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March 14, 2008

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Roach

If Eliot Spitzer were anyone else, this point might be more persuasive: "If he broke any laws, these are laws that never should have existed and that have been repudiated by sensible nations."

Society is not the sum total of individual wants. Society is a real thing, it has a history, it has a reality, and, to preserve itself in coherent form, it has a right to impose certain standards on behavior through its laws. There is something anorexic in Martha Nussbaum's account of public and private life and the content of sexual morality, which she equates with whatever consenting adults wants. Society, however, has needs, not least to channel and regulate the powerful passions inherent in sexual behavior. It can do this for its own preservation, public health, or to make people behave in a manner befitting a rational person. It is perfectly sensible that prostitution is illegal, and decadent Europeans--the authors of two world wars, an "inquisitorial" judicial system, atonal music, Benneton, "hate speech" laws, and widespread involuntary euthenasia--are not people that real Americans should worry too much about imitating or impressing.

Consider the effects of laws, even laxly enforced laws, on standards of public behavior. The law’s “teaching of community sentiment” function is useful, time-tested, and does not necessarily lead to an oppressive state. Even with prostitution being illegal, New York City is a far cry from Salt Lake City.

Laws have some value simply by being on the books. Not every law needs to be aggressively enforced to have value. Most laws are valuable because they limit the open and shameless pursuit of anti-social behaviors, such as drugs and adultery. You would agree, I hope, that adultery is anti-social, and its condemnation is not simply a relic of puritanism.

Of course, some notion of the public and private realms should temper how laws are enforced and how “morals legislation” should do its work. In other words, legislation against gambling halls, strip clubs, sodomy, or whatever--setting aside the merits of any of these meritorious laws--tends to prevent the public and open exercise of these thing, even though it's well known all will go on in private to some degree in spite of their illegality.

None of these laws unduly interferes with private behavior, which should continue to have its traditional constitutional protections. This is important because public and open behavior tends to make things that are otherwise condemned more familiar and therefore more common; these behaviors will be more widely and openly practiced if they can be pursued with the blessing of the laws.

The community, by permitting something like prostitution in its laws, may be seen not to condemn these behaviors at all. With the decline of religion and public discourse, law is often the last strand of public morality to which anyone can appeal to as a standard.

Thus, if the effect of these laws is merely to move certain behavior into the private realm, that would count as a victory and a useful outcome--consistent both with people’s rights and the community’s need for order and standards. I believe this is a fair assessment of how much of this legislation has worked both in the past and in the present. For anyone but a public figure from whom more can be expected (and a public figure dumb enough to conceal obvious unlawful wire transfers), the weight of the anti-prostitution laws is very light indeed.

A broad notion of tolerance for what goes on in private, even for petty illegal behavior, that does not openly show contempt for the community and its laws, is an important concomitant of a free society. But to recognize this need for protection of the private realm does not require the abandonment of time-tested and well established laws that diminish the frequency, open-ness, and acceptance of anti-social behaviors like adultery, prostitution, and worse.

There is a nihilism behind Ms. Nussbaum's article that refuses to recognize the right of the community to impose any standards at all. This notion of law simply will not do, and it should be rejected, as too should her strawman argument about puritanism.

Todd Henderson

Professor Nussbaum's claim that the only laws that Spitzer broke should not exist is extreme. Whether one agrees with her claim that there is a moral equivalency between selling one's voice and selling one's sexual body, the laws that rightfully brought down Spitzer have nothing to do with prostitution.

Although the full extent of his crimes is unknown, the US attorney, who must believe he has a good case otherwise he would have given in to Spitzer's request for a plea, is looking into the willful violation of numerous non-sex laws, such as money laundering, financial structuring, conspiracy, mail and wire fraud, abuse of campaign funds, etc. Surely Professor Nussbaum doesn't believe these laws should not exist.

So her claim must be that the predicate for these alleged violations is untenable, and therefore all that surround the morally OK act should be OK. But that just can't be right. If society has a morally suspect law, it might still be sensible for those that oppose the law to want to discourage ancillary behavior related to it. For example, imagine that society banned the sale of all art. An artist who makes a sale is questioned by the police. He lies. A trial ensues, and the artist commits perjury. Is it really "very ugly" to think that lying to investigators or to a jury should be punished?

This is, in a sense, the case against Martha Stewart. I personally think about insider trading (in most cases) what Professor Nussbaum thinks about prostitution. But when Martha Stewart lied to the FBI, she invited and deserved her punishment.

Kevin Learned

What this country needs is more puritanism, not less. With more puritanism, we would have fewer instances of husbands and fathers leaving their wives and children when a "better option" comes along. We'd have fewer instances of talented professionals making career decisions based on sexual desires rather than rational thought and respect for ones colleagues and peers.

Andrew Lloyd '97

I'm against these sorts of laws, but in precisely the same way I'm against too-low speed limits which don't make sense in certain driving conditions. Nevertheless, if I get popped for doing 85 in a 65 zone, I don't feel a great need to rail against the insufficiently-European style of our laws.

It's a law and while its one that ought to be changed, it puts me in mind of the late Ian Richardson's portrayal of Francis Urquhart who, faced with a coke-addicted underlying, dresses him and down and notes, almost as an aside, "I know this is going to sound old fashioned, but isn't it illegal?"

Slapshot

"If Spitzer broke any laws, they were bad laws, laws that should never have existed."

Such as laws governing the use of campaign funds? That's what they're going to be looking hard at over the next few months...and this may unearth other illegal activities such wire fraud. I'd say that Ms. Nussbaum's comments are premature.

Also, I cannot get on board with "prostitution is legal elsewhere so let's forego the illegality of it here" comment. You're speaking of the Governor of NY (and former Attorney General), whose job it is to enforce the laws as they stand now and work in the public trust. Mr. Spitzer has aggressively gone after lawbreakers regardless of Europe's take on the infractions, so why should he be given a pass?

I would think a professor of law and ethics would appreciate the responsibility of this office and the rule of law...it's a bit too early to exonerate Mr. Spitzer.

Roach

I hear they do a lot of "blow" in Europe too. Oh yeah, they don't believe in God and sometimes, in a fit of pique, start murdering one another en masse. Ask the Serbs.

For now, though, they're content with murdering our culture with Kraftwerk, Gerhard Richter, occasional riots, Roman Polanski (another victim of "puritanism"), and that crummy pyramid at the Louvre.

Walker

This article is inane on numerous levels. I agree with the Professor that prostitution's illegality is a mistake: Whenever black markets arise, the public is likely better served by government regulating and taxing the market than by making it illegal. But Spitzer HIMSELF PROSECUTED PROSTITUTION RINGS. The irony is too great to bear. Surely even enlightened Europeans understand the vile pathos of hypocrisy? Spitzer is the greatest of hypocrites. His public humiliation does not only make sense from a puritanical point of view, but also from a practical and philosophical one.

LAK

I wonder if prof Nussbaum meant to argue anything but the prohibition against paying for sex is a bad law. I would imagine she agrees with prof("insider trading should be legal") Henderson, that shady money laundering and the other (idiotic in this case) attendant behavior done to hide illegal activity is properly illegal and worthy of punishment no matter what the predicate offense.

But let's be clear, what the law should be and how people should ideally behave and treat each other are different issues. It is absurd that prostitution is illegal in our society.

Let's grant that prostitution is ethically and/or morally repugnant. That the vast majority of it is not some healthy exercise of transcendent, empowered post-puritanical sexuality and freedom of contract but rather a function of the distribution of wealth and poverty, patriarchy, and the realities of economic opportunities for women (and some men). That those women who go into it are often abused themselves and children, often have mental illness and addiction problems, often are poor and struggling, often subject themselves to STDs and violence. Granted, the fact is illegality does little to effectively deter the behavior. It's nearly impossible to enforce. Failing to legalize and regulate it on the other hand does allow even more exploitation of women. It allows for unsafe sex. It allows pimps and shady websites alike to exploit and wrongfully profit off of the sex worker. It allows women with mental and physical disease to harm themselves and others. And it allows for even more violence as the illegality of prostitution doubtlessly deters the reporting of any violence associated. Given the realities of the world as it is, (I think I read somewhere that around 1/3 of American men pay for sexuality at least once in their lives) legalized, regulated prostitution would be better for everyone (including the gov - tax dollars, no more absurd enforcement costs and health care saving) Law should acknowledge reality and promote social utility here no doubt. And I don't think legalizing it will change the social stigma or other norms associated with it much either.

That being said, prostitution is still wrong and should be frowned upon and discouraged as policy, and hopefully phased out of society with continued social justice and economic progress. A Nussbaumian appeal should probably start with noting prostitution is a stark example of treating another human being as a means to your ends rather than an end in themselves, or even that given the underlying economic realities, you're making some of the least well off even worse off. Justice as fairness and all. Prostitution is largely a symptom of unhealthy gender constructs in our patriarchal consumer culture. Of egotistical, narcissistic men with poorly formed superegos that can't handle their biological impulses and sadistic desires, and masochistic exploited women (and men) who often suffer from deep alienation and economic hardship.

In this regard, it is perfectly fine in my opinion to run a Governor out of office who is caught with a prostitute. What does it say about you that you are willing to cheat on your wife? A non-puritanical, healthy, realistic, transcendental, postmodern orientation toward sexuality certainly may not involve only f-ing your wife/partner the rest of your life, but cheating, sneaking and lying about it to your loved one certainly isn't a noble way to go about it, and raises serious ethical concerns in my book. It's gross and kind of pathetic. I want leaders in office to love someone they marry with the humility and discipline enough to be able to resist their base biological urges and petty psychological desires.

The strange thing is I'm far more Judeo-Christian in this regard than Nussbaum, though I'm the secular humanist who can't stand religion, and she's the converted Reform Jew who makes plenty of room for religious tolerance in her theory.

Monogamy good. Religion bad.

Roach

It would be nice if folks like Nussbaum and Stone, instead of just making Olympian pronouncements of yesterday's liberalism, would actually engage in a debate and defend their indefensible ideas from time to time. Of course, for all I know, this is "mandatory patriarchy" or there's some other reason Nussbaum doesn't play ball, but it basically strikes me as obnoxious and haughty . . . much like the Europeans she loves so much!

colson

Admittedly, I find this thread humorous. I can't stand Spitzer or Nussbaum's kinder words about his abilities, but I agree with her point.

Roach - your write and write well but your arguments are largely lacking. the premise of your arguments tend to stem from your personal view of the world being right, and others being wrong. You're arguing a subjective point based on very little that I can find.

Nussbaum's arguments are derived from the school of Natural Rights, a common viewpoint from the age of Enlightenment and the period of our country's founding.

Simply because you believe prostitution may be morally or ethically repugnant, your arguments have absolutely no substance - you haven't established that the act of paying someone for sex is right or wrong. The simplest and most effective repeal of your argument is this: I don't find any moral or ethical problems in prostitution. To that end, we simply disagree. I have no cause to substantiate my argument because you are arguing a subjective meaning.

James Joseph '94

Professor Nussbaum,

I respectfully disagree with your piece for several reasons:

(1) You begin by claiming that “[i]f Spitzer broke any laws, they were bad laws, laws that should never have existed,” and thus that if he had committed the same acts in European countries where prostitution is legal, it “would be laughable to accuse him of a betrayal of the public trust.”

But the merits of the anti-prostitution law (or any law Spitzer may have broken) are irrelevant. The key point is only that they exist. If a public representative knowingly breaks the law (beyond a minor civil offense) for any reason other than civil disobedience or some legitimate affirmative defense, then that person is presumptively unfit for a position of public trust. This point is true regardless of whether the law in question is smart or dumb, wrong or right, or concerned with sexual, financial, violent, racist, or any other kind of behavior.

I wish, for example, that I could pay a nanny in cash and that both the nanny and I could ignore income and employment taxes. But the fact that doing so is illegal, and that this harebrained illegality effectively discriminates against poor women, does not alter that a knowing violation of the law renders one an impossible choice to become the nation’s chief law enforcement officer. (Ask Zoe Baird.)

Surely the logic of this point is not unknown to your European colleagues. I would be gratified if you could clarify to them that this, rather than the sense or nonsense of anti-prostitution laws, is the real issue presented by the Spitzer defenestration.

(2) You may very well be correct that Americans are overly susceptible to Puritanical flapping and squawking about sex and prostitution. I can easily imagine some ordinary politician -- even an unmarried Nevada Democrat who never campaigned on family values and who consummated the transaction in his home state, where it is legal -- getting the boot from office because the only thing he did was pay for sex.

But in Spitzer’s case, the issue of sex is a diversion. He would have suffered the same fate had he involved himself as extensively in any other kind of crime. While technically Spitzer was hounded from office for the criminality described above, the reason that this hounding proceeded with such enthusiasm (and unanimity) is that Spitzer was a widely reviled personality, an irresponsible officeholder, and most importantly, a shockingly gigantic hypocrite. Far from the picture you paint of a “gifted and dedicated politician,” Spitzer presented all the charm and fairness of a playground bully, all the false righteousness of Elmer Gantry, and all the prosecutorial humility and restraint of Torquemada. The self-proclaimed “steamroller” contorted a raft of laws in order to browbeat, extort, and self-promote, and usually in direct contravention of the public interest he loudly and self-righteously proclaimed to further. For many, the only thing more gratifying than his comeuppance was relief at his (literal) disempowerment.

Now, I grant you: most Americans like to see thugs get a taste of their own medicine. But is it your view that Europeans differ in this regard?

(3) As a professional philosopher frequently in the company of lawyers, you probably have more experience than most in assessing the morality of conduct by the actor’s own moral criteria. We may repeat that exercise here, and ask you to judge Spitzer by the moral and legal standards that he himself promoted. You may think that anti-prostitution laws are wrong (and you may be right), but until last week Spitzer was one of the most vocal and effective opponents of your view. Spitzer was undone by the very laws that, to the ringing applause of the anti-prostitution caucus, he zealously and righteously enforced, and in some cases even suggested. It was not so long ago that by his words and actions, Spitzer would have been as likely to befuddle your European friends as the rest of his benighted backwater countrymen.

(4) Speaking of your European friends, I wonder why you appeal to their authority. I was saddened to see your references to the “very ugly light” of our country, and the “mean-spiritedness” that is “quintessentially American.” I am no mindless flag-waver, but I don’t think that “mean-spiritedness” is quintessentially American at all. It has been my own experience that as a group, and for all of their many faults, Americans are generally more friendly, tolerant, generous, curious, and forgiving than most. I have found this to stand in marked contrast to many Europeans, and I regret saying so since I am half European myself. Notwithstanding my many encounters with delightful and good people in Europe, I have also met there with enormous quantities of bigotry, vitriol, parochialism, irrationality, and meanness. And for what it’s worth, I refer here to Europeans living today, and not the gangsters who exiled my Catholic ancestors from public life for marrying those of my Jewish forbears who were subsequently stuffed into various ovens around the Continent.

(5) But this is a minor point. The more pertinent question is why you seem to imply that there is something innately superior about European *law* that is worth appealing to. As has been noted in other comments, European law does not beg our slavish admiration or imitation. When you speak at European conferences, do you suggest that Europeans are “ugly” and “mean-spirited,” or refer to the confusion of your American colleagues, at the way in which Europe has executed laws regarding abortion, libel, bank secrecy, corporate disclosure, free speech, personal privacy, the exclusionary rule, the prohibition on double jeopardy, the separation of church and state, or trial by jury?

You devote the bulk of your post to whether prostitution should be legal or not. This is an interesting enough topic that, two decades ago, I wrote a college entrance essay on it. (It happened that I came out on the same side that you do, and I wonder to this day whether that is why the school in question rejected my application.) But as provocative as the issue may be, it is utterly beside the point in the Spitzer case. If you’re looking for martyrs to Puritanism, then keep looking: it is not Hester Prynne whom Spitzer resembles, but rather Tartuffe.

Best regards,

James W. Joseph (Law ’94)

Roach

My goal was not necessarily to defend every particular of anti-prostitution laws, but, frankly, since they are laws, I think the burden of proof is on those who would change them. And, even if they are unwise, I think there is no excuse for breaking them when one is in a law enforcement/executive position.

I did mean, however, to note that a free society is compatible with certain kinds of "moral legislation" and that these laws, even if broken often and rarely enforced, still serve a valuable function by preventing a runaway moral rot by the open practice of things that are now illegal (and therefore to some degree underground). Laws are refracdted through our strong civil liberties traditions, and when so refracted the potential excesses of any such laws are substantially reduced.

I think the obvious reasons prostitution should be illegal are that it degrades the buyer and the seller, it undermines the useful social standard of channeling sexual behavior into monogamous, lifelong heterosexual marriage, it unleashes the pursuit of more and more varied sexual pleasures that can lead to violence and oppression of women, and it has long been a law, and laws long on the books should not be disturbed by overly clever rationalist formulae, such as those sputtered by the adolescent-sounding Europhile Ms. Nussbaum.

Catapult

Sounds to me like Roach and other puritans are in dire need of a wild hedonic weekend to release some of that pent-up sexual repression.
And the snide cheap-shot Europhobic comments are unbecoming. Still boycotting French wines? You better super-size that order of Freedom Fries.

trevjen76

This is beyond stupid. I wish her and big daddy Cass would move to Europe.

The only comment about this stupid piece I want to make is to point out that these "laws that never should have existed and that have been repudiated by sensible nations" were perfectly fine in Spitzer's eyes. He ruined lives (many he attacked turned out to be innocent) and prosecuted people involved in the same sorts of crimes he committed. Come on Martha, where does the liberal lunacy end?

Wethal

The lawbreaking that got Spitzer caught was not prostitution; it was money-laundering. Nussbaum doesn't explain why laws against money-laundering, which are used to catch drug dealers and terrorists, are "bad laws."

Overlooking a critical fact to make your case? Bad lawyering, Martha. But then you're not a lawyer, anyway, just a Ph.D.

BAC

The post is out of touch with reality from the opening sentence. Here's how Prof. Nussbaum should explain the scandal to her "European colleagues."

First, Mr. Spitzer was not considered "one of the nation's most gifted and dedicated politicians," but was in fact despised by a large number of people. The NYSE trading floor cheered when the new broke. Spitzer's political enemies on Wall Street seized an opportunity to kick him out of office.

And Prof. Nussbaum needs to check her facts (and history books) when she asserts that Spitzer "was hounded into resignation by a Puritanism and mean-spiritedness that are quintessentially American."

Quintessentially American? Then how do you explain the following:

-- Larry Craig is still in the Senate;
-- Barney Frank is still in Congress;
-- Jesse Ventura never resigned;
-- Hugh Grant still makes movies;
-- Rob Lowe is still on TV;
-- Dick Morris is still in politics;
-- and prostitution is still legal in Nevada.

How did those mean-spirited American Puritans fail to give the Spitzer treatment to all the examples listed above? Perhaps those awful Puritans aren't so powerful after all?

Roach

Perhaps we should add to that list:

Martha Nussbaum still has a job.

Caroline

The hostility towards the man has little to do with his extramarital infidelity, everything to do with his risible hypocrisy.

The notion that Europeans transcend these matters is laughable as well. Did anyone at Nussbaum's conference recall German chancellor Gerhard Schröder's resignation two short years ago? Nussbaum and her colleagues may be interested in the following article:

http://www.guardian.co.uk/world/2005/jul/09/germany.lukeharding

Perhaps one's memory is damaged in some way by condescension?

Rachelle Young

Difficult to believe you are licensed to practice law much less pretend to teach it. It wasn't just the sex. The governor was contributing to a criminal enterprise that could have compromised his ability to govern.

You don't get that?

By the way, if he is so smart, why did he get caught by such stupid mistakes?

LAK

Rachel,

Martha Nussbaum isn't a lawyer. And she doesn't really teach so much law as she does legal philosophy. She also happens to be one of the smartest human beings on the planet, and I don't throw that around lightly.

I'm not sure how contributing to a criminal enterprise through getting a hooker "compromises his ability to govern." Indeed, I'd suspect it actually helps him, what with the relief of stress and all. It does reflect poorly on his character, but it certainly has little to do with his ability to manage a budget.

Why did he get caught if he's so smart? True its idiotic to not use cash. But it was the banking industry that reported his transactions to the Feds. Spitzer made many an enemy in the world of finance, you know. I think you would be foolish to argue Spitzer isn't a brilliant guy and a substantive politician. He exposed a lot of fraud and greed on Wall St. and it is a shame he was ruined for having sex with a hooker, even if he did move money around to try to hide it.

Political Umpire

I find the author's depiction of the morality of prostitution rather bland and unrealistic (just like being an opera singer? Would you be happy to usher your daughter into such a career ...?) Interestingly the prostitute in question wasn't poor or uneducated.

That said, I don't think anyone gains through banning prostitution, nor even from its social stigma, and to hound politicians out of office because they experiment in that area is short sighted - unless, however, they then lie in public about it, as invariably seems to occur. Britain's top businessman, Lord Browne (BP chairman and Goldman Sachs director) had to resign from his enormously lucrative and prestigious roles, not because he'd had a relationship with a rent boy, but because he'd tried to mislead a judge about having done so.

Alum

While surely some of the outrage over Spitzer exists because of moral qualms over prostitution, the hypocrisy of his behavior generates the most upset. Spitzer targeted this exact same behavior and vehemently spoke out against the same actions he would be uncovered for committing years later. The pros and cons of the legality of prostitution may be an issue for reconsideration and discussion, but is not at the heart of people's disappointment in Spitzer.

Chili

I find it peculiar that anyone would dispute that the United States (and Canada, too) is far more puritanical than the rest of the developed world. Isn't it odd that Jack Bauer murders and tortures, but one can't expose Ms. Jackson's breast? Why can a solider be deployed to his/her death at 18, but can't buy a beer until 21? In real life, the bar that portrayed the "Bada Bing" opeartes in a jurisidction that mandates that the dancers' nipples remain covered. If these aren't puritanical values, I don't know what are.

I agree with the criticism that Spitzer's case was precipitated by financial improprieties, and that he 'made his bones' by battling this particular vice. Moreover, a as a legislator he has little legitimacy in breaking a 'bad' law. This isn't Dr. Morgentaler performing abortions in violation of the Criminal Code.

Lastly, appeals to authority stop being persuasive after reaching puberty.

Sam Adams

Its interesting to compare public opinion in the aftermath of the Spitzer revelations, and the admission today by Paterson of infidelity.
While the public was baying for Spitzer's blood, the overwhelming reaction to Paterson's confession is, "Who cares ? Move On !".
The moral of the story: Its not about the morals. Its about sado-masochism. The public likes nothing better than to see highly-achieving, bold go-getters like Spitzer publicly humiliated. The sins of the softies (like Paterson) are forgiven, if not ignored.
Take home message: If you want to succeed in
public life (and have romps on the side), remind the public of the loser in them.

jerry shapiro

Silly me. I thought reading the UofC Law School blog would be enlightening and the comments would be filled with rational, well thought-out arguments both pro and con. It never occurred to me that the idiocy I have read in these "comments" would have any place on a law school blog. In fact, I wouldn't expect to find this level of "argument" on a high school blog. Go figure. The academic mire truly is a world apart.

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