Today the Washington Post featured an editorial on the recent finding that prostitution laws are unconstitutional in Canada; the author notes the real opportunity for sex workers and advocates of sex workers to be included in deliberations in redrafting existing laws. My concern is not with the legal parameters of prostitution, but with the morality and justness of prohibiting it. I intend to argue that an important Kantian moral principle suggests that sex work is not immoral, but rather, that prohibiting prostitution is unjust.
1.0. Sex Work and the pros and cons of Criminalization
Passing reference is made to the fact that a strong reason for criminalizing prostitution is that, while sex trafficking is difficult to prosecute and thus prevent from occurring, prostitution is not, such that criminalizing prostitution prevents sex trafficking. Indeed, I think this is perhaps the only reason to criminalize prostitution, and persons I respect have made the case in personal correspondence that sex work is morally permissible, but the prevention of sex trafficking is a sufficient reason to criminalize prostitution (my girlfriend, a law student, introduced me to this argument).
Nevertheless, I think criminalizing prostitution for this reason is unjust, as it treats autonomous sex workers as mere means, thus violating the second formulation of Kant’s categorical imperative. (Those who are familiar with my blog will recall that I am a robust moral realist, such that I reject constructivist views, among which is Kant’s theory. I think there is a strong intuitive appeal to this formulation, such that I think that if moral pluralism is true, as I do, then something like the second formulation of Kant’s categorical imperative might be a prima facie duty. Also, we are now considering justice, which is of such a macro-level affair that I am tentative in posting that there are fundamental moral properties at the level of polity policy. I think it is possible that a limited moral realism is true of individual’s interactions [see Michael Huemer’s “Values and Morals: Outline of a Skeptical Realism” 2009] and that a constructivist reflective equilibrium [See Rawls’ A Theory of Justice] will provide moral principles for policy guidance in the macro-realm of politics. Either way, Kant’s second formulation is valid here).
The second formulation of the categorical imperative is as follows:
Act in such a way that you always treat humanity, whether in your own person or in the person of any other, never simply as a means, but always at the same time as an end (The Groundwork of the Metaphysics of Morals page 96).
Now, while some commentators have derided this principle as indeterminate and thus useless (Fred Feldman, for one), I think that when taken in conjunction with the other two formulations of the categorical imperative, the principle has meaning. The central insight of Kant is that the moral thing to do is the rational thing to do, in that immoral actions are irrational (indeed, in many ways Kant’s theory was a response to David Hume, who posited that we don’t have a reason for acting morally unless we desire to act morally; Kant rejects morality as being based on this sort of hypothetical imperative for the categorical imperative). The first formulation of the categorical imperative gives us the starting point, it holds that an act is morally permissible if that law could be a universal law of nature. By this Kant is positing that an act is not morally permissible when if every person acted for that reason in that situation, that action would be impossible. This would be a contradictory reason for action, such that it would be illogical and irrational, thus, we can see that, for Kant, morality reduces to rationality.
This leads to the second formulation of the categorical imperative, for the reason that Kant thought that the requirements of reason are synthetically a priori, or objectively true, because the categories and concepts of reason that the human mind by necessity shapes and filters the world with makes these requirements of rationality apply to all intelligent agents. Other rational agents are members of the kingdom of ends (the third formulation of the categorical imperative) due to their being actors who see and follow the first formulation of the categorical imperative, and they are deserving of respect, because to do otherwise would violate the first formulation of the categorical imperative. We can see, then, that the second formulation is a more narrowed version of the first formulation, in that, while the first might be concerned with situations in which no one is directly effected, the second formulation applies to situations when a person is directly affected by an action, and that the second formulation supports and is supported by the third formulation.
Now we can flesh out the meaning of the second formulation more thoroughly. To treat someone as a mere means is to not treat them as a member of the kingdom of ends, which is to treat them as arational. Kant thought that part of what makes us rational is that we are capable of reasoning out by what means we may achieve an end. Thus, to treat someone as arational is to deny them the possibility of deciding on what ends they will pursue, such that, to treat someone as a mere means is to not let them choose and realize their own ends by using them as a means to your own end. In other words, treating someone as a mere means is to use them as a means to your own end in such a way that they cannot attain their own end.
2.1. Kantianism and the Moral Permissibility of Sex Work
It should now be quite obvious that criminalizing prostitution in order to prevent sex trafficking treats voluntary and willing sex workers as mere means. Sex workers who are not forced into prostitution (in other words, sex trafficking) have normally decided that given their options, the best way to make a living for the time being is to have sex for money. (I don’t intend to imply that sex workers are not reluctant to enter this field, but I do think there are persons who engage in sex work who have at least one other option [perhaps a minimum wage job], such that there are many sex workers who are not forced into the profession. Some may be more willing than others; pornography features actors and actresses who, at the time, wanted those careers, and I think it likely that there are non-pornographic sex workers who also wanted the thrills of the profession.) Thus, these sex workers have done means-end reasoning, and concluded that to attain their ends they will use the means of selling sex.
It is worth noting that this reason does not violate the first, second or third formulations of the categorical imperative. First, if all persons in that situation decided to have sex for money, it would not become impossible to have sex for money. The second and third formulations tie together. The sex worker uses the John for their means to their end, but not merely as a means, because the sex worker has respected the choice of the John to use the sex worker as a means to their end (of carnal pleasure, I presume), and the John doesn’t treat the sex worker merely as a means because he pays them such that the sex worker is enabled to reach their end (of financial security, I presume). In so doing, both parties treat the other as members of the kingdom of ends. Thus, it seems that prostitution is morally permissible according to Kantianism.
2.2. Kantianism and the Unjustness of Criminalizing Sex Work
Now we turn to the question at hand: does criminalizing prostitution in order to prevent sex trafficking treat voluntary sex workers as mere means?
Recall that we said that treating someone as a mere means is to use them as a means to your valued end, and by doing so, preventing them from reaching their end. We have already noted that voluntary sex workers engage in sex for the means to reach their ends of financial security. The reason, of course, anyone is interested in financial security is to live a good life. Thus, sex workers use the means of sex to attain their end of living a good life.
What of the polity’s reason of criminalizing sex work in order to prevent sex trafficking, or in other words, involuntary and coerced sex work? They use the means of criminalizing all sex work in order to reach their end of preventing involuntary sex work. The problem is that in criminalizing all sex work, voluntary sex workers are put in dangerous and unregulated conditions, where they are more at risk of violence and abuse (this is the main point of the Washington Post editorial). Violence and abuse are not part of a good life, and it seems true that sex workers are put in dangerous situations because their profession has been made illegal. If their work was not criminalized they would be at less risk of being put into dangerous and harmful situations. Therefore, criminalizing sex work prevents sex workers from attaining their end of a good life, and thus, treats voluntary sex workers as mere means to the end of preventing involuntary sex work and trafficking. It seems, then, that criminalizing sex work is unjust.
3.0. Conclusion: Between a Rock and A Hard Place
Sex trafficking is a serious, and deeply disturbing human rights problem, and I don’t want to suggest that the freedom of persons to voluntarily pursue sex work should trump all measures of preventing sex trafficking. If anything, I only want to posit that in regulating the sex industry we are stuck between a rock and a hard place: completely legalizing sex work makes the human rights abuse of sex trafficking harder to prevent and prosecute, and criminalizing sex work forces voluntary sex workers into dangerous situations with the risk of human rights violations.
We arrive now at the hard question: Is it just for the state to treat one group of persons as mere means in order to prevent criminals from treating a different group of persons as mere means?
This is a hard question, and I will attempt to respond to it on another occasion. For now, I ask for your opinions on the matter, and I will register my intuition that it is not just for the state to treat one group of persons as mere means in order to prevent criminals from treating a different group of persons as mere means. This is a case of strong paternalism, which in other instances is more blatantly objectionable, though in this case it is not. More should be done to prevent sex trafficking, but it seems unjust that voluntary sex workers should be put in danger to do so.