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Atmospherics: Abortion Law and Philosophy

Anita L. Allen

University of Pennsylvania Law School

November 26, 2007

U of Penn Law School, Public Law Research Paper No. 07-40

In 1934, Karl N. Llewellyn published a lively essay trumpeting the dawn of legal realism, "On Philosophy in American Law." The charm of his defective little piece is its style and audacity. A philosopher might be seduced into reading Llewellyn's essay by its title; but one soon learns that by "philosophy" Llewellyn only meant "atmosphere". His concerns were the "general approaches" taken by practitioners, who may not even be aware of having general approaches. Llewellyn paired an anemic concept of philosophy with a pumped-up conception of law. Llewellyn's "law" included anything that reflects the "ways of the law guild at large" - judges, legislators, regulators, and enforcers. Llewellyn argued that the legal philosophies implicit in American legal practice had been natural law, positivism and realism, each adopted in response to felt needs of a time. We must reckon with many other implicit "philosophies" to understand the workings of the law guild, not the least of which has been racism. Others, maternalism and paternalism, my foci here, persist in American law, despite women's progress toward equality. Both maternalism and paternalism were strikingly present in a recent decision of the U.S. Supreme Court, Gonzales v. Carhart, upholding the federal Partial-Birth Abortion Ban Act.

Number of Pages in PDF File: 10

Keywords: philosophy of law, Karl Llewellyn, legal realism, maternalism, paternalism, Gonzalez v. Carhart, Partial-Birth Abortion Ban Act

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Date posted: September 24, 2007 ; Last revised: December 5, 2007

Suggested Citation

Allen, Anita L., Atmospherics: Abortion Law and Philosophy (November 26, 2007). U of Penn Law School, Public Law Research Paper No. 07-40. Available at SSRN: https://ssrn.com/abstract=1016207 or http://dx.doi.org/10.2139/ssrn.1016207

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Anita L. Allen (Contact Author)
University of Pennsylvania Law School ( email )
3501 Sansom Street
Philadelphia, PA 19104
United States
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