Abstract
There is an important moral difference between laws that criminalize drugs and prostitution and laws that make them illegal in other ways: criminalization violates our moral rights in a way that nonlegalization does not. Criminalization is defined as follows. Drugs are criminalized when there are criminal penalties for using or possessing small quantities of drugs. Prostitution is criminalized when there are criminal penalties for selling sex. Legalization is defined as follows. Drugs are legalized when there are no criminal penalties for manufacturing, selling and possessing large quantities of drugs. Prostitution is legalized when there are no criminal penalties for owning or operating a brothel or escort service, no criminal penalties for working as a paid agent for sex work, and no criminal penalties for paying someone for sex who is above the age of legal employment and sexual consent. The criminalization of drugs and prostitution violate the right of self-sovereignty in depriving individuals of important forms of control over their own minds and bodies, but nonlegalization does not violate this right. It is therefore consistent, as a matter of principle, to advocate decriminalization but to oppose legalization.
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Notes
Because in Sweden there are criminal penalties for the purchase of sex, but not for the sale of sex, one might say that although the sale of sex is decriminalized in Sweden, it is not legalized.
Mill concludes the famous paragraph where he first states his principle of liberty, sometimes referred to as “the harm principle,” with the sentence: “Over himself, over his own body and mind, the individual is sovereign.” See Mill (1978, p. 9).
In response to the charge that paternalism is inconsistent with liberalism, I would point out that most leading liberal theorists hold to the contrary that some forms of paternalism are permissible. See Hart (1963, pp. 5, 32–34), Rawls (1971, p. 249), Raz (1986, pp. 412–413, 420), Nagel (1987, p. 224), Dworkin (1994, pp. 192–193). Even Joel Feinberg, who is commonly cited as an arch antipaternalist, permits more paternalism than Mill does, because he allows paternalistic interference with choices that are “substantially involuntary,” and he endorses an unusually demanding test of full voluntariness, which renders many acts “substantially involuntary” that we would ordinarily count as voluntary. See Feinberg (1980, pp. 115–117).
I thank Youngjae Lee for pressing me to make this clear.
This is one way in which selling sex differs from buying sex. In buying sex, clients typically value their sexuality in the same way they value their sexuality in noncommercial sexual encounters: as a means to pleasure, or to get relief from stress or loneliness. For this reason I would not say that a person’s choice to buy sex expresses a distinctive view about the value of his sexuality in the way that a person’s choice to sell sex does. This does not mean that laws that prohibit the purchase of sex are consistent with self-sovereignty, but only that if they are inconsistent, the explanation why is different. In this article I don't take a position on whether self-sovereignty is violated by laws prohibiting purchase because it's not necessary to take a position to defend the central claim of this article and because the right to purchase raises complex questions about sexual freedom that I can’t treat thoroughly here.
I cite some evidence in support of this claim in de Marneffe (2010, pp. 13–14).
I’m assuming here that prior to consciousness there is no reason for a being to care whether or not it lives or dies, and so no reason for first and second trimester fetuses to prefer their situations when abortions are prohibited.
A law that prohibits clients from purchasing sex might violate the prohibition principle in depriving them of an important form of discretionary control over their bodies or it might violate the opportunity principle in depriving prostitutes of adequate opportunities to sell sex. I take no position here on either possibility, but for related discussion, see de Marneffe (2010, pp. 120–122).
This doesn’t make the theory relativistic or subjectivist. I assume that there are facts about what choices involve important forms of discretionary control over mind and body, about what reasons have much greater weight than others, about what reasons of welfare are substantial and evident, and about what policies are necessary to ensure that everyone has adequate control over mind or body, and that these facts are not systematically dependent on individuals’ beliefs, desires, emotions, or other attitudes in any way that makes them “subjective.” Disagreement about these matters is therefore disagreement about the truth, and there is only one truth. Nonetheless there can be reasonable disagreement about what this truth is because people can be epistemically justified in holding contrary beliefs about it. Hence it is possible for two people to be justified in holding different beliefs about what policies violate self-sovereignty, even though they are justified in accepting the same abstract theory.
References
de Marneffe, P. (2010). Liberalism and prostitution. New York: Oxford University Press.
Dworkin, R. (1994). Life’s dominion. New York: Vintage Books.
Feinberg, J. (1980). Legal paternalism. In J. Feinberg (Ed.), Rights, justice, and the bounds of liberty. Princeton: Princeton University Press.
Hart, H. L. A. (1963). Law, liberty, and morality. Stanford: Stanford University Press.
Mill, J. S. (1978). On liberty (E. Rapaport, Ed.). Indianapolis: Hackett Publishing.
Nagel, T. (1987). Moral conflict and political legitimacy. Philosophy & Public Affairs, 16(3), 215–240.
Rawls, J. (1971). A theory of justice. Cambridge, MA: Harvard University Press.
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Acknowledgments
I thank the participants at the Workshop on Vice and Crime at Rutgers School of Law—Newark in September 2011 for questions in response to an earlier draft, particularly Youngjae Lee, whose comments led to several changes.
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de Marneffe, P. Vice Laws and Self-Sovereignty. Criminal Law, Philosophy 7, 29–41 (2013). https://doi.org/10.1007/s11572-012-9157-x
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DOI: https://doi.org/10.1007/s11572-012-9157-x