thriving department as well as to the wider profession, getting the balance right seems difficult, if not impossible! Being well-organised and having a list of tasks help, but I certainly haven’t mastered the best way to cope with this. So if someone can help me out with that, that’d be much appreciated!

When not doing philosophy…?

Aness: From October to around June, many of my nights are spent watching hockey. I’m a huge fan of the LA Kings. Since moving to Nottingham and being in a different time zone, I can’t watch many of the games live, but I have watched every single Kings game the past 3 years that I’ve been here. I also love baking. As many of my fellow graduate students might remember, a few years back, I spent a whole summer learning how to make pies, making 1-3 pies every week for several months. And since I’m a Kiwi, I made some savoury pies as well, of course! I haven’t made many pies here in Nottingham, but my colleagues have been treated to cookies, cakes, macarons, etc.

Can you name three books in philosophy that have been key to either your views or to the way you approach philosophy?

Aness: I think people have influenced me more than particular books or papers. I owe a great philosophical debt to Jonathan McKeown-Green (who passed away a few years ago) who urged me to write like how I’d teach. It should be clear to you (even if you can’t guarantee that it’s clear to others!) what the project is and what motivates engaging with the project. If I’m picking books, both Tim Mulgan’s The Demands of Consequentialism and Michael Smith’s The Moral Problem were influential in my early thinking about normative ethics.

How about books outside philosophy?  Can you name two?

Aness: I’m a big fan of Jane Austen. The intricacies of the relationships that form between characters who have to navigate fairly circumscribed societies (albeit from some position of privilege) are fascinating to me. Gideon Yaffe once said to me, my preferring Jane Austen to Charles Dickens may explain my preferring to tort law to criminal law! (I think there are other stories that might also explain that, but that’s for another time!) So it’s not a surprise that I like novels like Jonathan Franzen’s The Corrections, Miranda July’s The First Bad Man, and Zadie Smith’s White Teeth. It’d also be a remiss for me not to mention Ursula LeGuin’s The Dispossessed and Margaret Atwood’s Handmaid’s Tale.

For more information about Aness and her work, see her website.

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