In the past, I’ve made three arguments about utilitarianism:
1. It’s the correct moral system.
2. It’s the way the world is trending.
3. It’s consistent with classical liberalism.
I used examples such as the prohibition on the sale of kidneys, an anti-utilitarian policy that is likely to be repealed at some point. I predict something similar will eventually happen in the sex industry, for similar reasons.
The New York Review of Books has an excellent essay on the regulation of the sex industry, entitled “It’s Not About Sex.” Of course what the authors are actually suggesting is that it should not be about sex. Currently, laws in the US and elsewhere treat sex very differently from other transactions; it very much is about sex. As with the sale of kidneys, many people find the idea of a sex market to be highly distasteful. And as with kidney markets, there are powerful arguments for having the government stay out of this sector:
As a solution, some American libertarians trot out the motto “Legalize, tax and regulate.” Legalization is in practice all over the world, from Turkey and Germany to Amsterdam’s famous red light district and the brothels of Nevada. While the precise definition of legalization varies from place to place, it generally means that sex workers can only work in specific establishments and must be licensed and subject to regular medical checks. This is supposed to allow for prostitution while preventing disease and crime. But “contrary to its false reputation as a benign sex fun-fair, a regulationist legalisation approach to prostitution is not friendly for sex workers,” Mac and Smith write. It creates a rigid hierarchy of tightly controlled prostitutes and powerful, potentially exploitative bosses. Like the women who lived in the maisons de tolérance of nineteenth-century Paris, legal prostitutes are monitored, tested, confined to brothels, and registered. Prostitutes who are undocumented immigrants, or who are unable or unwilling to obtain permits or licenses, form a “vulnerable, criminalised ‘underclass.’”
Instead, the authors suggest decriminalization, which is practiced in New Zealand and New South Wales, Australia. Complete decriminalization—or the removal of criminal penalties for both buying and selling sex—is the unanimous preference of the global sex workers’ rights movement, as well as Amnesty International, Human Rights Watch, and the World Health Organization. Unlike legalization, it doesn’t impose a regime of permits and laws that need to be enforced; instead, it takes police out of prostitutes’ lives and workplaces. By removing the fear of surveillance, raids, and arrest, decriminalization lets prostitutes work in the conditions that best suit them, and allows them to collectively organize for their rights. In a study commissioned by the New Zealand Ministry of Justice, 96 percent of street-based sex workers said they felt they had legal rights. New Zealand is no utopia—migrant sex workers are still criminalized, social welfare programs are still underfunded. But, says one sex worker there, decriminalization “changed the whole street, it’s changed everything. So it was worth it.”
I encourage people to read the entire piece. It has a number of examples of how well-intentioned regulations, such as banning internet ads for sex services, actually put sex workers at much greater risk. Even feminists are on the wrong side of many of these issues. Good intentions are not enough.
PS. Maggie McNeill, who is both a sex worker and an activist, wrote an interesting essay on “consent”, for Reason magazine. This caught my eye:
As my friend and sex worker Mistress Matisse has pointed out, an individual or group that is unwilling to respect a woman’s “yes”—regardless of the price she puts on it—is also unwilling to respect her “no”.
READER COMMENTS
robc
Jul 15 2019 at 1:02am
Has the New York Review of Books ever met an actual libertarian?
The tax and regulate part seems unlikely.
Jon Murphy
Jul 15 2019 at 1:41pm
I’ll take that stance when necessary. I see it as a “as compared to what” issue. I’d prefer complete legalization, but I’ll take “legalize and regulate” as a stepping stone. I don’t think it’s a worse option than criminalization.
robc
Jul 15 2019 at 1:59pm
I agree with that, but I don’t think any libertarian would suggest that as the primary solution. Its a compromise position, not a libertarian position.
Jon Murphy
Jul 15 2019 at 2:09pm
That’s probably correct, at least to a first degree.
Steve Z
Jul 15 2019 at 10:53am
It’s unclear what utilitarianism, or consequentialism, has to do with the body of the post. Surely one does not need to invoke the supposed inevitability of Benthamite delusions to make a case for decriminalizing sex work!
Scott Sumner
Jul 15 2019 at 12:26pm
Steve, When it comes to issues like kidney markets, pot legalization, the sex business, etc., the dispute comes down to a battle between those who say “ban it because it’s wrong” to those who say “legalize it because prohibition does more harm than good.”
KevinDC
Jul 15 2019 at 12:57pm
Scott, you said:
While I agree that there are people on the “ban it” side because they say it’s wrong, and people on the legalization side who think “prohibition does more harm than good,” I don’t agree that it’s remotely accurate to say that’s all “the dispute comes down to”. Many people opposed to organ sale legalization are opposed to it specifically because they think legalization does more harm than good (Satz leaps to mind) and many people argue for legalization solely on the basis that kidney sales are not wrong and should therefore be allowed irrespective of utilitarian considerations. For example, the argument from the book Markets Without Limits. The authors argue that if something is morally acceptable when done for free, then it’s morally acceptable to do for money. Since there’s nothing wrong with donating a kidney to someone who needs it, there’s nothing wrong with selling a kidney to someone willing to buy it. Utilitarian considerations have nothing to do with their argument.
Scott Sumner
Jul 16 2019 at 1:21am
Kevin, I was talking about the two dominant sides of the debate. There may be other points of view, but it’s hard to imagine any well informed person thinking the ban is defensible on utilitarian grounds.
robc
Jul 15 2019 at 2:00pm
There is the 3rd group who say “legalize it because it is wrong not to”.
nobody.really
Jul 15 2019 at 1:09pm
Maybe we don’t have to–but why not play to our strengths? I mean, have you seen Jeremy Bentham? That boy could WORK IT. Uh-huh.
KevinDC
Jul 15 2019 at 1:14pm
nobody.really –
That very well may once have been true of Bentham. But his head is still available on display, and I have to say he hasn’t weathered well. Even his staunchest defenders, who argue that his genius has still yet to be fully appreciated, would surely concede his animal magnetism has faded to below average levels by now.
James
Jul 15 2019 at 12:56pm
Scott,
You claim that utilitarianism is consistent with classical liberalism. I assume this is because classical liberalism leads to outcomes that you think people will be happy about. In reality, people have preferences over both policies and outcomes. E.g. if the public has a sufficient hatred for free markets or free speech or freedom of religion, etc. then utilitarianism is not going to be consistent with classical liberalism.
Depending on the preferences of the population, classical liberalism might be extremely contraindicated by utilitarianism. So utilitarianism is incompatible with classical liberalism at least some of the time.
How do you know that you are correctly accounting for the unhappiness some people would feel just from knowing that they lived in society governed by classically liberal institutions?
Scott Sumner
Jul 16 2019 at 1:23am
James, I don’t say that utilitarianism inevitably leads to classical liberalism, just that it happens to be the case in the world we live in today. And even today, I don’t doubt there are a few exceptions.
James
Jul 17 2019 at 12:34am
When you say that utilitarianism leads to classical liberalism in the world we live in today, how do you know that you have properly accounted for the negative emotions many people have toward policies based on classical liberalism?
Scott Sumner
Jul 17 2019 at 11:11pm
I don’t know.
nobody.really
Jul 15 2019 at 12:58pm
I suspect that criminalization of prostitution does more harm than good. That said, exactly HOW comfortable are people with sex?
(You might imagine some grandmother chiding Sumner: “You libertarians are outrageous! You wouldn’t care if people were having sex right in the middle of the public square!” And Sumner would reply, “No, that’s a complete distortion of my views. I’m completely opposed to public squares….”)
Seriously, how many libertarians live in communities where women are constantly harassed by cat-calls on the street? This is not an uncommon practice in many places–and arguably a perfectly legal exercise of free speech. Yet I live in a community, and in a social class, where that behavior would be unthinkable. Thus, I’m free to advocate free speech, yet evade the true burdens of my own policy recommendations.
In short, in the absences of prohibitions (legal, social, or both), I’d expect that I’d see a lot more overt expressions of sexuality than we do now. We’d see a lot more public nudity; we’d see a lot more public sex; and we’d see more aggressive marketing, and soliciting, of sex.
People who live in California or Colorado are already starting to see the growth of pot marketing. These firms now take out electronic billboard space in airports, at bus terminals, etc.
Would you really want to see that for the prostitution biz? Indeed, when was the last time you visited Las Vegas? Was that kind of advertising a norm you’d like to see nationwide?
Look, we’re mammals. Natural selection makes us especially sensitive to sexual messages. Marketers have been exploiting this fact since time immemorial, with greater or lesser degrees of subtlety. As a consequence, many societies adopt strong social norms about expressions of sexuality. I wonder if libertarianism is suitably calibrated to address this human foible. If we have no limits on speech, and unleash a profit motive to be as sexually explicit as you can, I think I can anticipate the results. And I find those results distasteful.
Admittedly, I can think of no special reason why government should impose my preferences on you. But unless you’re a 13-year-old boy or the show runner for Game of Thrones, I suspect you might find these results distasteful, too.
Conclusion: Decrininalization may be fine. But I suspect I’d want zoning/advertising restrictions–yet I have difficultly articulating a rationale.
Maybe I’m just showing my age. (“Boys & girls, shamelessly going together on Sunday Buggy rides–no good with come of it, mark my words…!”)
Scott Sumner
Jul 16 2019 at 1:25am
nobody, There are many aspects of our society that I find offensive. Don’t get me started. . . .
nobody.really
Jul 17 2019 at 2:35pm
I get that.
Still, let’s imagine that we succeed in liberalizing society’s views on sex. Now every time your twelve-year-old daughter leaves home she is immediately bombarded with a constant stream of messages from people soliciting sex. Will you celebrate that result as a triumph over the mindless shackles of puritanical moralism?
Scott Sumner
Jul 17 2019 at 11:13pm
I’d probably move to a different neighborhood. I have a bit more faith in civil society than you seem to have.
nobody.really
Jul 18 2019 at 12:59pm
Ah. So you’d advocate a libertarian reform–and if it had social effects you disfavored, you’d rely on our wealth to escape the consequences of your policy preferences, leaving them for others to endure. Kind of you to clarify.
I suspect you do have more faith in civil society than I have. But is that faith driven by a lifetime living among an affluent, urbane crowd, and an ignorance of the range of societies that currently exist beyond that crowd?
Look, I don’t mean to be needlessly harsh. I would LIKE a world in which social norms remain in place even as we remove any supports for them. This is the nature of libertarian policy generally. And, who know, your policy prescriptions MIGHT work out just as you suggest.
But I’m just not so into faith-based policy.
andy
Jul 16 2019 at 8:05am
“We’d see a lot more public nudity”
As you should 🙂
Being a european (central), I find the american attitude to nudity quite confusing. In most american movies sex plays quite a prominent role – unlike the european ones. Yet the acutal nudity in a non-sexual context is to be found in european movies.
You can see nude pre-school children in the summer by the lakes. Outdoor, people sometimes do swim nude. Not on crowded places, but if you take a walk around a river/lake during hot summer days, you are bound to find somebody. I recently went running through a park (in a million-sized city) and there were about 30 naked people on one of the meadows. I exchanged an amused look with an older lady who went around with her dog and that was it. Nobody called the police…
Friends went for a swim in hot southern europe only to find out that the building near the river was a mosque… The locals were not that happy 😉
Scott Sumner
Jul 16 2019 at 6:31pm
I noticed that too about Europe. Regarding movies, I’d say Americans are very uncomfortable with young viewers seeing a bit of skin, but fine with lots of violence in action movies for young viewers. I don’t have anything useful to add here, but it seems to me that cultures ought to be a bit more self-reflective, a bit more willing to consider alternative perspectives.
KevinDC
Jul 15 2019 at 1:11pm
Regarding Scott’s 3 points, in reverse order
It’s consistent with classical liberalism.
It can be or it might not be – every political theory under the sun has been defended under the banner of utilitarianism. But I don’t see why this matters. There are a number of ways a person could try to convince me that a moral theory is correct. But saying “It’s consistent with my preferred political theory” seems irrelevant at best and like a giant red flag screaming out “confirmation bias” at worst.
It’s the way the world is trending
Possibly true, but again, I don’t see why that matters. “The world is trending towards X” is very, very far from a good argument in favor of X. It’s not an argument at all.
It’s the correct moral theory
I’ve yet to hear a remotely persuasive argument for this. On the contrary, most of the arguments I’ve read defending utilitarianism as a moral theory strike me as embarrassingly bad. I know that blog posts and comments aren’t the best place for in depth discussion, so I’ll just ask a question. Scott, which books, articles, essays, etc, would you consider to be the best, most persuasive arguments in favor of utilitarianism? Possibly you’ve found better arguments than I have – I’ve only been able to find so much of my own volition. What would you hold up and identify to be the best reasoned, most persuasive examples of arguments for utilitarianism?
Scott Sumner
Jul 16 2019 at 1:28am
Kevin, I’m not sure. With me it’s more a question of alternatives. I have not seen a proposed system that seems better. Until that happens, I’ll stick with what seems to be the least bad option.
Alan Goldhammer
Jul 15 2019 at 3:30pm
This is not a new issue, COYOTE started in San Francisco (doesn’t everything??) in the early 1970s. Of course sex work is the world’s oldest profession by some measures.
andy
Jul 16 2019 at 7:38am
I just saw a movie (Work without author), among others it was about how the nazis treated people with psychological disorders. Given that lot of diseases are indeed hereditary, there actually seems to be a good utilitarian argument for eugenics. To argue that the science is wrong seems to me quite weak as obviously a lot of diseases and traits are hereditary.
It seems to me that this is the point that illustrates where utilitarianism and (classical) liberalism diverge. What would be the utilitarian’s response to eugenics?
Every ideology breaks at extremes. I do prefer liberalism, unless the utilitarian argument is extremely strong. I don’t think this makes me utilitarian though.
Scott Sumner
Jul 16 2019 at 6:34pm
Andy, You said:
“What would be the utilitarian’s response to eugenics?”
I believe some people already do some prenatal (ultrasound) testing to avoid giving birth to babies with birth defects. As far as where to draw the line if you are a utilitarian, I can’t say.
andy
Jul 21 2019 at 2:36am
I’d say there is a difference between parents ‘doing the eugenics’ and state forcefully sterilising people.
nobody.really
Jul 17 2019 at 12:41pm
Three responses to the issue of eugenics.
1: To generalize from Sumner’s answer, the “response to eugenics” is under-specified. Whether eugenics poses a problem (to libertarians) may depend upon the means by which people adopt such policies. After all, do people who oppose eugenics also oppose evolution because it operates by the theory of natural selection?
2: Also, I might favor the results of eugenics in theory–but recognizing that mere mortals would implement a policy of eugenics badly, prudence might lead me to oppose the policy in practice.
3: However, libertarianism comes into greater conflict with utilitarianism when we perceive social dynamics that transcend individual dynamics. A libertarian might defend a person’s right to refuse inoculation, even if this places the larger society at risk, which a utilitarian might favor a policy that prioritizes society at the expense of the individual.
In the case of eugenics, observe the various nations wherein people have exercised selective abortion of female fetuses in response to social norms that value men so much higher than women. Those abortions may have been entirely consistent with a libertarian perspective of individualized incentives, but may lead to societal problems later on. (Or may not. I guess we’ll see.)
Likewise, people may become ever more adept at picking/modifying fetuses to have the genetic attributes society most highly prizes. This might cause the gene pool to become ever narrower–leaving the human race less resilient in the face of a new infectious disease or what have you. In that case, utilitarians might seek to bar some kinds of behaviors that would lead to greater homogenization of the gene pool–to the consternation of libertarians, who would correctly observe that no specific individual perceives him- or herself as benefiting from this policy.
nobody.really
Jul 18 2019 at 1:09pm
By VERY strange coincidence, the RadioLab guys just issued an hour-long episode on this very topic.
Joe Munson
Jul 21 2019 at 4:37pm
The prohibition on selling sex, and especially the regulations making selling sex super difficult, especially bother me because over the long term, the destruction of potential wealth of women and gay men must be horrific.
In an alternate reality where sex work was legal no strings attached, the traditional classes that become sex workers would have so much more economic power, its hard to be convinced of any abstract symbolic reasons that selling sex is bad for them, considering their economic power.
Thaomas
Jul 22 2019 at 10:45am
Regulation of sex workers or bans on internet ads are not necessarily “well intentioned.”
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