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Commentary. A ruling by an Italian court affirming women’s freedom to sell sex is an attempt to preserve the gendered order: that by doing as they have always done—selling themselves to men—women are in fact exercising the very core of their freedom.

The freedom to sell oneself and the moralists of neoliberalism

Article 2 of the Italian Constitution says: “The Republic recognizes and guarantees the inviolable rights of the person, both as an individual and in the social groups where human personality is expressed. The Republic expects that the fundamental duties of political, economic and social solidarity be fulfilled.”

Augusto Barbera wrote about this article in 1982, raising one of the most crucial insights of the jurists of his generation, that “the rights pertaining to freedoms, inasmuch as they are rights, can allow for an easier application of constitutional values in the realm of private relationships.” This would apply, for example, in the case of the rights of the child within the family, keeping in mind that threats to freedom did not come only from public power, but also “from the alienating conformism of capitalist materialism, capable of subsuming every aspect of biological reality to its own need for domination.”

Back then, they thought that freedom itself could have a transformative effect, and that to speak of freedoms was to pose the problem of “the totality of powers capable of restricting or protecting them” (Amato).

These old pages came to my mind while reading the court order by the Court of Appeals in Bari, according to which setting punishments for those who intermediate the activities of a paid sex worker—who is, after all, a woman who wants to sell something, expressing a “primordial” freedom—and are thus merely facilitating her right to “free enterprise,” is contrary to inviolable natural rights. And I thought of a question posed by Luisa Muraro: “What freedom can that be which produces nothing new?”

I wonder if this issue is a question about the constitutionality of a particular law, or if it is a question about the Constitution itself, which throws into doubt the very heart of the project that Aldo Moro called “living together.”

It seems to me that the basis for the latter is what is being attacked here, and not so much the Merlin Law when it is claimed that “dignity” means “self-determination,” which means the freedom to sell oneself. (The arguments made by this court order would also be applicable in several other cases, such as, for example, against the prohibition of surrogate mothers, a practice which the Constitutional Court described a few weeks ago as “an offense to dignity of the woman that profoundly undermines human relationships.”)

This, I believe, would undermine the principle that private economic initiatives, even freely chosen, cannot be pursued when in conflict with freedom and human dignity (Article 41 of the Constitution), which cannot be simply identified with economic freedom. It would open the door to the overarching anti-humanism of a capitalism for which limiting working hours affects the worker’s right to self-determination, as they might freely choose to work 24 hours a day.

If we pursue this path, it seems to me that the difference between freedom and abuse will vanish. And a society that does not ask itself what is abuse and what is not is renouncing the whole notion of living according to rights. What, indeed, if one ‘freely chooses’ to be worked to death?

The idea that an escort is acting in self-determination because she isn’t prostituting herself merely to survive suggests that someone in need would not be capable of self-determination. Yet everyone, whatever their personal and social condition, is equal in dignity (Article 3 of the Constitution). Is it really the case that exploitation concerns only the poor, or does exploitation rather mean, as Pateman says, incorporating property over the person in a contract, placing “the right to command the other in the hands of one of the contracting parties”? If the first, it becomes impossible to see any exploitation when the power is given over completely to the “private sphere.”

In truth, this court order accuses the Merlin Law of being moralistic just so it can, in its turn, affirm the morality of neoliberalism—in which to do something for pleasure and to do it for money are the same, since there is no pleasure independent of money, and everything one does is work, in the sense of the valorization of the capital that a man or a woman has available.

The court creates a very well-defined constitutional vision (from my point of view, an “anti-constitutional” one). According to this view, freedom is not to be used to transform power relations, nor would it have the function—first and foremost, a spiritual one—of presenting the notion that things could be different from how they are now. As individuals give up their freedoms, a society that would be willing to, and would know how to, ask itself about the very meaning of human action can only vanish in turn. Having lost the guiding thread of solidarity—the very assumption behind deliberating together—it becomes impossible to understand that the Merlin Law, in fact, promotes sexual freedom by fighting against the idea that it can be reduced to a business.

In the realm of relationships between men and women, it seems to me that an idea of ​​freedom that would put profit as the governing principle of material life and our very imagination, and which would set up indifference in the place of solidarity, would be far from a positive change in power relations, and indeed would be a step back.

The idea that the escort is “self-determined,” which is at the core of the notion of “sex work,” is now at the basis of a ruling by a judge in our Republic, at the very same time that the MeToo movement, starting from the Weinstein case, is making public the fact that the world has so far been built on a gendered compact which teaches women from a very young age to please a man in order to get something for themselves. To make visible that implicit understanding means to dispel it, and it was precisely the case of the girls from the parties in Arcore that led Ida Dominijanni to note this fact.

With this court order, we are seeing here a reaction intended to put everything “back in its place”: a new constitutional doctrine that says that by doing as they have always done—selling themselves to men—women are in fact exercising the very core of their freedom. And that it is a law of nature that they should do this, and like it.

A crucial consideration is completely missing from the arguments of the court order: that a woman learns that it is better to sell oneself because there are so many men who see her as something to buy, and something one can gain from. The Merlin Law had a different message for those who thought this way (and who, if we are speaking of the implicit understandings on which the world has been built, have also transformed all ‘natural’ needs into state-regulated activities).

Wouldn’t some men take this court decision to mean that if they march under the banner of “women’s freedom,” they can return to a more comfortable position for themselves? Legitimizing the selling of sex serves to legitimize the act of buying it. Once this is finally “liberated,” it will be possible to make even greater profits, and those who buy sex can finally be freed from that social stigma that still exists, which is annoying especially for high-profile characters who, instead of taking a prostitute from the street, are now “renting” escorts.

It is undoubtedly a time of particular urgency for theorizing novel freedoms hidden in the Constitution. It should never be allowed, after all, that the inviolable right of a man to buy a woman, or of a master to buy a slave, should be impinged upon by another understanding of freedom, one that would look toward a world where no one will buy anyone.

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