The case against love: A recent legislation on incest

Germany’s highest court recently upheld the law making incest a criminal offence that can be prosecuted with up to 2 years. It thereby rejected an appeal from a man who has four children with his sister. The pair fell in love when they met for the first time at adult age, after being brought up separately. Last week, the enforcement of the law, which would amount to 17 month in prison for the man, has been delayed. He and his sister now await the decision of minister of justice of the appropriate federal state.
Prior to and following the decision of the highest court there has been a lively debate on upholding a law that for many seems nothing but a historical relict and lacking sound justification.

The court gave three reasons that in total are to justify the legal norm: Protection of the family, protection of sexual self determination, and protection from hereditary diseases. It is essential that the declaration of the court only sees the protection of the sum of these legal goods as a sufficient argument to justify the legal penalties.

The strongest, though most controversial point, is the last one: the protection from hereditary diseases. In the case under debate the pair already has four children. Three of them are in foster care, two are handicapped. Leaving the serious problems raised by classifying someone as handicapped aside, it is to be noted that if this was the only point justifying the illegalness of incest, a consistent law would require sanctioning all sexual acts in which the probability to father handicapped children is raised as compared to some standard. This standard might be the likelihood to have handicapped children within averaged over the whole society or the likelihood for a single couple that, according to current standards, counts as perfectly healthy.

The current law is inconsistent in this respect as it allows partners of all ages to beget children – although there is evidence that the likelihood for genetic defects becomes enhanced with older parents. Also people with diseases known to statistically enhance the chance of having handicapped children are not curtailed in their mating behaviour.

 

The other two points – the protection of the family as well as of one’s sexual self determination – are already protected by other laws. Moreover, in the particular case they were not violated: Brother and sister were brought up in different families and met each other for the first time in a grown-up age. And both fell in love. This is not a singular incidence: Brother and sister who are not brought up together but only meet later in life have a higher probability to fall in love than non-siblings.

 

There are two ways of understanding the court’s decision that is based on all three points. The decision may be based on a slippery slope argument, meaning roughly: When we allow a morally questionable, but not condemnable behaviour now, there is a high chance that it yields to clear breaches of the law. For example, allowing brother and sister to live together with their children in this case might establish a bad example and motivate various kin to live their love.

But the slippery slope argument cuts both ways: Forbidding the brother-sister love might yield future amendments in legislation that are more than questionable from a moral point of view – particularly because, as outlined above, a legislation consistent as regards the aspect of protection from hereditary diseases has to forbid a lot of relationships and thus get into conflict with the right to self determination.

 

Another way of understanding the courts decision is that it acknowledges the existence of moral emotions in the society that are opposed to inbreeding. In general, such arguments are quite tricky, but in this case it raises particularly the question as to what extend the positive law influences our moral emotions. In France or Belgium, for example, incest is legal since the time of Napoleon; the moral emotions opposing inbreeding much less pronounced than, for example, in Germany a country that is despite France forerunner position in laicism (i.e. the absence of both religious interference in government affairs and government interference in religious affairs), is more secular than France. Just recall Claude Chabrol’s movie La Fleur du mal in which the love between brother and sister plays a central role.

One might argue that the moral emotions against inbreeding are the right ones as there are studies that suggest a kin recognition ability that functions on part to enable incest avoidance between close relatives – possibly to protect the gene pool. Firstly, the conclusions drawn from these studies are more then doubtful: Though children raised together during their first five years have inhibited sexual desire towards each other (known as the Westermarck effect), brother and sister that meet only later in live have an enhanced likelihood for falling in love. Secondly, even if there was a natural aversion against interbreeding, there do not follow any normative conclusions regarding our legislation form this in a straightforward way.