Kampen för rättigheterna - Mänskliga fri- och rättigheter i svensk rättskultur. Historik samt den rättsvetenskapliga diskursen 1940-2010

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

Sammanfattning: Are there such things as moral, rights and an inner sense of justice? Do they origin from God or are they something given by nature? If there are such things, should they be a part of the legal system? This essay has drawn its inspiration from this kind of thoughts and how they have been handled through history. The structure of the essay is two-folded. Part one is a historical review of the emergence of the law of nature and human rights together with the emergence of legal positivism and legal realism. The second part is focused on human rights and the ECHR in the postwar Swedish society. During the postwar years Swedish attitude towards human rights and the ECHR has differed from the rest of Europe, which has placed Sweden in an alienated position. The road towards becoming a part of the European culture has not been smooth nor obvious. It is my sincere hope that I through this essay may be able to illustrate how the Swedish attitude towards human rights and the ECHR have changed from the 1940’s up till now and also what role the Scandinavian legal realism and the ‘Uppsala School’ has played for this attitude. To be able to further investigate this period I have used a discourse analysis based on the jurisprudential discourse of a Swedish legal journal. My conclusion is that the legal education, science and practitioners togheter with the politicians have indeed been affected by the ’Uppsala School’. Through the EU accession and the incorporation of the ECHR in the Swedish legal system human rights get its grand Swedish breakthrough. This also enabled Sweden to take part in, and be a part of, the European culture. The reasons I have found to the Swedish attitude towards human rights are the Swedish alienated position, the strong social democratic government, the assumed conformity between the ECHR and Swedish law, the weak position of the courts and finally the Scandinavian legal realism and the ‘Uppsala School’. However, these reasons are not to be seen independently, since they during the 20th century have influenced each other and developed mutually.

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