Research Plan for the Programme (Revised)

• List of publications (pdf, 36 kb)

1. Introduction

The aim of this text is to inform on the programme Criminal Law Theory - A New Norwegian Approach, currently in process at the Faculty of Law, University of Bergen. The programme is an attempt to move the Norwegian criminal law and criminal law science, forwards in a more theoretical direction than the traditional approach has allowed for. Due to the programme's ambition of engaging the Norwegian criminal law science in the international discussion, the programme is carried out in English. The programme is the result of a generous funding of the Bergen Research Foundation, the Faculty of Law (the University of Bergen) and the University of Bergen.

The programme is currently composed of three post.doc.-positions. The three projects have a common aim; to develop a theoretical framework for the Norwegian criminal law and in particular the criminal law science. This aim is sought reached by means of three post.doc.-projects, each aiming to work out a theoretical framework concerning three core notions in the criminal law, which are an investigation into the structure of the concept of crime (Verbrechenslehre) in Norwegian criminal law, an investigation into the concept of the criminal justice system in light of the current paradigmatic changes that the internationalisation of the criminal law is resulting in, and an investigation into the concept of a fair trial as a framework for understanding of the aims and limits of the criminal procedure. Each of these different projects is further described here. In addition to the different subjects of the respective projects, the programme has also a strong methodological orientation.

2. Background and Motivation of the Programme

The Norwegian, and to a certain extent one could even say Nordic, legal tradition has for a long time been built upon a view of law as a social instrument to be used by the lawmaker in order to steer the society in desired direction. This view has not least connections to the welfare state, but has also much older historical roots. Part of this legal ideology is, simplified, a pragmatic view upon knowledge and, closely connected, a utilitarian and positivistic view upon law. Law is what is useful, and the decision of what is useful is to be made by the democratically elected lawmaker.

This legal ideology has also been the foundation of the Norwegian criminal law science. In fact, the founder of this discipline, Anton Martin Schweigaard, was also a dominating politician. In his youth he travelled in Europe, studying philosophy, and developed a deep disregard for the contemporary German philosophy, especially for the Idealism of Kant and Hegel. He turned then towards the empiricism and utilitarianism of English philosophy and from that starting point he very much founded the Norwegian criminal law science. His ideas have from then on continued to make impact. Such impact was not least made on the leading figure of the 20th century, Johs. Andenæs, who very much re-stated Schweigaard's pragmatic view through adherence to contemporary philosophical ideas like the basic claims of the logical positivism and moral emotivisism (especially the Dane Alf Ross made impact on him). A common strain through the Norwegian criminal law science, seen apart from first and foremost the intermezzo of Francis Hagerup's writings on criminal law, is the rejection of theoretical analysis as "constructions without merits", as Andenæs once stated it.
All the mentioned philosophical and wissenschaftstheoretische viewpoints do have their merits. However, they are also, each in their own way, deeply problematic. Not least does these ideas become problematic as they turn, as they seem to do in the Norwegian criminal law science, towards a "pragmatic-pragmatic" attitude, where one accept the pragmatic starting points as "self-evident" and not even worth theoretical investigation in themselves. Only to a diminishing degree can one find open reflection and discussion on the tasks of the criminal law science, the concept of knowledge etc., among the leading contemporary Norwegian criminal law theorists. This situation can be said to be threatening to the scientific status of the criminal law science itself as it so to speak carries the risk for resulting in an unconcious internal erosion of the criminal law science as a systematic and coherent field of knowledge. It also deprives the discussions on the criminal law of enlightening perspectives.

The programme Criminal Law Theory - A New Norwegian Approach, starts, as its name give a clear indication of, from quite different starting points. In short, the programme is based on the view that both theoretical and normative analyses are fruitful and necessary parts of an adequate understanding of the criminal law, its content and its limits. It is seen as an important scientific task not just to contribute to the construction and maintenance of the criminal law system, but to develop deeper understanding and perspectives of the criminal law. The programme thereby turns not only towards other criminal law traditions like especially the German and the Finnish traditions, but also towards other fields of knowledge, like philosophy, sociology and psychology, for inspiration and enlightenment.

As the deeper foundation of this view is one of the central tasks of the programme itself (see further below), this foundation is not to be described further here. However, the main reasons, which together could be described as the programme's ideological foundation, to develop a theoretical approach to the criminal law in the criminal law science, are to be shortly described.

First of all, the programme is motivated by a desire to supply the criminal law science with more adequate foundational premises. An adequate theoretical grounding is an important starting point in order to develop more systematic investigations into the different parts of the criminal law. The independent goal of constituting a more theoretical attitude or approach to the criminal law is further in itself an important answer to the question of why one should carry out this programme, as this is fundamental for the scientific status of the criminal law science. Without such a theoretical framework, the criminal law science will not be able to carry outs its tasks of interpreting and systematising the law, and discussion the law in general, in a scientific satisfactory manner. As such, the programme is motivated by a future improvement of the quality of the Norwegian and Nordic criminal law science more generally. The constitution of a more scientific character of the criminal law science is not least a very important task in light of the worrisome development of the criminal law. It is a well known fact that Nordic criminal law is, at least from our perspective, rational and humane. This view is an adequate position in a democratic Rechtsstaat securing the autonomy of the individual. This tradition is, however, seriously threatened by strong desires, both on national and international levels, for a higher level of repression and functional efficiency, resulting in increasing social control and exclusion. It is, in light of this development, of fundamental importance to maintain the scientific independence of the criminal law science and protect it from becoming some sort of blind contributor to this development, as the pragmatic tradition risks becoming. This independence is secured, first, only by serious reflections on the character of science itself. Further, here, as elsewhere, we have to rely on the quality of our arguments, which, in turn, is dependent on our ability to produce coherent and well-proved arguments. The pragmatic approach is not capable of dealing with this challenge. A further motivation is to access Norwegian criminal law scientists in a more qualified way to the international discussions. The pragmatic tradition has lead to a not insignificant dimension of isolation, solipsism and self-sufficiency in the Norwegian criminal law science. This not only creates a tension with the fundamental idea of the sciences as an audience not narrowed in to the nation state and its interest, or similar, but open towards a universal audience, or to speak in Kantian terms, the court of reason. Also, the survival of our tradition seems to a certain part dependent on our ability to participate in the international discussions.

There is, in sum, a deeper and more general moral motivation of the programme. Punishment is the most serious form of state power. It is the only part where the state intends to inflict harm on its citizens. In light of this, it is necessary to continue to investigate into the practices of criminal law in order to disclose bad arguments and ideas and thereby securing the moral content of criminal law. As the legal sciences are influential in the development of criminal law, its content and independence is of great importance. This calls for a high level of reflection and self-reflection in the criminal law science. Even though science in many parts should aim at improving our living conditions, we must at the same time not lose sight of the moral questions which answers make us, to speak once more in Kantian terms, worthy of our happiness. A deep, seeking attitude to our own social-political practises is necessary in order to accomplish that, not least in criminal law which in many ways represents the frontiers of our political morality. Only a theoretical approach to the criminal law is capable of keeping the field of criminal law open to such reflection.

3. Concrete Aims of the Programme

Following the comments of the motivation of the programme, the more concrete aims of the programme can be described as the following

It shall

- result in three individual works, in English, capable of contributing to the existing international criminal law literature
- develop a broader discussion on the foundation, content and development of the criminal law in Norway, both within the criminal law science and in the public sphere more generally
- contribute to a higher level of methodological reflection and discussion within the Norwegian criminal law science.
- develop, through different activities like workshops, an international network for criminal law researchers at the University of Bergen