Comparative Criminal Law: An Economic Perspective

Abstract

Abstract This paper develops an economic model to explain how societies make decisions about criminal law based on efficiency. The scope of criminal law depends on activities considered harmless or harmful. Besides different scope of criminal law, different societies can also have different punishments for certain kinds of crimes. This divergence stems from the relative importance of factors that societies consider in optimizing social loss from criminal activities. These factors are: the harmfulness of the crime, retributive or regretful emotions towards offenders or what is called “humanity of punishment” and the deterrent effect of certain punishments. Different attitudes towards these aspects lead to differences in criminal law. Once sources of divergence have been identified, the key question is who decides the above features? The answer depends crucially on the political constitution of the society. In authoritarian systems, the central planner formulates the criminal law; in democratic systems “public opinion” can have different degrees of influence. The most common style in forming criminal justice policies in advanced democracies is “insulated delegation” or “professionalization of punishment,” in the hands of the academic elite.