Introduction

Abstract

It has been recently suggested that Kantian legal thought resembles a ‘heresy driven underground’ (Weinrib 1988, p.950). In one sense this is true. There are few confessed Kantian legal theorists, and relatively little overt Kantian legal writing. It is, however, the purpose of this book to suggest that there is a considerable amount of covert Kantianism abroad in contemporary legal thought. Indeed, it will be suggested that, aside from the already established schools of Kantian relativism and formalism, much of the current writings of critical and postmodern legal thought are firmly established upon Kantian foundations. This book will proceed as a genealogy, tracing the descent of a particular family of legal thought. To an extent, it will be an exercise in the history of legal theory, though without any of the grander claims to universality which such histories tend to pronounce, and without making any claim that the genealogy requires a consistent historical context. Ultimately, it will be suggested that the genealogy reveals a far greater degree of common ground in contemporary legal thought than is often surmised. Rather than perceiving Kantianism and critical legal thought to be polar opposites, it will be suggested that they merely represent varieties of thought which enjoy a number of common genealogical characteristics. Kantians are not, then, heretics. An alternative metaphor sees Kantians, postmodern and critical legal scholars as siblings, prone to squabbling, questioning relative legitimacy, and threatening ostracism, but, ultimately, all members of the same family, sharing certain family characteristics ensured by a common ancestry.