Incestum: love or a criminal act?
| Autor | Mirjana Bogunovic |
| Ocupação do Autor | Assistant in Roman Law, Law Faculty in Banja Luka, Banja Luka University, Republic of Srpska, Bosnia and Herzegovina |
| Páginas | 974-989 |
974 • XXVI World Congress of Philosophy of Law and Social Philosophy
Incestum: Love or a Criminal Act?
MirjanaBogunović, LL.M.1
Abstract: Incest is a psychological phenomenon that is not strange to any so-
ciety, looking back from ancient times until nowadays. Unevenness in its legal
treatment is obvious. Many countries have a criminally prohibited and pun-
ished incestuous love, while some countries do not treat the incest as an oence
punishable by criminal law if it involves two adults who are capable of reason-
ing.
The basic concept of incest in literature is illicit love between representatives of
two dierent generations, veiled by confusion and misunderstanding. Sopho-
cles’s king Oedipus is a victim of damnation that his father Laius cast on him
and his descedents because he abused the hospitality of King Pelops of Elis and
raped his youngest son Chrysippus. Although Greek antique awareness was
very liberal, it considered incest as the worst punishment of Gods ona human
being. Also, there is an incestuous relationship in the Bible, between Lot and
his daughters, who made their father drunk and conceived with him. But the
destiny didn’t collapse on him so strongly like it did on poor Oedipus. Why?
Is it possible that Christianity considers Lot as a righteous man of God and his
drunkenness and unawareness as an excuse for his act?
In contrast to unaware act of incest, history revealed many a case of a
volitional incest that often happened between the same generation, a brother
and a sister, born and raised in great separation from the rest of the world.
Example for that is Thomas Mann’s bookThe Blood of the Walsungs, which
describes a perfect union of blood related ospring. In Serbian literature Slobo-
dan Selenić also develops the same concept of incest between Jelena and Jovan
in Premeditated Murder, but this case is a less gruesome version of incest since
they are not blood related, but rather act as stepsiblings.
The way literature treats the issue of incestuous relation clearly shows
that patriarchal society is not ready to talk about the concept of incest. However,
it does not mean that it is not happening, and that it should not receive more
aention from national legislation.
Key words: incest, law, literature, criminal act, voluntary consent
1
Assistant in Roman Law, Law Faculty in Banja Luka, Banja Luka University, Republic of
Srpska, Bosnia and Herzegovina. Email: mirjanabogunovic86@gmail.com.
Special Workshop: Law and literature - experiences from my country • 975
1. Introduction
While I was considering the issue of incest as the main theme of
my paper and sharing my thoughts with my colleges their reactions on
that maer were not encouraging. The standard reaction was that the
phenomenon is unnatural and not common to our nation. Such fact
made me even more curious and I started wondering whether that was
true in which case it would be pointless to explore more on the subject.
Reading further about the incest I came across a common explanation
of the concept of incest , also called “ judgment from stomach“ , since it
represented a kind of irrational judgment, when value judgment is made
without engaging one’s cognitive capacities2. This way of reasoning is
typical of my countrymen when judging about incest and their main
argument for rejecting the idea of incest is it an unnatural phenomenon.
Is this argument right and is it enough to proclaim incest as a criminal
act and to apply the hardest punishments on incestuous lovers ?
Prohibition of incest is worldwide spread and is well known
among civilized cultures but every culture has its own special approach
that is determined by cultural heritage and mentality3. What is very curi-
ous is that incest in South-Slavic area is actually not uncommon which
is further testied by our folk ballads4, in spite of a great rejection and
resistance this phenomenon produces within my nation. But the legal
point of view of incest is always standing on the point of prohibiting
incestuous marriage , at least that is the case with Serbian Civil Code-
5which under article 69, part 10 mention kinship like marriage impedi-
2
http://mindreadingsblog.wordpress.com/2012/11/18/incest-zasto-je-ljubav-izmedu-
srodnika-losa-ideja/, accessed on 3.7.2013.
3
e Incas, Hawaiinas and ancient Egyptians are among most widely referenced excep-
tions to the incest taboo, referenced by Ray H., Bixler, Sibling Incest in the Royal Fami-
lies of Egypt, Peru and Hawaii, e Journal of Sex Research 18, 1982., 264.-281.
4
See futher in Zoja Karanović, e fearful symmetry in South Slavic folk ballads about
incest between brother and sister, Annual Review of the Faculty of Philosophy in Novi
Sad, Volume XXIX, 2001., 25-40.; Zoja Karanović, Brother- sister incestuous relation-
ship somewhere in between hierogamy and incestuous sin ( on example of folk songs
who are about intention of Emperor Stefan Dušan to marry his own sister), Literary
History, volume 34, number 118, Belgrade, 2002., 293-305.
5
http://sr.wikisource.org/wiki/%D0%A1%D1%80%D0%BF%D1%81%D0%BA%D0%
B8_%D0%B3%D1%80%D0%B0%D1%92%D0%B0%D0%BD%D1%81%D0%BA%D
0%B8_%D0%B7%D0%B0%D0%BA%D0%BE%D0%BD%D0%B8%D0%BA_-_%D0-
%BE%D1%80%D0%B8%D0%B3%D0%B8%D0%BD%D0%B0%D0%BB, accesed on
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