That's what I keep coming up with when I want to justify outlawing incest. What legal theory can I use? I have to assert first of all that it is my business who has sex with whom. If the possibility of creating children with birth defects is my justification, it seems like I might have to outlaw sex and/or reproduction in many other cases before I get to incest.
You seem to be searching for some rigorous and unambiguous standard on which to construct all legislation. But real legislation never gets passed on such a basis. It is always a hodge-podge of conflicting interests and standards. Having passed one law doesn't in practice mean that you must (let alone will) pass another one. So the relevant question is not whether your standards suggest that consistency demands these other laws, the question is whether anti-incest laws will help pave the way for these other laws.
And the track record demonstrates that it doesn't.
If I say that I am protecting people from the psychological harm associated with incestuous relationships, I have a lot of other styles of relationships that are also harmful, but which I would not outlaw. Furthermore, I can't figure out which party is the harmed one. Is it always the case that the man is the responsible party? Is it always the older party? I don't see it.
You are again imposing the wrong standard. We have long accepted legislation that is both too narrow (ie, doesn't cover every case of interest) and too broad (covers cases we might ideally ignore). We need not achieve perfection, and broadening or narrowing a law is often not worthwhile. I see this as an example. The cost of the law being too broad is essentially zero, as far as I'm concerned, but the cost of broadening it further is not.
Clearly, in the case that started this thread, both parties acted illegally, but only one is charged. What's up with that?
Prosecutorial discretion. Seems like the right call to me. I don't want prosecutors applying laws blindly, and I don't expect laws to be drafted so that they can be either.
In some sense, I agree with this. Incest prohibitions affect so few people that it's hardly an issue worth worrying about. However, a moment's contemplation reveals that this is actually an argument against the ban. If almost no one is affected, it can't be very important.
That's not an argument against it. If the law has some associated noticeable cost and a negligible benefit, that would be one thing. But a small benefit alone is not a strike against a law, especially if it's a long-standing law rather than one under discussion (where we might underestimate the costs).
Meanwhile, to those very few people who are affected, it is huge. It literally means the difference between freedom and confinement. Shall we use such power against someone, and justify it on the grounds that there aren't many people who are thus harmed?
Well, first off, the people who are so affected can avoid prison rather easily: don't commit incest. So the only cost they can't avoid is the cost of not getting to commit incest. Which is not, in my opinion, that huge at all.
But secondly, and most importantly, you seem to have forgotten that many of the people it affects are precisely the people it SHOULD affect. When someone who
should go to prison goes to prison, they may consider that a cost, but I certainly don't.
In order to make such a claim, you would have to say that there are significant benefits to the ban.
Yes, for some of the people involved, I think the benefits are significant. You cannot on the one hand argue that the costs are huge because they're huge to some people, but the benefits are small because so few people are involved.
But overall, the benefits don't need to be significant in any particular sense, they only need to be bigger than the costs. And I think they are.
