This paper presents an innovative analysis and
explanation for the continued existence of incest laws.
Legislation prohibiting incest is analysed using a New
Legal Realist methodology. The research has identified a
functional use of incest laws and opaque legal reasoning.
Governments and pressure groups have used politically
expedient arguments to legislate against incest. The paper
argues that in addition to the prima facie reasons given
for the offence, a secondary set of operative reasons can
be identified. The dissonance is the product of competing
social interests; incest is an example where the reasons
openly stated for the offence are disjointed from socio-
historical context which actually informed the change in
law. Against this background the continued criminalisation
of ‘incest’ within a modern legislative framework is
inherently questionable as is the ability of individuals to
engage within a deliberative democracy.
|Keywords:||Incest, Criminalisation, New Legal Realism, Deliberative Democracy, Familial Sex Offences, Sexual Offences|
Researcher, School of Law, University of Leicester, Leicester, Leicestershire, UK
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