Utilitarian vs Retributive

David has a rather impressive post on theory of punishment. The part that best captures my own view on the subject is this excerpt,

On the other hand, it also provides an out for politically or economically-powerful individuals to escape liability for even the most horrific of crimes, if they claim that society would suffer more by their removal than it would gain through punishment. Because the idea of "social gain" is always indeterminate, punishment becomes solely the province of the poor and marginalized, and even can become a collateral weapon against social dissidents who are labeled "undesirable". This a just a sampling -- the literature in this field is rich and dense, and won't be resolved in the space of a blog post.

Outside the academy, though, I suspect most of us blend together elements of both schools. We want our mechanisms of punishment to achieve social goals -- make us safer, rehabilitate wrongdoers, recompense victims -- while still staying at least tied to some rational conception of culpability.

The basic reason that i do not agree with the strong utilitarian view is that- to me - the only law, rule or custom, is that which is enforced. The reasoning behind this is that without enforcement a "law" even if passed by a duly elected legislature has no real effect on the lives of the populace and does not serve, as a law is meant to do, as a restraint on behavior. My conception of the law is that it is meant as a way to constrain behavior and to take civilization out of a violent and unstable state of nature. If we do not enforce the a law in some way what is the point of the law? It would constrain nothing, have no impact.

The obvious counter is that things passed but not enforced do exist but as "bad law" or dormant law. I disagree with this because it does not meet the basic qualification of impacting behavior. If it becomes enforced later in time then it is law but while it goes unenforced it is nonexistant. The ability of utilitarians to create situations where "laws" will always go enforced because they will lack deterrence that outweighs social harm makes the theory rather unappealing to me. such a theory runs counter to the basic idea that no man is above the law.

I think the best example of this is the current fight to prosecute certain members of the past administration for torture and various other crimes. If these people are never punished for their actions did they really commit crimes? im hard pressed to say yes. By allowing high officials to escape punishment we effectively write new law that says that it is better to "look to the future" instead of investigate past political abuses. This is a policy that supported the pardoning of nixon, pardoning of iran contra associates, and the non-investigation of the Bush Admin. These people commit crimes and then fall back on the utilitarian justification that their punishment offsets the benefit of preventing future abuses.

It also seems to me that utilitarians should have a hard time in justifying punishment for crimes against humanity given the common recurrence of such crimes across the historical arc. Punishing one party for committing genocide has not ever deterred others from pursuing such a course. In fact punishment for genocide can get in the way of creating peace as is the case with the ICC subpoena for the leader of Sudan. Yet we cannot say that people who are clearly responsible for the murder of thousands or millions of people do not deserve to be punished? That runs counter to any idea of intrinsic human rights.