My friend and colleague Mr. Homnick writes:
However, we must also recognize the right of polities to place transactions of that nature outside the law. The vast majority of localities have exercised that right and most of them enforce those laws to some degree.
I think the right of a society, namely ours, to uphold its mores and sensibilities is under great scrutiny these days, if not outright attack.
Although the philosophical father of our constitution John Locke pays homage to "natural law," which asserts that one doesn't require a Bible to believe that prostitution should be proscribed because it is intrinsically harmful, I wonder if he meant it. I'm tempted to think he would view it as a question of the property rights of a vulva's legal owner.
Thomas Aquinas, the champion of natural law, holds that prostitution is a violation of natural law because it's a misuse of the teleology of sex, that is, the purpose of marital act, to engender intimacy and love. The Catholic obsession with procreation is in there too, but not even a Darwinist could argue that procreation is anything but a natural function. Interestingly and compassionately, Thomas' objection is mostly that the unintentional products of such unions will grow up without fathers, which he sees as indispensible to the proper development of a human being.
The repercussions of prostitution are harmful on the personal level in a number of ways then, and we religionists maintain that natural law does not descend from revelation (i.e., the Bible, etc.), but that the two cannot help but be in harmony as they are both functions of a moral order that supercedes man's will and desires. There's a vibe to things. Prostitution hurts women, and everybody else involved, too.
But Aquinas, as political philosopher, is pretty pragmatic: the open toleration of prostitution would be harmful to the social order, but a jihad, if you will, against it would create even greater social ills. Political philosophers are good that way--even the best of a society's laws, constitutions or aspirations should not be suicide pacts.
Thomas (scholastic types call him "Thomas"), as any good philosopher should, defers to practical wisdom but recommends that we gear the law to the highest, not the lowest or easily achievable in man, because the latter is incapable of fostering what Aristotle saw as the true end of a society, to enable and inspire civic (and individual) virtue, virtue being a positive thing, not an absence of "sin."
I myself am very uncomfortable with discussions of hypocrisy. It's a word thrown around far too loosely these days, and has become a rhetorical weapon instead of an tool for understanding things. Yet I seem to be defending it. I find our drug laws ridiculous, yet here in Los Angeles, we saw firsthand the carnage of the crack epidemic, which was mostly not the result of crack being illegal but of the overwhelming hunger for it that addiction creates. It strips the individual of every shred of his or her human dignity. We cannot legalize drugs.
But I can also say that consideration of these things led me to change my mind and disagree with the administration about its opposition to proposed laws banning torture of terror suspects. The law must be morally directed toward the best in us, not to accommodating the worst, toward moral progress rather than regression to the slime we rose from. There are circumstances where some of us would break anti-torture laws to save innocent life, but the law should not make such moral courage easily achievable.
To requote Mr. Homnick, "we must also recognize the right of polities to place transactions of that nature outside the law." If we can proscribe the soul-numbing effects of prostitution and drugs (and I believe we must), then surely torture should be one of those transactions that our polity places outside the law as well. If it's true of an addict or a whore (or a drug dealer, or a pimp, or a john, or the john's poor bastard), how could being a torturer (or the tortured) not numb one's soul?