ABSTRACT
You will permit me however very briefly to describe, rather what I conceive an academical expounder o f the laws should do, than what I have ever known to be done.... He should consider his course as a general map o f the law, marking out the shape o f the country, its connexions and boundaries, its greater divisions and principal cities: it is not his business to describe minutely the subordinate limits, or to fix the longitude and latitude o f every inconsiderable hamlet. His attention should be engaged... in tracing out the originals and as it were the elements o f the law. (Blackstone, 1966, vol. 1, 35)1
It is far from inappropriate that an essay on the development of Scottish criminal law should begin with a quote from William Blackstone. Scots lawyers have consistently underestimated the influence of the English, preferring to believe the comfortable myth that portrays our criminal law as purely native product. However, our immediate interest lies in his suggestive use of the metaphor of mapping, rather than with any questions of substantive law. It raises two broad points which, between them, capture the object of this essay. The first is that it connects the law to a particular physical space. At one level this is a point that is both trite and obvious. Its significance, nevertheless, has been left unexplored. The power of law is always a territorial question. The law draws physical boundaries in geographical space. The law orders the interior of this space into political and administrative units. Legal sovereignty means nothing without these physical aspects of space and organisation. The law is always also the law of the land. The second point is that Blackstone sees the law as a map. This is to acknowledge, as he was clearly aware, that the law is always a representation — it can never lose its metaphorical character. Understood in this sense, the law is always a distortion of reality, though as Sousa Santos points out, this does not necessarily mean that it is a distortion of truth (Sousa Santos, 1987, 282). It is always the result of a process of selection or an attempt to impose an order by marking out the ‘greater divisions and principal cities’. The mechanisms by which the law distorts reality are
not chaotic but determinate. And hence the process of representation is a fitting object of study.
