My recent article entitled ‘Neither Prescribing nor Proscribing: the Libertarian and Incest’ received mixed reviews. Actually, that’s generous. It went down quite badly.
In a sense, I’m not surprised because I made a case that adhered strictly to libertarian principles, and most of the readers were not libertarians. In another sense, I am surprised since my conclusion logically follows from the uncontroversial premise that sexual or romantic relationships between freely consenting adults is none of the state’s business. All I did was extrapolate a premise, to which all libertarians should subscribe, that entails that incest (with the caveats I outlined) should be legal. My crime was being consistent in my beliefs, even when that requires me to commit to unsavoury positions.
Many of my critics clearly didn’t read the article itself. What I argued for was the legality, not morality, of incest. There is an important distinction, long established in positivist legal tradition, between legality and morality. I agree that incest is immoral. I explicitly said incest is “morally reprehensible”. However, the mere fact one finds something immoral or disagreeable does not justify making it illegal. That is anathema to true libertarianism. You may well find my Christian faith immoral, but guess what? I should legally be allowed to practice my faith, provided I do no harm in doing so. Likewise, though I find incest immoral, those who practice it without harming others should be legally allowed to do so. I fundamentally believe, in the words of Thomas Reed, that “[o]ne of the greatest delusions in the world is the hope that the evils in this world are to be cured by legislation.” Having laws against incest does nothing to prevent its practice. In fact, it makes it secretive, and makes it more difficult for cases for abominable, incestuous sexual exploitation to be brought to light.
On the topic of sexual exploitation, much of the criticism was that to argue for legalisation of incest is to argue for the legalisation of sexual exploitation. However, I explicitly distinguished between the two and focused on consensual incest: “I’m not talking about sexual abuse or the exploitation of minors or dependents. Such incest should be illegal and such exploitation should be met with severe legal consequences. The case that I set out here is for it being legally permissible for relatives to engage in romantic and sexual relations, providing both (or all!) parties are freely and knowingly consenting adults.” There are questions of when one becomes “freely and knowingly consenting”, but I was not intending to answer that question. It is a legitimate question, but what I was doing was taking uncontroversial starting points – be they libertarian principles or principles of consent – and taking them to their logical conclusion.
Perhaps the most popular criticism was that it makes the Libertarian Party in the US unelectable in what promises to be their best election year yet. ‘Yeah, you’re right,’ some said, ‘but this is why people think we’re crazy’. But what of this? I never claimed to speak for the party. For what it is worth, I think the Libertarian Party is soft, and that Gary Johnson is a pseudo-libertarian. As Jeb Lund wrote in the UK newspaper The Guardian: “Presidential hopeful Gary Johnson is no Libertarian. He’s a pro-pot Trump.” I understand that one must make small steps in progressing the libertarian cause, but I do not believe libertarians should be inconsistent in their views by rejecting my conclusion or that they should conceal their true views. I certainly will not. I am not Hillary. I will not conceal or cherry-pick my views for the sake of electability, throwing consistency out of the window. A primary reason the Libertarian Party will do well this year is because Clinton and Trump have the transparency of a brick wall, so equal ideological inconsistency or dishonesty will do libertarians no favours. To paraphrase Margaret Thatcher, the late former UK Prime Minister whose political philosophy was most significantly shaped by the great libertarian figurehead Friedrich Hayek, ‘U-turn if you want to, but I am not for turning.’
Some of my kinder critics made less vehement remarks. Among them was a concession that I had correctly expounded the libertarian view, but that we should focus on the bigger issues. I quite agree. However, the fact that ISIS is a bigger threat than al-Qaeda does not mean that we should not focus on al-Qaeda too. As libertarians, we ought – morally, not legally, of course – to focus on all threats to liberty. I chose an area that is rarely discussed because it is rarely discussed, but its unpopularity is irrelevant to its significance. Why? Because once one concedes that the state can interfere in the romantic and/or sexual affairs of freely and knowingly consenting adults, liberty is lost. If sexual or romantic relationships between freely consenting adults are deemed to be the state’s business, then there’s a dangerous precedent for the state intruding in the bedroom (or whatever other room is being used). Maybe that is your thing. Maybe you want the state to, for example, insist that you only have sex in the missionary position. But it is not liberty, and freedom matters. Libertarians are for liberty provided harm, or probable harm, is not caused (with some certain caveats that I made reference to in my earlier article).
To my critics, or at least those who actually read my article, consider the fact that all I said was that the state should stay out of the bedroom. If you do not believe that, then I’m afraid you’re not a libertarian. If you believe in it being legal for what you want to do without harming others, but in it being illegal for others, you do not believe in liberty: you believe in tyranny: ‘Liberty is the only thing you cannot have unless you are willing to give it to others’. Legality is not morality, and ideological consistency and integrity in regards to liberty is more important than electability.
* Matthew James Norris is an aspiring British historian and philosopher, with additional interests in political theory, economics, and contemporary affairs.
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