Under ytan: Straffrättens grundantaganden i förhållande till hedersmotivet och kulturella motiv i övrigt

Sammanfattning: The 9th of March 2017 the Swedish government initiated an investigation in order to consider and decide whether to include a cultural inflicted honor motive as an aggravating circumstance in the assessment of criminal penal value. The Committee in charge of the investigation was appointed certain guidelines in which the honor culture is described as an aggravated social problem, causing both physical and mental harm. The honor culture is, in comparison with the Swedish legal system, a non-compliant normative value system. This paper examines how the Swedish legal system deals with such deviant cultural values. Laws and regulations convey the mutual values of the Swedish majority society. The honor motive, upon its incorporation into the Swedish legal system, will be described in a way that correlates with these values. In the court of law, judges and lawyers will therefore reproduce a restrained description regarding the premises that constitute the honor culture. Such an unrealistic description is likely to be criticized in relation to the assessment of the offender’s liability and blame. In order to achieve a correct evaluation, assessments regarding liability and blame must be undertaken and based on the actual individual, not a misleading reproduction of this person. Is the current formation of the cultural inflicted Swedish legal system appropriate to assess the culpability and guilt of an offender that originates from a deviant cultural system? My belief is that the current legal system, due to the reinforcement of an autonomous and rational legal entity, is not fit to make credible assessments regarding liability and blame when confronted with deviant cultural values. The autonomous and rational legal entity works to ensure that subjects in the legal system are judged by the values and requirements of the majority society. In this aspect, deviant cultural motives are considered hostile and therefore adverse for the offender. In order to enable a nuanced and realistic assessment of perpetrators, I suggest an evolution from an autonomous and rational legal entity to a contextualized legal entity. A contextualized legal entity will enable rightful evaluations of liability and blame and will ensure the lack of need to incorporate the honor motive and other cultural inflicted motives in the legal system.