A couple of days ago the European Court of Human Rights decided a strange case, Stübing v Germany (no. 43547/08), judgment. An adult brother and sister engaged in consensual sexual intercourse, a punishable criminal offense in Germany and about a half of other European countries. The brother, applicant in this case, got a prison sentence. The other half of European countries do not criminalize adult incest. The issue before the Court was whether such a criminalization was consistent with the right to private and family life in Article 8 ECHR. The Court said that it was. For analysis, see this excellent post by Daniel Sokol on the UK Human Rights Blog.
What’s so fascinating about this case is that it is ultimately hard to pinpoint the moral, and hence legal justification for punishing adult incest, other than for the ‘yuck’ factor, i.e. a basically emotional response to the violation of a taboo. And this raises the specter of the justification for pure morals legislation generally, as e.g. with regard to the Naked Rambler, about whom I’ve written a few weeks ago. In other words, while the basis for most modern theories of morality or ethics, be they Kantian or utilitarian or what have you, is that morality is essentially a rational process that can be subjected to analysis through human reason, cases like these point to morality as an intuitive, emotional response in human beings. As a legal matter, the question is whether the simple fact that the community finds a particular practice to be incredbily disgusting is in and of itself enough to punish that practice through the mechanisms of the state. If, in other words, it is not okay for a state to criminalize homosexual intercourse merely because the majority of the population finds the practice to be disgusting (or found it such then) – see Dudgeon v. UK - how could it be okay to punish consensual adult incest merely because we find it to be disgusting?
In that regard, the European Court’s non-response to this question was quite predictable: