Jesper Ryberg

Punishment and the Measurement of Severity

Should rape be punished more severely than other types of violent crime? Are white-collar crimes generally punished too leniently in comparison with other sorts of crime? And, if a prior criminal record should count when punishments are meted out, then how much harder should the recidivist be punished compared to a first-time criminal? Such questions concerning how we should respond to crimes of varying gravity occupy much space in public debate. They often prompt heated (though, unfortunately, less often thorough) discussion. Obviously, consideration of the relative severity of punishments also plays an important role, both when criminal laws are formulated by politicians and when punishments are meted out in criminal justice practice. Turning to academic discussion, the picture is no different. It is a fact that questions concerning the relative punishments of crime have attracted increasing attention over the last few decades. As a leading scholar has put it, penal theory has undergone a change in focus from ‘why punish?’ to ‘how much?’.1

Punishment and Public Opinion

What role, if any, should public opinion play when it comes to the question of how society should react to people who have violated the law; that is, what is the moral significance of the view or mood of the public when it comes to sentencing matters? In the following, this question will constitute the focal point; there are, I believe, several reasons for directing attention to this particular issue.

Retributivism and Resources

A traditional overall distinction between the various versions of retributive theories of punishment is that between positive and negative retributivism. This article addresses the question of what positive retributivism – and thus the obligation to punish perpetrators – implies for a society in which the state has many other types of obligation (e.g. obligations to provide its citizens with some degree of health care, education, protection, etc.). Several approaches to this question are considered. It is argued that the resource priority question constitutes a genuine and widely ignored challenge for positive retributivist theories of punishment.

Punishing War Crimes, Genocide, and Crimes against Humanity: Introduction

The establishment of the International Criminal Court (the ICC) as the first permanent legal institution designed to deal with ‘the most serious crimes of concern to the international community’ has in recent years attracted increasing attention among moral philosophers. This is not surprising. The sad fact that war crimes, genocides, and crimes against humanity—constituting the subject-matter jurisdiction of the ICC—are parts of the existing world (dis)order, naturally prompts the question as to how one should handle such crimes once they have occurred. More narrowly, the punitive questions addressing themselves in relation to the ICC are: Is an international punishment institution morally justified? Who should be held accountable? And how should perpetrators be punished for their misdeeds? The purpose of this volume is to contribute to a discussion of these questions. The opening article concerns the ‘‘how much’’ question. The overwhelming gravity of the most atrocious mass crimes obviously causes one to wonder what would constitute the proper punitive response to such crimes. Or, as Michael Davis puts the question: Does the ICC’s jurisdiction consist primarily of crimes too big for criminal justice? Drawing on his fairness-theoretic version of retributivism and a theory of enforcement, Davis seeks to answer this question. In contrast, the ensuing two articles engage in different ways in considerations of who should be held accountable for mass crimes. Operating within the framework of an expressive theory of punishment, Bill Wringe addresses the question as to whether those who are punished for war crimes and those who punish belong to the same community; he also considers the implications with regard to what constitutes a legitimate distribution of punishment. Larry May, for his part, directs attention to the concept of complicity. Taking his point of departure from the fact that one-third of the