Posner really is using the “methods” of economics to explain criminal law. There is a market for something, and criminal law can be understood as the coercive methods used to ensure participation in those markets, says Posner. I leave it to the reader to apply that idea to rape and arson.My analysis can be summarized in the following propositions:
1. The major function of criminal law in a capitalist society is to prevent people from bypassing the system of voluntary, compensated exchange-the “market,” explicit or implicit-in situations where, because transaction costs are low, the market is a more efficient method of allocating resources than forced exchange. Market bypassing in such situations is inefficient — in the sense in which economists equate efficiency with wealth maximization — no matter how much utility it may confer on the offender. … (P. 1195, footnote omitted)
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