The judge and the legislator stand in different positions and look in different directions: one to the past, the other to the future. The justification of what the judge does,
qua judge, sounds like the retributive view [of punishment]; the justification of what the (ideal) legislator does,
qua legislator, sounds like the utilitarian view. . . . One’s initial confusion disappears once one sees that these views apply to persons holding different offices with different duties, and situated differently with respect to the system of rules that make up the criminal law.
#