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Dilemma of Legalizing Prostitution : A Comparative Analysis of Common Law vs. Civil Law Jurisdictions

Dilemma of Legalizing Prostitution: A Comparative Analysis of Common Law vs. Civil Law Jurisdictions

Prostitution, which may be defined as the exchange of sexual services for money or other forms of remuneration, is a complex and contentious issue that intersects with various legal, social, and ethical considerations. Across the globe, jurisdictions grapple with how to regulate this industry, balancing concerns of public health, human rights, and morality. In this article, we will conduct a comparative assessment of the legality of prostitution across common law and civil law jurisdictions, examining the approaches taken, the underlying legal principles, and the implications for individuals and society.

The dilemma which exists is legalizing an activity which fulfils a basic human need and has existed since ancient times yet is viewed as immoral and a taboo by large sections of the global population. In countries such as India , tawaifs or nautch girls were seen as nobility during the Mughal era and their position deteriorated with the advent of the British rule. Let us delve into a comparison between the common law and civil law jurisdictions.

Common Law Jurisdictions:

In common law jurisdictions such as India , Canada, and the United Kingdom, the legality of prostitution varies widely, with each jurisdiction adopting its own approach to regulation. However , across the common law jurisdictions it maybe observed that broadly prostitution itself is legal but related activities such as running a brothel , soliciting and pimping are criminalized.


In many common law jurisdictions, prostitution is outright criminalized, with laws prohibiting various aspects of the trade, including solicitation, brothel-keeping, and purchasing sexual services. These laws are often rooted in moralistic concerns about vice and immorality, reflecting broader societal attitudes towards sex work. However , the law is merely on paper in countries such as Mauritius1 and Burundi where although prostitution is illegal but in reality it is still widespread with Mauritius even emerging as a sex tourism hub.

Partial Decriminalization:

Some common law jurisdictions such as UK2 , India3 and Canada4 have adopted a partial decriminalization approach, whereby certain aspects of prostitution, such as selling sexual services, are legal, while others, such as solicitation or brothel-keeping, remain criminalized. This approach aims to strike a balance between recognizing the autonomy and agency of sex workers while addressing public order and nuisance concerns.


A few common law jurisdictions, notably parts of Australia5 and Nevada6 in the United States, have legalized certain aspects of prostitution, typically through licensing and regulation schemes. Under these systems, sex work is treated as a legitimate occupation subject to government oversight, including health and safety regulations.

Civil Law Jurisdictions:

In contrast to common law jurisdictions, civil law jurisdictions, including countries in continental Europe and Latin America, often take a more liberal approach to prostitution regulation, viewing it through the lens of public health and individual rights.


Many civil law jurisdictions have adopted a regulatory framework that seeks to manage prostitution as a social phenomenon rather than criminalize it outright. This may involve licensing sex workers, establishing red-light districts, and implementing health and safety standards to protect both workers and clients. In Germany , brothels are allowed to operate with the caveat that sex workers must register and undergo regular health checks.


Some civil law jurisdictions have gone a step further by decriminalizing prostitution entirely, removing legal penalties for all aspects of the trade. This approach is grounded in principles of individual liberty and harm reduction, aiming to minimize the harms associated with prostitution while respecting the rights of sex workers.


A few civil law jurisdictions, such as Sweden and France, have adopted an abolitionist approach, which criminalizes the purchase of sexual services while decriminalizing selling sex. This model aims to combat demand for prostitution while offering support and exit strategies for individuals engaged in sex work.

Comparative Assessment:

When comparing the approaches taken by common law and civil law jurisdictions to prostitution regulation, several key differences emerge.

Moral vs. Pragmatic Considerations:

Common law jurisdictions often approach prostitution regulation from a moralistic perspective, viewing it as inherently immoral or harmful to society. In contrast, civil law jurisdictions tend to adopt a more pragmatic approach, focusing on harm reduction, public health, and individual rights.

Criminalization vs. Regulation:

While many common law jurisdictions criminalize aspects of prostitution, civil law jurisdictions are more likely to embrace regulation or decriminalization as a means of managing the industry and minimizing harm. This reflects differing views on the role of the state in regulating private behaviour.

Impact on Sex Workers:

The legal framework surrounding prostitution has profound implications for the health, safety, and rights of sex workers. In jurisdictions where prostitution is criminalized, sex workers face greater risks of violence, exploitation, and stigma, while those in regulated or decriminalized environments may enjoy greater autonomy and access to support services.


In conclusion, the legality of prostitution varies significantly across common law and civil law jurisdictions, reflecting divergent legal traditions, cultural norms, and policy objectives. While common law jurisdictions often take a punitive approach rooted in moral concerns, civil law jurisdictions tend to prioritize harm reduction, public health, and individual rights. As the debate over prostitution regulation continues to evolve, it is essential to consider the experiences and perspectives of sex workers and to explore evidence-based approaches that prioritize their health, safety, and well-being. Only by engaging in open dialogue and thoughtful policymaking can we hope to address the complex challenges posed by the sex industry in the 21st century.

As prostitution thrives even across jurisdictions where it is per se illegal therefore a more pragmatic approach going forward would be more appropriate rather than a moralistic perspective .

By: Adv. Ankur Malik , Independent legal practitioner


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