catallaxy files

catallaxy in technical exile

A theory of harm vs act-based punishment

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A recent disconcerting (at least for me) posting on the benefits of living under tribal rules enforced by warlords included some more emotional than analytical claims on the attractiveness of framing punishments according to harm. This paper (which I have not read & do not vouch for) takes what sounds like an interesting analytical approach to the same question:

Nuno Garoupa and Marie Obidzinski, 2006, The Scope of Punishment: An Economic Theory of Harm-Based vs. Act-Based Sanctions, No 5899, CEPR Discussion Papers from C.E.P.R. Discussion Papers

“The harm caused by many acts is not certain but probabilistic. Current public enforcement of the law combines harm-based sanctions (usually in criminal law) with act-based sanctions (very common in administrative law and regulation). We propose an economic theory of the choice between harm-based and act-based sanctions in public enforcement. The efficiency of act-based versus harm-based sanctions is analyzed and a typology of the determinants is drawn up. In the simple model with risk neutral offenders, both legal policies have the same deterrent level, but act-based sanctions end up punishing more people and the sanctions are lower. However when the assessment of the probability of harm diverges across individuals, the choice between harm-based or act-based sanctions depends on whether it is the enforcer or the average individual who is better informed. Legal policy implications are discussed.”

Written by Admin

November 14, 2006 at 7:55 am

Posted in Uncategorized

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