In response to my last posing about decriminalizing incest I received the following interesting comment which reads in part: I wonder if we might think of this ... in terms of what we should expect from the law and from the state. What role ought the state play in enforcing sexual morality? ...perhaps it would be better for the state to focus on protecting the vulnerable, such as children, rather than weighing in on what consenting adults can and can't do. The comment then goes on to suggest that The prohibition of incest ... has mostly been enforced through social stigma and ostracizing transgressors. Decriminalizing incest wouldn't stop this from occurring. So the question is, are the state's institutions the proper one's to use to prevent incest?
This suggests that once incest is decriminalized – and remember, the original discussion included the possibility of extending the legal status of marriage to incestuous relationships – other forms of social sanction would continue uninhibited. This seems unlikely, however, since it implies that the freedom to discriminate against people in these relationships would be protected. Such discrimination would surely be construed as an attack on the freedom of individuals to exercise their legal rights. Thus social prohibition, if not eliminated, would be seriously curtailed.
Surely this is the heart of the matter. In a modern liberal democracy it is now almost universally assumed that the purpose of the law is to foster maximum individual freedom while protecting individuals from harm, so it is incumbent upon anyone who wishes to apply legal sanction to any act to show that some individual’s freedom or security would be thus protected. Acts among consenting adults are seen as acts of freedom, so, if they are not directly harming any individual, the law will not only allow, but protect such acts.
Now, consider the challenge of raising a family in a situation where everyone is potentially a legitimate sexual partner for everyone else: fathers and daughters, mothers and sons, brothers and sisters, mothers and their brothers and fathers, fathers and their sisters and mothers, etc. It’s hard to imagine the family unit surviving in such a situation. This suggests that there is something beyond the freedom and security of the individual at stake here, i.e., the family unit. This social institution is the main agent of reproduction and the care, nurture and socialization of children. In fact, this institution is the main engine of society, yet it is this intermediary level of social organization, between individual and state, that liberal democracies seem reluctant, perhaps even unable to foster and protect.
This is why I say it feels to me like we are headed for a monstrous train-wreck. Every time one of these natural and social taboos is knocked down we are reminded that the sky hasn’t fallen, but I’m not completely reassured. I think of the story of the man who fell from the ninety-third floor of an office tower. As he passed the forty-second floor he was heard to mutter, “So far, so good.”
PS: I’m very grateful for the comment I received, but there must be a few others out there with thoughts about a topic like this. Perhaps you find the discussion so unrelentingly sophisticated and erudite that you don’t quite know how to get in. If so, don’t be so humble. Then again, perhaps you’re reluctant to get involved in something so utterly whacked. In that case, don’t be so proud.
1 comment:
Hello,
Me again,
Thanks for your response to my comment. Maybe I can add a bit to it and we can clarify where our actual disagreements are. My real concern is not with the incest taboo itself and whether it’s a good idea. I’m more interested in the way the issue is framed in political terms. The concern I expressed in my original comment was whether the state’s institutions were the proper ones for enforcing this taboo.
The development of the institutions of the state is one of my interests, as you know. It seems to me that fear of the alternative to the state is a constant justification of the powers the state wields. In fact, the state needs a constant supply of fearful possibilities to convince us to subject ourselves to, and even demand, the extensive role it plays in our lives. I think history bears this out. The policing function of modern states was greatly enhanced by the need to enforce quarantine to suppress the spread of the plague. Very often a new plague must cause fear in order to continue to justify this power. Swine flu is only the most recent example but every few years there’s a new one (SARS, avian flu, etc.). The state needs these fears to keep coming along and they always will.
Health, of course, is not the only area in which this happens. The fear of rampant criminality, terrorism, anarchy are also useful ways to justify the surveillance and control the state’s institutions exert. And our sexual lives are not immune. An ‘epidemic’ of masturbation in the Victorian era was a justification for a massive investment in the medicalization of sexuality and the development of psychiatry. Your own response seems to indicate that you believe family relations need to be policed in order to be natural and healthy. And you also suggest that this requires, via the criminalization of incest, the powers of the state. The ‘train wreck’ that will occur if the state doesn’t police intimate family relations justifies our appeal to the state to save us, in this case even from our own desires.
Your desire to protect intermediary institutions between the state and the individual is one I share. But I think that it is our desire for the state to put all of our relations under its surveillance that is the greatest threat to these institutions. Yes, you are right that we tend to think that behaviours are either regulated by the state or belong in the private realm of individual choice. But this is a result of the poverty of our political imagination. Real support for these intermediary institutions, in my view, needs to come about by rejecting this false dichotomy. And I wonder whether the criminalization of incest (which would seem to include a place for the policing and surveillance of intimate family relations) actually supports this dichotomy.
Nathan
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