Straffteori i amerikansk och svensk rätt - Proportionalitet, prevention eller humanitet? En studie på lagstiftnings- och domstolsnivå

Detta är en Uppsats för yrkesexamina på avancerad nivå från Lunds universitet/Juridiska institutionen

Sammanfattning: This essay concerns the issue of proportionality in penal theory as it is applied in USA and in Sweden. The essay compares two main aspects, or levels of this proportionality; the judicial level and the court level, of each jurisdiction respectively; applying the comparative method. The essay thus addresses the federal system of American jurisprudence, and the interpreting and guiding role of the Supreme Court as its precedence forces American state law to accept certain boundaries; both in a judicial and a principal sense. The typical American penal theory of retributivism is described as providing essential principal guidelines for existing legislations. This is further shown with examples of the renowned “Three strikes law” and its exceptions known as “wobblers” – as they exist in the Penal Code of California. As one of the primary sources of law, the Supreme Court cases and their reference have been given lofty space in this essay. The essay also conveys the importance of the American constitution and further questions related to the legislative process and state-federal structure. The essay further explores the measures available to the U.S. court in which to maneuver according to the existing concepts of proportionality. The portion of the essay concerning the court level in the American sense of proportionality is slightly different than the one concerning the Swedish; since the USA constitutes a rather complex fusion of common law and civil law a substantial effort was made to exemplify this. There are also portions that highlight the differences between American and Swedish courts and the way in which they are able to apply their own interpretations of penal theory and proportionality. Also, a substantial number of Supreme Court cases were included in the court level of the American part of the essay, albeit its precedence has a supreme status as a legal source. Furthering the comparative aspect, the essay describes Swedish penal theory out of a similar context; first the legal sources are outlined and what ideological considerations lay behind them, stating the typical Swedish approach of considering legislative history as a legal source as well as the role of humanitarian principles in the legislative process and level. Legal sources are directly cited and referred, and with reference to the works of some of Sweden’s finest legal experts, are put in to an ideological context with regards to proportionality and penal theory. Existing legislations as well as future ones are discussed out of an ideological context, whether they reflect proportionality and penal theory in a coherent way or not. On the court level, a selection of cases are presented concerning subjects reflecting (however not exclusively) the cases presented in the American part of the essay. These cases are thought not only to represent the measure of independent reasoning that can be applied by the Swedish court, but also to reflect some typically Swedish approaches and put the previously mentioned legislations into practical examples. Conclusions are made primarily with respect to providing answers to what ideological reasoning respective jurisdiction or nation provide to rationalize their legislations, and in what primary aspects the both systems differ. There is also a separate, further aspect of the essay that I outline in the introduction, that concerns the questioning of present Swedish penal theory as it is generally perceived, out of a retributivist perspective and my own partaking in the discussion.

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