Before I begin, allow me to make a few statements. First, this is probably my last essay on prostitution for a while, I am burning out on the topic and want to write about something else for a while. In fact, I am writing this before I even check for comments, as I want to get this done and be finished with the topic. Not that it is not interesting, or that the argument has been acrimonious, it has been quite civil and informative, I am just running out of new things to say.
Second, I think I may not be posting as frequently as I have been. I have recently been moved to a new position at work, and with all the holiday stuff added in, I am simply worn out, so I may take a small break. Not that I won't write at all, just less frequently until the new year.
Third, if this article sounds emotional, then I ask your forgiveness. I am definitely not moved to emotion by prostitution, and I generally try to keep an even tone, but sometimes I seem to get a bit worked up when defending freedom, especially when I feel the arguments against freedom are tempting to a significant number. such tempting arguments for limiting our freedom are worrying, and so I sometimes adopt a more emotional tone than I intend.
Having said all of that, let me begin.
As anyone who has read the last few posts knows, CW and I have been debating the propriety of laws banning prostitution. As I said in "Hard Cases Make Bad Law", or rather in the postscript to that essay, I am not arguing there must be a uniform, top down law eliminating all such prohibitions. I argue that such laws, under ideal circumstances, would not exist, as they provide a wedge which can be used to eliminate individual freedom. However, as I am wary of any imposition of supposedly perfect law from above, I would prefer that such laws were eliminated naturally through the gradual evolution of our understanding of freedom, preferably under a decentralized, federalist system. So, while I argue for a specific position here, I am not arguing that things must be done as I suggest, just that we should consider what the cost is of doing things as we do now, and consider whether we should or should not move toward the position I advocate. (It sounds wishy-washy, but only because it is difficult to make precisely clear that while I describe a perfect system, I do not have any desire, as most libertarians seem to have, of imposing this perfect system on an unwilling public.)
However, I know I am in a minority in finding such laws harmful, or even improper, so allow me to set forth my case in as simple a set of terms as possible.
First, let us look at the most basic part of the transaction. The two parties involved both are willing to engage in this transaction. Whatever their motives*, however they came to that position, they have agreed that such an exchange is to their benefit, and that whatever costs are involved are more than made up by the benefits of the same. Under any other circumstances, this would be the end of the matter, as both parties are consenting, there is no need to involve the law**.
However, there are two arguments offered against this transaction. Well, actually several, but for the most part,t he arguments boil down to two possible reasons. The first is, while they consent to the exchange, the agreement is harmful for them and should be banned. The second is, whatever the harm tot he parties involved, the act is harmful to society, that is to one or more parties not involved in the exchange, and thus it should be banned***.
The first argument is easy to summarize. The point is that the evaluation of cost and benefit by the parties involved is wrong, and they should be forced to make a different decision, in order to avoid harm.
The second is a little more difficult to understand, but it is still quite similar. The reason is simple. All acts, of whatever kind, have costs, and benefits. All acts can cause some harm to others, or benefit others. And what harm is done, or benefit is experienced, is often a matter of opinion. And, even if there is some sort of harm one could call objective (which I dispute, as the value associated even with physical injury is still subjective), whether that harm is offset by the benefit is still a subjective matter. Thus, for every act which harms society, that is, which causes more damage than benefit, there is some group which says the opposite.
Let us just look at our fellows. There are those who argue women should not work outside the home. There are those who argue that all sex is rape. There are those who oppose eating meat. There are those who would ban religion. There are those holding every opinion you can imagine. So, if we accept one position, and give it the force of law, we are simply imposing one set of values upon the rest.
But how do we decide who gets to impose their opinions and who does not? Or do we impose all opinions? Is that even possible? Or is it simple majority rule? And if the majority would enslave, or execute a minority? Or outlaw beliefs they oppose? Where does this power end? And how do you define it?
No, that is why we define the purpose of government as protecting the rights to life, liberty and property, and that alone. At that level, there is no conflict between individuals. Protecting the rights of others involves nothing more than refraining from acts which would do them physical injury or take their property. It is minimal, a bottom line, and easily enforced without causing strife. Anything beyond that, if it is given the backing of physical force, creates a class of losers and winners, leads to strife, and deprives some of the ability to acts on their beliefs.
Instead, the solution offered, if you believe something is harmful, is that which does not involve force. If you think people harm themselves by doing something, or that it injures society, then persuade them, or persuade others who can apply social pressure on them. That is the way in which changes are made to beliefs and practices that do not violate rights. That is consistent with freedom.
The alternative, picking winners and losers, some who get to enforce their beliefs with violence, and others who must deny their beliefs or face injury, confiscation or death, that is inconsistent with freedom. And, yes, some such laws, such as banning prostitution, involve but a very small immediate injury -- banning prostitution on its own is unlikely to enslave us -- but on another level, such laws do a much larger harm, and that is that they establish the principle that we can use force to correct those we think are wrong, that we can use force to save some from themselves, that we can choose winners and losers, that we can pick values we want to give the backing of violence, and that is dangerous.
* Some will discuss women forced into prostitution, slavery and the like, but that is a separate issue. Slaves can be forced to do many things, but that does not make the acts they are forced to do improper. Slavery or other coercion is the issue, not the end to which that coercion is put. Thus, even if some are involuntarily forced into acting as prostitutes, that has much less to do with prostitution and everything to do with slavery, which is a separate issue. (If you want to be pedantic, part of the reason people are coerced into prostitution is, because the entire act is illegal, criminals are involved more than they would be in a legitimate enterprise, making other crimes more common. The same way illegal aliens are often exploited because they cannot take recourse to the law.)
** Obviously, there are other areas where the government involves itself, such as minimum wage laws, drug dealing and the like. However, conservatives tend to oppose many of those, and the few they do not oppose government intervention, I still do (eg drug dealing -- see "Guns and Drugs").
*** I am ignoring one specific topic here, as it is, like using force to coerce others, a separate issue. That is prostitution which becomes a public nuisance, taking place in public etc. That is a matter for another argument, as it relates to the ability of the government to regulate conduct in public. And, I think it is rarely the main point of contention, as most who would ban prostitution would not change their position were it limited to brothels which were not marked and could not advertise. Even if prostitution were kept entirely out of public view, they would still be opposed. Maybe a few would not, but most, as far as I have seen, oppose prostitution equally whether overt or covert.
One final apology. I wrote this essay in my head while I was in the bath and I have tried to rewrite it from memory. So, if at times it seems a little disjointed, or if it seems something is missing, then I must accept the blame, as I probably forgot a point I wanted to make. I tried my best, but even this relatively short essay is tricky to rewrite from memory alone.