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Free Market System and Legalized Prostitution

March 12, 2012

I was engaged in an online discussion with someone who asked whether I want prostitution regulated because of some alleged beneficial factors like more taxes, sanitation and the need to protect people or clients from sexually transmitted diseases.

Here’s how this conversation started. I was asked the following question:

“In case prostitution becomes legal in the Philippines, would you want it regulated? If it were regulated then sex workers and brothels and other marketplaces of the flesh would need to pay taxes, health, sanitary permits and comply to age requirements on their businesses. Would you want that or would you want the free market to dictate the expansion of the prostitution industry?”

I found the topic interesting so I gave the following reply:

No. I don’t want prostitution regulated. Even if you regulate prostitution, just like gambling, people would still have the free will to prostitute or sell their body for money or for pleasure. The point is, as long as you do not transgress upon the rights of others, you should be free to do whatever you want to do with your body.

“If it were regulated then sex workers and brothels and other marketplaces of the flesh would need to pay taxes, health, sanitary permits and comply to age requirements on their businesses.”

Your premise is wrong and utterly flawed. Regulation is not the requisite of taxation, etc. I want it LEGALIZED. There’s a big difference between regulation and rights-protection. I discussed that issue here.

I believe that minors should not be allowed to prostitute themselves, and this is NOT an example of regulation. The basis for prohibiting minors from engaging in prostitution business is the fact that they’re not yet of age and that the system could be abused. Minors are supposed to be under the guidance and responsibility of their parents.

As to sanitation and health risks, etc. let the businessmen themselves embark on self-regulation. With competition, those that disregard sanitation and health risk issues would go broke, while those that promote or take care of these aspects would have more chances to succeed.

After a few days I received the following reply:

Just saw your reply. Points taken. I have not read anything yet about what makes a certain restriction a regulation.

There is no doubt in my mind that free market competition will correct these establishments who disregard sanitation and other safety measures. What concerns me is that the free market maybe too slow to react on such things. If a certain market place of the flesh is spreading the HIV virus, the free market and society will only react to this once there are already confirmed cases of the virus spreading from an establishment. We could have saved lives and ensured the safety of the workers, clients and society itself we just have a mandatory system to check health and sanitation.

My response is as follows:

Thanks for your reply.

You said: “There is no doubt in my mind that free market competition will correct these establishments who disregard sanitation and other safety measures.”

You also said: “What concerns me is that the free market maybe too slow to react on such things.”

I understand that. But here’s the deal, and this is what most pro-regulations do not actually understand: any business or establishment that produces or causes wastes, pollution or any kinds of harmful substances that can affect people’s health may be held liable under the law if the victims or affected persons seek legal recourse against the erring company or individual in court.

Remember that under a free market system, it is the function of government to protect people’s rights. This is not to say that people have a right to healthy environment, as what many environmentalists demand. Here, those affected persons may file a case against the polluting or erring company or business entity in court. The underlying principle here is that the action of that erring company is the ultimate and objective cause- or the primary cause- of the wrong or infraction committed. Without such ‘primary cause’, the wrong would have not been committed. A possible analogy here is that you cannot simply dump a load trash in front of your neighbor’s house and claim you have a right to do such thing in a free society. In a free society, no one has the right to violate any person’s rights.

So there are two SELF-REGULATORY PRINCIPLES that would prevent erring companies or establishments from committing crimes: 1) the principle of individual rights, and 2) the principle of competition. These principles would force companies to SELF-REGULATE. That is why a free society needs to have a strong court or judicial system, which should be impartial and whose representatives should embody integrity, probity, good conscience, competence, and clean track record.

The principle of individual rights tells companies or individuals that a wrong committed has its corresponding punishment. It is not society that makes any wrong (e.g., murder, homicide, theft, dumping of harmful substances, etc.) evil but the rights of community members. A law that makes a crime punishable merely recognizes the principle of individual rights. So here, a company or any person still has the free will to commit any wrong or crime (even with the presence of regulations), but it is the role of government to punish the guilty and protect the innocent. This is the most important relationship between the principle of limited government and the principle of individual rights.

On the other hand, the principle of competition presupposes (corporate or individual) survival. This is because economics is all about human survival. This means that a company or any individual entrepreneur ought to learn the ethics and principles of good business in order to survive. You cannot just offer substandard, harmful, unappealing, low quality products or services and then expect to survive in a highly competitive market. Observe that most incompetent companies turn to government for protection against competent companies. They use the power of lobby in order to destroy better companies in the market. This is just one of the economic evils that the free market systems seeks to abolish. The only role of government with respect to a nation’s economy is that of a policeman.

The laws of the markets or economics cannot be wrong. It’s because individuals are inherently SELFISH or SELF-INTERESTED when making consumer decisions. Consumers may be so gullible and stupid when it comes to electing their politicians, but they’re so intelligent, smart and alert when it comes to buying or patronizing products or services offered in the market. Thus, if a brothel owner wants to survive and succeed, he has to know what makes a profitable and viable brothel business possible. Just think of the most successful and most patronized brothels in Metro Manila. They offer ‘quality’ and ‘clean’ products.

As to the dreaded spread of HIV virus, I believe the government may enact a law to protect individuals based on the principle of rights. So this is NOT a form of regulation. This is why one needs to know the proper definition and concept of regulation and rights protection. Rights-protecting laws are usually found in the Criminal Code and Civil code. Regulations are mostly embodied in SPECIAL LAWS. Most laws against crimes (rights protecting laws) seek to punish CRIMES MALA IN SE, while most regulatory laws that seek to control or regulate economic activities, human behavior and even products or services were designed to punish CRIMES MALA PROHIBITA.

Mala in se is a term that that “signifies crime that is considered wrong in and of itself.” The latin words malum inse means ‘wrong in itself’. According to this source, “the distinguishing characteristic of crimes mala in se is not their severity, but that the citizenry feels they are morally wrong in and of themselves, and require no outside reasons to prove or justify their wrongness. For the most part, these are crimes that directly and visibly harm other people and their property, since it’s traditionally these kinds of crimes that inspire the most fervent moral outrage.” On the other hand, mala prohibita is a term applied to any action is criminalized strictly by statute and statutory law. The Latin phrase means “wrong because it is prohibited.” This means that it is the law that makes an act or a thing prohibited. This source states, “Crimes mala prohibita are usually those which incur no serious punishment, such as minor infractions and misdemeanors. However, the primary feature of crimes mala prohibita is not their lack of severity, but that they are acts criminalized by statute in an effort to regulate the general behaviors of society. As a general rule these do not include crimes that directly harm the person and property of others. Consequently, crimes mala prohibita do not usually carry powerful moral stigmas along with them. There is nothing wrong in itself with a Briton driving on the right side of the road, but it is still a crime malum prohibitum in the United States. Some familiar crimes mala prohibita are drug abuse, drunk driving, gambling, public intoxication, carrying a concealed weapon, and parking in a handicapped zone.” [Note: this was added to the discussion for additional information]

However, the lawmakers should be so careful in crafting this anti-AIDS law. In introducing new laws, they should be guided by the question: Does this law protect people’s rights? Possible issues or questions they need to consider are as follows:

  • Did the suspect or HIV-carrier conceal his/her health condition from his/her client (or any person)?
  • Did the suspect INTENTIONALLY infect his/her client (or any person)?
  • Was the client or any infected person aware of the suspect’s health condition?
  • Is the brothel owner aware of the health condition of his/her employee who infected a client or (or any other person)? NOTE: Here, the brothel owner may also be held responsible under the principle of VICARIOUS LIABILITY, being the one who employed and supervised the suspect. Yes, I believe that this principle of vicarious liability is valid and has basis in reality.
One Comment leave one →
  1. October 25, 2014 3:38

    Reblogged this on The Patriot Papers.

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