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Friday, May 01, 2009

Civil libertarians call for sex worker rights. Is it time to legalize prostitution?

Ever since the lovely and talented Ashley “Spit-zer Swallows” Dupre brought down degenerate anti-capitalist crusader and corporate governance zealot Eliot Spitzer, disgraced former Governor of New York, I’ve developed a soft spot for prostitutes.

Don’t misunderstand me. Prostitution is no doubt a pernicious vice to be avoided, but prohibiting consensual acts is positively criminal, philosophically speaking. Prostitution may be bad, but prohibiting prostitution is worse by any measure, including concerns for natural justice, law-and-order and public health.

So why not feel sorry for Spitzer, a man whose relationship with prostitute Dupre destroyed his political career? (Spitzer now writes for Slate magazine.) Simple. Spitzer made his career as New York Attorney General turned Governor in part by enforcing prostitution laws without mercy and destroying the lives of those involved with the trade. He could have de-prioritized the enforcement of this so-called crime when he had the authority to do so. Instead, he did the opposite.

This brings me to my news peg. The B.C. Civil Liberties Association (BCCLA) is calling for the decriminalization of the sex trade in Vancouver.

The BCCLA wrote a letter to the Premier yesterday in support of the demands of a number of Vancouver advocacy organizations for improved protection of the health and safety of sex workers and the improvement of the conditions in which they typically work.

“Sex work is functionally legal in Vancouver,” said David Eby, Executive Director of the BCCLA. “From the back pages of the Georgia Straight and other publications, to the massage parlours that get business licenses from the City, to the street corners of our industrial areas, our sex industry exists and is not going away. Instead of simply pretending that they do not exist, is it too much to ask that sex workers be covered by health and safety protections?”

The BCCLA has supported the decriminalization and regulation of sex work since at least 1982. It has consistently argued against use of the criminal law to ban activities that are not, in its assessment, harmful to others. The civil liberties organization argues that attempts to legislate the morality of others adversely affects our capacity to form adequate social policies and laws governing sex work.

“The BCCLA’s position is that capable adults should be able to exercise autonomy over their bodies,” said Megan Vis-Dunbar, a board member of the BCCLA. “Danger, coercion and lack of reciprocity are neither essential nor unique to sex work. Nor should anyone assume that individuals would never willingly elect to engage in prostitution.”

You can read more Western Standard coverage of this prostitution controversy here.

Posted by Matthew Johnston

Posted by westernstandard on May 1, 2009 | Permalink

Comments

"Given that we have publicly funded health care in Canada, who do you think would bear the cost of disease associated with legalized prostitution?"

Shane, this is exactly the argument harm reductionists make for decriminalizing/legalizing prostitution. Disease is more likely as long as prostitution can not be legally regulated.

A brothel operating legally and openly could test for disease and reduce the spread to third parties. This public health issue motivates many reformers.

Posted by: Matthew Johnston | 2009-05-04 12:43:29 PM


They are self-evident. Everyone in society grows up with them. Well, almost everyone. As this blog proves, there are some exceptions.

Clear-cut logical fallacy: Argumentum ad populum.

Neither masturbation nor buying porn are logical, and yet people do both. Lesson in life: People do not always behave logically; you said so yourself.

What are you saying here, exactly? Because all human actions are not logical, no logical argument is required? That seems to be what you're saying--which is illogical in and of itself (see: False analogy).

Porn is considered by many to be an essential accessory to experience maximum fulfilment. Certainly the industry owes a significant portion of its revenues to masturbation.

This is essentially a continuation of the logical fallacy that Suzanne started. That because some use pornography for masturbation, it follows that masturbation fuels the pornography industry. This is a: hasty generalization, affirming the consequent, and ultimately, quite simply a red herring.

See? You can't use logic. Even your response to my critique of your lack of logic, is illogical.

Posted by: Mike Brock | 2009-05-04 12:44:26 PM


Oh Shane, I also forgot

Posted by: Mike Brock | 2009-05-04 12:52:18 PM


Oh Shane, I also forgot appeal to emotion.

You know where you go after how insensitive and disrespectful I'm being to Suzanne's position, etc. Which is actually, more broadly, a red herring.

Posted by: Mike Brock | 2009-05-04 12:53:48 PM


Sure hope you don't have an ownership stake in this once-relevant blog, Mike.

Posted by: set you free | 2009-05-04 1:11:33 PM


set you free,

I hear the readership is on the upswing. Apparently there is a growing interest in the principles of reason.

Posted by: Mike Brock | 2009-05-04 1:17:16 PM


I would agree that your viewpoints are attracting many reasonable people to counteract your foolish positions.

Posted by: set you free | 2009-05-04 3:27:35 PM


I would agree that your viewpoints are attracting many reasonable people to counteract your foolish positions.

Really? Who are these people? What are their reasonable arguments? I want to debate these reasonable people you speak of.

Posted by: Mike Brock | 2009-05-04 3:34:04 PM


Steynian writes about my post:

The lapsing into ‘consensual contract’ language doesn’t make anything right: the good or evil of an act is not determined by whether the participants were agreeable.

True, Steynian, but 'consensual contract' has everything to do with defining criminality. If we draw no distinction between moral questions and legal questions then Western notions of justice are no different than Sharia law notions of justice.

Posted by: Matthew Johnston | 2009-05-07 5:04:07 PM


Matthew,

I'm not sure your response covers it. Contract is both a legal notion and a moral notion (at least, as libertarians, we should think so.)

It's because the person who signs the contract is morally obligated to hold up his end that it becomes permissible to force him to honor the terms.

One question to ask -- that has to be asked -- is how much morality should infuse or influence the law. The libertarian answer is: not much at all. The conservative answer is: quite a bit. The shariah law proponent's answer is: completely, to the exclusion of all other factors.

But looked at in this way, the conservative rides a lot closer to the Islamist than it does to the libertarian. And the liberal, for all his faults, rides closer to the libertarian.

There's a good paper you would really like that gets at this point in a very compelling way:

"Liberal neutrality: a compelling and radical principle" by Gerald Gaus. I'd think you'd like it a lot.

Gaus argues that the principle of liberal neutrality - which forbids the government from basing laws on aspects of morality others can reasonably reject - basically has a libertarian upshot.

Posted by: Terrence Watson | 2009-05-07 5:36:02 PM


Terrence, I've explained the libertarian distinction between vice and crime a dozen times. If you don't find my distinction reasonable, tell me why.

Peaceful, consensual acts are not crimes by liberal and libertarian definition. That does not mean that these acts can not be immoral, which is a much more subjective question.

Criminal acts are immoral, but not all immoral acts are criminal, philosophically speaking.

If conservatives can not understand this distinction, then they have more in common with radical Islam when it comes to a theory of justice, then they do with Western liberal notions of justice.

You wrote: "One question to ask -- that has to be asked -- is how much morality should infuse or influence the law. The libertarian answer is: not much at all. The conservative answer is: quite a bit. The shariah law proponent's answer is: completely, to the exclusion of all other factors."

It's not a question of how much morality should infuse or influence the law. It's a question of the nature of the act, a question that concerns personal autonomy, private property and consent.

Acts of aggression should always be a matter of law. Peaceful acts should not be a matter of law -- or they shuold not be prohibited, to be more accurate -- which is not the say these acts should not be a matter of moral discussion.

I have no idea where you're finding fault with my statement in response to Steynian.

Posted by: Matthew Johnston | 2009-05-07 6:02:04 PM


"Gaus argues that the principle of liberal neutrality - which forbids the government from basing laws on aspects of morality others can reasonably reject - basically has a libertarian upshot."

Yeah. Of course. You think I misunderstand this basic libertarian position?

Posted by: Matthew Johnston | 2009-05-07 6:12:48 PM


Matthew,

Sorry, I was probably less clear than I could have been. I see the Steynian saying something like this:

1. Seriously immoral acts should probably be prohibited.
2. Prostitution is seriously immoral.

Conclusion: Therefore, prostitution should probably be or remain prohibited.

I see the argument on the other side looking like this:

1. All and only acts of aggression should be prohibited.
2. Prostitution is consensual and involves no aggression from either property.

Conclusion: Therefore, prostitution should not be prohibited.


I think you, Steynian, and myself all agree that certain seriously immoral acts can be performed between consenting individuals, within the domain of their private property. The fact that they're consensual, private, etc. doesn't take away from the fact that they're also seriously immoral.

"Acts of aggression should always be a matter of law. Peaceful acts should not be a matter of law -- or they shuold not be prohibited, to be more accurate -- which is not the say these acts should not be a matter of moral discussion."

But this just begs the question against the Steynian. He acknowledges that prostitution can be a peaceful act, but thinks it is seriously immoral. If we respond, "Peaceful acts should never be prohibited by law, no matter how immoral" we've just assumed what we should be trying to prove.

And if the proof is that aggressive acts are non-subjectively wrong, while the wrongness of prostitution is more subjective, it's not going to get far: Steynian/Shane Matthews/et al won't agree, for one thing.

(However, I think this is probably the right way to go, but it involves attacking the core of the conservative's moral view.)

So how do you refute premise 1 from the first argument without simply assuming the truth of premise 1 from the second argument? And without attacking the conservative's very sincere belief that prostitution is seriously and objectively wrong?

Posted by: Terrence Watson | 2009-05-07 6:28:56 PM


Premise 2 of the second argument should be:

"2. Prostitution is consensual and involves no aggression from either party"

Posted by: Terrence Watson | 2009-05-07 6:34:58 PM


Let me make sure I'm clear, Terrence.

You're asking me how I would refute this argument:

---

1. Seriously immoral acts should probably be prohibited.
2. Prostitution is seriously immoral.

Conclusion: Therefore, prostitution should probably be or remain prohibited.

---

Why shouldn't immoral acts, even consensual immoral acts, be prohibited?

That's what you're asking me?

Your answer – or your suggested answer for me -- is that since reasonable people can disagree on whether or not these consensual acts are in fact immoral, they should not be prohibited.

I would say the government should not be the arbiter of morality, to which you would ask "why?".

I would say the government should prohibit only non-consensual acts, acts of aggression and fraud, to which you would respond "why?". Why not, as Steynian argues, prohibit acts that are immoral?

Is that right?

Posted by: Matthew Johnston | 2009-05-07 7:05:11 PM


Terrence, here is what Lysander Spooner said on the distinction between vice and crime:

Vices are those acts by which a man harms himself or his property.

Crimes are those acts by which one man harms the person or property of another.

Vices are simply the errors which a man makes in his search after his own happiness. Unlike crimes, they imply no malice toward others, and no interference with their persons.

In vices, the very essence of crime - that is, the design to injure the person or property of another - is wanting.

It is a maxim of the law that there can be no crime without a criminal intent; that is, without the intent to invade the person or property of another. But no one ever practises a vice with any such criminal intent. He practices his vice for his own happiness solely, and not from any malice toward others.

So when you rhetorically ask “Why not criminalize vice?” you are also asking “Why not discard the essence of crime?” in favour of some variety of Puritanism.

The question still deserves an answer, of course. But before I offer an answer, I want to make sure I understand your actual question.

Posted by: Matthew Johnston | 2009-05-07 8:36:06 PM


Matthew,

Spooner was great, but I'd want to know if he's offering a normative account of crime - that is, he's talking about how we should deploy the term - or just describing the way most people use the term.

If the latter, then he's probably wrong. Most people would call the heroin seller a criminal, and refer to his actions as crimes. That's just how the term "crime" is normally used.

So let's assume it's a normative account: the only actions that ought to be considered crimes are those that harm another in his person or property. That's how the term "crime" should be used.

Actions that only harm the actor and/or his property shouldn't be called crimes. Rather, they should be referred to as vice.

Crime should be prohibited. Vice should not be. Therefore, prostitution should not be prohibited.

So far so good?

When I asked the question, "Why not sometimes prohibit vice?" I wasn't suggesting that vice just is crime. I was questioning why crime -- in Spooner's sense, I guess -- is the only form of action that ought to be treated as crimes in the more colloquial sense of the term.

Since vice can be deeply immoral, why not treat certain vices as crimes, too? (Not all of them, necessarily: just the ones that are really, really wrong. So not Puritanism as typically understood.)

And the answer can't be -- can't be! -- that vice is one thing and crime is another. That's already been acknowledged: prostitution isn't a crime in Spooner's sense.

It is, however, deeply immoral (I don't think it is, but Steynian sure seems to think so.) It's immoral despite the fact that it doesn't harm anyone else.

But I don't see how it's adequate to say "It doesn't harm anyone else; therefore it ought not be prohibited." That assumes Spooner's normative account of crime, which is precisely what the conservative is going to reject.

If a socialist said, "It's just to redistribute income from the rich to the poor" we wouldn't reply to him adequately if our only response was, "It's unjust to redistribute income from the rich to the poor."

Because the socialist rejects the libertarian view about justice, we're not going to persuade him by making a reply that already assumes that the libertarian view about justice is true.

For similar reasons, the social conservative isn't going to be persuaded if the response to him assumes that the libertarian view about crime is true. That's exactly what he has to be persuaded to adopt!

Posted by: Terrence Watson | 2009-05-07 9:44:42 PM


If you accept the normative account of crime -- that it ought only include acts that harm others or their property -- then you've answered your question.

You don't accept this normative account?

Posted by: Matthew Johnston | 2009-05-07 11:20:09 PM


Matthew,

I'm saying the "Steynian" obviously doesn't accept that account. He seemed to agree with you that prostitution can be consensual, etc. At least, that's how I read his post.

As for my view, it's less relevant. I'm just trying to make the Steynian's argument for him.
***
Thinking about it, I wouldn't accept Spooner's normative account just like that. I'm very suspicious of the term "harm." Almost everything interesting (and, perhaps, true) about the normative account is contained in that one word. But it's a notoriously slippery word.

Joel Feinberg, who probably did more to clarify the contents of the box than anyone since J.S. Mill, still left it pretty mysterious, in my humble opinion. And he wrote a huge amount on the subject.

My own view is that it's pretty much impossible to respect a person when you're foisting your view of the good on him, or treating him as a mere means to the accomplishment of the ends you think are best.

This is what happens, I'd argue, when we prohibit the john and the prostitute from engaging in their preferred vice. It's disrespectful, and I think the conservative arguments against prostitution reflect that.

Force, when exercised against me, has to be backed by reasons I would accept, if they were presented to me. That's why I thought your suggestion that the wrongness of prostitution is more subjective was on the right track.

Posted by: Terrence Watson | 2009-05-07 11:41:25 PM


The murder of a massage therapist through Craig's list has brought this issue to light. There are definitely comparisons here to the battle over liquor in the past. Prostitution should be made legal yet controlled, as is the case with liquor. Nobody under 21 can buy liquor legally, and prostitution shouldn't flourish just everywhere, but can be put in designated places where everyone would need to show an ID just as you would if you were going to purchase liquor. That way the ladies would be safe and it would take the criminal element out of it in much the same way that the repeal of the prohibition amendment took the criminal element out of that enterprise. And they would have to be tested monthly or so, removing the hysteria over diseases. When are we going to learn that prostitution prohibition is no more successful than was liquor prohibition.

Posted by: beechnut | 2009-05-21 11:27:32 AM



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