Abstract: 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.
Comment: This article offers a good way to relate practical legal problems with philosophical issues, giving the students a very direct way to see the relevance of ethics. It can inspire discussions on paternalism and its relations with global justice. Note that the article does not define the following terms which are important to understand the material: Natural law, Positivism, Realism, Atmosphere/atmospherics, Paternalism, Maternalism. Due to its focus on legal issues, the text can be better suited as further reading, or as a core reading in classes focused on applied ethics and law (following Diversifying Syllabi).