Homosexuality in Ancient Laws

I was browsing through a website of ancient laws, and found evidence that the view of homosexuality as a moral offense was not confined to the Bible: The Code of the Assura, c. 1075 BCE (Assyria)

I.20. If a man have intercourse with his brother-in-arms, they shall turn him into a eunuch.

AVESTA: Vendidad: FARGARD 8. Funerals and purification, unlawful sex (Zoroastrian)

26. O Maker of the material world, thou Holy One! If a man, by force, commits the unnatural sin [sodomy], what is the penalty that he shall pay?

Ahura Mazda answered: 'Eight hundred stripes with the Aspahe-astra, eight hundred stripes with the Sraosho-charana.'

27. O Maker of the material world, thou Holy One! If a man voluntarily commits the unnatural sin, what is the penalty for it? What is the atonement for it? What is the cleansing from it?

Ahura Mazda answered: 'For that deed there is nothing that can pay, nothing that can atone, nothing that can cleanse from it; it is a trespass for which there is no atonement, for ever and ever.'

2833. When is it so?

'It is so if the sinner be a professor of the Religion of Mazda, or one who has been taught in it.

'But if he be not a professor of the Religion of Mazda, nor one who has been taught in it, then his sin is taken from him, if he makes confession of the Religion of Mazda and resolves never to commit again such forbidden deeds.

29. 'The Religion of Mazda indeed, O Spitama Zarathushtra! takes away from him who makes confession of it the bonds of his sin; it takes away (the sin of) breach of trust; it takes away (the sin of) murdering one of the faithful; it takes away (the sin of) burying a corpse; it takes away (the sin of) deeds for which there is no atonement; it takes away the worst sin of usury; it takes away any sin that may be sinned.

30. In the same way the Religion of Mazda, O Spitama Zarathushtra! cleanses the faithful from every evil thought, word, and deed, as a swift-rushing mighty wind cleanses the plain.

'So let all the deeds he doeth be henceforth good, O Zarathushtra! a full atonement for his sin is effected by means of the Religion of Mazda.'

31. O Maker of the material world, thou Holy One! Who is the man that is a Daeva? Who is he that is a worshipper of the Daevas? that is a male paramour of the Daevas? that is a female paramour of the Daevas? that is a wife to the Daeva34? that is as bad as a Daeva: that is in his whole being a Daeva? Who is he that is a Daeva before he dies, and becomes one of the unseen Daevas after death?

32. Ahura Mazda answered: 'The man that lies with mankind as man lies with womankind, or as woman lies with mankind, is the man that is a Daeva; this one is the man that is a worshipper of the Daevas, that is a male paramour of the Daevas, that is a female paramour of the Daevas, that is a wife to the Daeva; this is the man that is as bad as a Daeva, that is in his whole being a Daeva; this is the man that is a Daeva before he dies, and becomes one of the unseen Daevas after death: so is he, whether he has lain with mankind as mankind, or as womankind.'...

The Laws of Manu, c. 1500 BCE (India)

369. A damsel who pollutes (another) damsel must be fined two hundred (panas), pay the double of her (nuptial) fee, and receive ten (lashes with a) rod.

370. But a woman who pollutes a damsel shall instantly have (her head) shaved or two fingers cut off, and be made to ride (through the town) on a donkey.

The Laws of Manu, c. 1500 BCE

68. Giving pain to a Brahmana (by a blow), smelling at things which ought not to be smelt at, or at spirituous liquor, cheating, and an unnatural offence with a man, are declared to cause the loss of caste (Gatibhramsa)...

174. A man who has committed a bestial crime, or an unnatural crime with a female, or has had intercourse in water, or with a menstruating woman, shall perform a Samtapana Krikkhra.

175. A twice-born man who commits an unnatural offence with a male, or has intercourse with a female in a cart drawn by oxen, in water, or in the day-time, shall bathe, dressed in his clothes.

A Summertown Brothel. Who would have thought it just a half-mile from our house? An Oxford Times article says:

A BROTHEL in a quiet Oxford street was run so professionally it was "like a restaurant", a court heard today.

Mother-of-two Elaine Konopka, 39, admitted helping run the brothel in Middle Way, Summertown....

"Konopka admitted working at the address on approximately ten occasions over an 18-month period. She said she was responsible for answering phones, making appointments and greeting customers." ...

"She was not a part-time receptionist, she was a fill-in receptionist. The brothel was open from 10am to 10pm seven days a week. ...

District judge Brian Loosley looked at the brothel's menu, which had services ranging from £50-£140, while considering the sentence.

Ordering her to carry out 60 hours' unpaid community work and pay £100 costs, he said: "It is quite clear this was run almost like a restaurant, with menus and various services being offered....

Neighbours tonight said they were pleased the brothel had been closed.

One neighbour, who asked not to be named, said she thought Konopka's sentence was too lenient.

She said: "I think it is disgusting she only got 60 hours' community service.

"It is so nice not having so many strange men going in there. It was really unpleasant. It certainly attracted all sorts of men - not very nice people at all.

"Some had children's car seats in the back. You just felt upset for the wives."

Antitrust Thoughts. It's the mark of a good journal article that it stimulates thought. On the strong recommendation of JV, I started reading Professor William Kovacic's "THE INTELLECTUAL DNA OF MODERN U.S. COMPETITION LAW FOR DOMINANT FIRM CONDUCT: THE CHICAGO/HARVARD DOUBLE HELIX," Columbia Business Law Review, 2007. He argues that modern antitrust law should not be viewed as Chicago School plus Post-Chicago School, but as Chicago School economics plus Harvard Law pragmatism. Areeda, Turner, and Breyer had a big impact in the way they thought about how judges can actually implement antitrust law. (Click here to read more.)

This got me to thinking about antitrust generally. First, what are the main problems with market power in the economy? We're doing a good job in developed economies with mergers, price-fixing, and unfair practices. We're doing a bad job with monopoly labor unions, monopoly government providers of services, trademark monopolies, and copyright monopolies. Marginal improvements in antitrust law are of trivial importance compared with the legal monopoly given to Microsoft Windows, either looking at the output restriction or the lost entry by more efficient competitors.

Nonetheless, antitrust policy is interesting at the margins, if not important. This week the theory workshop had a neat idea about merger policy. I won't try to trace the credit for it, but it goes like this. Suppose our aim is to maximize the sum of producer and consumer surplus. Should we make our merger rule, "The merger's OK if (PS+CS) go up"? No. If we impose that as a constraint, a company will propose the merger in that category which most increases PS, not the merger that most increases PS+CS. If, instead, we had a rule of "The merger's OK if CS goes up", then the company will still only propose efficient mergers, because we don't have to require the company to make sure PS goes up too. The only problem is that sometimes companies will not have any CS-increasing mergers to propose, and we'll lose some efficient mergers in which PS+CS would rise but CS fall.

What I really need to do, though, is figure out how to categorize monopoly as a form of market failure. Market failure taxonomy is a mess. Component problems include: real externalities, asymmetric information, rentseeking, and poor thinking. Market power is *not* directly a problem, though it is a contributor.

If there is perfect information and contract enforcement, a monopoly will use perfect price discrimination and there will be no triangle losses. It is only because a monopolist doesn't know the demand curve of each consumer or can't prevent resale that he would use simple monopoly pricing and restrict output. Otherwise, the Coase Theorem works.

The monopoly position is a contributor, though, because if sellers compete, then not knowing demand curves and not being able to enforce fancy contracts doesn't matter.

One way we might look at the monopoly problem is as a form of rentseeking. The loss is not directly from monopoly, but from inefficiencies arising in the attempt to manipulate a market. Indeed, rentseeking itself is really an informational problem. If Smith knows that Jones can spend $200 on a gun and steal Smith's car, then Jones can offer Smith $1 for the car and get it without having to buy the gun. Rentseeking losses occur only when the rentseeker and victim cannot reach an agreement.

It is useful to think of two kinds of rentseeking. One is direct taking of goods-- pickpocketing, for example. The other is attempts to manipulate prices --- monopoly output restriction. But where, then, do I put attempts to change rules?