• Is The Right to Die Justifiable?

    Is The Right to Die Justifiable?

    The latest case of an Indonesian law student who burned himself to death in front of the Presidential Palace is indeed an interesting one. At first, I want to disregard the student's motive but then I realize that the question of motive is the essential part in the analysis which will affect our final thoughts in perceiving his decision. So, let's start with the question: do people have the right to die?

    It's a tricky question which triggers a lot of debates involving significant different views. The comments on the above case can be a good example. Some people consider the action as a foolish one without any benefit to the society, that people will soon forget it and it is harmful to the student's parents and close family members. Other people consider it as a heroic action, that it demonstrated a resistance to a corrupt government, and that the student should be honored because not a lot of people will have the bravery to burn themselves as a form of protest.

    What interest me the most is the fact that the discrepancies in views were ultimately caused by the motive of the student in burning himself. Why the motive should be considered at all? Are we saying that the right to die should be honored in certain conditions in accordance with the motive? We condemn ordinary suicide (in case the student burned himself out of desperation with his own life) but we approve the action if it is done out of desperation of other people's life? How come? More importantly, why should we bother with the right to die? The dead guy would have no interest with what we will say on his right to die simply because he is already dead.

    The main problem here is because if we agree that people have the right to die, it indicates that people should also have the basic right to freely do whatever they want with their own body (well at least some people believe that people should be free to do so). I mean, if we agree that people has the right to kill themselves (which is the ultimate action that a man can do with his body), they should also have the freedom to, say, hurt themselves or conduct activities that may be harmful to their body as long as they give their full consent for doing such action (meaning no fraud or coercion or misappropriation of condition by third parties).

    Applied consistently, there should be no paternalistic regulation on how people should behave, and there should be no "protective" regulations intended to protect the public from doing dangerous activities as long as they agree to do such action. In other words, those "protective" regulations should be optional instead of mandatory. Yet we know that the this is not the case in real life. Safety regulations in factories and mining sites, and even mandatory safety belt in cars can be a good example of those kind of regulations.  

    It is weird if we assess the validity of a right only based on a motive. Suppose, a company is conducting a risky business. Installing a safety device would cost them a lot of money, say, US$20 million which will reduce the accident rate into 1%. If the Company chooses this option, they will pay 5 workers, each with a fixed salary of US$20,000 a year. Another possible way of doing this business is to employ those 5 people without any safety device, where each will receive an upfront payment of US$1,7 million, but the risk of deadly accident will increase to around 85%. From economics point of view, it is possible that the second option would be optimum for the welfare of the society. The company can reduce its costs, allowing them to sell cheaper products, and they compensate the employee generously for the additional risk taking.

    Now imagine that one of those 5 employees is a father to three children. Thinking about the future of his family, he decides to take that risky job with a full understanding of the high probability of death. He believe that the payment justifies his increase of risk that even in the case that he dies, the overall compensation is enough to ensure the survival of his family in the future. Should he be prohibited from doing so? Should the company be deemed liable when an accident happen and the father dies? If we care about motives in deciding whether an act is good or not, can't we consider this as an heroic action? A father who chooses to increase his probability of death for the sake of his family?

    I bet that most of you will consider this idea as a perverse one, but if we choose to assess the right to die simply from the motives, this is the consequence. It's easy to create similar cases and yet people preferences can vary significantly. It is almost impossible to find consistency of opinion in this matter. Here Law and Economics tries to provide the answer from welfare maximization issue. It might be easier to have a standardized safety regulation because not all people have the same perception of risks. Some will agree to take the risks, some will not. Creating a standard regulation could effectively solve the collective action problem among the employees. Granted there are costs associated with safety regulations, but the costs should be calculated in a way that promotes overall efficiency to the society (increase safety might increase productivity and might induce people not to participate in too risky business which may turn out to be bad for the welfare of the society).

    If we agree with the above welfare maximization analysis, the right to die should also be viewed in such instance. Thus motive is irrelevant, instead, we should ask, what's the costs and benefit for granting people with the right to die? Should we give incentives for people to die? Might be in war with other countries for the sake of gaining victory or in case of patients with terminal ill where prolonging life would be too costly and too painful for him. But in cases where there is no perceive benefit of killing yourself and even worse, where the action imposes certain costs to third parties (imagine the costs imposed to the family left behind due to the suicide), I would say that we need to give incentives for people to avoid such action.

    How can we give the incentives if the person is already dead? Well, we can do that by condemning certain type of suicidal activities that we view as wasting a precious life for nothing or where the benefits do not justify the costs of losing the life. Might not be effective for people who have lost their hope with their life, but for those who believe that their suicide can be meaningful, it could be a good deterrent mechanism. By informing them that their action would be useless and meaningless, we impose a huge costs to them for doing their action. What is the use of killing yourself in such case if people will simply disregard it?

    Another way is to impose liability to anyone who knows a person's plan to kill himself but fail to prevent such death. Again, might not work for suicide for private reasons. But if it is for the so called "public cause", there is a high probability that some people will know about the plan in advance and therefore should be imposed with an obligation to refrain the soon-to-be-dead guy from his planned suicide. This is primarily based on the least cost avoider principle. It is not cleat though whether our current law is in line with the above approach. While there is no legal sanction for a failed suicide (no court will punish you if you fail to perform your suicidal action successfully), any people who assist you in your suicide attempt can be penalized with a prison sanction of at least 4 years. The text of the law indicates active assistance, while my proposed solution is to impose liability for passive assistance.

    To close this post, I admit finding a right answer on the right to die is problematic. I am certain that some people will disagree with the notion that killing yourself could be justified as long as the perceived benefits exceed the costs. But we do have some examples on this issue, such as in war (imagine suicide mission) or in euthanasia (interesting to note that some Islamic legal scholars prohibit active euthanasia but not the passive one). It might be that there is no right answer for this problem and in the end, it's all about preferences. If that's the case, the voice of the majority will eventually determine whether a right to die should ever be granted.
  • Assessing Death Penalty - Law and Economics Style

    Assessing Death Penalty - Law and Economics Style

    Imposing a death penalty or capital punishment for certain type of criminal activities would always be a controversial issue. Some people believe that the imposition of death penalty is important to create an effective deterrent effect toward criminal activities. Others believe that death penalty is against one of the basic human rights, i.e. the right to live. Before I provide my arguments below, I will have to inform you all that I am a supporter of death penalty, albeit with certain conditions.

    First of all, in normative Law and Economics, welfare maximization and efficiency are the two key terms that must be prioritized in assessing the quality of a law, including the imposition of any criminal sanctions. Why? Because in Law and Economics terms, a law would be deemed useful for the society if it can maximize the overall welfare of the people without imposing too much costs on them.  The perfect law would be pareto efficient, where all people will be better off without having any losers in the society. While that might be nice, in practice it is almost impossible to satisfy the Pareto criterion, and therefore Law and Economics usually end up with Kaldor-Hicks efficiency, i.e. a law will be considered efficient if it can maximize the overall welfare of the society (so that in general, there is a surplus for the society) and open the possibility of compensating the losers, even though the compensations have not yet been materialized. 

    I understand though that welfare maximization is not the sole value that can be adhered in a society. What about, say, fairness? However, as argued by Steven Shavell and Louis Kaplow, two prominent economists and law professors from Harvard Law School, in their book, Fairness vs Welfare, welfare should always be prioritized whenever there is any conflict between welfare and fairness principles, simply because fairness is an element of welfare maximization while welfare itself is not necessarily a part of fairness maximization. The duo provide some very interesting arguments in the book but I will discuss that in another occasion. For now, I only like to introduce the basic concept of welfare maximization in Law and Economics.

    Having said that, the next question would be: can we justify the existence of death penalty in a legal system from Law and Economics perspective? The quick answer is: it depends. The three main factors that should be considered are: (i) the costs and benefits of imposing the death penalty compared to alternative sanctions, (ii) the administration costs for death penalty, and (iii) the net effect of death penalty to the society.

    Costs of Imposing Death Penalty in Comparison with Alternative Sanctions
    With respect of the costs of imposing death penalty, suffice to say that death penalty is cheaper than prison. Killing one person is definitely easier than maintaining a person's life in the prison for certain period of time. But it would be wrong if the comparison is made only to prison. The fact that the costs of death penalty are cheaper does not necessarily means that it is superior to other type of sanctions. In fact, from economics perspective, death penalty might be inferior compared to the sanctions in the form of fines because death penalty does not produce any direct additional wealth or at least create a transfer of wealth. The only way we can say that death penalty produces wealth (indirectly) is if there is a good evidence that death penalty effectively deters crimes and therefore reduces the overall costs of criminal activities to the society and save the people's money for costs of legal enforcement.

    Administrative Costs for Imposing Death Penalty

    Another important issue is the costs for administration of death penalty. Since death penalty is irrevocable, in the sense that you can't raise the dead once the sanction has been administered, the administrative costs for getting the right decision tends to be higher in order to avoid costs of wrong decisions (such as longer waiting period for the execution of the penalty, additional costs for producing evidence, etc). Why we need to avoid these wrong decisions and why people should pay for the costs? Other than fairness related argument, Law and Economics believe that wrong judgment reduces the probability of allocating the criminal sanctions to the intended target, i.e. the real criminals. For each wrong judgment, we impose unnecessary costs to the innocent person and let the criminals free from the sanctions which means that the costs for them to do their criminal activities are reduced, inducing them to do more criminal activities.

    In other words, wrong judgment is a factor that may increase the probability of doing crimes simply because the criminals know that the probability of them getting caught and being sanctioned is reduced. So, letting too many wrong judgments will be inefficient for the society. But the same inefficiency could also happen when we spend too much money in trying to reduce the error costs of judgments. A good example would be cases where it is very difficult to proof that the defendant is guilty, such as in rape case. I have argued in my working paper here, that imposing death penalty for rape cases might be counterproductive because the process of evidence is difficult and the administrative costs for getting the right decision would be too huge. As a result, imposing alternative sanctions which are revocable in the future might be the best option for rape cases.

    The Net Effect of Death Penalty

    The most controversial aspect of death penalty is the claim that it can effectively deter crimes rate. Obviously, this is something that needs further empirical research, especially in Indonesia. I note from one of my professors that some empirical researches in the US found that high death rates in the prison can effectively deter the rate of crime. We can categorize this as an indirect death penalty sentence since you can be easily sentenced to a prison (and therefore less administrative costs for the entire process) but there is no guarantee that you will survive the prison. Apparently, having no life guaranty in the prison is scarier than having a direct death penalty where the process is longer and the possibility to avoid such sanction is higher.

    As I said above, to the extent that death penalty can be an effective deterrent mechanism, such penalty might be an efficient solution for reducing criminal activities. How can we assess the efficiency of death penalty? In simple mathematical formula, death penalty would be deemed efficient when P > (C + AC + WC), where P is the amount saved by the society from reduced criminal activities, C is the costs of imposing death penalty, AC is the administrative costs of death penalty and WC is the costs for irrevocable wrong conviction. To be more consistent, we can also add the utility function of the criminals who receive such death penalty, since in a way, we impose costs to him by taking his life.

    Based on the above super simplified model, I could tell that the basic problem with death penalty is that there is no calculation for the utility function of the victim, in fact the imposition of death penalty will never calculate the interest of the victims because they are simply out from the equation. Granted, the victim might receive some utilities from the retribution effect of death penalty, but I am not sure whether that will be enough. Again, as I said above, while death penalty might be more efficient than prisons, fines might actually be more superior than death penalty in welfare maximization and the use of death penalty should be really limited to certain type of criminal activities.

    If I have more spare time, I would love to write more on the Law and Economics analysis of death penalty just like when I write about Economic Analysis of Rape Crimes. My support for death penalty is basically conditioned upon the satisfaction of the above model. If the overall costs of death penalty are bigger than the expected reduction in criminal activities, then supporting death penalty would be useless as it is the same with reducing the welfare of the overall society. Personally, I will give more support to any sanctions that can compensate the victims while still giving deterrent effect to criminal activities, such as a significant amount of fine and/or forced labor.

    My another thought would be that death penalty should only be imposed to criminals whose activities are considered very dangerous to the societies and therefore letting them return to society without effective way of preventing them from doing the same thing would be too costly, such as serial murderers. But this can lead to another debate on what type of dangerous activities that should be sanctioned with death penalty. On that matter, I will reserve it for another time.
  • School Discrimination, Availability Heuristic, and Positive Exclusionary Vibe

    School Discrimination, Availability Heuristic, and Positive Exclusionary Vibe

    Yesterday, another interesting case occurred in Indonesia. Apparently, a private school required a child with HIV positive father, who has been previously admitted to such school, to undergo a HIV test. If the result is negative, the child is permitted to enroll, but if she is positive with HIV, then her admission will be cancelled by the school. In short, the parent refused to give the result and the school later on informed them that because the other parents in the school refuse the presence of the child having a potential of HIV positive, the admission for the school is cancelled. The main question from law and economics perspective, can this action be considered as a discrimination? Can the school, as a private party, refuses the admission of a child because of the risks brought by that child to other children, whatever the probability is? What would be the solution?

    I look first at Law No. 23/2002 on Protection of Children and I find in Article 13 of that Law that a child, while under the care of parents,guardians, or any other parties responsible for the custody,is entitled to protection from any form of discrimination. If we consider the above action as a discrimination, judging from the text of the Law, I doubt that the school can be blamed, since the text seems to be intended to protect children from discrimination by their own parents or guardians. A school might be considered as a guardian of a child during the school time, but if the child never enrolled in the first place, there would be no legal obligation to protect the child from any discrimination. And based on that notion, I can see why the school chose to instead cancel the admission rather than accept the kid, if the kid is already in the school, the school will be obliged to protect her from any kind of discrimination.

    So what would be the answer to this problem? Let's take a look at the reasoning used by the school to cancel the admission, i.e., they say that other parents disagree having a child with a potential HIV in the school. If this is true and these parents are the majority faction in the school, I can see why the school ended up with their decision. I bet they know that in the modern interconnected world like we are having now, this case will cause public controversies, there will be uproar, and to certain extent their name will be tainted. But, as long as their legal risks are low and most parents whose child go to their school support such policy, their benefits are still higher and there will be less incentives to change such policy.

    Should we change the law then? Should we impose liability to the school for cancelling the admission? Should we force them to accept a child whatever his/her sickness is and whatever the probability of that sickness in infecting other kids is? I admit, these are very hard questions, and before we can answer those questions, we should analyze first the economics of preventing risk of infectious diseases. The State of Illinois can be a good example where it requires all international students to have immunization from certain diseases. Failure to do so within a certain time frame will cause the students to be rejected from registering for the remaining quarters in an academic year. Can we call this as a discrimination to immigrants or visitors? Might be, but voters love a state that seems to protect their citizens interest and the state can always say that it has the obligation to protect its citizens from any unwanted casualties.

    This is precisely the problem faced by the above school. On one hand, the risks of accepting a kid with HIV positive might be very small to the other kids enrolled in such school, after all, HIV is not a disease that can be easily transmitted to other person. But on the other hand, even though the risks are small, the majority have different perception, which, I suspect, is caused by availability heuristic, i.e., since HIV is such a famous disease with significant adverse effect to a person's health, people tend to think that the risks of having such sickness is also high and therefore they reject any possibility of having a kid with HIV positive around their kids.

    If my prediction is correct, imposing liability to the school will make no sense. You can't expect them to solve the problem that is out of their control (you can't control the preference of all the people in this world and it would be even harder if these people are already becoming your stakeholders), and it is likely that even when the kid is finally admitted, she will receive more discrimination from other kids and their respective parents (because we know that even when the kid is not admitted yet, some parents have already voiced their concerns and rejections). It's a bad game for the poor kid. Of course, this should not be the end of the world for the kid.

    Other schools might actually take this opportunity as a marketing tool. But to achieve that, they must state their policy from the beginning. As an example, they should say that their school is opened to any kids with HIV positive and that they will provide a safe environment for everyone when they open their school registration. Stating this from the beginning will have the effect of screening parents that might not agree to have their kids sharing a class room with a positive HIV kid and therefore, we can expect less rejection from other parents. Only parents who support such idea who will send their kids to the school and this will allow the creation of a better environment for the HIV positive kid.

    Borrowing the term from one of my Professors, Lior Strahilevitz, we can call this strategy as an exclusionary vibe. You effectively screen people who disagree with your policy and discourage them from getting into your community without having to say that you reject them. It's a double edge sword, it can be used to discriminate people, but it can also be used positively, as in creating a healthier environment for kids development. Furthermore, can this be a good business? I would think so, there are still many people who buy the idea that having a non-discriminatory school is good for the education of their children. And when these schools can attract many students, other schools will soon follow.

    To close this post, in dealing with hard cases like this, sometimes, imposing liability would only increase the costs for each parties involved and might not be beneficial for the kids. Using strategy to raise public awareness is good, but I would suggest not to continue with a legal fight unless we can ensure that the problem lies within the school itself and not the parents. Because if the other parents are the problem, punishing the school will only add more fire to these parents, and the end result might be backfired. Remember, you can't control people preferences, it would be more effective to screen these people out and build a different business. If it is profitable, and my guess is: it is, the problem can be solved quicker than we thought.

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