The Right to Buy and Sell Sex in the Risk Society

The European Court of Human Rights sees the role of the State as being to insulate everybody from risk

The dream of the class society is that everyone wants and ought to have a share of the pie. The utopia of the risk society is that everyone should be spared from poisoning ... [T]he driving force in the class society can be summarised in the phrase ‘I am hungry!’ The driving force in the risk society can be summarised in the phrase ‘I am afraid!’

-Ulrich Beck

What is human rights law for? To the layperson, the answer probably remains something like ‘to protect the individual from the State power’. The reality is very different; human rights law in its current guise chiefly has the purpose of imposing positive obligations on the State to insulate everybody from risk. The result - to use an overused word - is a ‘toxic’ combination of maximal freedom and minimal responsibility, and in this, human rights law can be understood to exhibit all of modern liberalism’s worst qualities. Classical liberalism hedged freedom with consequence; liberty had to be exercised responsibly because, with the State being small, there was no safety net to insure against the possibility of failure. Modern liberalism insists that liberty should be exercised without risk or consequence, and the results are evident everywhere before us, not least of which is – paradoxically – a vast and rapidly expanding State.

In a previous post, I briefly discussed the case of MA and Others v France, for which the European Court of Human Rights (ECtHR) recently gave an affirmative decision on admissibility, and which illustrates all of this pithily. The facts are not complicated. In 2016 France enacted a law making the purchasing of sex a criminal offence, and effectively decriminalising its sale (a helpful English language overview is provided by the US Congress here). This was because the government wished to pursue a ‘Nordic model’, within which the sex trade is stamped out through criminalising johns, pimps and brothel owners, while decriminalising prostitution itself so that prostitutes can safely exit the trade without fear of prosecution.

What human rights issue could this change to French law - which I think a very large majority of the public in almost any country would support - possibly raise? The answer, according to approximately 250 prostitutes, funded by various NGOs, is threefold. First, the law violates the right to private life (under Article 8 of the European Convention on Human Rights (ECHR)) by indirectly restricting the autonomy and ‘sexual freedom’ of prostitutes in its criminalisation of their clients. Second, it violates the positive obligation to protect life under Article 2 of the ECHR, because it ‘increases risk’ of death (the logic being that if one criminalises purchasers of sex, it is more likely that prostitution will have to go on in secret, with the result that condoms are less likely to be used and robbery and assault are more likely to happen). And third, it violates the positive obligation to protect against inhuman or degrading treatment under Article 3 of the ECHR, because it ‘increases risk’ of stigmatisation of prostitutes.

This requires, perhaps, a little unpacking. As originally envisaged, the ECHR mostly contains negative obligations - meaning obligations of restraint. The right to life, contained in Article 2, for example, was meant to be a brake on States arbitrarily or summarily executing people. The prohibition on cruel, inhuman or degrading treatment contained in Article 3 was meant to prevent States using torture. The prohibition on discrimination contained in Article 14 was meant to prevent public authorities from discriminating against people on the grounds of race, sex, religion, etc. And so on. The reasons for all of this were obvious when one reflects that everything was drafted in the late 1940s and ‘never again’ was at the forefront of everybody’s minds.

Over time, however, the notion developed that the rights contained in the Convention had a ‘positive’ dimension, meaning that they imposed duties on States to exercise ‘due diligence’ in ameliorating risk. This all began in earnest with the cases of Marckx v Belgium (1979), Airey v Ireland (1979), and X and Y v The Netherlands (1985). In the first of these cases, the ECtHR found that the right to family life (Article 8 of the EHCR) imposed a positive obligation on the State to recognise in law the status of children of unmarried mothers as being essentially equal with respect to inheritance as children of married mothers. In the second, it found that the right to access to a court (Article 6) and the right to family life imposed a positive obligation on the State to provide legal aid in family law proceedings. And in the third, it found that the right to be free from cruel, inhuman or degrading treatment implied that a positive obligation existed for the State to investigate accusations of rape (the idea being that rape is cruel, inhuman and degrading and the State therefore had an obligation to undertake positive efforts to prevent it).

These outcomes do not seem on their face to be so objectionable, certainly from the standpoint of 2023, but the ECtHR soon found itself sliding down that old slippery slope, with whose topography we are all very familiar. Once positive obligations were recognised in principle, it became very hard for the Court to impose principled limits on them, with the result being that it is now genuinely difficult to conceive of any area of life in which the State could not be construed as having a positive obligation to achieve benign outcomes of one kind or another. And this very often boils down to making sure that nobody experiences any risk whatsoever in whatever it is they are doing.

Hence, for example, the right to life no longer just requires the State to refrain from arbitrarily or summarily executing people; it requires the State to do everything it can to prevent death - and is in violation of this obligation if, for example, highway authorities do not put in place adequate warning signs on roads. The right to be free from cruel, inhuman or degrading treatment does not just require the State not to torture people. It requires the State to make sure that nobody within its jurisdiction suffers cruel, inhuman or degrading treatment at the hands of anyone at all - meaning that, for instance, it cannot deport foreign criminals where there is a risk they might suffer inhumane treatment in the country into which they are deported (assessed, naturally, on the basis of what judges in Strasbourg think ‘inhumane’ treatment means). The right to respect for private and family life does not just require the State to refrain from interfering in the domestic sphere. It requires the State to take positive actions such as recognising a new identity after gender reassignment surgery, or putting in place necessary environmental regulations so that domestic life is not harmed by pollution, or even making sure that people’s sleep is not disturbed by noise.¹

The problem here, I wish to make clear, is not that any of the actions implied by these positive obligations would be undesirable if created by legislation in the ordinary way, through the ordinary democratic process, or was the decision of a democratically elected government. The problem is that the whole point of the ECHR as originally envisaged by its drafters was that it was enshrining in law certain minimal standards which were genuinely (in their eyes) extra-political: no torture, no extrajudicial killing, and so on. Thus, whenever the ECtHR holds that an obligation exists, it is holding that said obligation should be categorised as extra-political and therefore impossible to gainsay through the democratic process. There is no problem with doing that with respect to something like the prohibition of torture, for example, because that is in the text of the Convention itself. But under the ECtHR’s expansive interpretation of positive obligations, the scope of what is deemed extra-political has lost all principled limits, with the effect that the scope of democratic decision-making is becoming radically restricted.

And so we find ourselves in the position that we do indeed find ourselves in with respect to the facts of MA and Others v France, with the elimination of the sex trade being held to be extra-political in the same sense as is the prohibition of arbitrary killing. The State has positive obligations to respect private life, to protect life, and to protect from degrading or inhuman treatment, so therefore this should include making sure that prostitutes - and their clients - are able to exercise sexual freedom and be insulated from the physical and social risks of doing so (right down to the level of being free from stigmatisation). The ECtHR has not yet issued a decision on the merits of this argument. But as it stands it is hard to imagine on what principled basis it can reject it.

There are two things to say about all of this. The first is that, as is becoming increasingly clear, it is not possible for a State to be governed effectively as a representative democracy and remain a party to the ECHR under the jurisdiction of the ECtHR. Whatever the ECtHR decides in MA and Others v France, it ought to be intolerable to a mature democracy for an international court to put itself in the position of adjudicating whether or not the buying of sex should or should not be criminalised within the jurisdiction. That is a question for an elected legislature, not an unelected human rights court, and the case should never have been declared admissible in the first place.²

And what is true in this instance is true in the round. The reason why the ECtHR has developed its jurisprudence of positive obligations is not because there is any such thing in the text of the ECHR itself in most cases. As the Council of Europe’s own ECHR Toolkit somewhat coyly puts it, ‘in most cases [positive obligations] are not stated explicitly in the text but have been implied into it by the Court.’ How the Court does this (through its doctrine of ‘dynamic interpretation’) will have to wait for elucidation for another day; it is sufficient simply to observe that a court which sees no problem with ‘implying’ whatever obligations into texts it sees fit is not one that is capable of behaving in a manner that is consonant with genuine representative democracy.

The second thing to say is that all of this has much wider significance beyond the issue only of prostitution and the sale and purchasing of sex. As I have been explaining at some length in previous months in a series of posts (see for example here and here), it is a characteristic of political reason - meaning that form of rationale which justifies the existence of a governing framework such as the State - that it seeks to make whatever governing framework exists seem necessary to those who are governed. The forms of political reason that we think of as ‘liberal’ do this by presenting the governing framework as being necessary for a particular purpose - maximising freedom for autonomous individuals.

The corollary of this is that liberal political reason must also insist on the minimalization of risk, because it is only in risk-free circumstances that freedom can genuinely be exercised. The project of liberalism is therefore bound up inextricably with the diminishing of any and all risks – not just physical risks, which go without saying, but even the risks of discrimination and stigmatisation. If, for example, there is a risk that the selling of sex will be stigmatised through making the purchasing of it unlawful, then this is a de facto limit on the freedom of both prostitutes and clients, and it must be ameliorated. The logic behind MA and Others v France is in this sense impeccably liberal.

The point about modern liberalism that is often overlooked, then, is that, whatever its proponents might say, in practice it requires a very big state indeed. This is because the goal of maximising freedom and equality between autonomous individuals is a vast and endless one; it requires continuous, permanent monitoring of social interactions in order to ensure that risks diminish. And it is natural that human rights, the quintessential technology of liberalism, should therefore contrive to expand the scope and depth of state intervention in society - right down to the level even of public morality.

It is very important that one should not be mistaken about this: the argument of the claimants in MA and Others v France and those, such as Amnesty International, who support them, is not that the state needs to simply get out of the way and let market forces do their work. It is that it needs to put in place a total system for a risk-free sex trade – including free contraceptives, safe locations for the service itself, and of course the rewiring of the good sense of ordinary men and women such that the buying and selling of sex attaches no stigma whatsoever. These are the implications of liberalism when its logic is left to play out, and they are not the recipe for a small state – precisely the opposite.

1. Although ultimately this one was overturned on appeal.

2. It is probably worth mentioning that the admissibility decision was itself an exercise in legal legerdemain which circumvented long established rules concerning the admissibility of complaints concerning legislation. Detailing that would take us on too much of a tangent, but the reader should be aware that it was absolutely open to the Court to refuse to admit the case in the first place, and the fact that it didn’t do so speaks volumes about how it conceives its own role.