Tuesday, December 11, 2012

Hard Cases Make Bad Law

For those who stumble upon this post without reading anything else, I am writing this in  -- much belated -- response to the comments made by CW in reply to my earlier post "The Sexual Revolution and Prostitution". I suppose it makes sense on its own, and I am sure it can be read without referring to that earlier post, but I would suggest at least reading the comments, if nothing else, as they may make clear why I choose to address the issues I do, while ignoring others1.

For those who choose to soldier on without reading anything, I suppose I should offer something of an introduction before charging ahead. So, to put things as simply as I can, my original article, among many other issues, mentioned that I believe, given what I believe to be the proper, and very limited, role of government, that laws against prostitution are improper, and that any controls upon the practice should come from elsewhere, be it social disapproval, erosion of the practice through changed attitudes or increased wealth, education or whatever means one can devise, or, should those prove inadequate, that we must accept that protecting individual rights means some individuals will engage in acts we find improper, but so long as they don't violate the rights of others, there is no reason to involve the state.

In response, CW made a number of arguments, which I shall not try to summarize, as I shall doubtless not do them justice. However, I will try, as best I can, in the following paragraphs, to address the ones I see as most significant, and, with luck, should hopefully at least make a solid case for my position. Doubtless, feeling as strongly as she obviously does CW will let me know how well I did in making my case, so I would recommend checking the comments, and perhaps even awaiting yet another article on the topic of prostitution, or rights, or the role of government, or more likely all three.

Before moving on, let me add the usual disclaimer, though in this case it may be less of a disclaimer than most conservatives or libertarians would write. To begin, I am not a proponent of prostitution. I do not think it is a good choice for a career, nor is it a good recreational activity. I have not availed myself of their services, nor -- as would be obvious if you ever saw me -- have I ever worked as a prostitute. To complete the disclaimers, I have also never been a pimp, panderer or otherwise involved myself in the profession. The closest I have come would be picking up a friend who worked as a bouncer at a strip club which may or may not have been a front for prostitution. Other than that, prostitution has not touched my life1.

Having said that, I also have no strong feelings about prostitution. As I described in "The Sexual Revolution and Prostitution", our acceptance of promiscuity has blurred the lines between casual sex and prostitution in many cases, and, even if it had not, I am convinced that prostitution, either as a formal exchange, or as an informal quid pro quo, will continue to exist regardless of what laws we might pass. If repressive theocracies such as many in the middle east, communist dictators and Nazis could not stamp it out, no government with an iota of respect for liberty will do better.

My personal feelings on the issue are, for the most part, nonexistent, though I suppose I should say "ambivalent". But, to be honest, it is an issue about which I think infrequently. I would not have written the earlier essay that inspired this one had I not noticed how many match.com profiles were blatant gold diggers (cf "Some Passing Thoughts, Though Quite Off-Topic"), leading me to speculate about whether enterprising call girls could use such match services to find new business. It was only because of that stray thought that the issue of prostitution arose at all, otherwise the issue would likely have remained unmentioned for years, if only because there are so many other topics which hold more interest for me.

However, saying I do not think about it does sound like a bit of a cop out, so allow me to be a little more explicit about my thoughts, even if it might not be much more informative. When I do think of prostitution, I really have few strong feelings one way or the other. Unlike many libertarians who love to be contrary, and champion "bad" causes, I have no delight in appearing the champion of prostitutes. Personally, I find the thought of hiring a prostitute absurd, but otherwise I have few thoughts about the profession. Doubtless for many it is a miserable existence, but that alone does not argue the law should become involved. I have known many people who endured miserable existences, a few from drugs, a few from other, perfectly legal, bad decisions. Misery is not exclusive to this profession, nor, would I think, is it a universal experience of all prostitutes. Though it may offend some, I am also sure there are some who are so desensitized by modern attitudes toward sex that working as a prostitute is a matter of indifference. Whether those social mores are an issue, and what our response should be, we shall discuss later, as well as the role such attitudes play in the prevalence of prostitution, but, for the moment, let us agree, some prostitutes find themselves miserable, others less so, some perhaps not at all3,4,5.

This is getting rather long for a disclaimer, so I suppose I should wrap things up. Let me leave it at this. When discussing the role of the state, I suggest that those who disapprove of prostitution should use means of persuasion, or signs of social disapproval, to change things, as the state is simply not the right tool. To summarize my thoughts, if the laws against the practice were changed or gone, would I do anything to end prostitution? To be honest, I doubt I would. As I said, while I would not personally involve myself, I just don't feel that much of a need to eliminate it either. I suppose, were conditions to change, were prostitution to become more prominent, become a glamorous profession or otherwise make a more dramatic impact on society, I might then feel the need to involve myself, but, provided it remained a relatively quiet affair for the most part, I don't think I would feel the need to try to bring it to an end6,7.

Having laid out my feelings, such as they are, and at much greater length than I intended, allow me to embark upon the argument proper, starting with what strikes me as the most important argument, though one often given short shrift in this era of pragmatism8, the premise that government has but a limited role, the protection of individual rights, and that prostitution, whatever might be said about it, in no way violates those rights9. In addition, as the term "rights" has been treated as the most protean of words, I will finish by explaining exactly what rights mean, how those rights are defined, and why the term rights can only be properly applied to a handful of individual rights, and nothing else, unless we wish to make the term meaningless10.

Let me start by committing the faux pas of not just quoting myself, but doing so at great length. I hope it is forgivable, as it describes, in a better form than I could hope to reproduce on short notice, the three basic categories of government action, and helps to lay the groundwork for the distinction between rights properly understood (or a I called them elsewhere "negative rights"11) and fictional rights ("positive rights"). So, without additional excuse, allow me to present this brief description of government action form "Every Kid Likes Hot Dogs" [footnotes removed]:
All government action, beyond the most basic protection of rights, is a matter of enforcing specific values. ( "The Inherent Disappointment of Authoritarianism", "The Right Way") When the government protects citizens against force, theft and fraud, or acts as an arbiter of disputes through civil court enforcement of contracts ("In Praise of Contracts"), even when it settles those rare harmful interactions between strangers through tort cases, it is basically creating the minimum environment required for human society to function. ("My Vision of Government", "My Vision of Government Part II", "Why I Am Not A Libertarian", "The Benefits of Federalism", "An Analogy For Government", "A Simple Proposal", "Man's Nature and Government", "Prelude", "Negative and Positive Rights", "Symmetry and Asymmetry in Government", "Why Freedom Is Essential",)

But when it goes beyond that minimal protection of individuals, it moves into the realm of valuation, and of necessity that means forcing one specific set of values upon all citizens. ("A New Look At Intervention", "Liberalism, Its Origins and Consequences") I discussed this before in "In The Most Favorable Light" and "Slippery Slopes", but for the sake of readers, allow me to go through it one more time, hopefully from a slightly different angle.

Government, at least in its present form, engages in three types of actions.

The first is to act as an arbiter between two parties, enforcing either a set of private agreements (contracts) or a body of generally accepted rules (torts), or in a few cases (probate court, custody hearings, divorces) a little of each, modifying the established rules through the application of private agreements, at least to some aspects[sic].

The second action is the protection of one or more individual [sic] from another, either preventing the use of force theft or fraud, or punishing the act afterward. ("Compassionate Execution", "The Death Penalty", "A Rational Approach to Punishment", "The Ends Justify the Means?", "Fair or Functional?", "Not Completely One Sided", "Motives Unimportant", "Sunday Morning Talking Heads", "Civilization and the Fear of Death") This applies not only domestically, but internationally as well, as foreign policy ideally should be informed by the basic principle that the government exists to protect citizens' rights.

The final action, which includes the vast majority of must laws currently on the books, as well as almost all regulations promulgated by executive agencies, are rules and laws which require an individual, or more than one, to either avoid making a choice he would otherwise make, or requiring him to act in a way he otherwise would not. This sometimes is disguised as an effort to protect one individual against another (eg. minimum wage "protecting" the employee, or rent control "protecting" the renter -- see "He's Bad So He Must Be Wrong"), but in reality these laws simply tell both renter and owner the prices for which they may contract, regardless of their own wishes, or the wages which are permissible, regardless of their own decisions.

And each such rule embodies an implicit set of values. Granted, the government does not say so. They pretend the rules they enforce are somehow rational laws based on absolute values. ("Absolute Values", ""It's Our Top Priority!"") But as I have argued again and again, there is no rational way to establish such rules. ("Who Will Decide", "Envy Kills", "Envy And Analogy", "Saving Us From Lower Prices", "Price Gouging", "Put Your Money Where Your Mouth Is, Or The Logical Implications of Price Gouging Laws", ""True" Prices", "Excuse Me?") The government may claim a given wage is not a "livable wage" ("Exploited Labor", "Exploiting Workers?", "Capital Investment", "Fairness and the Free Market"), but "livable" is a meaningless word, as are the other favorites "necessity" and "luxury" ("The Most Misleading Word", "Luxury and Necessity"). Instead, any such rule is nothing more than the opinion of one or more bureaucrats dressed up in scientific sounding jargon, or perhaps populist rhetoric, and passed off as established fact.
It is a simple enough distinction, though doubtless one with which some would take issue. However, for our purposes, it is quite useful, as it makes it easy to distinguish between rights properly understood and arbitrary government action.

Let us dismiss the first category quickly, as it is the least useful for our purposes. The government has traditionally been the arbiter of private disputes, and does an adequate job, though some current trends have impaired its performance to a degree12. Still, it is a useful function. I have written before that some of these functions, such as contractual disputes, could easily be made private through the use of bonds and private arbiters, but others, such as torts involving absolute strangers, could not be easily resolved without the government involved. Were such a function to be eliminated, doubtless there would be quite a bit more public disorder, as individuals tried to settle unexpected disputes, and thus, in the interest of maintaining the peace, the role of arbiter can be performed by the state13,14.

What interests us are the second and third categories, government actions taken to protect the rights of an individual against violation by another, and those actions taken with some other goal in mind, meaning, one way or another, forcing an individual to undertake an action they would otherwise not undertake. Well, technically, all of the cases involve forcing individuals to act otherwise than they wish, as laws against the violation of rights really only have force when an individual wishes to violate someone's rights. So, I suppose the distinction should truly be, those laws which act simply to erect fences around individuals, preventing others from violating their rights, and those which try to make individuals act in ways that others feel is more beneficial than their natural inclination, that is, a distinction between protecting others from the individual's actions versus protecting them from their own supposedly bad decisions15.

Of course, some will ask why this distinction is important, why rights are defined as they are, or why we need to distinguish what I call rights from other protections. To answer such a question fully would take a much longer essay than I intend to write, but there are some simple answers. First, rights are unique in being both negative and involving our interaction with others, and interactions in which one party suffers at the hands of the other16. In short, rights are all about protecting one party from another. And in a very literal sense. Some will argue that minimum wage, drug laws or other laws protect individuals from one another, but that is simply not true. Drug buyers and sellers, for example, are engaged in a voluntary exchange. Others may disapprove of that exchange, but those individuals are in agreement. Rights, on the other hand are about simple protection. One party does not want to be hurt or robbed, and the protection of rights prevents it. Rights are about very simple and direct protection.

Rights are so defined for two simple reasons. First, because protection of an individual's life and property is the bare minimum necessary for life. Second, because such protection is the necessary floor for cooperative existence. Without protection of an individual's life and property, there is no reason for social existence, one could live in solitude with equal benefit. Society is significant because it protects the individual's basic existence.

But why are rights defined in such a minimal way? Why not extend them beyond these minimal laws and enforce other measures which are good for individuals? That is what we shall examine next, as well look at the arguments offered for banning prostitution.

CW initially argued that there had to be balancing with the rights of society17. Since then, in response to my argument, she amended that to argue that rights had to be curtailed to protect the interests of society, which is a better way to word it. However, as both arguments have been offered by others, I will still address both, even though one no longer represents CW's position. Actually, it shouldn't be all that difficult, as many of the same arguments apply to both, with each having only a tiny number of unique details18.

To answer this question, we must understand that there are two fundamental problems of government.

First, the need to create a government which performs its functions, that is, to craft a state with enough power to provide protection for individuals, and with laws and institutions which perform that function. A state which fails in this basic task is not truly fit to be called a state, though throughout history there have been many dictators who continued to rule despite providing nothing in the way of basic protections. However, this sort of failing is usually short lived and self-correcting, as even the most ruthless dictator rarely stays in power long if he is perceived as providing nothing in the way or order, stability and security. Even if dissatisfaction does not produce some sort of revolt, it makes it easy for any rival to raise support by promising very little improvement, making the normally unstable government of an absolute dictator even less stable.

The second fundamental problem of government is the opposite of the first, that is ensuring that the government, at some point, stops governing, leaving some room for individual action and choice. Historically, where this line is drawn, where the state ends and private decisions begin, has been an unsettled question. For the most part, the trend has been for the line to move over time so as to allow more private initiative, though clearly it is a trend which has not been consistently followed19. But this is not simply a question of preference, or shifting norms. Private initiative is necessary for the growth of an economy, for individual initiative in industry, the military, trade and other fields necessary for the preservation of the state. And, without at least some room for individual freedom, it is very difficult to win over individual loyalty, which is necessary for the state to survive as well. There are other reasons as well, which I laid out before20, but, to keep it simple, let us say, a state which recognizes no limit to its power is unlikely to survive long, nor will the individuals making up that culture.

The question of government then becomes, where does that line lie, what is the dividing line between public and private, or, to take a different perspective,at what point does more government (or more freedom) become detrimental, rather than beneficial?

Some may argue that this is not a question which can be answered objectively, that it depends on what the goal of government is, that differing philosophies will take different positions, that our love of freedom is a single perspective and that others might accept less freedom to gain other ends. And, in the past, I have tacitly agreed with such positions, arguing that our position depends upon one desiring to maximize individual happiness. However, I later rethought these arguments, and, in "The Basics" I wrote that, in truth, that goal is the only possible one we can adopt if we want to create a government which is lasting and stable21. The truth is, we mus take into account individual satisfaction, as that is what every individual considers in making every decision22, and thus, were we to think in any other terms, we would fail to comprehend those we seek to govern, and would produce disastrous results.

Rather than go through the entire argument it took many pages to make, let us look at it simply. Individuals seek their own benefit, and so, when we change circumstances to ask them to seek something less satisfying, there must be a compelling reason, a trade off they see as beneficial. And that is why I argue the state must act so as to advance individual satisfaction. So long as that is the goal, then individuals will be willing to exchange some degree of freedom, some benefit, to gain the advantages of a state they feel advances their well being. On the other hand, when the state seems indifferent, or pursues goal they do not value, then it will begin to seem less and less beneficial to them and their support will flag.

And so, why are rights defined as they are, as a minimal protection against others, rather than to advance specific individual desires? And why must they be distributed equally, so all share the same rights? For that, I will turn to a post I have cited many times before "A Rational Approach to Punishment", which provides the clearest, most basic argument for symmetrical, minimal rights:
Obviously, like anyone else, I would find ideal a system which allowed me to do whatever I wanted without consequence, while providing enough punishment to everyone else that ti prevents them from harming me. Of course, no one would agree to allow me that freedom, and I would allow it to no one. So, the only choice which would be acceptable to all is a system where punishment is applied uniformly.

The next question is whether the system will punish everyone or forgive everyone. The forgiving system will allow me any crime, but will allow the same to everyone else. As I expect to benefit less from my own freedom than I would suffer from the freedom allowed others, it makes sense to opt for the system that punishes everyone. The loss from giving up the freedom to commit crime is small, while the protection is great.

Finally, we need to ask how harshly crime should be punished. And again, the logic is the same. I can benefit from weak punishment, but the potential harm is much greater. As I am unlikely to commit a crime, but I will suffer if even a small percentage of others do, it makes sense to punish crimes harshly enough that almost everyone is deterred from committing them.
Of course, much more can be said, but I don't want to get lost in this single point. Instead, I am going to hope I have addressed this sufficiently, and allow those who have a need for more to follow the many links provided. And, having said that, I will move on to the next question23.

As I did not directly address the harm to society, or the argument that society has an interest in preventing certain acts, let us look at a specific aspect of that question, specifically the type of harm often mentioned in terms of prostitution, and an analogous argument often made for drug laws.

Part of the argument against prostitution, as against many societal ills, is not against the practice itself, but about secondary effects, such as the criminal violence surrounding drug dealers, or the many other ills surrounding prostitution, such as violence and exploitation by pimps, drug use by prostitutes, the spread of disease and a host of other issues.

In some cases these questions are impossible to address, being inherent in the issue, but bans have had little beneficial effect. For example, the worry of many that drug users cause financial and personal harm to their families, or the spread of social diseases by prostitutes. These issues are unavoidable, however, they are also mostly immune to bans. These crimes continue at a largely unchanged pace since they were banned, and with no appreciable change in the incidence of these secondary problems. In addition, and more importantly, these problems exist independent of drugs and prostitution. That is not to say we should do nothing because they will continue to exist, but instead to say they are problems inherent in human experience, and that the state is likely not the best approach to solving them. Making people give up promiscuity, or treat their families well, forcing people to be responsible and behave civilly, those are just not problems we can resolve using government, and to try to do so would require giving almost unlimited power to the state, creating a massive problem to solve a much small one24.

However, there are other issues, which are not inherent social ills, such as the exploitation and violence exercised by pimp and procurers of all sorts, and that is a legitimate question. If we were to remove laws against prostitution, would we not, in the end, be simply encouraging such acts, allowing unlimited freedom to pimps?

However, pimps are not a creation of prostitution itself. In earlier times, in more lawless environments, yes they probably coexisted with even legal prostitution, but as the experience of those nations which have laws allowing some degree of legal prostitution show, pimping is actually, much like drug violence, violence among smugglers and gun runners, and other issues such as human trafficking, largely the result of the laws banning this act.

When something is made illegal, something which involves consenting parties, such as the sale of drugs or agreements to hire prostitutes, those exchanges will generally continue25. However, they will not have the one thing essential to peaceful trade in a fee society, recourse to an arbiter in cases of dispute, and the police in cases of fraud or theft. If, say, a mail order catalog fails to deliver my shirt, I can go to court, or, if I think they intended to never deliver, I can bring fraud charges. However, if a drug dealer sells me fake drugs, or a prostitute is not paid, they have no recourse. And thus, we find the need for violence in these circumstances. In drug culture, this takes the form of violent shoot outs. In  prostitution, it tends to take the form of pimps, who, because they are already using violence, have no problem then turning that violence against their supposed wards, and extorting massive sums26.

Obviously, then it is a bit absurd to claim to be curing these ills through a ban, as such a ban is likely the cause of most of them27. That is not to say that all violence, all criminality associated with drug users, all violent crime associated with prostitution will vanish, there will always be some criminals associated with any type of business, from stock brokers to garbage hauling to convenience stores and gas stations. Where there is money to be made, criminals will find a way to make more illegally. My point is that the vast majority of this crime will vanish. As with most real world solutions, it is not perfect, it will not eliminate all crime, but it will make things much better28.

If anyone doubts this, let us look at an analogous situation, alcohol sales during prohibition. True, this is more similar to drug dealing than prostitution, but I can show how in some cases the similarities with prostitution exist as well. So, let us look at what happened during prohibition and then what came after it was ended.

During prohibition, alcohol was illegal, and so those who sold it were involved in a crime. As such, it was tempting for those buying to sometimes try to avoid payment, trusting that, without recourse to the law, the sellers could not collect. In such situations, the only recourse was to force, and those with the greater might prevailed. In addition, with the criminal nature of the venture creating the opportunity for great profits, the enterprise began to attract those who were, by nature, more prone to violence and larceny, and thus, the violence grew. Gradually, violence became not just a means to resolve disputes, but to gain customers, protect territory, extort from buyers and sellers29, and generally supplement the sale of alcohol with other revenue. And, as the profits of this venture had to be hidden, those funds flowed into other, legitimate businesses, such as construction and garbage hauling, bringing criminals into previously legitimate firms30.

Since prohibition ended, this has all changed. Disputes between sellers of alcohol are settled in courts, not by gunfights.  Competition for territory is through price and advertising, not through violence. And, as business is legitimate, there is no more criminality involved than in any business. Alcohol sales is as respectable and legitimate than any other enterprise.

Of course, there is one unpleasant legacy. As we did create huge criminal profits for a time, we allowed several criminal organizations and individuals to amass great wealth, which they used to both establish larger criminal syndicates and to buy into legitimate business, which allowed them to continue their criminal ventures after prohibition ended. Thus, through our bans, we created crime which would continue to plague us long after the ban was at an end.

I had some more to say, but this is crowing quite long, so I will try to wrap things up, and will, if necessary, visit any topics I omitted in a future  installment, should that prove necessary31.

The point I want to make here, most of all, is that freedom is not perfect. As the cliche explains, a compromise is a solution which leaves everyone equally dissatisfied, and a free society is the ultimate in compromise. In a free society we must learn to live with one another, and to impose on each other as little as possible. Once we change laws to allow us to impose on another, even a little, the door is open for others to impose on us just as much, or more.

All of which means we will all find aspects of true freedom we dislike, laws we wish we could pass to stop actions we find despicable, but so long as those actions in no way violate another's rights to life, liberty or property, we just have to grit our teeth and accept that laws cannot be enacted unless we are willing to find our own rights restricted just as much, in some other regard, perhaps in some way which is very important to us. Freedom, true freedom, is the freedom to be disagreeable, to be stupid, to do things which others dislike, to say things they hate, and to act in ways which many find improper. And that is because, to someone out there, our actions fit that same description, and if we can ban based on our prejudices, then what is to stop them from limiting our freedom on the same basis?

Not that we can do nothing. Time and again I have pointed out we have all the tools of society at our disposal. We can teach people, we can persuade, we can shun, we can criticize, we can use any sort of persuasive means to convince them to change. We just cannot use force, either privately or through the state32. So, I am not saying freedom means we must accept all of these acts, just that we cannot oppose them by means of law. Anything else, anything short of private or governmental force, is perfectly acceptable. It may take time, and it may not work in all cases, but that again is one of the realities of freedom, it is not perfect. But, imperfect as it is, it is the best of the imperfect answers we have available.


1. While I was waiting to finish this post, I wrote "Guns and Drugs", which also seems to address many of the same issues. As I obviously had many of the same questions in mind when writing that essay, it may beneficial to read that essay as a companion to this one, since it touches on a lot of the same questions and makes many arguments which run parallel to those in this essay.

2. In the interest of absolutely full disclosure, I should add three other statements. First, while in law school, before I dropped out, a friend and classmate rented a basement apartment in an otherwise commercial building in Baltimore, which had a rear entrance, opening on a parking lot where prostitutes plied their trade. As a frequent visitor, I did get some first hand exposure to the sort of nuisance issues that arise from prostitution as well, though most often the cars beat a hasty retreat the moment I arrived, meaning it was less of an inconvenience for me than for the very small number of residents. (As I said, it was a commercial area, though I knew of at least one other residential apartment. Then again, I believe it was the lack of residential units that made the area appealing to the prostitutes.) Second, though not directly related to prostitution, I also had a friend in my mid-20's who worked as a window dresser for a shop selling pornographic videos and magazines, as well as "marital aids". It doesn't directly relate to the topic, but as it touches upon related matters, I thought I should be as honest as possible. Third, I also once knew, for a relatively short time and not all that well, the daughter of a woman who owned a strip bar in Baltimore. I do not know if there was any prostitution taking place there, nor did I ever ask, but, again, as it is related to the topic, I thought I would include it.

3. The issue of coercion by pimps and other victimization of prostitutes is an issue all its own, which we shall discuss later as well. I do not minimize it, as it obviously touches many prostitutes. However, it is a separate issue, as it is not inevitable in all cases of prostitution, and I shall argue in some ways it is a problem created by the very laws that seek to prevent prostitution, at least in a modern society. (Primitive societies, or lawless areas are another matter, but life in those circumstances are different enough that many individuals, even those engaging in respectable professions find themselves victimized by individuals much like pimps, so we should need to discuss that in a completely different essay.)

4. The issue of children involved in prostitution is another matter entirely, and beyond the scope of this essay. As sexual contact with children is illegal anyway, and forcing anyone to have sex, especially a child, is also illegal, no laws against prostitution are needed to criminalize such practices, which is why I am going to ignore it for this essay. It is clearly a problem, but one which can be deal with whether prostitution is legal or not. (And, before anyone asks how I justify these acts being illegal,forcing anyone to have sex clearly violates individual rights, and, so long as we say children cannot consent below a certain age, sexual contact with children will be criminal violations of their rights as well. So, even with a minimal government acting only upon violation of individual rights, this particularly unpleasant practice will remain illegal, and thus not an issue for this essay.)

5. There are some who may even, for a time, find the lifestyle exciting, as we often see in those who are involved in scandals with prominent men, be the mistresses or prostitutes. Granted, many find themselves crushed when they realize the fictional romance they created will never come to fruition, that important men don't usually marry mistresses or call girls, and many, having gone through such experience become more and more depressed and despondent, but the same can be true of non-prostitutes who make similar bad choices, so this hardly makes an argument for involving the law. Lacking realistic perspective and bad decisions can ruin lives, but it is not something for which legal intervention is a suitable remedy. (Before someone reads too much into this, I hardly suggest this is the only reason some might be unhappy, only that in some cases this occurs. The reasons one finds this lifestyle pleasant or unpleasant are as numerous as those involved in it. There are certainly some common patterns, but I would not dare to claim to speak for everyone, or claim a single reason for their attitude toward it, I simply wanted to point out one story we have seen played out more than once.)

6. I suppose how prominent prostitution is also depends on where one lives and with whom one associates. But, even when I lived in Baltimore, in a neighborhood notorious for drugs (in fact the setting for HBO's "The Corner" -- though I was there seeking cheap rent, not narcotics), I did not see prostitution as all that prominent. Doubtless there are areas where this is not the case, and were I to reside elsewhere I might become involved to resolve local issues, but, overall, with my life as it is now, I do not see prostitution, even if legal, as topping the list of ills needing immediate attention. (Doubtless others will disagree, but that is the nature of opinion. In fact, if anything, it supports a huge number of my arguments, as they rest upon the importance of differing individual valuations. But, that is another topic as well. Cf "The Right Way", "The Case for Small Government", "Who Does It Harm?", "It Doesn't Matter to ME..." and "The Inherent Disappointment of Authoritarianism".)

7. On an unrelated note, I do want to make clear that my many historical arguments, both in the comments inspiring this post and in this post itself, should not be read as an argument in favor of prostitution. I simply wanted to correct historical inaccuracies. For example, the belief that prostitution has been universally abhorred, or that nations which openly allowed prostitution fared more poorly than those that did not. For example, England is generally viewed as a prosperous, orderly nation, yet it allows some forms of prostitution, though laws do effectively restrict it to out call services. I just felt the need to point out such issues as many arguments seem to rest upon the "social cost" of prostitution. While I am not a fan of social cost arguments (cf "Kelo, Home Schooling and Drug Laws - Inconsistent Theories of "Social Costs"", "Worker Safety", "Salt, Transfats, DDT, Bad Science and Even Worse Law", "Liability Law and Cost-Benefit Analysis", "Inconsistent Reasoning" and "Free Speech, Absolute Rights and the Absurdity of "Balancing Tests"") I know some find them persuasive, so I had to correct the assumptions underlying them. But, as I said, this should not be taken to mean I am in some way arguing the opposite, that prostitution is beneficial for societies. (Though I would argue respect for individual rights is.)

8. I have written a lot about pragmatism and the problems involved in the pragmatic approach to political and economic questions. For those interested, I recommend  "The Lunacy of "Common Sense"", ""Seems About Right", Another Lesson in Common Sense and Its Futility", "A Look at Common Sense", "Res Ipsa Loquitur", "The Shortcomings of Pragmatism", "Pragmatism Revisited", "Pragmatism Revistied, Again", "The Plural of Anecdote is Not Data", "Rules of Grammar and Pragmatism", "The Problem of the Small Picture", "Keyhole Thinking", "Impractical Pragmatists", "In Defense of Zero Tolerance, or, An Examination of Law, Common Sense and Consistency", "No Dividing Line", "The Consequences of Bad Laws" and "Questions of Law and Questions of Fact".

9. As it is not directly related to this argument, I would suggest those interested in a more general analysis of the role of government to read  "The Case for Small Government", "Why I Am Not A Libertarian", "The Benefits of Federalism", "Consolidation and Diffusion", "Redundancy as a Protective Measure", Symmetry and Asymmetry in Government", "Government Intervention and the Purpose of Government", "Negative and Positive Rights", "The Single Greatest Weakness", "Bar Fights, Riots and Drug Markets - The Limits of Law" and "Minimal Reforms".

10. The problem with terms being used to mean anything is addressed in more detail in "Protean Terminology", "Semantic Games" , "The Most Misleading Word" and "Luxury and Necessity".

11. The distinction between positive and negative rights, and a discussion of why one is improper and the other proper can be found in "Negative and Positive Rights".

12. Mostly, problems arise from the change in tort law, changing it from a means of settling disputes between strangers where no contract exists, to become a form of "social insurance", eliminating contractual agreements in favor of seeking payments from deep pockets. See "The Perversion of Liability Law", "The "Right To Sue" As Our Only Right", "Liability Law and Cost-Benefit Analysis" and "The Litigious Culture". (For a contrast to this position see "In Praise of Contracts".)  In addition, there are other problems, such as federal class actions, which have turned nuisance cases into big business (and lawyer jackpots), and thus flooded the court with massive arbitration about trivialities, but those are outside the scope of this essay.

13. Criminal courts are a different matter, being part of the process of protecting rights, and thus falling under the second (and also third) category. This function is limited to civil cases as well as some administrative law, such as probate courts, orphans' courts and the like.

14. This statement, that torts can be seen as a governmental function to preserve public order may be seen as contrary to my main argument, that utility does not trump theory. And that would be the case were this function to involve the use of force, or restrictions upon rights. However, torts are civil law, and, though contempt of court may deprive one of freedom, otherwise involve only monetary settlements between individuals (ignoring specific performance decisions for the moment). Thus, the civil courts are essentially an agreed function which could be performed privately (though in the case of torts, with much difficulty), which we assigned tot he government. I have discussed in other places similar concessions in public health matters, or in the creation of fire departments. Some I think may be allowed, others I find to be better done privately. But, as this lengthy note shows, the question of civil courts is a tricky one, and will need to wait for another post. (Oddly, it is only tricky because of my insistence on total consistency, but as that is my position, I do impose upon myself the obligation to explain every apparent contradiction, since I demand as much of others.)

15. Some would argue that some of these laws protect individuals from others, such as business regulations and licenses, or minimum wage laws, but I would argue that these laws only apply if an individual accepts a job with low wages or uses an unlicensed professional. Thus, in one way or another, all of these laws embody some form of protecting us from our own mistakes, while the other category involves protecting us from others using force, theft or fraud. (Fraud, unfortunately, suffers from a number of loose definitions and so is sometimes used to justify laws of the third sort, but that is not a significant enough issue to address here.)

16. There are several other ways one can argue for the specific definition of rights. I have used arguments about symmetry ("Symmetry and Asymmetry in Government", "Why Freedom Is Essential"), negative and positive rights ("Negative and Positive Rights"), about the imposition of values ("The Inherent Disappointment of Authoritarianism", "The Right Way") and others. It would take a very long essay to examine every specific definition of rights. Perhaps soon I will write such an essay, but it would be far too long to include here.

17. I have written before about the entire concept of balancing tests, not specifically as the term is used legally, but in a more general sense, when considering laws which limit or revoke individual rights. See  "Free Speech, Absolute Rights and the Absurdity of "Balancing Tests"". I shall discuss this a little in the essay itself, but the essay linked here provides a lot more detail. In addition, a fairly extensive argument explaining the importance of declaring most matters "off limits" to government is provided in the essay "Why Freedom Is Essential".

18. Though it may repeat, in some form, arguments which I will make in the essay proper, I would like to quote my postscript to "The Sexual Revolution and Prostitution", as it offers a very significant argument in favor of allowing even behaviors we find detestable, provided they violate no rights:
 Of course, I doubt this will prove a popular argument, as most conservatives tend to disagree with me. And, unlike most libertarians, who charge forth waving banners for NORML, I recognize prostitution and drug decriminalization are not wildly popular causes, and I would not make them my primary focus. However, I find I do have to mention them from time to time, if only to remind us that sometimes defending liberty means defending causes with which we have little sympathy, and yet that is the price we must pay. Freedom includes the freedom to do things we find distasteful, to adopt stands with which we disagree, and otherwise to do things we find disagreeable. Or, as I put it elsewhere, freedom is the freedom to be wrong, stupid and obnoxious. But it is important that we defend the rights of those we find so offensive, if for no other reason than that, to someone, somewhere, we are just as obnoxious and offensive, and so, unless we defend the rights of those we detest, we may one day find we are the detested minority being forced to do "the right thing" by others.
As I say above, it is important to recall that our own beliefs, those things we hold most dear, may be just as offensive to some as prostitution is to us. And unless we want to risk being forced to surrender our own most cherished beliefs, we must be very careful when demanding others behave according to our own values.

19. For example, many states of the classical period in Greece and Rome allowed freedom far beyond their successors in the dark ages. And, in modern times, the growth of irrational philosophies such as nationalism, communism and other beliefs glorifying the collective and endowing the state with near omniscience have led to the rapid decline of the private realm in many modern states. So, perhaps it would be best to argue that the private has gained influence as societies become wealthier and more "civilized", but, at some point, there tends to be a backlash, with highly developed societies turn against traditional individual freedoms. Why this happens, and how, is a subject for another essay, or several.

20. It may be beneficial to read, in this context, "Symmetry and Asymmetry in Government", "Government Intervention and the Purpose of Government", "Negative and Positive Rights", "The Single Greatest Weakness", "The Consequences of Bad Laws",  "The Importance of Error", "The Secret of Success, or, Why Government Fails", "Inflexibility and Bureaucracy", "Adaptability and Government", "Best Practices and Resistance to Change, Bureaucracy and the Free Market", "Hoi Polloi Vs The Auteur", "A New Look At Intervention", "Why Freedom Is Essential" as well as "The Basics". They provide a more comprehensive picture of the reasons a society without any freedoms will fail.

21. In "The Basics" I argued that it is technically possible to establish a stable government without considering individual desires if, and only if, one's goal is to cause suffering. That goal can be pursued successfully while ignoring individual wishes. On the other hand, ironically, if one wishes to cause the maximum possible suffering, it is again not possible to ignore the wishes of the citizens. One can only safely ignore those desires if one is happy to cause only some suffering, but not the greatest degree possible.

22. Some argue this is incorrect, that individuals do not engage in economic thought when making every decision, they do not see everything as a financial trade. I would argue that it is true people do not consider things financially, but they do consider the value they place on things, and, whatever they may value, they will not exchange one thing for something they value less. Those values may not be selfish, they may value their family or their nation, or whatever, but they will behave rationally and never willingly trade a greater value for a lesser value. (See "Greed Versus Evil" and "Bad Economics Part 16".)

23. Though many of these have been cited elsewhere, I will direct those interested to read "Symmetry and Asymmetry in Government", "Government Intervention and the Purpose of Government", "Negative and Positive Rights", "The Single Greatest Weakness", "Minimal Reforms", "Bar Fights, Riots and Drug Markets - The Limits of Law", "It Takes But One Victory", "Missionary Zeal and Human Discord" and "The Case for Small Government".

24. I have discussed many times the issue of trying to use the state to solve issues that should be remedied through social means. I recommend that those curious about my arguments read "Guns and Drugs", "Bar Fights, Riots and Drug Markets - The Limits of Law", "The Written Law","Government Versus Culture - A Forgotten Distinction", "Shame and Understanding","Volunteer Fireman, Barn Raisings and Government", "Collective Action and Government" and ""...Then Who Would Do it?"".

25. There are other conditions where such circumstances arise, but they are quite rare. For example, those conspiring to commit a crime often must take precautions against betrayal, and settle disputes violently. However, those are very unusual circumstances. For the most part, large scale violence tends to center around the banning of activities which appeal to considerable numbers, such as drinking, drugs, gambling and prostitution.

26.  This is analogous to the problem that arises from time to time where illegal aliens are sold into virtual slavery. Prostitutes are effectively outside the law, and in need of protection to enforce their transactions, and so find themselves unable to complain about treatment by pimps. Similarly, illegal aliens, being here against the law, find they cannot seek aid against those who treat them as slaves.

27. Not of all, however. Some crime exists in any environment. And yes, drug users who are destitute will commit crimes for drugs whether legal or illegal, but the same is true of broke gamblers, penniless drunks and probably even destitute over eaters. Criminals commit crimes, and the excuse they use is irrelevant. In many cases, drugs are used to excuse a criminal's criminality, not because drugs are the cause, but because claiming to be an addict "driven" to crime gets better treatment than being a simple petty thief. As I have argued about guns not causing crime, but simply giving criminals a tool, drugs do not make people criminals, they are simply one more thing on which criminals spend their ill gotten gains. And, as I said in a comment elsewhere, if high drug prices are truly to blame for crime, then legalize drugs and drop the prices, that should cut down crime substantially, as a 50% drop in cost should bring a 50% cut in crime. (For more discussion see "Guns and Drugs", "Standing By My Principles", "Medical Regulations", "Medical Regulation II", "Drug Legalization", "Who Does It Harm?" and "It Doesn't Matter to ME..." and the articles cited in those posts.)

28. As I argued in "Third Best Economy" and "Government Quackery", often times the free market will be maligned for failing to produce perfect solutions, while the alternatives presented do no better or worse. And here too we have a similar problem. When decriminalization is proposed, often it is mentioned that not all secondary issues will be resolved by decriminalization, completely ignoring the truth that criminalization has not cured them either. It is not my contention that decriminalization is perfect or will solve all problems. In fact, I am arguing not from a pragmatic point of view at all, but instead saying it will protect our rights, while criminalization threatens them. That it provides any reduction in crime or other issues is simply an added benefit. So, whether it is perfect or not should not even be an issue. But, as it is sometimes used as an excuse to not even consider changes, I thought I should make mention of the fact that, as far as we have seen, no solution is perfect, and so we should look instead for the best, or just better, answer, rather than reject those that fail to meet an impossible ideal. (Cf "The Threat of Perfection", "Utopianism and Disaster" and "Planning For Imperfection".)

29. This is where prohibition closely mirrored prostitution. As providers of booze often knew the buyers, especially speakeasies, could not easily run to the police for protection, it was very simple to practice extortion against them as well, much as pimps, while providing the physical enforcement prostitutes need also extort money from them.

30. Fortunately, on most levels at least, modern drug dealers have not followed the earlier bootleggers in this respect. The highest level suppliers have bought into legitimate firms, and perhaps some clever mid-level dealers, but we have not seen the massive entry into legitimate business by modern drug dealers the way we did with the bootleggers of the prohibition era. It is still possible, and I am sure some have, and as time goes on it may become more common, but for the moment, we might be fortunate enough that a decriminalization would actually eliminate many of the criminals.

31. CW mentioned in her comments laws relating to driving, using them as analogies to other laws passed to prevent unwanted circumstances, and so I feel the need to mention those laws briefly. In truth, those should not be laws, as roads should, ideally, be private. If they are government owned, then we should treat them, not as public areas, but a private venture owned by the state, and the rules of the road should be implemented as usage agreements between the owner and users. And, in practice, we do that for the most part. Excluding those laws dealing with injuries (and one other exception) laws about driving tend not to carry jail time, simply fines and revocation of one's license, which is proper, and how an owner could implement laws if they were privately held. The exception of drunk driving laws is an oddity, and actually a law the specific implementation of which I find objectionable (but that is another post as well), so I won't argue in its favor. I have no objection, obviously, to criminal penalties for those who injure others intentionally or through criminal negligence, so that should be a government issue. But, all of this requires much more discussion than can fit in footnotes, so let me just say traffic laws are a bad analogy for more general legal situations, for the reasons mentioned above.

32. Many forget modern law also limits our ability to exercise our social controls as well, thanks to its limits upon the exercise of our rights. In a free society we could refuse to sell to those with whom we disagree, refuse to hire them, keep them out of restaurants and hotels we own, and so on, showing disapproval in many ways. Laws now do not permit that, but if we had full property rights it would be perfectly permissible, and so disapproval would have much greater impact than it does not. But that too is another topic for another essay. (Cf "Bar Fights, Riots and Drug Markets - The Limits of Law", "The Written Law","Government Versus Culture - A Forgotten Distinction", "Shame and Understanding","Volunteer Fireman, Barn Raisings and Government", "Collective Action and Government" and ""...Then Who Would Do it?"".)



There is one point that should be made here that needs to be borne in mind when considering this question, and that is that I am completely consistent in my beliefs. It is something I explained in "Why I Am Not A Libertarian" and have argued ever since, up to my most recent "Reforms, Ideal and Real". I might believe I have the right answers, I might believe I understand the proper function of government, and the limits under which it should labor, but I am also capable of error, like everyone else, and I would not dream of forcing my ideas upon others. Instead, I ask for a solution which would allow me to persuade, and perhaps demonstrate the truth of, my ideas, and also allow others to try their answers, and convince me that I am wrong. In short, I would ask that we reduce the scope of any single unit of government, limiting power, making it reside not in a monolithic, omnipotent federal government, forcing a single answer on all of us, but in fifty state governments, giving us a host of differing solutions, a set of multiple attempts to find the truth. Or, even better, let those states, like the federal government, wield power only when an answer requires that grand scope, and instead allow answers for most everyday questions of governance fall to the counties, the incorporated cities, the town councils and other, smaller units. And, in some cases, if we find it can work, let the answers fall to that smallest of all units, the individual.

But, then again, since in this case the question is whether it can be handled by individual action or requires some sort of governmental response, let us move up one step and let the localities, be they towns and cities, counties, or even states, enforce answers, and see which work and which do not.

And yes, I know right now we do effectively have such a system, but I would argue, thanks to the legacy of the Mann Act and a host of other federal intervention, we do not have a truly localized answer. Much of what we have is influenced to some degree by centralized authority. In addition, this question is not the only one which needs local answers. In fact, even if answers are local, my beliefs may lose, as we have become quite comfortable with the restrictions we have. On the other hand, as liberty increases, as power becomes more local, and we become more comfortable with regional experimentation and expansions of individual liberty, and, most of all, as we begin tot urn to private solutions and look ever less to the state for answers ("Bar Fights, Riots and Drug Markets - The Limits of Law", "The Written Law","Government Versus Culture - A Forgotten Distinction", "Shame and Understanding","Volunteer Fireman, Barn Raisings and Government", "Collective Action and Government" and ""...Then Who Would Do it?""), perhaps some regions may give my answers a try and we can finally see what the benefit and harm might be.

However, whatever the reality, however it might work out, even if, in the end, the people in their various local governments decide to reject my reasoning, I would argue we will be immensely better off should we allow them to choose those answers for themselves, in a number of localities, rather than having their voice drowned in a chorus of millions, creating a single solution for the whole state, or worse yet, nation.

1 comment:

  1. No one will ever accuse you of not being thorough, Andrews (32 footnotes? Sheesh!).

    This is the sentence that I think gets to the heart of our debate:

    Andrews: ”I believe, given what I believe to be the proper, and very limited, role of government, that laws against prostitution are improper...”

    My first thought is that this must mean that every state has improper laws when it comes to prostitution, along with many other behaviors.

    Next I would ask: who decides what is the “proper” role of government? When the Declaration of Independence was drafted and then the Constitution, the founders did not refer to some magic handbook on the proper role of government or find the answer scribbled on a stone tablet somewhere. THEY decided what the proper role of their own government would be, and then they defined it (and specifically left all other powers to “the states”). There is no doubt in my mind that what they saw as the “proper” role of government was dictated by the understanding that their place was at the federal level.

    But what about State and local governments? When communities form local governments they have different goals than the federal government does. Typically they are formed for the purpose of fostering safe, enjoyable, prosperous places to live, and they often seek to protect common values within the community. This is a natural, instinctive behavior that occurs across both time and geography. Who is to say they can’t do this so long as they don’t conflict with rights specifically protected under the Constitution? The bottom line is that people at the local level decide for themselves what constitutes the proper or improper role of their own government.