Incest and the forbidden degrees of marriage in Scots law

Sexual intercourse between a person and certain close relatives will, in some circumstances, constitute the crime of incest in Scots law (The Sexual Offences (Scotland) Act 1976, s 2A, as inserted by the Incest and Related Offences (Scotland) Act 1986); a purported marriage between a person and certain other close relatives will have no effect and will be void (The Marriage (Scotland) Act 1977, s 2, Sched 1, as amended by the Marriage (Prohibited Degrees of Relationship) Act 1986). This article aims to examine the rules of law contained in these two provisions and, in particular, to analyse the justification for these rules. It is not to be questioned that all rules of law demand justification, and it is submitted that if a statutory rule has no justification it demands repeal. This article will argue that there is no justification for criminalising incest, and no justification for prohibiting marriage between parties within certain degrees of relationship.