Symbolisk lagstiftning i svensk kriminalpolitik - En analys av den kriminalpolitiska utvecklingen

Sammanfattning: This thesis has aimed to analyze Swedish criminal policy based on the concept symbolisk lagstiftning. In English, it is referred to as symbolic legislation. Symbolic legislation is legislation that is ineffective to prevent crime, but make the government appear energetic and convincing in the eyes of the citizens. In the jurisprudence literature, the government is accused of imposing symbolic legislations, despite the fundamental principles of criminalization. Therefore, the questions of this thesis are whether symbolic legislations appear in the Swedish legal system and if so, whether criminal law has a new function in criminal policy. The political development demonstrates tendencies of symbolic legislation. Since the 1980s, criminal policy has become more politicized. Also, det allmänna rättsmedvetandet, or the general comprehension of law, can legitimize legislations. Thus, the government has legislated, even though the legislation is ineffective and contrary to the principles of criminalization. In contemporary policy, gang crime is a central topic of debate. Considering rule of law, it is a matter of a negative development in Swedish criminal policy. The need to indicate the position of the government in a matter has been the main argument to legislate. The legislations aim to fulfill a general preventive function and implement norms, at least from a long-term perspective. Since legislation can implement norms and thus change behaviors, it might not exist symbolic legislations in Sweden. If a legislation changes behaviors, it is neither ineffective nor symbolic. A legislation is legitimate and consistent with the principles of criminalization if it gets general preventive effects. When there is an existing legislation or regulation comprising the behavior, the government has already indicated its position in the matter. Also, the existing regulation has already been able to affect norms and behaviors. Therefore, the new legislation can be described as a symbolic legislation. It will not be effective, not even in the long term. In sum, this thesis concludes that symbolic legislations appear in Swedish criminal policy. However, not to the extent that is emphasized in the jurisprudence literature. Consequently, criminal law has a new function in Swedish policy on crime. At least, the principles of criminalization have a new meaning. The requirement of effective legislations is fulfilled as soon as the government has indicated its position and the requirement of proportionate penalties is fulfilled when the crime victim has obtained redress. Within the new function of criminal law, it is legitimate to legislate symbolic legislations.