Criminal Law, Tradition and Legal Order: Crime and the Genius of Scots Law, 1747 to the Present

This book examines the relationship between legal tradition and national identity to offer a critical and historical perspective on the study of criminal law. It develops a radically different approach to questions of responsibility and subjectivity, and is among the first studies to combine appreciation of the institutional and historical context in which criminal law is practised with a critical understanding of the law itself. Applying contemporary social theory to the particular case of nineteenth-century Scottish law, Lindsay Farmer is able to develop a critique of modern criminal law theory in general. He traces the development of the modern characteristics of criminal law and legal order, tracing the relationship between legal practice and national culture, and showing how contemporary criminal law theory fundamentally misrepresents the character of modern criminal justice.

• First full-length critical study of modern criminal law theory • Analyses connection between legal and national identity • Only historical study of nineteenth-century Scottish criminal law available

1. The boundaries of the criminal law: criminal law, legal theory and history; 2. ‘The genius of our law’: legality and the Scottish legal tradition; 3. The judicial establishment: the transformation of criminal jurisdiction 1747–1908; 4. The well-governed realm: crime and legal order 1747–1908; 5. The perfect crime: homicide and the criminal law; 6. Conclusion: crime and the genius of Scots law.

‘… a challenge to criminal law theory in particular, and critical legal theory generally … the statement: ‘criminal law theory has never fully acknowledged the consequences of the positivism of the modern law’ is a lesson waiting to be learned by other would-be critical scholars whose anti-positivism can, ironically, act as a set of blinkers. This book will therefore provide stimulus not just to criminal lawyers and legal historians, but to theorists, criminal and otherwise, far beyond the border of the Scots genius.’

– Scott Veitch, Australian Journal of Law and Society