Law and Predictabilty

Analyse the English Legal System and its adequacy and responsiveness to contemporary society with reference to legal theory and social policy and the appropriateness of its operation in a particular context of contemporary society.

The English Legal System's traditionally Abolitionist approach to Prostitution has at best been superficial, at worst, confused and ineffective. Highly disparate views of the Law's 'morally paternalistic' role in society have led to legislation in this field that neither affords adequate protection nor effects punitively deterrent measures, and as such, is in desperate need of reform.

In the landmark 'marital rape' case R v R [1991], John Milmo Q.C. acting for the Crown, stated that "...Antiquity is no reason in itself to uphold an outmoded doctrine" (cited in UK law online, 1998:2). Lord Kinkel, in agreement, opined that "the common law is...capable of evolving in the light of changing social, economic and cultural developments..." especially with reference to the "...status of women..." which he suggested had "...changed out of all recognition..." from the previous century (1998:7). However, this 'modernist' approach seems not to have pervaded all areas of the law, especially those connected with the "...flourishing industry..." (Edwards, 1999: 403) that is Prostitution. More recently this "...trade as old as humanity itself..." (Hemani, cited in BBC News, 2001: 4) has been referred to as "sex work" (O'Neill, 1996:1), but remains subject to a legal system arguably replete with "...archaic draconian sex laws..." (Owens, 2001:3). Even the former Home Secretary has admitted in the Commons that the "current sex laws..." in the UK are "anachronistic and need wholesale review" (Straw, cited in Wintour, 2000:1). Clearly, this question is not restricted to purely 'positivist' legal argument, even though the 'Parliamentary Group on Prostitution Reforms' have stated unambiguously that their "...primary concern is [not] to make moral judgements..." regarding those people "...who participate in the sale or purchase of sexual services" but rather to deal with the "practical issues" (cited in Mills, 1997:2). This is illustrated by David Blunkett's recent referral to prostitution as a "quality of life" offence (cited in Broadhead, 2002:333).However there is clearly a consensus of opinion, based on the "...Natural Law ethic...rooted in the philosophy of Aristotle" (Thompson, 2002: 1) that 'moral law' should also influence and control human behaviour, with the development of this doctrine in later centuries leading to the belief that "...government has a vital role to play in imposing morality and social order" in order to minimise the potential damage caused by an "immoral permissive society" (McIlwaine, 1986: 1) This study therefore, will attempt to analyse the English Legal System's approach to Prostitution, both historically, and in 21st century Britain. In order to draw conclusions as to the effectiveness of policy and legislation in this field it will be necessary to refer to key legal writers and theorists, from both sides of the jurisprudence spectrum. This will hopefully allow for an attempt to decide whether the legal system should deal with prostitution from a 'morally paternalistic' perspective (Wade, 1972:1), allowing the "...lawgiver...", as advocated by Plato, to "...lay down what things are evil and bad, and what things are noble and good " (cited in Harris, 1997:133) or whether the move towards a more "amoral stance" (Mills, 1997:1) with protective legislation to "make provision for [prostitution] in our society" (Campbell-Johnstone cited in Mills, 1997:2) would result in an "immeasurably more straightforward and effective" result (Clegg, 2002:2). It would seem prudent at this point, to firstly define the "social phenomenon" (Mak, 2002:6) of Prostitution, in legal terms, and look briefly into its long history, from both a legal and social perspective, in order to set this study within an historical context.

The Oxford Dictionary of Law defines prostitution as "The offering of her body by a woman for sexual intercourse or other sexual activities in return for payment" (Martin, 1997:364). This is echoed in the Chambers Dictionary as being defined as the act of performing "sexual acts or intercourse in return for money" (Higgleton, 2001:621). O'Neill, in her paper on the "professional prostitute" refers to the "very cultural practice of prostitution", stressing its universality. (1996:2) Bindman, in an attempt to 'redefine' the term refers to "commercial sex workers" and emphasises the need to consider 'sex work' "along with other forms of economic activity" (Bindman, 1997:4). Perhaps somewhat less idealistically, Andrea Dworkin, illustrating the radical feminist perspective, describes prostitution as "intrinsically abusive ...the use of a woman's body for sex by a man..." emphasising the fact that he "...pays money, he does what he wants" (Dworkin, 1994:1). She defines a prostitute in far less romantic terms than the empowered 'sex worker' of Bindman, describing her in terms of a "...sellable commodity...a mouth, a vagina, and an anus" (1994:2-3). Niki Adams, spokeswoman for the English Collective of Prostitutes, also refers to a rather "Kantian moral analysis" (Bix, 1999:181) of prostitution, alluding to the "economics...of autonomy and consent" (1999:181) by saying that when a "man visits a prostitute, it's a very straightforward exchange, like a business transaction...he can go straight for the sex" (cited in Pickstone, 1996:167). Pickstone also cites Freud, though somewhat simplistically, by stating that men are attracted to prostitutes as they can "indulge their animal natures - let their testosterone have its fling" (1996:166). This attitude however, would seem to give rise to Barry's 'Dworkin-esque' definition that prostitution is a "terrorist model of female subordination" (Barry, 1995:226). She also claims that whether viewed from the liberal perspective as a 'sex-worker' or from the feminist viewpoint as a victim, the "adult prostitute woman" has always been a "social, legal throwaway, turned over to sex commodification without any other recourse" (1995:227). Before looking at whether the 'morality' question has, or should affect the laws governing prostitution, it will now be necessary