Seek Efficient Punishment

So far, many disciplines such as criminology, criminal law and sociology, politics, philosophy have thoroughly analyzed the problems of crimes, and the scientific achievements they acquired have provided us lots of enlightening strategical guidelines and knowledge in coping with the criminal problems. However, the existing theories, to a certain extent, look incompetent and weak in the fighting against crimes that we fail to deal with or we have to invest too much social resources to control them. As a matter of fact, the existing theories cannot contribute any more to deep understanding of crimes or to controlling and lessening crimes effectively.The limitations of theories may be attributed to the weakness of the methodologies. The history of natural and social sciences shows that the methodologies put confinement upon the vision of disciplines and determine what conclusions they may derive. So the key is to renew its methodology for a discipline that attempts to get theoretical innovation. Richard A. Posner, a professor of Law School of Chicago University and a judge of the US Federation Appeals Court, think that the traditional law science takes the philosophical approach and comes to be doctrinairism. Except further refining its conceptual and logical systems, the law science cannot undergo any more innovation. In order to have breakthrough in the present theoretical frame and drive the law science to develop more deeply and extensively, we should take other approaches. Fortunately we have found such an approach, that is law and economics. In half a century from its birth to now, law and economics has greatly widened the vision of law science and bring it to a new world.Now law and economics has prevailed among the western world, especially in the United States and become one of the most influential legal disciplines. However, although the law circle of China has been affected by its influence, we have still been at the stage of introducing, translating and commenting on the literatures of law and economics, it is rare for us to apply adeptly the economic approach to analyze the legal problems in China. Now I choose the economic analysis of crime and punishment as my topic of doctoral dissertation, attempting to initiate the researches on law and economics, especially the economics of criminal law, in China.This paper is composed of seven parts.The first part introduces and reviews the discipline of law and economics generally, mainly the economics of crime and punishment. Although most people think that modern law and economics originated from the publication of the treatise of The Problem of Social Cost, written by Ronald H. Coase, the famous economist in the world, the approach of economic analysis is of long standing. The revival of law and economics today is because of the shortage of law science itself, which can be remedied by economics. Law and economics can help us to better understand how law is operating in practice and if it has arrived at the anticipated objectives. Furthermore it can help us to legislate and enforce more effectively law and regulations.The second part brings out a basic frame for the economic analysis of crime, punishment and criminal law. I think that crimes are not just emotional and irrational actions, but rational occupations that criminals undertake. The punishment of crimes imposed by states is derived by the benefit and restricted by the cost. The evolution of penalty is ruled by the logic of economy. Moreover, the criminal law is framed fundamentally under the principle of efficiency.The third part is concerned about economic analysis of crimes generally, attempting to reveal the economic essence of crimes, the process of criminals making choices to commit crimes and the interactions between crimes and punishment. From the viewpoint of economics, crime is an action inflicting enormous external cost upon other people and/or society. Secondly, crime is an action destroying the socially accepted trade structure. Besides the two mentioned points, I think that crime is an action of rent-seeking. Regarding the process of criminal choice, I think that opportunity costs determine whether one will choose to commit a crime, and the cost of punishment determines whether one will actually to commit a crime.The forth part mainly analyzes some special crimes, such as property crimes, crimes of corruption, violent crimes and negligent crimes. I think all these different crimes have the same essence of, that is, rent-seeking.The fifth part is about economic analysis of punishment. First, I discuss some reasons to distinguish the criminal law and the tort law in their functions. Next, I put forward a model for optimal punishment. Finally, I discuss the relations between optimal punishment and some other elements.The sixth part especially analyzes some major kinds of penalty, such as capital punishment, fine and imprisonment. All these punishments have their merits and weaknesses, the key is how to apply them properly.In the final part, I bring out a conceptual frame about non-pubic enforcement. Although non-pubic enforcement is not accepted socially and generally today, I believe it will become tendency of enforcement in the future.