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"Introduction" [2012] ELECD 560; in Harel, Alon; Hylton, N. Keith (eds), "Research Handbook on the Economics of Criminal Law" (Edward Elgar Publishing, 2012)

Book Title: Research Handbook on the Economics of Criminal Law

Editor(s): Harel, Alon; Hylton, N. Keith

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848443747

Section Title: Introduction

Number of pages: 9

Extract:

Introduction


Economic analysis of criminal law exploits social science methodologies (economics,
behavioral economics, psychology and even sociology) to examine and evaluate the role
of criminal law in society; the nature, and optimal size, of criminal sanctions; and the
doctrines governing criminal law such as actus reus, mens rea and the nature of criminal
law defenses. Further, economic analysis of criminal law is also concerned with issues
that traditionally are not classified as criminal law questions: law enforcement policy,
evidence law and procedural law.
Criminal law sanctions are perceived by law and economics theorists as incentives
for individuals to behave in a way that is socially optimal. In contrast to the retributive
tradition, which views the primary goal of criminal law as the punishment of wrongdoers
for past actions, economic analysis considers the most effective incentives for achieving
socially optimal conditions in the future. Thus, under the economic view of criminal
law, the primary role of criminal sanctions is to influence future behavior (typically by
deterring and sometimes also by incapacitating criminals). Under this view, the punish-
ment is a necessary but unavoidable evil (given its costs to society and to the criminal).
We ought to use criminal law sanctions only when they reduce the costs of anti-social
behavior. These costs include the direct costs of crime as well as the costs of precaution-
ary measures against crime.
This collection is by no means an exhaustive survey aimed at representing all scholarly
traditions of economic analysis of criminal law. However, ...