Knut Olivecrona and his ”Om dödsstraffet”. - Figuras

show mercy and even substitute goodness for justice. Yet this free king should
refrain from using his power to pardon so that he in reality abolishes the law.
Such a course of action would lead to disrespect for the law, a much greater evil
than executions. A personal note might be detected in his comments on the
judge. He is the servant of the law and not its master and he bound by duty,
conscience and oath. His personal views, wishes or conscience are, however, not
to influence his decision. 1
The actions and views of Naumann spurred Olivecrona to question the
abolitionistic conviction of Naumann and in a communication to Naumann refer
to him as a supporter of the penalty of death. Naumann defended both his
convictions and his actions. The day abolition was reached would for him be a
day of great celebration. It, however, had to arrive in a constitutionally correct
way, through legislation. Until that day death would, according to the law, be
the normal punishment for murder and the judge could only arrive to another
sentence when extenuating circumstances exist. His oath and his conscience
bind him to the law. As an advisor to the king it’s his duty not to advise the king
to abandon his royal obligations and debase the law by using his prerogative to
pardon so that he in reality abolishes the penalty of death without the sanction of
the parliament.2
The judge and the law – the conflict is evident. On one side stood Olivecrona
and some other Swedish lawyers, on the other probably most of the high and
established men of the law, with his friend and colleague Christian Naumann as
one of the most pronounced. Is the judge only the servant of the law with a duty
to apply it as exactly as possible or is the judge when given a latitude also given
a limited freedom, inside that latitude, to, for example, follow his conscience
even when it's not readily possible to draw precisely the same conclusions from
the wording of the law? Somewhat roughly put Olivecrona might have asked:
’Am I a person or a mouthpiece?’ while Naumann almost stated ’I'm not the lord
of the law. I'm its humble servant.’ This conflict around the possibility for an
official to let his personal views be visible or to let his conscience influence his
actions was not unique for the judiciary. From the clerical area we at the same
period of time find similar problems concerning the matrimony of those
divorced.3 Starting in the perspective held by Naumann, and many others, the
law rises above both conscience and the king and his prerogative, and it rules.
Thus the idea of abolition de facto demonstrates a use of clemency neither just
nor legal. Pardon wasn't to be given in such a way that the law in reality is
eliminated. Olivecrona held a quite different view. Abolition de facto or
1 Christian Naumann: U. P. M. Oscar II vol 100 BFA. The ideas on how to interpretate the
statute on murder were also to be propagated in Nya Dagligt Allehanda 31/5 1882, shortly
before another sensitive decision, ending with two executions.
2 Letter from Christian Naumann to Knut Olivecrona 29/8 1879 G 197 k:3 UUB.
3 Cf Janson 1964 p 64 sq, 145 sqq.
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