This book is a critical and historical study of the theory of criminal law which examines, in particular, the relationship between legal tradition and national identity, while developing a radically new approach to questions of responsibility and subjectivity. Previous studies have focused either on the philosophical bases of the criminal law or on the sociology and social history of crime, but there has been little exchange between the two. Lindsay Farmer's is one of the first extended attempts to draw on both fields in order to analyse the body of theorising about the criminal law as a whole. It displays a rare knowledge of the legal, institutional and historical contexts in which criminal law is practised, in combination with an informed understanding of the law itself. Dr Farmer uses contemporary social theory to develop an account of the relationship between legal practice and national culture in Scotland, analysing the belief in the distinctive spirit or 'genius' of Scots law. An exploration of the boundary between national limits and the universal aspirations of criminal law theory reveals the specifically modern characteristics of the criminal law and exposes how contemporary criminal law theory fundamentally misrepresents the character of modern criminal justice. [...]... enforcement When policies fail they, and not the criminal law, are to blame To the criminal lawyer, the question of enforcement is seen as something beyond the law, to be carried out by the agencies and institutions of criminal justice.17 The law stands above and beyond the sphere of public debate and policy This, moreover, reinforces the ambitions of criminal lawyers for whom the criminal law must be more than... rules' at pp 8-9 B Anderson 1983; Goodrich 1992, pp 9-10 18 Criminal law, tradition and legal order faced is, thus, the complex one of trying to build a critical understanding of the boundaries of the criminal law, the interaction of the physical and the metaphysical, through a form of historical jurisprudence It is clear that, in challenging the terms of the representation of the law, we are ourselves... Scottish criminal law is a system of common law - even more so than the English criminal law To this extent, then, as a common law system that has developed with a distinctive character on the margins of Anglo-American criminal law, it offers both the opportunity to study the development of a 20 Criminal law, tradition and legal order particular system, and a unique vantage point from which to reappraise criminal. .. stronger political sociology Criminal law, legal theory and history 15 examination of how the legal system manages its relations with other social institutions and maintains its own autonomy It is, in short, about the order of law It should by now be clear that in concentrating on the issue of boundaries in the criminal law, we have been returning to and developing the idea of a legal cartography introduced... resembles some ancient castle, partly entire, partly ruinous, partly dilapidated, patched and altered during the succession of ages by a 7 thousand additions and combinations' and so on Sousa Santos 1987, p 282 4 Criminal law, tradition and legal order time been taken to be not only a matter of considerable political and social concern, but also a barometer of the health or pathology of a particular society... basis of the criminal law rarely consider the legal, institutional or historical context in which criminal law is practised, so the literature on the sociology and social history of crime and punishment is rarely informed by a legal understanding This book seeks to bridge this gap and so challenge the boundaries of the criminal law This is done initially through the argument that legality, and consequently... perception of the criminal law, can only be understood within particular legal traditions It then presents a detailed reconstruction of the characteristics of the modern criminal law, by tracing the practices that have developed within the Scottish legal tradition While this sets a limit to the rationalism of law, it is argued that it opens up the historical analysis of legal practices in a new and critical... the definition and structure of the criminal law Particular conceptions of the subject and legal order are examined to show how contemporary criminal law theory misrepresents the character of modern criminal justice through its attachment to certain fundamental assumptions about the foundations and nature of law The task for criminal law theory is to replace the vague assumptions of legal tradition with... conceive of himself as himself belonging to the history of law, and history itself becomes the only manner of thinking of the law And, correspondingly, the law does not exist as an object exterior to the philosophy that defines it' (my translation) Ewald 1986c, p 138 12 Criminal law, tradition and legal order object of the criminal law is defined and the theoretical boundaries of the field maintained... civil law, completely self-contained, there being no appeal outside Scotland to the House of Lords on criminal questions This independence has not occurred by chance but is the result of deliberate and hard-fought resistance on the part of Scottish lawyers, and writing 1 O n the negotiations that preceded the Treaty o n this point, see Levack 1987, chs 1 , 3 21 22 Criminal law, tradition and legal order . modern criminal justice.