Research Handbooks in Law and Economics series
Edited by Alon Harel and Keith N. Hylton
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 punishment 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 precautionary 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, it includes chapters representing...