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.
'... 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