Introduction
This essay critically evaluates the government’s policy of legalising prostitution, underpinned by the assertion that law should not serve as a tool to enforce moral standards. This position is examined through the lens of the Hart–Fuller debate, a seminal discourse in jurisprudence concerning the relationship between law and morality. The Hart–Fuller debate provides a theoretical framework to assess whether law must embody moral principles (Fuller’s position) or remain a neutral system of rules distinct from morality (Hart’s view). The discussion will explore arguments for and against the government’s stance, drawing on jurisprudential theories and scholarly perspectives. First, the essay outlines the key tenets of the Hart–Fuller debate. It then presents arguments supporting the government’s policy, aligning with Hart’s legal positivism, before countering with perspectives rooted in Fuller’s natural law theory. Finally, a conclusion synthesises the analysis and considers the broader implications of this policy.
The Hart–Fuller Debate: A Frameworks for Analysis
The Hart–Fuller debate, originating in the mid-20th century, encapsulates a fundamental tension in legal philosophy regarding the intersection of law and morality. H.L.A. Hart, a proponent of legal positivism, argued that law is a system of rules distinct from moral values. In his seminal work, *The Concept of Law*, Hart posited that the validity of law depends on its source and adherence to procedural rules, not its moral content (Hart, 1961). Conversely, Lon Fuller, a natural law theorist, contended that law must possess an ‘inner morality’—a set of procedural principles such as clarity, consistency, and fairness—that inherently links law to moral standards. Fuller argued that immoral laws, or laws failing to meet these criteria, cannot be considered valid law (Fuller, 1969). This debate directly pertains to the government’s policy on prostitution, as it raises the question of whether law should remain neutral on moral issues or reflect societal ethical standards.
Arguments Supporting the Government’s Policy: Aligning with Legal Positivism
The government’s assertion that law should not enforce moral standards aligns closely with Hart’s legal positivism. By legalising prostitution, the state adopts a neutral stance, focusing on regulation rather than moral judgment. Hart would likely support this position, as he believed that law’s purpose is to maintain social order through enforceable rules, irrespective of their moral implications (Hart, 1961). Legalising prostitution can be seen as a pragmatic approach to address issues such as public safety and health. For instance, regulated prostitution could reduce exploitation and violence by bringing the industry under legal oversight, ensuring protections for sex workers. Studies, such as those by Sanders et al. (2009), highlight that legal frameworks in countries like the Netherlands have improved working conditions for sex workers through licensing and health checks.
Furthermore, Hart’s separation thesis—that there is no necessary connection between law and morality—suggests that enforcing moral standards through law risks imposing subjective values on a diverse population. Prostitution, often stigmatised due to cultural or religious beliefs, is not inherently harmful when consensual and regulated. Thus, criminalising it may reflect moral bias rather than rational governance. As Hart argued, such moral enforcement can lead to legal overreach, undermining individual autonomy (Hart, 1963). The government’s policy therefore prioritises liberty and pragmatism over moral conformity, reflecting a positivist commitment to law as a tool for social coordination rather than ethical prescription.
Arguments Against the Government’s Policy: Insights from Fuller’s Natural Law Theory
On the other hand, Fuller’s natural law perspective offers a compelling critique of the government’s policy. Fuller argued that law must adhere to an inner morality, comprising principles such as generality, publicity, and non-contradiction (Fuller, 1969). While the legalisation of prostitution may meet these procedural criteria, Fuller would likely contend that law should also reflect substantive moral values to maintain its legitimacy. Prostitution, even if regulated, is often associated with systemic issues such as human trafficking, gender inequality, and exploitation—issues that arguably conflict with societal moral ideals of dignity and equality. Research by Farley (2004) suggests that a significant proportion of sex workers experience coercion or trauma, raising ethical concerns about state sanctioning of the practice.
Moreover, Fuller’s view implies that laws disconnected from morality risk eroding public trust in the legal system. If the government appears to endorse activities widely perceived as morally problematic, it may undermine law’s authority and social cohesion. Indeed, critics might argue that legalising prostitution normalises a practice detrimental to vulnerable individuals, contradicting the state’s duty to protect its citizens—a duty often grounded in moral principles. Scholars like Winston (2005) note that Fuller’s emphasis on law’s moral foundation serves as a safeguard against policies that, while procedurally valid, may perpetuate harm or injustice. Thus, from Fuller’s perspective, the government’s policy could be seen as a failure to uphold law’s deeper ethical purpose.
Broader Implications and Scholarly Perspectives
Beyond the Hart–Fuller debate, additional jurisprudential theories and scholarly views further illuminate this policy’s complexities. For instance, feminist jurisprudence offers a critical lens, with radical feminists arguing that prostitution inherently perpetuates patriarchal oppression, regardless of legal status (MacKinnon, 1989). This perspective challenges the government’s moral neutrality, suggesting that law cannot be divorced from systemic ethical issues like gender inequality. Conversely, liberal feminists might support legalisation, viewing it as empowering for sex workers by granting agency and legal protections (Nussbaum, 1998). These contrasting views highlight the difficulty of achieving a consensus on moral issues within law.
Additionally, the policy raises practical questions about enforcement and social impact. Even if law eschews moral enforcement, public opinion often influences legal legitimacy. As Dyzenhaus (1999) argues, laws perceived as morally deficient may provoke resistance or non-compliance, complicating governance. Therefore, while Hart’s positivism justifies the government’s stance theoretically, practical challenges persist in balancing legal neutrality with societal expectations—a tension Fuller’s theory seeks to address by embedding moral considerations into law.
Conclusion
In conclusion, the government’s policy of legalising prostitution, grounded in the principle that law should not enforce moral standards, elicits polarized arguments through the Hart–Fuller debate. Hart’s legal positivism supports the policy by advocating for law’s separation from morality, emphasising pragmatic regulation and individual liberty. Conversely, Fuller’s natural law theory critiques this stance, asserting that law must reflect moral values to maintain legitimacy and prevent harm, particularly given prostitution’s association with exploitation and inequality. Broader scholarly perspectives, including feminist jurisprudence, underscore the complexity of moral neutrality in law, while practical considerations highlight potential social backlash. Ultimately, this policy reflects a fundamental jurisprudential dilemma: whether law should prioritise procedural validity or substantive ethics. The implications suggest a need for ongoing dialogue to balance legal neutrality with societal values, ensuring that law remains both authoritative and equitable in addressing contentious issues like prostitution.
References
- Dyzenhaus, D. (1999) *Legality and Legitimacy: Carl Schmitt, Hans Kelsen and Hermann Heller in Weimar*. Oxford 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. (1969) *The Morality of Law*. Yale University Press.
- Hart, H. L. A. (1961) *The Concept of Law*. Oxford University Press.
- Hart, H. L. A. (1963) *Law, Liberty, and Morality*. Stanford University Press.
- MacKinnon, C. A. (1989) *Toward a Feminist Theory of the State*. Harvard University Press.
- Nussbaum, M. C. (1998) ‘Whether from Reason or Prejudice’: Taking Money for Bodily Services. *The Journal of Legal Studies*, 27(2), 693–723.
- Sanders, T., O’Neill, M., and Pitcher, J. (2009) *Prostitution: Sex Work, Policy & Politics*. SAGE Publications.
- Winston, K. I. (2005) The Internal Morality of Law: Fuller’s Contribution to Legal Philosophy. *American Journal of Jurisprudence*, 50(1), 105–120.
