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Biopower is a term that was coined by Michel Foucault , which inspired a new theoretical frame to academic thought. For Foucault, biopower is the ‘”regulatory power of states over populations,” which thus produces, “docile bodies in everyday life of institutions.” In other words, Foucault tried to emphasize that the body is a way to understand a society and how power is used to control their lifestyles. Lifestyles of individuals and their self-care practices are influenced by an overarching power. Giorgio Agamben further elaborated Foucault’s theory. In Agamben’s view, the sovereign power constructs ideals for citizenship where certain lifestyles amount to a ‘qualified life.’ However, individuals who contrast from the ‘ideal’ are living a ‘bare life,’ and thus are excluded in various ways, such as marginalization or facing violence. Therefore, the marginalized groups in society are only marginalized because state power determines who can be included in the society and who cannot. In “What’s Law Got to Do with it? How and Why Law Matters in the Regulation of Sex Work,” Jane Scoular notes that prostitutes are part of the ‘bare life,’ where they are marginalized due to not being ‘ideal’ citizens. To understand biopower, it is important to know who is an ‘ideal’ citizen and answer: what is the purpose of including some while excluding others?
In modern nation-states in the West, a ‘qualified’ life relates to neoliberal ideals. Neoliberalism is a shift in political, economic and ideological policy that began in the 1980’s (Yang, 2013), which currently dominates many governments globally. Economically, it is a policy of free-markets with minimal government interventions. Politically, it is the diffusion of government into smaller institutions. The notion of ‘freedom’ and individualism is the ideology behind neoliberalism, where individual freedom is achieved only through free markets. Yet the hidden element is that neoliberal policies seek to maintain the power of economic elites, and, it’s a “political project to re-establish the conditions of capital accumulation.” Neoliberalism, according to Scoular, is the main idea behind a ‘qualified’ life in Agamben terms. She notes, “modern law operates to regulate the complete lives of individuals,” and thus the law influences social norms. For instance, prostitutes are marginalized due to social stigma . The stigma, as Davey and Kissil mention, is the result of laws that criminalize prostitutes . Prostitutes are criminalized because the state feels they pose a threat to their ideals. For instance, the Contagious Diseases Acts in the late 19 th century are said to criminalize prostitutes for their alleged danger to public health. Medical discourses and sciences were used to justify penalizing ‘unregulated’ persons, but in reality it was a moral panic over ‘unregulated’ sexuality. Controlled sexuality was crucial to the Modern nation-state agenda. Thus, prostitutes can only be ‘qualified’ if they satisfy the needs of neoliberal ideals, such as self-regulating themselves in a manner which results capital accumulation. The law is a way of expressing state power in an indirect way, as it influences norms, and thus influences people to maintain neoliberal interests. I will discuss how neoliberal interests are maintained through prostitution laws, but first I will discuss feminism as theory, since certain feminist have a strong stance on prostitution laws.
Feminism consists of many differing outlooks, yet there are notions that all feminists agree upon. For instance, feminists agree that female voices need to be addressed and recognized in society. They also stand for female empowerment through gender equality, especially in a Modern context where women are found less in high status positions compared to men. Despite these agreed upon notions, feminists differ in other aspects. Postmodern feminists, for instance, contend that feminism has been dominated by white, middle-class women, and such women cannot represent the interests of women as a whole. The weakness in feminism is that there is a lack of consensus on a variety of topics. With regards to prostitution, there are oppositional feminist stances, which is highlighted by Maureen Davey and Karni Kissil in their analysis titled, “The Prostitution Debate in Feminism: Current Trends, Policy and Clinical Issues Facing an Invisible Population.” Yet these two feminist stances do not speak for all feminists, because many feminists may be open to other theories on prostitution.
Abolish Prostitution? Regulate it?
Two popular feminist stances towards laws on prostitution are: abolishing prostitution or regulating it. Yet while both have different stances, they both have very limited outlooks. Feminists who seek to abolish prostitution are often termed as Radical Feminists. In their view, prostitutes are victims of male oppression. Their goal is to abolish prostitution, as they feel prostitution only serves to oppress women. An example of this stance is found in Sweden, where prostitution is illegal. However, punishment is only directed at clients , whereas sex workers, seen as victims, are guided by state into ‘exiting’ programs. On the other side, another group of feminists, which Davey and Kissil termed the ‘pro’ feminists, feel that prostitutes have the agency to make their own choices and thus the laws should give them legal rights. The ‘pro’ feminists are usually in favor of laws which prostitution is tolerated. Therefore, legalization assumes that prostitutes will be empowered because they have legal rights. Overall, both the ‘pro’ and radical feminists are not challenging hegemonic state power, but rather are staying within i ts power. They fail to address how prostitution laws are part of wider form of maintaining state interests . In this view, the two feminist stances in the prostitution debate are problematic, because they are trying to represent the voices of all women. But as Kissil and Davey note, the two feminist stances have seldom consulted with the voices and desires of the prostitutes themselves. The lack of acknowledging the voices of prostitutes is apparent when given the implications of these feminist solutions to prostitution.

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