11 Women's Rts. L. Rep. 99 (1989)
Prostitution: A Feminist Analysis

handle is hein.journals/worts11 and id is 105 raw text is: Prostitution: A Feminist Analysis
BELINDA COOPER *

I. INTRODUCTION
In dealing with sexual issues, American law
must face the difficult conflict between public mo-
rality and individual rights. This conflict pits
those favoring the use of law to enforce tradi-
tional concepts of morality-the conservative
moralist view'-against those who would permit
individuals the greatest possible freedom to deter-
mine their own behavior, limiting law's interven-
tion in moral questions-the liberal individual-
ist position.'
A new generation of feminists has redefined
the problem, challenging both conservative mor-
alist and liberal individualist approaches to sexual
issues. These feminists often define themselves as
radical to distinguish their beliefs in particular
from liberal feminism. While all feminists by defi-
nition concern themselves with differential treat-
ment of the sexes, liberal feminists utilize liberal
concepts of equality in their struggle to increase

opportunities for women. They accept, at least
for pragmatic purposes, the existing framework of
legal thought as value-neutral. Radical feminists,
on the other hand, question the very bases of law
and society. For them, sex and gender, rather
than economics or politics or any other issue, pro-
vide the key to understanding the social order.
Male power is expressed and perpetrated through
society's treatment of sex. This power is embod-
ied in supposedly neutral objectivity, which in re-
ality perpetuates the male outlook on the world,
making this outlook the standard by which any-
thing different is judged. Thus the solution for
women is not to attempt equality within this
value system-an impossibility-but to develop
an alternate outlook on the world and to posit an
alternate set of values and approaches.3
Thus feminist scholars introduce an entirely
new element into the perennial conflict between
morality and individuality, public and private,

*J.D., Yale Law School, 1987. Fulbright/DAAD recipient,
1987-88. The Author would like to thank Andrea Stumpf for
early editing and moral support, and her family for everything
else.
1. One of the best-known proponents of the conservative
moralist view was Britain's Lord Devlin. Writing in opposition
to the positions on homosexuality and prostitution taken in the
Wolfenden Report, see infra, note 8, Devlin defined morality as
a fundamental agreement on concepts of good and evil that
unites a society; the absence of which can cause the society's
disintegration. LORD DEVLIN, THE ENFORCEMENT OF
MORALS 15, 22-25 (1965) [hereinafter DEVLIN]. According to
Devlin, Western morality is based on Christian ethics, which
have been accepted by society as a whole and are therefore
binding on everyone. There exists a type of moral social
contract that citizens agree to abide by if they wish to remain
part of the society. For Devlin, violations of this shared public
morality were as dangerous to the social fabric as was treason to
the political system. Id. Devlin's understanding of public
morality bears particular relevance to this article because he
wrote in direct response to the legalization of private acts of
prostitution.
2. See generally J.S. MILL, ON LIBERTY 141-87 (G.
Himmelfarb, ed. 1979) [hereinafter J.S. MILL]; Richards,

Commercial Sex and the Rights of the Person: A Moral
Argument for the Decriminalization of Prostitution: An Attempt
at a Philosophical Assessment, 127 U. PA. L. REV. 1195 (1979)
[hereinafter Richards]; Ericsson, Charges Against Prostitution,
90 ETHICS 335 (1980) [hereinafter Ericsson]. The Supreme
Court has recently shown a willingness, where sex is involved,
to grant traditional moral values precedence over individual
rights. See, e.g., Bowers v. Hardwick, 478 U.S. 186 (1986)
(allowing states to criminalize sodomy).
3. For more detailed discussions of radical and liberal
feminism, see generally MacKinnon, Feminism, Marxism,
Method, and the State: An Agenda for Theory, 7 SIGNS 515
(1982)  [hereinafter  MacKinnon, Agenda]; MacKinnon,
Feminism, Marxism, Methods, and the State: Toward Feminist
Jurisprudence, 8 SIGNS 635 (1983) [hereinafter MacKinnon,
Jurisprudence];  Scales,  The  Emergence   of   Feminist
Jurisprudence: An Essay, 95 YALE L.J. 1373 (1986); Pateman,
Women and Consent, 8 POL. THEORY 149 (1980); Finley,
Choice and Freedom: Elusive Issues in the Search for Gender
Justice, 96 YALE L.J. 914 (1987) [hereinafter Finley]. I will use
the term feminist throughout this article to denote the radical
feminist perspective, without meaning to deny or downplay
other points of view.

[Women's Rights Law Reporter, Volume 11, Number 2, Summer 1989]
 1989 by Women's Rights Law Reporter, Rutgers--The State University
0085-8269/80/0908

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