Abstract
Jane Scoular’s book is a tour de force. It is the book those in the field of sexual regulation and the law have been waiting for to reignite and redirect a stagnated debate. Scoular’s principle objective is to intervene in contemporary prostitution politics, which privileges law as the solution to the ‘problem’ of prostitution. The subject of the legal regulation of prostitution has received considerable academic and public policy attention. It is striking, however, that little has been written about how law matters in contemporary sex work. Against a backdrop of unprecedented legal reform across national and international contexts that purport to ‘protect’ sex workers and criminalize those who purchase their sexual services, Jane Scoular’s recent book provides a ground breaking and in-depth analysis of the modern subject of prostitution. Drawing on post-structural approaches to the ‘subject’ and in particular Michel Foucault’s theory of governmentality, Scoular concentrates on how law plays a constitutive role in how prostitution emerges as a ‘problem’ of governance. Over the course of six chapters, she pursues ‘a genealogy of the modern subject of prostitution’ to trace and analyse changes in how law works in social relations. And ultimately how this impacts on prostitution as a social practice. Scoular attempts to unsettle law from its hegemonic position in prostitution politics in specific epochs and develop the ‘first post-structural account of both the sociopolitical subject of prostitution and of law’ (p. 17). Scoular argues by understanding law as embedded in social relations we can shift our focus beyond ‘what law says it does’ to ‘what it actually does’ in the context of prostitution regulation (p. 19).
Scoular begins her genealogy of the subject of prostitution and law in Chapters 2 and 3 when she examines the historical, political and ideological terrain in which prostitution becomes a ‘social’ problem in the Victorian era. One of the strengths of this book is Scoular’s close and critical analysis of the key role law plays in making prostitution the object of governmentality. In this regard, she highlights how the Contagious Diseases Acts 1866 and 1869 illuminate not only how law constitutes the subject of prostitution but also a much wider system of social control. Scoular demonstrates how the language of governmentality, with its emphasis on creating ‘populations’ to be governed, not only transforms legal power into mechanisms of governmentality but also makes prostitution a distinct legal category and inscribes a disciplinary regime on prostitutes’ bodies. She recognizes also the strategic possibilities prostitution as a problem of governance creates for early feminists. Focusing on the Ladies National Association campaign to repeal the Contagious Diseases Acts, Scoular argues campaigners’ calls for legal remedies to rescue their fallen sisters become yet another node of governmentality. The transformation of legal power into governmental power permits early feminists to reconstitute other women’s bodies as the object of governmental intervention to further their own normative agenda. Scoular concludes this process, while distinct from those of the contemporary moment, resonates with the trajectory of current feminist campaigns on prostitution.
Building on these foundations in Chapter 3, Scoular examines the re-emergence of the prostitute as ‘a victim subject’ in the late 20th and early 21st centuries. Scoular develops a sharply argued analysis that highlights the impact of polarized feminist prostitution politics. While each camp disagrees on questions of the meaning and morality of prostitution, Scoular suggests each faction is ‘united in their belief that law is a panacea to this Solomonic dilemma’ (p. 2). This situation illuminates, Scoular argues, not only the incompatibility of each perspective but also the central role that law plays in adjudicating between these diametrically opposed views.
Taking Sweden as an example, the author deploys her governmental approach to interrogate how feminists’ problematization of prostitution as gender violence and incompatible with Swedish cultural traditions of gender equality interacts with neo-abolitionism and national identity politics. To develop this argument, Scoular points to the growing phenomenon of radical feminist inspired ‘governance feminism’ in prostitution politics. The author argues by identifying prostitution as a ‘special problem’ that they are uniquely qualified to address, neo-abolitionists have advanced their agenda at the centres of government power and decision-making. Despite Scoular’s detailed analysis, we are left, however, with unanswered questions about how we might disrupt how law interacts with what Scoular defines as ‘creeping abolitionism’ (p. 68). And while Scoular argues in favour of feminist and legal interventions on sex work that facilitate recognition and empowerment for sex workers, her focus leaves open the difficult question of what these transformative interventions might be.
I believe it is in Chapters 4 and 5 that Scoular’s constitutive approach reaches its full potential. These two chapters, arguably the most challenging, are also the strongest, and here, I regard this complexity as the book’s great strength: for in these chapters, Scoular integrates successfully empirical examples with the insights of her refined genealogical framework. In Chapter 4, she interrogates how sex workers have pursued their own justice claims by recourse to ‘human rights’ frameworks. Citing concrete examples from India, North America and Europe, Scoular illustrates how sex workers use the promise of rights and citizenship discourses to challenge injustice at a variety of levels. Scoular’s critical intervention in this debate is to disrupt liberal discourses on human rights as the solution to injustice among sex workers. While rights can challenge dominant norms and the negative impacts of criminalization on sex workers, Scoular insists we must subject the rights-bearing sex worker to critical scrutiny. Central to Scoular’s argument is the understanding that ‘the subject of rights does not stand outside regimes of rights but is constructed in and through them’ (Golder, 2011: 292). This, she argues, does not suggest rights claims are irrelevant for marginalized groups like sex workers but rather when we assume rights are the solution to their problems, we miss how rights are also ‘a mode of power’ (p. 119). Here, she makes an important observation, namely it is necessary to be cautious and recognize while human rights may be tactics for empowerment, they are also insidious systems of neo-liberal governance ushered through seemingly positive legal responses. This detailed analysis of rights is extremely thought provoking, indeed compelling. It demonstrates Scoular’s clever interrogation of law’s constitutive role in social relations. This is, however, a highly theoretical framework. I think the author could have strengthened her thesis by offering more empirical examples of how uncritical recourse to rights can be counterproductive for sex workers.
If rights discourses are shot through with the mechanisms of governmentality and riven by power relationships that maintain rather than destabilize the status quo, how, then, can we begin to think about how law could matter differently? This question forms the focus of Chapter 5. Here, Scoular uses her constitutive approach to ‘rethink’ how sex workers can use law to tackle injustices. Drawing on her post-structural framework, Scoular illustrates how strategic approaches to sex workers’ rights can disrupt dominant political norms. Focusing on key legal concepts (rights, consent and autonomy), Scoular uses case studies to illustrate how sex workers can manipulate the law in situ and make it more responsive to their social justices agendas. For example, she refers to the case of Canada (Attorney General) v. Bedford 2013. Here, Scoular details how sex workers manipulate legal norms such as citizenship and safety in the workplace to ensure their rights before the courts. Thus, the author introduces a reconceptualization of human rights discourses to counter essentialist victim discourses that prioritize powerless and abused sex workers.
In Chapter 6, Scoular concludes her argument, insisting we have reached a point where it is necessary reframe feminist responses to prostitution and accept the role that feminism plays in the governmental process. She re-emphasizes why her post-structural approach has the potential to transcend feminist identity politics and ‘offer hope that rights can be reworked, reconstituted in ways that can accommodate new possibilities which are not limited at “certain frontiers”’ (p. 155). Importantly, she suggests her critique is not an ending point in this debate but the beginning of a more critical approach that will inspire us to move beyond the current impasse in prostitution politics. Bringing her critique home, Scoular directs us to a final image: an empty Eames chair linked forever to Christine Keeler and the ‘Profumo Affair’. We have become familiar with the image of Keeler, sitting naked astride the chair. For Scoular, however, the empty chair is ripe with meaning about the relationship between law and prostitution. In keeping with her transformative agenda, Scoular suggests it is a space of possibility where we can reflect upon and transcend current conventions in the pursuit of social justice for sex workers. In the end, then, we are left to consider how we can move the politics of prostitution towards a transformative agenda to which Scoular aspires. This is a compelling and provocative book, which offers a pathway through the toxic landscape of feminist prostitution politics. It gave me great pleasure to read and review it. I recommend it highly.