Skuld

Sammanfattning: The description and explanation of the determination of mens rea, or fault, in this thesis begins so to speak, at the “shop-floor” of criminal law. The analysis is based on a survey of judgements of the Swedish courts of first instance for the years 1989-1992 in cases involving intentional killing, causing death through recklessness/negligence as well as gross assault, where such offences constituted the principal crimes. The result of this survey is contrasted with the treatment in other sources of law such as the preliminary work for legislation, academic writings, precedents and legislation considered elsewhere in this thesis. The finding of this comparison is that the act-oriented approach of the courts of first instance is different, both practically and theoretically, to the traditional doctrinal solutions. Traditionally, the ascription of fault in criminal law is tantamount to the ascription of intent, recklessness or negligence. The problem of fault hinges upon the distinction between dolus and culpa. The “modern” criminal law doctrine is characterised by the idea that criminal liability must be divided into an objective and a subjective part, or, in other words, the actus reus and the mens rea. This is often called the core of “modern” criminal law. One presupposes —on empirical grounds or with reference to a definite theory of action— that fault determination must begin with an investigation of the action ”as such”, seen purely as a series of bodily movements. Only when it is found that the act “as such” infringes some criminal rules, does one need to examine whether the observed bodily movements are “covered” by the element of dolus or culpa, as a kind of separate “inner” element. I submit that this method of judgement is a blind alley. My main thesis is that a greater degree of justice and legal certainty can be attained if more emphasis is put on the principle of fault. The determination of fault must, however, be objectivised. The determination of criminal liability must therefore begin with the consideration of a meaningful action.