Hillary Nye: Immodesty Eliminated

This month we are interviewing Hillary Nye. Hillary received her JSD from NYU in 2016 and then took a research fellowship at LSE. She is currently an Assistant Professor in Law at the University of Alberta.

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How did you become interested in Law? And then why did you decide to focus on legal philosophy?

Hillary: In Australia, where I was living at the time, law is an undergrad subject, so I entered a joint LLB/BA program straight out of high school. I don’t have a good answer for why I chose it—I didn’t really know what I wanted to do, and I vaguely remember someone suggesting it and just thinking, ‘Why not?’

I wasn’t totally sold on law in my first year, but in second year I took the compulsory legal philosophy subject and fell in love! I then changed the focus of my BA to philosophy and the rest was history. I didn’t ever want to practice—after I found legal philosophy I just wanted to figure out how to keep doing that for the rest of my life.

I think in my law classes, I had the feeling we were solving a puzzle about how to use rules to get some result, but we weren’t really talking about whether that result itself was fair or justified. I was drawn to philosophical questions about how to treat people equally, and what would be a permissible use of state power. Now that I teach in a law school I see those questions as more continuous with the doctrinal questions in contract law or other ‘black letter’ subjects, but that wasn’t always apparent in my early experiences with learning the law.

You’ve been working on topics that fall within the so-called field of ‘general jurisprudence’. One of the core debates in general jurisprudence is about the appropriate methodology to investigate the nature of law. In one of your papers you argue that the methodology favoured by Joseph Raz is mistaken. Can you briefly tell us (a) what ‘nature of law’ stands for and (b) what is Raz’s methodology?

What people mean when they say ‘the nature of law’ is precisely what perplexed me and sent me down the path of thinking about these questions. People throw that term around a lot, but it wasn’t clear to me what they meant, or what kind of access we could have to something’s very nature. Raz addresses methodology more explicitly than some other thinkers, so that’s part of the reason I target him in my arguments, but I also think the methodology he sets out is close to that adopted by many others in the field. For Raz, the nature of a thing is a matter of its necessary or essential features. We’re trying to understand what makes something the very thing it is. Briefly, he seems to hold that we can find out about the nature of a thing by reflecting on our concept of it.

Why do you think Raz’s methodology is mistaken?

Hillary:  It is precisely that move from concept to nature that vexed me and led to the writing of that paper. It seems to me that since our concepts are dependent on our intuitions, there is no reason to think that those intuitions provide privileged access into the nature of things, when the nature of things is independent of us. This seems particularly worrying given that we see disagreement about concepts and we have differing intuitions. Under such conditions, how should we know which intuitions or which concepts are the ones that ‘get right’ law’s nature?

In the paper I try three different ways of making sense of that nexus between concept and nature, but I ultimately conclude that none of them can work. We might think we are trying to use our concepts to get at the single true nature of law, but in that case, we are engaged in immodest conceptual analysis. Alternatively, we might think our various conflicting concepts each tell us something about the nature of law, but then each of them would be picking out a different thing—something like ‘positivist law’ and ‘natural law’. This would essentially mean people are talking past each other and there is no single thing called law, but rather many. The last possibility I consider is that our concepts can tell us about the nature of law because they in part make law what it is. This could work, in my view, but it would lead to a very different methodology, wherein we should be more deferential to the concepts used by those who actually make law what it is, such as judges. Philosophers’ intuitions wouldn’t have explanatory priority.

Can you tell us more about why you reject ‘immodest conceptual analysis’?

Immodest conceptual analysis is a term I borrow from Frank Jackson. He means by it (at least on my reading) a method according to which conceptual analysis leads to conclusions about the way the world is independent of us, and he objects to this because it gives our intuitions too large of a role in our account of what the world is like. I share this worry: it doesn’t seem right to me to place so much explanatory power on our intuitions, which don’t seem to have direct access to the nature of the world.

Towards the end of the same paper you consider, but also reject, a couple of different methodologies. One that struck me as particularly interesting is what you’ve called “the nature-nature nexus”. Could you briefly explain this methodology and tell us why you find it inadequate?

Hillary: Some theorists seem to have identified the same worry I’ve just been articulating—about moving from conceptual claims to claims about the nature of things—and are attempting to find ways around it. Andrei Marmor, for instance, has suggested a view according to which we don’t have to make that move, but rather we just start by talking about the nature of things. In other words, we don’t have to move from concept claims to nature claims. Instead we make nature claims that lead to other nature claims. My worry is that this superficially avoids the problem, but the issue resurfaces in the question of how we know anything about the nature of things in the first place. On that view, the nexus between concept and nature isn’t troubling, but the starting point is: what gives us access to those nature claims to begin with?

In some of your work in progress you rely on some insights from ontology to clarify the discussion about eliminativism in legal philosophy. What is eliminativism? And how can the insights from ontology help us make sense of it?

Hillary: What eliminativism is is a tricky question. People seem to be using the term for a constellation of related views that express scepticism about various core questions or concepts in the discipline of legal philosophy. For some people, it seems to be the claim that there is no single nature of law, or that there is no such thing as law (so, the thing to be ‘eliminated’ might be law itself, or a certain concept of it, or an idea of its nature). For others, it is more about the elimination of particular, unhelpful, questions about law, or ways of framing the debate.

What I try to do by bringing insights from ontology to bear on this area is clarify which of these claims is being made. In ontology, eliminativism is an established idea, and it is a positive metaphysical claim about what there is: if we are eliminativists about tables, we are claiming that there are no tables. But that is a metaphysical view that makes claims about the way things are. A different view we might take is something more like ontological anti-realism or deflationism, according to which we would say not that tables don’t exist, but rather that the question about whether tables exist is malformed or unanswerable in some way.

It’s my sense that most people who are drawn to eliminativism in legal theory are drawn to it for reasons more consistent with the anti-realist view. If we think that people are talking past each other, or that some question is unanswerable, we do better by dissolving that question, not by making a claim about the existence or non-existence of the thing itself. So I basically try to clarify different positions you could hold, and to argue that if you were drawn to eliminativism for this set of reasons, you should adopt anti-realism, rather than eliminativism properly so called. Of course, the term eliminativism is already taking hold in legal philosophy, and I’m not out to argue that we should use a different one – just that we should be careful about what version of eliminativism we mean to invoke when using that term.

You seem to be sympathetic to some variant of eliminativism about law. Is that so? Why do you think it is a plausible approach?

Hillary: I am indeed sympathetic to eliminativism about law in some forms. In particular, I think the deflationist path is probably the right one to take with respect to certain questions, such as ‘what is the true nature of law?’ The reason I think this is that I cannot see how certain questions are answerable from within our human perspective, and if that is the case, I believe we should reframe or discard them.

I used to have long debates about this with friends in grad school, and what it would boil down to was one person asserting that it was just true that law is a certain way—that positivism or non-positivism is correct, as a matter of the way things are. This led me on a long and circuitous path to trying to understand what ‘truth’ is. I ended up being drawn to a pragmatist view of truth, one that draws on C.S. Peirce, and leads us to treat certain statements, including metaphysical statements about the nature of things, as not truth-apt.

The reason for this is that such statements are not responsive to evidence. What I kept coming back to was the fact that both positivism and non-positivism were looking at the same set of facts, and yet coming to different conclusions about what law is. Both would accept that judges appeal to morality in making decisions, but a positivist would insist that that was an act properly understood as outside the domain of the legal, where a non-positivist would say it is part of applying the law. Disagreement itself is not problematic, but the problem arises when it becomes apparent that nothing in our experience could settle the disagreement: if a non-positivist points to evidence that judges appeal to morality in what seems like a law-applying role, it is open to a positivist to simply deny that that is the correct description of what’s going on, and insist that they are making law, not applying it. At the end of the day they seem to be drawing the boundaries of law differently, but in a way that is entirely unresponsive to evidence. I don’t think you have to be a pragmatist about truth to see the problem with this state of affairs, but my pragmatist views gave me a language for it. And that ultimately led me to a view I would loosely describe as eliminativist, in that it denies that such questions are sensible or answerable.

What else have you have been working on?

Hillary: In addition to the eliminativism piece already mentioned, I’m working on an article about Dworkin and the view he puts forward in Justice For Hedgehogs, that law is part of morality. I argue that this is really just a different way of articulating the view he has always held, even earlier in his career. The view in Law’s Empire also started with an assumption that we are talking about what makes the exercise of power justified, and I argue that placing law within the moral domain is just a different way of articulating this idea. In light of Dworkin’s anti-archimedeanism, I don’t think it makes sense to read him as making the metaphysical claim that law truly ‘is’ part of morality. Rather, I think he is saying that interesting questions can be answered if we place it there for the purposes of our investigations into what ought to be done by judges and other actors.

I’m also writing a paper on the rule of law as a thick concept, in Bernard Williams’s sense of concepts that have a descriptive as well as a normative element. The way we talk about the rule of law is as something we value and should strive to bring about. But there is also a descriptive aspect: it isn’t just about doing the morally right thing, but about being attentive to rules and institutional history. I think it is helpful to see it this way because it draws our attention to the contrast between the rule of law on the one hand and the quality of being ‘legalistic’ on the other. Both seem to be highlighting a similar kind of attentiveness to rules, but rule of law-governed behaviour is attentive to those rules in a good way, as opposed to a bad way.

I’m also in the very early stages of playing around with an idea about thought experiments and their role in philosophy. There are some famously weird ones, like Hart’s example where he asks us to imagine what law would be like if humans had a hard carapace like a crab and were therefore protected from attack. And there is Raz’s example of the society of angels which raises the question of whether their legal system would need coercion. I have a sense that these two examples are doing very different work for their authors, and I think there is something interesting to be said about what thought experiments can and cannot helpfully do for us.

How was grad school in legal philosophy?

Hillary: I loved it. It was such a transformative and happy period of my life. I won’t lie; it was stressful and difficult. But I was very fortunate to land in a program surrounded by wonderful people, many of whom are some of my closest friends to this day. It also helped that NYU provided us with a physical space in which to work. That meant that people came there regularly, and we really built a community. Every day when I came in I got to see the faces of dear friends, and I cannot overstate the importance of that support for my ability to thrive during those years. There was always someone there to read a draft, puzzle through an idea with me, or talk me down from my more anxious moments. I feel lucky that I got to spend five years of my life just thinking about things that interest me, and doing so with interlocutors and friends who pushed me to put forward the best versions of my ideas.

In terms of the intellectual process, the things that are difficult about it are also the things that make it so fantastic. The freedom to pursue whatever idea interests you can also lead to the spending of months down a path that goes nowhere. I think part of what makes grad school enjoyable is to learn to accept those aspects of it as part of the process. The path won’t be linear, but that’s the point. You learn something from every wrong turn, and your topic and ideas always change. That can feel challenging, but it’s also incredibly rewarding.

Any advice to those philosophers entering the job market?

Hillary: I found being on the job market harder by far than the writing of the dissertation itself. It is a very structured and narrow process that doesn’t really enable people to see you holistically. It is very difficult not to take rejections personally, and to grapple every day with the existential uncertainty: I’ve spent so long preparing myself for this—what if I never get to continue doing it?

I think the best advice is to make space for your mental health during that period. Try to focus on ensuring you do things that keep you sane and happy, because it can be a really gruelling process.

In terms of the actual applications and interviews: lean heavily on your friends and peers. I was so lucky to have those who went before me share their materials, read my materials, and give advice on interviews, and that really helped, especially when there are different norms and expectations in different jurisdictions you might be applying to. (My Canadian friends gave very different advice than my UK friends, and I was grateful to both, and developed quite different application packages for each place). It can be uncomfortable to share your cover letter with someone, but better to show a friend first and let her make it better than to send it out to search committees with problems that someone else might have picked up.

How do you usually work? Do you write a little bit every day? Do you plan everything before starting to write a paper?

Hillary: The opposite, really! I am someone who writes in crazy intense bursts. I admire those people who can write a little bit every day and make steady progress, but I’ve never been that way. I will often toss around an idea for quite a long time, but the actual writing of a first draft can be in just a couple days. I will then edit for quite a while, very often in major ways, such as restructuring the whole paper. The worst part of the process is the final, small edits. I love cutting up a paper and playing with it like a puzzle until it fits together. But I hate the little changes. I have so many papers that I haven’t gotten around to sending anywhere because they are a few small edits away from being finished, but I have already moved on to some new idea. It’s a bad habit!

Any hobbies?

Hillary: I do cross-stitches of philosophers, like this one:

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Can you list two underrated papers in legal philosophy?

Hillary: I think I would suggest Seana Shiffrin’s article ‘Inducing Moral Deliberation: On the Occasional Virtues of Fog’, and Elizabeth Anderson’s article, ‘What is the Point of Equality?’

Neither of these is particularly underrated in the field of moral or political philosophy, but it would be unusual to find them on a legal philosophy syllabus, and I think that’s a shame. I suppose this is really a way of saying that moral philosophy should be a bigger part of what we do in the field of legal philosophy. What is really underrated in jurisprudence is more conversation with moral philosophy.

Which philosophy books or articles have influenced your views the most?

Hillary: There is a lot I ultimately came to disagree with in Rorty’s views, but in terms of influence, he would rate highly. I picked up a book of his essays, Philosophy and Social Hope, and I found his way of looking at the world so new and yet so natural and intuitively appealing, that he immediately reshaped the way I thought about truth and what philosophy is for. When I came upon this book I was at a bit of a crossroads with the dissertation, and it set me on a path to thinking about pragmatist theories of truth in relation to legal philosophy. I ultimately parted ways with his more sceptical and relativistic views, but his basic pragmatist impulse and his ideas about hope stuck with me.

To close our interview: what is your favourite book outside philosophy?

Hillary: Random Family: Love, Drugs, Trouble, and Coming of Age in the Bronx by Adrian Nicole LeBlanc. It’s an incredible book – the author is a journalist and it’s a true story, but it reads like fiction. The author researched the book and immersed herself with the subjects—a loosely connected group of friends and family members growing up in the Bronx—for a decade, and the result is an unbelievably detailed window into the lives of people trapped in a cycle of poverty, drugs, teen pregnancy, imprisonment, and housing instability. It powerfully evokes a world that I wouldn’t otherwise have had insight into, and LeBlanc writes with great empathy for her subjects.