Vet vi varför vi straffar? - En moralfilosofisk studie om straffrättens bevekelsegrunder i ljuset av fri vilja

Sammanfattning: Justice must be administered, and crime prevented, but what is more important? The mid-20th century, Swedish penal law underwent a reform, which entailed a rewriting of its motivations where moral culpability became obso-lete, partly, due to philosophical considerations of free will. Retribution-based blame gave way to motives regarding prevention. However, recent revisions see a resurgence of retributive motives, why motives based on prevention have lost in prominence. In the background of these motives, we find moral philosophy, the study of what is morally right and wrong which often necessitates a notion of the human will as free. The question then becomes: What moral ideologies correspond with the motives of the penal system and how do they relate to theories of free will? To study this, the thesis has conducted a literature study, which mainly examined the preparatory works of major law reforms, but also lesser changes and doctrine pertaining to criminal law principles and relevant philosophical ideologies. The results of the thesis have been analyzed from a moral philosophical perspective to determine the morality of criminal law in relation to whether free will exits, and how it can be understood. Many of the criminal law’s cited motives regarding prevention can be considered compatible with utilitarianism, regardless of which approach to free will that is used. The reasons concerning retribution seem to stem from a retributive virtue ethic. Within the latter ethical framework, judgement is based on an individual’s intention. Doctrine infers a compatibilistic understanding of free will that is arguably compatible with a retributive virtue ethic. However, some of the arguments seem to stem from societal opinion, why some authors label the motives as populistic. Later motives concerning blameworthiness, seem to exclude theories of will from their rationale, why it is highly unclear whether the motives are compatible with the current moral philosophy of the penal system.