Should Prostitution Be Illegal?

As Tom commands, so I obey...

So over at The Corner (and elsewhere) they're having a rather spirited discussion of whether prostitution ought to be illegal in the wake of Gov. Spitzer's recent shenanigans, with Andrew Stuttaford leading the libertarian (and libertine?) charge. He's wrong (as is so often the case), but not for the reasons typically adduced.

First, we might think that prostitution should be illegal because it's immoral. (Note that Stuttaford has not yet - so far as I can tell - actually said that he thinks prostitution is even immoral; he merely grants it arguendo). But that clearly won't fly, as there are plenty of things that are immoral that we don't make illegal. If we were to make lying a crime, for example, we'd have to lock up darned near every real estate agent in the country. Not that that would be a bad thing, but still....

Another line of reasoning might suggest that we make prostitution illegal because of its pernicious consequences. Lisa Schiffren at NRO has taken this line, noting that, for whatever reason, the particularities of prostitution seems inevitably to include coercion, violence, exploitation and the like. That seems right as a practical matter, but it's vulnerable to the breezy Stuttafordian reply that we can solve such problems with proper enforcement and that in any case making it illegal merely exacerbates those problems. I can't really say which of the two has the better empirical case and imagine that there are plenty of arguments on both sides.

My argument for making prostitution illegal rests on quite different grounds, though it may help explain why prostitution seems to end up involving all sorts of nasty characters, whether it is illegal or not. Consider the following: in western liberal societies we recognize something we might call sexual liberty. At a minimum, this means that we think that someone should not be obligated to have sex with someone without his or her consent. The exact extent of this sexual liberty is, of course, deeply disputed, but consent certainly is a common touchstone. Well, why do we have this view? In large part, I think, we have this view because we understand sex (as with, say, religion) to be something of such intimate importance that to have the clumsy, bumbling state involved makes for some very bad policy outcomes. Whatever else human beings are, we are the sorts of creatures who value greatly our ability to live "in conscience," in accordance with what we take to be true; coercing us in matters of sex treads on that ability in important, even crucial, ways.

Making prostitution legal might seem to accord with a generalized sexual liberty but it actually runs deeply against the grounds for such liberty precisely in that it makes sex out to be something quite different than the generalized liberty claim depends upon. When we legalize prostitution, we say then that sex is or can be a mere commodity, a "thing" that can be the object of an economic transaction. But to be that sort of "thing," it then cannot be the sort of deeply personal, crucially important "thing" that grounds our claims to sexual liberty. If sex is a thing we can legitimately pay for, then it may be a thing that we can regulate, tax and tie up in all sorts of minute state control, much like any other "recreational" activity. We can treat it like rockclimbing and can largely do what we want with it politically. But that's not what sex is and whether we admit or not - and our popular culture tries powerfully to convince us that it's just another recreational "thing" - we recognize that as such, which is why even its "legal" manifestations are rife with coercion, violence, and nasty characters. Prostitution is inherently vicious and degrading and it is no surprise that when we try and make it legal, its vices don't go away.