Maggie O’Brien: Revising a Nation’s Commitments

This month we are talking to Maggie O’Brien. Maggie has recently completed her PhD in Philosophy at McMaster University and is now a Post-Doc Researcher at the University of Edinburgh.


Hi, Maggie! Why did you decide to become a philosopher? And why did you start working on legal and moral philosophy?

I started my undergraduate in science thinking I wanted to become a physician – to help people. I changed my mind by about the end of my second year. It wasn’t that I didn’t want to help people. But I found I was more interested in thinking about how people’s lives can be better or worse through philosophy rather than medicine. The philosophical questions I’m most interested in are at base about that. How can we live together well?  How can people combine in a humane and purposeful society united by certain ideals and aspirations that can be shared across ethnic, religious and cultural divides? What do we owe each other in terms of candour when we advise or criticize or condemn? What are the limits of our obligations to candour and how do we maintain a balance among civility, integrity, and privacy? These are questions about legal and moral philosophy.

You’ve been interested in theoretical discussions about Judicial Review, right? Can you tell us a bit about your work on the topic? What do you think about the claim – defended by some scholars – that judicial review is incompatible with democratic ideals?

We know that there have to be limits on democracy. Democracy as a mere expression of the current wishes of the majority is not necessarily better than a brutal dictatorship. Judicial review is one possible limit. Judicial review is the process by which judges review legislation to see if it is consistent with a nation’s constitution or bill of rights. Some opponents have argued that such a process is undemocratic because it replaces the will of the people, as expressed through their elected representatives, with the will of a few judges. Unelected judges determine the legal validity of legislation passed by the people’s elected representatives: hence judicial review cannot be reconciled with democracy and the principle of self-governance. But this objection overlooks the fact that a nation is itself an agent and like any other agent is meant to have a moral compass of sorts. Understanding communities as moral agents provides, I argue, the basis for a strengthened theory of judicial review. Individuals have a moral centre, what Matthew Arnold liked to call a best self, whose principles they sometimes ignore or contradict. Nations, likewise, have a moral centre whose principles they sometimes infringe. Just as an individual should review her actions in the light of her beliefs and values, so must a nation. A major part of that process of examination is judicial review which is called upon to remind both the current executive and legislature, and the citizens, of the authentic commitments of the nation. Judicial review is an essential part of preserving governments’ and citizens’ commitments to rights rather than to the simple rule of the majority.

So you do hold that at least sometimes we should ascribe agency to groups and institutions? Why is that?

Yes. As you can see I do think this is right. Dworkin, in his discussion of collective agency, said there is no need to posit a ‘spooky, all-embracing mind that is more real than flesh-and blood people…’ (Law’s Empire (London, Belknap, 1986, 168). I’m basically with Dworkin on this. Ascribing agency to groups is routine in a world of sports teams and global corporations. Discussion of and reference to groups is common and useful in our lives and this is not trivial. I also think we have reasons to be suspicious of the idea that talk about groups works merely as a short hand for discussion about individuals. There are times when the individual-only picture fails to accurately capture what’s going on. Describing a woman dribbling a ball up a field is not the same as describing Christine Sinclair setting up a winning goal for the Canadian women’s Olympic soccer team.

Let me come back to your analogy between an individual and a nation. It sounds plausible that, just like individuals, nations can be in a position where they ought to revise their actions according to their most fundamental beliefs and values. However, some ways to revise the nations’ actions according to their most fundamental values are better than others. And one could assume that, just like an individual, a nation ought to try to revise its actions in the best way possible. If that is so, then a defence of judicial review would have the burden of showing that judicial review is the best (or the best in comparison to other feasible alternatives) way of revising a nation’s actions. What is your view on that?

It is part of my argument that judges are well suited to access the nation’s commitments. But I also think it’s a mistake to picture the judiciary as a rival to other ways of ensuring the nation  acts in accord with its commitments. We can and should have more than one way of revising the  nation’s actions and commitments. The judiciary and the legislature, for example, should both work to bring legislation in line with the nation’s commitments. Given the differences in institutional  design and institutional method, however, it is not surprising that sometimes the legislature and  the judiciary might come to different conclusions. This is true for various reasons that I’m sure  are familiar. Institutional design is probably a big reason. Judges aren’t beholden to the population so won’t feel that their job depends on them ruling according to popular opinion. But  the legislature and the executive are under a kind of political pressure that the judiciary don’t  face. It can be very difficult for prime ministers or presidents or members of a legislature to  stand against a troubling majority public opinion when that majority can throw them out of office  in the next election. And judges work in a case‐by‐case manner and have the benefit of hindsight. I should stress that I don’t see judicial review as a moral panacea.

What is hypocrisy and what is wrong with it?

Briefly, my co-author, Alexandra Whelan, and I define hypocrisy as an inconsistency (though not likely a logical one) between an action-guiding claim and that person’s other behaviour. Importantly, we don’t think that hypocrisy necessarily involves deception, insincerity, or even claims to moral superiority (although we acknowledge that sometimes that is what’s going on). Given this, we don’t think there’s a whole lot wrong with hypocrisy generally. Perhaps more interestingly we are worried about the charge of hypocrisy itself.  Basically, we think that charges of hypocrisy are useful ways of deflecting criticism without engaging with the substance of a particular debate. The charge distracts from the merits or demerits of the issue at hand and instead forces the accused to defend their standing. Moreover, charges of hypocrisy are used to influence the substance of debate, not just who gets to participate.  The charge of hypocrisy, especially when wielded in politics, is meant not only to silence the accused, but also to impugn the rationality and reasonableness of the claim advocated by the supposed hypocrite. The charge insinuates that there must be something suspect with the claim made if those making it are hypocrites. Al Gore constantly jets around the world—Climate change can’t be real! That logic is worrying: it is an attempt to determine the debate without an engagement with the substantive claims.

Do you have any other ongoing project?

When I was doing my masters of philosophy my focus was on the philosophy of science and feminist critiques of the philosophy of science. Both science and the law are historically important bulwarks of the social structure, and both have been used to systematically subordinate women and maintain the marginalization of women. There is also tremendous overlap between feminist critiques of science and of the law—both science and the law make claims to objectivity, to transcendence of the mundane world of human struggle, and of the power of some humans over others. Not true – one’s situation in the world determines what one can see and the way one sees it. I am currently exploring these converging critiques and their connections.

For you, what was the most challenging aspect of doing a PhD in philosophy? And what is the most challenging aspect of doing philosophy professionally?

The most difficult task of the PhD is the writing – and that is a pretty big part of the PhD. Getting the ideas to move from the brain to the page can be torturous.  And some days it feels like you’ve made no progress, perhaps even moved backwards. During times like these I suggest focussing on the amount of time spent trying to write rather than the number of words written. Then what counts as a successful day of writing becomes a more attainable goal.

While I’m new to doing philosophy professionally I still think the writing is quite difficult. Although doing it professionally seems to bring different responsibilities to balance with writing. Most importantly teaching but also administrative duties. However, I tend to think that whatever insecurities or obstacles –real or imagined- make our philosophizing difficult as graduate students still make it difficult professionally. We aren’t suddenly cured by becoming professional philosophers.

Do you have any advice for those who are starting a career/graduate school in philosophy?

For those starting in graduate school I would try and just accept that writing is difficult. Accept that there will be days when the writing comes easily and days when it does not. And hope that it all comes out in the wash.

What do you enjoy doing in your spare time?  

Travelling, eating, reading, Netflix (is that a gerund yet?), swimming, and volleyball.

To finalise our interview, could you list three books in philosophy and two books outside philosophy that have influenced your views or marked you in some significant way?

I’m going to pull a classic philosopher’s move and answer a related, but different question. I will tell you about two philosophers who have had a tremendous influence on me – Carolyn McLeod and Kathleen Okruhlik. Carolyn and Kathleen were supervisors of mine during my undergraduate and Masters. I went on to also have inspiring and thoughtful supervisors during my doctoral studies, but Carolyn and Kathleen were the first to show me what philosophy had to offer – how it could help us understand the world and the problems we face in this world. They showed me the value of philosophical investigation and I continually draw on the lessons they taught me.

For good measure – Kant’s Groundwork, Marilyn Frye’s The Politics of Reality, and Derek Parfit’s Reasons and Persons.

Again, I am going to cheat slightly here (although this is much less of a cheat). One of my favourite books is a collection of Alice Munro’s short stories. It’s creatively called My Best Stories and within it my favourite story is ‘Friend of My Youth’. Philosophy is one way to learn about the world and about human relationships, literature is another. ‘Friend of My Youth’ is a nearly perfect story that has a lot to tell us about how little we know about the lives of others and maybe even our own.

Another favourite is James Joyce’s Dubliners, in particular ‘The Dead’. It is a beautiful description of people living, but experiencing paralyzing failures. Joyce understands the vulnerability and fragility of human life. And he captures something unifying about the human condition – our desire for connection and purpose.

Also – The Lost Highway by David Adams Richards.