Abstract
This article provides a comparative analysis of various methodologies employed in building arguments regarding prostitution law and policy, and reflects on the proper aims of legal philosophy more generally. Taking Peter de Marneffe’s Liberalism and Prostitution (OUP 2010) as a launching point for these reflections, the article offers a mostly favourable review of the book as a whole, and defends the philosophical method as one (amongst other) valuable ways to argue about prostitution.
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Notes
As another reviewer has noted, de Marneffe work on prostitution “shows a modesty and thoughtfulness too often missing from debates on this emotional subject” (Yankah 2010).
The quote is from (Schwarzenbach 2011: 439). By way of disclosure, I confess to having waded into that quicksand myself, offering arguments the Swedish abolitionist policy regarding prostitution is broadly consistent with the liberal harm principle—and demonstrating considerably less modesty than de Marneffe by venturing to argue that such a policy is likely the best all-things-considered response to prostitution (Dempsey 2005, 2010).
As he notes in the introduction, the book “is primarily a study in political philosophy, not sociology, criminology, sexual psychology, or feminist theory” (10).
e.g., Harcourt (1999: 154), conflating the feminist critique of prostitution with conservative anti-prostitution arguments.
De Marneffe’s understanding of the harms of prostitution is therefore somewhat distinct from the feminist understanding, which tends to focus on violence by pimps and johns, as well as the extremely restricted choices many prostituted women face.
Curiously sidelined are the well-documented physical harms suffered by people in prostitution, although de Marneffe does recognize that they face a “constant risk of violence” (13).
Per de Marneffe’s definition, a paternalistic argument in favor of anti-prostitution laws is an argument which states that “prostitution is harmful to those who do it and that prostitution laws reduce this harm by reducing prostitution” (12).
The failure to keep these distinctions in mind has led to a confusion in which “British policy is commonly characterized as abolitionist” (29). As de Marneffe correctly notes, British policy is better categorized under the heading of “permissive prohibition,” since it imposes criminal penalties on street walkers, unlike the genuinely abolitionist policies of Sweden, where prostituted-people are not subjected to any form of criminalization relating to their prostitution activities.
I tend to think that motives are relevant to justification in roughly in the way set out in (Gardner 2007b); briefly, that being justified consists in not merely having an undefeated reason for action, but acting for that reason.
I must confess to not being entirely certain that this is an accurate interpretation of what the burdens principle entails. In contrast to the otherwise clear prose throughout the book, I found this section somewhat convoluted.
Indeed, it is this characterization which leads de Marneffe to pursue a paternalistic argument rather than a more straight-forward harm-to-others argument (Dempsey 2010, 2005).
See Westen’s discussion of Texas v. Valdez, involving a similar fact pattern (Westen 2004: 1–2, 9–10, 310).
As Peter Westen puts it, “consent matters because of the normative work it does.” (Westen 15). It should be noted that borrowing Westen’s terminology is somewhat awkward since he was concerned with legally transformative normative force, whereas de Marneffe is concerned with morally transformative normative force.
de Marneffe repeatedly helps himself to allure of scientific certainty when he announces that “the available evidence … warrants the conclusion that most prostitution is voluntary and consensual” (7). While the claim to an evidential basis for his conclusions appears throughout the book, at no point does de Marneffe specify what evidence he takes to be relevant to resolving this issue.
For some insightful reflections on the relation of empirical to normative thinking, see (Burns 1999: 141–143).
This drift is explicitly encouraged by much of the literature on feminist methodologies in the social sciences. See, e.g., (Cook and Fonow 1986). I do not wish to suggest there is a clear demarcation between the empirical and political, but simply to suggest that there is some distinction between pursuing research with an eye primarily toward providing an account of how the world is according to sensory observations (what I am calling the empirical approach) and pursuing research with an eye primarily toward changing the world (what I am calling a political approach).
Arguably, I have been guilty of going too far in the other direction, relying on stipulation at the expense of empirical evidence (Dempsey 2010). For reasons I hope are now somewhat more clear, I remain (mostly) convinced that this reliance was justified by my methodological commitments, even if they come at the expense of convincing my audience.
Moreover, this review appeared in the journal, Ethics—a leading journal for academic philosophers, which is particularly well-regarded for its book reviews of new philosophical works—philosophers reviewing the work of other philosophers.
Indeed, the reviewer goes on to ground her critique of de Marneffe’s assumptions based on her own real world experiences as friend and teacher to women in prostitution—thus shoring up her own empirical credentials.
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Acknowledgments
I am grateful to Doug Husak, Ekow Yankah, Matthew Lister, Matt Matravers and Robert Burns for their comments on previous drafts.
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This essay is a review of Peter de Marneffe, Liberalism and Prostitution (OUP 2010) and commentary on related themes.
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Dempsey, M.M. How to Argue About Prostitution. Criminal Law, Philosophy 6, 65–80 (2012). https://doi.org/10.1007/s11572-011-9129-6
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DOI: https://doi.org/10.1007/s11572-011-9129-6