But it does all depend on whether you believe the “taboo” or not. There is popular prejudice against theft — but theft is also wrong.

Tolerant, fairly secular people have a lot of trouble with the notion of a consensual wrong: an act that doesn’t involve any coercion but is nonetheless an “abomination.” I’m genuinely uncertain as to whether such acts exist, and if so, why they are wrong. But I suspect that incest might be intrinsically wrong. Why? The potential for an abuse of authority can only explain part of it, since in sibling incest presumably both partners are roughly equal. The best reasoning I can think of is that relationships have a different character when they involve sex — and so a father and daughter who have sex have lost the possibility of a parent-child relationship. But I don’t know if this is reason enough for legal intervention; I also don’t know if it captures the reason most of us feel incest is wrong. What do folks think? Can there be such a thing as an abomination?

But it does all depend on whether you believe the “taboo” or not. There is popular prejudice against theft — but theft is also wrong.

Tolerant, fairly secular people have a lot of trouble with the notion of a consensual wrong: an act that doesn’t involve any coercion but is nonetheless an “abomination.” I’m genuinely uncertain as to whether such acts exist, and if so, why they are wrong. But I suspect that incest might be intrinsically wrong. Why? The potential for an abuse of authority can only explain part of it, since in sibling incest presumably both partners are roughly equal. The best reasoning I can think of is that relationships have a different character when they involve sex — and so a father and daughter who have sex have lost the possibility of a parent-child relationship. But I don’t know if this is reason enough for legal intervention; I also don’t know if it captures the reason most of us feel incest is wrong. What do folks think? Can there be such a thing as an abomination?

Now if you’re arguing that the state has no business enforcing a cultural taboo, it seems to me that it’s irresponsible not to step up and enforce it yourself by expressing disgust at these two sickos. Dain’s attitude — “what the hell business is it of ours?” — just seems reckless.

But this only follows if you agree with the cultural taboo. One can acknowledge the fact that a taboo exists without necessarily agreeing with it.

Now if you’re arguing that the state has no business enforcing a cultural taboo, it seems to me that it’s irresponsible not to step up and enforce it yourself by expressing disgust at these two sickos. Dain’s attitude — “what the hell business is it of ours?” — just seems reckless.

But this only follows if you agree with the cultural taboo. One can acknowledge the fact that a taboo exists without necessarily agreeing with it.

That doesn’t mean that society should never change, but it does mean that casting off tradition tends to have far-reaching and unpredictable consequences. If you want to tear down a tradition as well-established as the incest taboo, the burden is on you is to give a good reason. The desires of two Australian nutjobs don’t cut it.

This is precisely the argument non-bigoted conservatives give against gay marriage. (I say non-bigoted conservatives because bigoted conservatives don’t need a Hayekian argument to justify maintaining the status-quo; their hatred of homosexuality is justification enough.

I’m not so sure why you think the burden of proof is necessarily in favor of the status quo, as if the status quo is reason enough on its own, and the side proposing a change to the status quo is the only side that must give reasons. The burden of proof could just as easily go in the opposite direction, with a prima facie assumption of freedom, with the side proposing any moral or legal restriction on human action obligated to give sufficient reasons to override the prima facie assumption.

Now, I will agree that the status quo, all else being equal, with no other reasons given by either side, is reason enough to maintain itself, but this is almost never the case, for if there was no one to object to the status quo, this entire discussion is moot. As soon as a critic suggests that the status quo rule (whether a legal rule or simply a moral rule) should be changed in favor of liberty, that critic has given a reason – a reason to be weighed against the reason of the status quo.

Is the reason of liberty a stronger reason than the reason of maintaining the status quo? I’m not sure. But then, I’ve heard no good argument for why the burden of proof should favor the status quo and not favor liberty.

Jonathan Rauch addressed the Hayekian argument against gay marriage, concluding that Hayek himself was a moderate and not extreme Hayekian, and thus would probably have been in favor of extending the institution of marriage to gay couples. This particular excerpt, from Hayek’s “Law, Legislation, and Liberty, is telling:

“It may be due simply to the recognition that some past development was based on error or that it produced consequences later recognized as unjust….But the most frequent cause is probably that the development of the law has lain in the hands of members of a particular class whose traditional views made them regard as just what could not meet the more general requirements of justice….Such occasions when it is recognized that some hereto accepted rules are unjust in the light of more general principles of justice may well require the revision not only of single rules but of whole sections of the established system of case law.”

If the only justification we can give for maintaining the status quo is merely that it is the status quo, and if you don’t believe that the “desires of two Australian nutjobs” isn’t reason enough to change the status quo, then would be reason enough? How many nutjobs who want to enjoy their liberty to be nutjobs does it take before their unsatisfied desires become a good enough reason to ask the status quo to justify itself?

That doesn’t mean that society should never change, but it does mean that casting off tradition tends to have far-reaching and unpredictable consequences. If you want to tear down a tradition as well-established as the incest taboo, the burden is on you is to give a good reason. The desires of two Australian nutjobs don’t cut it.

This is precisely the argument non-bigoted conservatives give against gay marriage. (I say non-bigoted conservatives because bigoted conservatives don’t need a Hayekian argument to justify maintaining the status-quo; their hatred of homosexuality is justification enough.

I’m not so sure why you think the burden of proof is necessarily in favor of the status quo, as if the status quo is reason enough on its own, and the side proposing a change to the status quo is the only side that must give reasons. The burden of proof could just as easily go in the opposite direction, with a prima facie assumption of freedom, with the side proposing any moral or legal restriction on human action obligated to give sufficient reasons to override the prima facie assumption.

Now, I will agree that the status quo, all else being equal, with no other reasons given by either side, is reason enough to maintain itself, but this is almost never the case, for if there was no one to object to the status quo, this entire discussion is moot. As soon as a critic suggests that the status quo rule (whether a legal rule or simply a moral rule) should be changed in favor of liberty, that critic has given a reason – a reason to be weighed against the reason of the status quo.

Is the reason of liberty a stronger reason than the reason of maintaining the status quo? I’m not sure. But then, I’ve heard no good argument for why the burden of proof should favor the status quo and not favor liberty.

Jonathan Rauch addressed the Hayekian argument against gay marriage, concluding that Hayek himself was a moderate and not extreme Hayekian, and thus would probably have been in favor of extending the institution of marriage to gay couples. This particular excerpt, from Hayek’s “Law, Legislation, and Liberty, is telling:

“It may be due simply to the recognition that some past development was based on error or that it produced consequences later recognized as unjust….But the most frequent cause is probably that the development of the law has lain in the hands of members of a particular class whose traditional views made them regard as just what could not meet the more general requirements of justice….Such occasions when it is recognized that some hereto accepted rules are unjust in the light of more general principles of justice may well require the revision not only of single rules but of whole sections of the established system of case law.”

If the only justification we can give for maintaining the status quo is merely that it is the status quo, and if you don’t believe that the “desires of two Australian nutjobs” isn’t reason enough to change the status quo, then would be reason enough? How many nutjobs who want to enjoy their liberty to be nutjobs does it take before their unsatisfied desires become a good enough reason to ask the status quo to justify itself?

Even in cases of polygyny, with a single man married to multiple women, I still think the issues of power imbalance and potential for abuse are separable from the act of polygyny itself, in exactly the same way that issues of power imbalance and potential for abuse are separable from the act of incest itself.

Just as we can imagine (however unlikely in practice) a case of incest without a power imbalance or potential for abuse, so too we can imagine a case of polygyny without a power imbalance or potential for abuse.

Even in cases of polygyny, with a single man married to multiple women, I still think the issues of power imbalance and potential for abuse are separable from the act of polygyny itself, in exactly the same way that issues of power imbalance and potential for abuse are separable from the act of incest itself.

Just as we can imagine (however unlikely in practice) a case of incest without a power imbalance or potential for abuse, so too we can imagine a case of polygyny without a power imbalance or potential for abuse.

And it may be that the most efficient way to police those crimes is a blanket prohibition on incest itself. …

The law may assume that, in the vast majority of instances, murder and parent-child incest presuppose a lack of consent–whether consent is actively withheld or whether a party to the act is incapable of giving informed consent.

I understand the efficiency rational, but why not permit exceptions on a case by case basis? For example, we make an exception to age-of-consent laws for Romeo-and-Juliet circumstances, where the two partners are close to each other in age even if one is above the (semi-arbitrary) cut-off and the other is below it. So too, we generally assume, for efficiency reasons, that until a child turns 18, the child is too young to make decisions for itself, so the parents are granted custodial rights to make decisions for the child. But in certain cases, such as exceptional maturity on the part of the child (or exceptional immaturity on the part of the parent), courts allow children to emancipate themselves from their parents’ control.

So why not the case for incest, and yes, consensual cannibalism and assisted suicide? Use the broad heuristic as a general rule for the vast majority of cases, but if evidence can be given that the specific circumstances in an individual case are exceptions to the various rationales we may have had to justify the law in the first place (i.e. fear of lack of true consent), why not allow an exception to be made?

The efficiency heuristic argument alone does not justify these sorts of bans, unless it allows for case-by-case exceptions.

And it may be that the most efficient way to police those crimes is a blanket prohibition on incest itself. …

The law may assume that, in the vast majority of instances, murder and parent-child incest presuppose a lack of consent–whether consent is actively withheld or whether a party to the act is incapable of giving informed consent.

I understand the efficiency rational, but why not permit exceptions on a case by case basis? For example, we make an exception to age-of-consent laws for Romeo-and-Juliet circumstances, where the two partners are close to each other in age even if one is above the (semi-arbitrary) cut-off and the other is below it. So too, we generally assume, for efficiency reasons, that until a child turns 18, the child is too young to make decisions for itself, so the parents are granted custodial rights to make decisions for the child. But in certain cases, such as exceptional maturity on the part of the child (or exceptional immaturity on the part of the parent), courts allow children to emancipate themselves from their parents’ control.

So why not the case for incest, and yes, consensual cannibalism and assisted suicide? Use the broad heuristic as a general rule for the vast majority of cases, but if evidence can be given that the specific circumstances in an individual case are exceptions to the various rationales we may have had to justify the law in the first place (i.e. fear of lack of true consent), why not allow an exception to be made?

The efficiency heuristic argument alone does not justify these sorts of bans, unless it allows for case-by-case exceptions.

In light of the pervasive taboo, I’d suggest that human society will always seek to impose some cost on incestuous relationships. We can do that in an orderly way through the process of law, or through the ad hoc reactions of the community (from shunning to mob violence). I suspect the latter option would lead to far greater social and economic costs than the former.

I agree with you that the incest taboo is nearly universal. But so are other taboos based on the “ickiness” factor. Yet we feel no need to involve the legal system in, say prohibiting people from eating their own feces, despite the fact that consumption of one’s own feces is likely just as universally taboo as incest. Instead, to discourage fecal self-consumption, i.e. to propogate the social taboo, most of us feel that ad hoc reactions of the community, usually in the form of shunning, are sufficient. I see no reason to think that the incest taboo is any different. And in terms of which approach – social or legal – would lead to far greater social and economic costs, imagine what would happen if we placed a legal ban on the consumption of one’s own feces, punishable by a hefty fine or jail time. What would happen? Well, not much, since most people need neither legal penalty nor social disapproval to discourage them from eating their feces – their own personal disgust is more than enough discouragement. But that small minority that doesn’t share this innate disgust, for one reason or another, would be effected – they would be hunted down and punished, under legal penalty, for violating the taboo. Do you really think that the presence and enforcement of a law against coprophilia would lead to fewer social and economic costs than the absence of such a law? In other words, do you feel that a law prohibiting coprophilia is sorely needed (let alone justified)?

Take another example. While there are far more societies throughout history that were tolerant of homosexual in some form than societies that were tolerant of incest, the difference is not that large. Surely the vast majority of societies throughout history had a taboo against homosexuality. If I happen to be wrong about this, no matter – just entertain the counterfactual that this was in fact the case.

Would the near universality of a homosexuality taboo be a justification for legal prohibition? Would it even be a justification for extra-legal shunning? Is the fact that open homosexuality in certain parts of the world, or during certain peroids of history ight here in the good ‘ol US of A often led to mob violence a justification of mob violence? Is a legal prohibition against homosexuality justified on the grounds that the alternative, mob violence, is even worse in terms of social and economic costs? Of course not – the risk of mob violence is a justification for only one thing: a legal prohibition against mob violence.

Just as you can’t justify coercive income distribution on the grounds that economic inequality increases the likelihood of violent revolution on the part of the envious poor, so too you cannot justify legal prohibitions on interracial marriage on the grounds that such a prohibition decreases the risks of lynching by bigots.

In light of the pervasive taboo, I’d suggest that human society will always seek to impose some cost on incestuous relationships. We can do that in an orderly way through the process of law, or through the ad hoc reactions of the community (from shunning to mob violence). I suspect the latter option would lead to far greater social and economic costs than the former.

I agree with you that the incest taboo is nearly universal. But so are other taboos based on the “ickiness” factor. Yet we feel no need to involve the legal system in, say prohibiting people from eating their own feces, despite the fact that consumption of one’s own feces is likely just as universally taboo as incest. Instead, to discourage fecal self-consumption, i.e. to propogate the social taboo, most of us feel that ad hoc reactions of the community, usually in the form of shunning, are sufficient. I see no reason to think that the incest taboo is any different. And in terms of which approach – social or legal – would lead to far greater social and economic costs, imagine what would happen if we placed a legal ban on the consumption of one’s own feces, punishable by a hefty fine or jail time. What would happen? Well, not much, since most people need neither legal penalty nor social disapproval to discourage them from eating their feces – their own personal disgust is more than enough discouragement. But that small minority that doesn’t share this innate disgust, for one reason or another, would be effected – they would be hunted down and punished, under legal penalty, for violating the taboo. Do you really think that the presence and enforcement of a law against coprophilia would lead to fewer social and economic costs than the absence of such a law? In other words, do you feel that a law prohibiting coprophilia is sorely needed (let alone justified)?

Take another example. While there are far more societies throughout history that were tolerant of homosexual in some form than societies that were tolerant of incest, the difference is not that large. Surely the vast majority of societies throughout history had a taboo against homosexuality. If I happen to be wrong about this, no matter – just entertain the counterfactual that this was in fact the case.

Would the near universality of a homosexuality taboo be a justification for legal prohibition? Would it even be a justification for extra-legal shunning? Is the fact that open homosexuality in certain parts of the world, or during certain peroids of history ight here in the good ‘ol US of A often led to mob violence a justification of mob violence? Is a legal prohibition against homosexuality justified on the grounds that the alternative, mob violence, is even worse in terms of social and economic costs? Of course not – the risk of mob violence is a justification for only one thing: a legal prohibition against mob violence.

Just as you can’t justify coercive income distribution on the grounds that economic inequality increases the likelihood of violent revolution on the part of the envious poor, so too you cannot justify legal prohibitions on interracial marriage on the grounds that such a prohibition decreases the risks of lynching by bigots.