What's Law Got To Do With it? How and Why Law Matters in the Regulation of Sex Work
| Date | 01 March 2010 |
| Author | Jane Scoular |
| DOI | http://doi.org/10.1111/j.1467-6478.2010.00493.x |
| Published date | 01 March 2010 |
JOURNAL OF LAW AND SOCIETY
VOLUME 37, NUMBER 1, MARCH 2010
ISSN: 0263-323X, pp. 12±39
What's Law Got To Do With it?
How and Why Law Matters in the Regulation of Sex Work
Jane Scoular*
Drawing on recent empirical work that considers the relationship
between different legal approaches to the `problem' of prostitution,
this article argues that the frequently drawn distinction between
apparently diametrically opposed positions, such as prohibitionism
and legalization, is certainly less significant than is often assumed and
may, in fact, be illusory. This lack of distinction raises serious
questions as to law's role in regulating sex work. In response to claims
that law is `merely' symbolic in its influence, I argue that these
similarities arise precisely because law does matter (albeit in a
different way from that assumed by a sovereign-centred understanding
of the legal complex), and offer a complex and critical account of the
role of modern law in regulating sex work. This approach not only
more accurately elucidates the ways in which law supports dominant
structures, in this case neo-liberalism, but offers some optimism for its
(albeit limited) potential to transform.
INTRODUCTION
A discussion of the regulation of sex work typically begins by highlighting
the distinctions between different regul atory approaches. Researchers,
campaigners, and policy makers frequently review the apparent distinctions
between prohibitionist (prohibits prostitution and penalizes prostitutes and
pimps, but not necessarily clients), regulationist (seeks to regulate rather than
prohibit or abolish prostitution, for example, through legalization), and
abolitionist systems (seeks to abolish prostitution by penalizing clients and
pimps but not prostitutes), before recommending or adopting an approach
which best supports their own particular socio-political and ethical contexts
12
ß2010 The Author. Journal Compilation ß2010 Cardiff University Law School. Published by Blackwell Publishing Ltd,
9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
*The Law School, University of Strathclyde, 141 St James' Road, Glasgow,
G4 0LT, Scotland
jane.scoular@strath.ac.uk
and projects.
1
Such neat classifications are, however, problematic, given that
these terms describe general political and social aspirations regarding how
best to regulate commercial sex and that considerable gaps inevitably exist
between these objectives and the modes of intervention utilized to imple-
ment them.
2
Even more distant are the effects in the social realm of these
various laws, policies, and techniques put in place by governments and other
social actors. Thus, a `top-down' approach relays a false impression of unity
in policy settlements that are always provisional, often contradictory, and
generally reflective of `the varied and complex political influence of com-
peting discourses and organized interests'.
3
Moreover `state-centred'
approaches fail to account for local conditions, which often appear incon-
gruous with the terms of the formal law. Indeed, recent empirical research,
including my own work with colleagues in three European countries, reveals
that apparently contrasting legal approaches can produce similar results,
4
even in the apparently diametrically opposed systems of criminalization and
legalization. Strikingly, Sweden and the Netherlands, despite being
described as representing a `two-way ideological mirror',
5
appear to display
remarkably similar results on the grou nd in terms of the increased
marginalization of more public forms of sex work (street sex work) and
its participants, and a relative inattentiveness to many forms of indoor work.
These continuities between commercial sex markets, across cultural and
legal differences has led one author, Laura AgustõÂn,toquestion law's very
relevance in the field of commercial sex.
6
Given the dominance of legal
solutions in both state responses to the `problem' of prostitution and its
salience in campaigns by those who seek justice for those involved, such
impotence would have important, and potentially damning, consequences.
Yet, as I argue below, while this prognosis appears to be a logical conclusion
from the findings, it fails to account for the ways in which modern forms of
13
1See, for example, J. Kilvington, S. Day, H. Ward, `Prostitution Policy in Europe: A
Time of Change?' (2001) 67 Feminist Rev. 78±93; Council of Europe, Resolution
1579 (2007) `Prostitution ± Which stance to take?', at:
Main.asp?link=/Documents/AdoptedText/ta07/ERES1579.htm>.
2J.Phoenix, Regulating Sex for Sale: Prostitution, Policy Reform and the UK (2009)
14.
3J.West, `Prostitution: Collectives and the Politics of Regulation' (2000) 7 Gender,
Work and Organization 106±18, at 106.
4P.J. Hubbard et al., Regulating the spaces of sex work: assessing the impact of
prostitution law: Full Research Report.ESRC no. RES-000-22-1001 (2007); See,
also, E. Bernstein, Temporarily Yours: Intimacy, Authenticity, and the Commerce of
Sex (2007) ch. 6.
5B.Hobson, Uneasy Virtue: The Politics of Prostitution in the American Reform
Tradition (1987) 30, cited in Bernstein, id., p. 145.
6L.AgustõÂn, `Sex and the Limits of Enlightenment: The Irrationality of Legal
Regimes to Control Prostitution' (2008) 5(4) Sexuality Research & Social Policy
73±86.
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legal power operate to support hegemonic power relations `despite a
persistent gap between law in the books and law in action'.
7
To be fair to AgustõÂn, this dynamic has yet to be adequately theorized in
what is now a vast literature on sex work, and one in which law occupies a
significant position. By using insights derived from theories of govern-
mentality, which reveal the productive and adaptive nature of power, I hope
to begin the process of offering a more critical account of the role of modern
law in regulating sex work in neo-liberal contexts. I will argue that the fact
that contrasting regulatory approaches have the same empirical effects is
precisely because law does matter (alongside other variables), albeit in a
different way than that assumed by many positivist policy makers and
academic commentators, including AgustõÂn.
Ibegin, however, by outlining the empirical findings that reveal
remarkable similarities in apparently contrasting regulatory approaches to
prostitution. It is this paradox which has sparked this critical inquiry into the
role of law in contemporary society.
EXPLORING THE PARALLELS IN ABOLITIONIST AND
REGULATORY APROACHES TO SEX WORK
IN THE CONTEXT OF NEO-LIBERALISM
The history of prostitution control shows that major reform is episodic and
related to wider social transformations, to shifts in economy, culture, and
`nation states'.
8
Significant legislative change in the West has, for example,
accompanied the period of transition from feudalism to industrialization and
14
7S.Silbey, `After Legal Consciousness' (2005) 1 Annual Rev. of Law and Social
Science 323±68.
8J.R. Walkowitz, Prostitution and Victorian Society (1980); C. Smart, Feminism and
the Power of Law (1989). My aim in beginning with law is not to suggest it as the
primary lens through which to understand the operations of commercial sex, as to do
so would be assume it as a universal ethic which limits both the `the social and
discursive field' (AgustõÂn, op. cit., n. 6, at p. 75). As Rose and Valverde note:
The intellectual premises and analytic methods of legal studies tend to presuppose
that objects and problems form within the workings of law itself. But in order to
analyse the ways in which problems form at the intersection of legal and extra-
legal discourses, practices and institutions, it is necessary to de-centre law from
the outset.
(N. Rose and M. Valverde, `Governed by law?' (1998) 7 Social and Legal Studies
541±53, at 545). Thus in explaining how prostitution becomes a target for
regulation, law is shown to form only part of wider social processes (such as
medicine, public health , health, religion, the na tion state) involved in th e
problematization and regulation of sex work. Yet, to decentre law is not to expel
it or render it insignificant as legal processes, institutions, and functionaries do play
a vital role, alongside other factors, in creating targets for regulation and authoring
other modes of regulatory power.
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from that period to present-day late capitalism. Such rapid change resonates
throughout the social body, appearing to threaten to disrupt the perceived
social fabric and its associated norms. The threat and experience of this
social rupture provokes considerable anxieties on the part of certain groups,
who seek to control the social order in order to preserve hegemonic forms of
power relations.
9
During such periods of flux, issues of problematic
consumption (alcohol, gambling, and prostitution) and dangerous identities
have been convenient and familiar `targets' for programmes and campaigns
of moral regulation.
10
Prostitution, which combines both of these elements,
thus appears throughout history as `a dense signifier around which a variety
of social anxieties' can be expressed.
11
Thus, during the intense social and economic transformation which
characterized the Victorian era, moral panics around syphilis, venereal
disease, and an imagined `white slavery trade'
12
expressed wider cultural
anxieties over the overlapping processes of urbanization, immigration, and
women's shifting roles. Encouraged by a broad coalition of feminists and
religious groups who had made saving fallen women their mission, the
Contagious Diseases Acts of 1864, 1866, and 1869 constructed the prostitute
as morally and physically dangerous and vulnerable, justifying the intensive
moral, social, and legal regulation of many unmarried working-class
women.
13
In so doing, the public's individual moral and social health
15
9S.Cohen, Folk Devils and Moral Panics: The Creation of the Mods and Rockers
(1972).
10 A. Hunt, Governing Morals: A Social History of Moral Regulation (1999). This
target setting could be explained according to the dynamics of moral panics, which
as Cohen famously noted, often centre upon `folk devils'; figures for anxiety to be
projected upon, and ultimately regulated, controlled or even expelled so that order
(and authority) be restored. Thus a number of moral panics could be said to have
been inscribed upon the prostitute body. This term, while apt in describing some
aspects of prostitution campaigns, may not be useful as a term of general
application. (It may be useful with regards aspects of trafficking campaigns: see
Weitzer in this volume (pp. 61±84) and the brilliant piece by J. O'Connell Davidson,
`Will the real sex slave please stand up?' (2006) 83 Feminist Rev. 4±22, which does
particularly well not to minimize the real concerns faced by migrants and those
involved in sexual and domestic labour but queries the reduction of complex social
factors into a unitary victimized model that so few women can occupy.) It may not,
however, offer the best conceptualization of a more cyclical process that, while
involving a great deal of moral entrepreneurialism, does not so much create `folk
devils' as call upon identities that are always and already `spoiled' (I thank Jo
Phoenix for this insight). Thus I use the term `target setting' for processes of moral
politics to capture this process more accurately.
11 Phoenix, op. cit., n. 2, p. 12.
12 Bernstein, op. cit., n. 4, p. 13; R. Clifford, What Women Might Do with the Ballot:
The Abolition of the White Slave Traffic (1912) 132.
13 This included forcing them to wear distinguishing apparel, exclusion from parts of
cities, and the sanctioning of compulsory medical treatment and confinement. See
Walkowitz, op. cit., n. 8; L. Mahood, The Magdalenes: Prostitution in the
Nineteenth Century (1990).
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appeared to be secured, helping to consolidate a particular image of the
nation state as healthy and enlightened, all of which facilitated its colonial
expansion. As Burton notes, the spectre of sexual slavery employed in
campaigns and reforms at this time operated to conceal their facilitation of a
wider colonialist project.
14
This parallels with the present late-modern period and the dynamics of
globalization which provide much of the impetus behind the recent flurry of
legislative activity in international prostitution laws. Here the major shifts
and increased fluidity in the movement of people, capital, and commodities
brought about by globalization and late-capitalist restructuring, alongside a
burgeoning sex industry, have incited a similar broad coalition of the
religious right, moral puritans, and radical feminists around an abolitionist
mission.
15
This modern `unholy' alliance has coalesced around a crusade to
combat what it regards as `modern sexual slavery', a term applied variously
to the `trafficking' of women and girls for purposes of prostitution and to
commercial sex more generally. `Saving fallen women' has returned to the
policy frame, yet while there is continuity with the earlier nineteenth-century
campaigns, its reappearance relates to a new global economic and political
context and invokes new forms of governance.
16
Once again, the trafficked
bodies of sex workers provide a useful metaphor for violat ed state
boundaries and act as a trope for a more general politics of security:
17
the putative re-emergence of the `white slave trade' triggered multiple
initiatives intended to protect the sovereign spaces of the European Union as
much as the sovereign bodies of women.
18
The form these multiple initiatives have taken is contingent upon different
political traditions and arrangements, meaning that the same forces (that is,
globalization) have been the impetus behind what are often cast as opposing
regulatory frameworks, the most notable being efforts to criminalize men in
Sweden and to legalize voluntary sex work in the Netherlands.
19
16
14 A. Burton, Burdens of History: British Feminists, Indian Women and Imperial
Culture 1865±1915 (1994).
15 Abolitionism is informed both by moral and religious views regarding the proper
place of procreative sexual mon ogamy. Radical feminist doctrin e plays an
increasingly critical role in marking out prostitution as an area requiring special
attention. Its theory of sexuality and the state casts prostitution not simply as an
example of women's oppression but as a foundational idea that predetermines
women's social, sexual, and economic subordination.
16 J. Scoular and M. O'Neill, `Regulating prostitution. Social inclusion, responsibiliza-
tion and the politics of prostitution reform' (2007) 47 Brit. J. of Criminology 764±78.
17 See Hubbard et al., op. cit., n. 4, p. 140; C. Aradau, Rethinking Trafficking in
Women: Politics Out of Security (2008).
18 Hubbard et al., id.
19 Bernstein, op. cit., n. 4, p. 148.
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SWEDEN AND THE NETHERLANDS
In 1998 Sweden took the unprecedented step of prohibiting the purchase, but
not the sale, of sexual services, specifically criminalizing those who `obtain
casual sexual relations in return for payment'.
20
Commentators describe this
as an attempt to assert a coherent national identity in the face of perceived
national anxiety over entry into the EU, growing migration, and increased
permissiveness in Europe.
21
Thus, as Kulick notes, in light of the increasing
availability and commodification of commercial sex (threatening to blur
boundaries between `public and private and licit and illicit sex') and the
spectres of Europeanization and globalization (that threaten Sweden with
immediate and literal blurring of its national boundaries), the referent
prostitute comes to symbolize the order of things and attempts to protect her
also represent attemptstoreinforce both cultural and geopolitical
boundaries.
22
Alongside these dynamics, as I have previously highlighted,
23
an influen-
tial role was played by a particularly hegemonic form of state feminism
,
which infused Sweden's conservative social policy norms with radical
feminist ideology to produce a law that cites gender equality as its key
objective:
24
Gender equality will remain unattainable so long as men buy, sell and exploit
women and children by prostituting them . . . Prostituted persons are the
weaker party, exploited by both the procurers and the buyers . . . By adopting
the legislation Sweden has given notice to the world that it regards prostitution
17
20 The Prohibition of the Purchase of Sexual Services Act 1998, 408 states: `A person
who obtains a casual sexual relation in return for payment will be sentenced ± unless
the act is punishable under the penal code ± for the purchase of sexual services to a
fine or a term of imprisonment not exceeding six months.' Norway and Iceland have
since followed Sweden's lead, with both countries outlawing the purchasing of sex
in 1999.
21 A. Gould, `The Criminalisation of Buying Sex' (2001) 30 J. of Social Policy 437±
56; D. Kulick, `Sex in the New Europe: The Criminalisation of Clients and Swedish
fear of Penetration' (2003) 3 Anthropological Theory 199±218.
22 Kulick, id., p. 207.
23 J. Scoular, `Criminalising ``Punters'':Evaluating the Swedish position on
Prostitution' (2004) 26 J. of Social Welfare and Family Law 195±210.
24
A belief that prostitution symbolizes women's oppression and is, therefore,
incompatible with women's equality underlies the official discourse in Sweden.
This connection was bolstered by the new law's positioning as part of a package of
measures to counteract violence against women. Entitled Kvinnofrid, which
roughly translates as women's peace, it includes legislation on rape, domestic
violence, and sexual harassment. Yet there are a number of problems in defining
prostitution straightforwardly as violence against women: see Scoular, id.; J.
Scoular and M. O'Neill, `Legal Incursion into Supply/Demand: Criminalising and
Responsibilising the Buyers and Sellers of Sex in the UK' in Demanding Sex:
Critical Reflections on the Regulation of Prostitution,eds. V.E. Munro and M.
Della Giusta (2008) 13±35.
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as a serious form of oppression of women and children and that efforts must be
made to combat it.
25
Thus, apparent equality is achieved in the Swedish model by moving from
criminalizing women in prostitution to penalizing men's role as purchasers
and diverting women as victims to social work services focused on
`encouraging' exiting from prostitution.
A similar socio-economic climate and fears surrounding immigration
hidden within the spectre of trafficking, resulted in a very different legal
response from the Dutch who, in the same year as the Swedish law came
into force, voted to legalize commercial sex in brothels. Despite the Dutch
system's frequent caricaturing as the archetypal liberalized system, a
careful understanding of the reforms shows that what was intended to be a
pragmatic response has been in effect a selective and uneven approach to
the issue.
It is evident from political debates on the issue that one of the main
purposes of the new law was to reduce gendered exploitation in this area.
This was thought to be achieved by drawing a distinction between voluntary
and forced prostitution, as Outshoorn explains:
Prostitution is no longer a controversial moral issue, but is now defined as
sex work, provided the work is done voluntarily. Prostitutes are entitled to
social insurance and can unionise if employed; they also have to pay taxes.
Sex employers have to observe labour law, health and safety regulations, and
pay social insurance and taxes. Brothels are permitted within certain areas
and have to comply with local regulations; pimping is no longer a criminal
offence. Forced prostitution, often tied to the trafficking of women, is to be
eliminated. Traffickers can be sentenced to an 8-year prison sentence.
26
In Sweden, there have been a number of evaluations of the law since its
inception, though none has provided a straightforward comparison of the
situation before and after the legislation. In keeping with the ideological
nature of the reform, many surveys and governmental claims focus on
changes in public opinion which are of course not of themselves direct
indicators of behaviour. Thus, despite claims of the law's widespread
support, which varies according to reports, a much smaller proportion of the
public feel that the law is working.
In terms of the practical effects of the new law, the consistent message
across a number of evaluations and sources, including those conducted by
governmental departments, is of a temporary reduction in street sex work,
leading to the displacement of women and men into more hidden forms of
sex work and the worsening of conditions for those who remain on the
18
25 Ministry of Industry, Employment and Communications, `Prostitution and
trafficking in women: Fact sheet' (2003) 1.
26 J. Outshoorn, `Pragmatism in the Polder: Changing Prostitution Policy in The
Netherlands' (2004) 12 J. of Contemporary European Studies 165±76, at 165.
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streets.
27
Despite the fact that purchasing sex was criminalized irrespective
of location, the law has been selectively enforced, with the main focus being
on the highly visible spaces of street prostitution.
28
Although relatively small
by international comparison,
29
street sex work became `the' overwhelming
target of media attention, public expenditure, and police efforts, with seven
million kronor (over £500,000) being given to the police to enforce the law,
leading to an initial but probably only temporary, reduction in its activity as
a result of targeted enforcement.
30
This led to a classic displacement with a concomitant rise in `hidden'
forms of prostitution evidenced by the increase in an already expanding,
yet little regulated, market in sex accessed via the Internet, in pornographic
magazines, and via informal networks, for example, taxi drivers and
hotels.
31
Many Swedish social workers have reported that some of the
women who had been selling sex from the streets have now been forced to
move into illegal brothels or to work alone from indoor locations. Such a
move leaves these women more isolated than before, which arguably
exposes them to greater risks of violence, and leaves them open to the
forms of harm that are more common in indoor settings, for example,
economic exploitation.
32
Conviction rates have been low, amounting to around five hundred in the
ten years since the law was enacted.
33
Research by the police board and others
noted that, of cases filed by the police, the majority of investigations were
discontinued due to insufficient evidence
34
and few proceeded to court.
35
19
27 Socialsty relsen (SoS), Ka
Ènnedom om prostitution 1998±1999 (2000); SoS,
Prostitution in Sweden 2003 ± Knowledge, Beliefs and Attitudes of Key Informants
(2004); SoS, Ka
Ènnedom om prostitution (2007); Brottsfo
Èrebyggande Ra
Êdet (BRA
Ê),
Fo
Èrbud mot Ko
ÈpavSexuella Tja
Ènster: Tillampningen av Lagen under Fo
Èrsta A
Êret
(2000); A. Nord and T. Rosenberg, Rapport: Lag om Fo
Èrbud mot Ko
ÈpavSexuella
Tja
Ènster. Metodutveckling Avseende A
Êtga
Èrder mot Prostitution (2001).
28 Hubbard et al., op. cit., n. 4.
29 It has always been low in comparison to other European countries, with street
prostitutes never totalling more than 1000 nationally, Kulick, op. cit., n. 21, p. 220.
30 This was recently followed in July 2008 by a new Action Plan on prostitution
(Ministry of Integration and Gender Equality, Action Plan against Prostitution and
Human Trafficking for Sexual Purposes (2008)), with a further 200 million kroner
for international action and further educational measures to `help [the people]
rethink their attitudes' (`Government gets tough on sex trade' The Local, 16 July
2008). The focus again is on the symbolic implementation of the law and not on
improving the material condition of sex workers.
31 SoS, op. cit., n. 26.
32 M.A. Barnard, G. Hurt, C. Benson, and S. Church, `Client violence against
prostitutes working from street and off-street locations: A three-city comparison'
(2002) ESRC Violence Research Programme.
33 `Swedish prostitution: gone or just hidden?' The Local,10January 2008.
34 BRA
Ê,op. cit., n. 26.
35 Nord and Rosenberg, op. cit., n. 26, p. 208.
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There is even less information on numbers exiting, on what social support
exists for this, and of its effectiveness.
36
Thus, the law, despite governmental claims, has had little evidenced
impact on supply or demand but, rather, has achieved a restructuring
between `visible' street working and `invisible' off-street work.
37
Alongside
this, a number of reports note the law's negative impact on the most socially
marginalized individuals who remain working outdoors. This was due to
greater policing, a drop in custom leading to lower prices, less choice of
clients, quick transactions, and consequently, greater risk taking,
38
a finding
echoed in O
Èstergren's interviews with women, who reported experiencing
greater stress and danger on the streets.
39
Thus, criminalizing the purchase of
sex in order to provide greater protection for women in prostitution has had
the paradoxical effect of generating higher levels of risk and danger to those
most vulnerable to risk ± street-based sex workers.
Evidence from the Dutch system reveals a similar pattern in operation.
The new law allows for licensed forms of work and so does not condone all
instances of prostitution. For those deemed to be voluntarily engaged in sex
work in a brothel setting, the previous restrictions on prostitution were
removed from the criminal code (these were in any event rarely enforced
through the previous system of `regulated tolerance').
40
For those who could meet these conditions, there was some evidence of
improved working conditions within regulated brothels.
41
Yet workers also
experienced increased control. They were, for example, required to produce
documents in order to identify their status (their age and residential or
immigration status), and encouraged to self-regulate their behaviour in the
interests of public health, with social workers and public health workers
alike encouraging prostitutes to conform to certain modes of working
according to licensing conditions and business norms.
42
20
36 Numbers if they were available would in all likelihood be diminished given the
recession's impact on the economy and job market and the increasingly retraction of
the welfare state, factors that are noted to impact negatively on women's ability to
exit sex work: see S.A. Ma
Ênsson and U.C. Hedin, `Breaking the Matthew Effect: On
Women Leaving Prostitution' (1999) 8 International J. of Social Welfare 67±77.
See, also, Scoular and O'Neill, op. cit., n. 16.
37 Hubbard et al., op. cit., n. 4; L. Johansson and K. Persson, Perspektiv pa
Êprostitution
(2004).
38 Nord and Rosenberg, op. cit., n. 26.
39 P. O
Èstergren, `Sex Workers Critique of Swedish Prostitution Policy' (2004)
available at: .
40 C. Brants, `The Fine Art of Regulated Tolerance: Prostitution in Amsterdam' (1998)
25 J. of Law and Society 621±35.
41 I. Vanwesenbeeck, M. HoÈing, and P. Vennix, The social position of prostitutes in the
regulated circuit a year after the change (2002); A.L. Daalder, Lifting the Ban on
Brothels: Prostitutio n 2000±2001 (2004); A.L. Daalder, Prostitution in the
Netherlands since the lifting of the brothel ban (2007), available at
42 Vanswesenbeeck et al., id.
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The costs of compliance and conditions imposed by this system
prioritized certain businesses and locations, leading to the constriction of
the legal market in sexual services and the promotion of more corporatized
forms.
43
The majority of sex workers lack the financial resources to set up on
their own and would in any case resist a formalized employer/employee
relationship, preferring an independent contractor status. Alongside this,
many workers by reason of age, nationality or health-status are excluded
from a formalized system. Notably, street sex work does not feature in the
system of positive regulation. Indeed, many authorities appeared to assume
that by licensing some brothels they somehow dispensed with the need to
provide space for outdoor workers; thus tippelzones
44
in Amsterdam,
Rotterdam, and Herleen have all closed since the repeal of the brothel ban.
45
The net effect of the new law was a constricted legal sector with better
working conditions for a small minority who were also subject to increased
regulation and a wider displacement to a larger unregulated illegal sector.
This has significant implications as noted in Daalder:
The various developments in the prostitution sector would appear to be
resulting in a growing division in the prostitution world . .. The combination of
inspections in the regulated sector and . . . limited enforcement efforts in the
unregulated sector results in a situa tion where involuntary prostitutes,
underage prostitutes or illegal prostitutes have relocated from the regulated
sector to the unregulated sector. These forms of prostitution are characterised
by a lack of supervision and by poor accessibility for support workers, leaving
[them] even more vulnerable to exploitation and making their position worse
rather than better.
46
SAME DIFFERENCE?
Thus, despite legalization and abolitionism being frequently cast as
oppositional in policy, media, and academic circles,
47
with political lines
drawn accordingly, the aforementioned evaluations and recent empirical
work reveals that the difference in policy effects between these two positions
is not as marked as rhetoric would suggest.
48
For example, my own work
21
43 Hubbard et al., op. cit., n. 4; `In Amsterdam the reported number of legal brothels
halved with the introduction of the law, Amsterdam to Cut Brothels in Half'' BBC,6
December 2008.
44 These are areas where street prostitution is tolerated by the police and where certain
services, for example medical and social, may also be provided.
45 City of Amsterdam, Voortgangsrapportage sluiting Tippelzone (de ontwikkelingen
sinds de sluiting van de Theemsweg (2004).
46 Daalder, op. cit. (2004), n. 41, p. 50.
47 Kilvington et al., op. cit., n. 1.
48 This includes my own work with P.J. Hubbard et al., `Re-regulating sex work in the
EU: prostitute women and the new spaces of exception' (2008) 15 Gender, Place
and Culture 137±52; Bernstein, op. cit., n. 4; AgustõÂn, op. cit., n. 6.
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with Hubbard, Matthews, and AgustõÂn
49
contrasts these two European
`extremes' with the United Kingdom system, showing considerable common
ground, notably in terms of the lack of attention paid to many forms of
indoor work and the increasing marginalization of street sex work.
Bernstein made similar observations when comparing the Dutch and
Swedish systems with previous fieldwork conducted in her native San
Francisco:
In San Francisco, Stockholm and Amsterdam, three quite disparate versions of
policy reform in the late 1990s resulted in a common series of alterations to the
social geography of sexual commerce: the removal of economically dis-
enfranchised and racially marginalised street walkers and their customers from
gentrifying city centres; the de facto tolerance of a smaller tier of pre-
dominantly white and relatively privileged indoor clients and workers; and the
driving of illegal migrant sex workers further underground.
50
The congruence between these empirical findings is striking, raising impor-
tant questions as to the significance of law. At one level, the similarities
could be explained by a gap between formal law and its implementation.
There are, as documented, practical forces and concerns that mean that what
is intended in the different responses just does not play out on the ground in
either system: thus those implementing the Swedish law focused almost
exclusively on the most visible forms of sex work, leading to a displacement
and an almost de facto tolerance of more private forms of commercial sex.
At the same time, the Dutch promise of pragmatic regulation was not taken,
or could not be taken up by many who continued to operate beyond the
regulatory system, excluded from its protection. But do these practical issues
offer sufficient explanation as to why systems that have selected
diametrically opposed approaches continue to display such similar results?
One possible attempt to address this issue at a deeper, more analytical
level is provided by AgustõÂn who argues that this lack of distinction is
evidence that law simply does not matter, with much of sexual commerce
taking place despite its supposed legal status. In the sections that follow I
take issue with this verdict as I explain why and how law does matter in
shaping contemporary sex markets in similar ways, which fits within a
broader content of neo-liberalism. It is the contention of this article that law
does form part of the explanation, but only if it is properly theorized through
the lens of governmentality. I argue that, regardless of substantive or even
practice differences, there are important parallels in the way in which law is
operationalized in the service of power that unites both regimes, and it is
only if we adopt a more complex understanding of law in modern society
that we can appreciate its continued relevance.
22
49 Hubbard et al., op. cit., n. 4.
50 Bernstein, op. cit., n. 4, p. 146.
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DOES LAW MATTER? LAW AS `MERELY' SYMBOLIC
AgustõÂn's work in the area of commercial sex has offered important
boundary-breaking insights. In proposing the integration of a cultural studies
approach to the field she has joined others
51
in opening up the analytical
frame beyond endless moral debate and the over-emphasized and `per-
petually stigmatized' category of women selling sex, to take in the much
wider social and discursive field encompassed by the intersection of `a range
of activities that take place in both commerce and sex':
With the academic, media and `helping' gaze fixed almost exclusively on
women who sell sex, the great majority of phenomena that make up the sex
industry are ignored, and this in itself contributes to the intransigent stigma-
tization of these women .. . commercial sex is usually disqualified and treated
only as a moral issue. This means that a wide range of ways of study are
excluded. A cultural-studies approach, on the contrary, would look at com-
mercial sex in its widest sense, examining its intersections . . . the everyday
practices involved and try to reveal how our societies distinguish between
activities considered normatively `social' and activities denounced as morally
wrong.
52
Her work on migration and labour markets similarly rejects the stereotypes
of passive trafficked victims and benign saviours, a reductionist caricature
which obscures the processes of global capitalism (which depend upon
marginalized migrant groups
53
) and the, at times, parasitic interests of what
she terms `rescue industries'.
In a recent special edition of Sexuality Research and Social Policy,
AgustõÂn attempts a similar shift in perceptions as regards the legal regulation
of commercial sex. Following on from her previous work which is heavily
influenced by Gray's anti-enlightenment project,
54
she argues against what
she regards as a misplaced faith that progress and emancipation will emanate
through more enlightened law reform. The belief in increased social
harmony through better laws is, she argues, irrational and myopic as law has
little bearing on the ways in which the sex industry functions:
In the domain of commercial sex, the search for the most rational, most just,
and least upsetting model goes on, but almost exclusively in debates on socio-
legal regimes that aim to prohibit or permit, punish, or tolerate the provision of
sex for money. Based on moral and ethical worldviews, these assume that
23
51 This follows important work such as M. O'Neill, Prostitution and Feminism:
Towards a Politics of Feeling (2000); S. Bell, Reading, Writing and Rewriting the
Prostitute Body (1994).
52 L. AgustõÂn, `New Research Directions: The Cultural Study of Commercial Sex'
(2005) 8 Sexualities 618.
53 L. AgustõÂn, Sex at the Margins: Migration, Labour Markets and the Rescue Industry
(2007).
54 J. Gray, Enlightenment's Wake: Politics and Culture at the Close of the Modern Age
(1995).
ß2010 The Author. Journal Compilation ß2010 Cardiff University Law School
progress, in the hope of better societies with better social justice and harmony
will result.
55
On the contrary, the fact that legal systems are characterized by non-
compliance, with seemingly contrasting systems producing similar results
means that for AgustõÂn, the law is largely irrelevant in regulating
contemporary forms of sex work:
[I] dispute the usual assumption that these laws make reality on-the-ground
very very very different. On the contrary, if someone were to come to Earth
from Mars, they would look at commercial sex in the USA, which mostly has
meant criminalising laws, and look at it in New Zealand or the UK or
Germany, and not see much difference at all. The endless debating about legal
systems to control prostitution is bizarrely irrelevant, except for its symbolic
value.
56
While I would agree with much of AgustõÂn's descriptive account with
regards the empirical effects of many law reforms, her prescriptive account
of law is less convincing. While it is certainly the case that the legal doctrine
is over-privileged in much analysis of prostitution, and while I would agree
that blind faith in the law is, of course, unsustainable as a political and
intellectual position, it does not necessarily follow from this that law does
not matter in any significant way in shaping the contours of contemporary
sex work.
There are two related aspects of AgustõÂn's expulsion of law that I
highlight as particularly troubling. First, by taking law at face value, AgustõÂn
offers a limited understanding of modern legal power and thus
underestimates its role in authorizing and shaping contemporary power
relations. Secondly, and relatedly, by failing to appreciate the specificity of
modern legal power, there is a concomitant failure to appreciate law's (albeit
circumscribed) potential to transform. By contrast, utilizing insights from
theories of governmentality, I offer a new approach to the study of the
regulation of sex work. I use this to revisit the aforementioned empirical
findings to show how law matters in neo-liberal settings, in constructing the
space, subjects, and systems of governance, and conclude by arguing how
law could matter in future struggles.
WHY LAW MATTERS: CRITIQUING THE EXPULSION OF LAW
AgustõÂn,insetting out what she terms her anti-statist approach, rightly
recognizes that to view commercial sex through the lens of legal doctrine
frames the subject too narrowly. Yet her own analysis is similarly afflicted as
24
55 AgustõÂn, op. cit, n. 6, p. 74.
56 See ura_Agustin/bad-reporting-prostitution-law-and-
the-bbc-> which featured on her incredibly informative web blog, `Border Thinking
on Migration, Trafficking and Commercial Sex'.
ß2010 The Author. Journal Compilation ß2010 Cardiff University Law School
she relies on a limited and out-dated juridical understanding of law which
reinscribes the monism she rejects in all other categorizations. Law, in
AgustõÂn's thesis, is reduced to its sovereign expression: that which is
enacted
57
or judged by the legislature and judiciary and then enforced by the
policing agencies of the executive.
58
Thus, when legal rules that seek to
criminalize or legalize prostitution do not activate this juridical structure,
they are rendered impotent. In AgustõÂn's schema, when `reality' does not
relate directly to law's pronouncements, it is rendered irrelevant:
Almost all of the effects of legal regimes refer to the large, sometimes very
large numbers of people who operate outside or against the law (whatever is in
place) and a main element of all of these regimes is toleration, areas outside of
the system in which the whims of local police and municipal politicians decree
whether those who sell sex can be prosecuted.
59
Yet, can these people and their actions be accurately described as `outside or
against the law' or as `areas outside the system'? The impression given here
is of law as a free-floating entity, with society going on outside of it. The
relationship between law and society cannot be easily separated nor cast as
merely symbolic (without a much greater account of what symbols mean), as
law is imbricated in the very power relationships that constitute society. This
more complex relationship cannot be captured by the analytical tools
AgustõÂn uses in her critique: `rational/irrational' is not a sufficiently nuanced
analytical device to consider the relationship between modern law and
power, and operates instead to stymie the potential of her analysis. The
charge of irrationality against law tells us little about its relationship to
contemporary power structures; rationality is simply part of law's rhetoric.
As Valverde and Rose remind us:
There is no such thing as `The Law'. Law, as a unified phenomenon governed
by certain general principles is a fiction. This fiction is the creation of the legal
discipline, of legal textbooks, of jurisprudence itself, which is forever seeking
for the differentia specifica that will unify and rationalize the empirical
diversity of legal sites, legal concepts, legal criteria of judgement, legal
personnel, legal discourses, legal objects and objectives.
60
Rationality, then, is simply a device used by positivist projects in their
attempts to unify law `jurisprudentially or genealogically' in order to present
an image of a law as a bounded rational system. By assuming that law is only
expressed in this framework, AgustõÂn shares the myopia of positivist
jurisprudence which assumes `an internally coherent legal system' which has
`a state monopoly on the classification of law'.
61
This fails to recognize the
25
57 Or posited (hence the term positivism).
58 K. Walby, `Contributions to a post-sovereigntist understanding of law: M. Foucault,
Law as Governance and Legal Pluralism' (2007) 16 Social and Legal Studies 551±
71, at 552.
59 AgustõÂn, op. cit., n. 6, p. 75.
60 Rose and Valverde, op. cit., n. 8, p. 545.
61 W. Twining, Globalisation and Legal Theory (2000) 232.
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ways in which law adapts to changes in power more generally; how law
matters in modern societies. Sovereign/juridical power may describe a
particular operation of legal power but it is not the only, nor indeed the most
significant way that power manifests itself in contemporary late-capitalist
societies. While positive law may well still be in place, and indeed is
frequently called upon to address the problem of prostitution, juridical
structures are no longer adequate in themselves to describe the multiple ways
in which modern legal power operates in this field.
62
To be fair, critical legal work is not sufficiently developed in the field of
prostitution,
63
with studies tending, like AgustõÂn,tofocus on legal rules and
their shortcomings, yet failing to elucidate properly the ways in which law
operates in modern societies. While there is increasing recognition that `law
shapes but does not determine the extent of sexual exchange',
64
there is little
by way of analytical explanation, or connection to wider theory on the
operation of law in late modernity. This article strives to begin such a
process. Utilizing the insights derived from Foucault's genealogical method
and theories of power, it develops a more complex understanding of law in
society, one that can recognize its significance without overestimating its
power. Insights derived from Foucault's theory of governmentality, which
advances an understanding of power beyond the focus on its location in a
specific site to an awareness of its changing techniques and rationalities of
control, is vital in understanding the shifts in modern legal power which
mirror the more diffuse forms of power in modernity.
65
Viewing law through
the lens of governmentality allows us to appreciate that law has adapted from
a juridical repressive model towards more productive forms, making it still
pertinent to the regulation of contemporary forms of sex work.
Applying Foucault's theory to law has been controversial and this may
have influenced AgustõÂn's limited appreciation of law which does seem out
of step with her previous work which is infused by post-structuralism yet
strangely stops at law. There is some precedence to this. At various points in
his early writings, Foucault appeared to eschew law from his account of the
changing configurations of power:
We must eschew the model of Leviathan in the study of power. We must
escape from the limited field of juridical sovereignty and state institutions, and
instead base our analysis of power on the study of the techniques and tactics of
domination.
66
26
62 V.E. Munro, `Legal Feminism and Foucault ± A critique of the Expulsion of Law'
(2001) 28 J. of Law and Society 546±67, at 556.
63 For a fuller attempt to fill this void, see J. Scoular, The Subject of Prostitution
(2010).
64 M. Neave, Inquiry into Prostitution: Final Report (1985).
65 M. Foucault, The History of Sexuality, Vol. 1 (1979).
66 M. Foucault, `Two Lectures' in Power/ Knowledge: Selected Interviews and Other
Writings, 1972±1977,ed. C. Gordon et al. (1980) 102.
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The rise of disciplinary and bio-power appears to herald the demise of
juridical forms and law would, therefore, appear to recede:
67
It is a question of orienting ourselves to a conception of power which replaces
the privilege of the law with the viewpoint of the objective . . . the privilege of
sovereignty with the analysis of a multiple and mobile field of force relations.
68
This has led some writers to conclude that law has little bearing on modern
societies, a point AgustõÂn seems to echo. Yet, the antagonism between
juridical codes and disciplinary measures is hard to square with Foucault's
wider theoretical insights, a point made by a number of academics who have
sought to recover law from its expulsion from the Foucauldian project.
69
Ewald and Tadros, for example, make the semantic distinctions between the
writer's use of the terms juridical, which describes legal structures of power,
and law, which describes the legal processes through which power operates.
They point out that Foucault tended to collapse these terms in his earlier
work
70
giving the impression of law receding when in fact all he meant to
imply was the declining significance of juridical structures of power, not law
and legal processes which may remain an important mechanism through
which new forms of power operate and as vital `technique[s] and tactic[s] of
domination'.
71
This seems a more likely interpretation as it would be somewhat
anomalous for Foucault not to extend his recognition of the creativity of
power relations to the legal complex. Indeed, as Munro notes, it would only
be if we were to assume that Foucault understands law according to an
outdated Austinian model, as commands backed by threats, that it would
make sense to regard him as consigning the power of law to a past epoch of
sovereign rule.
72
However, as seems more likely, assuming that he took a
wider view of legal power, accepting that it too has been transformed as it
adapts to changes in power more generally, we can recognize the withering
of juridical power without assuming as a corollary a lessening significance of
law. As Foucault himself would appear to confirm:
Another consequence of this development of bio-power was the growing
importance assumed by the action of the norm at the expense of the juridical
system of the law . . . I do not mean to say that the law fades into the
27
67 A. Hunt and G. Wickham, Foucault and Law: Towards a Sociology of Law as
Governance (1994) 40; Smart, op. cit., n. 8.
68 Foucault, op. cit., n. 66, p. 102.
69 A. Hunt, `Foucault's expulsion of law: Toward a Retrieval' (1992) 17 Law and
Social Inquiry 1±38.
70 F. Ewald, `Norms, Discipline and Law' in Law and the Order of Culture,ed. R. Post
(1991); V. Tadros, `Between Governance and Discipline: The Law and Michael
Foucault' (1998) 18 Oxford J. of Legal Studies 75±103; Rose and Valverde, op. cit.,
n. 8.
71 Foucault, op. cit., n. 66, p. 102.
72 Rose and Valverde, op. cit., n. 8, p. 542.
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background or that the institutions of justice tend to disappear, but rather that
the law operates more and more as a norm, and that the judicial institution is
increasingly incorporated into a continuum of apparatuses (medical, admini-
strative, and so on) whose functions are for the most part regulatory.
73
Thus, as Foucault confirms, while law may no longer provide the model for
power relations in society, it remains a vital process through which modern
power relations operate; `a medium rather than a principle of power'.
74
This
suggests not the supplementation of sovereignty by discipline, or the
displacement of law but rather its embedding within governmental strategies
that increasingly centre on the routine administration of lives,
75
a point
confirmed by the sheer profusion of social laws that have accompanied the
development of modern normalizing societies. As Rose and Valverde so
perceptively note:
The legal complex had itself become welded to substantive, normalizing,
disciplinary and bio-political objectives having to do with the re-shaping of
individual and collective conduct in relation to particular substantive
conceptions of desirable ends. The legal complex, that is to say, had been
governmentalized.
76
It is this governmentalization that explains law's continued relevance in
shaping the contours of contemporary forms of sex work. As law adapts to
the wider social and political culture of neo-liberalism, typified by a
decentred economy and forms of governance that operate at a distance, it too
increasingly reflects its `economized model'
77
of power, operating through,
not simply over, lives.
This model implies not less power but rather its more rationalized
deployment as it is operates productively for the protection of lives, not
simply by threatening to take them away (though this remains in the
background).
78
While there may be less government there is more govern-
ance, as power operates through normative discourses (including law) to
produce subjects as effects of power and to `structure the[ir] possible field of
action'
79
in ways that so often align with wider social structures. Thus in the
28
73 Foucault, op. cit., n. 66, p. 144.
74 S. Veitch, E. Christodoulidis, and L. Farmer, Jurisprudence: Themes and Concepts
(2007) 242.
75 Foucault, op. cit., n. 66, p. 144
76 Rose and Valverde, op. cit., n. 8, p. 543
77 id.
78 Sullivan describes the schizophrenic natu re of late-modern criminal jus tice
processes in which `socially inclusive neo-liberal techniques of regulation can co-
exist with more overt forms of control and repressio n: R. Sullivan, `The
Schizophrenic State: Neo-Liberal Criminal Justice' in Crime, Risk and Justice:
The Politics of Crime Control in Liberal Democracies,eds. K. Stenson and R.
Sullivan (2001).
79 M. Foucault, `The subject and power' in Michel Foucault: beyond structuralism and
hermeneutics,eds. H.L. Dreyfus and P. Rabinow (1982) 212±21, at 221.
ß2010 The Author. Journal Compilation ß2010 Cardiff University Law School
context of a retracted or dismantled welfare state, individuals are
increasingly responsible for their own well-being which is all the time
more aligned to market norms. For those who fail in this task of ethical self-
discipline, exclusion is their fate. Thus, modern systems of governance may
actually augment and allow the carceral system to function better ± by
identifying for criminalization those who cannot self-correct.
80
By corollary, modern law operates as much through freedom, rights, and
norms as it does through censure, to regulate the complete lives of
individuals rather than simply to prevent certain actions. In this context it
operates both through the `empowering' systems of licensing and welfare-
inspired interventions designed to liberate women from the oppressive
`reality' of commercial sex. In order to examine how law matters in this
more complex way, we need to take a more expansive view beyond the legal/
illegal, inside/outside binaries that AgustõÂn employs, beyond law's positivist
presentation (as a `unified phenomenon carried out by specialist institu-
tions'
81
), and, as Valverde and Rose advise, examine instead what `law is
doing'.
82
This allows us to move beyond the `dreary debate between
sovereignty and discipline',
83
as both are shown to be involved in
contemporary forms of governmentality.
The insights of governmentality suggest a new focus for future regulatory
studies: to examine the ways in which law regulates and legitimates the
operations of discipline, as it is `these operations, rather than juridically
imposed interdictions that constitute the fabric of the modern subject'.
84
This
signals a new, but important, direction for research in the area of prostitution
policy.
The hypotheses it yields will, of course, require further empirical
testing.
85
With that caveat in place, I return to consider what law is doing in
each of the aforementioned jurisdictions. Using an adaptation of Valverde
and Rose's four foci of normalizations, authorizations, subjectifications, and
spatializations, which they offer as a useful guide to analyse the legal
complex from the perspective of government, I suggest that it is precisely
because law does matter, in shaping subjects, spaces, and forms of power in
29
80 A system which itself is increasingly tasked `to transform and reconstruct self-
reliance in the excluded': N. Rose, `Government and Control' (2000) 40 Brit. J. of
Criminology 321±39, at 335.
81 Rose and Valverde, op. cit., n. 8, p. 550.
82 Hunt and Wickham, op. cit., n. 67, p. 99; Rose and Valverde, id.
83 Rose and Valverde, id., p. 550.
84 Tadros, op. cit., n. 70, p. 103.
85 I make these claims tentatively as these studies did not set out with this specific
methodology in place. This area requires much more detailed empirical work that
can capture nuances in regulatory regimes; a fine example is Sullivan's work in this
collection, where she carefully illustrates the impact of different modes of regulation
for different groups of sex workers in two Australian states, both of which are often
collapsed into one national scene and one homogeneous group.
ß2010 The Author. Journal Compilation ß2010 Cardiff University Law School
line with wider forms of neo-liberal governance, that a continuity is ensured
across these apparently diverse legal systems.
HOW LAW MATTERS
1. Norms
By examining what law is doing in both cases, it becomes apparent that
despite the difference in rhetoric, legal strategies for the governance of sex
work share a number of similarities in terms of their regulatory ambitions.
Empirical evidence points to two parallel processes in which prostitution
becomes a target for the state's wider efforts to responsibilize citizens, while
simultaneously maintaining spaces for the operation of the capitalist
economy.
Processes of licensing and exiting operate to normalize particular forms of
citizenship and sexual activity which enhance a broader structure of con-
sumption, rendering deviant those who cannot through poverty, race,
immigration status or health meet these increasingly restricted norms of
citizenship, and marginalizing unproductive spaces. As Bernstein notes:
both the state policing of the street-level sex trade and the normalization of
other forms of commercial sex business reveal a shared set of underlying
economic and cultural interests; the excision of class and racial Others from
gentrifying inner cities, the facilitation of the post-industrial service sector,
and the creation of clean and shiny urban spaces in which middle-class men
can safely indulge in recreational commercial sexual consumption.
86
This normative order is established not through law as such but via a
continuum of regulatory mechanisms of which it forms part. Law has no
privilege in this system but it does play a vital role in authorizing other forms
of knowledge, helping to shape content, and empowering a much wider
group of regulatory agents in exercising more diffuse forms of power.
2. Authorizations
Examining the extended forms of governance operating in this area may
enlighten us more about what law is doing than the statute book. Thus, in the
context of Sweden and the Netherlands, despite differences at a sovereign
level in prostitution policy, law authorizes and operates though a number of
quasi-legal forums (john schools, exiting programmes, rehabilitation
schemes, and licensing boards) and techniques (anti-social behaviour orders,
fines, rehabilitation orders, licenses) in which an extended group of
regulatory agents exercise normalizing power: `all the little judges of
30
86 Bernstein, op. cit., n. 4, p. 141.
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conduct [who] exercise their petty powers of adjudication and enforce-
ment'
87
in what Valverde and Rose call `the bureaucratic workings of our
over-governed existence'.
88
These forums feature a hybridization of legal and non-legal authority. The
state's role appears to recede but it may actually be augmented by a wider
range of control mechanisms and forms of professional intervention that may
be even more pervasive than the previous systems. Licensing decision
making is devolved to a wider group, yet operates to reaffirm the dividing
lines between legitimate and illegitimate forms of commercial sex. Indeed, it
may be more useful than direct control as delegated authority refines law
more minutely in response to shifting realities on the ground and employs a
wider group of authorities in its realization. This ensures that the wider
structures of governmentality fit with local conditions while appearing to
comply with the liberal objection to state interference.
Thus, in the case of the Netherlands, while street sex work has not been
outlawed it has been made more and more difficult, as a number of
municipalities in closing their tippelzones have dispensed with their previous
assumed duties to provide safe places for street sex work. Similarly the
economic and racial segregation apparent in indoor settings appears distant
and accidental as it is effected by powers exercised by diverse groups.
In Sweden decriminalization premised on exiting may actually signal a
wider range of control mechanisms and forms of professional intervention
which are even more pervasive than the previous system of fines. Thus, the
apparent increased `protection' promised by reforms results in the increased
policing of many women's lives.
89
3. Subjectifications
There is a question which is essential in the Modern Tribunal, but which would
have had a strange ring to it 150 years [ago]: `Who are You?'
90
Foucault's observation in The Dangerous Individual is that law in
normalizing societies is increasingly concerned with lives rather than with
acts. This is evident in the current preoccupation with particular subjects and
spaces of sex work and the operationalizing of forms of governance to save,
empower, responsibilize, and ethically reconstruct individuals ± all testament
to law's increasing normalizing ambitions as it acts alongside oth er
discourses to construct `the fabric of the modern subject'.
91
In doing so it
31
87 Rose and Valverde, op. cit., n. 8, p. 546.
88 id.
89 J. Phoenix, `Youth Prostitution Policy Reform: New Discourses, Same Old Story' in
Women and Punishment: The Struggle for Justice,ed. P. Carlen (2002) 82.
90 M. Foucault, `The Dangerous Individual' in Politics, Philosophy, Culture:
Interviews and Other Writings 1977±1984,ed. L.D. Kritzman (1988) 126.
91 Tadros, op. cit., n. 70, p. 103.
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operates not ideologically, as there is always resistance, nor through the
simple imputation of legal consciousness,
92
but through a process of
subjectification, encouraging self-projects in ways that align with the diverse
objectives of legislation.
93
Thus, if we examine the continuities in the
projects of self-governance promoted in each jurisdiction, we begin to see
that the commonly accepted opposition between victim and agent may not be
as marked when viewed through a governmental lens. Thus, through parallel
forms of subjectification, both licensing and exiting operate to encourage
subjects to perform as `self-governing, rational actors' required by the wider
context of neo-liberalism and to identify those who cannot self-manage or
who resist normalization in order that they be excluded.
Thus when we look to Sweden and ask what law is doing with regard to
the types of subjectifications it encourages, we see that while it decriminal-
izes selling sex (due to women's assumed victimhood), it replaces this with a
32
92 The term legal consciousness is not the most useful concept to apply in this context
as it is often limited to understanding `what particular individuals think and do'.
Thus, as with AgustõÂn, when individuals do not follow or self-identify with law, it
risks being rendered insignificant. For example, in a study of street-based drug-using
women by Levine and Mellema, law did not feature prominently, leading them to
conclude that the literature on legal consciousness over-privileged law, which was in
their findings less important than other structural factors (K. Levine and V.
Mellema, `Strategizing the Street: How Law Matters in the Lives of Women in the
Street-Level Drug Economy' (2001) Law and Social Inquiry 169, 179). While not
disputing these findings, I would again caution against their implications for a wider
analysis of law in society. The problem with such analyses is that they take too
literal an approach to law and tend to examine law only in its sovereign sense, as a
singular power in a hierarchy of norms, ignoring the myriad of ways that modern
law operates as part of a complex regulatory apparatus focused on lives. An analysis
informed by governmentality would, as I argue above, avoid the simple imputation
of subjects as `against the law' or even `outside the law' when the law and their
quasi-legal status very much structures their daily activities. Silbey, in `After Legal
Consciousness', appears to make a similar argument, without linking directly to
governmentality. She explains that legal consciousness as a theoretical concept has
become too compromised,
the relationships among consciousness and processes of ideology and hegemony
often go unexplained, legal consciousness as an analytic concept is domesticated
within what appear to be policy projects: making specific laws work better for
particular groups or interests.
(Silbey, op. cit., n. 6, p. 323.) In order to retain a critical edge, understandings of
legal consciousness must, according to Silbey, be able to explain how different
experiences of law become synthesized into a set of circulating schemata and habits
often seemingly connected to persistent `forms of inequality and domination
characteristic of industrial capitalism' (id., p. 325, citing L. Kalman, The Strange
Career of Legal Liberalism (1996)). I would suggest these schemata are better
explained via theories of governmentality and its foci of spatializations,
subjectifications, norms, and authorizations which offer a much-needed specificity
to a complex area. I suggest, then, a synthesis of legal consciousness literature and
governmentality to provide an important corrective to this literature.
93 Rose and Valverde, op. cit., n. 8.
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system of welfare and therapeutic interventions which operate to support
wider systems of neo-liberal governance.
Despite being heralded as a `renewed welfare approach', which in any
event is not necessarily benign, as my previous work with Maggie
O'Neill
94
points out, contemporary forms of governance operate through
these techniques of responsibilization. Techniques of `exiting' women from
prostitution must be viewed in the wider context of neo-liberalism in which
welfare states, including the much renowned Swedish system, are retracting
and being replaced by systems of private insurance, thus leading to
increasing conditionality in citizenship and penality for those who cannot
meet their terms/manage risks. In this context social exclusion is not
tackled by structural change but via individual re-education, re-training,
and entry into legitimate economies and relationships. By prioritizing
`exiting' as a means of facilitating social inclusion rather than offering
recognition, rights or redistribution to sex workers as a group, abolitionist
systems promote forms of self-governance which require active citizens to
self-regulate according to the norms of the family and the market. Those
who act responsibly by adopting appropriate lifestyles via work and norms
of sexuality are offered inclusion, those who do not or cannot and instead
remain in sex work (which retains its criminal label) are further excluded,
having failed to meet the increasingly normalized terms of citizenship in
late-capitalist societies.
The increased focus on male clients involves the promotion of similar
individuating modes of governance. Despite the rhetoric of gender equality,
the increased punitiveness towards (some) purchasers represents no more
than the shifting of the `whore stigma' to a new deviant group. Respon-
sibility becomes increasingly narrowed to client motives and individual
sexual ethics, which are pathologized rather than explained in relation to
their historical specificity and to the social and economic institutions that
themselves structure the relations of gender domination.
95
When action is
taken through criminalization, or via the quasi-legal forums of john schools
and name-and-shame campaigns, it typically operates on `a lower-tier of
male heterosexual practices' or to `re-gender sexual stigma in certain middle
class fractions',
96
leaving the more mainstream corporate and private market
untouched.
The system of regulationism in the Netherlands encourages similar forms
of self-governance and produces analogous exclusions. Research suggests
that legalized systems create a two-tiered (if not more) industry, as the costs
and norms of compliance are too onerous for most individuals and small
brothel owners to bear. Thus, it overwhelmingly favours profitable sex
33
94 Scoular and O'Neill, op. cit., n. 16.
95 Scoular, op. cit., n. 23, p. 206.
96 Bernstein, op. cit., n. 4, p. 115.
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businesses which, as Brents and Hausbeck note, can now hardly be described
as `other' to late-capitalist industries.
97
Alongside this, the system of licensing encourages workers to self-
regulate
98
their behaviour in the interests of public health promotion, to
conform to certain modes of working in order to meet the conditions of
registration. Inclusion is offered to those who `can perform the rituals of
middle class society'
99
with all of the typical exclusions based on age, status,
race, health, and class that this entails. This point is well illustrated in an
advert which followed the decriminalization of brothels in New South
Wales:
. . . tall, blonde and stylish, she recently completed her tertiary marketing
course and is looking for employment in the field . . . She provides her own
condoms .. . and comes complete with a medical certificate.
100
This `ideal' typifies the rational subjects encouraged by these processes, as
law operates alongside practices, such as public health, to create and
maintain what Scott calls a `responsible prostitution population'.
101
The low
take-up rate in the Netherlands indicates that very few can conform to this
responsibilized model, meaning that while licensing can offer some
increased improvement in the working conditions for a small section of
workers, it also operates to identify and exclude those who cannot meet the
increasingly conditional nature of citizenship, for example, migrants, the
underage, and drug-users, all of whom are not incorporated within the
framework of regulatory protection.
Thus in both systems, the moral engineering of advanced liberal govern-
ance has co-opted feminist concerns into techniques of governance and
control. Whether based on a recognition of sex workers' inherent agency or
victimhood, social exclusion is being used as leverage for increased control
rather than for increased social justice. Empowerment simply operates to
sanction forms of self-governance that support neo-liberal interests. As
Cruikshank notes, the recent proliferation of state-sponsored programmes of
empowerment must be treated with critical caution, as even while they are
utilizing the vocabulary of radical politics, their promise of emancipation
may be merely rhetorical as they `endeavour to operationalise the self-
34
97 B.G. Brents and K. Hausbeck, `Marketing Sex: US Legal Brothels and Late
Capitalist Consumption' (2007) 10 Sexualities 425±39.
98 Sex workers rather than clients are encouraged to self-regulate their behaviour in the
interests of public health promotion, with social workers and public health workers
alike encouraging prostitutes to conform to certain modes of working: see Hubbard
et al., op. cit., n. 4, p. 142.
99 B. Sullivan, `Prostitution Law Reform in Australia. A Preliminary Evaluation'
(1999) 18 Social Alternatives 9±14.
100 `Happy Hooker's Rich Pickings: It's a Bed of Roses for $200-an Hour Beauty'
Sunday Telegraph,6August 1995, cited in J.G. Scott, How Modern Governments
Made Prostitution a Social Problem (2005) 264.
101 Scott, id., p. 252.
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governing capacity of the governed in th e pursuit of governme ntal
objectives'.
102
Yet what both processes do well is to identify those who
cannot perform, rendering them vulnerable to exclusion or banishment.
4. Spatializations
Valverde and Rose use the term `spatializations' to describe the governable
spaces demarcated not by law but by the `everyday knowledges' of order and
disorder produced by a whole range of regulatory agents, from local
authorities, businesses, organized crime, security firms, and policing authori-
ties. This results in a `patchwork' of local norms, of which law forms just
part, marking certain conduct as desirable/undesirable, legitimate/illegiti-
mate, according to its place. Street sex work typically appears alongside
other behaviours such as begging and soliciting, loitering, vagrancy and
sleeping rough that are marginalized as space is increasingly structured
according to `a territorial division between the excluded and the included,
between the spaces of consumption and civility and the savage spaces on the
margins'.
103
This exclusionary demarcation of citizenship ties in with my
earlier work with colleagues which paid particular attention to the way in
which new laws were being used to shape the legal geography of sex work.
In Sweden and the Netherlands (and indeed the United Kingdom) we noted
similarities, with abolitionist-inspired law and regulatory devices both being
used as tools for eradicating particular spaces of prostitution, noticeably
street sex work, while less visible forms take place outwith the scrutiny of
the authorities. Thus, in Sweden, enforcement has largely focused on the
most visible forms of sex work, leading to almost de facto tolerance of
indoor and more private forms of commercial sex. In the Netherlands the
protection offered via regulationism does not extend to street sex work,
which `cannot be incorporated within legitimate, regulated and surveyed
economic spaces'.
104
For example in Amsterdam, a combination of the
normalization of certain indoor settings and the non-recognition of outdoor
settings produced the following spatial divisions:
Amsterdam's tippelzone finally closed in December 2003, meaning that there
is now nowhere for sex workers to solicit legally in Amsterdam. Only around
fifty street workers are thought to operate in the city, and only in areas where
police surveillance is less stringent. Given there were between 8000 and
10,000 sex workers in Amsterdam before the repeal of the brothel laws, but
35
102 M. Dean, Governmentality: Power and Rule in Modern Society (1999) 67; B.
Cruikshank, The Will to Empower: Democratic Citizens and Other Subjects (2004)
103; D. Garland, ```Governmentality'' and the Problem of Crime: Foucault,
criminology, sociology' (1997) 1 Theoretical Criminology 173±214.
103 Rose and Valverde, op. cit., n. 8. See, also, J. Hermer, `Keeping Oshawa Beautiful:
Policing the Loiterer in Public Nuisance By-Law' (1997) 12 Canadian J. of Law and
Society 72±94.
104 Hubbard et al., op. cit., n. 48 p. 149.
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only 1500 or so now work in licensed brothels and clubs, the suggestion is that
there has been a major growth in offstreet work in unregulated bordels
(brothels), flats and cellars, mainly well away from a city centre increasingly
dedicated to organised, corporate forms of sex work.
105
Thus despite the differences in formal law, more sophisticated forms of
spatial governance operate to produce similar geographies of legitimate and
illegitimate sex, with safe spaces for consumption and civility coded as
indoor/private and the street increasingly denigrated and most heavily
surveilled.
106
As noted in my earlier European work with colleagues:
while it might be assumed that the Dutch model of legalisation, the UK
abolitionist system and the Swedish prohibitionist approach would have very
different consequences . . . the weight of evidence points to similarities . . .
street prostitution is being increasingly repressed (and displaced) by the state
on the grounds that it is benignly seeking to protect both prostitutes and
communities. Through a contrary set of moves, prostitutes hence `disappear'
beyond the bounds of respectable visibility (and often the protection of the
state and law): even in instances where prostitution has been brought within
the ambit of state licensing systems (e.g. the Netherlands), critics allege a
failure to address many of the issues of gendered inequality occurring in such
off-street spaces.
107
OUTSIDE LAW?
This more complex process of governance offers a more nuanced account of
law's power over subjects. This contrasts with AgustõÂn's account, where she
describes the issue of compliance (or lack of) as involving rational subjects
deciding to deviate from the law and its norms:
many of those to be regulated avoid participating in regulatory projects (even
if they know about them), rather prioritizing their personal convenience, goals
and financial advantage (apparently preferring to be marginalized, pitied,
vilified and criminalized).
108
As the work on governmentality shows this is a reductive view of the
relationship between law and subjectivity. Law operates through freedom as
much as through censure; through both the `empowering' systems of licens-
ing and welfare inspired interventions designed to liberate women from the
oppressive `reality' of commercial sex. The insight that power is productive
and not simply repressive makes the liberal notion of freedom from the law
naõÈve. It also complicates the distinction between legal/illegal and questions
the presence of those `outside or against' law whom AgustõÂn's claims to
36
105 id.
106 id.
107 id.
108 AgustõÂn, op. cit., n. 6, p. 73.
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undermine relevance of law in contemporary sex markets. These people may
be outwith law's sovereign rule/terms but they cannot escape its normalizing
influence;
109
as Tadros notes, `liberation from the blunt technology of the
juridical does not prevent the individual being subjected to the loving force
of bio-power'.
110
Bio-power thus explains the position and indeed fate for many of those
who exist outside law's formal terms yet remain subject to its disciplining
power. In previous work with Hubbard et al., we used Agamben's
111
term
`homo sacer'todescribe these marginalized figures excluded from the law's
protection yet subject to its power,
112
existing on the threshold of the
sovereign state, in a state of liminal drift:
113
Stripped of workers' rights, dignity and adequate protection, those prostitute
women excluded from political life and state recognition appear vulnerable to
exploitation and are inevitably reduced to a form of `bare life'.
114
Such exclusion, re-figured to match the contemporary situation, has always
been the destiny of those deemed prostitutes, whose identity, reductive as it
is, exists to maintain the citizenship of others, and to preserve the boundaries
between the economy and sexuality, work and affective labour. Thus, the
neo-liberal techniques of control outlined above operate to augment an on-
going hegemonic moral and political regulation of sex workers.
115
Yet, ironically, insights from governmentality may also offer some hope
for law's limited potential to challenge these injustices. A further benefit of
Foucault's work is his insights into resistance. As power is immanent in our
social practices and conduct, so too is resistance, albeit circumscribed by the
context within which it operates. As law does not operate ideologically (as
there is always resistance) or directly via consciousness (as it is more than
simply what people think and do) but through its increased governmentality
in shaping the subjects, spaces, and forms of power, it is within these spaces
that some leverage could be applied to loosen the legal complex from being
welded to the power of the norm.
37
109
AgustõÂn almost recognizes this as she quotes Saskia Sassen who describes the
informal economy as a coherent and necessary `outgrowth of advanced capitalism': S.
Sassen, Globalization and Its Discontents (1998) 155. What she fails to explain is how
this coherence is achieved; is it simply a matter of ideology? Or is the capitalist system
maintained through a more complex system of governance, of which law forms a part,
which encourages individuals to operate primarily as consumers (homo economicus)
and structures spaces and forms of citizenship, inclusion and exclusion accordingly?
110 Tadros, op. cit., n. 70, p. 103.
111 G. Agamben, Homo Sacer: Sovereign Power and Bare Life (1998).
112 Hubbard et al., op. cit., n. 4; K. Mitchell, `Geographies of identity: the new
exceptionalism' (2006) 30 Progress in Human Geography 1±12.
113 Z. Bauman, Wasted Lives: Modernity and Its Outcasts (2004).
114 Hubbard et al., op. cit., n. 4, p. 149.
115 Scoular and O'Neill, op. cit., n. 16.
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Given there is no outside of law to effect such challenge, we must work
within its structures. Foucault's genealogical approach shows us that while
law has become increasingly governmentalized, it has not been fully
colonized; it still operates according to a sovereign model, albeit to a much
more limited extent which could be utilized as part of a strategy of
resistance. As Rose and Valverde note, `Not all legal power is juridical and
not all non-legal power is non-juridical, thus it can be deployed both to
extend and to contest normalized political strategies.'
116
Thus, the radical
democratic agenda outlined by O'Neill in this collection could feature a
modest role for law. The recent renaissance in human rights ideals and their
embedding in international and domestic systems may offer a useful vehicle
for her calls for recognition, redistribution, and rights, yet they may also
provide a foil for increased normalization. In the context of neo-liberalism,
the legal complex tends to form a key part of wider processes that constitute
social life (in normalized societies) rather than working to alter or change it,
and sadly in many recent reform attempts, feminists have colluded with this
wider normalizing agenda. The balance, as ever, depends on who utilizes
law, how they do so, and in what context: whether, for example, the terms
`sex worker' or `exploitation' are used to reify exclusionary forms of
identity, and essentialist forms of citizenship while obscuring material
conditions (thus supporting law's normalizing power) or whether these terms
can transcend binaries and give way to wider politics of resistance.
CONCLUSION
In this article I have sought to argue against an uncritical dismissal of law's
role in regulating and structuring the conditions of contemporary sex work.
Despite findings that apparently contrary legal positions produce similar
results on the ground, I wish to argue that this lack of distinction is, in part,
due to law's involvement in wider forms of governmentality that operate to
support a wider neo-liberal context. This means that while it makes sense to
de-centre law from our analysis, we simply cannot ignore it.
Law's increasing hybridization with norms means that it is imbricated in
the everyday world. This suggests a much more expansive, extensive role,
meaning that while AgustõÂn is right to de-centre law, we cannot expel its
relevance. Law and society are mutually constitutive: law may occupy a
more modest position and effect a less direct power than sovereign rule, yet
it may take a more potent form as it increasingly operates alongside other
normative ordering practices to shape subjects, identities, practices, and
spaces. While law can no longer be regarded as the primary source of power,
there is no place outside its control.
38
116 Rose and Valverde, op. cit., n. 8, p. 543.
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Rather than expel law, we need a more complex analytical framework to
understand its contemporary relevance. Such a framework can be developed
by applying insights from theories of governmentality to the studies on the
regulation of sex work. This offers a fuller appreciation of the wider legal
complex, and its role in regulating and authorizing the spaces, norms, and
subjects of contemporary sex work. It also explains law's role in maintaining
the systems of governmentality, across legal systems, that exacerbate these
injustices and forms of bare life that have become hallmarks of late-
industrial capitalist societies.
In arguing for the continued relevance of law I do not intend to reinstate
an imperialist, uncritical positivist position. I argue instead for its strategic
use in order to `pursue a deconstructivist agenda within legal arenas and
discourses'.
117
This requires an acute understanding of law as a mode of
regulation as well as an understanding of how it could be how harnessed as a
tool of resistance. As Tadros notes:
rather than the structure or fabric which constitutes our society, the law is a
machine which oils the modern structures of domination, or which, at best
achieves a tinkering on the side of justice.
118
In order to tinker more on the side of justice rather than domination, one has
to be critically aware of how modern forms of governance and control
operate. This article, it is hoped, begins this process as it allow us to see that
law does matter in the regulation of sex work and could matter, albeit in a
different way than was thought before.
39
117 R. Sandland, `Between Truth and Difference: Poststructuralism, Law and the Power
of Feminism' (1995) 3 Feminist Legal Studies 14.
118 Tadros, op. cit., n. 70, p. 102.
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