James Kerian: Prostitution Should Remain Illegal In North Dakota


Recently my esteemed editor here at SayAnythingBlog reposted an article from last May in which he argued in favor of legalizing prostitution here in North Dakota.

His argument focused entirely on pragmatic concerns such as the impossibility of completely eliminating prostitution and the health and crime reduction benefits to legalized prostitution that are claimed in a report by the National Bureau of Economic Research.

I don’t find Rob’s pragmatic arguments compelling.  The experience of nations that have tried this approach seems to refute them adequately but I won’t make that argument here.  Rather than pragmatism I want to address the principles at the heart of this discussion and why, even as an advocate of the free market, I oppose legalized prostitution.

It is hopefully non-controversial to assert that ownership is real.  It’s not just a legal fiction.  If you and I agree and we trade my apple for your orange the apple becomes yours and the orange becomes mine whether or not the law declares a change in ownership.  When the German government seized the property of Jews in the mid 20th century the property did not really cease to belong to the Jews, the law just ceased to accurately reflect/acknowledge who really owned the property.  Law does not determine ownership.  The responsibility of lawmakers is not to decide who owns what but to acknowledge/reflect ownership as it actually exists.

It may be more controversial (though it shouldn’t be) to assert that the free market has been shown to be the most efficient, just, liberating, inspiring and equitable way for a government to treat the exchange of marketable commodities.  There is always another central planner pointing out another (usually real) imperfection with the free market and promising another (always false) increase in prosperity through government control of the markets.  The record favoring the free market is clear but there will always be some who choose to ignore it.

The mistake made, however, by advocates of a “free market” for prostitution is the unspoken assumption that everything is a marketable commodity.  That is to say the assumption that everything can be exchanged/sold in a transaction.  The truth is quite the opposite as the following three examples illustrate.

You can’t exchange/sell your right to vote.  This is not just because it is illegal.  The law, again, does not determine ownership it only (ideally) reflects/acknowledges the ownership that already exists.  My decision for whom I will vote is inherently and inalienably mine.  It cannot be exchanged through a contract.

You can’t exchange/sell your right to refuse sexual intercourse.  If every right could be sold/exchanged then you would be able to contract with someone who was sufficiently desperate to buy away from them, for the rest of their life, their right to refuse/consent to sexual intercourse.  You could thus, with their one-time consent, buy the right to rape them for the rest of their life.  Even those who want to legalize prostitution will usually get a little squeamish if you ask them about this sort of total permanent ownership of another human being (i.e. slavery).

You cannot exchange/sell your right to life.  There are human beings out there who are sick enough to enjoy torturing people to death and there are human beings out there who are desperate enough to sell someone the opportunity to do just that in order to financially help their family.  That’s illegal in this country because we recognize that there are some things (like the right to life or the right not to be raped) that simply cannot be exchanged even if everyone involved consents at the time of exchange.

These three examples may seem hyperbolic and they are not intended as some slippery slope warning against legal prostitution.  They merely serve as a reductio ad absurdum argument to demonstrate that some of the things we have cannot be sold/exchanged.  The rights mentioned above are inalienable so they are simply not marketable goods.  The law does not have the power to change that reality, in fact it’s essential that the law acknowledge this reality.

The reason that prostitution (and certain forms of pornography) should be illegal is that human sexuality is not a marketable commodity that can be “owned” through a purchase/exchange.  This is not just because some of us believe prostitution is immoral (there are plenty of things that I believe are immoral but should nonetheless be legal).  It’s not just because of the disastrous pragmatic results of legal prostitution that other countries have experienced.  The fundamental reason is that (for all the greatness of free consent in our market system) consent alone cannot turn life, liberty or human sexuality into marketable commodities.