Both Morally and Legally

Fr Alexander Lucie-Smith writes:

You might have missed this little snippet of news which concerns the European Court of Human Rights.

The Court has upheld the German law that makes incest illegal. The plaintiff, one Patrick Stuebing, had claimed that the law against incest infringed his rights to a family life. He had been living with his sister, by whom he had had four children, and in fact been imprisoned for incest.

The case is a sad one, in that Patrick and his sister had only met and became close as adults, not having been brought up together. In places were family break-up is common, or where siblings and half-siblings may not be brought up together as children, this is a danger: near relatives may meet as adults and fall in love.

Most people perhaps would rather not think about incest, something that has been condemned by most (but not all) societies. But this case ought to give everyone pause. There is no right to incest, it seems. Does this mean that rights, at least some rights, have limits? Does it mean that courts can make moral judgements? Does it mean that there are some actions that are wrong in all circumstances? Does it mean that the state has the right to interfere in the bedroom?

The answer to all these questions is “yes” as far as I can see. I know that it is commonly claimed that hard cases make bad law (and this is certainly a hard case), but the case of incest does bring us up sharp against the sure and certain knowledge that in matters of sexuality, not everything goes. Even a libertarian would have to admit that, surely? Or am I wrong about this?

We do not allow incest in this country, and that I think is right, both morally and legally. This fact points us to a bigger fact: in matters of sexual expression we are not free to do as we please. And, by the way, my objection to incest is moral, not biological; it is based on the intrinsic nature of the act, rather than on its consequences. Incest is wrong in itself, as it poses a threat to the family bond, and violates the nature of that bond. It is biologically bad news too – but that in itself is not a sufficient moral argument.

What have we come to, that we are even discussing this?