This is actually my old essay; it was written in the light of Minister of Law and Justice's proposals for a revamp of the Indonesian civil code in September 2003. It was submitted to one Indonesian newspaper. It was rated as "a very good article" but rejected with this reason: "your manuscript is considered to be inappropriate for the current situation in Indonesia".
“Power is essentially what dictates its law to sex. Which means first of all that sex is placed by power in a binary system: licit and illicit, permitted and forbidden” (Foucalt, 1978).
Recent draft of Indonesian new criminal code brought sudden cacophonic debates since there is a tendency that the state wants to step in to citizens’ bedrooms. The sections that rule about pre-marital sex, committing adultery, practicing oral sex and homosexuality obviously show the state's attempts (and desires) to rule the sexuality life of its people.
What it is about sex that makes it important for the state to rule? The relationship between sex and the state is deeply and philosophically examined by Michel Foucault, the French sociologist who is also being labelled as both postmodernist and poststructuralist. Foucault whose being a perceptive critic of the state intensely explored the subtle and insidious nature of modern state control almost in all of his writing but especially in his early works such as Discipline and Punish (1975) and in one of his last, The History of Sexuality Vol. 1 (1978).
In the latter, Foucault tried to contrast two different types of power and state control. The first is the ‘right of death’ where the ruler could kill those who endangered his position or property. Crude examples of this can be found in traditional societies: stone to death for practicing witchcraft or adultery, cutting the hand of the thief, etc. The second is the ‘power over life’, where the state ‘takes care’ its people by regulating and safeguarding their minds and bodies. The best examples of the second can be found easily in Suharto’s Orba period. The rule of ’tamu 1 x 24 jam harap lapor’ (a guest who stays more than 24 hours in the neighborhood should be reported) clearly shows how the state, in the name of neighborhood security, tries to regulate the bodies, be it the relative who visit you, a distance friend, a boyfriend, or a secret mistress. While this rule was not necessarily obeyed by Indonesians, the rule itself was so much embedded in people’s mind that it created a sense of remorse in ones who did not act upon it.
Back to Foucault, the right of death means the ‘power’ to take one’s life or property in the fashion of a robber. In this case, sex was a bodily concern. In the modern state, power over life means the power to bring and pick up entire population’s activities, including sexual activity. Here the intention behind sex becomes the major concern, not the sex itself. In the Freudian psychology, this approach is refined and sex becomes an object for categorization, control and direction. This ‘subjectification’ affects the individual to self-formatting the way he/she acts toward sex. In effect, people may feel ‘free’ to talk about sex but what they are doing is what are demanded by society, opposing their genuine willingness and freedom and exposing themselves to surveillance and supervision.
By contrasting the two, we see a link between the repressive sex laws of the traditional ancient society and the permissive ones of the modern state. Both are a mean of control, yet the latter are more refined and subtle. The state is a peculiar advance and corruption of society and the individual. The state is not liberating but using power to exert control over its population. Through categorizing (adulteress, homosexual, sinner) and normalizing individuals (in the name of ‘norms and values’), the state can produce a totalizing web of control. In effect, citizens live in the shadow of the state and forever trapped in its lattice. In both cases, ‘the idea of sex makes it possible to evade what gives power its power, it enables one to conceive power solely as law and taboo’.
In state's power over sex, as clearly inscribed in the proposed Indonesian civil code, individuals are given no more control over their own destiny. All they have done is change the nature of their imprisonment, binding them with more elaborate and subtle controls – the velvet straitjacket. Indeed, the key instrument of oppression has been the state. The individual in modern state is being eliminated ‘like a face draw in the sand at the edge of the sea’.
Enschede, October 2003.