Human Rights: 'Actively and Ceaselessly Creating' a Market for Sex Work

The old left and right have much to agree on

On 14th September 2023 the European Parliament issued a non-binding resolution on prostitution in the EU, which calls on Member States to put in place a Nordic Model for the abolition of the sex trade. The aim of the Nordic Model is simply stated: decriminalising prostitution in order to help prostitutes ‘exit’ the sex trade, while criminalising the buyers of sex, pimps, and brothel-owners so as to destroy the market.

I briefly alluded to the report which gave rise to this resolution, and the subject of human rights and ‘sex work’ more generally, in a previous post. But that report really deserves a reading of its own, because it opens up to reflection one of the longest standing and most important left critiques of human rights - and, in doing so, reminds us that Marxists and conservatives often have much more in common than they think. This, as the report itself demonstrates, can mean that they end up on the same side in the debate about ‘wokeness’.

The report, authored by the Parliament’s Committee on Women’s Rights and Gender Equality, on the face of it makes many of the arguments one would expect such a body to make about prostitution. Here is an exerpt from the basic rationale for adopting a ‘Nordic’ approach:

Prostitution is a form of violence and both a cause and a consequence of gender inequality. The gender-specific nature of prostitution reflects the prevailing power relations in our society. Prostitution reproduces and perpetuates stereotypes about women and men. This clearly includes the view that women’s and girls’ bodies must be on sale in order to satisfy the male demand for sex, and the view that men must and have a right to live their sexuality [sic] with another person. This also has a clear impact on gender equality and the further realization of women’s rights.

So far, so second-wave feminist. But the report also, it must be said, replicates views with which traditional conservatives would find nothing to disagree:

[S]ex must be based on consent, which can only be given freely and voluntarily, and cannot be replaced by the exchange of money…prostitution reduces intimate acts to an assigned monetary value [and is therefore] a gross violation of women’s rights and dignity…

This serves to remind us that, for both the traditional left and the traditional right, there is something intrinsically abhorrent about the sale of sex. And the reasons for their thinking so are not all that different. For the traditional left, prostitution is almost the quintessential illustration of Marx’s critique of the free market itself: namely that the market gets in the way of genuinely humane social interactions because it alienates us from what is really valuable by reducing our interactions to mere calculations of profit and loss. Sex is by definition for human connection - and it is therefore hard to think of something less appropriate for marketisation. For the traditional right, the only thing that needs to be added to this critique is that sex is also imbued with spiritual meaning and when it loses that meaning it necessarily becomes degrading and debased.

The punchline, though, is that the modern progressive ‘left’ - which often likes to define itself against capitalism - increasingly comes across as being intensely relaxed about what it calls ‘sex work’. And so the report in question also contained a robustly worded Minority Opinion from seven members of the Women’s Rights and Gender Equality Committee (mostly representing socially liberal and/or green parties), who entirely reject the premises of the majority:

The terms used in this report, i.e. ‘prostitution’, ‘women in prostitution’, denote value judgments, carry connotations of criminality and immorality, and stigmatise a marginalised community… Legislation around sex work should be developed with a human rights-based approach. We urge the [European] Commission and Member States [of the EU] to develop measures and strategies to recognise sex workers and protect them, tackling the discrimination they face… Deeply rooted gender stereotypes related to women’s sexuality and morality further contribute to stigmatisation and discrimination of [sic] sex workers, based on their supposed transgression of gendered social and sexual norms.

For this group, the real issue is hardly that sex should not be marketised; rather the opposite - it is that access to the sex market should be non-discriminatory. Anybody who wishes to sell sex (and buy it) should be allowed to do so, and should face no formal or informal barriers to entry - including even at the level of social disapproval. There is only a problem with ‘sex work’ insofar as it is stigmatised and hence prevents sex workers from ‘organising and effectively addressing exploitation in the sex industry’ (read: bidding up their wages).

The idea that modern politics is defined by a dispute between ‘woke’ left and conservative right is therefore on this evidence (and there is much more besides) simplistic and wrong. That just is not what is going on, much of the time. Our current ideological landscape is defined not by a battle between left and right, but by a struggle between a particularly radical form of progressive liberalism and everybody else. This radical form of liberalism, which people often label ‘woke’, is very strongly characterised by a desire to break down barriers to marketisation, and to erase categories of human interaction which are not mediated in some way by market forces. In this sense it has almost nothing in common with anything that Marx himself had to say about markets, nor really any of his intellectual followers through to the 1980s.

Human rights activists hate thinking of themselves in these terms, but they are therefore naturally at the very centre of this process of marketisation, for reasons which Marx himself predicted and which Marxian thinkers carefully elucidated in the latter half of the 20th century. Human rights, in this line of thinking, are merely one of the means by which the market is ‘actively and ceaselessly created’,¹ because they encourage individuals to think of themselves as individuals, rivalrous and conflictual, and therefore in need of a set of coercive legal guarantees that they can hold against one another at any given moment. Every other individual is, in the world of human rights, merely a barrier to one’s own freedom or self-actualisation; it is therefore for the state to constantly police social interactions such that nobody stands in the way of anybody else’s pursuit of their personal desires. Endless pursuit of personal desires being the essence of capitalism, the logic is therefore straightforwardly followed, and hardly needs spelling out. It is far from accidental, in other words, that the EU parliamentarians advocating for sex work should describe their approach as ‘human rights-based’.

When human rights are understood in these terms, it becomes obvious why sexuality and particularly sex work is fast becoming the front line for human rights activists. It is precisely because the inner logic of human rights - conceived as a liberalising ‘technology’ which frees individuals from social, communal and familial ties in order that they should become independent and autonomous market actors - points the human rights movement inexorably in the direction of fields of life that remain characterised by such ties.² Sex is almost the final frontier in this regard (the last of all may be the sale of children, which as anybody with eyes to see is fast coming down the pipeline in the form of artificial wombs and commercial surrogacy), and this is why ‘sex work’ now features so prominently in human rights advocacy circles - even if the last thing the average human rights advocate would describe him- or herself as is a capitalist.

Nobody should be under any illusions that Marxism and conservatism reach the same conclusions about much at all, but this particular example serves to illustrate to us that at the level of critique the right and the old left have much in common. For both Marxists and conservatives the other side is missing at least half of the story, but there are some chapters on whose content both can agree - and on which a basis for constructive political alliances can therefore be made. Pushing the Nordic Model for abolishing the sex trade would appear to be one of them. More broadly, rejecting the inexorable commercialisation of every aspect of our sociality, sexuality and physicality - so painfully evident everywhere we look - would be another.

1. I borrow this term from P. Chevallier, ‘Michel Foucault and the Question of Right,’ in B. Golder (ed.), Re-Reading Foucault: On Law, Power and Rights (Routledge, 2013), 171, p. 183.

2. This is also true of so-called ‘positive’ rights, such as the rights to housing, education and so on - but that will have to wait for proper elucidation in a further post, as it is too much of a distraction here. In short, positive rights of this welfarist stripe, which provide a social safety net or ‘level playing field’, are useful to the state for the same reason that traditional negative rights (such as the right to freedom of association, privacy, or non-discrimination) can sometimes be useful: they break down familial, social and communal ties, and loyalty to other institutions than the state itself. The mistake that is often made is in associating bigger markets with a smaller state. This may be true in theory, but in practice a bigger role for the market is in fact often closely associated with a bigger state, as the past 50 years or so has aptly demonstrated.