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By Lindsay Farmer

This booklet examines the connection among felony culture and nationwide id to supply a serious and historic viewpoint at the learn of felony legislation. constructing a greatly varied method of questions of accountability and subjectivity, it combines appreciation of the institutional and old context during which felony legislation is practiced with an educated figuring out of the legislations itself. Drawing on unique learn into the improvement of Scottish felony justice, it deals the 1st full-length critique of recent felony legislation thought.

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

Sample text

Recent studies have challenged these 'Whig' histories,41 for they have fostered a cavalier attitude towards the understanding of the pre-modern system. Our relatively clear-cut distinctions between institutions and types of law are not necessarily helpful when analysing the practice of law in an earlier period. It is far from clear that those things that we would consider as defects were regarded as such by contemporaries, nor that they prevented the effective operation of the system. In the pre-modern courts there was no clear distinction between civil and criminal law, or private and public wrongs.

This democratic spirit was reflected in the law itself which had always remained cosmopolitan and open to European influences. It had its classical, or 'golden' age in the eighteenth century or more precisely the period stretching from the publication of Stair's Institutions (1681) to the publication of Bell's Commentaries (1804) - in which period it was thought to have achieved a rational and distinctive synthesis of these diverse influences. It became, in the words of T. B. 76 Since 1800 the smaller Scottish system has struggled to resist the assimilating influence of the English, whose Parliament and lawyers have failed to respect the letter of the Treaty of Union.

Initially, at least, the term 'tradition' is not being used in any technical sense, but has simply been borrowed from the title of an influential pamphlet written by Lord Cooper and first published in 1949. This sought to provide a general introduction to the distinctive features of the legal system. 2 It is this loose idea of a tradition, between history and conceptual reasoning, that I wish to borrow. By allowing us to give due weight to legal doctrine without needlessly confining the terms of the analysis, it proves useful as both a descriptive and an analytic category.

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