Introduction
The legalisation of prostitution by the government, premised on the assertion that law should not enforce moral standards, raises profound questions about the relationship between law and morality. This essay critically evaluates this policy through the lens of the Hart-Fuller debate, a cornerstone of jurisprudential theory that examines whether law must adhere to moral principles to be valid. Herbert Hart, a legal positivist, argues for the separation of law and morality, suggesting that laws are valid based on their creation through recognised processes, irrespective of moral content (Hart, 1958). In contrast, Lon Fuller, a natural law theorist, contends that law must possess an internal morality to be legitimate, implying a necessary connection between legal and moral standards (Fuller, 1958). This essay will explore arguments for and against the government’s position, assessing whether legalising prostitution aligns with or diverges from these theoretical frameworks. The analysis will address the policy’s implications for individual liberty, social order, and the purpose of law, supported by scholarly perspectives and jurisprudential insights.
The Hartian Perspective: Law as Separate from Morality
Herbert Hart’s legal positivism provides a compelling framework to support the government’s stance that law should not enforce moral standards. Hart argues that the validity of law depends on its source and the process of its enactment, not on its moral content (Hart, 1958). From this perspective, if legislation legalising prostitution has been passed through legitimate parliamentary procedures, it is valid, regardless of whether it aligns with societal moral norms. Hart’s separation thesis suggests that enforcing morality through law risks conflating legal obligation with moral duty, potentially leading to authoritarianism. For instance, in a diverse society, whose morality should law reflect? Legalising prostitution could thus be seen as a pragmatic recognition of individual autonomy, allowing personal choices in private matters without state interference.
Furthermore, Hart acknowledges the practical limits of enforcing morality through law, particularly in areas like sexuality or personal conduct (Hart, 1963). He famously critiqued Lord Devlin’s argument that law must uphold societal morality to prevent disintegration, asserting instead that moral pluralism does not necessarily threaten social cohesion (Hart, 1963). Applying this to prostitution, the government’s policy arguably prevents the law from becoming an instrument of moral coercion, instead focusing on regulating the practice to ensure safety and reduce harm. However, a limitation of Hart’s view is its potential to endorse laws that are morally repugnant if procedurally valid—an issue critics often raise when considering policies that may enable exploitation or harm under the guise of neutrality.
The Fullerian Critique: Law’s Internal Morality
In contrast, Lon Fuller’s natural law approach challenges the government’s position by asserting that law must embody an internal morality to be truly law (Fuller, 1958). Fuller argues that laws must adhere to principles such as clarity, publicity, and non-retroactivity, and should generally align with the purpose of fostering human interaction and well-being. From this perspective, legalising prostitution might be problematic if it fails to protect vulnerable individuals or if it implicitly condones exploitation. Fuller might contend that a law lacking moral grounding—such as one that prioritises individual liberty over societal good—could undermine the legal system’s legitimacy.
Moreover, Fuller’s response to Hart in their 1958 debate emphasises that law is not merely a set of rules but a purposive enterprise aimed at achieving social order through moral coherence (Fuller, 1958). If prostitution’s legalisation is perceived as endorsing a practice that many view as degrading or harmful, it could erode public trust in the legal system. For example, critics of legalisation often point to evidence suggesting that regulated prostitution may increase human trafficking or fail to eliminate violence against sex workers (Farley, 2004). Fuller would likely argue that such outcomes contradict the law’s moral purpose, suggesting that the government’s refusal to enforce moral standards might be shortsighted. However, Fuller’s framework is not without flaws; his concept of internal morality can be vague, and it risks imposing subjective moral values under the guise of universal principles.
Balancing Individual Liberty and Social Harm
A key argument in favour of the government’s policy is the prioritisation of individual liberty over collective moral judgment. Legalising prostitution can be seen as respecting personal autonomy, allowing consenting adults to engage in transactions without criminalisation. This aligns with Hart’s emphasis on the limits of legal paternalism and his advocacy for harm reduction over moral enforcement (Hart, 1963). For instance, decriminalisation models in countries like New Zealand have shown reductions in violence against sex workers and improved access to health services (Abel et al., 2010). By treating prostitution as a public health or labour issue rather than a moral failing, the government avoids using law as a tool of oppression, arguably fulfilling Hart’s vision of law as a neutral arbiter.
Conversely, opponents argue that such a policy may exacerbate social harm, a concern Fuller’s theory might endorse. Legalisation could normalise prostitution, potentially increasing demand and perpetuating systemic inequalities, particularly for marginalised women (Farley, 2004). Moreover, as Dworkin—a scholar influenced by natural law ideas—suggests, law often reflects communal values, and ignoring morality altogether risks alienating society from its legal framework (Dworkin, 1986). The government’s assertion that law should not enforce moral standards might therefore appear overly simplistic, failing to address the complex interplay between individual rights and collective well-being. This tension highlights a limitation in both Hart’s and Fuller’s theories: neither fully resolves how law should navigate deeply divisive moral issues.
Conclusion
In conclusion, the government’s policy of legalising prostitution, grounded in the rejection of law as a moral enforcer, finds support in Hart’s legal positivism, which prioritises procedural validity and individual liberty over moral conformity. Hart’s framework suggests that the state should refrain from imposing subjective moral standards, focusing instead on harm reduction and personal autonomy. However, Fuller’s natural law theory offers a critical counterpoint, emphasising that law must possess an internal morality to maintain legitimacy and protect societal well-being. This perspective raises valid concerns about the potential harms of legalisation, such as exploitation or social fragmentation. While the policy aligns with principles of liberty and neutrality, it also risks overlooking deeper ethical implications, illustrating the enduring relevance of the Hart-Fuller debate. Ultimately, the challenge for lawmakers lies in balancing individual freedoms with societal protection—a task neither theory fully resolves. This analysis underscores the need for ongoing dialogue about the purpose of law in regulating contentious issues like prostitution, ensuring that policy reflects both legal integrity and social responsibility.
References
- Abel, G., Fitzgerald, L., Healy, C., & Taylor, A. (Eds.) (2010) Taking the Crime Out of Sex Work: New Zealand Sex Workers’ Fight for Decriminalisation. Policy Press.
- Dworkin, R. (1986) Law’s Empire. Harvard University Press.
- Farley, M. (2004) “Bad for the Body, Bad for the Heart”: Prostitution Harms Women Even if Legalized or Decriminalized. Violence Against Women, 10(10), 1087-1125.
- Fuller, L. L. (1958) Positivism and Fidelity to Law: A Reply to Professor Hart. Harvard Law Review, 71(4), 630-672.
- Hart, H. L. A. (1958) Positivism and the Separation of Law and Morals. Harvard Law Review, 71(4), 593-629.
- Hart, H. L. A. (1963) Law, Liberty, and Morality. Oxford University Press.
