First let us be clear that the concept of law, predates any theories about law. This means that necessarily, theories which try to capture what law is about, necessarily are ad hoc. Yet it is clear that these are projections, the actual dynamic being played out is that of an institution existing, then some philosopher has a ideas about what the law ought to do, and then projects those ideas into the system. Yet it is not clear if this is how lawyers think about the law at all. Lawyers don’t have the veneration for abstract ideas that philosophers have, indeed, if you try to deduce the function of an institution you end up changing what it is.
One of the areas where this seems to be of immense importance is punishment. Philosophers have classified punishments into two broad categories, restorative, and retributive. Restorative punishment is about the law restoring something to a state of affairs before the crime was committed. Retributive is about using enacting violence on the criminals.
Utilitarians are usually attached to the former, restorative justice. They can use the asymmetry of gains and losses to justify why we ought to return something to the person that lost something, especially if they were not expecting to lose it. As such, it seems like it makes sense to restore the person.
A utilitarian can also argue that justice is about incentives. If we set penalty high enough, people will rationally react and not do actions because the expected payoffs of actions will not be worth it. Of course, the idea of non-utilitarian agents or simply risk seeking agents, implies that these penalties may not be sufficient or may be overtly large(respectively).
A utilitarian may in fact, also favor retributive justice. This is perhaps best illustrated with an example. Suppose that we have invented the ‘nice pill’. That is, a pill which works 100% effectively and can turn someone into being nice and no longer will ever commit any crimes. Prima facie, it appears the utilitarian has no reason to punish somebody like this. Once the pill is invented, the utilitarian will simply favor giving them the pill, and then letting them go the next day. Even a mass serial killer or rapist would be let go free.
A utilitarian may respond to this example by saying that they may still favor imprisoning somebody who can do no harm because the people this person has harmed may be inclined to personally be violent to this person, disturbing the monopoly on violence. This is indeed a plausible account, but the probability of personal action needs to be sufficiently strong to overweigh somebody living their life freely.
A word about classical justice before we conclude. It seems to me like justice in the non-utilitarian sense, in fact, changes the weighting after somebody is found guilty. While utilitarianism gives the criminal equal weight before and after they are found guilty, classical justice, gives them equal weight before guilt is established and then reduces the weight of the guilty after guilt is established. In such a way classical justice has something which restorative justice does not. Retributive justice in the classical sense, allows for gradual improvement of society even if people never respond to incentives. By merely eliminating(either by isolating them or by executing) criminals, without regard for their future action, it does not need to every play the game of psychology.
diomavro 