The goal of law and legalizing prostitution: Discussion question

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I wanted to point out an interesting article at the Baltimore Sun on legalizing prostitution. The author makes a fairly good case, at least from a utilitarian point of view, that prostitution should be allowed simply because fighting it is a waste of time:

...Legalizing prostitution would not be a moral endorsement of paid sex, any more than the First Amendment is a moral endorsement of supermarket tabloids. It would just be a recognition of the right of adults to make their own choices about sins of the flesh - and of the eternal futility of trying to stop them.

Before he continues his crackdown, Mayor Daley might reflect on the wisdom of one mayor of New Orleans. "You can make prostitution illegal in Louisiana," he said, "but you can't make it unpopular."

The hat tip for this goes to Gadfly's Muse, who argues, in part:

The purpose of law and law enforcement is not the prevention of crime. It is ultimately not for any specific measurable effect that it may or may not achieve....

When it comes to law enforcement, we need to remember that the purpose of law is to punish unrighteousness, not to prevent it. It is not the presence of a victim that makes an action unrighteous and deserving of punishment. It is the action itself. Prostitution fits into this category as well as recreational drug use (some distinctions apply).

I do believe that there is a correlation between right laws and a resultant condition of diminished law-breaking. But that correlation does not reside in the coercive force of the law being applied in such a way that it "prevents" future crime. The correlation resides in the alignment of social righteousness with the outlines of the eternal truth about righteousness that is independent of all pragmatic considerations. The restraint of future crime is a by-product not the end of either law-keeping or law-making itself.

So here's a question for discussion: What's your take on this argument? Is the role of the law, and the government, primarily just to try and keep people from hurting one another as much as practical? Or is it to confirm and uphold a real, universal standard of right and wrong? Or is it something else?

I'll tell you my own take: I think that the law is to testify to what is right and wrong, not primarily because it will work to compel people to obey, but because this is what the law is supposed to do. In other words, the law should be an agent to point out what's right, and what's wrong. This may also promote an orderly society, and so on -- but the government's primary function, in my opinion, is to punish evil and reward good.

I'm sure there are many on here who will disagree with me on that, and the purpose of this post isn't to provide a defense of my stance, but rather to ask for your thoughts, so please comment. I may post more on this in the near future, either of my own thoughts, or some of your comments on the subject. If you post on this, put your link in the comments or trackbacks and I may link to it if I do a follow-up.

And please refrain as much as possible from shouting warnings of "Theocracy!", unless you're prepared to provide solid evidence to back it up.

43 Comments

Thanks for the "hat-tip".
Righteousness might also be reasonably construed as "concern for the poor, widows, orphans, etc." and I think there is an appropriate level of government involvement in assisting with these things. I don't believe present social programs are on the right track with it, but there is room there for something. But I agree with your post.

I will add you to my "people I talk to" list if that's OK

My two cents - the government is an agent of wrath to bring punishment on the wrongdoer, per Romans 13:4. This tracks with what both of you are saying.

And I agree with you about the warning against warnings of theocracy. That's becoming a new buzzword designed to end discussion and evade the issues.

Arch - you couldn't pick a better blog to be talking to. These guys are some of the best you'll find in the blogosphere.

Arch,

Please do.

David, that's exactly what I'm getting at, too. But (and I think this is strange in view of Romans 13) I run into a lot of Christians who lean towards a sort of utilitarian or libertarian view of government.

This is the fundamental reason why I think Christian libertarians have to end up with a very different view from other libertarians. The only way they can justify libertarianism is if that view is the best way to enforce justice in the way that Romans 13 presents the purpose of government. I think Christian libertarians like Josh Claybourn will defend libertarianism as the best way to enforce justice, but their view will end up looking a lot different from some of the more standard versions of libertarianism with their more minimal role for government.

I should also mention (though I said more on this at the hat tipped post) that I'm not sure we can call prostitution a victimless crime. For instance, the prostitute might be a victim in the same way someone allowed to sell organs might be a victim. If the person is brought into this transaction by desperate straits, and the person wouldn't have engaged in this otherwise, that might be seen as coercive to an important enough degree that it should be outlawed. That's the very reason we don't allow people to sell their body parts. It can too easily be coercive, particularly to those who are down and out, who are in desperate situations. Why isn't the same true of prostitution, or abortion for that matter?

I'm against legalization for anumber of reasons. The only ones I have time to post today:

public health Once you legalize it, doesn't it become governments job to ensure the public health and to provide services. Once a prostitute's health and ability to work is compromised, which due to hazards within the sector, woldn't that be just one more health care burden. Fees are only useful for healthy workers.

this does not address the pruriency of the whole profession which by its nature caters to sexual interests outside what is considered 'normal' ( you see the problem starts as soon as I have to put such a thing in quotes) and so the constant battle front of what is acceptable. Is it acceptable to push back age limitations? Specific activities dangerous to individuals? Who draws the lines once we say "legal"?

It would open a bureaucratic nightmare.

So these are a couple of the practical governmental questions. If I had time I would address the effect on the status and exploitation of women.

sorry tired, hurried.

The short answer to your question: the purpose of law is to give order.
It cannot create right, but it can guide right, and that is what it needs to do.

This is true through all its levels. To put a stop sign and a dead-end to the street of prostitution helps prevent social choas that would result form allowing a thoroughfare there.

If you have a hard time policing illegal prostitution, what is the reasoning that you will be able to police unleashed prostitution? And it will need policing by its nature. Rather like prescription drugs. Only without the benefits.

...hope this was more topical. ;)

The government would have regulations for when prostitute's can work. It wouldn't have to provide for all their health care needs, not unless we turn to socialized health care. Nevada has successfully done this, so you can see how they've done it. It's not a hypothetical. If there are things in Nevada you can point to along these lines, I'm interested, but I'm not interested in hypothetical worries if someone has pulled it off while avoiding those worrisome consequences. As far as I know, they have a system that works very well. It's highly regulated, and there are strict requirements as to where, when, and how prostitution services can be rendered.

Dunno guys.. beginning to sound like sorting out how to make things work if we legalized rather than keeping with the idea that no matter how well it worked (pragmatically) it would still be something that ought to be illegal.

Just posted some comments on the whole idea of victimless crimes back at my blog.

Arch, those are two separate issues. My view is clear. Romans 13 grounds government in the necessity of having an earthly authority to enforce justice during this life. I agree fully with Abednego on this.

At the same time, we can raise questions about the effects of laws. Ilona said legalizing prostitution would have all these effects that it hasn't seemed to have had in Nevada. I wanted to make it clear that it hasn't had them. That doesn't have any bearing on what I said in the first paragraph.

Arch,

Let me put Jeremy's point another way. If you try and argue (as Ilona did) that we shouldn't have it because it won't work, you have to evaluate that argument in view of how it's working for Nevada. If in fact you conclude that it's working for Nevada (or it's possible to make it work), then that argument is invalid.

On the other hand, you can also argue (as Jeremy and I both do) that we ought not have it even if it WOULD work, in view of Romans 13.

I guess you could pose a similar question about the drug trade. Some proponents of legalizing certain drugs argue that it would work better than the current system. I'm generally somewhat skeptical and think the burden of proof is on them. But the point is, we can have two debates: (a) Would it work better to legalize certain drugs? and (b) Even IF it would work better, should they be legalized? On the other hand, if your view of government is purely pragmatic/utilitarian, I guess you're limited to debating on point (a).

Thanks for clearing that up. I suppose I'm on board with the idea with some reservations.

The concern with "making things work" or concluding that something is "working in Nevada" always assumes a particular end which is being achieved. In this instance, the idea is that decriminalization of prostitution enables women to benefit from focused medical care, state sanctioned protection from various occupational hazards (like back ground screening of customers), diminished physical violence, etc.

Just for discussion - what if we proposed that these things ought not to be diminished. What if the attendant perils of this kind of activity when it is clearly understood as criminal, are part of the means by which God suppresses such activity and makes it unattactive to those who are considering it.

As an example - what does it mean in 1 Cor. 5 where Paul recommends that a person guilty of extreme perversion "be turned over to Satan for the destruction of the flesh....". Withhout getting side-tracked into Paul's salvic intentions, could we not say that delivering a person over to Satan can be readily understood as delivering him over to the sphere of Satanic control wherein violence, greed and perversion run rampant?

Further - would it have been showing kindness to the prodigal son to shelter him from the ill effects of his wanton lifestyle when he was out eating with the pigs, when it was exactly that outcome that God used to bring him to repentance.

Not offering up any hard and fast conclusions here, just more stuff for discussion.

The I Corinthians reference is not about how a government should treat people who do something wrong. It's about how the church should treat people who profess to be believers but who persist proudly in sin after having been confronted in the method Jesus outlined (single person confronts, go back with friends, brought to elders of church). Such a person should be treated as a nonbeliever and not given the ability to benefit from fellowship with other believers in a local congregation of God's people. I'm not sure how that's supposed to justify not having laws to curb evil, especially given Romans 13, which expressly says that the government should punish wrongdoers.

Arch,

I do think you have a good point in that it may not necessarily be a good idea, generally speaking, to try and make it pleasant for people to sin. It seems like the consequences often associated with sin (see, for example, the Proverbs) are one of the means God generally uses to restrain sin even in unbelievers. I mean, just think about what would happen if (a) the government quit punishing people for doing wrong, and (b) all other consequences were removed also (i.e. social consequences, health consequences, consequences for the family, etc.). Clearly things would get a whole lot worse.

However, I think Jeremy's right in pointing out that this isn't what 1 Cor. 5 is speaking of. But I think it's something Edwards wrote about (how God restrains the wicked, that is).

And Jeremy, I don't think Arch is suggesting not having laws to curb evil. I think he's saying something like this: Suppose we COULD somehow make prostitution a lot cleaner and more healthy, etc. for those who engage in it (while at the same time still having laws against it). Would it be a good thing to do so? I think he's arguing no: The consequences and corruption associated with sin are part of the way God restrains sin.

I do think there is a slight danger in that though. What about Christian outreach to those suffering the consequences of illegal acts? If we start seeing those consequences themselves as a good thing, it might start looking like we ought not help people through those consequences, and I think that's not true: People down and out can greatly benefit from seeing someone show Christian love and help them in their time of need.

Hi, hope y'all don't mind a new voice in the fray. I think that prostitution ought to be legal. My reason is a libertarian one: I don't have the moral right to stop some random stranger from engaging in an act of prostitution (granting informed consent). In fact, no individual has this moral right. Groups of people have no more rights than the individuals in the group (i.e. group rights are reducible to individual rights). The government is (essentially) a group of people. Therefore, the government lacks the moral right to stop people from engaging in prostitution (granting informed consent).

I'm not sure how the Romans passage helps here. Surely the first portion of the chapter is not descriptive--think of all of the awful governing authorities civilization has seen. Are we really to believe that the Third Reich was "an avenger who brings wrath upon the one who practices evil" (vs. 4) or that SS men were "servants of God, devoting themselves to this very thing" (vs. 6)? The gist seems to be that we should recognize God as the final authority and (for prudential reasons?) we should not resist the actual governing authority.

But aside from scripture, it seems obvious to me that an actions being morally wrong is not sufficient to warrant it's being illegal. Do we really want the government enforcing a ban on dirty thoughts? What about when I'm selfish or forget to say a kind word to my wife, etc.?

Justin, a few things you say don't seem to me to follow. If you're right that individuals don't have the right to stop others from engaging in immorality (which I'm not sure if I'd grant), I don't think it follows that a group doesn't have that right. Government in our form is a group of people (though it isn't inherently that). That doesn't mean that it's a mere sum of individuals, as if there's nothing to government besides the aggregate of all the individuals. I think Romans 13 does say something here. It gives a moral responsibility to government that it doesn't give to mere collections of individuals.

The Third Reich was an avenger bringing wrath upon those who practice evil. Whatever bad it did, it did punish people who were unjust. Every evil government has maintained some order, and an evil dictatorship is more ordered than anarchy and thus at least slightly better. The SS men were servants of God, just as Nebuchadnezzar and other evil emperors are said to be in the prophets. That they didn't always act rightly doesn't take away from that. Sometimes service for God is unintentional, as it was with the Assyrian king in Isaiah 10 or with the many statements about Nebuchadnezzar, Cyrus, or the Roman officials in Acts. Many of the things they were doing as God's servants were evil, and yet those actions served God.

The main point from Romans 13 that Abednego was bringing out is that the government has moral responsibilities, and it doesn't matter if half of the chapter isn't talking about those. If it talks about them at all, then they're there. It does talk about them. This isn't something particular to Romans 13, either. The prophets speak frequently of the moral responsibilities of nations besides Israel, often pointing out how they fail in them.

I don't think anyone here was saying that the government should have laws about every moral wrong. Abednego's point was that the business of government is to promote justice and testify to what's right and wrong, and prostitution may be an issue of justice even if it's not an issue of harm, depending on your account of justice, and it's certainly an issue of right and wrong, which leaves it open that the law can testify to that.

The law testifies to the wrongness of things without enforcing thought codes, by the way. It testifies to the wrongness of thoughts that degrade women sexually when it has codes about what can and can't be done with pornography. It testifies to the wrongness of certain attitudes toward people by protecting them with rights from those who might have such negative attitudes. Testifying to rightness and wrongness doesn't necessitate banning the wrong activity.

Justin,

I agree with Jeremy on this, but I'll comment a bit in my own words.

Taking your first point: Do I have a moral right to stop someone from doing something they want to do (assuming informed consent) if it's morally wrong? That's a sticky question, but it's not really what we're dealing with here. According to Romans 13, the government is given certain authority that is NOT given to individuals. The first section states clearly that the government is to punish evil and do good. This is NOT the job given to individuals, who are instead told to "turn the other cheek", etc. That is, the Bible teaches that the government is more than just a collection of individuals -- it is given authority that is not given to individuals. You may well argue that the government is just a collection of individuals and therefore has no additional moral rights and responsibilities, but this is not a Biblical view of government. As Jeremy said, Romans 13 "gives a moral responsibility to government that it doesn't give to mere collections of individuals."

Romans 13 lays out some principles of what government ought to be. Indeed, some governments stray from that, and we see in Acts (for example) that in some instances, the apostles had to defy Roman and/or church authorities, when the commands of these authorities deviated from God's will. (For example, in Acts 4, when the Sanhedrin has commanded them to stop speaking about Christ, they respond, "Judge for yourselves whether it is right in God's sight to obey you rather than God.") So when the government gives directions which are morally wrong, we are obligated NOT to obey.

The fact that there are and have been bad governments doesn't change the fact that this passage teaches that the role of government is to reward good and punish evil. In fact, bad governments are bad precisely because they fail to do this (and they are bad to the degree that they begin doing the opposite, as, for example, the Third Reich did.

And your final objection: "But aside from scripture, it seems obvious to me that an actions being morally wrong is not sufficient to warrant it's being illegal. Do we really want the government enforcing a ban on dirty thoughts? What about when I'm selfish or forget to say a kind word to my wife, etc.?"

Clearly there are some morally wrong things the government shouldn't make laws about. But why? Is the only way to limit government to apply libertarian ideas, or perhaps only make laws about those things that harm others or society? I don't think so; I think there's another way. We need to look at the tradeoffs: Does preventing one moral wrong cause another, or is it likely to? For example, lying is morally wrong, generally speaking. But we generally allow people to lie as they see fit (except in certain situations, i.e. contracts, and so on). Why? Because if we begin regulating people's speech, the risk of the government beginning to abuse that power to squash dissent is simply too great. That is, we could probably prevent people from lying, to some degree (which would be a good thing), but we'd be at great risk of also losing the ability to make truthful criticism about the government, etc., which would be even worse than allowing people to continue lying.

That's all just to say that one mustn't make moral decisions in isolation. One decision affects others. People try to take decisions in isolation and come up with cases that argue against making moral stands, sometimes, but they don't really occur in isolation. For example, those who oppose the pro-life position on abortion will argue that if abortion is wrong, then that means that mothers who medically need an abortion (because of serious health risks, etc.) won't be able to attain one. That's a legitimate concern, except most pro-life people I know make exceptions for cases where there is a medical need of abortion. That is, they don't simply say, "Abortion is always wrong, and no one should ever have one." They think it ordinarily is, but that there can be exceptional cases where it is necessary in order to prevent something even worse from happening (i.e. if both mother and infant would certainly die if the baby isn't aborted, but aborting the baby could save the mother's life, one must choose the latter).

Another explanation why we should enforce only some moral principles and not others has to do with the very possibility of enforcing. You can't enforce thoughts, because you can't perceive someone else's thoughts. It would be a stupid law because it couldn't be enforced. Justice Thomas said the same thing about some laws regarding what people do in private, including laws against sodomy. While he doesn't think the federal judiciary has the right to prevent such laws, he thinks the laws are stupid and right thinking should prevent them.

Maybe prostitution does fall under this objection, and then it shouldn't be illegal, but I don't think that's as easy an argument as it might at first sound. It's one thing to say that a law against people engaging in non-commercial sodomy is unenforceable. It's quite another to say that making sexual interactions commercial is unenforceable. It seems to me that it's much more easily enforced, because commercial activity has to involve someone finding a publicly available person who will engage in that commercial activity, which will most often involve being in public or advertizing in public in some way. It's much more difficult to enforce what people might be doing in their own homes without a public signal that it's going on. Prostitution has enough such public signals that it is to some degree enforceable, which isn't as true of sodomy laws or the now-extinct laws against condoms.

Jeremy and Abednego-

There are three things at issue here. First, Jeremy, you've totally misreprestented my position when you write that I've advocated that "individuals don't have the right to stop others from engaging in immorality." I never said that. What I did say is that individuals don't have the right to interfere with informed, consenting adults engaged in prostitution. That's very different. I do think that we have the rights to stop some cases of immorality, namely any and all cases that are breaches of justice. This is a standard libertarian line. Why you suggest that prostitution may be an issue of justice is beyond me (though I'd like an argument for this claim if you have one).


Second is the claim that groups of people or special types of non-personal entities can have rights that are not reducible to the rights of individuals in the group. Can you produce an argument for this claim please? Right now it just looks as if you're both leaning heavily on Romans, but this is shaky ground even if I were a Christian. I mean, taken at face value, Romans 13 says some things that are patently false. Consider verse 3: "For rulers are not a cause of fear for good behavior, but for evil. Do you want to have no fear from authority? Do what is good, and you will have praise from the same." I'm sure that Corrie ten Boom would disagree here. I would too. Counterexamples are all too easy for last conditional at any rate: lots of people who have done what is good have not received praise from their governments.

Now it's true that God can work his will with evil governments, but so what? He can work his will with anything. So why think that new moral rights somehow "pop into existence" when a group of people get together?

Thirdly, this all sounds too medeival to me. Why would we as a diverse group of people *want* a government that would do this? Why wouldn't we want a secular government that would simply enforce a thin conception of justice while letting its citizens pursue the good life as we each see fit? When we conflate government with all of morality and try to enact laws, standards, etc. that are reflective of the whole moral sphere? The Branch Davidians want this, the Jehovah's witness want this, the Christians want this, etc. The beauty of a liberal democracy is that it allows us to restrict government's activities to a much smaller sphere of influence (i.e. justice), thereby allowing for a much broader concensus on what the state ought to do.

Then I guess I didn't misrepresent you. I never claimed that you said that individuals don't ever have the right to stop immorality. All I attributed to you is the view that individuals don't have the right to stop other people's immorality. That's consistent with saying that they have the right to stop other people's harmful immorality, as long as it's not the immorality that gives them the right to stop it.

I already gave my argument that prostitution is an issue of justice. It isn't clear that it's ever without coercion, and even cases without coercion are cases where it's harmful to the person engaging in it, and we have a moral obligation to protect people from harm. Libertarians don't like that, but I think it's true. I would consider it a motivation of justice is the government banned smoking altogether. It would protect people from themselves. They already do that with bicycle and motorcyle helmets, seat belts, and suicide laws, including laws against things that don't always lead to death, e.g. prohibitions against jumping into Niagara Falls. Laws against smoking or prostitution could come from the same motivation.

I'm not sure how a government failing in its responsibility is a counterexample to a claim about what government should be like, even if that claim also involves the implication that every government is at least to some degree fulfilling that function.

You also apparently aren't very familiar with different genres in ancient literature. Paul is clearly giving a proverb, and you're trying to interpret it very differently. I'm not sure how you intend your intepretation, but it sounds to me more like case law or some absolute metaphysical statement. Proverbs are general statements that tend to be true of how things usually go. With a pretty good government, things that you do that are just will be recognized as just. This is no different from the claim that things will go well for the righteous and badly for the wicked. Of course you can find cases when that's not true, but proverbs aren't supposed to list every way things might go. They're explaining how things tend to go enough of the time.

I'm trying to figure out what your second-to-last paragraph is even getting at. I don't see why your connecting new rights with God working his will. Those seem to be independent points. One is that evil governments nonetheless serve God's purposes. The other is something about rights, which seem to me to be irrelevant to the government issue. We were talking about government responsibilities, but I'm not sure how you intend to connect that up with rights.

How is it an objection that this sounds medieval? I take it as a compliment that you think this sounds like one of the richest periods in the history of philosophy. I'm not sure why you think it's an objection that people might not want this. Of course people don't want laws restricting their behavior. That doesn't say anything about whether it's right to do so. What people want a government to do for them and what it's right for it to do for them are not the same thing.

This is where the misrepresentation comes in on your end. No one said anything about conflating the fovernment with all of morality. In fact, both Abednego and I just spent a great deal of time explaining why that isn't going to happen. It would make no sense to enact laws enforce certain kinds of moral principles, for reasons completely independent of libertarianism.

Also, no one said anything about how we would decide which moral principles for the government to base laws on. The most obvious way to do it in a diverse democracy is for those in that democracy to debate which moral views are the correct ones, and for the ones people agree on to be reflected in law. This is in fact what we do. Unless the Branch Davidians become an influential group in society, they'll play only a small role in influencing the views of the many, and thus their views won't allow restrictions that most people aren't willing to enact. This seems to me to be the best way to do it. Those who oppose gay marriage and those in favor will come to the table and have to figure out which moral truths they think are most fundamental and have a bearing on this discussion. Something won't get passed unless one party can get enough agreement from diverse factions that those moral truths are the important ones. It's still basing law on morality, and it's still attempting to fulfill the government's obligation to promote morality. It's just that people will disagree on what is moral, and thus the government might settle on laws that don't recognize the more important moral principles. This may lead to a greater restriction on government restriction. It may look like libertarianism at the practical level in many cases (though it may not, depending on who is at the table and which battles they choose to fight). Where it differs is in the motivation and in the argument for why it should be like this. I happen to think this argument and motivation is the morally correct one.

Pierce-

I think our intuitions on these matters are just so different that we're not connecting on major issues. I'm not sure what to say. I'll restrict my response to two issues:

First, there is the issue of what a right is. You seem to think that rights protect interests. This explains your talk about why it is morally permissible to protect people from themselves. If you're right, it would not be a violation of rights for the government to ban cigarettes, fatty foods, etc. and require people to wear seatbelts, helmets, etc. In fact, it would not be wrong for me to personally enforce these behaviors on anyone. Since it is in people's interests to do (or refrain from doing) these things, then it does not violate their rights to enforce these things. As I understand it, this is the basic defense of paternalism.

I think this is grossly mistaken as I think that rights protect choices, not interests. It may well be in my interest to do X, but that does not entail that you (or the government) has the right to force me to do X. My right protects my choice of whether or not to X. So it would violate this right for you (or the government) to force me to X or not X. I think that a violation of a right is a sufficient condition for an action being a breach of justice (and, a fortiori, morally wrong), so I think this is why the government ought to stay out of such things.

Second, there is the issue of your argument that prostitution involves a breach of justice. Part of this may rely on the fact that you don't think that rights protect choices--hence if an action is harmful it's a breach of justice. I think that is demonstrably false (my smoking a cigarette out in the woods by myself is not unjust in anyway, though it may be harmful). But if you think that my rights as a person protect my interests, then I'm not sure what to say.

The second strategy is more promising, and it's one that I used to hold myself--prostitution, by its very nature, involves coersion. If the action is coerced, then it is a breach of justice and hence something the government can get involved in. However, I think that a careful analysis of coersion will show that this charge won't stick.

Coersion is either occurent or dispositional. The former involves physical force (e.g. I throw you out the window), while the latter involves some sort of threat of harm (e.g. if you don't do this, I'll hit you in the face). I take it that you don't think prostitution is a case of occurent coersion, so it must be a case of dispositional coersion. This means that we should be able to isolate a threat of harm.

But is there one in the case of prostitution? Not that I can tell. There are plenty of *offers*, but this is different. An offer is a case in which non-compliance does not make the person worse off than they would have been otherwise (e.g. If you perform sexual favors for me, then I'll give you $100). A threat is a case in which non-compliance does make the person worse off than they would have been otherwise (e.g. If you don't perform sexual favors for me, then I'll beat you up).

So here is my basic train of thought (I'm not trying to offer an iron-plate argument here--just showing you my thought process): I think that prostitution involves offers, not threats, and so I don't think that it (in principle) involves coersion. No coersion, then (other things being equal) no rights violation. No rights violation, then the government ought not interfere.

I think of rights as derivative of responsibilities. I don't like to talk in terms of rights when I can talk in terms of responsibilities. Usually when I get into rights talk, it's to deny that we have certain rights. The only thing that grounds rights, in my view, is my moral responsibility.

Moral responsibilities may involve the wrongness of harming people, and they may involve the wrongness of allowing someone to harm themselves. I don't think the latter responsibility derives from some pior right, whether to protect a choice or to protect an interest.

The paternalist idea that I endorse isn't that we have a right to a government that protects our interests. It's that the government has a responsibility to encourage, promote, and sometimes require moral development and the good life. I don't ground that in any rights, because I don't ground responsibilities in rights. Rights are not fundamental explanations of anything.

It seems to follow from your position on coercion that it's not coercive for me to offer my students an A if they sleep with me. I think that's a reductio of your position. That seems to me to involve an obvious enough degree of psychological pressure that it counts as a clear example of coercion without threat of harm.

Justin,

I haven't thought too carefully about this, but I think I have to disagree with the notion that rights generally protect choices -- in our society, that is. Some certainly do, but I don't think that's true of all rights, nor do I think all choices ought to be protected. For example, I think freedom of religion is a good thing, and I will wholeheartedly oppose anyone who promotes establishing a Christianity as a state religion (or any other religion, for that matter). At the same time, I think we would be far better off if everyone WOULD become a Christian. But I think the government making laws that everyone has to be a Christian would result in worse moral wrong for society than if the government lets people choose not to be Christian. (Part of the reason for this, is, of course, that I think Christianity isn't some outward thing. You could require people to act like Christians and profess Christianity, but that doesn't make people Christians). So I don't think it's valuable in itself for people to be able to choose other religions; rather, I think people ought to have the right to choose other religions because it would be worse to try and keep them from doing so.

I agree that some rights protect choices. Even the Bible makes this clear. For example, the Bible talks about how people are free to eat meat, or not eat meat, as they choose. But I really don't think this is the only basis for rights.

I guess I don't too much know where to go from here. I've discussed how you can basis moral concepts on something other than a harm principle (and why I would base freedom of religion on this rather than some moral right to choose to worship as one sees fit.) But you've said that no individual or government has the moral right to stop people from engaging in prostitution. How do you know that? That is, on what basis did you conclude I don't have the moral right?

Effectively, you're saying it's morally WRONG for the government (or individuals) to prevent people from doing certain things. How do you know this? I know this is a typical libertarian position, but you've given no basis for it. What if I argue that I have the (moral) right to choose whether or not I want the government to allow people to do these things that are morally wrong?

Maybe that wasn't clear, so let me put it another way. You're arguing that rights protect choices, and it's wrong to take away those choices (when involving informed consent, and no direct harm to others). That is, you're saying I don't have the right to choose to take away other people's choices. But isn't that, in itself, taking away my choice? How do we know which choices should be protected?

I'm also interested to know how you would resolve dilemmas where one party must necessarily lose the ability to choose. For example, consider the case of a pharmacist who converts to Christianity, for example, and becomes convinced that it's wrong to administer morning-after abortion pills. Someone comes to him wanting one; he asks them to visit a different pharmacist because he can't in good conscience give out the pills... The woman sues him for violating her right to choose. She wants, instead, to violate his right to choose not to. Someone will lose the ability to choose (or at least will be inconvenienced); how do you decide who it should be?

Jeremy,

I'm slightly confused about the business about rights versus responsibilities, probably because I just don't understand what you mean. Can you point me somewhere you've talked about this before?

I wrote my above comment while you were writing yours, and mentioned the passage that talks about how Christians can choose to eat meat, or not to eat meat... I described this as a right. Would you disagree? Or if not, can you point out how it connects to a responsibility?

I haven't argued for this systematically, but I've talked about it here.

The meat-eating passage is about the fact that there's nothing (in principle) morally wrong with eating meat or having a policy of not eating meat. We have no moral responsibility with regard to such issues (at least in principle). Therefore, you can speak of our having a right to do whichever option we want.

I think we need to distinguish the right to do something and the right that others not do something to us (or even a right that others do something for us, though strict libertarians don't believe in such rights unless the other person voluntarily takes on the responsibility, which actually favors my account of rights as grounded in responsibilities). A right to do something would come from no responsibility on our part to do something else instead. A right that others not do something to us is based in their responsibility not to do that thing to us. A right that others do something for us comes from their responsibility to do it. (A good example of the latter is my responsibility to take care of their children. That doesn't seem to me to be grounded in their right to such care. It seems to me rather that their right to such care is because I have the responsibility to do it.)

Jeremy-

I'll start with your last comment first. Your claim is that offering an A to a student in return for sexual favors is a form of coersion. That's false, and thus doesn't constitute a *reductio* for my view. There is no harm involved. If the student takes the offer, he might be better off. If he doesn't, then he's no worse off than he would have been otherwise. This is a standard distinction made in the literature on the issue of coersion vs. offers. See the piece by Thomas Mappes for a more detailed account.

The following would constitute an act of coersion: "If you don't give me sexual favors, then I will fail you." Here non-compliance renders the agent worse off than he would have been otherwise. If you fail to make the distinction between offers and coersion, then you get weird counterexamples (have I coersed anyone when I offer a $10 reward for my lost puppy?). You seem to think that psychological pressure is sufficient for an act to constitute coersion. That's wrongheaded. I can be pressured to do well on a test (after all, I want to get into the Syracuse phil. department!) or my mom can pressure me to do my homework. But unless there is a threat involved, it's not coersion. Since there is no threat of harm in acts of prostitution (in principle), prostitution does not constitute an act of coersion.

As to rights, I do take them as fundamental, while you don't. The moral intuition has got to stop somewhere--you stop at duties and I stop at rights.

Abednego, I want to respond, but I gotta go--you raise some good issues. More later.

I think the point of the Mappes piece you refer to actually supports what I'm saying. Even if he doesn't want to call it coercion, he counts it as using someone sexually by taking advantage of their desperate situation. Since desperateness of situations comes in degrees, this will lead to a continuum between those cases where the desperateness isn't strong enough to count as using the person and those cases where it is. I think most prostitutes are higher on the desperate end.

I'm happy to grant to Mappes his terminology, but his paper supports my thesis that prostitution is wrong because of something that parallels all sorts of cases where we make the action illegal, such as selling organs or offering to give a student an A for sexual favors. I don't think it counts as totally voluntary for the same reasons Mappes doesn't. Therefore, there's a strong argument that it's not fully consensual.

Abednego-

OK, again, last comment first. In the instance of the abortion pills and the pharmacist, it would violate the pharmacist's right to force him to sell the drug (unless he's contracted to do so), but it would not violate the woman's right for him to refuse to sell it. The distinction is the standard distinction between positive and negative rights. The woman has a right not to be interfered with in her quest for purchasing the pills, and the pharmacist has a negative right to sell what and to whom he wishes. He has no duty to sell what people need or desire, and others lack the positive right that he do so.

As to what rights protect, you write that "rights generally protect choices -- in our society, that is." I think we misunderstand one another. I don't care what our political system does, I care only about what rights *really* protect. In other words, my question is a moral one (which is a necessary matter as moral claims are necessary), not a practical one that should be determined by what our nation currently does (which is a contingent matter). I think you're right that most political stuff is aimed at protecting interests (and that's becoming more popular with things like welfare, helmet laws, fat tax, etc.). I just think this is wrong.

Finally, you ask lots of skeptical questions like "how do you know that we have that right, etc.?" This is the same question that can be asked about wherever anyone stops in their moral intuitions. I could ask, "how do you know that it's wrong to torture babies?" and you probably wouldn't have an answer (or if you did, then I'd ask how you knew that, etc.--at some point you'll have to stop and shrug or say something like it's just self evident). I'll gladly admit that I take it as basic that we all have these negative rights. If you don't think that people have the right not to be forced to do certain things by others (e.g. the right that I not force my neighbor to read Shakespeare every night), I'm not sure what to say to you. I just think that it's self-evident that we have such rights.

Sorry for the double post, Jeremy, but this is in response to your last comment. I'm glad you agree that we're no longer talking about coersion. Now that the issue is changed, what should the law reflect about taking advantage of a desparate situation? As a libertarian, I think that it should get involved only in matters of justice, and so just because a person is taken advantage of won't be a sufficient condition granting that there was informed consent.

But even if we grant the claim that it's proper for the government to intervene in desparate situations of the sort you've described, this doesn't give you an *in principle* argument against prostitution as some acts of selling sexual favors will not be due to desparation. The government can only outlaw (or prosecute or criminalize, etc.) the acts that stem from desparation. And so prostitution ought to be legal. The same, I think, could be said of organ sales. If I want to sell my organs when I die, I should be allowed to do so. If I want to sell one of my kidneys to raise money to go to college, I should be able to do so. Again, there is nothing *in principle* that would rule this sort of thing out once you switch your case to one of desparation rather than inherent coersion.

The kind of reasoning that allows laws only when the thing is in principle wrong seems to me to lead to bad results. You couldn't have laws against most things that we have laws against. It's in principle wrong to break a contract, but it might be morally justified in a very few circumstances. We should still have laws against it. It's in principle wrong to kill people deliberately, but there might be exceptions. We're not always going to be able to list every exception, and we're not even always going to be able to give general principles for determining which cases are genuine moral exceptions, but that doesn't mean we can't have the law. It just means some things will be illegal that aren't immoral. That's so with many laws that are for our overall protection, and I'm not sure why it wouldn't be here as well. The laws against incest, from the liberal mindset anyway, are because incest can lead to harmful genetic problems. Most incest won't lead to those, but there's a chance. Should it be legal in those cases? Should it be legal if the people involved have operations to prevent the possibility of conception or if they are both male (and wouldn't that be discrimination)?

Jeremy-

We don't outlaw cars even though there is a chance of abuse. Ditto for firearms, alcohol, etc. I take it that you don't want to outlaw something just because some instances of the behavior are wrong. Again, your position is one of paternalism (you write of the government doing things "for our overall protection"), so maybe it makes sense to you that anything that might cause harm should be illegal (there goes rock climbing, SCUBA diving, parachuting, visiting New York, etc.).

The libertarian view is much cleaner. Take two examples you give. Breaking a contract is a violation of rights and should always be illegal. Incest is not a violation of rights, and thus should not be illegal. In fact (and this is a different issue, but I'll raise it anyway), incest not only fails to violate rights, but it fails to harm as well. Why? Because if a disabled child results from the intercourse, while it is true that he suffers from a disability, it is not true that the act of conception made him worse off than he would have been otherwise, and so it failed to harm him.

What I'm saying is that it's too clean. It's trying to fit something in a neat system when the moral issues involved with legislating things like that are much more complicated. I don't care if it's easy to package something under a few simple principles. If a better package of principles that's more complicated does a better job, I'll go with that, and if it will be even better without any overarching principles at all then we might want to consider that.

Your claim that bringing someone into existence does not ever harm, no matter how badly off that person is, is controversial. If that's right, then creating a child through deliberately genetically engineering someone with severe deformities is not harming that person. That sounds counterintuitive. It means it's never possible to be worse off by existing, and I can't bring myself to accept that. Existence itself is a good. I'm not one of those people who think the fact that someone is not experiencing anything with non-existence means it's not bad. Existence does in general make someone better off for having some experience. I still think bad things can be so bad that the person would be better off not having lived. Jesus says this about certain sorts of immoral people, and I might include also those whose basic faculties render them permanently unable to engage in normal human functioning in the ways that distinguish us from animals.

I don't have to say that, though. I can grant your claim that someone isn't harmed by being brought into existence with severe genetic defects that will prevent proper human functioning. Even if this is a clear case of not harming someone, as you say, it still seems to me to be a clear case of doing something to someone that wouldn't harm them but would still be wrong. What it would do is drive a wedge between harmful treatment and wrong treatment, with some things in the second category that aren't in the first. These things seem to be so wrong that they should easily be forbidden by law.

Jeremy, you're quite right that there are still some cases in which bringing someone into existence may harm them. I wasn't careful enough. I think we can distinguish between two type of scenarios: the resulting life is either better than non-existence or not. If it is better (say, being born without a left foot but with a life worth living), then the act of conception hasn't harmed the person. If it is not better than non-existence (say, being born horribly mangled, in constant pain, and mentally disabled), then the act of conception has harmed the person.

You're also right that harm is not a necessary condition for an action's being morally wrong. I agree that purposefully creating people with defects is morally wrong--I just don't think that the wrongness of the action is grounded in harm.

Without getting too much off of the topic of the blog, what are your thoughts on the legality and moral permissibility of incest? If we agree that incest doesn't harm (usually the resulting life is worth living), it's hard to see why it should be illegal even though it may be immoral.

I don't know what I think about incest laws, actually. I think the view that incest is immoral is inconsistent with the standard liberal conception of the morality of sexuality, which I think is the most common basis for a libertarian view on laws about sex. I don't accept that account of the morality of sex, so I don't have that motivation for allowing incest. I don't think that's the only motivation, though, and I haven't thought through my views beyond that point.

I don't think that the overall spectrum of prostitution is wrong at all. I think it's wrong if it's against a persons will to be a prostitute and they are forced to do it. But for people who want to solicite sex for money I see it as just being business and nothing more. Most of the people out there that criticize prostitution and call prostitutes hoes and b*tches are more than likely hypocrites. I say that because a good number of them probably are the same ones that cheat on their husbands or wives,boyfriends or girlfriends all the time and spread std's and create illegitimate children because of their dishonest promiscuity.
I see prostitution as being straight to the point rather than beating around the bush and playing with a womans emotions when all I might really want is a good bedroom thrill.They are just providing a service for profit nothing more nothing less.Strictly BUSINESS.So all in all I think it should be legalized.

Of course, bribery and blackmail are strictly business, as is paying parents for the opportunity to rape their children. It's not true that everything that's simply business is morally ok.

The hypocrisy argument is both irrelevant and probably false. First of all, believing prostitution is immoral doesn't require insulting prostitutes, as you suggest, and it doesn't even require placing the bulk of the blame on the prostitute. Many people believe prostitutes are taken advantage of even if they appear to (and think they) consent.

Most people who oppose prostitution for reasons related to a Christian moral viewpoint are just as strongly going to oppose promiscuity, adultery, and other things contrary to the Christian view of sexual morality. Those not from this perspective might actually have reasons why they oppose most prostitution (e.g. that it's taking advantage of people who are in a desperate situation, and the fact that they express some desire to do it doesn't mean they really want to do it at a more fundamental level).

But either way it's irrelevant. If people are inconsistent in their moral views, that says absolutely nothing about whether certain things are immoral or should be illegal. Nothing at all. It just means some people are inconsistent. Some people are inconsistent in the opposite way by thinking all sex between consenting adults should be morally ok and legal, but then they don't extend that to a brother and sister or a father and adult daughter but provide not account of why. That doesn't in itself mean the view is wrong, just that the person either isn't applying it carefully or hasn't provided a consistent account of how one thing is ok but another wrong.

What you brought up is just the negative aspects of it. And as I said in my first post I don't agree with prostitution as far as things like people being held and forced against their will and selling children into prostitution is concerned. That I do not condone.I have women in my family that have been raped as children and I see how it still affects them.But as far as consenting adults who willingly choose to sell THEIR body for money I don't think it's wrong. It's just business.My comment regarding hypocrites is not irrelevant because I know some and have talked to individuals that are suspect. There are a lot of people out there that criticize prostitution yet they go out and screw anything that walks and are guilty of adultery. So my question for them would be at the end of the day who's the real hoe? The willing adult who's doing it to make money(business) or the adult who's lying and cheating on their significant other and commiting adultery? I still stand by what I say. I think as long as the ADULT is willing to do it and it's their choice it's not wrong whatsoever.

What I was saying is stronger. Some have argued that those who feel as if they are willingly selling their body for money are still being taken advantage of. Forces that come into play that minimize our ability to give informed consent willingly don't involve just mere force. Deception can be part of it, and deception can be very subtle. Consider advertizing and how it affects people's views of what a beautiful woman looks like.

I think there are social forces that lead women into prostitution that undermine the full consensuality of the relationship. This may not be true of every case of prostitution, but I think it's far more common than you seem to.

Your point about hypocrites applies only to one thing. It applies to the moral high ground that the people you know might have otherwise had if they held themselves to higher standards. It doesn't apply to the moral arguments themselves, and it doesn't apply to someone who is not like those people.

I would ultimately base my own view on things you probably wouldn't accept. I believe sex was created for as particular purpose, part of which is the unity between a husband and a wife who before God have committed to each other. I think prostitution is wrong because of my views on what sex is. To argue against that sort of view, you'll have to take several steps back and argue against that whole view of sex. I don't intend to get into that discussion here, but I think it's important to point out where I and several who commented before on this post are coming from. The issue was originally whether it's ok to have laws against prostitution even if you think it's wrong. Your issue is whether it should even be considered wrong, and that's outside the context of the original conversation.

I also think you should consider cases of adult, consenting incest if you want to take the general view that sex between any two consenting adults is ok. If that's not ok, it opens up the door for other things not to be ok even with consent. If it is ok, be aware how radical your view is. I don't think I've gotten anyone to admit to me that they believe a brother and sister who are adults can have sex with each other and not be doing something immoral, and I've taught this issue in ethics classes enough times that you'd think if it were a common view someone would have tried to defend it.

I favor legal prostitution.

I think that a system of laws needs to be capable of effective enforcement and that requires a victim. Someone who has tools stolen from his garage will assist in finding the perpetrator and participate in the prosecution. In order to charge a prostitute with a crime one needs to entrap and create a case, the person has to be induced to commit a crime before the law can be enforced. This is akin to leaving valuable items in a position to be easily stolen and then arresting those who succumbed to that temptation. Crimes are created to feed the system. I have watched "stings" on television and they seem to consume a lot of resources, a decoy is placed on the street. Police must be provided to protect the decoy and still more police are staged in a motel room where the johns are led in order to be arrested. Anyone who has ever been the victim of a property crime knows that in his case one bored cop will show up, make a report, file it and the property will never be found nor much effort made to find the perpetrator. Law enforcement assets should solve crimes with victims, not try to impose morality on two people who enthusiastically agree to do what they are doing.

Abuse is against the law and should remain that way. Prostitutes are abused because they can't open an office like a lawyer and practice legally. Most of the abuse would end if it was a legal profession and a hooker could call a cop.

As far as the morality - this is based on Judeo Christian sexual morality. Prostitution seems to be singled out however, ask the average preacher and he will tell you that it is immoral to "spill your seed" or masturbate. It is equally immoral to buy a woman dinner, lie to her about how beautiful she is and have sex without the benefit of marriage. This is all legal however. Why then should we single out some guy who does not want to lie and simply wishes to give the woman $40 in cash instead of indirectly in food ??? What is the moral difference ?

Vernon, you are assuming that consenting to something means one cannot be a victim. I do not grant that assumption. We consent to all manner of things that harm us. Smokers consent to smoking, and yet they harm themselves. They are thus a victim of their own act. Anyone who holds the Platonic view that merely doing wrong harms you (as I do) will think that you don't need to prove external harm for there to be harm. All that needs to be present is that the act is wrong. If that is right, then abuse would be continuing even if it were legal and the prostitute could call the police if the prostitute believed abuse was going on. That's because the prostitute doesn't believe there's abuse going on in the ordinary, run-of-the-mill case, which is what I think is going on.

I do think there's one argument that involves protection of someone other than the prostitute or the john. What we are dealing with here is sex, and sex leads to conception. There are ways to attempt to stave that off, but most of the ones anyone would use are not surefire methods of avoiding conception. Given that abortion in such circumstances is almost certainly wrong (which you may disagree with, but I think it's obvious that it would be killing a human organism for the sake of convenience), you have thus made virtually every act of heterosexual prostitution at least the potential for either doing something very wrong or bringing a child into circumstances that are at best much less than ideal. Even if the chances of this are very low, I think it's worth preventing.

Now as it's clear from the above discussion, that's not necessarily going to be enough to justify making it a legal crime, and even if it's a crime it may be that certain ways of enforcing it (e.g. setting up stings to making a tempting situation for the person to fall into) is a bad way to enforce a crime (or certain crimes; maybe it's worth it for sexual predators of children even if it's not worth it for sexual predators clients of prostitutes). Also, it's also worth considering whether the john who takes advantage of the desperate situation of a prostitute commits a much worse evil than the prostitute does, and our laws do not reflect that at all. But none of those points change the fact that I haven't seen a good argument that prostitution is a victimless crime.

On your second comment, you're going to need an argument about why spilling seed is immoral. The scriptures say no such thing. What they say is that one particular person, who had fallen under a very particular law after the death of his brother that required him to provide offspring for his brother's wife, was doing something immoral by refusing to fulfill that obligation, and thus spilling his seed in that case was immoral. Nowhere in the scriptures does it apply this to a case of a married couple who are putting off children a few years until they can get themselves in a better financial position, a married couple with a serious health condition that makes pregnancy extremely dangerous, a married couple with several severely disabled children who seek to devote their energies to providing for the children they have, and so on.

On the other issues, you're right that lots of sexual acts are immoral in the Christian scriptures that the U.S. government does not outlaw, and lots of non-sexual acts are wrong but not outlawed. That is why there is the possibility of this discussion to begin with. Several things are different about prostitution. It almost always involves a man taking advantage of a woman's desperate situation, when she wouldn't do it if she weren't in that desperate situation. In a sense that undermines consent to some degree. The presence of the money is also quantifiable, whereas lying about someone's beauty and pretending you are interested in more than a one-night stand is not. The same legal distinction would be made in cases of bribery. Bribing someone with compliments or with vague promises to be nice to them is hard to quantify legally, but giving a monetary bribe is very clear and plain. The latter is outlawed. The former is not easily outlawed, even if ethics policies in companies and in the government try to avoid the former when they can. So there isn't so much a moral difference as there is a greater ability to demonstrate that the bribe or payment has taken place.

Could there be a moral justification for legalising prostitution?

Isn't that what this conversation was about?

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