Chantal Thomas, “International Law against Sex Trafficking, in Perspective” (June 4, 2013). Cornell Legal Studies Research Paper No. 13-85.
This study places international law on sex trafficking in a broad theoretical and historical context. First, it identifies the international law on sex trafficking as part of an “international law of prohibitionism” that operates as a particular kind of response to and management of globalization.
Second, this study identifies dynamic forces both “external to” and “internal to” law that lead to prohibitionism. “External” factors refer to economic, sociological and cultural phenomena that seem to have triggered the turn to prohibition. The international legal framework responds to and reflects these external sociological factors; these factors are also productive of state power for the purposes of policing illegal transactions.
Taking an historical approach, it is possible to construct a loose parallel between prohibitionism during the turn of the 19th and 20th centuries. If such dynamics helped secure the basis for the modern administrative state in the early 20th century, by supporting the consolidation of national police power, they may undergird and reinforce the expansion, not only of national, but also of international legal authority, in the 21st.
The study’s “internal” factors are social and legal concepts that determine the formulation, interpretation and application of a legal test. This internal analysis here examines the interaction within doctrinal structures of the dichotomy between legal consent and legal coercion, and of the mediating concepts of normality and abnormality. Both external and internal factors buttress the international law of prohibition as a basis for the expansion of state authority and of the authoritativeness of international law.
Third, the study refines the historical context mentioned above to look at the international law against sex trafficking in particular. In the last great era of unregulated economic expansionism, the turn of the 19th century, concerns similar to anti-trafficking were in wide circulation, but expressed under the rubric of “white slavery.” The earlier law, and the discourse surrounding it, exhibited some of the same features as the contemporary law.
Finally, this study suggests that, whatever the moralistic or misguided features of prohibitionism, its rise may also prefigure a transition to broader market regulation. Prohibitionism is deeply implicated in a laisser-faire approach to law; it is the mirror image of, but also the continuation of, the vast apparatus necessary to maintain a market-oriented regulatory posture. It provides a vocabulary – mediated by constructs of ‘abnormality,’ or ‘extraordinary’ cases – to enable the discussion of market controls in an ideological environment in which such discussion might otherwise be discouraged. Even as it supports the market, however, prohibitionism is also associated with a set of concerns about the market’s potentially harmful effects. Under the ideological constraints of laisser-fair-ism, concerns relating to the abuses of the deregulated market may tend to focus on extraordinary cases. Such concerns, however, though first expressed about “abnormal” contracts (such as those related to the trafficking of persons), may turn out slowly to gain sufficient currency to apply to “ordinary,” “normal” contracts.
As legal subjects, women seem to have provided the template for this discursive transformation in both historical eras (consider that the West Coast Hotel case that ended the Lochner era addressed the social need to protect women in the workplace). If the study’s suggestions are accurate, then, prohibitionism may signal a change from the view that market regulation must be exceptional to an understanding of its pervasive importance.
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