Incest: Britain’s legal hypocrisy doesn’t legitimise the practice

Game of Thrones characters Cersei and Jaime Lannister are in an incestuous relationship.


George Marsden | 19 November 2018


In a response to Katie Moody’s article last week, George Marsden defends our legal and moral injunctions against incest.

Do people have the right to perform activities that, though they cause no harm other than to those involved, most people deem immoral? Can widespread disgust or a millennia old taboo (an “ick”, if you must) be explained as a gag-reflex writ large? When these questions were asked in an article (published last week in these pages) titled “Incest: a case study in legal hypocrisy”, the replies were always going to be emphatically, and predictably, in the negative.


But leaving all distasteful ideas to founder in the welter of instinctive rebuke means ignoring the handful that we might, if salvaged for closer scrutiny, feel some sympathy towards. For many, I’d wager that the legalisation of incest is one of those ideas. The belief that “people should have the freedom to do as they wish so long as they are not harming others” is the ethical principle of the day, and Ms. Moody’s argument is merely a strict — I might also say consistent — adherence to its ramifications. For those who share her morality but do not wish to be driven to an unwelcome conclusion quite so ruthlessly, her article is as good an opportunity to revise first principles as any.    


I will confine this response to two of Ms. Moody’s arguments against the illegality of incest: firstly, that punishing incest so as to reduce the incidence of birth defects is hypocritical because non-relatives with hereditary disorders are not threatened with the same, and that our innate revulsion at the very idea of incest is no reason to keep it illegal, or, indeed, to deem it immoral.


To the former, I will only say that while legal hypocrisy is always undesirable, its discovery is not always grounds for a change in the law. Laws are enacted with the intention of achieving some good; in this case, the good achieved by punishing those who commit incest is the absence of babies with genetic disorders. To do so is hypocritical in exactly the way Ms. Moody says it is. But even so, the good which the law was enacted to achieve has not been controverted. Maintaining a double standard is a smaller cost than an increase in the number of babies born with deformities and diseases, however unreasonable the law might seem from the perspective of consistency.


But I don’t wish to linger on this issue. Far more important is what Ms. Moody has to say elsewhere against the argument from negative consequences — that is, that incest should be illegal because of the risk of birth defects. She points out that an incestuous relationship between same-sex or infertile relatives does not run that risk, and that in jurisdictions where incest is legal (her example is France), the number of defective births as a result of inbreeding is negligible, if not non-existent. Assuming the above is true, are we therefore forced into agreeing that incest laws are wrong because they infringe on our bodily autonomy? By no means; but only by positing the opposite ethical principle from what we find advanced here.


Ms. Moody’s argument proves the inefficacy of a utilitarian defence of the illegality of incest; for if no consequences can be proved to result from an incestuous relationship between same-sex relatives, then a utilitarian must find laws which prevent them from entering into sexual relationships unnecessary. And if he values individual liberty as much as Ms. Moody, then he must see them as a positive evil. As far as these arguments are utilitarian and radically liberal, they enter into the spirit of the age far more deeply than most people are likely to give them credit; and if what we want is an opposing principle that can answer for these laws, we would be better off looking for it in a moral system quite alien from the one gestured at here.  


Doing so means taking for granted exactly the thing Ms. Moody cautions against, the “objective moral standard” which she sees as too unsteady a platform from which to discern right from wrong. Now, wherever reason may lead us, common sense, of course, compels us to recognise incest as a taboo. Whether innate or learnt, the disgust that incest incites seems likely to be an evolutionary trick to prevent the propagation of genetic disorders. Ms. Moody accepts as much, but adds that an “ick” needn’t be translated into a moral injunction, let alone a legal one; however, morality has grounds other than in evolutionary science. Instinctive revulsion applies to man in his natural state, as an animal and a raw product of evolution. But his moral sense is different. It belongs to his purely human faculties, and as he is in civilisation.


Stressing the connection between morality and civilisation would be redundant, only suffice it to say that it is through command, prohibition and restriction that morality is manifested. And our prohibition on incest reflects a moral valuation vital to civilisation; namely, the primacy of the family. Through the family we are nurtured and socialised, and the customs and ceremony of living are imparted to the innocent with the hope that they will weather life and do the same in their turn. For this to succeed, the relationships between its members must take a particular form; the moral disgust that incest excites comes from the recognition that it perverts that form. Sex between close relatives corrupts and destroys the most crucial of social bonds by introducing into it desires and emotions that it cannot sustain, frustrating their very ends — the rationale for its punishment is forced on us by the logic of civilisation itself.


In short, we punish incest because it makes normal family life unimaginable. Prison sentences for those who engage in it are expressions of a society’s revenge on an incalculably anti-social activity; for it cannot co-exist with the expectation that the family serve as the most important, though smallest, societal unit. The corollary of believing so means prioritising values other than individual liberty. Instead of providing us with the most secure grounds for ethical arbitration, the principle of “live and let live” in fact contradicts the moral sense of humanity as we find it.  Incest is an extreme case, but if not for anything else, is a remarkably useful entry point for the analysis of the tension between freedom and civilized expectations. Society should not, and more importantly cannot, allow it.


George Marsden is an editor with The Medusa Review. Follow him on Twitter @Sior_Gwent


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