Bör folkets åsikt beaktas? - en rättslig analys av det allmänna rättsmedvetandet

Sammanfattning: The purpose of this essay has been to review the concept “the public’s sense of justice”. Ever since the 1980s, the term has become increasingly prevalent in preparatory work aswell as political and mediocre discussions on legislation and justice. The public’s sense of justice is particularly common in Swedish crime policy. Despite its topicality, questions surrounding the concept, such as its definition and content, have not yet attracted any greater interest from the legal point of view. In order to enable a discussion about the the public’s sense of justice, the essay contains a brief overview of the history of Swedish criminal law until the concepts occurrence in the 1970s. The idea behind this historical overview has been to highlight the thoughts and ideas regarding the design of the penal system, which has led to the current situation, in which the public’s sense of justice plays a central role. In addition to this historical review, the basic parts of the public’s sense of justice, such as its actual existence and definition, its application and criticism are examined within the framework of this essay. Due to the lack of legal research regarding the term, materials from different scientific disciplines have been applied. The essay deals with both criminological research and preliminary work, case law and certain legal doctrine. The material has led to the following conclusions. The public’s sense of justice is a hard-defined concept, which changes content based on the information provided to the population. On the other hand, there is no doubt that the public’s sense of justice exists. Likewise, it is clear that the public’s sense of justice affects legislation as well as the rule of law. The greatest importance is attached to the concept in the legislative work, as a reason for change. Regarding rule of law, the public’s sense of justice should not affect individual cases, but a widespread opinion against the application of existing law may lead to a change in the matter. However, there is extensive criticism against the use of this term as a basis for changing the law. This criticism is directed primarily to the difficulty of content-determining the concept. Critics believe that the content of the public’s sense of justice will change depending on the amount of information provided, although the question at hand does not change. This makes the concept attractive from a political perspective, but may lead to legislative changes that the citizens of a society do not really stand behind.