Myths and Legends: An Examination of the Historical Role of the Accused in Traditional Legal Scholarship; a Look at the 19th Century
David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Ezio Di Nucci
Jack Alan Reynolds
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Oxford Journal of Legal Studies 21 (2):331-353 (2001)
This article explores and questions traditional legal scholarship's historical presentation of the role of the accused and the relationship between the individual and the state in English criminal justice that it expresses. This perceived relationship between the individual and the state is traced through a textual and historical analysis of rules relating to questioning and to confessions. The article focuses on the ‘development’ of these rules during the 19th century when the foundations of the modern English legal system were laid. The author maintains that through the conceptual categories of ‘subject’, ‘citizen’ and ‘suspect’, established legal writers have constructed the role played by the accused within an historical framework of ‘progress’. Yet when examined in the light of case law and statute from the period, that framework appears more mythical than factual as it lacks the evidential foundation to support it
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