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Ogus, Anthony --- "Enforcing regulation: do we need the criminal law?" [2004] ELECD 85; in Sjögren, Hans; Skogh, Göran (eds), "New Perspectives on Economic Crime" (Edward Elgar Publishing, 2004)

Book Title: New Perspectives on Economic Crime

Editor(s): Sjögren, Hans; Skogh, Göran

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781843766452

Section: Chapter 4

Section Title: Enforcing regulation: do we need the criminal law?

Author(s): Ogus, Anthony

Number of pages: 15

Extract:

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. 1­3): 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 ...