My colleague Professor Bainbridge responds to my posts about incest and about law and morality by saying, “I have no problem with basing laws on the yuck factor, as I’ve explained before. Leon Kass aptly called it ‘the wisdom of repugnance’; i.e., ’emotional expression of deep wisdom, beyond reason’s power to fully articulate it.'”
I think this approach of Kass’s is mistaken, for two reasons.
1. Our sense of repugnance is highly fallible as a guide to right and wrong; sometimes it leads us in the right direction (quite possibly for good evolutionary psychology reasons), but sometimes it leads us in the wrong direction. Lots of medical procedures, for instance, are yucky and revolting, especially before one gets used to them — consider transplanting organs, using maggots for medical purposes, or for that matter many kinds of surgery, if you think hard about them. Think a bit about inoculating people against smallpox using fluid from pustules of someone who was recovering from a mild case of smallpox. Seems pretty disgusting to me even now, and I’m sure it was even more disgusting to many when inoculation was first introduced. Yet how many millions of lives did inoculation save?
As it happens, Leon Kass’s article about the “wisdom of repugnance,” in The New Republic (June 2, 1997), used the concept as a means of arguing against a medical practice — human cloning. Later, Kass argued that we should and do experience “primordial revulsion over confusion of personal identity, implicit in the thought of walking around with someone else’s liver or heart”, and that this should lead us to reject organ markets (though not transplantation itself).
Likewise, social practices that violate various taboos can be revolting even if on reflection the taboos prove mistaken. Accounts of historical attitudes towards interracial sex and marriage, for instance, suggest that people in the past have found that “yucky.” My sense is that taboos against premarital sex, especially premarital sex by women, have often been expressed in terms of disgust. (For an apparent combination of the two, see Succession of Lannes, 174 So. 94 (La. 1936): “[I]f a white woman lived in open concubinage with a negro man — a revolting and repulsive affair — he or she would be entitled to receive from the other’s estate, under a will, one-tenth of the value of the estate.”)
2. Our sense of repugnance tells us little about whether we should use the coercive force of law, especially of criminal law, to punish people. Many people, for instance, find male homosexual sex to be yucky and repugnant. But my sense is that even those Americans who morally oppose homosexuality tend to no longer support imprisoning people for engaging in consensual adult homosexual sex.
Likewise, many people find even heterosexual anal sex to be yucky and repugnant, and historically many people have taken the same view about male-female oral sex (and I assume some still do). But again I take it that even those people who find such sex yucky wouldn’t generally throw people in prison just because they engage in it; likewise, people who find female promiscuity — wherever they set the threshold for “promiscuous” — to be disgusting wouldn’t suggest locking people up for it.
In fact, Kass’s New Republic article itself notes, “Revulsion is not an argument; and some of yesterday’s repugnances are today calmly accepted — though, one must add, not always for the better.” Kass of course goes on to argue that, “In crucial cases, however, repugnance is the emotional expression of deep wisdom, beyond reason’s power fully to articulate it.” But if we recognize (as I think we must) that some of yesterday’s repugnances are rightly accepted today, and that even today’s repugnances might be rightly overcome (which is Kass’s view with regard to nonmarket organ transplants), we can no longer simply rely on our repugnance. We have to reason about exactly why something might be harmful, and whether its harms are exceeded by its benefits (or by the harms of trying to criminalize it, which include both deprivations of liberty and expenditures of taxpayer money).
And once we consider such matters, then I don’t see why we should be paying much attention to revulsion (which “is not an argument,” as Kass himself says). We should instead focus on the wisdom of reasoning, not the supposed wisdom of repugnance. (As I mentioned in my original post, there certainly are good reasoned arguments, rather than just “yuck factor” arguments, against allowing incest even among adult close relatives.)
I suppose someone might say that repugnance could still be rightly used as a sort of default assumption — criminalize that which we find yucky, unless there is good reason not to ban it. But there is always good reason not to criminalize something: Criminalizing behavior interferes with liberty, and costs taxpayer money. To be sure, sometimes it is right to interfere with liberty and spend taxpayer money, for instance if the behavior is likely to be quite harmful (directly or indirectly). But the right way of deciding that is by focusing on the harms, not on the revulsion.
Finally, let me note again what I said earlier (and what my original incest post made clear): I am speaking here of whether it’s right to ban something just because of our “yuck factor,” not of whether it’s constitutional to do so. And I take it that Professor Bainbridge is likewise arguing that it is right (and not merely constitutional) to ban adult incest and other behavior simply because of the “yuck factor.”