Mord och dråp - En analys av etiska resonemang kring uppsåtligt dödande

Sammanfattning: This interdisciplinary essay deals with the crimes murder and manslaughter, which are regulated in chapter 3 § 1 and § 2 in BrB. Murder and manslaughter are two degrees of intentional killing. The former is the standard level of intentional killing while the latter is defined as less serious considering, inter alia, the circumstances that caused the action. By this division the legislator assert that killing acts can be graded from how objectionable the act is considered. Some kinds of killing acts are therefore more serious than others in criminal law. A similar view is held by the Supreme Court, which appears when intentional killing is classified. For someone that does not know a lot about the legislator’s and the Supreme Court’s reasoning, the division can be provocative. For this reason, the essay tries to illustrate the arguments of the legislation and the established practice. Furthermore, the essay examines whether the division can be justified with ethical reasoning and theories. The main purpose is therefore to scrutinize deontology, consequentialism and the moral rights theory to compare these theories with the Swedish law and practice. In the preparatory work, the legislator has presented certain circumstances that shall influence on the classification between murder and manslaughter. The Supreme Court has in several cases confirmed these circumstances. Aggravating circumstances are for example: a killing act that has been carefully planned or realized in order to accomplish another crime. Moreover is unnecessary suffering for the victim, ruthlessness from the perpetrator, the length of the incident and a close relation between the victim and the perpetrator regarded as aggravating. Mitigating circumstances arise when the perpetrator has been provoked, insulted or when he/she is acting because of jealousy. To act in self-defence is also mitigating. The ethical theories have different views on how a human being should live his/her life and which factors that should be taken into account before an action. Adherents to deontology consider all acts of killing as objectionable, it is wrong to kill irrespective of existing circumstances. Similar view is held by the moral rights theory, which claims that the killing act is violation of the victim’s rights, for example the right to self-determination. For this reason all kinds of killing acts are rejected. It is only the consequentialism that asserts that certain kinds of killing acts are morally correct. Since the consequentialism focuses on the consequences of an act, even a murder or a manslaughter can be morally right as long as the act involves more good than bad consequences. The conformity between the ethical theories and the preparatory work and practice is complicated to affirm but it is possible to draw the conclusion that it does not exist a division of intentional killing in ethics as it does in law. However, there are arguments in some of the ethical theories that correspond with the legislation. The models of explanation that will be introduced in the essay are developed by philosophers and jurists and in some regards, they confirm the division in murder and manslaughter that exist in Swedish law. For example, McMahan, Jareborg and Von Hirsch explain that an action can be more or less morally objectionable. Particularly, criminal acts that cause a great harm to the victim are serious. This is equivalent to the argument that is presented by the Supreme Court in the judgements.