The Chronicles of a Capitalist Lawyer

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

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

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

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

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

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

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

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

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

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

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

MacKinnon Arguments Against Prostitution

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

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

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

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

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

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

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

An Economic Analysis of Prostitution

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

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

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

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

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

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

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

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

A. The Problem of Equal Position in Heterosexual Marriage

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

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

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

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

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

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

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

B. Family Law Complexity

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

1. Child Status

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

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

2. Inheritance

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

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

3. Divorce and Child Care

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

4. Joint Assets and Tax Problems

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

5. Conclusion

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

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

Good Samaritan liability basically means imposing a legal obligation to a bystander (to the extent he has the capacity to help) to save a person in need of help. Thus, in case the bystander fails to save the person in need, and such person is harmed, the bystander will be liable. This is one of the interesting issues discussed in law and economics of torts. The case that inspires me is the Chinese toddler case (you can read the details here), where a Chinese toddler was being struck by a car, and no one helped her for quite a long time until a second car hit her again. When someone actually helped her, it was already too late, and she died in the hospital. If only the bystanders around the toddler helped her immediately, she might be saved and the story will be a happy ending one. Unfortunately, that's not the case here.

I asked some of my LLM Chinese friends in University of Chicago about this case and they confirmed that there was a case in the Supreme Court of China where a person is being penalized for helping an old woman from an accident. The facts of the case were never clear and people make their own conclusions, one of them is that helping other people may cause problem to you, especially when you don't know whether the people are really in need or they are just trying to put a scam on you (apparently, there are also cases where some swindlers trick people by pretending as accident victims and then blame anyone who nice enough to help them).

This is a serious matter, especially under the basic principle that people respond to incentives. If people can't determine whether their altruism as bystanders would be beneficial to all parties or at least don't cause them into any unwarranted trouble, their best rational choice is actually not to help anyone. And that is really bad to the society because it imposes a huge social costs to people in need. They can be helped with small costs, but because people fear that they will be in trouble if they try to help, these people in need end up with nothing or even bigger losses.

Now I remember that one of the comments that I see in Twitter is why not imposing a Good Samaritan liability? We impose liability to bystanders to help those in need in case those bystanders have the capacity to do so and the costs for doing such action would be low and lesser than the losses imposed to the victim due to the inflicted harm. Example: you're trying to cross the street and suddenly a car in full speed is about to hit you. I can easily save you by holding your hand and thus prevent you from being hit by the car. Doing that will not cause any additional risks to me (the car will not hit me) and if I don't do that minor action you'll die or at least be significantly injured.

Some people argue that liability should be imposed to me in this case based on the least cost avoider principle under the famous Hand's Formula (if you want to know more about Judge Learned Hand, see here). The principle basically says that a person should only be liable for torts in case the costs to avoid such harm (taking precautions) is lower than the loss imposed to the victim multiplied by the probability of the occurrence of such losses. Using standard economic approach, it's difficult to resist the strength of this argument, after all, the costs are lower than the benefits, surely, we should impose such duty to give the correct incentive for people to help other people.

However, I find this kind of approach as simply perverse. Not from morality point of view, but from an advance economic analysis. First of all, there is a problem of causation. It's easier to pinpoint a causation effect from an action rather from omission (as a caveat, I would like to emphasize that it's easier not easy). The standard of proof would be very expensive to prove causation in a case of omission. There is no solid evidence that even when I hold your hand, I can save you from a significant injury, after all it's an "ïf only"case. If you can't impose causation, how can you hold responsibility in economic terms? An easier solution for my hypothetical case is to impose liability to the car driver, because he is the one who hits you. In reality, if you survive, you will most likely sue him. If not, your family will sue him. And that would be easier for all parties.

Second, if we apply the notion that we are legally obliged to help other people whenever we are the least cost avoider (and there will be sanctions for failure to do so), it would be a disaster. Let us use an extreme case, imagine that there is a hungry child in front of you (you don't know him at all). Without food, he will not survive. You don't help him even though you are able to do so and he died shortly. Should you be liable in this case? My answer is no and it's for good reason. It will impose an enormous costs to everyone to always be aware whether there are people in need around them. Furthermore, the costs for enforcement will also be humongous. People will start to sue other people if they don't get help in case they think that they can be helped by bystanders. It can turn out to be a lucrative business for lawyers, but for great expenses to the society.

One solution to this, which has already been incorporated in our penal code, is to impose liability only to specific people who have clear legal duties to take care of such people in need. Example: duty of care by parents to their child. This can be an efficient rule if the duty is strictly imposed to people who have control over the people in need and therefore are in a better position to understand the need of such people.

Another solution is to protect bystanders from any liability in case they try to help. You don't need to give additional benefits to altruists, after all for these guys, helping other people has already increased their utility. But you may want to protect them from liability imposed by their good intentional action. The problem with this rule is again standard of proof in causation. Like I said above, in case of omission, it is harder to perceive the causation. But once an action has been done, that action can be placed in the causation analysis.

A no liability rule for all helpers might not be efficient in cases where bystanders don't actually help and instead cause additional problems. So another set of rule can be added, i.e. the no liability rule will only be applicable for bystanders who can show good faith in his actions and have the minimum reasonable skills to help. In this case, hopefully, people having no capabilities to help will stay away from helping other people in need and therefore they can avoid unnecessary problems. It's not a perfect system, some people who think that they are reasonably well to help other people may end up liable for reckless help but it is better than creating a system where everyone is not liable and thus there are less incentives to be careful in helping other people.