Legal Theory and Legal Culture

K. J. M. Smith

in Lawyers, Legislators and Theorists

Published in print October 1998 | ISBN: 9780198257233
Published online March 2012 | e-ISBN: 9780191681738 | DOI:

Series: Oxford Monographs on Criminal Law and Justice

Legal Theory and Legal Culture

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The general aim of this chapter is scene setting, entailing a short account and analysis of the more pertinent features of criminal legal theory and legal culture at the opening of the nineteenth century. Such features include: first, the relative status accorded to common law and penal statutes by judges and commentators, and its relevance to the perceived legitimate boundaries and approach to judicial law making; and second, the developing theories of punishment, with their implications for the structure and substance of criminal law. Beyond this, consideration will also be given to more concrete matters germane to the culture of conceptual development, specifically: changes in trial practices and procedures, and the reconstructing of judicial evidence. Finally, the contemporary state and characteristics of the judiciary and legal profession are briefly examined for indications of likely receptivity to conceptual innovation.

Keywords: legal theory; nineteenth century; common law; penal statutes; law making; punishment; criminal law; legal history

Chapter.  23526 words. 

Subjects: Criminal Law

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