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Lindsay Farmer

University of Glasgow, School of Law, Department Member

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I teach, mainly criminal law, at the University of Glasgow. My research interests are in the areas of the history and theory of criminal law. I am currently beginning to work on the relationship between markets and criminal law.
Address: United Kingdom

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Papers by Lindsay Farmer

Responsibility, criminalisation and political economy

Oxford University Press, 2021

No abstract available

5. The Jurisprudence of Security: The Police Power and the Criminal Law

The New Police Science, 2006

The State of Scots Law

Tony Martin and the Nightbreakers:Criminal Law, Victims and the Power to Punish

Introduction: The Constitution of the Criminal Law

The Criminous and the Incriminating: Narratives of Guilt and Innocence in Scottish Criminal Trials

The Emergence of Criminal Law

Making the Modern Criminal Law, 2016

The Obsession With Definition: the Nature of Crime and Critical Legal Theory

Social & Legal Studies, 1996

Modernism and the Criminal

Critical Analysis of Law, Dec 6, 2020

This paper explores the relationship between literary modernism, as analyzed in Matthew Levay's b... more

Penal Modernism: An American Tragedy

This paper discusses Whitman’s analysis of penal modernism. While I am in agreement with the cent... more This paper discusses Whitman’s analysis of penal modernism. While I am in agreement with the central claim that penal modernism has been ignored and caricatured, I argue here that Whitman’s account of the penal modernist theory of judging must be understood in the context of a wider reframing of the social functions of the criminal law in penal modernism. This is explored by considering the unusual connection that the novel An American Tragedy (1925) has to the history of American criminal law, and the light that this can shed on the question of the meaning of penal modernism.

The Constitution of the Criminal Law

R.A. Duff and John Gardner have recently suggested that responsibility should be understood in te... more R.A. Duff and John Gardner have recently suggested that responsibility should be understood in terms of answerability, i.e. in terms of the reasons offered by the agent in order to justify her conduct. However, this idea is formulated in very different ways by the two. Gardner’s account is “non-relational” in that it assumes that all moral reasons ultimately apply to every moral agent and that “everyone’s conformity to every reason is everyone’s business”. This means that, although there are obvious pragmatic reasons to limit the practice of calling each other to account, in principle we are answerable to everyone for everything. The model defended by Duff, on the other hand, is relational in that it ties the right to call someone to account to the existence of relevant normative relationships between members of specific groups. In particular, Duff ties criminal responsibility to membership in the political community: being criminally responsible is being answerable to our fellow citizens for those wrongs that violate the fundamental values of the political community. While espousing the relational model defended by Duff, I suggest that there is a class of wrongs, namely violations of basic human rights, for which we are answerable not only to our fellow citizens, but also to all human beings. This is because while we can account for the wrongness of crimes such as theft or tax evasion simply by appealing to Duff’s thought that these crimes violate the fundamental values of the political community, the wrongness of crimes such as murder or rape cannot be reduced to that. We are certainly answerable for these crimes to our fellow citizens because to the extent that our polity declares them as public wrongs, in perpetrating them we fail to treat the victim with the respect owed to her as a fellow citizen. But we are also answerable for them to the whole of humanity because in committing them we also fail to treat the victim with the respect owed to her as a fellow human being.

The Trial on Trial: Volume 3 : Towards a Normative Theory of the Criminal Trial

The criminal trial is under attack. Traditional principles have been challenged or eroded; in Eng... more The criminal trial is under attack. Traditional principles have been challenged or eroded; in England and Wales the right to trial by jury has been restricted and rules concerning bad character evidence, double jeopardy and the right to silence have been substantially altered to "rebalance" the system in favour of victims. In the pursuit of security, particularly from terrorism, the right to a fair trial has been denied to some altogether. In fact trials have for a long time been an infrequent occurrence, most criminal convictions being the consequence of a guilty plea. Moreover, while this very public struggle over the future of the criminal trial is conducted, there is also a less publicly observed controversy about the significance of trials in modern society. Trials are under normative attack, their value being doubted by those who seek different kinds of process - conciliatory or restorative - to address the needs of victims and move away from the imposition of state power through trials and punishments. This book seeks to develop a normative theory of the criminal trial as a way of defending the importance of trials in our criminal justice system. The trial, it is suggested, calls defendants to answer a charge and, if they are criminally responsible, to account for their conduct. The trial is seen as a communicative process through which the defendant can challenge claims of wrongdoing made against him, including the norms in the light of which those claims are made. The book develops this communicative theory by first making a careful study of the history of trials, before moving on to outline the theory, which is then developed through chapters looking at the practices and principles of trials, alternative regulatory models, the roles of participants, the relationship between investigation and trial and trials as public fora.

Jurisprudence: Themes and Concepts (2nd ed.)

The commonest definition of jurisprudence is the philosophy of law. The main themes and concepts ... more

6 The Idea of Principle in Scots Criminal Law

Essays in Criminal Law in Honour of Sir Gerald Gordon

The Aims of Punishment and the Aims of the Criminal Law

The Aims of Punishment

“Subverting the Settled Order of Things”: The Crime of Sedition in Scotland, 1793–1849

Political Trials in an Age of Revolutions

Местное самоуправление является важнейшим уровнем властной вертикали как в России, так и в других... more Местное самоуправление является важнейшим уровнем властной вертикали как в России, так и в других государствах. Именно местная власть призвана решать самые насущные задачи по обеспечению жизнедеятельности населения. В статье анализируется дуализм местного самоуправления, с одной стороны, как института гражданского общества, с другой-как института публичной власти в системе властной вертикали. Рассматривается проблема конституционно-организационной автономии местной власти, в условиях которой избирательная система претерпевает влияние федерального и регионального законодателя. Автором осуществляется анализ правовых позиций Конституционного Суда РФ по данной проблеме.

Censure: Moral and Sociological

The concept of censure, as developed in different ways, in the work of Sumner and von Hirsch, has... more The concept of censure, as developed in different ways, in the work of Sumner and von Hirsch, has enormous potential—though each of the accounts has its own limitations—In this chapter, I discuss both theories and show some way in which there is a common ground between them, and to offer some suggestions as to ways that this common ground might be developed, bringing criminology and criminal law theory into a new kind of dialogue.

THE CRIMINAL TRIAL Reviewing

Innocence, the burden of proof and fairness in the criminal trial: revisiting Woolmington v DPP (1935)

Viscount Sankey’s statement about the ‘golden thread’ of English law is one of the most famous st... more Viscount Sankey’s statement about the ‘golden thread’ of English law is one of the most famous statements of the presumption of innocence, routinely cited throughout the common law world. However, at one level it was simply misleading: there was extensive authority to support the rule that in cases of murder the burden of proof lay on the defendant to prove that their conduct was unintentional and so there was no ‘golden thread’. At the same time, there was an existing older tradition in the common law of respect for innocence, and so Viscount Sankey’s statement can be read as an attempt to articulate and develop this tradition. This gives rise to historical and normative questions. Historically, given that the decision in Woolmington so clearly states a new principle, how do we make sense of older claims about the presumption of innocence and the fairness of criminal trials? Normatively, this historical insight can shed new light on contemporary theoretical questions about the scope of the presumption of innocence.

Trafficking, the Anti-Slavery Project and the making of the modern criminal law

Responsibility, criminalisation and political economy

Oxford University Press, 2021

No abstract available

5. The Jurisprudence of Security: The Police Power and the Criminal Law

The New Police Science, 2006

The State of Scots Law

Tony Martin and the Nightbreakers:Criminal Law, Victims and the Power to Punish

Introduction: The Constitution of the Criminal Law

The Criminous and the Incriminating: Narratives of Guilt and Innocence in Scottish Criminal Trials

The Emergence of Criminal Law

Making the Modern Criminal Law, 2016

The Obsession With Definition: the Nature of Crime and Critical Legal Theory

Social & Legal Studies, 1996

Modernism and the Criminal

Critical Analysis of Law, Dec 6, 2020

This paper explores the relationship between literary modernism, as analyzed in Matthew Levay's b... more

Penal Modernism: An American Tragedy

This paper discusses Whitman’s analysis of penal modernism. While I am in agreement with the cent... more This paper discusses Whitman’s analysis of penal modernism. While I am in agreement with the central claim that penal modernism has been ignored and caricatured, I argue here that Whitman’s account of the penal modernist theory of judging must be understood in the context of a wider reframing of the social functions of the criminal law in penal modernism. This is explored by considering the unusual connection that the novel An American Tragedy (1925) has to the history of American criminal law, and the light that this can shed on the question of the meaning of penal modernism.

The Constitution of the Criminal Law

R.A. Duff and John Gardner have recently suggested that responsibility should be understood in te... more R.A. Duff and John Gardner have recently suggested that responsibility should be understood in terms of answerability, i.e. in terms of the reasons offered by the agent in order to justify her conduct. However, this idea is formulated in very different ways by the two. Gardner’s account is “non-relational” in that it assumes that all moral reasons ultimately apply to every moral agent and that “everyone’s conformity to every reason is everyone’s business”. This means that, although there are obvious pragmatic reasons to limit the practice of calling each other to account, in principle we are answerable to everyone for everything. The model defended by Duff, on the other hand, is relational in that it ties the right to call someone to account to the existence of relevant normative relationships between members of specific groups. In particular, Duff ties criminal responsibility to membership in the political community: being criminally responsible is being answerable to our fellow citizens for those wrongs that violate the fundamental values of the political community. While espousing the relational model defended by Duff, I suggest that there is a class of wrongs, namely violations of basic human rights, for which we are answerable not only to our fellow citizens, but also to all human beings. This is because while we can account for the wrongness of crimes such as theft or tax evasion simply by appealing to Duff’s thought that these crimes violate the fundamental values of the political community, the wrongness of crimes such as murder or rape cannot be reduced to that. We are certainly answerable for these crimes to our fellow citizens because to the extent that our polity declares them as public wrongs, in perpetrating them we fail to treat the victim with the respect owed to her as a fellow citizen. But we are also answerable for them to the whole of humanity because in committing them we also fail to treat the victim with the respect owed to her as a fellow human being.

The Trial on Trial: Volume 3 : Towards a Normative Theory of the Criminal Trial

The criminal trial is under attack. Traditional principles have been challenged or eroded; in Eng... more The criminal trial is under attack. Traditional principles have been challenged or eroded; in England and Wales the right to trial by jury has been restricted and rules concerning bad character evidence, double jeopardy and the right to silence have been substantially altered to "rebalance" the system in favour of victims. In the pursuit of security, particularly from terrorism, the right to a fair trial has been denied to some altogether. In fact trials have for a long time been an infrequent occurrence, most criminal convictions being the consequence of a guilty plea. Moreover, while this very public struggle over the future of the criminal trial is conducted, there is also a less publicly observed controversy about the significance of trials in modern society. Trials are under normative attack, their value being doubted by those who seek different kinds of process - conciliatory or restorative - to address the needs of victims and move away from the imposition of state power through trials and punishments. This book seeks to develop a normative theory of the criminal trial as a way of defending the importance of trials in our criminal justice system. The trial, it is suggested, calls defendants to answer a charge and, if they are criminally responsible, to account for their conduct. The trial is seen as a communicative process through which the defendant can challenge claims of wrongdoing made against him, including the norms in the light of which those claims are made. The book develops this communicative theory by first making a careful study of the history of trials, before moving on to outline the theory, which is then developed through chapters looking at the practices and principles of trials, alternative regulatory models, the roles of participants, the relationship between investigation and trial and trials as public fora.

Jurisprudence: Themes and Concepts (2nd ed.)

The commonest definition of jurisprudence is the philosophy of law. The main themes and concepts ... more

6 The Idea of Principle in Scots Criminal Law

Essays in Criminal Law in Honour of Sir Gerald Gordon

The Aims of Punishment and the Aims of the Criminal Law

The Aims of Punishment

“Subverting the Settled Order of Things”: The Crime of Sedition in Scotland, 1793–1849

Political Trials in an Age of Revolutions

Местное самоуправление является важнейшим уровнем властной вертикали как в России, так и в других... more Местное самоуправление является важнейшим уровнем властной вертикали как в России, так и в других государствах. Именно местная власть призвана решать самые насущные задачи по обеспечению жизнедеятельности населения. В статье анализируется дуализм местного самоуправления, с одной стороны, как института гражданского общества, с другой-как института публичной власти в системе властной вертикали. Рассматривается проблема конституционно-организационной автономии местной власти, в условиях которой избирательная система претерпевает влияние федерального и регионального законодателя. Автором осуществляется анализ правовых позиций Конституционного Суда РФ по данной проблеме.

Censure: Moral and Sociological

The concept of censure, as developed in different ways, in the work of Sumner and von Hirsch, has... more The concept of censure, as developed in different ways, in the work of Sumner and von Hirsch, has enormous potential—though each of the accounts has its own limitations—In this chapter, I discuss both theories and show some way in which there is a common ground between them, and to offer some suggestions as to ways that this common ground might be developed, bringing criminology and criminal law theory into a new kind of dialogue.

THE CRIMINAL TRIAL Reviewing

Innocence, the burden of proof and fairness in the criminal trial: revisiting Woolmington v DPP (1935)

Viscount Sankey’s statement about the ‘golden thread’ of English law is one of the most famous st... more Viscount Sankey’s statement about the ‘golden thread’ of English law is one of the most famous statements of the presumption of innocence, routinely cited throughout the common law world. However, at one level it was simply misleading: there was extensive authority to support the rule that in cases of murder the burden of proof lay on the defendant to prove that their conduct was unintentional and so there was no ‘golden thread’. At the same time, there was an existing older tradition in the common law of respect for innocence, and so Viscount Sankey’s statement can be read as an attempt to articulate and develop this tradition. This gives rise to historical and normative questions. Historically, given that the decision in Woolmington so clearly states a new principle, how do we make sense of older claims about the presumption of innocence and the fairness of criminal trials? Normatively, this historical insight can shed new light on contemporary theoretical questions about the scope of the presumption of innocence.

Trafficking, the Anti-Slavery Project and the making of the modern criminal law

Responding to the Problem of Crime: English Criminal Law and the Limits of Positivism, 1870-1940

This is a paper looking at the development of criminal statistics in England between 1870 and 194... more

Crime and Punishment

Criminal Law and Philosophy

A review of Geoffroy de Lagasnerie's Judge and Punish exploring the idea that there are distinct... more

Farmer, Civil Order (Toronto).docx

Criminal law secures civil order, but it is important to reflect on the meaning of the term 'civi... more Criminal law secures civil order, but it is important to reflect on the meaning of the term 'civil order' and precisely how the law 'secures' this. In this paper I explore the particular significance of civil order in modernity: how order was conceived of as a specific kind of problem and how this has shaped the modern understanding of the criminal law. I then go on to look at a neglected dimension of this understanding of civil order by looking at understandings of the relation between the market and the criminal law.

Punishment in the Rule of Law1

" Subverting the Settled Order of Things " : The Crime of Sedition in Scotland, 1793-1849

When James Tytler was charged with sedition before the High Court of Justiciary in Edinburgh in J... more When James Tytler was charged with sedition before the High Court of Justiciary in Edinburgh in January 1793, it was the first time that anyone had been charged directly with the crime of sedition in Scots law. The trial of Tytler was the first of twenty-three trials for sedition that took place in Scotland between 1793 and 1849. After this the crime was scarcely used by the authorities until its eventual abolition in 2010. The creation and use of the crime of sedition in Scots law thus largely coincides with the 'age of revolution' and so should be understood primarily in this historical context. In this paper, I examine the history of the crime of sedition between 1793 and 1849. This history is significant because the crime was, in practical terms, created by the Scottish courts in the political trials of the 1790s. I will show how the crime was used, and why it was controversial, before going on to look at the ways that the legal definition of sedition was eventually transformed in the trials of 1848-9, pulling apart word and deed in the conception of crime, to reflect what was understood as a new kind of democratic sensibility. I discuss this development in the context of a broader set of questions about how the scope and nature of class of crimes against the state or political crimes changed over this period, and how this was itself related to the emergence of new spaces and forms of politics.

The Aims of Punishment and the Aims of the Criminal Law