Research Handbooks in Law and Economics series
Edited by Alon Harel and Keith N. Hylton
Chapter 2: The Scope of Criminal Law
Murat C. Mungan 1. INTRODUCTION The objective of this chapter is to categorically study common and traditional acts which are punished under criminal law and compare them to others which are not defined as crimes. Studying traditional crimes such as murder, rape, theft and their attempts, and comparing them to acts which are excluded from the scope of criminal law, will allow the determination of conditions under which defining an act as a crime is normatively justifiable. These conditions can be used in future research to evaluate the desirability of extending the scope of criminal law to non-traditional fields of potential regulation. As the title of this book suggests, the analysis will be conducted by making use of economic tools, and in particular by implicitly employing a utilitarian approach to evaluating social welfare. The main function of this chapter is to supply a guide to study the efficiency of the scope of criminal law. Although this chapter provides a structured framework to determine conditions under which there are economic rationales to regulate an act through criminal law, most ideas it contains have been expressed earlier by law and economics scholars. Of particular importance are earlier works by Richard Posner, Steven Shavell, and David Friedman, as well as recent joint works by Roger Bowles, Michael Faure, Nuno Garoupa, and Keith Hylton and Vikramaditya S. Khanna.1 There are also related issues which have been covered by other strands of literature, such as the tort/crime distinction2 and the study of alternative punishment mechanisms.3...
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