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"Introduction" [2009] ELECD 453; in Garoupa, Nuno (ed), "Criminal Law and Economics" (Edward Elgar Publishing, 2009)

Book Title: Criminal Law and Economics

Editor(s): Garoupa, Nuno

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781847202758

Section Title: Introduction

Number of pages: 4

Extract:

Introduction
Nuno Garoupa


The application of economic analysis to criminal law is based on the
proposition that economic efficiency is useful for examining and designing
rules and institutions. Criminal law is a fundamental area of public law
concerned with certain acts (labeled as criminal) that are subjected to pun-
ishment. There is no simple definition of what a criminal act is, but as far
as our economic analysis goes, there are two elements of a criminal act that
make it distinct. First, a criminal act is intended to do substantial harm.
For example, murder, rape, robbery are considered to be criminal acts.
Tort wrongdoings also cause harm, but the nature of the harm is private,
whereas with crimes the harm is overwhelmingly public. This difference is
reinforced by the fact that a tort suit is brought by the victim (the plaintiff),
whereas criminal prosecution is brought by the state.
A second important characteristic of a criminal act from an economic
perspective is criminal intent or guilty mind (mens rea). There are grada-
tions in criminal intent (which are relevant to guilt and punishment), but
the intent to harm is a necessary part in a typical case involving personal
injury. Whereas civil wrongs are concerned with harm caused by negligent
or reckless behavior, criminal wrongs are necessarily the product of inten-
tional, eventually cruel, behavior.
Criminal acts are subjected to punishment. The person who commits
a crime exposes himself to the risk of punishment. Punishment can take
several forms: a fine ...