New Horizons in Law and Economics series
Edited by Hans Sjögren and Göran Skogh
Chapter 4: Enforcing regulation: do we need the criminal law?
Anthony Ogus INTRODUCTION The aim of this chapter is to review the position of criminal law in the enforcement of regulation. This requires me, first, to clarify the scope of the study and to explain why, in terms of current policy concerns, it is an important topic. In the social sciences, ‘regulation’ has been given a bewildering variety of meanings (Mitnick, 1980). To lawyers, however, it has more precise connotations (Ogus, 1994, pp. 1–3): it is that area of public law by which the state and its agents seek to induce individuals and firms to outcomes which, in the absence of such inducements, they would not freely reach. For the purpose of this chapter, I narrow the field further to ‘social regulation’, the economic justification for which is to be located in externalities, information asymmetry or coordination costs. In practice this covers mainly health and safety regulation, financial regulation, environmental regulation and professional regulation. Arriving at adequate generalizations applicable to the enforcement of regulation, so defined, in a variety of jurisdictions is problematical. As we shall soon see, there are different enforcement regimes (criminal, civil and administrative) but the content of each and their interrelationship vary significantly from country to country and from one legal culture to another. Further, the range of human activity governed by these institutions is enormous, from parking a vehicle in a street to operating a nuclear energy plant. Nor should we overlook questions of mental attitude: it is far from clear that the institutional...
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