How the Classical Idea of Justice Ought to Underly the Debate Over Victimless Crimes Such as Prostitution

In the wake of the Elliot Spitzer prostitution scandal, a number of people have renewed the debate of whether or not prostitution is a victimless crime. An op-ed piece in the New York Times by Melissa Farley and VictorMalarek titled The Myth of the Victimless Crime frames the debate in the usual way.

In response to the news about Governor Spitzer, pundits are wading into the age-old debates over whether prostitution is a victimless crime or whether women are badly hurt in prostitution no matter what they’re paid.

But this very framing precludes the very question of whether or not prostitution is a just act by focusing on the consequences of the act as the moral determinant rather than the act itself. On the one hand, those arguing that it is a not victimless crime are arguing that justice is harmed if, and only if, some other person is harmed and on the other hand, those who are arguing that it is a victimless crime are arguing that any mutually activity of two or more adults to which both voluntarily consent is just regardless of the act. In both cases, this framing presents a relatively modern view and at odds with most traditional understandings of justice.

For hundreds, if not thousands of years, the meaning of justice was no huge controversy in western thinking. In the Nicomachean Ethics, Aristotle gave voice to what was then the consensus view, justice is the process by which both the state and the individual come to be what they ought to be.

We see that all men mean by justice that kind of state of character which makes people disposed to do what is just and makes them act justly and wish for what is just; and similarly by injustice that state which makes them act unjustly and which for what is unjust. [Aristotle, Nicomachean Ethics, Book V].

While what follows that observation in the Ethics is a highly nuanced discussion of various forms of justice and injustice, the most relevant observation to the present discussion is that justice was viewed as something external and objective, it is an ideal to be striven for, a goal to be achieved that is not defined by whim or whimsy but by our very existence as both individual human beings and as citizens of a political order whose harmony should be a reflection of the order of the cosmos itself.

And this view predominated within the Graeco-Roman world for millenia. It was not until the advent of the Renaissance and Enlightenment that this view began to be challenged in the remains of the western Roman empire, the most explicit attack coming from Niccolo Machiavelli in The Prince in the sixteenth century. But this view was also under assault in the eastern Roman empire by the twelfth century. Angeliki Laiou and Cecile Morrisson note an innovative view of justice expressed in a commentary on Aristotle by Michael of Ephesus, he is said to find

a new role for Aristotle's corrective justice: it is to guarantee the contracts which have been concluded with the free will of the parties, a truly original approach. Thus, the Byzantine state, formerly conceived as the ``judge'' who guarantees just exchange, becomes the legal authority that safeguards the sanctity of private contracts. [Laiou, Angeliki and Morrisson, Cecile. The Byzantine Economy. Cambridge University Press. 2007. p. 163.]

The ``just exchange'' referred to by Laiou and Morrisson does not mean what we moderns probably take it to mean at first glance, honesty in transactions, but to the inherent fairness of the transaction which was held to be independent of the assent of both parties to the transaction. Up until this time, the Byzantine state was concerned that any deals that were struck between private individuals were fair. For example, a widow who had fallen on hard times might be willing to assent to selling her land at a vastly reduced price, but that that price may be far less than the land is worth, and consequently, the transaction might be inherently unjust. In such situations, citizens had the recourse of appealing to the Byzantine state to enforce justice. But from the twelfth century on, this aspect of jurisprudence became less and less prevalent as the state leaned towards seeing itself as guarantor that contracts would be enforced rather than an overseer responsible for ensuring that the citizens of the state lived just lives.

Those that argue that such crimes as prostitution are victimless, i.e. they are not really crimes at all, are following this innovation in the understanding of justice. Rather than pointing to an objective, external good, justice becomes the enforcement of the state of performance on a contract which was voluntarily entered into. If one adult is able and willing to consent to trade sex for remuneration, and some other adult is willing to pay for that sex, so the reasoning goes, the state has no business in getting involved to tell the parties involved that their transaction is unjust. And, truly, if this is what justice is in its entirety, the guarantee that contracts will be performed on, then there is no room for morality within the state's enforcement of justice. What is legal and what is just are both reduced to what is agreed upon between consenting adults.

But this view ends with no way to condemn the actions of Armin Meiwes who ran a classified ad to find a volunteer willing to let himself be eaten. In 2001 Bernd-Jurgen Brandes answered the ad and arranged to meet with Meiwes. At this meeting Meiwes removed Brandes' penis and cooked it before he and Brandes ate it together. Meiwes then killed Brandes, butchered him and stored his remains in his freezer in order to be eaten at a later date. He captured the entire episode on videotape leaving little doubt as to the particulars. This gruesome transaction was voluntarily entered into by both parties. No coercion was involved. If justice is nothing more than performance on what is agreed upon, then we must accept that the killing and consumption of a human being in such a fashion is, in fact, just. But it seems to me that such deeds shock the conscience.

And, indeed, the problem that most systems of morality, both ancient and modern, have with such a view of justice, is that human rights become chimerical. Most people who hold to some system of justice hold that there are certain base human rights which cannot be traded away, even voluntarily. The US Declaration of Independence considered these things to be obvious to all.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

While not limiting the truths which are self evident to be life, liberty and the pursuit of happiness (the last of which an earlier draft had as `private property'), the US Declaration of Independence does say that these three thing are indisputably among those truths which are self-evident, they are among the truths which, once one understands them, one agrees that they must be the case. But if truths such as these are inalienable, they cannot be traded away, even voluntarily. But if we agree that such inalienable rights do exist, then we must reject the notion that justice in its entirety consists of enforcement of the performance of contacts. Justice must also consist, at least in part, of something external and objective that guarantees that every individual within a society that enforces the inalienable rights of individuals.

If justice is, at least in part, something external and objective, then it is rather obvious how those who say that justice consists in its entirety of enforcement of performance on contracts must be wrong to some extent. But what is more subtle is the observation that such a view of justice also implies the same view that Farley andMalarek advocated in their condemnation of prostitution, that the answer to the question of whether an act is just or not lies in the consequences of that action rather than in the action itself. But this view is also at odds with most moral traditions. Specifically, with regards to prostitution, it is not the harm that is done to the women and men selling themselves as sex objects that brings so many societies to forbid prostitution. Rather, it is the idea that there is something sacred about sex that leads most societies to ban prostitution. This is not to say that there are not horrible effects that frequently result from people prostituting themselves out for money. But rather it is to say that even if there were no horrible effects, it would still offend justice. Prostitution, aside from religious arguments against it, violates the Aristotelian ideal of virtue being the golden mean between two vices, in this case chastity being the mean between prudery on the one side and profligacy on the other.

One could object at this point that the two things are equivalent. Let us stipulate for a moment that prostitution does indeed cause some harm to prostitutes. (While I certainly agree with this proposition, I would be surprised if everyone who reads would also agree. There are those who object to this idea for a number of different reasons, some more well thought out than others.) One can argue that if prostitution prevents a prostitute from achieving the fullness of a human person, then it reduces to harm and, consequently, what we are really objecting to is the harm that is done to the prostitute. But it must be observed that even if prostitution is harmful in general because it prevents prostitutes from achieving the fullness of human life, it is possible that there are specific prostitutes who are incapable for one reason or the other of achieving that fullness. In such cases, there is no actual harm but only the potential for harm. If the lives of these individuals had played out differently, it would be that prostitution had ended up harming them but as it is, there is no actual harm.

Another way to make the same point is the issue of human rights. Most societies do not see human rights as a function of consequentialism, but as something inherent to human nature. It is not the harm that comes from torture that offends us but the idea that there is something about human dignity that implies that human beings ought not to be tortured. It is no less unjust to torture someone who possesses great amounts of interior strength such as John McCain who survived being tortured in Vietnam without breaking than it is to torture someone who will crack under the tremendous physical and psychological pressure. Hence, it is not the harm that actually follows from such things as prostitution that makes them just or unjust acts, but whether or not the action itself is just or unjust.

One may object to this view that such a conception of justice is inherently religious in nature and that law in liberal democracies is, or ought to be, a secular affair and have little concern for morality as defined by the Christian tradition. But one does not need to appeal to religion to find criteria by which to determine if an act such as prostitution is moral or not. One of most strictly materialist moral systems is that of Karl Marx who presented a moral argument against industrial capitalism based on the criterion that it alienates human individuals from their identity as a species-beings. In this critique, it is the material basis of what it means to be human that defines morality. There is room in such a definition of humanity, independent of religiosity, to condemn prostitution. And in fact, virtually every militantly atheist society of modern times has condemned prostitution.

Of course, this is not to say that all secular systems of morality condemn prostitution as an injustice. It is not even to say that religious systems of morality condemn prostitution as an injustice. After all, history tells us that many religious systems included prostitution as part of the cultic rituals. My point, rather, is to suggest that the most frequent framing of the debate on on so called victimless crimes sets the dialog down the wrong path by assuming a relatively modern and innovative view of justice that is at least somewhat at odds with the way that most people understand justice, at least in the western tradition and that the question of what justice plays a tremendously important, and understated, role in the discussion of victimless crimes. And while I will gladly concede that classical view of justice which I present as an alternative is not without its own flaws, that discussion will have to wait for a different day.