Book Review: Criminal Law, Tradition and Legal Order: Crime and the Genius of Scots Law, 1747 to the Present
| DOI | 10.1177/096466390000900207 |
| Published date | 01 June 2000 |
| Author | Gerry Johnstone |
| Date | 01 June 2000 |
| Subject Matter | Articles |
BOOK REVIEWS
LINDSAY FARMER, Criminal Law, Tradition and Legal Order: Crime and the Genius
of Scots Law, 1747 to the Present. Cambridge: Cambridge University Press, 1997, 207
pp., £35.00 (hbk).
In recent decades a significant change has occurred in criminal legal scholarship. Tech-
nical doctrinal analysis has been overtaken by philosophical, historical and socio-
logical studies and by radical critique. Lindsay Farmer’s book contributes to this ‘new’
body of scholarship; but he is critical of the tendency he observes in it to regard the
criminal law as a species of moral philosophy. His preferred route to an understand-
ing of criminal law is a critical history of its institutional practices and procedures and
of attempts to order and make sense of these practices and procedures.
In writing this history Farmer shows, inter alia, that conventional criminal law
theory misapprehends and misrepresents modern criminal law in fundamental ways.
In particular, it assumes that the substance of criminal law has been relatively stable
over a long period. Hence, modern criminal law is conventionally represented as a
refined and modernised version of the old common law institution which protected
fundamental community values such as human life, personal autonomy and property
by defining serious infringements such as murder, rape and theft as punishable crimes,
while confining blame and punishment to those who intended their bad acts. Laws
and procedures which do not fit this representation tend to be treated as aberrations
which are beyond the boundary of criminal law proper and hence marginal to its
reconstruction and analysis.
Farmer disturbs this conventional image by showing that the 19th century wit-
nessed a qualitative shift in the boundaries and social functions of criminal law. A mass
of ‘minor offences’ were created to control disorderly behaviour such as prostitution,
begging, public drunkenness and vagrancy, and increasingly criminal prosecutions
were brought against those who harmed others through careless performance of their
duties. This signalled a fundamental shift in the central concerns of criminal law, away
from upholding moral order towards the production of public order through the cre-
ation and enforcement of new norms of respectability and social responsibility. This
shift, Farmer makes clear, took place through changes in the law’s mode of operation.
The new offences were broadly defined, with character rather than conduct being
central to the attribution of guilt. Those charged were usually processed summarily
and with relatively little formality. And the intentions of accused persons were
deemed of little relevance to the legal outcome. Consequently, the retributive func-
tion of criminal law was supplemented and to some extent displaced from its central-
ity by a new governmental function.
So summarised, much of the thesis will be familiar to those acquainted with the
revisionist history of criminal justice. But, Farmer’s account is worth reading because
SOCIAL &LEGAL STUDIES 0964 6639 (200006) 9:2 Copyright © 2000
SAGE Publications, London, Thousand Oaks, CA and New Delhi,
Vol. 9(2), 319–320; 012725
07 Reviews (jl) 17/4/00 1:20 pm Page 319
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