Edited by Alon Harel and Keith N. Hylton
Chapter 1: Economic Analysis of Criminal Law: A Survey
Alon Harel I. 1. HISTORICAL AND PHILOSOPHICAL BACKGROUND Introduction Economic analysis of criminal law exploits social science methodologies (economics, behavioral economics, psychology and even sociology) to examine the role of criminal law in society, the nature of criminal sanctions and the optimal size of those sanctions. Furthermore, given the nature of the relevant methodologies, economic analysis of criminal law is bound also to deal with issues that traditionally are not classified as criminal law questions: enforcement policy and issues involving 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 behavior, economic analysis considers the most effective incentives for achieving socially optimal behavior 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 minimize the use of punishment and use it only when it limits the scope of anti-social behavior. The classical criminal law doctrine is based on retributive values. The traditional legal theorist believes that the criminal law sanction ought to be imposed only on the guilty and that its severity ought to reflect the degree...
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