The Law of Rights and the Law of Wrongs: Criminalizing Adult Incest

Abstract

Criminal and constitutional law are filled with theories that should offer normative answers to any question of criminalization. Criminalization is clearly crucial for both areas of law because criminal offenses can harshly restrict human rights. However, neither field offers a clear and applicable method to determine if criminalization is normatively just. This article explores the theoretical roots and methodologies of these two important branches of law to see how their theories work on the specific, seemingly hard and controversial question of criminalizing incest between biological adult siblings. The article shows that although the normative roads are different, the destination is identical: criminalization is unjust. The interface between the two legal areas does not entail the loss of language each branch has to offer, as the two branches are different and independent for a reason. However, it may create a dialect in which a shared discourse might enrich language, theory, and practice for the better. The competition between these branches is one in which both sides win.

Keywords: criminalization, adult incest, criminal law, constitutional law, harm principle, moralism, theory, family