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Texas Law Review

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Ronald Dworkin's analysis of the abortion begins by postulating a shared understanding of human nature: no one, or almost no one, believes that the fetus is a person. On the contrary, I argue, we are deeply split in our understandings of personhood and those conflicting understandings, not bad faith, underpin the abortion debate. Using two interpretations of the story of Adam, Eve and the Apple in the Garden of Eden, I explore alternative views of human worth, one of which sees the Tree of Knowledge as separating man from God and other of which sees the Tree of Knowledge as making Adam and Eve human; one of which emphasizes innocence (and therefore finds fetuses paradigmatically worthy) and the other of which emphasizes understanding (and therefore finds fetuses only potentially human).

Acknowledging the deep controversies in our moral views requires a different approach to constitutional controversy (and law in general). Even as we remain committed to the correctness of our own values, we must confront the reality that we are unlikely to succeed in convincing all our neighbors to share them. Dworkin's emphasis on philosophical consistency and logical working out of the implications of agreed-upon premises, implicitly suggests that those who disagree either have made a mistake or are not trying in good faith. But in a world without a Temple, where values are all contested, errors and bad faith are not the most important sources of disagreement. Consistency is less important than, and often inconsistent with, compromise, peace and building a common life together. Founding law in the attempt to building a society in which profound disagreement is possible is, of course, a variant on the classical liberal project - but without the social contract heritage of hypothetical contracts, agreements to which all reasonable people would agree, dialogues both sides of which can be written by philosophers, or claims to a neutral or value-free starting point



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