More on Prostitution and the Law

As a follow-up to my earlier post on this topic, I’ll note that Ross, Will Wilkinson, Kerry Howley and Andrew Sullivan are still going at it on morals legislation. And it’s still a fascinating discussion that has avoided degeneration into name-calling.

I’ll crudely summarize the Wilkinson / Howley point as “laws against prostitution only make sense if you consider the underlying act of sex to be somehow different than many of the other physical acts, such as washing dishes or playing tennis, that can be sold for money”.

I’ll crudely summarize Ross’s response as “if sex is no different than washing dishes, then why isn’t it OK for parents who would have their children wash dishes as part of normal chores also have their children have sex with them?” Good question, as they say.

I think Ross is trying to get at the heart of the matter: is sex different (in some manner that is relevant to what should be legal) than washing dishes? There is a famous thought experiment often cited by Steven Pinker that I think strips away some of the ambiguities around consent in Ross’s thought experiment, but addresses the same basic issue:

Julie is traveling in France on summer vacation from college with her brother Mark. One night they decide that it would be interesting and fun if they tried making love. Julie was already taking birth-control pills, but Mark uses a condom, too, just to be safe. They both enjoy the sex but decide not to do it again. They keep the night as a special secret, which makes them feel closer to each other. What do you think about that — was it O.K. for them to make love.

Referring to this and a couple of other thought experiments, Pinker has said in a recent New York Times essay that:

Most people immediately declare that these acts are wrong and then grope to justify why they are wrong. It’s not so easy. In the case of Julie and Mark, people raise the possibility of children with birth defects, but they are reminded that the couple were diligent about contraception. They suggest that the siblings will be emotionally hurt, but the story makes it clear that they weren’t. They submit that the act would offend the community, but then recall that it was kept a secret. Eventually many people admit, “I don’t know, I can’t explain it, I just know it’s wrong.” People don’t generally engage in moral reasoning …but moral rationalization: they begin with the conclusion, coughed up by an unconscious emotion, and then work backward to a plausible justification.

In effect, sophisticates envision themselves on a higher plane of abstraction than the rubes who think it’s just wrong to sleep with your sibling. These folks believe that they can see that there really is no rational justification for such a rule, independent of sometimes-entangled prudential considerations, and that it is merely “coughed up by an unconscious emotion”.

Well, here’s a different thought experiment:

Julie is traveling in France on summer vacation from college with her brother Mark. One night she decides that it would be both interesting and fun to shoot Mark in the head. She takes careful precautions not to be caught, shoots him, hides the body and invents an alibi. She is never suspected of committing this action. She keeps it a special secret that makes her feel more in control of her own life. What do you think about that — was it O.K. for her to kill her brother?

The obvious difference is that extreme coercion occurred in the second case. So what? You see, I just sit on a yet higher plane of abstraction that you do. Have you assumed the “conclusion, coughed up by an unconscious emotion” that it’s bad to kill people? “Killing people is bad” – or a rule against coercion more generally – is not some magic firewall in this endless game of “so what?”

The problem, then, for the argument that prostitution (at least in the idealized case) is a contract between consenting adults, and that therefore the government should not have the right to prohibit it, is precisely that it asserts that “no limits on non-coercive behavior plus no private coercive behavior” is a valid meta-rule for determining what should be legal. In order to evaluate this idea, I think we need a little precision about what we mean by “should”. It seems to me that those who think that prostitution should be legalized can be using “should” either in the sense of morality or prudence – they must believe that laws against prostitution are wrong and/or foolish.

If they are arguing the first, that such laws are wrong, then they must believe that there is some moral basis for the law. That is, they must reject the view that law is the expressed will of those who control a preponderance of armed power, and all this “should be” stuff is a bunch of fairy tales designed to fool the suckers. So what is the moral basis of the law? Those who believe that basically all non-coercive behavior should be legal can surely make many such arguments. Any such moral argument, however, will ultimately rest on a set of beliefs that could be characterized as being “coughed up by an unconscious emotion”. We might call these, in a less loaded term, moral axioms. You don’t get a free pass out of this game by just saying you favor any non-coercive behavior, because either the restriction on coercion must itself be a moral axiom, or it must, in turn, rest upon some other more fundamental moral axioms.

The funny thing about axioms is that if they are so basic that pretty much everybody agrees with them, then reasoning from them to conclusions about specific policies will often lead different people to very different conclusions. If, on the other hand, they are highly developed, then lots of people won’t agree that they are axioms. Similarly, advocates for such a system of laws can surely make many smart prudential arguments that the vast majority of people will be vastly better off materially under such a system of laws. Of course, lots of people will be convinced by these arguments, but lots will not. In fact, many, many millions of people in the world actually believe that Sharia-level restrictions on personal behavior are appropriate.

What do we do to resolve this impasse when we’ve said all we have to say and there is no reasonable prospect that more talking will create agreement? Our choices are “whoever controls the most guns rules”, or toleration. This is what leads me, for all but the most fundamental of issues, to subsidiarity.

(cross-posted at The Corner)