Interplay of Law, Economics, Sex and Morality

I turned 43 on 22/11/2023. Many reflections and realities accompanied this milestone. One of them is the realisation that I have, in all likelihood, lived for a longer period than I can hope to live in the coming days. Especially given Kenya’s life expectancy of 62 or thereabouts. I have also been astonished at the sheer traffic of messages by younger women to my social media mailboxes, some saying I am now old enough to be a sugar daddy or, to use Nairobi’s slang, a ‘sponsor’ or ‘sponyo.’ I was born and brought up in a world now almost extinct, in which strict patriarchal moral codes of conduct foreclosed the possibility of my female agemates sending me lewd or suggestive messages. So, I naturally found myself wondering whether younger generations have stretched social and moral norms beyond the elastic limit.

No sooner did I start weighing on the undeniable social change than I realised (perhaps due to my academic background) the inherent shortcomings of moral perspectives on anything. You see, moral (especially religious) perspectives generally embody a dogmatic and inflexible all-or-nothing approach to social phenomena and an unwavering refusal to accommodate alternative perspectives. This blog attempts a law and economics perspective on the explicit and sexually suggestive messages that have landed on my social media mailboxes in recent times.

There are, of course, many scholarly/professional perspectives on sexual relations. A law and economics perspective, according to my limited knowledge of the subject, uses the tools of microeconomic theory to analyse and explain social phenomena. This perspective can be gleaned from the works of (among others) Frederick Engels, Richard Posner, David Friedman and Marina Adshade. My limited understanding of the subject is that it is based on the premise that there is a distinct market for anything and everything, including sex, love, marriage and related social relationships. In the market for sex, love, marriage and related social relationships, the exponents of a law and economics perspective would see the buyers as predominantly (but not exclusively) men and the sellers as predominantly (but not exclusively) women. Many feminists, however, would protest (perhaps justifiably) that the claim as to who are the predominant buyers and sellers is patriarchal and misogynist, but that is a story for another day and another blog post.

Now, the discipline of (law and) economics is founded on the concepts of rationality, demand, supply and efficiency. In the sex/love/familial relations market, women, in their capacity as sellers and driven purely by the rational desire to maximise profit, tend to prefer social arrangements that limit the supply of sex. Men, on the other hand, driven purely by the rational desire to maximise utility, tend to intuitively prefer social arrangements that tend to increase supply and lower the cost of sex. This is the reason women generally tend to express stronger disapprobation of women who supply sex quickly and cheaply. This tendency is, of course, sustained by (predominantly patriarchal and somewhat misogynistic) religious and social norms systems. The point, however (lest it be lost in multiple tangents), is that the decision to date or marry someone, from a law and economics perspective, has more to do with rational cost-benefit analysis than the moral, social and religious subterfuges variously called love, affection, companionship, procreation, divine will, etc.

Why are humans socialised to demand faithfulness and long-term commitment in matters relating to sex, love and marriage? Again, there is a law and economics perspective to the matter. A spouse’s or lover’s insistence on fidelity is driven more by the fear of the social and economic costs of polyamorous unions. Those costs include sexually transmitted diseases and unwanted children, which tend to diminish economic resources. The typical woman’s rational but seldom expressed concern is that if the other woman conceives, the man will be constrained to commit a portion of his resources to maintain the other family, which in turn would diminish the pool of resources available for her and her children with the man. The man’s concern, on the other hand, has everything to do with the fear of spending his resources on the education and maintenance of children sired by other men (something somewhat akin to what economists call the free rider problem).

Men and women are also socialised to prefer long-term commitments to temporary flings in matters relating to sex, love and marriage because of the problem of irrecoverability of sunk costs and the diminished prospects of getting a suitable replacement if a spouse or lover attempts to bolt after a long period of relationship. Especially if ageing, wrinkles and other manifestations of natural wear and tear of the human body diminish the aesthetic appeal of the person who is dumped after a long relationship. The problem of irrecoverability of sunk costs and the difficulties of obtaining suitable replacements also partly explains why we are socialised to prefer pensionable to non-pensionable labour arrangements. We all naturally want security in our less marketable years or, to put it in economics parlance, our less competitive years.

In short, marriage, sex, love and familial relations have more to do with economics than the average mind might appreciate. That is why I hate anti-prostitution laws and misogynist words and phrases such as “whore,” “hoe,” “prostitute,” “gold digger,” etc. Such terms and phrases unfairly discourage unmarried women from exploiting a resource (i.e. sex) that married women exploit in the same way. It is refreshing, therefore, to note that the Chief Justice of Kenya recently proposed a repeal of laws that criminalise prostitution.

The gist of this blog is simple: From a purely law and economics perspective, every one of us, both men and women, is a “whore,” “hoe,” “prostitute” or “gold digger” when it comes to the choices we make in matters relating to marriage, sex, love and familial relations. So, the next time your spouse or sexual partner says that their decision to date or marry you was based exclusively on the moral, social and religious subterfuges variously called love, affection, companionship, procreation, divine will, etc., know you have laid a liar.

One final thought on the Chief Justice’s proposal for a repeal of laws that prohibit prostitution (or is it living on the earnings of prostitution?). It is beyond doubt that all human beings predominantly depend on distinct body parts to earn a living. To illustrate, lawyers heavily depend on their mouths, vocal cords and the memory parts of their brains to earn a living. Professional runners and footballers heavily depend on their legs to earn a living. Professional boxers and wrestlers significantly depend on their arms to earn a living. Pilots (and a few other professionals) heavily depend on their eyes to earn a living. I could go on and on, but the point is this: why is it socially acceptable to depend on all other bodily organs, except the sexual ones, to earn a living?

© Muthomi Thiankolu.