Counting offenders’ gains? Economic and moral considerations in the determination of criminality

• Published in: European journal of law and economics Vol. 54; no. 3; pp. 475 - 496
• Main Author: Miceli, Thomas J.
• Format: Journal Article
• Language: English
• Published: New York Springer US 01-12-2022; Springer Nature B.V
• Subjects: Commercial Law; Costs; Counting; Crime; Criminal law; Criminality; Economics; Economics and Finance; European Integration; Law and Economics; Law enforcement; Morality; Murders & murder attempts; Offenders; Public Finance; Sanctions; Social values; Social welfare; Society; Economics of crime; Law enforcement; Moral theory of law; K42; Lawmaking; Offenders’ gains; K14
• ISSN: 0929-1261; 1572-9990; 1572-9346
• DOI: 10.1007/s10657-022-09744-7

The question of whether or not offenders’ gains should be counted in social welfare began with Stigler’s original critique of the Becker model, but that debate has been carried out solely within the context of law enforcement while taking the content of law as given. This paper extends the discussion to the question of what acts should be made criminal. It does this by viewing the Becker model of crime through the lens of the Coase–Calabresi–Melamed framework for assigning and protecting legal entitlements in conflicting-use situations. The analysis shows that the economic model cannot uniquely determine criminality, even when some allowance is made for a divergence between private and social values, provided that sanctions are optimally set. The content of law must therefore be imposed exogenously based on moral or other considerations.