Adam Smith's View on Human Nature

The final paragraph of Coase's paper is very important that I will just copy it here for ease of reading. Enjoy!

"It is wrong to believe, as is commonly done, that Adam Smith had as his view of man an abstraction, an “economic man,” rationally pursuing his self-interest in a single-minded way. Adam Smith would not have thought it sensible to treat man as a rational utility-maximizer. He thinks of man as he actually is-dominated, it is true, by self-love but not without some concern for others, able to reason but not necessarily in such a way as to reach the right conclusion, seeing the outcomes of his actions but through a veil of self-delusion. No doubt modern psychologists have added a great deal, some of it correct, to this eighteenth century view of human nature. But if one is willing to accept Adam Smith’s view of man as containing, if not the whole truth, at least a large part of it, realization that his thought has a much broader foundation than is commonly assumed makes his argument for economic freedom more powerful and his conclusions more persuasive"

In Defense of Legal Positivism - A Reply to Imam Nasima

As the title says, this article is a reply to a very interesting post from Imam Nasima on Legal Positivism Trend in Indonesian Legal System. As interesting as it may be, personally, the article raised a fundamental question, i.e. did Imam and the people he mentioned in his article discuss Legal Positivism as a legal theory or as a method of legal interpretation? If they talked about the second, I'm afraid that there is a misunderstanding here and my gut feeling says that this is a mistake similarly made by the majority of Indonesian legal scholars who deal with progressive legal theory.

Legal Positivism as explained by HLA Hart does not specifically deal with method of legal interpretation. After all, it is a theory about the law, on why law exists and has authority upon the people. In Hart's view, a rule existing in the society shall be treated as a law when the majority of the people in such society accept the authority of such rule from an internal point of view and the legal officers in such society treat such law as an authoritative source in rendering their decision.

Hans Kelsen, the father of Legal Positivism in the Civil Law tradition, also holds a similar position, albeit in a more normative way, i.e. that the validity of the laws is based on power conferring norms existing in a hierarchical system until we reach the basic norm where we presuppose the authority of such basic norm. Upon reaching the basic norm, Kelsen believes that the acceptance of the community of such basic norm is basically a social fact, something that cannot be explained by legal theory anymore.        

Thus, in short, under Legal Positivism, law is a social fact, and to certain extent, it might be just a matter of head count. If most people believe and treat a rule as a law, such rule will eventually be considered as a valid law (of course this is a super simplified version of the theory). This however, brings us to the next question i.e., what's the relationship between Legal Positivism and legal interpretation?

A book titled: "Between Authority and Interpretation" written by Joseph Raz, one of Hart's best students, can give a good hint that a theory on legal authority does not automatically deals with theory on legal interpretation. In fact, to the best of my knowledge, I do not think that legal positivism endorses certain kind of legal interpretation method over another method.

This is the crucial point when we deal with Imam's post. From my reading, the critics to Legal Positivism made by the people in his post seem to be confused because they mix up Legal Positivism with rigid textualism. The idea that judges and lawyers should see beyond the text of the law is not an idea rejected by Legal Positivism.

Hart, which was also a master of the linguistic philosophy, acknowledges that there is a limitation for languages in delivering meaning, namely, there is a penumbra, a condition where confident speaker of the language will have different interpretation of a term. In other words, languages might not be able to convey the full intention of the speaker. And in such case, interpretation would be necessary.

Granted, in Hart's view, legal cases should be divided into two types, the easy cases and the hard cases whereas in easy cases, legal interpretation should be minimum since the judges will only need to apply the relevant law to the particular facts while in hard cases, judges will have more discretion. But even in easy cases, Hart believes that there are instances where judges do not have to apply the rules due to reasons such as justice and morality.

Regarding the above division of easy and hard cases, rather than making a normative argument, I think that Hart is making a practical argument, namely, the division is made based on his assessment of judges practices in the real world.

Most modern legal positivists believe that there is no prima facie moral obligation to obey the law, i.e. that the law does not have the highest power to exchange any moral reasoning that can be used by someone as a reason for action. The authority of the law simply lies in the fact that most of us accept such law as an authoritative source but it does not necessarily mean that we have a primary moral duty to obey the law and disregard any other moral reasoning.     

This is consistent, I believe, with Hart's theory that law is a social fact. It is the fact in the real world that will determine how the law will be accepted, implemented and interpreted. Hart's theory of Legal Positivism therefore cannot be expected to endorse certain moral values or method of legal interpretation.           

So what is the real problem here? If legal positivism can accept interpretation of legal texts, why are we still seeing people blaming Legal Positivism for the lack of progressive movements in Indonesia legal community?

Two possible explanations can be given here. First, the majority of Indonesian judges might actually believe that the law should be interpreted rigidly. Second, rigid interpretation is only being used to justify judges prior belief on certain moral and social issues. For both cases, further research should be done to know what the judges really think. In the United States, such type of research is common because their legal scholars really want to understand how judges will decide cases and what factors will be considered by them. I don't know though about Indonesia or whether our researchers will walk on the same path.

In any case, given the above explanations, I do not think that Legal Positivism can be blamed for the rigidity of the judges (assuming that is correct). Again, we return to the concept of law as a social fact. Legal Positivism will just say that descriptively, the majority of Indonesian judges adhere to strict textualism. Therefore, we can say that in Indonesia, the use of strict textualism will be considered as an authoritative way of reading the law. That's it. As simple as that.

Whether having strict textualist judges is good or not is a completely different question and I don't think that Legal Positivism would have the answer because it is not in the scope of a descriptive/positive theory to say about something normative such as, whether we ought to have judges who are not strict textualists and who will consider other norms and values in rendering their decision.

For me, the fact that Indonesian judges are strict textualists (again, if the assumption is correct since we need more data) does not have any correlation with Legal Positivism. I mean, I am a supporter of Law and Economics movement, who believe that legal rules should be interpreted in a way that maximize efficiency and the welfare of the society, and at the same time, I am also a Legal Positivist. 

Can that actually happen? Being a Legal Positivist and at the same time becoming a supporter of Law and Economics? Why not? The problem is, Law and Economics is not yet a mainstream thought in Indonesian legal community and therefore, I would safely assume that most Indonesian judges would not taking it seriously, or even consider it as a part of valid consideration in deciding cases.

But should I blame Legal Positivism for such problem? Of course not. The only reason why strict textualism can become an authoritative method of interpretation is because most of the judges adhere to such method, not because Legal Positivism imposes a normative criteria that good judges should only use strict textualism in order to become authoritative. 

If say, I would be able to convince most Indonesian judges in the future that Law and Economics is the best method of legal interpretation and most of them accept such theory and apply it in their cases, would not it be that from Legal Positivism point of view, Law and Economics becomes an authoritative method of legal interpretation that should be followed by the judges? This shows that any method of legal interpretation can live side by side with Legal Positivism.

I think that blaming Legal Positivism for Indonesian judges behavior is misleading. At the highest level, we are dealing with social facts, not normative issues. Prior to 1970s, Law and Economics was not a mainstream thought in the United States, but after the work of many people including scholars, law schools, and NGOs, it became a mainstream thought and currently holds a strong position in antitrust and corporate law cases (though weaker in the field of contracts and torts). The same thing might happen with the legal progressive movements in Indonesia. The question is, do they have a strong basis to convince our judges and lawyers to convert their belief or they simply don't have what it takes to survive in the field of legal theory? Time will tell.  

Quantifying the Law? Why Not?

I attended a national conference on the rule of law last week. At the conference, I presented my paper on the application of public choice theory into legislation system in Indonesia.

(Those interested to learn more about the subject can go to my website and search for the 'public choice' tags by clicking here)

It was a nice experience and a good chance to see how Indonesian legal scholars perceive the law and its normative values. Having a quick reading on various papers, it seemed that abstract normative analysis still conquers the Indonesian legal scholarship, at least from the conference attendees. In this context, abstract means vague principles or values that are difficult, if not impossible, to quantify.

For instance: the idea that law should promote the interests and happiness of the people, that law should promote justice and national interest etc. There is nothing wrong with promoting such ideas in terms of freedom of expression, but the problem is that abstract values usually stay vague in practice.

In one discussion, a participant raised a question that is addressed to me: "Should we quantify the law?"

I replied, "To some extent, of course, we should."

If we want to speak about normative legal issues, about what should be done through the law for the betterment of the society, quantifying the law is absolutely necessary. This is, after all, the essence of all of my law and economics discussion in this blog.

Normative law and economics uses terms like efficiency, costs and benefits analysis, and welfare maximization as tools to analyze quantitatively whether a law can really make a society better off after the enactment of such law, and whether a law will improve the welfare of the society or only imposing another unnecessary burden.

We all know that the law should be made by the people, of the people and for the people. Not the other way around. But how can we really know that a law is made for the sake of the people if we do not have any standard for measuring a successful law?

Therefore, how can we say that a law is good or bad if we are simply relying on abstract standards? Even worse, have any of you realize that politicians love those abstract standards because they can abuse them as a way of gaining votes or distracting public attention?

Anti-corruption law is a good example. Politicians play with people's moral values when they toss the idea of whether death penalty should be abolished for corruptors. The debates range from the protection of human rights, the moral cruelty of corruption, to deterrence effect of the death penalty (on the basis that death penalty is the ultimate punishment).

The notion of law and economics would criticize the above abstract discussion because frankly there is no way that we can resolve a conflict between those basic principles until the end of time. Some people still think from morality point of view that death penalty against human rights, while others think that it is fine if it is used to punish such a morally reprehensible act.

Instead, law and economics will ask the following questions:

1. Are there sufficient data supporting the claim that death penalty really reduces the rate of crime?

2. Is death penalty an efficient sanction for corruption? Or should we instead focus on something else, such as taking away the corruptors assets and preventing them to take any other official positions?

3. What would be the cost and benefits of having death penalty from procedural perspective? Is our criminal justice system ready to implement the higher standards of imposing death penalty?)

By proposing the above questions, we are, in a sense, quantifying the issues that need to be tackled in order to formulating a good law. We think how the current procedural problems in administering death penalty will affect the people, the innocent and the villains (the costs that will be imposed to them); the impact of solving such problem to our state budget; the incentives that we will create for current and future corruptors, etc.

Of course, quantifying the law might not be a perfect standard, but it would be better to have some concrete measures of success than none at all. And the above is just a really simple explanation. The same way of thinking can be used for analyzing any area of law, from criminal law to family law, and will be effective in analyzing controversial laws such as laws dealing with people's clothes.    

Quick question, have we ever heard any of our politicians ask similar questions with the questions presented by law and economics? Most likely no.

Why bother asking the public to think critically about very important issues if nice rhetoric is enough to make the public confused or to vote for the most dramatic act of politicians?

The Law and Economics of Police Compensation

The National Police Deputy Chief Nanan Sukarna on Thursday admits that there are corruption practices in his organization, as quoted by tempo.co. One of the many factors he cited was inadequate salary for police officers.

"How should we ask them to not stay clear of corruption if their salary is not enough to pay for their children's school?" he said.

From an economics perspective, this is an interesting topic. It is widely known by the public that being a police officer who only depends on salary will not make them rich or even survive day-to-day living. But despite such truth, why are there still many people apply to be one? If the job and payment are that bad, why do they pursue such career?

A case like this offers several explanations. First, it might be possible that the majority of people who apply to become a police officer put more value on the authority attached to their position. This means that for these people, the fact that they gain such position is more valuable than getting a civilian job — even with higher salary. Thus, there is a trade-off between authority and money.

Second, it might also be possible that the applicants believe their comparative advantage is to become a police officer and they will not be able to compete with other people in doing their jobs. As a result, receiving low payment is a risk they must bear due to their own limitation.

Third, worst case scenario, the applicants might see a possibility of becoming rich in the future, provided they can use their power for their own benefits. Being underpaid can be considered as an investment that must be sacrificed in order to gain more money in the future.

Last but not least, it is always possible that there are some people out there who pick the career as a temporary job until they find a better job offering. These people might be clueless about their choice of life or simply see the police badge as a stepping stone into something bigger.

Based on the possibilities above, we have two complex issues to be solved if we want to reduce the level of corruption in the police body.

First of all, we don't know to what extent the trade-off between salary and authority will remain useful to control the behavior of the police. Will eventually the basic needs of life defeat the need to obtain power and respect in the society? I'd say yes.

Then, how does one control authority? Without any proper check and balance mechanism, the ability to abuse the authority would increase significantly. Thus, the fact that they can't get much money from their salary would be meaningless since they can get more money from abusing their authority anyway.

In solving the above issues, although its effect is limited, increasing the overall compensation of police officers might be a good start. It must be combined with good indoctrination on the intrinsic value of becoming a police officer and strict sanctions for violation of code of conduct.

Otherwise, increasing the salary would be useless since they can get higher income from doing side jobs and abusing their authority — and they have a lot of incentives to choose that way. In such case, we will end up wasting more money for paying higher compensation, but with worse results.

If we do choose to increase the overall compensation, there is a budgetary problem. Asking the government to simply increase their salary might be problematic if the government does not have enough fund. So, what if we sell certain services of the police to private parties but with different price tag?

Although this might be a good way to raise funds, it will also create discrimination of service. I fear that the costs of such discrimination might outweigh the intended benefits.
 
Once the police service can be legally bought by certain party with higher price, the police will have more incentives to act for a certain group instead of the society and thus they will no longer be different from private security officers or troops.

It would be nice if they have enough officers to satisfy the entire need of the society and the higher price for special services can be considered as a subsidy from the rich to the poor. But if the supply of police officers is limited, it will be counterproductive.

Another thing to be considered is to let criminals, especially those that are involved in financial crimes and corruption cases, to bear the costs of legal enforcement. This can be in the form of giving a portion of the recovered assets or fines for such crime to the police officers who successfully solve the criminal case.

Of course, the case must be legitimate and any abuse of authority in getting the additional benefits must be strictly punished (including taking back all of the profits made by the officers from such illegitimate case) to avoid any incentives to bring false claim to innocent people. 

My final suggestion is to make the resignation process easier within the police corps. Considering the fact that the compensation is not high enough, it might be better to let officers leave as soon as possible once they feel that this is not the right job for them.

This might save a lot of money and reduce the incentives to corrupt from the very beginning. If you realize that being a police is not the right job for you and yet you have no way out, what would you do? Could you stay sane or would you succumb to the temptation of corruption?

Men are weak, so we should not put too much burden on them.

Once Again On Blasphemy

Suppose you believe in Religion X and A is your God, and someone comes to tell you that your belief is false — A is a mere human and therefore he is not worthy to be worshiped. Would you call the scenario as a blasphemy to your religion?

If the answer is yes, then we have a problem because in reality, most religions — if not all — claim other religions are false or misleading. As you can probably tell, the above scenario is about Jesus. In Christianity, Jesus is God. In Islam, Jesus is not God: He is a human, one of the prophets sent by the almighty God.

In my previous post, 'The Law and Economics of 'Innocence of Muslims,' I argued that defining religious blasphemy is very difficult from the perspective of freedom of speech. Now I would like to emphasize the logical problem of having anti-blasphemy laws when we have so many religions in this planet. Thus, another reason why we should not support the existence of such law.

Why do we have so many religions? If it is true that all religions are the same, surely we have already converged all of them into a single faith a long time ago. But no, we know that will never happen because each religion claims the truth for itself.

Even in case where a religion accepts the possibility of having truth from other religions, it does not change the fact that such religion still claims the truth of its own teaching. I dare say that the policy of recognizing the truth of other religions is just a way to maintain stability rather than an actual confession of faith.
 
Why? Because it is simply illogical. A Christian can't say Jesus is God and at the same time accept the possibility that Muslim's claim that Jesus is not a god is true.

Or you may want to say that at the basic level, all religions teach the same things despite the differences of gods. But that would be another problem. Why bother having religion if the concept of God no longer matters?

The most important thing I want to show here is that there will always be a friction between different religions. It might be slight, but it might also be very sharp. Combine that with religion followers who have low tolerance level and we would have a great recipe for disaster.

Would anti-blasphemy law help? It depends. If we are talking about a law that will punish people who are considered as blasphemers, such law will not help at all. Even worse, it might be counterproductive.

An easy example would be the story of early Islam development. Prophet Muhammad must had spent years of his life in Mecca teaching Islam in the underground because his teaching was considered as a blasphemy among the Arabs at that time.

If not, why bother migrated from Mecca to Medina? Because Medina's citizen was more tolerant? Because it did not have the crazy people who will kill you because you are considered as a blasphemer?

How many early Muslims were killed arbitrarily in Mecca? How many of the killers were judged and deemed criminal for killing the early Muslims? We are quite lucky that the history changed and later on Islam became the religion of the majority in the Middle East.

Nowadays, Muslims can easily claim that those Arabs who worshiped stone gods are stupid and irrational. But the main reason why we can safely make that claim is because we are in the majority, not because we are absolutely correct or because those stone worshippers were indeed really stupid. That's the harsh truth.

This is why I don't support anti-blasphemy laws, because it brings us back precisely to the jahiliyyah era or pre-Islamic period. As long as you are in the majority, you will be fine. But not when you are in the minority.

Furthermore, there is no guarantee that we will always be in the majority nor that we will always be able to protect our minority brothers and sisters out there in case the other majority group decides to retaliate against them.

My suggestion is still the same. Don't waste our time fighting due to badmouthing. We can simply avoid conflicts by letting people choose what they want to believe and what they want to share with everyone else, provided that no elements of violence is involved during the process. 

If in the end you are still suggesting people to fight back all bad mouthing using violence, then I'm afraid we have not evolved to be better men during the last 1,500 years.

The Law and Economics of 'Innocence of Muslims'

I'll admit it: I have not watched "Innocence of Muslims," the anti-Islam film that has been blamed for causing ruckus around the world. Why? Well, I have more important things to do, one of them involves an amateur cooking competition with my friends.

Personally, in terms of importance, such movie sits in the category of "absolutely not important that even staring at the wall for 2 hours would still be better." The problem is, not everyone shares the same view. But before we discuss why Muslims are against the film, we should first study why some people are still trying to make a movie like this.

From economics perspective, the reason might be very simple: because with such a minimum cost, the movie can maximize the damages caused to the world, which I assume will also maximize the makers' own pleasure or benefit.

Why are the costs so low? Based on the comments of those who have seen it, "Innocence of Muslims" was a low-budget movie (bad editing, amateur actors, etc). And it is unlikely that the filmmaker - who, according to Wikipedia, resides in California - will face legal penalty in the United States.

The first reason might be the protection of free speech, though this is debatable. The second reason might be the fact that the United States does not want to show any weaknesses toward the demand of the Muslim worlds, including the terror they received in Libya which caused the death of the US ambassador and three other Americans.

On the first reason, the protection of free speech is indeed complicated. People may argue the movie is a hate speech. But what would be the correct standard? I mean, I've seen a lot of movies and jokes harassing Jesus in such a really bad way and yet, I have not heard any case in the United States sanctioning the makers. Should we measure hate speech from objective or subjective requirements?

The second reason is even more problematic. The movie undoubtedly triggers heavy protests from Muslim communities around the world. And within the protesters, some of them may use the event to promote their own idea of violence and war. Perfect timing indeed.

If the United States penalizes the filmmaker, it can be assumed by terrorists and war mongers that the United States is bowing down to their threat and thus, in the future, it would be easier for them to demand things from the United States as long as they kill certain US citizens.

In other words, the United States would also have difficulties in punishing the stupid filmmaker based on political reasons. I borrow this analysis from Prof. Eugene Volokh, a law professor from UCLA, and I agree with the basic premise.

If the filmmaker realizes the above facts (and I assume he was not stupid enough to bring the video online without thinking the consequences), it would be rational for him to actually publish the video since his own personal benefits outweigh his costs.

Unfortunately, this is inefficient and bad to the overall welfare of the society. Currently, triggering protests from the Muslim world using cheap tactics (such as this movie) has a success rate of almost 100 percent - if not 100 percent. And it is most likely that the protest can turn into a riot.

This is completely different if the movie is directed to, say, Christians. As I've said above, there are so many jokes and movies depicting Jesus in such a bad way that I am certain if you change the character into Muhammad, the makers will not live long enough to see another day. Heck, we even have a Jesus parody in Twitter.

Why do Muslims and Christians have such a different approach in handling these kind of issues? Could it be that it has something to do with education and living standards?

But as long as most Muslims continue to retaliate, I believe the cycle would never end. The supply of people similar to the above filmmaker might be endless and they will definitely take the advantages they currently have, i.e. free speech protection and political reasons.

The most efficient solution is of course ignoring these buffoons. After all an ant can't cause harm to a blue whale. The problem is, it will take a long time to reach that stage (if ever).  

I can only hope the majority of Muslims will follow the Prophet basic rule in dealing with bad mouthing: Just ignore those people. Good for your health, good for your image, and less trouble for all of us. We still have many urgent matters which are more important than a stupid movie.

Three-in-One Jockeys and Legal Avoidance

Someone said on Twitter that corruption will never be effectively banished if people are still violating traffic regulations, including the three-in-one rule by using the jockeys service.

Three-in-one policy requires vehicles to have at least three passengers on busy roads at peak hours. The jockeys are hitchhikers who are paid to ride in a car when passing the main roads.

I won't discuss whether such rule is valid under the current hierarchy of laws, but or the sake of this discussion, let's just assume the three-in-one rule is legally valid and binding. 

What I mainly disagree with the above statement is that using the service of jockeys is a violation of law that will somehow induce the people to corrupt - using a logic that if you can't be trusted for small matters, you can't be trusted for huge and important matters.

First of all, the rule only says that people who want to travel within the restricted roads must have at least 3 passengers inside their car. It doesn't stipulate that the people in the car must come from specific place or go to specific directions. Nor does the rule say that only certain type of people who really intend to use the car for traveling purposes might be considered as a legitimate passenger.

Having such condition would be an enforcement nightmare as finding the proof of violation and checking the overall background of all passengers would be very difficult, if not impossible. Not to mention the vagueness of the rule itself with respect to conditions for being considered a passenger.

Nevertheless, some people still think that the three-in-one rule is enforced in order to reduce the traffic jam, and using the service of jockeys will defeat such purpose. In other words, the use of three-in-one jockeys is a form of legal avoidance and should actually be prohibited.

The concept of legal avoidance is indeed confusing. On the one hand, it seems that you already comply with the prevailing laws. But on the other hand, you are deemed using the law to escape the consequences of your action which may violate the law's purpose or essence. Thus, your action will be deemed invalid.

To be honest, I refuse to admit the existence of legal avoidance concept. It is either you comply with the law or you violate the law. If there is no strict rule saying that you are violating the law, what would be the basis for some people to come and say that you are violating the law when you are still complying with the law? That would be absurd.

To follow the logic of people who support the existence of legal avoidance, take the three-in-one rule as an example. Bringing the jockeys in your car will let you satisfy the three-in-one rule. But because taking such jockeys somehow defeat the purpose of three-in-one rule, i.e. reducing traffic jam, you are already violating the law. The problem is, says who?

In any way, despite your choice of action, the three-in-one rule will most likely reduce the traffic all the time. Why? Because it creates additional costs for drivers to use the road during the three-in-one period. Either you take two more of your friends/colleagues or you pay for the service of jockeys.

The first type requires the costs of maintaining friendship, or maybe time, because you don't always have the same schedule with your friends. The second type requires the costs of paying jockeys or reduced level of security - after all, you are taking strangers into your car.

Thus, you can consider three-in-one rule as another form of tax or levy for the sole purpose of giving less incentives for people to travel within the three-in-one periods. If that's the case, then using jockey is not even a legal avoidance - assuming such concept exist - because you are still complying with the so called purpose of the rule, albeit in a different form.

This kind of act is completely different from mere traffic violation, such as trespassing the traffic lights. There is no doubt that such act is a violation because it directly breaches the rule. Under our criminal law principles, an act of criminal will always be considered as a criminal unless the defendant has a valid excuse - such as in case of force majeure or self defense.

Hopefully, you can see the difference. The key would always be whether there is a direct violation of a rule or not.

Next time, I would like to discuss whether there is a correlation between violating small rules with one's tendency to violate bigger rules, including corruption. Stay tuned.       

On Finding the Proper Penal Sanctions

The verdict for drunk driver Afriani Susanti has been issued earlier this week: 15 years in prison for killing nine pedestrians in an infamous traffic accident. She was deemed guilty not of intentional murder, but of reckless and fatal driving.
 
I won't discuss the verdict from legal perspective here. 15 years in prison is the maximum sanction she can get if she is deemed guilty of intentional murder. What I am more curious about is the way to find the proper penal sanctions for various criminal activities.

In my January 2012 article about Afriani, I argued she must receive higher penalty — by categorizing her crime as an intentional murder — in order to reduce the incentives for other drivers to drive recklessly.

At that time however, I did not think deeply about the most efficient sanction for her crime. I only followed standard Law and Economics doctrine that a sanction of multiple crimes should always be clearly differentiated with a single crime, simply because we want to give less incentive for criminals to commit more crimes.

As an example, if the sanction for rape plus murder is equal to the sanction for rape only, a rapist will have more incentives to kill his victim because he will receive the same sanction. But the costs of him to hide his crime would be lower.

In reality, however, differentiating the sanctions for multiple crimes is difficult. And the case would be even harder for differentiating sanctions for various types of crimes, especially when we focus our sanctions in the form of prison and fines.

What would be the proper sanction for thievery, corruption, rape, murder, fraud, violence, genocide, etc? How would we properly differentiate the sanction of a killer of one person and a mass murderer?

Judges often become the victim of this absurdity. On the one hand, our legislators are not that creative in designing penal sanctions. On the other hand, the general public often have obscure ideas about justice and how justice should be served for these criminals. In the end, judges will be blamed for making the "wrong" decision.

What I would like to propose is to analyze each type of crime, to study the incentives of each criminal in conducting the relevant crime, and to design a sanction which will defeat the purpose of doing such crime and maximize the welfare of the society.

Further consideration should also be given to the cost of law enforcement, the compensation to be given to the victim as a result of the crime (if any), and the probability to prevent the same crime from occurring again (recidivism).

In Afriani case, she drove while she was being intoxicated. It is a very dangerous behavior, indeed. But would 15 years in prison serve her (and any other person committing the same act) right? How about we give her a sanction in the form of a lifetime ban from driving, a huge fine as a compensation for the victim, and countless hours of social service?
   
Then when she fails to obey the above sanctions and commits similar crime in the future, we send her to prison for a lifetime simply because she is too dangerous to exist in the society.

Why do I design the sanction in the above form? First, we know she is a very reckless driver. I doubt putting her in prison will fix that. And maybe 15 years after, she will still do the same thing. What is really necessary is to ban her from driving infinitely.

Second, putting her in prison is another costs to be paid by us taxpayers (not to mention that the costs of prison will include all reckless drivers involved in similar cases, albeit having different degree of crime). Why not focusing on giving compensation to the victim instead of wasting taxpayers' money?

Third, forcing her to do social service might be more useful than putting her in the prison. At least we can expect her to give more contribution to the society rather than paying her cost of life in jail.

And if all fails and she breaches her obligations above, we can justify the decision to put her behind the bars indefinitely, i.e. she is dangerous to the society.

Of course, if we know that Afriani intentionally kills those victims because she likes it, we can directly put her in prison or send her to the death penalty squad. In other words, incentives of the criminals matter.

As you can see, discussing the proper sanction for a single criminal act like reckless driving is already quite complicated, but this is necessary. If our government and legislators really care about legal enforcement, they should think carefully before they criminalize an act.

A single law can have a great impact to the overall society. So let us ensure such great impact does not affect us in a negative way.

The Correct Way of Measuring Political Consistency

Don't you just hate the fact that many politicians seem very inconsistent in making their political choices? Supporting candidate A today, B the next day.

I still vividly remember a politician who was criticizing one of the independent candidates in July's Jakarta gubernatorial election for the candidate's lack of experience, and then changed his position to be a firm supporter of that candidate once his own candidate failed to join the election process.

We see similar things happening now when some political parties, who previously attacked the incumbent candidate, decided to support the incumbent after tragically losing the first round of the election.

Is this really a bad behavior? Should we condemn such act? I don’t think so. Far from being a reckless act, the change in political choices made by these politicians is simply rational. They would be stupid if they did otherwise. Why?
 
Surviving in the business of politics requires similar skills that you need in order to survive the world of commercial business. Politicians must realize, while their wants are unlimited, their resources and choices are limited, including the number of voters that will support their cause.

In the real world, you can't always get what you want. If you can't get your best choice, you should strive for the second best and so on, to the extent that you still can achieve your end goals, or at least a part of such goals.

The last US presidential election can be a good example. When I was in the United States, I once encountered a political campaign ad from Mitt Romney showing a video record of Hillary Clinton accusing Obama a liar. That was a very strong choice of word.

Obviously, the video was made before Obama defeated her in the presidential nomination race of the Democratic Party in 2008. Afterwards, Hillary became a firm supporter of Obama and now she holds the Secretary of the State position in Obama's administration.

I think that is how the political world works. Politicians use strong words in order to attract voters and to differentiate themselves from other candidates. If you say that all candidates are good, why bother having the expensive election in the first place. We can't settle everything using lotteries.

Thus, it is not a good idea to measure politicians' consistency based solely on what they say during election process or how they change their support from one cause or candidate to other cause/candidate in a short term.

Instead, it would be better for us to measure their consistency from how close they stay true with their basic objectives (assuming that the party itself has such objectives) in a long term.

This means that we need to know to what extent they will compromise their original best plan for getting the second best plan (and so on) in case they don’t have the necessary vote. And knowing the extent of their compromise is much more difficult than reading the bombastic campaign in various medias.

As an example, every media can cover a story of a politician who changes his position from A to B. But why stop there, why not ask more, like the politician's reasons for changing his standing, or how much has been compromised in order to change the vote from A to B, and so forth?

In one of my previous articles, "The Economic Problem of Choosing the Best Leader," I argue how we might create a vicious circle if we let bad politicians rule the game. One of the solutions for us to fight back is to pay more attention to the track record of those politicians.

But in order to understand their overall track record, we cannot rely on insufficient data. Sure, change of political support would be a major news and a good source for political bashing by political rivals. The problem is, everyone is doing the same and people will soon forget the case.

What we really need is a media who records the development of a political party or politician for years and then share the information to the general public. I don’t think that is difficult in this modern age and I bet the information would be more helpful to all of us compared to the usual critics that we now have.

If we really care about how politics shape our life, at least try to make people understand the issues correctly. The battle for image is absolutely necessary for political campaign and it might be impossible to ask those politicians to completely let such practice go.

Surely we can ask the independent parties, i.e. the media, to provide the needed check and balance in our political system, can't we?  

Revisiting the Function of Penal Sanctions

Here is my latest post (in Indonesian language) at ILUNI-FHUI site: Revisiting the Function of Penal Sanctions. The post discusses the use of Law and Economics tool in analyzing the role and use of penal sanctions and how we can shape our penal sanctions to meet their primary purposes.

Using Religion for Political Campaign, Why Not?

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 Olympic Scandal: Sportsmanship Issue or Poor Strategy?

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.

Anonymity and Information Reliability

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?

The Economic Problem of Choosing The Best Leader

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. 

Do Eternal Holy Laws Exist?

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.

Moral Violation and God's Punishment: The Missing Link

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.

Human Capital and Neoliberalism

Around two weeks ago, I had an opportunity to attend a debate on Neoliberalism Thought at the University of Chicago between Gary Becker (Professor of Economics at the University of Chicago), Bernard Harcourt (Professor of Law and Chair of the Political Science Department at the University of Chicago) and François Ewald (former assistant to Michael Foucault and Professor of Insurance at Conservatoire National des Arts et Métiers, Paris). I think the quality of the debate is very good and it would be a pity if I don't share the ideas raised in such debate in this blog.

First of all, the debate spins on the idea of Homo Economicus or the Economic Rational Men by Gary Becker. Michael Foucault, a famous French philosopher and historians, believe that Gary Becker's idea on economics rationality provides the necessary theoretical foundation of Neoliberalism. This is interesting because usually Neoliberalism is more associated with political economic thoughts rather than pure theoretical economic thought.

I think even most of the time, when Indonesian people talk about Neoliberalism, they think about the idea of excessive free market, non governmental intervention, injustices by corporations and dictators, etc. Of course, I heavily doubt that this is the correct interpretation of Neoliberalism since pure Capitalism does not support any crony capitalism, dictatorism, business without liabilities, and so on. See my previous post on this issue here.

For now, let us return to Foucault ideas. He is a proponent of the idea that history is determined by the power relationship that controls men. Law and morality are things that are defined by those who have power and authority, and therefore they might be simply an illusion for the society. However, Foucault finds some consolations in Gary Becker's concept of Homo Economicus, which according to him is liberating.

Gary Becker, which is also a Nobel Laureate, is the proponent of idea that the science of economics can be used as a powerful tool to analyze almost all, if not all, of human behavior and activities. He introduces the use of economic analysis on crime, family and discrimination and is also considered as a part of Law and Economics development at the University of Chicago.

Within Becker's theory, human is viewed as a rational being that always wants to maximize his own interest. It does not mean that human has a perfect capacity of calculating the entire costs and benefits of his action. It simply means that when they are making their decision, they pay attention and respond to incentives, and thus, to certain extent, human behaviors are predictable.

A separate note though, even Becker agrees with Foucault that a perfect rational men is a fictional concept. What matters is that the theory is useful to understand the world in an insightful way by taking certain aspects of human behavior and make a simple model. After all, all theories are fictions, and a good theory of fiction is the one that works the best among many other fictions.

Then, why this kind of theory is liberating? According to Foucault, economists are seekers of truth, their analysis is not based on moral or legal issues, rather they focus on human behavior and incentives, and they also prioritize liberty (through free market concept). This is important for Foucault who sees the possibility of maintaining order without any coercion or doctrine as presupposed by laws and morality.

But the Neoliberalism view of Gary Becker is not totally free from any problem. Although it may be a liberating theory it can also be used to suppress the people and here we are moving to Gary Becker theory of Human Capital which is an essential part of Neoliberalism. Becker believes that human capital is very important, i.e. investing in people, making them to be a better and more productive person which will contribute to the welfare of the society.

The problem with that view, at least according to Harcourt and Foucault, is that once human is viewed as a part of capital, the government may favor certain group above other groups, discriminating and investing only in people who will produce the highest benefits and left the ones who are bad to suffer in the slumps. An example would be the case of mass incarcerations in the United States that target most of African Americans and poor people based on various criminal actions. Eugenics can also be a problem here since there was a time where the Government of US actually allow the sterilization of imbeciles and people with mental disorders.

Furthermore, viewing human as only a part of capital production could be degrading, i.e. human is viewed like a machine with the sole purpose of producing more capital and whose value is solely determined on how much capital will be produced and accumulated by him in the long run. I take this as the modern critics of Neoliberalism and Capitalism in general.

Becker's response was simple. His theory on human capital is established to liberate the people and while he agree that some aspects of economics theory on production and capital can be used to analyze issues on human capital, human capital is still a separate subject (and thus the reason why he makes a separate class on human capital in the University of Chicago).

From any point of view, human cannot be fully compared with machines. We can put machine in the warehouses and easily disassemble them whenever we want, we can't do that with human. Furthermore, the theory put a lot of stress in building human capital so that everyone may reap the benefit of social welfare. It includes investment in education, on the job training, health, etc.

The most interesting response from Becker is that his theory of human capital focuses on efficiency, but most of the time, things that are efficient, are also equitable. Through his theory, Becker want to show that human is the most important part of our capital. By investing in people, we hope that they can develop themselves and free to make their own life decisions without any interference. He also notes that there is an underinvestment in poor people and that is actually an inefficient thing to do, since better human capital always lead to better welfare maximization.

I completely agree with Becker's notion. This is indeed the main purpose of introducing the concept of human capital, preserving freedom and reducing paternalism, finding the most efficient way to allocate resources among the people. And I think this should be the main idea of Neoliberalism. It is just too bad that politicians and even some academics are using this concept in such a misleading way that they confuse the original concept of Neoliberalism that focuses on liberation and freedom of the people with crony capitalism, dictatorism, and the freedom to do anything without any legal liabilities which are not even parts of original concept of Neoliberalism.      

The Impossibility of Moral Enforcement

Let me start this post with the claim that I am a legal positivist, meaning that philosophically, I believe that the existence of law is based solely on social facts and that a legal system can validly exist without any moral basis. Note this, it doesn’t mean that the law cannot contain any moral values, it simply means that law can be separated from morality issues in order to exist.

This separation is crucial to understand why I take the position that pure moral enforcement would be an impossible attempt. I will also use the concept of separation of moral and legal issues in Islamic law to support my argument in this post.

As you may be aware, this world is full with people who believe that the morality of a society must be upheld and enforced even when there is no legal rules relating to such matter. Take the example of Lady Gaga’s concert in Jakarta.

I am not talking about the thugs who demand the concert to be cancelled since based on the facts on their usual practices, I don’t think that they are motivated by morality issues. It would be more accurate if we explain their motivation from pure economics issues.

What I am talking here are people who take the issue at face value and believe from an internal point of view that Lady Gaga’s concert adversely affects the morality of our nation and thus encourage the legal authorities to conduct morality enforcement by prohibiting the concert even when the legal basis is ambiguous or even non existent. 

Suppose that no legal rules exist concerning such matter. Can morality be simply enforced within such condition? The answer would be no.

First, different with legal rules which are usually accessible to the public and have more certainties with respect to their contents, moral rules do not have clear standards and authorities to which one can ask for a final judgment.

Second, legal rules exist in order to coordinate the behavior of the people. They exist as a response to social net loss caused by certain actions. While morality rules deal with decencies, things that are good to be followed by a person, where breaching such rules might cause disagreement from other people but not strong enough to justify enforcement (which would always involve costs).

Here are some examples from Islamic law provisions. Eating pork and drinking alcoholic drinks are both prohibited, yet penal sanctions exist only for being drunk. Why?

A simplified explanation would be: Because the net social loss of eating pork is questionable and might only affect people in a personal level while drinking problem creates social loss, especially in terms of accidents. Even the United States admits that drinking is indeed a social problem.

Another example would be the law on adultery. To accuse someone for adultery, you must provide 4 male witnesses with the highest standard of human being. Failure to do this would cause the other witnesses to be deemed of giving false testimony and there is a harsh penalty for that action.

Interestingly, the privacy rule in Islamic law is also very tight. Not only that you are forbidden to enter into someone’s private property, you are also forbidden to even spying at someone’s house. Breaching such rule will allow the home owner to hit you in the eyes.

In other words, the entire legal rules on adultery is structured to deal with adultery cases practiced in the public and those that fall under the scope of privacy will be considered as a moral issue. Notice this: Islamic morality will never deem adultery as a permissible act (you are still responsible to God for your personal action), but legal enforcement will only be conducted when clear social loss is established, say due to the public act.   

This brings us to the third issue. It is possible that moral enforcers might still argue that although breach of moral rules do not cause clear social losses, it still causes losses, at least to the people whose moral values are being harassed by such act.

I agree, this can be considered as a loss. But since the losses are pretty much subjective and solely related to the moral enforcer’s taste of decency, it is absolutely necessary that these moral enforcers adhere to the strictest standards of good human being. Why?

You can’t claim that you experience losses because some people are breaching the values that you perceive so highly when you don’t take such values seriously either. So this is a completely different issue with legal enforcement where such standard is not necessary as I argued in my previous article.

Now the final question for these moral enforcers is: Can you really adhere to your own principles?

Remember, God hates hypocrites more than people who consciously breach moral rules and admit that they are wrong.