15 K.C.L.J. 1 (2004)

handle is hein.journals/kingsclj15 and id is 1 raw text is: (2004) 15 KCLJ 1

LAW AND CRITICAL THEORY
ALAN NORRIE AND CHRIS THORNHILL
INTRODUCTION
T HE FOLLOWING three papers were presented at a seminar organised by the
Schools of Law and Humanities at King's College London in the Spring of 2003
under the general tide of Critical Theory and Law.' While they have very different
foci, they also have something important in common, and it was felt that it would be
worthwhile publishing them together to bring this out.
All three papers are concerned with the Kantian-Hegelian inheritance for modem
legal theory and practice. William Smith and Robert Fine discuss this through an analy-
sis of the similarities and differences between two modem Kantian theorists of the
possibility of cosmopolitan legal order, Juirgen Habermas and John Rawls. Rawls
restates the ideal towards which Kantian internationalism strives, an enlightened world
society of well-ordered peoples based upon liberal principles. Habermas describes by
contrast the emergence of a form of cosmopolitan right which is manifested in the
development of practical forms of international human rights law and post-national
forms ofpolitical community, such as the European Union. Whereas the former analy-
sis develops its Kantian principles on the basis of a move from the abstract to the con-
crete, the latter is inclined to reverse the direction of the argument.
Smith and Fine see problems with either method. To start, like Rawls, from abstract
principles, and then to apply them to the existing world is to run the risk of appear-
ing as a naive utopian; and if one seeks to be more than this, one sacrifices abstract
principle for a realism that only denies it. To start, like Habermas, from the concrete
development of forms of law and their institutional embodiment by contrast holds
out the possibility of a worldly grounding for principle, but runs the risk ofidealising
particular institutions and practices that never come unencumbered by realpolitik and
particular social agendas. In reviewing the dilemmas of modem Kantianism on the
international scene, Smith and Fine wish to support the development of modem cos-
mopolitanism but in a way that recognises its inherently problematic character. They
conclude that these intrinsically flawed but important developments require a move
beyond the would-be clear lines of the Kantian cosmopolitan project, towards an
account of judgment such as that stressed by Hannah Arendt in her analysis ofKantian
philosophy.
1. We are grateful to the Arts and Humanities Research Board for supporting these seminars.

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