Harel, Alon --- "Economic Analysis of Criminal Law: A Survey" [2012] ELECD 561; 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: Chapter 1

Section Title: Economic Analysis of Criminal Law: A Survey

Author(s): Harel, Alon

Number of pages: 41

Extract:

1 Economic analysis of criminal law: a survey
Alon Harel


I. HISTORICAL AND PHILOSOPHICAL BACKGROUND

1. 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 crim-
inal 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 deter-
ring 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 ...