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Dnes, Antony --- "Criminal Law and Torts" [2009] ELECD 457; in Garoupa, Nuno (ed), "Criminal Law and Economics" (Edward Elgar Publishing, 2009)

Book Title: Criminal Law and Economics

Editor(s): Garoupa, Nuno

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781847202758

Section: Chapter 4

Section Title: Criminal Law and Torts

Author(s): Dnes, Antony

Number of pages: 14

Extract:

4 Criminal law and torts
Antony Dnes


1. Introduction
Economic analysis examines crime as a special case of rational maximiz-
ing behavior, in which certain harmful acts may be deterred through the
careful construction of expected penalties relative to the gains from crime.
Of considerable interest is the source of separate criminal law, since deter-
rence could often be created by an obligation to pay ex-post damages ­in
either contract, or tort ­ that is, deterrence may be said to be a charac-
teristic of several areas of law where control of an externality is at stake.
Both tort law and criminal law may be described as minimizing social cost.
Just why do we need to use the coercive power of the state to augment
penalties in some areas of behavior? Of related interest is the observation
that criminal law moves with the times, and to some extent, with cultures
(Friedman, 2007). There are at once great similarities, through history and
across civilizations, with a near universal criminalization of murder, theft
and violence against the person, and observable differences, such as the
harsher treatment of drug offenses in some countries, or the prosecution
of some nationals for certain offenses carried out abroad. Just what does
criminal justice do?
In considering the particular distinguishing characteristics of criminal
law, we need carefully to separate normative economic analysis from posi-
tivistic observations. Much of the literature, such as it is, focuses on good
reasons for separating criminal law (Posner, 1985; Shavell 1985 and ...