Comments on Stephen Marks, 'Utility and Community: Musings on the Tort-Crime

Abstract

Stephen Marks provides an interesting exploration of the relation between tort and crime. He tackles a number of difficult issues and raises a variety of interesting questions. Professor Marks works within the social utilitarian tradition as he attempts to use a social utility formulation both to identify the acts a society designates as crimes and to determine the optimal enforcement of the criminal law, specifically, the probability and severity of the punishment society attaches to each crime. Marks's foundational observation is that the categorization decision requires a social utility function that includes the utility of criminal acts while the enforcement decision should exclude the utility generated by the criminal act. The latter point has a substantial history. It was the basis for George J. Stigler's fundamental criticism of the social welfare function used by Gary S. Becker in his seminal article on the economics of crime and punishment. As Marks argues, "if both criminalization and enforcement decisions have social utilitarian explanations then these explanations must use different social utility functions."'