Law and Restraint

In yesterday’s post, I took to task a comment made by Jon Henke, from the always-excellent QandO blog, regarding his support for legalization of prostitution, which came up because of the Eliot Spitzer imbroglio. His comment was in essence a springboard for what I believe to be a flawed position held by many libertarians.

Jon was gracious enough to leave a comment on the post — which of course, has elicited a few more thoughts on my part. Jon stated:

I think you’ve completely misapprehended me. At no point did I suggest there should be no social rejection or approbation for his conduct. In fact, I think that’s precisely what should occur. The libertarian position is not that private behavior is beyond reproach, but that private behavior that does not hurt others (as in, “violate the rights of others”, not “make them feel bad”) should not be illegal.

I’m quite sure his adultery hurt his family emotionally, but we don’t imprison people for adultery. The fact that he paid for it, however, was not harmful. But that is what we have criminalized.

This idea that, because we don’t want something criminalized, we must not think it is bad is a frustrating misperception of libertarians. It’s doubly frustrating, because it’s not a difficult distinction to make.

Well, it is certainly easy to misunderstand a writer’s beliefs based on a brief reference to one of its tenets. And libertarianism itself would appear to be rather a loose and nebulous confederation of beliefs and policies, embodied in individuals ranging from solid centrists like Glenn Reynolds, to bright conservatives such as Jon, to fringe elements waiting for black UN helicopters gazing skyward in their camo fatigues. I have the utmost respect for Jon, and his blog is a daily visit for me because of its depth and breadth. Nevertheless, I do not believe I have misapprehended the libertarian position, as he stated it, on the subject of legalization versus mere social rejection or approbation. I’m well aware that many libertarians believe that certain behaviors which are in fact socially objectionable, perhaps even dangerous, but nevertheless should be legal, based on the principle of individual rights and minimalization of government intrusion.

Having said that, I believe Jon is also misapprehended my point — which is not that prostitution should be illegal because individuals were hurt rather than rights violated, but that the nature of prostitution is such that society is entirely justified in outlawing its practice as a defensive measure to protect the well-being of its citizens and its core foundational institutions such as marriage.

Society has many means, and many degrees of granularity, in determining what behavior is acceptable or dangerous to its collective well-being. Obviously, the force of law is a major component of this, carrying the weight of enforcement and even violence if required. But much regulation of social behavior starts at a far finer granularity: at the level of individuals, families, communities, and consequently is powerfully embodied when such conviction is widespread in a wider social consensus.

To encourage and enforce moral behavior — by which I mean both that dictated by transcendent moral absolutes, as well as that collectively determined to be undesirable for the good of society — restraint starts at the level of the individual, whose inner conscience and moral standards serve to constrain behavior which is judged to be wrong or harmful. This moral compass — as is understood by Judaism and Christianity — is an innate component of the nature of man. Those more secular might instead infer that, if such a code exists, it would be genetic or inherited, or inculcated from the experience and social mores of the parents during childhood for the benefit of the species. Morality at this individual level is a powerful determinant of human behavior — and no amount of civil law can substitute for such inner conscience or direction.

At a somewhat broader level, family and local community may collectively determine which behavior is desirable or to be censured, another powerful constraint working primarily through ostracization and exclusion from the community of those who fail to meet its standards. Once again, this may well occur outside of the framework of law, although it is often reflected in local community standards and regulation. The next level, encoded in community, state, and federal law, expands this restraint with the addition of ever more onerous penalties for aberrant behavior, throwing the full force of government behind its restraining intent.

My point in this somewhat extended musing is that constraint of behavior destructive to individuals and society is not purely limited to law, but occurs at many levels, and begins, and is rooted in, the individual moral conscience and the family and local community. And this, I infer, is what Jon and other libertarians hope to rely on when removing the admittedly heavy-handed arm to illegality.

When there is a widespread consensus in the larger community that certain behavior is unacceptable, and when a substantial majority of citizens concur with that consensus, then onerous or restrictive laws become far less important, as individual and community restraint function to inhibit socially and morally destructive behavior. In a perfect moral world, law would be unnecessary: it is required due to the inevitable human failure to meet even their own high standards, not to mention for those who will violate them regardless of, or due to lack of any such standards.
The problem arises when a culture, such as ours, begins to erode and corrode the foundational moral and ethical principles of the individual, the family, and local community, increasingly relying on larger institutions such as government to mitigate the inevitable adverse consequences of such abrogation. Hence a culture which no longer has a moral consensus that extramarital sexual activity is harmful, for example, but instead views it as benign, tolerable, or even desirable behavior, will inevitably reap certain consequences (not the least of which is more of the undesirable behavior) — which will in turn bring about efforts to seek to control the resulting consequences through law and punishment. As we cease respecting rules at the individual level, we invariably multiply rules at the civic and governmental levels: the Law of Rules. As William Penn once said, “Men must be governed by God or they will be ruled by tyrants.”

In the case of prostitution, there is a growing segment of our society which, consistent with their general outlook on sexual activity, no longer views such activity outside of marriage as inherently wrong, and in fact considers it quite normal, perhaps even highly desirable. Such a viewpoint often rationalizes or minimizes any adverse consequences such behavior might incur, while simultaneously looking to society or government to mitigate the inevitable side effects thereof. Hence we tolerate and glorify sexual permissiveness while agitating ever more loudly for greater federal spending on AIDS research and STD prevention.

Jon’s conflation of prostitution and adultery tends to confuse two quite different entities. While certainly all sex with prostitutes for a married man constitutes adultery, most certainly not all cases of adultery involve prostitution. It is almost certainly true (without being able to cite specifics) that adultery, in fact, has been, or may still be outlawed in parts of the country. Nevertheless, few would maintain that such a law is a good idea — although they likely are instituted because of the perceived threat of adultery to the socially-important institution of marriage. Such a law, while well-intentioned, is clearly unenforceable — and unenforceable laws breed contempt for authority, as they are honored only in the breach. Much adultery is, by nature, between two consenting adults. This is not to minimize its potentially devastating impact on marriage — but simply to point out that both the man and the woman presumably enter into it volitionally and freely — there is no business contract involved. Such a relationship may well be devastating to the immediate relationships of each partner, and destructive to one or more marriages, but its effects, relatively speaking, are finite.

Prostitution, on the other hand is industrialized adultery. It is, pure and simple, a business transaction, whose sole purpose is the sexual gratification of the male. The relationship of the john and his whore — if you can call it a relationship — is inherently and essentially demeaning to the woman: she is nothing more than an attractive repository for the man’s (often aberrant) sexual desires. She is dehumanized, victimized, often brutalized, or murdered, as the nature of the act is not mutually respectful but inherently about dominance/submission: you pay your money, she does what you want — or else.

It is interesting to note that those in favor of legalized prostitution are invariably men — in what must surely be a vast and inherent conflict of interest. Women do not enter prostitution because they love sleeping with thousands of men; they do so out of extreme duress, due to severe financial hardship or drug addiction. Through legalization we are exploiting, at the societal level, those most vulnerable, saying their welfare matters nothing, their lives are expendable, their humanity is irrelevant to our “rights” and “freedom” to fulfill our basest desires. Where are the legions of women demonstrating and demanding the legalization of prostitution? Their absence — in our rights-obsessed culture — speaks volumes.

Say what you will about disdaining the action while embracing its legality in the name of “freedom” — legalizing prostitution effectively endorses slavery not freedom, and makes a powerful statement as a society, sacrificing the value, dignity, and well-being of the women entrapped in this hell of hedonism on the altar of our individual rights — of the individual rights of men and men alone. Prostitution serves as well an enormous pool of public health risk, transmitting countless instances of diseases which in many cases are incurable, which may have devastating effects on innocent third parties, such as AIDS, or HPV-related cervical cancer. There are abundant reasons to make prostitution illegal — but only one for its legalization: glorifying men’s right to exploit, abuse and often destroy women for their own selfish and destructive amusement.

Legalization of prostitution would do nothing to change the fundamentally abusive nature of its core transaction. By legalization, we are not simply saying that it is permitted because “no one’s rights are violated” — a highly disputable stance — but we are instead encoding in law the normalization of an exploitive, and socially harmful business transaction. This is not at all about outlawing something which “makes people feel bad” — but rather about throwing the weight of law and its enforcement behind protecting and enabling a profession which is highly destructive both to the women involved, the families of their patrons, public health, and perception of women on a cultural and social scale.

The stance of using the “violate the rights of others” justification for legalization of prostitution (or any like behavior) seems to me to rely on quite a fungible standard. Are the rights of a wife violated when her husband visits a prostitute? Even if the civil level, the marriage contract implies, if not explicitly states, that the marriage is intended for mutual love, manifested tangibly through the restriction and commitment of man’s natural libidinous tendency toward promiscuity into a monogamous sexual relationship for the welfare of his wife, their children, and implicitly society as a whole. This core value is reflected in the law, making adultery is a slam-dunk legal basis for divorce — an aspect encoded into its statutes long before our current insane permissiveness which allows any and all justifications for divorce.

Furthermore –as is abundantly evident in our contemporary society — the idea of “rights” is eminently malleable — as we see in the ever-expanding victimhood mindset, where the homeless have a “right” to a home; the jobless have the “right” to a job; a student has a “right” to admission to a school or a potential employee a right to being hired based purely on his ethnicity rather than any skill, talent, or preparation for a particular position. Furthermore, many human rights are not clearly spelled out in civil law: the right of a wife to expect her husband to be faithful; the right of children to have parents who care and nurture for them; right of employers to have their employees work honestly and productively for their pay; the right of all men and women to be treated with dignity. These rights arise not from civil law, but from moral law, from the inherent value placed on humans by their very nature and being. This is, it should be noted, predominantly a Western cultural notion, derived and its core from Judeo-Christian understandings of the nature of man and his value and worth as a creation of God. One need only look at cultures which do not cherish this understanding to see its invariable consequences: suicide bombers are glorified; gays are beheaded; entire classes are relegated to extraordinary poverty and deprivation because of their inferior birth status; people slaughtered simply because of the tribe of their birth or some thousand-year-old offense. Such cultures arise in large part because of their core view of human nature and their core understanding of God, which results in degrading the value of human life and the individual.

I guess this is a rather long winded way of saying that it is entirely within the society’s rights, in my opinion, to restrict private behavior on the basis greater than personal freedom and personal rights alone. I remain to be convinced that libertarianism’s passion for removing such legal restraints would not, in fact, be far more destructive to individuals and society than could be offset by any small advantage in individual liberty. We should be careful what we wish for, lest our pursuit of freedom devoid of respect for the exalted nature of the individual lead us to a place where there is no freedom to be found.

Print Friendly, PDF & Email