I think this is ridiculous. There’s no way there should be any legal rules preventing the sale of high sugar and caffiene drinks to kids – it’s not the government’s place to impose those sort of rules. It’s a parent’s job to tell their children not to buy the drinks, if the parent doesn’t want the child to buy the drink. Imposing a law or regulation preventing kids from drinking tasty things that are bad for them is quite a substantial rejection of parental authority, admission parents cannot control their own children, and will relegate energy drinks to the same level as pills and drugs.

Energy drinks are not a social evil. They are not something so detrimental to the health of the country that they need to be regulated and controlled (and for that matter, nor is Coldral). Regulation and control should be limited to those very few things that cause significant and substantial harm to people that use them and only then, as a last resort, when all other avenues have been exhausted, AND when the thing-to-be-regulated has been proven to cause adverse effects no matter what the circumstances of use.

• I think there’s an important connection between having a good life and the accumulation of “defining moments”. Of course it’s self-evident that defining moments in one’s life are what one remembers, but what about prospectively, as well as retrospectively? Might it be good to seek out and aim for certain defining moments? Not just “goals” but something different, something more like milestones. A goal might be to learn to fly, for example. But a defining moment needs to be an actual experience, so in that case, the defining moment would be flying solo. Having lots of good defining moments will be enjoyable. And it leads onto my next point,
• Control. Control and leadership are two things we are all brought up to seek and value. Why? What’s the inherent value in having control (over events, other people, your life, etc) apart from it making you feel good? In terms of the previous point, I think that having control over which defining moments you experience plays on this a little. And is control a good thing? Certainly not in some situations, we don’t like dictatorships, forceful imposition of ideas we don’t like, or restrictions on our freedom. So what’s good control and what’s bad control?
• On the other hand, control over oneself is undoubtedly good. If we have the ability to satisfy our own needs, we are happy. But if one has too much of that control, and satisfies every whim, that’s not going to be ideal either. So where do you draw the line between having the competence to do anything you like, and staying away from actually doing everything you like?
• Is hedonism coherent?

I think prostitution is no different from any other profession. People, women and men, ought to be able to choose prostitution as a valid and lawful work option free from stigma. Moreover, I think this can be justified using very few assumptions of a common morality. To do this, I’m also going to argue that the right to freedom of work encompasses the right to choose prostitution.

The Law

Let’s start with a legal analysis. I’ll make two assumptions. First, International law is generally a good place to find largely undisputed moral principles that satisfy both moral absolutists and relativists, and second, society frowns upon prostitution. Both the Universal Declaration on Human Rights and the International Covenant on Economic, Social and Cultural Rights assert that state parties must ensure freedom to choose to work and free choice of employment. Great! Promising start, but it’s not that simple. Obviously the right is not intended as an absolute right – it would be ridiculous to say I have a right to be a terrorist or a burglar. So the first question is whether the right applies unless another rule of law conflicts with it, or if it is a right subject to societal qualifications, legal or not on acceptable employment (for example, the much broader classes of moral, religious, economic or other constraints).

Although my job would be a lot easier if constraints were limited to conflicting laws, I’ll assume the worst, and proceed on the basis that the rights only apply when not constrained by legitimate influences generally. So if I reframe the (legal, not moral – yet) question, it becomes: whether the freedom of choice in employment extends to cover the freedom to choose work that society might frown upon. Put that way, I think that intuitively the answer is yes. Intuition isn’t quite enough for some people, though, so I’ll continue.

Human rights, by their very nature, are designed to make sure certain groups have rights in the face of potential infringement. Infringement typically occurs when one group holds different values and priorities to another. If we allow human rights to be subject to societal preferences and values which are themselves subject to fluctuations, their very raison d’être is undermined. Therefore, as long as the reason behind a society’s frowning upon prostitution is not as “fundamental” (or to use ethical vocabulary, “universal” to the society) as the reason behind society’s adoption of the right to freedom of employment, freedom of employment must trump societal disapproval of prostitution.

So, as long as prostitution is not a universal evil, condemned by all groups in a society (or at least more groups than the groups that accept the right to freedom of employment), at the International Law level, a right to choose prostitution exists. This is not the same as saying that a country that has adopted UDHR or ICESCR is bound to implement that right in domestic legislation. However, it is a very good indicator of what the international community deems acceptable and important. We can now move on from the legal question, to the ethical one: is prostitution widely condemned or frowned upon, and where it is, should it be condemned?

Is prostitution widely condemned?

Prostitution has a long, long history. About.com denies it is the world’s oldest profession but admits it is certainly close. Susan Thompson in “Prostitution – A Choice Ignored” (Women’s Rights Law Reporter, vol. 21, no. 3, 2000) agrees that prostitution dates back to the earliest periods of human civilisation. It may even predate that. It has occurred in almost every society since ancient times: American Indians, Ancient Greece, Babylon and Ancient Rome included (see Thompson, p219-221). It can be seen even in early Christianity – Mary Magdalene, St. Pelagia, and St. Afra of Ausburg were ex-prostitutes. St Augustine saw prostitution as a necessary evil, vital to an orderly community (Thompson again).

But we are not so much interested in prostitution’s long history as we are in its status today. A long history does not imply a long acceptance. And I think it’s fairly uncontested that prostitution is not seen as a wholesome, legitimate profession on par with being a lawyer, doctor or taxi driver. What is the extent of this disapproval? A typical person might think prostitution should not be a choice since it is often associated with violence towards, oppression of and subjugation of women. But none of those things are necessary to the existence of prostitution: they are merely coincidental. And the association of prostitution with criminal activity is merely incidental – it occurs in areas where prostitution is already illegal, and since prostitution occurs anyway, it is forced to the underground world and develops an association with crime. Removing any illegality removes it from that world.

My guess is that there is significant distaste directed at prostitutes and prostitution. At least, significant enough for me to have to address the question of whether this distaste and disapproval is warranted.

Is Prostitution Wrong?

I can, I hope, avoid any accusation of relativism by sticking to shared basic principles to deny the claim that prostitution is wrong. Let’s work through the grounds it could be said to be wrong upon:

Prostitution is wrong if it necessarily or frequently causes harm

Prostitution has no necessary causal link with harm, that cannot be disputed. If I need to make the point beyond question, take the case where a person (who has never been a prostitute) is offered $5000 by another person (who has never used the services of a prostitute) to receive oral sex. Both people are STI-free, both are well-off in life, and they will never see each other or interact in any other way in the future. The act was enjoyed by both parties. This is prostitution. No harm eventuates.

The rebuttal is that prostitution might nevertheless often cause harm, and causing frequent harm is enough to classify something as a bad thing. For two reasons this is wrong. Firstly, prostitution can be entered into in a truly voluntary way (not where it is a false choice, for example, where prostitution is the only possible way for a person to make enough money to live). Thus, harm resulting from false or forced choices can’t be counted when deciding whether prostitution is right or wrong – that sort of harm comes about from a bad thing (a broad notion of coercion) itself, and I’m not disputing that coerced prostitution is wrong. So how often does prostitution cause harm when entered into freely and without pressure? STIs and rape are the two big types of harm suffered. But Thompson notes that “no US study has found any significant rates of [HIV/AIDS] infection among men whose only chance of risk has been sexual contact with a female prostitute” (p230). As for other STIs, condom use is standard and sometimes even required by law (e.g. Nevada). And rape denies the prospective prostitute a free choice, so must be excluded since we are talking about freely chosen prostitution. Therefore the “it causes harm so is wrong” argument fails.

Prostitution erodes the fabric of our society

Arguments along these lines come typically from the conservative and/or religious and assert that prostitution damages family relationships, threatens the safety of children, and promotes adultery. Of course, sex itself doesn’t erode the fabric of our society, since it is the very foundation of it. So it must be sex with strangers or sex for money that does the eroding. Forgive me for staying at an abstract level, but once again there is no necessary causal link here. Even assuming that prostitution does all these things (which is debatable, to say the least), it doesn’t do them by virtue of being prostitution. It does them by virtue of going against society- or culture-specific values. Remove the values in question and you remove the conflict.

A more concrete example might help: prostitution’s so-called damage to the family results when a person who is part of a nuclear family engages the services of a prostitute to the detriment of the relationship with his wife and possibly children too. The damage only occurs if the society this happens in forbids or discourages polygamy or adultery/extra-marital relations AND places a high importance on the enduring rigidity of a nuclear family structure. If either of those two values are absent, which is entirely plausible (especially so in today’s postmodern, multicultural western cities), harm doesn’t result. So: claims of this nature do not establish prostitution as necessarily evil, only contingently evil – and that is contingently upon a shared moral standard across the applicable society at issue. And that’s to say nothing about the very dubious nature of claiming such a shared moral standard without limiting it to sub-groups like specific religions. In our western societies it’s increasingly unlikely to find any common moral placing the family above all else.

Conclusion

So we are left with a couple of conclusions. First, the right to choose prostitution is a legal right at international law, unless a universal or nearly universal moral standard can be found that tells us prostitution is wrong. Second, prostitution, while it might be widely condemned, it is by no means universally so. Third, the reasons for condemnation, where it does exist, are contingent upon non-universal moral standards so should not be imposed by law upon those that do not share such standards. Therefore: prostitution is a legal right, and because of this, when freely chosen, is a legitimate and perfectly valid choice, one that all societies abiding by international law ought to allow, protect and refrain from stigmatising.

Overall, today’s wine was significantly better than yesterday’s. I’ll give a brief but not exhaustive description of most of the places we went:

• CJ Pask had a good Merlot, but everything else was average
• Black Barn was a very nice winery, and had very knowledgeable staff. Their Chardonnay was above average (7)
• Te Mata claimed to have the best wine produced in NZ, the Coleraine. It wasn’t that great. But the Bullnose was very nice
• Craggy Range had flash buildings, nice but not brilliant wines, and the staff used scripted explanations
• Abbey Cellars had nothing that great
• Trinity Hill had live music which we listened to as we sat on the lawn. They had a very smooth easy drinking syrah (6.5), and a good viognier (7)
• Ngatarawa‘s Chardonnay was first equal for the weekend, a Glazebrook (8). Glazebrook also make a very nice Gewürztraminer, but I can’t remember what I rated it, only that it was very nice.

That was Saturday’s lineup. Nothing very impressive except the Glazebrook range. I was generally unimpressed with all of the Hawke’s Bay Pinot Noirs we tried, and even the Cab Savs and Merlot blends didn’t impress that much.

Sunday’s wineries were a big step up. The original plan was to go to the beach – we didn’t think that they would be open due to the Easter trading laws (post coming later). But much to our surprise they were! A couple of the places (out of a total of 9 today) we went weren’t very good so I’ll just leave them out.

• Alpha Domus had great staff, and an even better Viognier (8). Their 2005 Navigator (Cab Sav/Merlot/Malbec/Cab Franc blend) was amazing, probably a 8-8.5, and so was the 2000 Aviator. The Anthonius, a fortified Cab Sav was also very good, probably worth an 7.
• Sileni was where we found the best deal of the weekend: a $15 2007 Red Metal Merlot, 6.5. The Gold Triangle Merlot 2007 was also very good (7.5) and the Chardonnay was easily as good as the Glazebrook
• Te Awa had a good unoaked Chardonnay (for an unoaked Chardonnay), an even better oaked Chardonnay and a brilliant 2004 “Boundary” (Merlot blend, 8). Also a surprisingly good 2005 Pinotage which had an interesting taste, good length, mellow, soft, complex, 7.5. Their Zone 10 Cab Sav is also worth a mention, 7
• Stonecroft was also a good all-rounder, all wines were at least 6.5-7. The Zinfandel 2007 was an amazing 8.5, as was the Gewürztraminer, which I’d give an 8. The Gewürztraminer was a little bit sweet, not too sweet, but I think it’s more of a female drink (OMG SEXISM!), although a very complex and refined one, not a wine you’d drink quickly
• Elephant Hill had their Viognier recommended to us three times so we had to go. Unfortunately it was sold out. We had to settle for their Sauvignon Blancs (2007 was the best in my opinion, 6.5), 2007 Pinot Noir (from a Central Otago vineyard, 8), and 2008 Syrah (one to drink now, smooth, fruity, 7)
• Clearview was the second to last winery we went to. Good range all around, the 2007 Pinot Noir Des Trois (a blend from Central Otago, Waipara and Martinborough vineyards) was excellent, 7.5 and so was the 2008 Reserve Chardonnay. The 2006 Enigma and 2007 Reserve Cabernet Franc were also very good (both 7-7.5)
• Last was Beach House. The Chardonnay was excellent (8.5) and the others were lucky enough to get some (4 bottles!) before it sold out. Almost everything else was a 6.5 or 7 and the man staffing the shop was very friendly and knowledgeable

And here are a few random stats: we went to a total of 16 vineyards. Between the 4 of us we bought 17 bottles of wine. Jake bought 9, at an average price of $25. William bought 4 at an average price of $42.50. I only bought 1 (a $15 special, haha, that was really only $10 because the wine tasting fee was $5, and too good a deal to miss). Most places didn’t charge a tasting fee, except for Trinity Hill, Sileni, and Te Awa and they were all $5, waived if you bought a bottle of wine.

What the fuck? Why aren’t we listening to the Attorney General? Despite me not particularly liking National, the current Attorney General is very smart and on top of his game. And Parliament should be listening to him if he says something is wrong! Especially regarding bills passed under urgency, like the Parole (ESO) Amendment – when bills contrary to the BORA can be passed with 95% support in as little as a few days in the face of a warning by the AG something is wrong.

Further reading: 15 Lambton Quay – Claudia Geiringer, Greens the only party to oppose.

Either way, we are using a form of inductive reasoning. Hume thinks inductive reasoning is invalid, since it rests on the principle of uniformity:

Since that principle cannot justify inductive reasoning deductively (it’s not logically necessary, the antecedent is logically consistent with the denial of the consequent) nor inductively (that would be circular) we are not justified in using inductive reasoning. In other words – inductive reasoning proceeds on the assumption of uniformity of nature, but uniformity of nature is not a necessity, so we need to justify it by some other means. But if we justify the uniformity of nature on inductive principles we are being circular! And therefore the statements:

1. All x’s observed so far are y’s
2. w is an x

Do not justify the conclusion that w is a y.

There is an added layer of complexity with the irrationality issue, since we know that not all irrational decisions ought to have been different (and therefore have less reason to suppose that the next irrational decision will be bad – but we do still have reason to suppose). For the sake of simplicity, lets assume that all irrational decisions are bad in the meantime, and worry about the probability aspect of the question at the end.

The problem is not solved by simply saying that we really mean “it’s probable that w is a y” – Hume’s reply is that probabilistic connections, no less than simple causal connections, depend upon habits of the mind and are not to be found in our experience of the world. That is, saying it’s probable that w is a y still runs into the same problems, since that conclusion (whatever the probability arrived at) is also based on the principle of uniformity.

There’s a huge amount of literature on the problem of induction and I can’t hope to even simplify the main schools of thought in one blog post. I’ll simply state my view, which in some ways is similar to Karl Popper’s ideas on falsification. Induction is justified in giving probabilities not certainties (even in seemingly certain cases like the sun rising each morning, it’s more appropriate to say there’s a 99.9999999% chance it will rise tomorrow), and any evidence that suggests that our inductive conclusion is wrong should be taken to invalidate it or at the very least cause us to lower our estimated probability of the conclusion.

Applying this to the rationality problem, I think we have to conclude that there are probably certain areas in which an inductive conclusion that irrationality is bad is a good inductive inference (for example, when talking about non-emotional, non-controversial topics). But when one starts to delve into areas that involve high degrees of emotion, or other areas of thought where we know permissible irrationality could occur, I think we need to revise our inductive conclusion that the irrational decision is bad.

Conclusion: go ahead and say “your decision was irrational, so you should revise it” but only if you know you’re on solid ground. Solid ground includes, but is not limited to, ground that’s not clouded by emotion, instinct or gut feelings.

A rational decision is a decision that an objective person would come to using available evidence and the rules of logic. But all too often, emotions play a part in our decision-making process, and cause us to overlook something, make a logical error, or otherwise impinge our capability of rationality. The criticism “you’re being irrational” seems to frequently (but I’ll admit not all the time) play on the feeling that we ought to be rational because we can be rational. But that argument is invalid – just because we can do something it doesn’t logically follow that we ought to do it – that’s ridiculous. For the argument to hold it would have to be supported by saying that rationality is a Good Thing All The Time (not just a transient or factually-dependent good but good absolutely, like 2+2=4).

The problem I have with that is that rationality is not always the right course of action. Irrationality happens often:

• Pursuing sexual liaisons one knows are a bad idea for whatever reason
• Playing computer games for longer than one should, especially when there are essays to write or readings to do
• Eating bad, unhealthy food when there are readily available, healthy and tasty alternatives

All of the above would often be condemned as a bad action on the grounds that they are irrational. But what about the following:

Mary is in love with Jake. Jake proposes to Mary, but Mary has a gut feeling she should say no. She declines, even though she thinks it would be very likely that she and Jake would have a very happy life together and live comfortably and have 2.5 kids and succeed in all their endeavours. Can gut feelings count as part of a rational decision making process? I don’t think so – because a rational decision should be the same in any person who has the same information available, and a person with the same gut feeling could well ignore it and say yes. So we have a situation where an irrational act ought not to be condemned. In fact, any case where unexplained emotion contributes to action would probably have the same result – people performing irrational acts yet in some sense being justified in doing so.

So sometimes there are justifications for irrationality, and if irrationality is sometimes justified, rationality is not always the best or right course of action. So we ought to so hastily condemn those who act irrationally soley on the grounds that they acted irrationally. Rather, one might have to accept irrationality, and work around irrational thought processes rather than deny their legitimacy.

*There are questions in this area about the difference between having reason to act and being rational – see Clayton. Does a note on the fridge that I do not see saying “there is no avocado” justify my impulsive and otherwise irrational decision to have granola instead of breakfast tacos? Of course not. But it might give reason to act, and that may give grounds for saying he was justified in acting the way he did.

The draft Code of Practice generally does the best of a bad situation. However, there is one major issue and a few minor issues I think arise out of a close reading of the code.

The biggest flaw I see in the code is the lack of a requirement to either accept consequences for misleading or incorrect assertions, or ideally, prove copyright ownership over a given file. As it stands, the code requires proof about the event of infringement occurring. While evidence collection in that area has been shown to be unreliable[1] I think the counter-notice procedure adequately compensates for the possibility of mistake in this area, subject to some considerations below.

The problem that is just as important, if not more, derives from the fact that copyright is a slippery concept. There are numerous conditions that must be made out in a normal copyright claim as well as exceptions and defences. While it is implicit in the code that the copyright holder notice must be (for example) the “author” or his agent as defined in the Copyright Act, it is not explicit and there is no proof necessary. Admittedly, proof is an unreasonable requirement to include in a copyright holder notice, so perhaps the next best thing should be included: a punishment or sanction for an incorrect claim of authorship. Other issues along the same line include not having to prove (or assert under threat of sanction) that the infringement was incidental,[2] fairly done as criticism or review,[3] that the infringement was not a backup of a legitimately owned computer program,[4] and so on.

Because of the lack of a requirement to give details of why copyright has been infringed as opposed to how and when it was infringed, copyright holder notices could be misused negligently or even maliciously (say, by a pre-approved copyright holder wishing to sabotage a rival’s work). On top of this, there is no sanction against false copyright holder notices except for the notice not having effect if it is disputed. This can only encourage careless use and issue of notices. Therefore there needs to be either:

· A requirement to give some non-trivial degree of proof that legal copyright ownership rests with the person or company issuing an ISP with a copyright holder notice; or

· A non-trivial punishment or sanction against a copyright holder (pre-approved or not) that asserts copyright infringement against a user that has not infringed their copyright, or with respect to a work that they do not own copyright over in the first instance.

Both of the above suggestions require somebody to make a call about whether an actionable infringement has taken place, and it would be rightly pointed out that it is not the ISP’s job to do this, nor are they strictly capable of doing so. On the other hand, it cannot be expected that every user will have both the motivation and means to get a court ruling in their favour, especially for minor issues. So since ISPs are already being forced into a position slightly lower on the continuum between having no discretion and having full discretion, it is my opinion that they ought to take a step further up. This will even out to some degree the imbalance of power created by the Act between copyright holders and users and ensure false or frivolous claims by over-eager copyright holders are kept to a minimum. It is true that it pushes ISPs further towards the position of a judge, but they are already there, with respect to the event of infringement occurring. In the interests of fairness they should take up the responsibility of deciding at least the prima facie merits of a case, and if there is doubt, should not be taking any action in the first place.

Other minor points about the Code of Practice I’d like to raise are:

· Pre-approval is probably a bad idea, as it encourages those that have pre-approval to issue as many notices as they can, and there is no real consequence for misuse. Why not put all copyright holders on the same footing and instead permit copyright holders wishing to issue a large number of infractions, to be allowed to issue bulk infractions (for example, a couple of times per month), but make them subject to authorisation each time? Alternatively implement a real penalty for those found to be misusing pre-approval – not just removal of pre-approved status, it would have to be at least semi-permanent, and perhaps even incur a fine.

· Copyright holders that are not pre-approved do not get any access to downstream ISP details whereas pre-approved ones do. I cannot see how this can be justified, since whether a copyright holder is pre-approved or not should have no bearing on their access to justice.

· Clause 24 raises some ambiguity. It implies that a discretion exists for parties to accept or reject any dispute in relation to downstream ISP status. But this discretion is not implied anywhere else. Do ISPs have a general discretion to reject a counter-notice? If yes, then they are in the position of making a judgement on the accused’ possible copyright claim on both heads (event occurring, and it being an illegal infringement of copyright), which so far the code appears to have shied away from.

· There is a second ambiguity in the drafting of clause 24, in that it is unclear whether it refers to situations where there is a second or third DISP, or situations where the DISP disputes that infringement has occurred. It should be redrafted to address this and make the meaning more clear, since we cannot expect schools or hotels to make sense of it, and the section directly affects them.

The law is where the problem is, not the code of conduct. And there won’t be a lot of satisfactory solutions that focus only on changing the code of conduct without some clear sense of direction and purpose from the legislature. Can 92C’s requirements for proof be separated from 92As? Does “repeat infringement” really mean that or does the wide definition in 92C eclipse all and apply across the board? Can downstream ISPs avoid liability if they refuse to be bound by a code they didn’t agree to?

Answers can be guessed at but its all very risky for any ISP or webhost, and shouldn’t be left to a process run partly by parties with an enormous pro-rightsholders bias and partly by companies who want to avoid being liable to the former. It’s an unbalanced equation with all the weight on the side of recording companies.