In part one, I discussed the first part of Nussbaum’s article “‘Whether from Reason or Prejudice’: Taking Money for Bodily Services” which brought up the six analogies that Nussbaum uses to argue for the decriminalization of prostitution.  In part two, I looked at Nussbaum’s analysis on why prostitution became stigmatized and four arguments as to why prostitution should be criminalized and Nussbaum’s responses to those arguments.

In this post, I will continue looking at the arguments for criminalizing prostitution and Nussbaum’s responses to them.  I will conclude with some general remarks.

Argument five: The prostitute alienates her sexuality on the market; she turns her sexual organs and acts into commodities.

Here we get to the meat of the arguments.  Nussbaum looks at alienation as if one gives up an essential part of who one is.  Thus, the way that Nussbaum look at this argument is this:

1. Alienation is to give up an essential core of who one is.
2. Giving up an essential core to another is exploiting that person.
3. Prostitution is the act of giving up one’s sexuality (which is an essential core of who one is) to another.
4. This action exploits the prostitute.
5. Therefore, prostitution is morally wrong.

Nussbaum counters this by refuting premise three.  Even if the prostitute has sex, she still has her sexuality in the same way that the singer still has her voice and the professor still has her mind.  By putting these out to the market, the singer and professor still keep an essential core of who they are.  The same is true with the prostitute.  With the domestic worker, she may cook and clean her client’s house, but she can still cook and clean for her family.  No one has a monopoly on these services.  So what’s the difference?  For Nussbaum, not much.

This argument works if this is how we’re defining alienation.  However, alienation has different forms.  The most common type is where one feels isolated and estranged from one’s labor.  We can see this from Marx.  However, this feels very similar to argument two in that any working-class woman could feel alienated from her job.  The solution is not to ban any job that could alienate people, but to change the social conditions where alienation is lessened.  The same is true with the prostitute.

What about transforming one’s sexual organs and acts into commodities?  What does this mean?  Here, we have two possible interpretations:

Commodification qua gaining a fee: one accepts a fee for sexual services.

This, however, is merely descriptive.  It doesn’t tell us the wrongness of prostitution.  After all, the professor and singer also accept a fee for their services.  Even if they are done through a contract, it’s not bad.  Indeed, the contract has helped the singers and professors since they are more free to pursue their own ends instead of following orders of their employer.

Commodification qua fungibility: the unit in question can be traded or substituted for any equivalent of that unit.

This definition is what Nussbaum spend most of her time on.  The real issue is where the individual is not seen as a special, unique individual.  While this may be true, Nussbaum points out that there’s nothing immoral about it generally.  Suppose your teacher teaches you some philosophy.  If that professor was not there, some other professor would have taken her place.  Thus, the professor can be fungible.  We can’t know every person we meet in a deep or intimate level.  And most of our dealings in life with other people are morally permissible even if we don’t know them deeply.  The cashier, the cab driver, the waiter are all fungible.  We can’t know them as a unique individual, and if that person wasn’t there, another person would’ve taken her place.  If person x didn’t serve me food, person y would’ve done it.  Person x and person y are fungible.  Yet, that doesn’t mean that there’s anything wrong with it.

But what about sex?  Perhaps the opponent could respond that getting food and learning philosophy is one thing.  We don’t need to know the waiter or the professor deeply and that’s morally permissible.  But what about sex?  Are we supposed to know the other person deeply and intimately for the sex to be moral?  Is sex without deep personal knowledge immoral?

Imagine an artist knowing her work at a deep level.  She feels that selling her work would be inappropriate.  Now imagine a singer selling her work and she also considers her work as very intimate and very personal to her.  We can imagine any artist doing this with novels as well.  There’s nothing wrong with gaining money for selling intimate things.  For the prostitute her activity is not intimate, but isn’t that the point?  The problem still comes down to how she is treated and whether or not having sex without intimacy is morally wrong.

While this is helpful, I think Nussbaum is missing another definition of commodification:

Commodification qua objectification: the unit in question has been made into an object which now has a price, and is now treated as a thing.

This has Kantian and Marxist overtones, but this is still a fairly good definition of commodification.  To objectify someone is to treat that person as a mere means instead of an end.  And because this feature takes away a person’s dignity and respect, this person now has a price.  In the case of prostitution, she literally has a price.  Thus, this form of commodification is immoral which makes prostitution immoral.  I’m surprised that Nussbaum doesn’t tackle this since a lot of arguments against prostitution deals with objectification.  Still, could this definition be tackled?  I think it’s possible.  It depends on what we mean by “objectification.”  Nussbaum talks about objectification in another article which we won’t get to here.  Raja Halwani discusses it in his article about casual sex and virtue ethics which I will review in a later post.  For now, however, I will have to skip this discussion.

Argument six: The prostitutes’ activity is shaped by, and in turn perpetuates, male dominance of women.

This is another main argument against prostitution.  Again, this is shaped by the perception that female sexuality is dangerous and thus needs regulation, or that sex is dirty and degrading, or that male sexuality is rapacious and needs a “safe” outlet.  Throughout history, prostitutes have been physically abused and controlled by their pimps and these are features of male dominance, which has also had the same features for women in low paying jobs.  Here is the argument:

1.  If the activity is shaped by, and in turn perpetuates, male dominance of women, then that activity should be banned.
2.  Prostitution is an activity that is shaped by, and in turn perpetuates, male dominance of women.
3.  Therefore, the activity of prostitution should be banned.

We need to ask: how far does male dominance as such explains the violence involved?  Even if there is violence within the institution of prostitution, this does not thereby explain that it should be illegal.

If we look at other parts of the world, children have been “sold” to other families by dowries.  These children are basically forced to marry someone, usually at a very young age.  However, most countries are now recognizing the harm behind this are making dowries illegal.  Nussbaum considers this practice much worse than prostitution.  To make something illegal because of subordination is pretty weak compared to the case of making dowries illegal.

Moreover, we seem to be going into far-reaching territory if we ban something just because the institution and activities within that institution have traditionally been male dominated.  Marriage, for example, has had a history of male dominance, and the practice has had perpetuated male dominance.  We could add that to the list through the argument given above:

2`.  Marriage is an activity that is shaped by, and in turn perpetuates, male dominance of women.
3.  Therefore, the activity of marriage should be banned.

Obviously, this would be a huge infringement on people’s liberty.  Instead, we should change the laws to protect women from domestic violence within marriage, giving women equal property and custody rights, and improving their exist options.  The same should be done with prostitution.  Thus, Nussbaum refutes premise one.  Instead of banning the activity altogether, we should use the law to protect the bodily safety of prostitutes from assault, to protect their rights to their income against extortion, to protect poor women in developing countries from forced trafficking, and to guarantee their full civil rights.  The criminalization of prostitution would be an obstacle to that equality in the same way that criminalization of marriage would be an obstacle to equality.  Here is how Nussbaum looks at it:

1`.  If the activity is shaped by, and in turn perpetuates, male dominance of women, then that activity should be reformed so that male dominance of women is lessened, and that women are treated as equals.
2“.  Prostitution—and marriage—are activities that is shaped by, and in turn perpetuates, male dominance of women.
3“.  Therefore, the activity of prostitution—and marriage—should be reformed so that male dominance of women is lessened, and that women are treated as equals.

Moreover, if one gives workers greater dignity and control, this will change the perception and the fact of male dominance.  We can see this already in marriage and in many workplaces.

This debate is entrenched with politics.  Nussbaum, I think, has a good response to this.  Yet the other side of the debate is whether or not the activity is essentially male dominated and that no matter how many reforms there are, it still doesn’t change the fact that it’s male dominated.  This would not only include prostitution, but some have argued that this includes marriage and other major institutions of society.  (As another feature, pornography is also part of this debate.  Pornography has been extremely male dominated and it has also perpetuated male dominance.  Should be therefore ban it since it harms women?  Or is there a way to reform pornography itself?  Many reforms have been done.  There is a new type of porn called feminist porn where the ethics behind it has geared toward feminism.  Queer porn has challenged male dominance by showing queer performers gaining pleasure.  There is also pornography geared toward and made by women.  This has challenged the structure from within.  I think Nussbaum’s argument would apply to pornography as well.  But that would diverge me into another topic.)  I’m not sympathetic to the idea that an activity or an institution is intrinsically or essentially or inherently patriarchal.  These activities are historical; the dominance can also change but to change them, you challenge them from within the structure.  This argument itself could be a topic on its own, but I am sympathetic to Nussbaum’s strategy that to change male dominance, you must challenge that dominance from within.

Argument seven: Prostitution is a trade that people do not enter by choice; therefore the bargains people make within it should not be regarded as real bargains.

Let’s distinguish three cases:

Prostitution of women being forced into it:  In other words, human trafficking.  This type of prostitution is where the woman enters into it by some other conduct that would otherwise be criminal: kidnapping, assault, drugging, rape, statutory rape, blackmail, fraudulent offers.  We can see that this choice is not a real choice and that the law should punish the coercer.

Child prostitution:  This type is also accompanied by kidnapping or when the children are sold without their consent.  This is an obvious infringement of autonomy and liberty.  Because children cannot consent to sexual activities, they cannot give consent to a life in prostitution.

Prostitution entry because of bad economic options:  Which is better prostitution or working in a chicken factory?  It may depend on your preferences, but I could imagine many women working in prostitution, and I can imagine many women working in a chicken factory if these were the only options they had.  Autonomy has been infringed but in a different way.  Consider a story: a woman on a desert island who is constantly pursued by a man-eating animal.  Now, in one sense, this woman is free to go anywhere on the island and do anything she likes.  In another sense, she is unfree.  If she doesn’t want to be eaten, she has to spend all her time and calculate all her movements in order to avoid the beast.  It seems that many poor people’s live are nonautonomous in just this way.  Nussbaum states: “they may fulfill internal conditions of autonomy, being capable of making bargains, reflecting about what to do, and so on.  But not of this counts for a great deal, if in fact the struggle for survival gives them just one unpleasant option, or a small set of (in various ways) unpleasant options.”

So how do we ameliorate this problem?  Nussbaum offers four suggestions, and her suggestions are taken from India:

1. Both government and private groups play a role in providing education to women and to equip them with skills that will enhance their options.  This would include skills training for children of prostitutes because they are at a higher risk of becoming prostitutes themselves.
2. Nongovernmental organizations focus on providing credit to women to enhance their employment options and give them a chance to “upgrade” in the domain of their employment.  This could include loans to help women have an opportunity to new employment, upgrade their equipment, gain skills training, and move up into leadership roles.  These women had a much lower chance to turn to prostitution to supplement their income.
3. Form labor organizations to protect women employed in low-income jobs and to bargain for better working conditions.
4. Form groups to diminish the isolation and enhance the self-respect of working women in low-paying jobs.  This has worked well in India where a prostitute welcomed the prime minister of India.  That would never happen in the United States because the stigma against them is so strong.

These suggestions are a good start.  Yet, throughout this article, I think Nussbaum is focusing on a certain type of prostitution.  There are the elite call girls that can make an exorbitant amount of money.  There are the escorts, which can range in how much money they make.  And then there are call girls, street walkers, and prostitution as a “last ditch” opportunity to survive.  Throughout this article, I had a feeling that Nussbaum was focusing on the last type.  This is not to say that the other types of prostitution should be banned.  For Nussbaum, I take it that if street walker prostitution should not be banned, then neither should the high-end prostitution as well.

In the end, Nussbaum argues that the stigma against prostitution is mainly a matter of prejudicial biases that cannot be rationally defensible.  These beliefs include: the evil characteristics of female sexuality, the rapacious character of male sexuality, the belief of sexuality is linked with marital and reproductive characteristics for “good” women and “good” sex.  To correct the responses, we must aim to correct the options for working women, not criminalize them.  To start, we must realize that there is nothing wrong with taking money for the use of our bodies.  What makes it wrong is the lack of ability for women to use their body where they have a wider range of options where one can use skills and thoughts rather than just being a cog in the machinery of work.  How do we open up these options?  How we give them more dignity?  These are the questions we must deal with, even within the realm of prostitution.

The approach that Nussbaum takes in tackling stigma is the change the laws and this would thereby change the stigmatization.  In ways, this could work.  After all, it seems to have worked with the Civil Rights Movement in the 60s.  However, there are still some people who don’t agree with the Civil Rights Movement.  Thus, there is still a stigma against minorities.  On the other hand, perhaps one move is the change the stigma and then the laws will reflect that.  Lately, that has been same-sex marriage not only in America, but around the world.  I would’ve liked to have seen why Nussbaum takes the first route, but I’m guessing changing the laws would be easier than changing the cultural perception of that activity first.

In part one, I discussed the first part of Nussbaum’s article “‘Whether from Reason or Prejudice’: Taking Money for Bodily Services” which brought up the six analogies that Nussbaum uses to argue for the decriminalization of prostitution.  In this post, I will be going through Nussbaum’s analysis on why prostitution became stigmatized and I’ll go over a few of the arguments as to why prostitution should be criminalized and Nussbaum’s responses to those arguments.

In all of these cases, the major difference is because prostitution is widely stigmatized.  Professors, opera singers and masseuses used to be, but they’ve gained respectability.  So why is prostitution still stigmatized?

Nussbaum thinks there are two reasons:

Immoral reason: this states that prostitution is immoral itself, mainly because nonreproductive sex was immoral.  However, Nussbaum finds this a weak reason because this is an inconsistent view because many people find nonreproductive sex morally permissible.  Indeed, many people find nonmarital sex morally permissible.  Thus, there is not much need to argue against this view.

Whether or not people find premarital sex or even casual sex morally permissible, there is still a stronger stigma toward prostitution.  To simply shrug it off doesn’t seem to give this argument any closure.  After all, is there a possibility that one could argue that premarital sex and casual, promiscuous sex are morally permissible, but prostitution is not?  I think it would be difficult to make an argument, although it may be possible.  What could a possible argument be?  Suppose there was a one-night stand where the people involved consent to the sexual activity.  So far, no problem.  Now imagine the same thing except that the deal is that one expects to be paid for the activity and the other agrees.  All of the sudden, it becomes morally suspect.  But why?  I don’t see any other way out except some prejudicial basis.  However, perhaps one could make an anti-capitalist argument that this business deal seems to take lightly of the sexual encounter.  However, one could make the same argument with the one-night stand.  I, at this time, cannot think of a way to show why one-night stands and promiscuity are permissible and prostitution is not, but this is not to say that it can be done.  I think Nussbaum needs to counter this argument in a stronger way rather than shrugging it off.

Gender hierarchy reason: this is the idea that women and their sexuality are in need of male domination and control.  What is this connection?  Here, Nussbaum seems to give a brief genealogical account of prostitution and the prejudice against it.  If a women is sexual, there is something dangerous about it.  Thus, it needs to be controlled.  Moreover, the prostitute, who is a sexually active woman, is a threat to male control of women.  By making the prostitute away from the marker of a “good woman,” the wife is aimed toward reproduction which is proper sex.  This system maintains male control over female desire.  This sexual hierarchy causes the stigma.  We can see this sexual hierarchy with veiling and female genital mutilation, for example.  Part of the sexual hierarchy suggests that women’s sexuality is dangerous and immoral and that it needs to be controlled by men.  Because the prostitute is in control of her sexuality, she is seen as a threat of this control.  And because this stigma is based on a prejudice, the reasons for the immorality of prostitution are unfounded.

I’m not sure what to think of this argument.  Yes, there was, and is, a sexual hierarchy.  Suppose, however, that this was all gone and prostitution still existed.  Would the immorality of prostitution disappear with it?  I doubt it.  Even those who are sympathetic to Nussbaum’s claims of getting rid of sexual hierarchy, I could imagine someone still being against prostitution for other reasons.  Suppose we have Rachel.  She is someone who supports women’s freedom of her own sexuality.  Rachel believes that women can express their sexuality in their own way under their own terms.  Yet, Rachel thinks that sex for money as a way to demean not the sex, but women in general.  In what way?  Rachel argues that getting sex for free is seen in a better light rather than getting paid to have sex because sex for pay undermines the relationship.  As an analogy, suppose you ask me to help you on your homework and I do so.  Now, suppose you ask me to help you with your homework and I say yes but only if I get paid.  By doing that, it seems to undermine the relationship that we have.  Rachel’s argument has a good point.  However, this presupposes that we’ve already had a relationship.  I have tutored many people in the past, and they pay me to tutor them, and yet neither of us think that this somehow demeans me.  It only demeans me (and the other student) if we’ve already had some sort of relationship, even a friendly one.  To ask friends or lovers for money for some sort of service undermines that relationship.  Rachel’s argument is flawed, but it does get to the heart of Nussbaum’s argument.  The problem with this argument is that prostitution may have started with sexual hierarchy, but even if there was this genealogical account of it, arguments against prostitution does not need to rest on this.  Fortunately, Nussbaum looks at other arguments for criminalization of prostitution and responds to them.

This does not mean that the stigma entails criminalization however.  Just because the occupation has a stigma does not mean that the occupation needs to be criminalized.  There are a low castes in India known as the “untouchables” who works in very menial jobs, and they are stigmatized.  However, the jobs they do are not immoral (it’s usually toilet jobs).  If anything, it’s the structural prevailing attitudes toward the untouchables that makes the occupation a stigma thereby making the people themselves having a stigma.

The next step is to look at certain arguments for the criminalization of prostitution, analyze them, and see if they’re effective arguments.  Nussbaum looks at seven arguments and debunks them all.

Argument one: Prostitution involves health risks and risks of violence.

The argument is straightforward:

1. Any occupation that involves health risks and risks of violence gives us clues that the occupation ought to banned.
2. Prostitution is an occupation that involves health risks and risks of violence.
3. Therefore, the occupation of prostitution gives us clues that the occupation ought to be banned.

Nussbaum argues against premise one.  If prostitution was made illegal, the problem is acerbated where the prostitute cannot gain adequate supervision nor adequate health care.  In any form of violence, it is better to have a sense of control and regulation and have the police on your side rather than having them as your oppressor.  Nussbaum uses boxing as an analogy, although with today’s standards, she could have easily used UFC fighting.  In these cases, the fighters are subjecting their body to harm.  Moreover, there is a stronger case for paternalistic regulation of fighting rather than prostitution because fighting involves more bodily harm and it glorifies in this harm, especially to younger people.  Yet, Nussbaum does not want to criminalize fighting: “[s]ensible regulation of both prostitution and boxing…seems reasonable and compatible with personal liberty.”  Making it illegal would make it worse.  Thus, Nussbaum’s counterargument is:

1`.  Any occupation that involves health risks and risks of violence gives us clues that the occupation ought to regulated, (such as boxing or UFC fighting).
2.  Prostitution is an occupation that involves health risks and risks of violence.
3`.  Therefore, the occupation of prostitution gives us clues that the occupation ought to be regulated.

Nussbaum’s counterargument makes sense to me.  As a way to further her argument, any occupation that we deem having health risks (such as jumping over buses with a motorcycle, firefighting, policing criminals, etc.) are not banned because of the health risks themselves.  People understand the health risks and yet, they still choose that occupation or lifestyle.  Banning the activity or occupation would not make the desire for that activity go away.  In some of these cases, we need people to do these occupations for a better society.

Furthermore, just because an activity has high health risks does not make the activity immoral.  At best, it may make the the activity imprudent.  Riding my bike without the rubber tires does carry health risks, and it’s imprudent for me to just ride on the rims, but I wouldn’t call that immoral.  The person who makes the argument is conflating immorality with imprudence.

Argument two: The prostitute has no autonomy; her activities are controlled by others.

The argument can be formed as this:

1.  Any occupation where autonomy is taken away is morally wrong since one’s actions are controlled by others.
2. Prostitution is an occupation where autonomy is taken away since her actions are controlled by others.
3.  Therefore, prostitution is morally wrong.

By using the previous analogies, Nussbaum points out that prostitution is not different than the factory worker or the domestic servant.  Indeed, they have much less autonomy than the prostitute.  And yet, these jobs are morally permissible.  Indeed, many working-class women don’t have much autonomy.  However, this does not mean that since we allow jobs A, we should therefore allow job B.  Nussbaum is concerned for the working conditions of the factory worker and the domestic servant.  What makes the jobs morally troubling is the fact that one’s livelihood is lacking a life of flourishing because the work is out of one’s control.  This, however, does not mean that the occupation is immoral; it just means that this is a problem of labor.  To fix the problem, we must promote more control over choices of activities and more variety.  It certainly wouldn’t make sense to criminalize factory jobs or domestic servitude.  Thus, Nussbaum’s counterargument is this:

1`.  If there is any occupation where autonomy is taken away, then there needs to be a structural change where one has more control over choices of activities and variety, since one’s actions are controlled by others.
2.  Prostitution is an occupation where autonomy is taken away since her actions are controlled by others.
3`.  Therefore, prostitution needs to be a structural change where one has more control over choices of activities and variety, since one’s actions are controlled by others.

This is an interesting move from Nussbaum where we don’t get rid of the activity, but to give the other autonomy.  Yet, how far are we willing to go with this?  Slavery is an occupation where one’s autonomy is taken away because one’s actions are controlled by others.  Yet, we wouldn’t say that we just need to give the slave more autonomy by having more control of activities and more variety.  Something seems incomplete in this argument.  Still, I think this is a good starting point.  Nussbaum’s counterargument needs to be developed where she needs to show how slavery is wrong but prostitution is morally permissible.  After all, they both lose autonomy.  I think the way around it is to suggest that the prostitute has a contract with the client (the same can be said with almost any working-class women).  The slave, however, has no contract because the slave was forced into this occupation.  However, what if someone chooses to be a slave?  As weird as it sounds, would we then give Nussbaum’s recommendations and say that one can be a slave but we’ll give her a free range of activities she can have?  Nussbaum’s counterargument has some merits, but it needs some development.

Argument three: Prostitution involves the invasion of one’s intimate bodily space.

Nussbaum responds by reviewing the colonoscopy artist from part one.  Both may not be to everyone’s taste, but that reason itself does not mean that prostitution—as well as colonoscopy artistry—is morally wrong.  Furthermore, just because both will not be to everyone’s taste, it doesn’t mean that the activity is wrong.  Many forms of sex don’t involve love or marriage.  If we go down this route, to be consistent, we must also find sex without love or marriage morally problematic.

Here, I think Nussbaum is onto something which she doesn’t realize.  If she’s relying on taste, then the person who makes argument three isn’t really making a moral claim but an aesthetic one.  Within the legal realm, we cannot legislate taste.

Perhaps a potential problem with this argument is her call for consistency: if we find prostitution wrong because of certain tastes, then we must also repudiate sex without love or marriage wrong as well.  But is this true?  Can we construct a moral position where prostitution is morally wrong yet noncommercial casual sex is morally permissible based on taste?  Even stranger, can we construct a moral position where prostitution is morally permissible, yet noncommercial casual sex is morally wrong based on taste?  I don’t have any answers to this, but I’m willing to bet that an argument could be made.  Still, if there is no argument, then one must concede that Nussbaum has a good point.

Argument four: Prostitution makes it harder for people to form relationships of intimacy and commitment.

Is this true?  It seems odd that we are treating preferences and desires as a zero-sum game.  One type of relationship does not remove another type.  For example, prostitution is legal in the Netherlands, Germany, and Sweden; yet the people in those countries still appear to fall in love.  Introducing Jackie Collins novels does not remove the desire to read Proust.  With any book, certain values are produced by reading them that you can’t get in another book.  By introducing new books, you actually add more availability and choices.  People who want Proust will read Proust and having Jackie Collins in the bookstore won’t remove that want.  The same is true with loving relationships.  Those who want love and commitment can get that, and they can tell the difference between that and other type of relationships.

But what if the argument means that prostitution makes it harder for the prostitute to form loving relationships?  Nussbaum argues that this is implausible.  Recalling how singers, dancers, and actors were stigmatized in Smith’s time.  I’m willing to bet that they still got involved in loving relationships.

I think this argument is trying to suggest that the prostitute is so used to having sex without intimacy that she will forever divorce sex and intimacy.  I’m not sure this is factually accurate, but at the same time, is it really a problem if someone believes that sex and intimacy are not necessarily connected?  Imagine someone living a life where sex is for enjoyment and pleasure and not for intimacy.  This may not be the norm, but I cannot find anything morally (or legally) problematic with that belief.  Nussbaum mentions this in the next argument, but she doesn’t offer a suggestion except that connecting sex and intimacy seems to be more about a personal predilection rather than an obvious fact.

In the next post, I’ll conclude the arguments and give some general comments on Nussbaum’s article.