The Chronicles of a Capitalist Lawyer

Today's news indicates that the Department of Religion is considered as the worse governmental department in terms of corruption level. That's not so surprising, considering the fact that similar problem has occurred numerous times in the past. As an example, see this news from 2002. Our main question for today's post is: why religiosity is not translated into better legal compliance? Shouldn't religion help a person to be a better person and therefore religion can assist us in creating a community that has better legal compliance? I will argue that religiosity per se does not help in pursuing higher rate of legal compliance. In fact, the case is universal even for a person who denies the validity of any religion and instead claims that he is a moralist.

As I have argued in one of my previous posts, Knowing the Law vs Complying With The Law, people respond to incentives. You cannot expect that people will comply with the law simply because they know the law. To the extent that the benefit of doing a crime is higher than the costs, it is most likely that a criminal will conduct his crime. Thus, in law and economics view, we need legal enforcement to impose sanctions to criminals with a hope that such sanctions will increase the costs of doing criminal activities and can induce the criminals to reduce their negative activities.

Based on the above insight, no wonder that religion, standing alone, cannot be expected to significantly reduce the level of criminal activities simply because religion does not impose any sanction in the current life. You may be aware that certain religions offer a terrible afterlife sanctions for whoever dare to violate religion rules. While we can always debate on what constitutes religions rules, the issue is clear, although the sanctions are so vicious (burned alive and might be for an eternity too) that they cannot be comprehended by any ordinary human beings, they will only happen in the after life.

Some behavioral law and economic researches show that in general, people tend to discount the occurrence of bad things in the future even though they know that their current actions can increase the likelihood of those bad things. Good example: we know that overeating and less body exercise can be translated into higher probability of various nasty sickness, including heart attack, stroke, and diabetes. Yet, most people tend to discount that probability by staying with their unhealthy lifestyle (shamefully, I am also in the same category). It is also usual that significant changes in behavior will only occur after these people experience the problem by themselves. As an example, rate of doing healthy lifestyle activities will increase for people who have experienced heart attack and survive. That kind of experience will most likely leave a scar (or in economic terms, huge costs) in their life and they will have strong incentives to alter their behavior.

Returning to religiosity, not only that afterlife sanctions will be hugely discounted in considering them as a cost of doing criminal activities, there are several concepts in religion that can significantly reduce the value of such afterlife sanctions. Consider the concept of repentance of sins (taubat) that exist in any type of religion. This concept allows all believers to be forgiven by God from all of their sins to the extent they faithfully stop all of their previous heinous activities and do many good things as a repayment to the society. You can say from law and economics perspective that this is in line with the principle that criminals should compensate the society for the costs that these criminals impose to the society due to their criminal activities. That's true, but you must also consider the fact that the concept of repentance is not as effective as you think would be.

First, there is an issue on when should a person commit repentance? Since this can be done in any time before he dies and if we assume that people also discount the possibility of them dying at a time nearby, you can bet that most criminals will choose to repent far far away in the future. Even worse, since there is no minimum standard repayment for repentance, there is a possibility that such repayment activities are not suffice to cover the costs of their previous criminal activities. Obviously, that is not efficient for crime preventing. We are happy that religion provides an incentive for criminals to repay their sins in this world but without any clear enforcement mechanism, the repayment can be too late or not enough at all.

Second, since there is a possibility for multiple offenses and also multiple repentance, there are no strong incentives for religious people to comply with the law. They can always say that they are weak, that God is forgiven and all is well. Yes, we can argue that God might not agree with these people in relation to the faithfulness and intensity of their repentance, but no ones know what God really thinks. Uncertainties in this type of case increase the discount of afterlife sanctions, rendering their effectiveness into a new low level.

Having said that, the case is also similar for any moralists out there. We learn from one of US founding fathers, James Madison, that people are not angels. According to him, if people are angels, we do not need government, but since we know that they are not, we need a government to supervise them, and we also need further mechanism to check and balance the government since they consist of people too. You can claim that righteousness can come from many different ways, but you are just an ordinary human, and not all human can resist temptations.

Let me give you a simple example on insider trading cases. In the US, it is not unusual to find lawyers who still conduct insider trading cases even though they know the law and the severe punishment that will be imposed to them for doing such activities. Yet, some lawyers fall under insider trading cases. How could that be? Because the temptation is very high, we are talking about millions and millions of dollars here! And it is so easy to do insider trading that unless you can find a good way to remind yourself of the risks, you will most likely do it. And when they actually do it, you should ask why? Because again, they discount the probability of them getting caught because they know the law and they feel that they can avoid liability through their legal skills. Try to compare this with the fact that the Department of Religion handles an excessive amount of money from the government for hajj purposes. Do you think they are mentally strong enough to fight their temptations?

As you can see, even in the case of clear and severe punishments, some people cannot resist the temptations and end up doing their criminal activities. They might have already calculated the costs and benefits of their actions, where higher risks are translated into higher return. So, what can you expect from severe sanctions that will only occur in the future, the possibilities of them happening are pretty much uncertain, and there are many ways to avoid those sanctions with low costs(i.e. repentance)? The end result is clear, religion or morality, standing alone, is not effective to prevent people from doing criminal activities.

To close this post, I disagree that people are using this fact to blame religion as a source of evil. While religion and morality are not effective when they are standing alone, they can become a nice addition for strong legal enforcement. In his book, Predictably Irrational, Dan Ariely, a famous behavioral economist, shows that religion and morality can be useful tools in increasing the commitment of people to walk in the right path (especially by repeating such moment of commitments every day), i.e. as a method to increase their awareness that what they are doing is bad. But remember, they are only additional psychological tools, and effective strong legal enforcement would always be mandatory and necessary if we want to effectively reduce the rate of criminal activities.

Indonesia always provides us with interesting cases from economic perspective. The latest one is the new Blackberry product launching where the seller gave a 50% discount to 1,000 first purchasers. It was a major event as people rushed to Pacific Place mall to buy the product. Unfortunately there are some casualties, as there is an excessive amount of buyers and the mall is not big enough for all of them. While we can ask why didn't the seller stop the visitors as soon as they reach 1,000 to avoid unnecessary casualties, one may ask why did the seller choose this marketing strategy? Cafe Salemba economists provide their answers in these two nice articles: Economics of Queuing and More on Buying Frenzies. Meanwhile, I'll analyze the case from the Seller's perspective.

There are a lot of different types of buyers. Some are very conscious about the price of a product, so if the price is too high for them, they won't buy it. In the recent Blackberry case, we can argue that the seller used this understanding to actually screen its potential buyers and therefore they can get more buyers. The Blackberry's price is around 4,5 million rupiah. By all means, it is not a cheap gadget, but we know that such price is higher than the price in the United States and there is a theory that the price of the Blackberry in Indonesia is being inflated while the demand is still high in average. In short, it could be a very good business.

Now, by imposing a 50% discount to the price, there are two benefits that the seller can get. First, it can get those buyers who previously thought that Blackberry is overrated and therefore don't value Blackberry that high or people who want to have Blackberry but doesn't have enough money. Giving a 50% discount is still a good way to induce people to buy products. To the extent that this people don't highly value their time (they don't have better thing to do, or the utility of getting the Blackberry is higher from standing in the hellish queue, etc), these people will definitely enter the queue.

Second, the process can effectively screen the buyers who value their time more than their cash and get them to also buy the Blackberry with the inflated price. By giving such a hellish condition in the queue, the seller can know the people who will choose to skip the queue by paying more. No wonder that at the same time, the seller also conducted an exclusive sale using the original price. That's smart.

Now, we know that the seller imposed a restriction that the buyers in the queue cannot be represented by other people. Why do you think so? If there is no such restriction, the people who value time more than their cash will be induced to pay other people to stand in the queue for them, and that will disturb the screening mechanism. The seller definitely doesn't want to subsidize the people who value their time more. However, as we understand, the costs for supervision is also high. Therefore, they didn't conduct a full supervision, instead, they just let people rush in. Why?

There is an elementary game theory involved here. The seller knew that the costs for supervising the entire process would be high, managing thousands of people is not easy. But the buyers didn't know that information. Some will predict that the seller will be strict with the rules, some will predict that the seller will be lenient, and there will be chaos. Whatever the end result is, it is still a good way to screen the people who are not really sure with the value of their money versus their time but nevertheless have some interests to buy the Blackberry. If these people are risk averse, or prone to risks, they will probably not go to the queue and they will buy the product later on. For those who really want the Blackberry but don't have enough money, they will stay. For the people who value their time more and put their jockeys in the queue, they put a bet, if they get it, it would be nice, if not, they buy it later on and risk some money for the jockeys. Again, risk aversion matters, not all people want to risk their money for nothing and so they may decide not to do it.

Overall speaking, from the seller's perspective, there is a probability that the discounted products will be purchased by its unintended targets, i.e. the people who value their money less than their time. But it should not be many, and the seller can still effectively increase the demand of its products and reap more profits. So instead of being a sign of irrationality, it might be a good indication for good strategy for getting more buyers. Unless there are other additional high costs to the sellers for these kind of activities (i.e. death, riot, etc), we can expect more sellers to pursue the same strategy. So, two suggestions to improve the end result for consumers, next time it would be better to give a time limit for coming to the place and also limit the people who can stay in the location when they reach 1,000 or whatever the intended maximum amount of buyers is.

Imagine that your are a property developer who wishes to build a new amusement park in certain city. The business prospect is good, and the city is also happy with the project since it will increase the city's tax revenues and improve the city's economic growth. But before you can start your dream project, you must first buy the necessary land from several owners. Here is when the problem starts. If you tell these owners that you are trying to build an amusement park above their land, each rational seller who maximizes his/her own interest might hold up the sale of his land, hoping that they can increase the value of their land as the number of sellers decrease. The smaller the number of sellers, the higher the gain that they can get from holding up their land. Of course this is detrimental to your project since it is effectively similar to a monopoly by the sellers and it increases the difficulties of settling the negotiation.

True, the sellers realize that the increase value of their lands owes to your proposed project. If they are being too greedy and you choose to abandon the project, they will gain nothing. So there is a possibility that they will give up and sell their land with the maximum value that they think they can reap from you without making you cancel your plan. However, there would always be a possibility that one seller remains unwavering. Seeing that other people have already sold their lands, he understand that now his land has the biggest value of all and he knows that you don't have any choice other than buying his land in order to continue with your project. He also knows that you have already incurred a lot of money for purchasing the lands and you will need to start the project in order to recoup your initial investment costs. Effectively, you become a hostage of the final seller due to an increase of his bargaining power. This is what we call as the Hold Up Problem.

Hold Up Problem is a serious matter. If we don't find a good solution, Hold Up Problem can end up discouraging any form of investment that may benefit the society. Why? Because obviously, you don't want to waste your money for initial investment if in the end you will be ripped off by whoever holds the final trump card. The costs of investment will be too high and any rational person will eventually choose not to put the investment in the first place. As you can see, both parties and the society can be better off if only the parties cooperate, but because they can't trust each other, they fail to do so.

The case does not stop there. A Hold Up Problem can easily turned into a Chicken Game. Ever heard about this game? A good example is the famous scene in old US movies where two stupid kids are driving against each other on a collision course. If both of them stay in the path, they will die. But if one of them chooses to swerve from the path, both will survive, although the one who swerves first will be called as a coward chicken, hence why we call this as Chicken Game. Let us try to apply the basic principle of this game into our case above.

Once initial investments to purchase the lands have been made by you and there is only one seller remaining, you only have two choices. You can "swerve" by accepting the ridiculous demand from the seller and continue with the project (of course, you're being a loser here), or you can stay in the path and continue with the project even though you have not secure the land from the last seller. If you choose the latter, it is a disaster for both of you. Once the project has been started, the value of the seller's land will drop to virtually nothing. Who wants to buy a land in the middle of an amusement park that cannot be used for anything? For you it is also a problem since you will spend a considerable amount of costs to alter your project and ensure that it can be build around the remaining land. Both parties can be better off in this case if they cooperate and again, my analysis shows that they can end up with unnecessary losses.

So how can we solve the issue? Some people argue that Hold Up Problem can be solved through takeover or merger (it works on certain type of contracts), but we know for sure that in our case, the problem is the takeover itself, so we can skip that solution. I would think of two solutions. First of all, you can purchase the lands from the sellers without having to disclose your future plan for the land. As far as I know, there is no legal obligation to disclose the reasons for doing a transaction and this solution may work in case you can design a system that will not cause the sellers to suspect you of doing anything fishy.

Second, you can disclose your plan and then offer to buy the land of the sellers as a single package (everyone must sell their lands at the same time or the deal is off). By doing this, you prevent the possibility of having a Hold Up Problem in the future as the sellers will be required to act as an unity. Again, the solution might not guarantee that you can do your project but at least you won't be a hostage to certain sellers. Furthermore, in case the majority want to sell their land for a nice fortune, asking the sellers to sell their lands as a bundle will induce them to cooperate to reach the best conclusion for everyone and there would be pressures to sellers who refuse to sell without a good reason.

As you can see from the above, cooperation matters where there is an inherent collective action problem. The issue is to give the correct incentives that can promote cooperation among parties that might have different interests. In this case information matters. How we disclose the information in the first place will affect the strategy that we will choose to close the deal. Here I agree with the current legal regime that allows people to transact without having any obligation to disclose their purpose in doing such transaction. Requiring such obligation might be inefficient in case the information can be used for Hold Up purposes.

If you can propose other solutions that may be implemented to the above problem, feel free to give your comments. Who knows, we might end up finding a solution worth a Nobel Prize :)

I guess I have not fully elaborated my points on my previous post on prostitution and inequality, as I might need to address some concerns from those who are in favor of legalizing prostitution. You can read some of their main arguments here. Their arguments can be summarized as follows: by regulating the industry, the government can give incentives to the industry players to treat the women better, create a safer environment, and by doing so, helping the women for a better life. Furthermore, if it's truly a voluntary transaction, people should be free to do so. As good as they may be, I disagree with these lines of arguments, and I am not even talking about morality issues.

First of all, I doubt that regulating prostitution will be more efficient than making it illegal. We know that people respond to incentives. In other words, the government may require people to comply with certain regulations, but if there are no legal enforcements, it is most likely that they will not comply. The case is similar to prostitution. So when the government actually regulates prostitution, there would also be enforcement costs to ensure that the entire industry comply with the rule. Can the defenders of legalization show that the costs will be cheaper rather than enforcing law against prostitution. Because if the net effect is same, why bother legalizing it?

Second, I'm surprised if there is any free market defenders who support the notion that the government should regulate prostitution in order to protect the women. Most free market defenders despise government intervention in the market. The market works best when there is no intervention as usually, people will only enter into a voluntary transaction if that transaction benefits the relevant parties. So I find it amusing that some people ask the government to interfere with the prostitution market. Not only it shows that the business is inherently bad that we need government help to deal with it, it also shows that they tend to forget that intervention by regulation does not always end up well, which will lead us to my third point.

The major question is, what type of regulation that will be needed for an industry like prostitution? To what extent will we allow people to freely sell their body? Can we say that in line with the rising of the price, the consumers are allowed to demand more extreme sex actions? Should we allow consumers to sue the women in case their performance is not satisfying? Should we allow wives to sue the men and the prostitutes in case the wives found out the act in accordance with the principle that each party should be liable for the externalities that they cause to third parties and therefore are obliged to compensate such third parties? Or, in accordance with the Chicago style, when transaction costs is low, resources will be allocated efficiently, meaning that the prostitute and the husband will "pay" the wife for the right of having an affair.

I mean if we agree that people are free to do everything as long as they "voluntarily" agree to do so, why bother making safety regulation? This is precisely in line with the case of whether there should be a mandatory safety regulation in a construction project if the employer has offered bigger payment for those who want to take higher safety risks. The main issue is what would be the correct price where additional risk taking is justified. If those who agree with legalization of prostitution can accept this notion, I will rest my case. But if we are still talking about protecting the right of the prostitutes, the legalization does not have a strong case other than whether the costs of enforcing the protection are cheaper than making it illegal.

But let us stop this debate for a while. What are we trying to achieve here? The better protection of the women? Or finding what idea should win between the freedom of women with her own body and the compliance with moral values? The first is important and pragmatic, the latter is simply meaningless in practice. If we agree that the whole debate is made to find the most efficient and effective way to protect women from abusive treatment, then we are in the same track.

Let us remember that prostitution consists of 2 type of worker, i.e., those who might enjoy the profession and receive good benefits (the lucky ones), and those who are not lucky, which will stay in poverty, who are prone to high risk of death and terrible sickness. Those who have already enjoy a good position surely want to regulate the profession. It gives them better protection. But the case is not the same for the unlucky ones, which sadly, can be in the majority.

Now, for the unlucky ones, I disagree with legalization. The fact that they are in that state shows why we should not trust that the pimps and customers will treat them better without strong enforcement action from the government. As I said in my previous post, rather than spending costs for enforcement of regulation, why not spend the money to actually reap the profits of the pimps and the money of the customers to compensate the prostitutes? What do you think is the main incentive for pimps to send women to prostitutes? Money! If such incentive is taken, would they still do it? If they are being required to give their entire profits and capital from the business and then the funds are distributed to the women, wouldn't that be better? Of course the sanction will not work if the fine does not reflect the entire benefit of the business. This is standard economic analysis, if the benefits of doing criminal activities are higher than the costs, the criminal will most likely do it.

So if the defender of legalization says that the fine is not effective, most probably because the fines do not reflect the whole economic benefit of prostitution and the prostitutes do not receive any compensation, which of course will induce them to return to their usual life. Remember, in my proposed solution, prostitutes should not be sanctioned. The target should be the pimps and customers, which will effectively increase the costs of doing prostitution and hopefully reduce the level of prostitution itself. I can imagine a sanction where not only the customers will need to pay a huge fine (which will be distributed to the prostitutes), his name will be also publicly announced. This business can survive for so long, partly due to anonymity, destroying such advantage will impose a significant costs to the customers and I expect that their behavior will be pretty much affected.

Another thing about legalization, is there any guarantee that legalization of prostitution will effectively erase all illegal prostitution? If the legalization is made on the basis that we need to protect the women, is there any guarantee that customers will comply with all the safety standard regulation? Isn't there a possibility of a black market where all of those earthly desires, which reject all notion of limitation, still exist? And in such case, legalization does not have an effective purpose other than dividing the customers into two types, the nice ones who go to the legalized brothel, and the bad ones who go to the illegal brothel. Of course, further empirical research is needed to support this argument. But this is something that must be considered by the proponent of prostitution legalization in case the probabilities are huge.

Today, I attended a public lecture by Catherine A. MacKinnon, a world-known feminist and also a professor of law from University of Michigan, on Trafficking, Prostitution, and Inequality. I consider this lecture as a very important event as it gave us a clear understanding on the negative effect of trafficking and prostitution. I'll first summarize MacKinnon's arguments and then I'll provide a Law and Economic style of analysis to support her arguments.

MacKinnon Arguments Against Prostitution

MacKinnon opened her argument by saying that there is an inconsistent way of thinking within the public regarding trafficking and prostitution. All people agree that trafficking, i.e. selling human beings to other humans by force, is bad in any way. However, the opinions are divided when we discuss about prostitution. Some people believe that prostitution is inherently bad, either from morality or gender equality points of view. While some other people believe that prostitution is a symbol of freedom and entrepreneurship of women, after all, it's about the freedom of women to use their body as they may like and prostitution is just another form of profession, hence, the term commercial sex worker.

For her, the term commercial sex worker is utterly ridiculous and she asked how could people consider prostitution as just another type of profession? Based on her own and several other empirical researches, prostitution is definitely not a decent profession, if not at all. A recent polling from several prostitutes showed that more than 89% of them wish to be able to leave the job. Most of prostitutes end up in prostitution not because of free will, but because of coercion (usually from trafficking) and bad financial condition.

Basically, these prostitutes enter the job because they don't have any better options. The working condition is harsh (in India, an average prostitute can handle around 8,000 men in a year! Not to mention that they are being required to satisfy all the needs of their customer, whatever that is, as long as the customer pays), they are prone to various sexual transmitted diseases and psychological trauma (MacKinnon found that the level of trauma within prostitutes is similar to those who have experienced war!), and they are also prone to harmful activities that may result in their death (various customers have different taste of sexual activities and it is not unusual to have customers who love violence for the sake of enjoying their sex). In short, it's not a good life. In fact, MacKinnon asked everyone in the room, would they ever consider to take that kind of job if they have a better option?

MacKinnon further argued that prostitution pretty much relates to gender inequality. Surely there are male prostitutes, but compared to female prostitutes, their numbers are miniscule. Moreover researches show that it is far easier for the male prostitutes to opt out from their profession compared to their female counterparts. Female prostitutes are usually treated as goods, objects. The inequality is even clearer when we see how society treats the customers very well, simply from the fact that they are called as customers, in other word, they are just simple buyer who wish to purchase sex with women as an object of satisfaction. No wonder MacKinnon refused to use the word customer, she named these group of guys as John.

MacKinnon also argued that it is absurd to consider that female prostitutes entered into the business of prostitution because they have already given their "consent" and therefore people should leave them alone and let the market does the job, i.e. voluntary transaction among the people. In reality, their consent is not real, their consent was given due to weak conditions and because of the payment that they receive from the Johns (and they don't even receive the payment in full, most of the payment will go to the pimp). Based on that understanding, MacKinnon stated that having sex with prostitutes is essentially a rape in another form.

So what's the solution for this problem? MacKinnon offered the Sweden System, where prostitution is being criminalized, but not for the female prostitutes, rather, the pimps and the customers. Various empirical researches showed that the result of this policy is quite effective, the prostitution rate is going down and more women can be released from the hell that they experience in the world of prostitution. The reason for adopting this policy is because there is already an inequality between the female prostitutes and the male customers and pimps. Imposing the same sanctions to the prostitutes increases the inequalities and misses the real villains who are responsible for the existence of prostitution.

MacKinnon also rejected the legalization of prostitution as a solution to fight the bad treatment that prostitutes receive in her job. In one of her researches, she found that even when there are legal prostitution center, some people still prefer to use the illegal prostitutes because they refuse to have their sexual activities and tastes being regulated. In the Dutch, one pimp complains that the regulation of having pillow in the room (which apparently is required in order to increase the level of comfortness of the customers) is bad, because some prostitutes were being killed by pillow. It's a weapon of murder. In other words, the Government is not a good law maker when dealing with prostitution because they don't understand the nature of this business.

An Economic Analysis of Prostitution

Simply speaking, I support MacKinnon arguments, and I will try to show that not only prostitution is bad from the perspective of morality and gender equality, but also from economics point of view. The standard economic analysis usually says that whenever there is a voluntary transaction between two parties, the government should not interfere since it is assumed that these people would never enter into the transaction if both are not better off as a result of the transaction. I agree with this notion. The problem is, some people assume that prostitutes sell their body voluntarily to other people and therefore the government should just leave them alone or even better, legalize the profession. They argue that legalization and calling these prostitutes as commercial sex worker will reduce the degradation that they receive, improve their quality of life and everyone will be better off.

Seems correct? Absolutely not. First, you can't assume voluntary transactions exist just because people agree to sell their bodies for money. MacKinnon empirical data show that this is an illusion. The consent is not given properly, meaning that standard economic analysis cannot be applied. Instead, we must assume that without consent, we are imposing costs to the prostitutes by forcing them to do something that they don't prefer in the first place. We further know that the payment that they receive does not reflect the costs and risks that are being imposed to them and on top of that, they don't even have the flexibility to leave the job. It is clear then that in terms of causality, the pimps and the customers are harming the prostitutes. From tort law perspective, this should entitle the prostitutes to claim compensation from their customers and pimps.

In this case, the above reasoning is in line with MacKinnon's Sweden System. If the ones who inflict harm are the customers and the pimps, it does not make any sense at all if the prostitutes are being penalized. In fact, it would be even better that not only the pimps and customers are being criminalized, they must also be required to compensate the prostitutes for the harm that they inflict. In this case, the result will be efficient. First, there will be less incentive for pimps and customers to conduct their bad activities. Second, possibility of women being released from the brothel is increased and the fact that they can receive proper compensation is also a good way to provide them a fresh start for their life.

Now, some people argue that enforcing sanctions is costly, while legalizing action is profitable since the government can tax such action. In a sense that's true, but again economic is not a rigid science, it is flexible depending on the situation. And I can say that legalizing prostitution is simply a stupid idea. Yes, the government can tax the activities, but it means that the government strategically chooses to abandon their own citizens, i.e. the prostitutes, to live in misery, which of course is not efficient.

There is a better way, i.e. criminalizing the activities and target the pimps and the customers. The government doesn't need to always send these guys to prison. It can fine them to pay a huge amount of money to the government, where some are used to pay the legal enforcement costs and some are used to compensate the prostitutes in order to start a new life. This could be a cheaper solution and we know that pimps and customers have quite a lot of money. If not, pimps will not maintain prostitution business and guys will not choose to pay for sex if they can somehow get it for a cheaper price through other means.

To close this post, I would like to give an interesting definition of prostitution from Namibia (courtesy of MacKinnon of course), i.e. prostitution is any type of sexual activities that are being traded with commodities other than sex. This is deeply insightful, i.e. that sex should only be traded for the joy of sexual activities itself. Let us hope that someday we will be able to banish all type of prostitution in this world.

Pursuant to my post here, I manage to elaborate my arguments into a decent working paper. I'm planning to submit this paper to an Indonesian law journal, but I would like to hear first some useful comments from my readers that I can use to improve the paper. So if you have any comments, please don't hesitate to contact me, I would be grateful for that.

The legalization of same sex marriage will always be a controversial issue to be discussed as it encompasses many fundamental aspects of human life, including religion, morality, law and economics. In this post, I will focus on two issues that in my opinion are worthy to be discussed before we can consider the incorporation and legalization of same sex marriage into our law, i.e. (i) the problem of equal position in traditional heterosexual marriage, and (ii) the legal complexity that same sex marriage will impose to ordinary family law.

A. The Problem of Equal Position in Heterosexual Marriage

As you may be aware, even in the most developed nations, there is still a tendency for distribution of domestic tasks between the husband and wife. In general, the husband will be most likely responsible for providing the main family income while the wife will be responsible for maintaining the household chores, which usually includes the additional task of grooming and raising the children. I don't know whether this task distribution is incorporated into a law in other jurisdictions, but in Indonesia, the incorporation is pretty much clear. Under Law No. 1 of 1974 on Marriage, the husband is responsible for providing the living needs of the wife to the best of his ability (in his capacity as the head of family) and the wife is responsible for maintaining the household (in her capacity as the house wife).

Though seems simple, in reality, the effect of the above arrangement is significant and I dare to argue that such arrangement has already turned out into a baseline (see my discussion on baseline here). In countries and communities where economic activities are dominated by men, women position is generally weak and it affects their bargaining power within the marriage. It is true that by imposing the legal obligation on the husband to provide the main financial support for the family, it seems that the regulator is protecting the interest of the wife on the assumption that the wife is the weaker party. However, there is an inherent problem that might have been overlooked.

Logically, if you are financially dependent to a person, you will need to comply with such person's demand to the extent that it is necessary to maintain the benefit that you receive. Even when the law says that husband and wife have the same rights, it is nothing more than dead letters in front of economic reality, i.e. those who have better economic power within a marriage tends to control the relationship within such marriage (and in worst cases, the control issue can turn the marriage into an abusive relationship).

In my opinion, imposing a legal distribution of domestic tasks might create the wrong incentive (though in the case of Indonesia, I would say that our culture and religion hold the bigger portion).First, it forces the husband to always become the family's financial backbone even though in some cases he does not have enough capability. Second, it creates an impression to the wife that working outside the family household is a bad thing, forcing them to believe that stay at home housewife is the best option for them. Would not it be better if a couple can determine by themselves how they will regulate their family relationship, including on getting family income, maintaining assets and raising children? Further research will be needed to answer this problem.

Unfortunately, the notion of distribution of job has been deeply embedded into our subconscious, making a considerably slow progress in creating equal position within a marriage. Even nowadays when women position has already getting better in marriage due to their higher involvement in the job market, it is not uncommon to find women who will trade their economic power for the sake of raising the children in the family.

So what's the connection between the issue of equal position and same sex marriage? To answer that question, we need to understand first whether the traditional distribution of task is also applicable in same sex marriage. Since this is a marriage between same sexes, there are no husband and wife, no head of family and housewife, and therefore, I would assume that the distribution of role within such family will need to be agreed between the couple themselves instead of relying on any particular standard. In other words, to accept same sex marriage in our law is to revolutionize the entire concept of equal position in a marriage.

The grand question is: can we accept same sex marriage if we have not even reached the state of equal position in heterosexual marriage? It would be questionable to legalize same sex marriage without even reforming laws on ordinary heterosexual marriage and redefining the position of husband and wife in such marriage. In the end it's a whole package.

B. Family Law Complexity

Another major issue that is sometimes overlooked when dealing with same sex marriage is the complexity that it will create toward traditional family law. Legalizing such marriage does not mean that we can just simply give the right to marry to same sex couple and everyone would have a happy ending, further revisions must also be done the the overall body of family law which may include: child status, inheritance, divorce requirements, and joint assets (which may also cover tax issues). And revising those provisions would be a major challenge.

1. Child Status

Child status will be the first to be caught under the complexity. The problem is clear, same sex couple cannot produce children without the help of other sexes. So what would be the status of the children produced from the offspring of unmarried biological parents? Should it go to the father or the mother or to the ones who have established a family, i.e. the same sex couple? The current default rule is that a child produced by unmarried couple can only be claimed by the mother. In short, it is impossible to authorize same sex marriage, without revolutionize the concept of a legitimate child.

Imagine also when each of the couple want to produce a child. If successful, it would mean that a same sex family might have two completely separated by blood children, and these kids are not prohibited from marrying each other since they don't have any blood relationship anyway. So that would be an interesting form of family. I won't give a moral assessment for this kind of family, but I am quite certain that it would be more complicated. Thus, I would say that for same sex couple, adopting an unrelated child might be easier than having a child from their own flesh and blood.

2. Inheritance

Further, the complexities caused by the child status will directly affect inheritance. One thing for sure, by default, only one person in the same sex marriage will have family relationship with the child (in case they choose to use their own offspring). Assuming that they have two separate children, one will inherit based on blood relationship, the other one will only be able to inherit through a testament in case one of the parents died. Again, another complexity.

It would also be interesting to learn about how the couple in same sex marriage will inherit each other assets especially in a regime where there are differences of inheritance portion for husband and wife (such as in Islamic law). Or should the law create a different set of inheritance system for same sex marriage? What would be the efficient inheritance system?

3. Divorce and Child Care

The process of divorce in same sex marriage will need to be amended in case there are differences in the procedures for husband and wife. Furthermore, in such divorce, who will be responsible for the child custody? Can we sue for a husband alimony payment as in the usual heterosexual marriage? Although I doubt that can happen if there is no distinction. Should alimony be imposed upon the party having better financial conditions? Or if there is no blood relationship with the child, can we actually impose alimony payment?

4. Joint Assets and Tax Problems

Revising the concept of joint assets for same sex couple would be easy to the extent that we only need to change the definition of marriage. But there might be some problems from tax perspective, especially for the tax relief usually given to married couple. Is that something that the tax department will ever give? Of course if the amount is not that big, the same sex married couple might renounce such right for the sake of legalization (there is always a trade off). But if the amount is high, would these couple agree or will they claim that there is a discrimination? That would be an interesting case. I heard though in the US that same sex couple are fighting for this kind of tax equalization. One thing for sure, even getting a tax equalization for a booming industry in the biggest muslim populated country such as Islamic finance is very difficult, so I wonder whether that kind of equalization will be granted to a controversial arrangement like same sex marriage.

5. Conclusion

Like I said in the first portion of this post, accepting same sex marriage means that some radical changes must also be done toward heterosexual marriages main concepts. The same is also applicable to the laws surrounding the marriage. Again, it's a single package. An additional thought, with all of these complexities, would it be better for same sex couple to govern their relationship purely through agreement/contract instead of waiting the government to regulate the structure of same sex marriage?

Now, I will not offer any solution here nor any endorsement on what would be the best concept of marriage, the analysis within this post is purely positive, not normative. However, if you are interested to read further on this issue, you may download this paper from Harvard Journal of Law and Public Policy, titled: "What is Marriage?" Happy reading!