‘whether it was the law's business or not – [ and he thought that sometimes it might be] - the law was clearly engaging in it all the time’ 1
He produced numerous examples to illustrate his case. Hart then made what Edgar Lustgarten used to call his fatal error. He wrote that many of the examples which Devlin had cited were:
not of interference in private morality as such but of justifiable paternalism by the state.2
In essence what this meant was the notion that one persons viewpoint ‘paternalism’ was another persons interference in private morality ie; forcing someone to do or, more usually, to refrain from doing something because the state thought it was for that person's own good. It was not a question of legal theory but of where you stood politically.
The main issue was and still is today is to what extent morality can be embodied by the law. Additionally and more to the point of this discussion, should it?
What one finds is that morality in the broad sense (preached and/or practised) of some among the dominant segments of a society has very often infused the law. There is a tendency for the law to be liberalised in the direction of allowing people with divergent values to live and let live, rather than for some to be condemned and legally sanctioned. This tendency, and the arguments surrounding it, can be clearly seen in the 1957 Wolfenden Report 3.
Up until now, the laws associated with commercial sex have rested on the outcomes of the Wolfenden Report on Homosexual Offences and Prostitution. Heralding libertarian principles, the Report explicitly stated that the function of the law was to obstruct those who Offend against public order and decency' or 'expose the ordinary citizen to what is offensive' (1957: 8)4.
The dilemma of where the law should sit in relation to private, consensual sex acts was never really a sticking point for the post-war thinkers. Instead, they were adamant that there should remain 'a realm of private morality and immorality which is, in brief and crude terms, not the law's business'5. As a result, in British law 'it is legal to be, but not to work as, a prostitute'6, because the relationships that surround the organising, advertising and negotiation of commercial sex have been steadily criminalised over recent years.
InJuIy 2OO4, the Home Office published a document, 'Paying the Price: A Consultation on Prostitution', which sparked a four-month period of mild media interest. Behind the scenes, meanwhile, there was a flurry of discussion forums, working groups, draft responses, and outrage.
The 'prostitution community' which include those who are sex providers, purchasers, organisers and campaigners, as well