The Chronicles of a Capitalist Lawyer

For a couple of weeks, we have been bombarded by news on the use — or misuse — of religion as a part of Jakarta's gubernatorial election campaign. Even the Islamic Council of Ulema's (MUI) Jakarta branch joined the fray by issuing a fatwa that people have the obligation to choose their leaders based on their religion.

This, of course, attracts a lot of comments. Some view such attempt as stupid or hypocrite, others view it as acceptable and necessary in accordance with their religious practice.

From political and economics point of view, using this strategy seems rational. Like it or not, this is a sensitive issue where opinions might be fairly distributed between the pros and cons. If you can use it to gain more voters from certain side, why not?

But, from legal point of view, should we prohibit the use of this strategy? I don't think so. Not only that it would be a very paternalistic policy, there are hundreds of other reasons that can be used by a candidate to attack other candidates. Why should we pay more attention to religion?

I don't think it would be efficient for governmental authorities to prohibit issues that can be discussed and used in a political campaign. It would be costly and we would have difficulties in justifying the reasons. Do we have a rational reason to do so or is it merely a problem of taste?

If we can say to other people that they should not vote for stupid people, why couldn't we do the same for religion?

What I think that is most important in a political campaign is candidates must speak the truth and only the truth. This is to ensure that there is no misleading information in the campaign and the democratic process can work smoothly.

This means that political candidates can say and encourage people to vote solely based on religion or ideology or ethnicity. That would be acceptable as long as they don't commit fraud or hide material information. An example: Spreading bad rumors about the other candidate who has a different religion or ideology that he is planning to destroy the voters once elected without any solid evidence.

I understand that looking at such a shallow political campaign might shock some of us. How could people blatantly accept that kind of campaign? But this is a part of democracy and freedom of speech. It is an inherent risk in a society whose people are not mature enough to focus on political programs instead of trivial things.

But don't be disappointed too much, because we can still find this joke even in a country like United States. I know that some people there — albeit minority — believe that Barack Obama is actually an Islamic agent with a mission to destroy the United States.

While the rumor is of course laughable and wrong, it shows that religious sentiments still hold certain power in a first world country. Honestly speaking, I don’t think that United States citizens would be ready to accept a Muslim as their president.

In a case like this, my recommendation would always be: fight idea with idea. If some political candidates say that religious aspect should be considered as the decisive factor in voting, other candidates must show that such idea is bad and encourage voters to do otherwise.

Later on, the market of information will eventually determine the winner of the election. And from such information we can also see whether Indonesian people still take religion issues seriously or not.

If we still want to punish these political candidates, punish those who spread false information because they might cause baseless distortion in the market which would create losses to all of us. However, how they want to shape the language of their own campaign, including choosing the ideas to discuss, should not be our concern.

The recent Olympics badminton scandal is very interesting. From a legal perspective, the answer is quite clear. The players deliberately tried to lose against each other, so they breached the Olympic rule of doing their best in each competition. Case closed.

But surely we can’t stop there. Why should we have that kind of rule in the first place? Why should we prohibit the players from choosing a rational strategy when the competition rules allow that possibility?

Is this all about sportsmanship? Like in that various martial arts stories where the fighters are always trying to fight fair and square in order to gain the sweetest victory? Or is it something else?

As a spectator, I don’t mind if the players deliberately tried to lose in order to gain victory later. The problem is, it seems that I am in the minority group. Like it or not, the idea that sport competitions should be held in accordance with the highest moral principles still lives on until today.

And the case is even stronger for the Olympic which serves as the ultimate symbol of fair competition. People want their symbol to be incorruptible. If even the players in such important event cannot meet such requirement, where else should the people look for virtue?

In this case, the rational act of the players seem to be irrational. While it is true that each player has the right incentive to win the game (including trying to lose first), they seem to forget that they are not alone in the competition.

Olympic is a big business. Sure people need a huge symbol of fairness and virtue but they would be crazy if they conduct the Olympic solely for such reason. In other words, the Olympic is conducted in that way because it is profitable for the organizer — or at least they think that it would be profitable for them.

Thus, images hold a very important position in the competition. If the organizer can’t maintain the image that the game is fair and all the players are doing their best, it will be difficult to maintain the credibility of the competition and it would affect the number of viewers.

The players — and their coaches — should put this in mind when they choose their strategy. What I see now is a foolish act, not because it was irrational, but because it was executed poorly.

Had these players realize the reality of the game and how people perceive them, they might try to lose the game elegantly. Unfortunately, trying to lose is a little bit too difficult for them.

I read in the news that people were already booing them and the referee has warned the players that if they continued to play like that, they might be disqualified. So yes, the way they executed their plan was too obvious.

So, the punishment is well deserved. Not because they fail to maintain sportsmanship, but rather because they fail to entertain the spectators and risk the overall image of the Olympic game.

Another interesting thing is the fact that some of the coaches asked the Olympic organizer to change the rule of the game to prevent such cases happening again in the future.

If the rule does not permit any possibility to pick your future competitor, the players might fully engage their true power from the beginning since nothing could be done anyway.

But once they see a slight chance to choose their future competitor, their strategy significantly changes. The question is: Is it the mistake of the organizer for making a rule that induce the players and coaches to pick such strategy?

I don’t think so. The rule of the game is clear: How players cope with the rule is their own business and if they are really smart, they should choose a strategy that will benefit them the most while minimizing the cost.

Clearly the players fail to study the costs and benefits of their action and they have to pay dearly for that. I can only hope that this could serve a good lesson for them, especially the Indonesian contingent. Better luck next time.

This is an era where people can spread information anonymously and are able to gain trust from a lot of other people. The million dollar question is: Is this a good thing or a bad thing?

I know that some people do not like the fact that these anonymous informants can get many viewers in such an easy way and fear that these viewers will be fooled by distribution of false information. This, however, is an exaggeration.

Like it or not, having anonymous informants is a normal thing in the modern market of information, especially with our telecommunication technological advances.

And in such market, there will be high quality information and low quality information. Trying to have a paternalistic central body to analyze and differentiate each type of information would be very costly. So it would be better to let the people themselves decide whether the information is worth to know or not.

Furthermore, it would also be too late to say that anonymous informants are unreliable and should be censored at this stage. Similar to anything that falls under the category of free speech, censorship would always be costly and difficult to do (unless you are the government of China).

Rather than spending our times thinking how to prevent these anonymous informants from getting more and more viewers, we should do what every rational man would do: ignore them.

Why? It’s simple. If the unreliable information hurts the interest of certain people or entity, they would be the ones who naturally have the biggest incentive to fight back and spend their resources for such fight. We’ve seen these cases happen in the real world.

There would be no need for bystanders like us to join the fight and spend our precious time and resources to deal with informants that we think are unreliable in the first place.

Or might it be that you are enraged by the fact that there are so many foolish people who blatantly believe or follow what these anonymous informants say? And as a result, you want to declare a war on the informants?

Better think about it again. First of all, you don’t really know whether these so called “foolish” people really think that they are getting the truth. They might just see it as a form of entertainment. Everyone loves gossips and conspiracy theories after all.

Second, unless the informants are trying to persuade their readers to conduct a bloody revolution, why we should care about the mumbo jumbo that other people believe? As I said, those who are being harmed by the false information will move by their own, quicker than we can ever thought.

Another thing that makes me believe that these anonymous “informants” (especially those from social media) do not give us reliable information is because no one is truly anonymous in this modern age.

Anonymity is usually used when you want to talk about some sensitive issues and you are concerned about your safety, although in certain case it is used simply because you want to talk anything without any responsibility. Thus, such anonymity would be used carefully.

But I don’t see this carefulness coming from the informants that we often see and hear in the social media. They just share information as they wish through a media that can be easily accessed by other people to know their whereabouts.

If the information that they distribute is very sensitive and true, and all of such information is related to powerful people, these informants must already hit the coffin long time ago. But apparently, that’s not the case. Not even any serious report to the police for defamation. In other words, the information should be unreliable and they exist just for fun.

Word of advice: don’t think too much about these informants. As for the people who think that these informants bring the truth, well, there is still a good side of it.

If you are an employer, you would now have a good arsenal to test new employee. Ask them whether they believe what these informants say and let their answer help you to decide whether they are qualified for the job or not.

Look, you just get a cheap IQ test out of it. So, who says that having these informants are bad for the society?

We all know the familiar phrase “may the best candidate win” in an election process. Obviously, we really hope that we can get the best leader through such process. Yet in reality, we often fall into a situation where the entire candidates suck and we are forced to vote for the best among the worst, which is still bad.

Have you ever wondered why most of the time, getting the best from the bests as our leader is very difficult? Is it actually possible for us to use a meritocratic system where leaders are chosen solely based on their capabilities? The answer might be disappointing.

The main problem? We tend to forget that in the modern world, leadership is neither simply a right nor a privilege; it is a job with certain responsibilities. There are costs and benefits involved. Thus, the law of supply and demand will govern the process.

Those who want to be leaders do not necessarily have the needed capabilities. Most of them, if not all, are people who believe that the overall benefits of being a leader are higher than the total costs.

Of course, the hopeful leaders might have been wrong in projecting their victory. We’ve seen cases where unelected officials went berserk due to the stress caused by their failure. But that does not matter.

The most important thing is that when they chose the path of leadership in the first place, they were convinced that it would be good for them. Whether it would also be good for other people is a bonus. It would only matter when there is a strong connection between the leader’s performance and his future electability or the security of his current position.

This is the primary cause for our difficulties in finding the best leaders. We can’t simply assume that these leaders would be purely motivated by altruism or that they will serve the people just for the sake of being a good leader.

Even worse, the problem would be amplified when the requirements of getting as many votes as possible are significantly different with the requirements for becoming a leader itself. The differences may vary around the world but they do exist.

That would mean that each candidate will need two different set of skills: the skills to be elected and the skills to lead. In practice, these two set of skills are different. Thus, we see people who become politicians and those who become technocrats.

Not everyone, unfortunately, is blessed with both skills. There are many situations which may affect the possibility of a candidate to become a leader and give one set of skills a better advantage over the other.

Track record of leadership is one example. No one knows exactly how a person can be an effective leader without first knowing his track record of past performances. However, in a situation where the track record is unclear or hard to know, the skills for attracting voters would be more important than the skills to lead.

In countries where information about candidates is not widely distributed - unless you have a lot of money - the costs for candidates with good leadership skills but less vote gaining skills would be too high.

In case these people - who are actually fit to be the best leaders- believe that joining the election race does not worth their time because they don’t have enough skills to be elected, we are doomed.

With less good people, the market of leaders will be oversupplied with bad candidates who know how to attract votes. While at first people might vote for them, sooner or later people will know their leaders true quality.

The problem is, if these bad leaders create a cartel to maintain their position - since they are in power anyway - the chances of having new good candidates would decrease. This will trigger more apathy from rational voters to participate in the election and we will end up in a vicious circle until God knows when.

Of course, I do not want to write an entirely gloomy article. A single tiebreaker can actually end the above vicious circle. The case of the latest regional election in Jakarta might be a great example.

I believe that the existence of independent candidates who have some vote attracting skills - though have no chances of winning - opened the possibilities for Jakarta politicians to break up their cartel and pursue a chance to win the election for themselves, which give opportunities to the citizens to choose other candidates.

At this stage, I do not know whether the election result would be beneficial for the citizens, but I am happy to see that there is a practical solution to break the vicious circle without having to conduct a revolution.

I always want to do a survey on how Indonesian people perceive the implementation of Shari’a as a part of positive laws. Many surveys have been done on this issue. The problem is, either the questions are too general or only deal with the “famous” provisions of Islamic law.

By general, I mean that the question only asks whether a person accepts the implementation of Shari’a without knowing whether he would agree entirely with any kind of implementation or only to a certain degree.

By famous, I mean that the question only deals with classical provisions that are well known by many people such as hand cutting for thievery, stoning for adultery, etc.

I believe that this kind of survey cannot be used to know precisely whether the respondent fully understand his answer, that he gives his responses based on a good understanding of Shari’a and not just because he doesn’t want to be considered as a religious blasphemer.

In this article, I will provide certain guidelines of questions that can be considered when we are doing the above survey. First, do not start by asking the general question. Rather the survey must start with questions on specific provisions of Islamic law without any reference that such provision of law is a part of Islamic law.

The first set of questions should deal with slavery issues. Here we test whether the respondent would agree with the legality of slavery and whether they perceive slavery as a bad thing. Classical Islamic law permits slavery for more than a thousand of years. If people disagree with such notion, their belief on the supremacy of Islamic law should be questionable.

The second set of questions deal with economic issues. In this part we ask the respondents on whether they would agree to lend money to other people without any interest at all time, even for business purposes. And then we ask them whether they perceive bank interest as something bad, or just business as usual.

Classical Islamic laws stipulate that bank interest should be prohibited because it resembles "riba," that the sin of charging "riba" is equal to killing a person or having incest relationship with your own mother. Interestingly, for such type of sin, no criminal punishment is available (making me to believe that in terms of economic matters, Islamic law is pro capitalism).

Third, we deal with family law issues. The questions should be, among others, whether they agree that divorce rights should stay exclusively with the husband and that courts should not interfere at all (so husbands can divorce their wives as they wish) and whether husbands can do polygamy without requiring any approval from his first wife.

Here I primarily want to see how women respondents will react. The above provisions are parts of classical Islamic law which is not even implemented under Indonesian Islamic law. Yet, if we are staying with the tradition we should go with the old ones, unless you want to say that Islamic law is not eternal and its provisions can be changed in accordance with the relevant situation.

Fourth, we go with the criminal law issues, we can ask the usual famous questions with some twists. We should ask whether respondents would agree that any murderer can be released from punishment as long as he pay a decent amount of compensation to the victim’s family.

If they say yes, we can ask them whether they would agree that a thief can also be forgiven if he pay additional compensation to his victims along with returning the stolen goods. Such concept does not exist in classical Islamic law.

What I want to test here is whether people would agree that Islamic criminal law is good for the rich but not for the poor since the poor has no money to pay their way out from punishment, whether they will perceive this as a fair law or not.

Finally, we ask them about procedural law issues. Would they agree that a woman’s value of testimony will only be considered half of a man? Would they agree that non Muslims cannot testify in a case and if there are no Muslim witnesses for an important case, what would they do?

Would they agree that any witnesses must satisfy the strict requirement of Islamic law, meaning that such witness is close to a perfect human being, e.g. consistently maintain 5 times prayer a day and any other type of worshiping activities, never lie, maintain body cleanliness all the time, nice to other people, etc.

All these questions test the respondents believe on whether the above requirements (which no longer work in actual practice due to their inefficiencies) should be accepted as a part of positive law.

The final goal of these questions is to test the respondents consistency, especially when we close the survey with this question: would you agree that Indonesia should implement Islamic law in entirety because it is God’s law?

If they still say yes in the end, we should see whether they accept everything from the beginning or whether they agree to certain parts only. If they only accept certain parts, we can ask them whether they truly believe that Islamic law is perfect and thus should be implemented without any further questions.

Once we go with these kind of questions, I doubt that the number of people who vote for complete Shari’a implementation would be many. But this is still a prediction.

So, is there anyone who want to try conducting this survey and find out the real answer?

The title of this article is the main question generated by people who believe that there are certain laws which are derived from God or basic moral principles. Thus, these laws would have a holy status and will be perfect and remain unchanged for eternity.

Unfortunately for them, the answer is no. There is no such thing as a holy law and there is no record that a law can be applied without any changes within the past 2,000 years. Law is a social fact and is always evolving. That’s the reality.

By social fact, I mean that the basic validity of the law is solely determined by social acceptance, namely that the people within a territory, including their legal officials, accept from their internal point of view that a norm has valid authoritative power as a law.

How can we know that such acceptance exists? First, we can see such acceptance from how legal officials (such as judges) express the normative aspect of such rules within their opinions/statements. For example, they say that judges ought to adhere to certain norms in deciding cases, that it is the right thing to do, etc.

Second, we can also see the acceptance of such norm through critical evaluation, meaning that judges who accept such rules criticize others, even themselves, for failing to conform to the norm. Not only do deviations from the norm produce criticism, but such criticism is deemed to be legitimate and made with good reason.

Based on the above standards, no holy law would exist simply because it is holy or derived from the sky. All “holy” laws receive their holiness status because people treat them as such. And if people cease to treat them as a holy law, such law would also cease to become holy -- and lose its authoritativeness.

This understanding is very important. In any part of this world, we can say that no laws receive their authoritative status automatically. In modern world, there is certain exhaustive process (ultimately through democracy) that must be done before certain norm can be regarded as a law and enforced by the state/legal officials.

This might include election of officials by the people, promulgation of the laws by the legislators via voting process, and enforcement of the laws by legal officials (including interpretation of the laws by judges). It is a complex yet necessary process since laws affect how people behave in their day-to-day life.

However, there is also a twist here. Since law is a social practice, people who believe that certain laws should be treated as holy may gain power through the democratic process. I do not know and cannot predict whether they might ever win, at least in Indonesia, but that should always be taken into our consideration whenever we go to the general election.

Next on eternally unchanged laws: if they do exist, there would be no need for interpretation. There would be no exception to the law unless the law says that it can be exempted. More importantly, it will also contradict the practices that have been done by various legal officials and scholars in implementing the law for centuries.

There are two examples of this: first, the classical Islamic laws on slavery. Some people claim that slavery is entirely prohibited by Islamic law. This is mistaken. Various archaic sources indicate clearly that slavery was a usual practice even hundreds of years after the birth of Islam. You can have sex with your slaves and you are not permitted to release them if your debts exceed your assets.

Islamic law encourages people to free their slaves, but it does not say that slavery is a prohibited action that will send the owners to hell. Surely if we say that the law should be unchanged, this practice of slavery should also stay provided that you treat your slaves nicely.

Second is the law on divorce. In classical Islamic law, men can divorce their wives directly without any interference from the court. Yet, Indonesian Islamic law limits such absolute right. A divorce by men will only be valid when the religious court has decided so. Interestingly, the Indonesian Islamic scholars use the sources from Shia schools to back up their opinion.

The two issues above are just small samples of an even bigger discrepancy between theory and practice. This is a deep theoretical challenge upon those who believe that the law should be applied as it is for eternity. If you accept that the law is perfect, how can you justify any changes to such law?

In short, making the claim for an eternal law is easy, but when you face the actual cases in real life, you will soon realize that such law is merely an illusion.

The argument that moral violations invite God’s punishment (such as in the form of natural disaster) is a famous one. In a way, this argument is usually used by its proponents to support moral enforcement. Since God’s punishment will be very costly to all of us, it would be better if we spend our resources to maintain the good morality of society.

The question is: Is this a plausible argument? The quick answer would be no. Some of the arguments against moral enforcement have already been set out in my previous article. This time around, we will try to take a look at this famous religious foundation of moral enforcement.

Saying that God might punish the people for misbehavior and moral violations is not necessarily incorrect. There are certain instances in the Holy Book that give us examples of God’s harsh punishment to those who oppose God’s rules. So we have some precedents here.

But we need to dig deeper and try to understand the major aspects of those precedents, at least from Islamic point of view. All of those cases happen in the distant past where the prophets and their supporters are minorities, they involve a situation where the prophets have directly informed the people about the possible punishment from God, and there are also preliminary warnings from the nature indicating the coming of a disaster.

What can we derive from such cases? God practically works in accordance with modern legal conceptions, i.e. no law shall be enforced to the people without proper and timely public disclosure. By proper, I mean that the law has been disseminated in a way that is understandable to the public. After all, you cannot expect someone to follow your order if they do not have any capacity to understand such order.

Of course this will be problematic for our modern age since the last prophet of Islam died more than 1,400 years ago. There are no longer direct messenger of God that can actually inform us precisely what God really wants.

Now, some might argue that the existence of prophet is no longer necessary since the prophet has left us the Holy Book. That might be plausible but not sufficient. Based on the precedents provided by the Koran, God’s punishment was enforced to society where no record of systematic holy book was available. Interestingly, for societies that received a systematic holy book, there is also no record of direct punishment from God.

One then can argue that when a society have a systematic rules of moral values, God gives the chance to such society to settle their own problems. Whether they will follow such rules or whether they will prosper or not is simply another case.

Notice also that once we discussed the history of Islam, we no longer see any threats of punishment from God and the history of Islamic civilization works in accordance with the laws of nature. Some existed for a long time and prospered, some were crushed. But at all time, the civilizations depend entirely on how good they cope with the situation and condition, including in this case, how they apply and enforce the rules.

And I think this is the correct interpretation. In a world where a prophet still exists and can directly deliver the heavenly message to all of us, people can easily understand what God wants. Then it would be logical for the people to comply with God rules of morality and for God to gives punishment based on a fair warning mechanism.

But without a prophet, rules become rationally indeterminate, namely that there are various ways to read the provisions of such rules and how to enforce them in practice (i.e. whether they should stay as moral rules or whether they should be formally turned into laws).

Without any practical authority to determine the absolutely correct interpretation (since no one can speak on behalf of God), how can we expect a fair God to impose punishment in the form of disasters against indeterminate moral violations?

Furthermore, there is no way we can actually know whether a disaster is a part of God’s punishment. First, without any authority from God, making the claim that a disaster is a form of God’s punishment is as easy as making the claims that cats and dogs are spies from Mars.

Second, we can actually say that in terms of fairness, the overall distribution of natural disaster might be fair enough, i.e. that no one in this planet is completely safe from the power of nature. This means that whether you are good or bad, disaster may always occur against you. So how should we interpret that?

Thus, we should stick with such fact and accept the notion that there is indeed a missing link between moral violations and God’s punishment. Sure, you can always make your own claim, but it is not good enough to justify any moral enforcement attempt.