Guds rätt och domarens nåd - Arbitrering i 1600-talets rättskultur

Sammanfattning: As the first Swedish Court of Appeal was promulgated in 1614, among other tasks, the reevaluation of all death sentences from the district courts fell under its responsibilities. Six years prior to this, in 1608, a new code of penal law, the so-called Appendix, had been put into place on royal initiative. Now, the Court of Appeal could either affirm the sentences from the district courts, or overrule them and replace them with a new sentence. If the Court of Appeal laid down a sentence without express legislative support, it was an example of the judge’s arbitrium. The right of arbitrium and its exact meaning were debated during the 17th Century. This essay establishes the various meanings of arbitrium, the views of it and, subsequently, presents three cases of its usage. Moreover, the essay outlines the societal structure of the time, the background and education of the judges, and the societal views of legal proceedings. Not least, the influence of ius romanum, ius naturalis and moral philosophy on penal law is examined. In conclusion, the Appendix of 1608 led to punishments much harsher than what was right and just in the eyes of the public. By the continued usage of its arbitrium, the Court of Appeal, despite royal opposition, sought to reach the solution most just and right from a societal point of view. Thus, legal proceedings came to reflect the general societal morale and conscience, even though an already initially outdated penal code was formally in effect.