In this article I consider whether there a right to incestuous marriage. I begin by suggesting that the liberal state get out of the "marriage" business by leveling down to a universal civil union or "registered domestic partnership" status. Removing the symbolism of the term "marriage" from political conflict, privatizing it in the same way as religion, would have the advantage of both consistency and political reconciliation. The question is then whether incestuous unions should be both legal and eligible for (...) this status. I argue that the arguments compatible with public reason for prohibiting them outright, or even for excluding them from the permissible types of legally registered partnerships, are quite weak. The objections to allowing such relations are those from (1) child abuse; (2) unfair burdening of society; and (3) the creation of bad lives. I argue that while rape and other forms of child abuse would be no more legal or tolerated than they are now, the concern about any form of weakening a society's legal and political resources to combat such abuses does indeed register on the justificatory scale, but does not prove that such first-degree incestuous sexual relations are inherently bad enough to warrant intervention in their own right. I then argue that the concern about unfairly burdening society with unhealthy persons is not as dangerously totalitarian as we might initially fear, but nor is it strong enough to justify an outright prohibition. Finally, I argue that a concern to dissuade persons from creating certain kinds of lives (children with extreme birth defects) is also not as dangerously totalitarian as we might initially fear, and in fact goes further towards explaining why we might have a legitimate interest in intervening. Nonetheless, I argue that the criminalization of such acts only make sense when they are indicators of other offenses, namely negligence or abuse, and it thus seems that the act of consanguineous reproduction is itself insufficient. One potentially surprising conclusion of this inquiry is that far from creating strong reasons for tolerating these practices, religious or cultural reasons for valuing incest (as well as polygamy) actually seem to count against tolerating them. The reason is that from a liberal perspective, tolerating polygamy and incest involves the assumption that it is possible to disassociate polygamy and incest simpliciter from abusive practices associated with them, including environments where children are raised to devalue their own sexual (and other) autonomy. However, the presence of comprehensive doctrines which include polygyny or incest as part of a good life actually makes it harder to justify disassociating polygamy and incest themselves from the likely abuse and coercion practiced by those who would value polygyny or incest. (shrink)

If a state with liberal political and justificatory commitments extends benefits of various kinds to persons forming families, what qualifications may such a state place on the right to access to those benefits? I will make two assumptions for the purposes of this paper. The first is the political and justificatory terrain of some form of political or otherwise non-perfectionist liberalism. The assumption is that we are considering the resources and limitations of a community of persons who accept moral pluralism (...) (if not a specific doctrine like the "burdens of judgment"), some priority for individual freedom, and the obligation to justify public coercion and exclusion in terms accessible and fair to all members of morally and culturally diverse society. The second is that it is justified for a liberal state to recognize some forms of domestic partnerships or families in the first place and extend further benefits to them such as tax credits or laws extending (or facilitating the extension of) medical or social insurance. It is, of course, possible to imagine the argument that the liberal state gets out of the marriage business by getting out of it entirely - by extending no recognition or positive rights to families whatsoever beyond negative non-interference rights. I am interested in the dilemma of a society broadly like existing liberal ones which is committed both to subsidizing families and also to justificatory neutrality (expressed in American constitutional legal terms as the requirement of providing a "rational basis" for unequal treatment). Given these assumptions, I believe that the most justifiable policy on liberal grounds is not the institution of "marriage" increasingly open to new constituent relationships but rather a status of "registered domestic partnership" which fulfills the social and moral aims behind subsidizing the family but is entirely neutral not only to the gender or even to the numbers of the partners, but also to the affective and emotional content of domestic life and the purposes behind contracting domestic partnerships. So is there a right to polygamy and incestuous marriage? There is not a specific right to either and thus there is no a priori reason why some restrictions or even prohibitions on them might not be justified, but the same is true for every specific act where a general right to the freedom exists. I argue in this paper, however, that the arguments compatible with public reason for prohibiting them outright, or even for excluding them from the permissible types of legally registered partnerships, are quite weak. I argue that objections to polygamy from (1) female autonomy, (2) damage to children, (3) fairness in the marital market, and (4) the unfair burdening of society are serious and worth refuting, but do not establish a victorious case against multi-member relationships. As to incest, there are two separate questions. The first is whether the new institution of "registered domestic partnerships" should be open to them. The answer to that, given the state's lack of interest in citizens' reasons for forming partnerships and in what they do whilst being registered in one, is clearly "yes." The second is whether, entirely separate from the issue of legal recognition of domestic partnership, the state has a legitimate rational interest in deterring, preventing or punishing consanguineous sexual relations between close blood relations (first-degree incest). Here, the objections to allowing such relations are those from (1) child abuse; (2) unfair burdening of society; and (3) the creation of bad lives. I argue that while rape and other forms of child abuse would be no more legal or tolerated than they are now, the concern about any form of weakening a society's legal and political resources to combat such abuses does indeed register on the justificatory scale, but does not prove that such first-degree incestuous sexual relations are inherently bad enough to warrant intervention. I then argue that the concern about unfairly burdening society with unhealthy persons is not as dangerously totalitarian as we might initially fear, but nor is it strong enough to justify an outright prohibition. Finally, I argue that a concern to dissuade persons from creating certain kinds of lives (children with extreme birth defects) is also not as dangerously totalitarian as we might initially fear, and in fact goes further towards explaining why we might have a legitimate interest in intervening. Nonetheless, I argue that the criminalization of such acts only make sense when they are indicators of other offenses, namely negligence or abuse, and it thus seems that the act of consanguineous reproduction is itself insufficient. (shrink)

Incest taboos should be seen as involving non?sexual objections to sexual relations, that is, objections based on who people are in relation to each other, rather than their activities. What is at stake is brought out by considering certain objections to father?daughter incest and certain features of taboos. The objections that matter do not depend on social ties and distinctions having a biological basis, but there is nonetheless a biological element in incest taboos. To see it, one must look to (...) the nature of the Oedipus complex, and to the conditions for the development of the individual and of society. There may be prohibitions which are necessary (to morality, to society, to humanity) even though they may not be justifiable within a narrower conception (e.g. utilitarian) of morality and justification. And so taboos which are universal (occur, in one form or another, in every society), and absolute (allow no questioning), and impose strict liability (allow no excuse), may not be irrational: they may mark the boundaries that shape a way of life. (shrink)

Today the idea that an evolutionary approach may be fruitful for research in the social sciences is being passionately defended by some and no less passionately contested by others. The resistance to Darwinism comes mainly in two distinct varieties. The first type of criticism is based on empirical or methodological objections against the current attempts to use evolutionary considerations to throw some light on social science explananda. The other line of opposition, however, is much harder to pin down and discuss (...) because it is fueled more by rhetoric than by argument. It defines itself, rather vaguely, as a fight against “biological reductionism” and “genetic determinism” and is often accompanied by slight (or not so slight) ideological overtones. In this chapter, I will deal only with the former (methodological) kind of criticism. But since I don’t want to leave the latter, hazily antireductionist source of opposition to biology without comments, and since I don’t know how to approach it in a serious way, let me wiggle out by presenting to you a rhymed parody, “Gene-mania,” that captures some of the more ideological criticism’s characteristic flavor. (shrink)