Abstract

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.