I am a conservative Baptist. I believe extra-marital sex is morally wrong, and that same-sex marriage is illegitimate. I believe prostitution and incest are morally reprehensible.
However, in spite of my personal sentiments, I believe all of the above should be legal, albeit with some qualifiers. Why? Because, as Ron Paul so candidly put it, “we as individuals are responsible for our own lives and decisions.” Indeed, that statement is one to which all Baptists should subscribe.
While many libertarians have defended the legalisation of prostitution, extra-marital relations, and same-sex marriage, few have been willing to talk about incest in an open John Fordian fashion. That’s no surprise in a sense. The late Christopher Hitchens – no friend of mine, but nonetheless one who was often correct – observed that many people, especially on the socio-political left, try and identify one’s lowest possible motive in order to present that lowest of motives as the sole one. The fear, then, is that by speaking out in favour of incest being legal (even with some caveats) you open yourself up to the charge that you have some sort of Oedipal complex, that you are a motherfu-…you get the idea. The point is that there is a near universal taboo about incest. However, libertarians must not let that fear prevent us advocating reforms that will increase liberty.
Before we talk about incest, let’s set the groundwork.
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. To that end, I’m also not going to focus on cases of disputed consent – whether Lot consented to sex with his daughters is, as with many rape accusations on college campuses today, a grey area.
Libertarianism as an ideology has been subjected to much philosophising and political theorising, but it can fundamentally be reduced to a single maxim, known as Mill’s harm principle. The principle, formulated by the English social theorist John Stuart Mill, is just this: “That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.” In other words, do what you want as long as you don’t hurt others. Of course, ‘harm’ and ‘hurt’ are loaded terms that can be broadly and narrowly construed, so I intend (for present purposes at least) to take it to refer to direct physical harm. I have little sympathy for the offense principles of people like Joel Feinberg who take offense, in some circumstances, to constitute sufficient reason for banning certain forms of speech – and harm to property is also a whole different question!
Right, the groundwork is all set, so let’s get down to it. The analysis, that is. Not the incest – unless that’s your thing, then you should have every right to get down to that.
Does romantic and/or sexual love between relatives cause physical harm to others against their will? I cannot imagine a situation in which that is so. At most, the parties involved could harm themselves in the act, but that is of no concern to the libertarian – it is merely an unfortunate consequence of their own consensual choices. With great liberty comes great responsibility.
But, I hear the cries of critics, incestuous sexual intercourse can lead to pregnancies, pregnancies which are more likely to result in children being born with medical defects. Consanguineous couples are more likely to have children with intellectual deficits, bodily deformities, and the like. All of this is true. This is where the discussion becomes more muddied, and my own view may be found wanting by other libertarians.
At this point, I want to add a caveat to Mill’s doctrine: if an act is sufficiently likely to cause physical harm to another, then the law should not permit it. This extension of the harm principle is not particularly unintuitive. The law, for instance, seems right to say one cannot drink and drive because it is sufficiently likely to cause physical harm to another. Likewise, this is why we generally don’t think mentally unstable people, like terrorists, ought to have firearms. Again, ‘sufficiently’ is a grey area, but such uncertainties seem inevitable.
If we accept this extension of the harm principle, it seems we have to say this: incest ought to be legally permissible provided that every reasonable precaution is taken to avoid pregnancy, since the absence of such precautions would risk a violation of our caveat. Post-menopausal, homosexual, and infertile (be that through natural causes, a vasectomy/sterilisation, or something else) participants would be unaffected, and only those at a risk of pregnancy through penile-vaginal penetration ought to be required to use some form of birth control. Some of this talk of requiring birth control might seem uneasy to more absolutist libertarians, but it seems to me to be the truest libertarian – rather than anarcho-capitalist – perspective.
Thus, for a libertarian, it should be legal to sodomise your grandmother, perform fellatio on your father, or get to third base with your sister – so long as all parties are freely and knowingly consenting adults, and reasonable precautions are taken against pregnancy where appropriate. This isn’t a moral recommendation (I am not at all inclined to any of these things – apologies to my relatives; it is just not my thing), but a suggestion for what the law should allow given the principles that the law should function to uphold. The libertarian should not be afraid to speak up for the legalisation of certain taboos. Only by speaking up can we maintain and maximise our individual freedoms – be that, as for me, religious freedom; or, as for some others, the right to engage in incest.
* Matthew James Norris is an aspiring British historian and philosopher, with additional interests in political theory, economics, and contemporary affairs.