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Download Criminal Law, Tradition and Legal Order: Crime and the by Lindsay Farmer PDF

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By Lindsay Farmer

This ebook examines the connection among felony culture and nationwide id to provide a serious and historic standpoint at the examine of legal legislation. constructing a greatly various method of questions of accountability and subjectivity, it combines appreciation of the institutional and historic context within which legal legislation is practiced with an educated knowing of the legislations itself. Drawing on unique learn into the improvement of Scottish felony justice, it deals the 1st full-length critique of contemporary felony legislations concept.

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

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There has been stubborn resistance to the idea of codifying the substantive law. The system has its own courts, rules of procedure and evidence, and even penal system. Perhaps most significantly of all, it is, unlike the 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.

See Levack 1987, ch. 3. O n diminished responsibility, see Alex. Dingwall ( 1 8 6 7 ) 5 Irv. 4 6 6 (see below, ch. 5). 467. It is ironic to note that in both these areas the H i g h Court has b e e n reluctant t o accept t h e implications o f these changes. T . B . Smith 1961, p. 123. See also Macdonald 1891, p. ' Legality and the Scottish legal tradition 39 undermine the common law. 81 The power to create would be destroyed, the spirit of the law suppressed. A soulless, alien legality would smother the creative Scottish genius.

12-13. See also I, p. 496; II, pp. 168-9 and Bell's Notes II, pp. 173-5. Unless otherwise stated references are to the fourth edition. For a contrary view on the permissible extent of punishment, see the case of Wright 1809 (above, n. 4) where a capital sentence was upheld. Above, n. 9. Although the case of Chas. Sweenie (1858) 3 Irv. 109 is sometimes regarded as having created the offence of 'clandestine injury to women'. See also the cases on workmen's combinations referred to by the judges in Greenhuff'and by Hume 1844 I, ch.

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