Contractarians and Feminists Debate Prostitution

Introduction

The debate on prostitution between liberal contractarians and many feminists appears to have reached an impasse and the two positions seem irreconcilable. The contractarian analysis characteristically argues for decriminalization, and yet rests on assumptions about the nature of human sexuality which feminists vehemently reject. Many feminists, on the other hand, remain silent on the issue of decriminalization. In this Article I will examine influential contractarian and feminist positions and will attempt to expose the limitations of each. In the end I will offer my own argument for the decriminalization of prostitution.

In examining the contractarian and feminist positions, I will focus on three articles which capture the essence of each position. Lars Ericsson, a representative contractarian, is the author of the first article, Charges Against Prostitution: An Attempt at a Philosophical Assessment. In this article, he proposes the legalization of what he terms “sound prostitution.” Carole Pateman, an influential feminist critic of contractarian theory, is the author of the second article, Defending Prostitution: Charges Against Ericsson. In this article, Pateman attacks the very possibility of “sound prostitution.” Finally, Laurie Shrage, also a feminist critic, is the author of the third article, Should Feminists Oppose Prostitution?, which offers another variant of the feminist critique.

In general, feminists find themselves in a bind when it comes to forming a position on prostitution. While claiming that they are not per se opposed to decriminalization, many feminists offer such scathing critiques of prostitution (arguing that domination, exploitation, and violence are essential features of the phenomenon) that one is left with no positive reasons for making decriminalization a reality.

Shrage, for instance, claims her position is “consistent with decriminalization,” yet her work concludes that since “commercial sex, unlike marriage, is not reformable,” feminists should “outwardly oppose prostitution itself.” I think it fair to say that such a stance is inconsistent with bringing about the decriminalization of prostitution.

Pateman, too, argues that the prostitute, due to the very nature of the prostitute-client relationship, sells not only her sexual services, but her actual “body” or her “self.” At the same time, Pateman maintains that she is not opposed to decriminalization. If, however, prostitution did entail the sale of bodies and selves, prostitution would be another form of slavery. If this were the case, how could anyone not be opposed to decriminalization? Slavery, after all, has long been illegal and is no longer practiced in this country.

It is perfectly consistent, of course, to argue that prostitution is morally wrong and that, therefore, it should not be legalized under any circumstances; this is in fact the official position in most of the United States today (in contrast to many European countries). Thus, if we are to take decriminalization seriously, we must come up with weighty arguments in its favor, and not merely pay lip service to it.

Accordingly, in the following paper I shall be concerned with the arguments which would facilitate the movement towards decriminalization. These arguments will show that there is something “right” about prostitution which the law violates by criminalizing the activity. This paper will try to locate this “something” and examine it from an explicitly feminist point of view.

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