Title

The Theory of Penalties and the Economics of Criminal Law

Authors

Keith N. Hylton, Boston University School of LawFollow

Author granted license

Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International

Document Type

Article

Publication Date

2005

ISSN

1555-5879

Publisher

De Gruyter Publishing House

Language

en-US

Abstract

This paper presents a model of penalties that reconciles the conflicting accounts optimal punishment by Becker, who argued penalties should internalize social costs, and Posner, who suggested penalties should completely deter offenses. The model delivers specific recommendations as to when penalties should be set to internalize social costs and when they should be set to completely deter offensive conduct. I use the model to generate a positive account of the function and scope of criminal law doctrines, such as intent, necessity, and rules governing the distinction between torts and crimes. The model is also consistent with the history of criminal penalties set out by Adam Smith.

Comments

Updated with published version of paper on 9/25/22

Working paper available on SSRN

Recommended Citation

Keith N. Hylton, The Theory of Penalties and the Economics of Criminal Law , in 1 Review of Law and Economics 175 (2005).
Available at: https://scholarship.law.bu.edu/faculty_scholarship/910