Criminal law and the Scottish moral tradition
Kennedy, Chloe Jane Sophia
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This thesis presents an account of the development of Scots criminal law which concentrates on the influence of the Scottish moral tradition, as epitomised by Calvinist theological doctrine and Scottish Enlightenment moral philosophy. It argues that there are several crucial but seldom-acknowledged points of similarity between the Calvinist aim of creating a holy community and key tenets of eighteenth century Scottish moral thought, which rest upon community-oriented conceptions of the nature of morality and society. Both these shared conceptions and the particular ways they are expressed in Calvinist creed and Enlightenment philosophy are shown to have had a bearing on the way that Scots criminal law changed over time. The areas in which this influence is demonstrated are: the scope and principles of the law, i.e. the type of conduct that was punishable and the arguments that were put forward to justify its prohibition; the attribution of criminal responsibility (and non-responsibility); and the importance of mental state. It is argued that in each of these discrete areas changing perspectives on the nature of morality and human agency had a palpable impact on both legal doctrine and practice. When these different areas of the law are viewed as a whole and in historical perspective, the formative force of the Scottish moral tradition becomes clear and its influence can be seen to have extended into the contemporary law. The thesis therefore provides an original interpretation of the history of Scots criminal law by considering its sources and institutions from hitherto unexplored theological and moral perspectives, whilst simultaneously enhancing scholarly appreciation of certain aspects of the contemporary law that appear unusually moralistic. It also makes a broader contribution to socio-historic scholarship and strengthens its position as a recognised and worthwhile discipline by illustrating, using a concrete legal system, how legal history can enhance debates within criminal law theory and vice versa.