Copyleft : Bernard CHAMPION

1 Éléments d'Anthropologie du Droit
Avant-propos : Philippe LABURTHE-TOLRA Doyen honoraire à la Sorbonne
Préface :
Norbert ROULAND Membre de l'Institut Universitaire de France

présentation avant-propos préface introduction plan
index analytique références table illustrations
1- Le souverain juge
2- “Pourquoi le sang de la circoncision...”
3- Dessin du dessein
4- “Authentique ! sans papier !”
5- L“Âme du Mil”
6- “Il faut se battre pour la constitution...”
7- Rire et démocratie
8- Sur l’innovation
9- La “culture des analgésiques” et l’individualisme
10- Du “mariage arrangé” à l’“amour-passion”
11- Du mythe au roman, de la Patrie à la Filisterie
12- La chimie du rire
13- La prohibition de l’inceste... archéologie des émotions
14- Morale et handicap
15- Le juge, de quel droit ?
16- Droit au sol et mythes d'autochtonie
17- Habiter, cohabiter : sur l’exemplarité
18- Le territoire de la langue : les deux natures
19- Enquête sur la forme humaine : 1
20- Enquête sur la forme humaine : 2
21- Enquête sur la forme humaine : 3
22- Quelques exercices de Travaux Pratiques


Une présentation raisonnée des pages WEB qui composent ce site
sous forme d’un ouvrage électronique téléchargeable
sur la page d'accueil
(2 Go, 1900 pages au format A4)
SOMMAIRE : unité de l’homme et diversité des cultures

Chapter 13

(translated from French)

Plan of the chapter:

A) Some notions on the incest taboo: on the culture of species
Paper presented at the conference “Marriage - Marriages”, Palace of Luxembourg and University Jean Monnet, Sceaux, May 1997.

B) Passing down genetic heritage, passing down economic heritage:
paradoxes of reproduction
Paper presented at the conference “Families-Kinship-Filiation” (in honour of Jean Gaudemet), Palace of Luxembourg and University Jean Monnet, Sceaux, June 2005

B) Passing down genetic heritage,
Passing down economic heritage:

paradoxes of reproduction

IV - 13-2 mea
Virtute me involvo, probamque
Pauperiem sine dote quaero.
(Horace, Odes, III, 29)

Generation is “the immortality of mortals” Plato says in the Symposium. So the transmitting of heritage in some way, we could add, when we mean “to survive oneself in its works”. Families thus carry on through the line of descent and through the inheritance. The passing down of one's name, along with everything that this expression implies, appears to constitute, in continuity with the will to persevere in one's being, the categorical imperative of humans. “He who does not father, has not been fathered”, says an Arabic proverb. But this desire for immortality encounters a certain number of obstacles. Inheritances are sometimes hazardous. Glory and possessions remain uncertain, that we know, and there are indignant sons: that disgrace one's ancestry and lose its name. Moreover, even the process itself of generation implements a biological constraint into play- which I will take as the common theme - which constitutes resistance to the reproduction of the identical.

Yes, the passing down of what's identical, re-production… is a miracle. Montaigne, who inherited his gravel (his “subjection graveleuse”) from his father, shows, in the following terms, his amazement at the device that transmits this resemblance from father to child:

Quel monstre est-ce, que ceste goutte de semence, dequoy nous sommes produits, porte en soy les impressions, non de la forme corporelle seulement, mais des pensemens et des inclinations de nos peres ? Ceste goutte d'eau, où loge elle ce nombre infiny de formes ?
Et comme portent elles ces ressemblances, d'un progrez si temeraire et si desreglé, que l'arriere fils respondra à son bisayeul, le nepveu à l'oncle ?[…] Aristote dit qu'en certaine nation, où les femmes estoient communes, on assignoit les enfans à leurs peres, par la ressemblance.
(Essais, Livre II, Chapitre XXXVII, De la ressemblance des enfans aux peres)

Resemblance, in effect, is all the more miraculous as it is passed down by being mixed up. For if resemblance is present in reproduction, difference is as well. (A Nobel Prize for Medicine marvelled at the fact that, in this combination of luck and necessities that reproduction represents, there could be so much resemblance.) Reproduction, contrary to the ideal that the word contains, is never re-production. The production of the same thing. Sexual reproduction makes use of a natural process of differentiation. In fact - if we conform to the common sense - do we not say, certainly, “Like father, like son” but also “A miserly father will have a wasteful son”, etc. Sexual reproduction is not a duplication, cloning or a photocopy. Segregation (separation of pairs of chromosomes) and genetic recombination produce an original genotype (resulting from the fusion of chromosomes stemming from the male parent and chromosomes stemming from the female parent). The key to the device in question, the natural device in question, is, of course, the avoidance of incest that culture makes its own - even if it frees itself from it.

One point on this conception of natural grounds for the prohibition of incest has been made here in 1997, in the context of the conference “Marriage, Marriages” (vide supra). For nearly half a century, research, notably in ethology and genetics on this debated question for which there is no crucial test, has been conducted, it seems to me, more in the direction of a confirmation of what we call the “Westermack Effect.” To summarize the philosophy of this literature- which I cannot present exhaustively here and to link present communication to the previous, I would first like to remind you of this word, that's already been quoted, by the British biologist John Maynard Smith who, in 1978 declared (in terms that were certainly rather unrefined, but nevertheless which have a certain self-critical value): “10 years ago, I considered the avoidance of incest as an entirely cultural phenomenon. Only a bigot could support this point of view today.”

In reality, as I have said, there exists no crucial test in the case in point and so I will call forth here the arguments, which, without formally establishing the natural character of the avoidance of incest, nevertheless indicate its relative and problematic necessity as we will see. This presentation can be made more specific (relative to the general data recorded in the previous communication) by taking, as the main theme, the approach of sexual reproduction by immunogenetic typology. In effect, sexual reproduction can be understood as an evolutionary mechanism that neutralises the adaptive capacity of pathogenic agents by redistributing at every generation the genetic patrimony of the species. This is what suggests the characteristic polymorphism of the histocompatible genes in response to the variability of these agents. (Histocompatibility is the integration of billions of cells from the same organism, which are controlled by a family of genes called CMH ; e. g. Klein 1986 - which are responsible for the elaboration of proteins present on the outer membrane of each cell. These acts as a recognition system and allow the cell to “target” the intruder.) Reproduction of the same cancelling such a device, genetic identification is so revealed to be a precondition for sexual choice. The relevance of such an organization is recognised among several animal species where intraspecific chemical communication is paramount yet not at all evident in man.

A series of works (started in the 1960s) revolving around sexual selection in mammals (notably: Signoret and Mesnil du Buisson, 1961; Beauchamp et al. 1985; Singh et al., 1987; Potts, 1991; Penn and Potts, 1999) in effect allows us to establish that, in the animal kingdom, a relationship exists between immunogenetic typology and the olfactory phenotype, in other words, the odorous “mark” of an individual is also his “genetic mark”. Thus mice are able to identify the close and the distant by signifying a preference for genetically different partners, yet whilst coming back to nest in their original group - because of, one could hypothesise, this immunogenetic distance. An odorous substance, present in urine, synthesised by the control of CMH having certain similarities to lypocalycins and linked to hydrophobic molecules would determine in certain mammals this “smell of kinship” and consequently, would allow sexual selection according to immunogenetic typology. Steroid hormones, also present in urine, have been studied from the point of view of chimioreception and intra-specific communication. A pig's foreskin glands, for example, secrete squalens and steroids that are attractive for the female (and repulsive for other males). It is these molecules that provoke the reflex immobilisation of the sow in œstrus, this device being also used for searching truffles and to facilitate artificial insemination.

Some of the molecules mentioned above have indeed been found in man. But their presence is not in itself proof of functionality. In research into pheromones, these intra-specific chemical signals, eight sequences presenting similarities to a family of genes called V1R - pheromone receptors in rodents were identified in the olfactory human mucous membranes (P. Monbaerts and col. 2000). Seven of these sequences are pseudo-genes. One single gene, christened V1R1 ( that is to say: V1r-like gene-1) is active. It codes a polypeptide of 313 amino acids, according to a series largely homologous to the one we can observe in rodents, in the family of genes concerned, and could thus constitute a hypothetical gene pheromone receptor. But, compared to the hundreds of active genes, as such, in rodents, the human nose appears to be sadly ill-equipped. The disputed question of the activity of the vomeronasal organ, this structure whose anatomical and histological identification remains problematic (it is embryologically active, but residual in adults, and it has not been demonstrated that its cells indeed consisted of neurones sending their axons to the brain) but is not a real inconvenience in this case. This organ is not, in effect, the exclusive site of the interpretation of pheromones. (Hudson, R. & Distel, 1987; Dorries, K. M., Adkins-Regan, E. & Halphern, 1997). The fact that around 1 % of our notre genome is constituted of coding for olfactive receptors (by the fact it is the most important family of proteins in man ; by this discovery, Linda Buck and Richard Axel gained the Nobel Prize of Physiology and Medicine last year), leaves the discussion open.

The lability and the imprecision, the archaic and residual characteristic of chemical communication in man leaves little hold over this type of arrangement. Moral, cultural, media and commercial issues, in addition, trouble the objectivity needed for the discussion of the results of research that has been conducted in this logic. The only domain in which pheromonal-type chemical communication has been higligthed in man, is that of ovarian physiology. But neither the channels nor the agents of the experimentally shown “McClintock Effect” (1971 and 1998) have been identified. We only know that feminine axillary secretions have an effect on the periodicity of the cycles in question. Some works - with disputed methods and conclusions - have tried to underscore the identifying potential released by individual smell. It is easier in relation to sexual assignation than to individual identification; genetic information (filiation, germanity, twinship) seem, however, to be able to be recognised. But, obviously, individual smell does not have a bar-code that an olfactory reader could decrypt as certainly as a laser pen could with an item in a supermarket. The results of these experiments on the tested elements are not very conclusive. When they are, they engage weakly significant levels of response and are more about “rather” than “undoubtedly”.

Whatever the case is and although the channels and the means of chemical communication, that are largely denatured in man, give way to social strategies that, first and foremost, determine our sexual choice, we can think that general constraints on sexual reproduction which, it is well understood, are part of heritage, are exercised in the case in point, using the means that remain to be discovered. There is a threshold between empirical evidence (for which certain number of examples have been reported in the previous communication) and proof. Cultural Anthropology, where we would perhaps find as many exceptions as 'proofs' to this “smell of kinship” as what could be deduced from experimental protocols where subjects are invited to interpret olfactive stimuli. Thus according to this study (Weisfled et al.2003) the so-called “smell of kinship” (when it had been shown that it could be recognised as such) turns out to be “repulsive” between close relations (father/daughter, brother/sister). This seems to confirm current observations according to which a close relation is erotically devalued. Unless it was exactly in this characteristic of “vague preference” or “confused aversion”- “humour”, that we should research an equivalent of avoidance mechanisms in a species where chemical communication is residual. What explains the liberties that man can take with this natural, vague constraint, that I will now illustrate using several juridically regulated examples, after having gone over some cultural data constituents of the passing down of possessions.


The reproduction of inheritance in lineal descendance - the vertical passing down of possessions - thus encounters a natural obstacle if one has to be united in marriage to reproduce oneself, since the need to share is superimposed onto the distortion of resemblance. What I wish to present here, is this cultural side - economic, in reality, in relation to social stratification - of reproduction that foils nature. Here, I will walk in the steps of the British anthropologist Jack Goody (1976).

Reporting a mission with the King of Dahomey (A mission to Gelele, King of Dahomey, 1864) Richard Burton, explorer, orientalist, writes (quoted by Goody): “It is indeed clear that, whilst in the North, a poor man is the son of a poor man, in the tropics, a poor man is the son of a prince”. This parallel, this surprise, invites us to understand how two types of economy, in the North and South, engender two types of inheritance - which introduces notable consequences for my subject.

In itinerant or extensive agricultural societies, there is no or little accumulation of possessions. Social stratification is almost non-existent. It's the number of members that allows certain lineage to occupy a privileged position. In Africa, palatial economy - since we're talking about princes - is above all sumptuous and symbolic. As polygamy is constitutional and inheritance greatly benefits the collaterals more than it does the descendants, princes are numerous, and poor. They fall down in the commun and are quickly “roturisés”. (P C Lloyd, in reference to the Yoruba people: “It is less prestigious to belong to royal lineage than to belong to non-royal lineages”. (1960, 236)

These societies are egalitarian in so far as, in themselves, the clans and descendants think as one body: groups of relatives are conceived as legal entity. The incorporating of individuals into their kin group is apparent in the resolution of conflicts. Kinship terminology is, in fact, classificatory. My uncles are fathers and cousins, brothers. Marriage is contracted by the payment of the “brideprice” or “price of progeny” to carry on the lineage. It's the agnatic group that generally make the acquisition and the death of the spouse often leaves the wife to the group of brothers who can bring about a leviratic marriage with the widow. In the situation of extensive agriculture, agricultural work being largely undertaken by the women, this transaction allows the group of brothers to acquire a womb and an extra pair of hands that will insure its reproduction.

An observation by Bosman, quoted by Goody (Willam Bosman was employed by the East Indies Dutch Company as Account Director of Axim and Mina then as a sub-commander of the Coast; he spent 13 years between 1689 and 1702 on the Gold Coast; he is the author of a work entitled “Description of the Gold Coast…”) on the “matrimonial customs of Negroes” points out this contrast the North (where the pauper is the son of a pauper) with the South (where the pauper is the son of a prince) by emphasising the way in which the Africans contract a marriage: “the wife brings nothing else than her body and the husband asks for nothing more” and when one of the spouses dies, it is the respective parents that collect whatever they can, leaving nothing to the widow or widower (202).

Willem Bosman fut employé par la Compagnie hollandaise des Indes orientales comme directeur du comptoir d’Axim et de Mina, puis comme sous-commandeur de la Côte ; il séjourne pendant treize ans, entre 1688 et 1702, sur la Côte de l’Or ; il est l’auteur d’un ouvrage intitulé :
Description de la Côte d’Or et des Esclaves
(A new and accurate description of the coast of Guinea, divided into the Gold, the Slave, and the Ivory Coasts : containing a geographical, political and natural history of the kingdoms and countries : with a particular account of the rise, progress and present condition of all the European settlements upon that coast : and the just measures for improving the several branches of the Guinea trade. London : J. Knapton, 1705.)

It is in effect her ability to work and her fertility that decide the price of the wife… In fact, the creation of the home does not create a “community of possessions”. Obviously, Bosman's surprise is due to the fact that, contrary to European customs, the marriage takes place without a dowry, and inheritance is horizontal not vertical. It's the collaterals who inherit and not the descendants. Travellers, explorers and missionaries have marvelled at the fact that the natives “give their daughters nothing when they marry [and that, on the contrary to the transaction that can be observed “beyond”) rather it is the sons-in-law who are obliged to serve the parents-in-law”. (André Thevet, La Cosmographie universelle. Paris, L'Huillier, 1575, 932 v. on the Tupinamba of South America) “Without a dowry” therefore to state Harpagnon's disbelief (“It is true. No dowry, it reduces you to silence. The way of resisting an argument like this one?” L'Avare, I, 5) The dowry represents, I recall, I found this definition in a marriage guide on the Net: “What was once given to the young girl by her parents to allow her to find a husband and offer him a part of their fortune and also affirm their power and riches.”

So, why do some societies exist where we 'buy' a wife and others where we provide a dowry to our daughter, where - if I refer myself back to the definition I've just quoted - we 'buy' the husband?

The explanation put forward by Goody (which I follow here : puts works of prehistiorians like Gordon Childe and historians like Lucien Bloch or lawyers like Paul Vinogradof into perspective) is highly simple. He summarises it by a paradoxical formula. In societies where we cultivate using the hoe, brideprice is the rule. In societies that cultivate using the plough, the dowry is the rule. There is obviously no direct link between the hoe and the price of the progeny nor between the plough and the dowry. But, on the other hand, a direct relationship does exist between the use of the plough and the constitution of food surpluses. The use of the plough but also the animal draught, the wheel, irrigation… the soil quality probably also… which furthermore impose itinerant agriculture. Dowry civilisations are born on the alluvium of rivers of the Tigris and the Euphrates, the Yellow River, the Indus, The Ganges, The Nile - all are at the origins of social stratification.

Papyrus from The Louvre

The formation of the corporation of “specialists” of artisans, for example (the chirogasters but also the englottogasters - vide supra : chapitre 7.3 : Rire et démocratie : la comédie d'Aristophane) freed from the need of having to cultivate to live is based on this improvement of agricultural techniques. Whereas demographic stability characterizes the extensive agriculture, the constitution of food surpluses has demographic expansion as a consequence with competition for the fertile land. The limit of this expansion is the unstretchability of the land where the techniques of intensive agriculture can apply. This takes us, for example, to the sudden solution of continuity, on the banks of the Nile, between fertile earth and the desert sand - as well as the technical prowess that the terrace cultivation of rice requires or to the construction of “qanats”, subterranean channels from Ancient Iran.

Social stratification, demographic growth, restriction of the earth: these three factors logically bring about a competition for the exploitation of resources and consequently, a process of appropriation, a way of domestic 'dominion': the land ceases to be communal or belong to him who cultivates it for the time it is cultivated by him. One characteristic of intensive agriculture, unlike extensive agriculture where it's the woman who cultivates (using a hoe) is that the man is, for the most part, implicated in the working of the fields (plough), whilst the woman manages the domestic sphere. In stratified societies, the process of social differentiation appears to constitute a primum mobile. The character of Hesiodus in “Works and Days” is exemplary here: limiting the horizon to the
the labour of the fields and to endeavour, individualist and industrious. “Work for yourself, your wife and your children and never have to beg from a neighbour - v. 399-400) (“So you will buy the inheritance of others, instead of selling your own”) enemy of war and friend of competition (“The potter has something against the potter, the carpenter against the carpenter, the pauper is jealous of the pauper and the singer of the singer”, “this fight suits mortals” - v. 23-26.) In terms of this vision of the world, Emulation only (which “awakens even the man with idle hands to work” - v. 20, comes true in justice and prospers the good) - and not war- is “beneficial to humans.”

When it is a question of passing possessions to descendants, kinship terminology is descriptive (the terms of kinship refer to a single genealogical position) as Morgan noted (1871) and no longer classificatory. Economic unity is restrained : “Have, above all, a house, a wife and an ox” Hesiodus recommends, “have all the necessary equipment, so you don't have to ask someone else for them.” (ibid. v 375-378) Heritage - horizontal, in the case of extensive agriculture as far as there are possessions - becomes vertical: we pass down our status onto our children.

This constraint - this ideal -: to transmit its possessions to its descendants, involves a certain number of legal rules and rules of conduct, laws and morals (which are familiar to us):
- The number of heirs have to be limited. This implies 'birth control' and the observation of the principles limiting the sharing of the parental inheritance; (“Can you only have one son to feed the paternal possessions, Hesiodus advices… and die old, leaving your son in your place - ibid. v. 375-378);
- Whilst polygamy multiplies manpower and the progeny, monogamy characterises a unit of production that is passed down along the generations.
- The production of legitimate heirs involves equally: virginity of girls and the fidelity of wives, in other words diverse forms of sexual abstinence.
Birth Control, monogamy, sexual abstinence thus characterize (ideally) domestic unit of societies in which people “have property”.

What we identify as Christian morality proves itself to be, also, and perhaps above all, a method of patrimonial reproduction. To get into Paradise, husband and wife must be virgins on their wedding night, have only a single partner and limit physical contact. The ideal couple are supposed to give themselves to one another with the concern of not dispersing their wealth. In reality, this matrimonial asceticism expresses legal constraints. Chastity and abstinence are, without doubt, considered as Christian virtues, but catechism did not teach me that it was a means of not having to share. These self-restraint ways are obviously devoid of meaning in societies where possessions are passed on horizontally. An American Anthropologist interrogating an African pastor (a livestock owner and not a shepherd of souls) on the subject of entertaining sexual practices was heard to reply in an incredulous tone : “But why deprive oneself of the possibility of having a child?” She could have taken the example that agrees with the Biblical expression “to beat its corn inside and to sow it outside” (infra), which illustrates my point precisely. We immediately note also that Christian morality is very necessary - and how - in non-egalitarian societies constitutionally… founded on injustice, but superfluous in those egalitarian societies where there are no or little possessions to be passed down and where the parents have not expected the evangelical precept to live like brothers, because they are, by virtue of the classificatory system of kinship that identifies them, already brothers. Christian charity takes over from a shortened kinship to the domestic unit. In fact, the judicial substratum (the one in Jesus' time, like the one of missionary societies, those messengers of the “Good News”) on which the Christian message has developed, is indeed that of a non-egalitarian society. (In the places where Islam and Christianity enter, we can see, in effect an individualisation of the modes of production at the expense of collective ownership.) What to think, therefore, of the importation of this morals in societies which are unaware of the property such as societies with dowry know it, in egalitarian societies where social stratification is weak and not constituent?

I have referred to “morality” and it is in fact indeed in this vein that travellers picture us, for better or worse, those societies without self-restraint or reserve, without economy where licentiousness appears to reign, where abstinence is incomprehensible, without accumulation or savings, where wealth, in reality, is not based on the management of the domestic unit, like a good administrator, but on the vitality of the group. I recalled earlier that the plough (to simplify slightly) had provoked demographic growth, which seems to contradict the Malthusian rules that I have just set out. Those who increase their number would therefore become those we call, rightly, the disinherited. Having no inheritance to pass down, they don't care about the management of the rich. This growth, limited by the needs of mouths to feed explains the expansion of farmers, from the exportation of the poor in Ancient Greece (vide supra : chapitre 6 : “Il faut se battre pour la constitution comme pour le mur de la ville” : sur le contrat démocratique) to the European migrations of the 19th Century, both responses to the disproportion of the land (resources) and of men, the stenochôria. Paradoxically, this class of disinherited works in order to reinforce social stratification, since it finds the means of its own survival by renting the means of production that it does not have. (What classical economics calls “the Bronze Law of Salaries” is supposed to adjust the population to this need for manual workers of the wealthy. “The natural price of work is that which provides workers with the means to live on and to carry on their species without reduction or growth”, according to Ricardo).

And where does the dowry fit into this? Well, in order to perpetuate one's status and pass down one's name, one has to marry off one's children into one's own social class, into a family of the same status. To practise social endogamy (professional or economic). By enabling one's daughter as well as one's son to enjoy one's inheritance, by providing one's daughter with a dowry, a father contracts an alliance with an equal and asserts himself in his distinction. The elaboration of artisans savoir-faire to which I have referred above, probably takes place at the heart of the family or of restrained groups that live on by perpetuating their art, which implies professional endogamy. Despite everything - this is also a cliché between stratified societies - the formation of the dowry and the daughter's departure to another family often arouse trouble, the birth of a son is much preferred to that of a daughter. “Even the beggar brings up a son, even the rich man exposes a daughter” Poseidippos writes (in the 3rd Century before our era). When it is not involved in a system of exchange or when it consists in a strategy of social rise, the parents contracting a hypergamic alliance, the practice of the dowry is obviously a constraint…


It is there that the will to reproduce our social status ends to fail or to neutralise the process of constituent differentiation of sexual reproduction, mentioned above. Because the problem of the dowry can be bypassed by marriages of proximity within this social homogamy. Exploiting the missionary value of what we could call “natural exogamy”, ecclesiastical law, was thus regularly opposed to the right of families, as it was directly concerned, as Goody recalled (a famous page from Rabelais in the Tiers Livre already instructed this process). The works of Jean Gaudemet are de rigueur in this subject. Endogamy, 'the reproduction of the same' is a concern of patrimony, exogamic virtue is concern displayed by the Church. In fact, we can see that in dowry societies or when inheritance is of prime importance, the alliance happens, ideally, to those who are closest. And, consequently, the device, supposedly natural, of the avoidance of incest turns out to be a constraint, certainly respected for the most part, but with which we look for compromises.

To illustrate this idea I will take several examples that I have borrowed from a collective work that gathers together contributions from specialists from the Mediterranean countries entitled “Epouser au plus proche”. In this brief presentation I will draw on the justifications (where it is possible to know them) that the protagonists of these arrangements put forward, where we see how inheritance strategy controls marriage strategy.


A contribution by Christian Delmet (op cit. 399-416) entitles “Endogamy and reciprocity in Sudanese matrimonial systems” (where the inheritance of the daughters is not always observed) reports on a study conducted amongst the Berti people of Darfur revealing that out of 217 marriages, “193 were between cousins of which : 93 were with a patrilateral parallel cousin (of whom 42 with FBD), 39 with a matrilateral cross-cousin (of whom 20 with MBD), 35 with a patrilateral cross-cousin (of whom 4 with FZD) and 26 with a matrilateral parallel cousin (of whom 13 with MZD). (Holy, 1974 : 74-78) “The closer the cousin, the better the marriage […] the ideal being marriage with the daughter of the father's brother.” (Cunnison, 1966 : 86) One would say among the Baggar of Sudan (indigeneous Arabs whose name signifies “owners of cattle”). Marriage with the paternal cousin, the author sets out, falls within the framework of the research into the proximity between blood relations and the equality of rank and status - in other words, the identical.(403) Among the Awlâd Tergam, emphasis is laden on the economic status of the partner. (410) Each time that this is possible, two brothers multiply the alliances between their children. Reciprocity indeed seems to be at the base of the system. (410) All this has as its foundation and we could say also as its ideal: “the attraction and the possibility of an incestuous marriage, a theme often tackled in popular tales whose closest possible manifestation is the marriage between parallel cousins”. (399) “It, therefore indeed seems that [these Sudanese societies] have found in the maximum amount of endogamy and reciprocity, the key to their reproduction at the least cost and the least risk. (416)

Israel : The “Crime of Onan”, Boaz and Lot's daughters.

Florence Heymar writes (op. cit., 97-111, p. 98) that “from the time of Deuteronomy, in order to avoid the dispersal of patrimony of lineage we would oblige a daughter who was supposed to inherit to remarry into the clan, and a widow into the family by marriage”. “If a man dies without leaving a son, you will pass his inheritance onto his daughter. If he has no daughter, you will give his inheritance to his brothers. If he has no brother, you will give his inheritance to his fathers brother. If his father has no brothers left, you will give his inheritance to the nearest relation he has within the family (Numbers 27:11) Levirate is thus justified in Deuteronomy. “ If two brothers live together and if one of them happens to die without descent, the widow cannot marry outside to a stranger. It's her brother-in-law who must be united to her. He will take her as a wife, exercising levirate. And the first son she gives birth to will be known by the name of the brother of the dead man so that his name may not perish in Israel. (Deuteronomy 25).

Here are 3 biblical examples (which are part of humanities of close union. They show to what needs they might answer to.

Boaz thus inherits the wealth of Ruth's late husband and of his widow. It is a matter of “perpetuating the name of the deceased by his possessions.”
Ruth 4:1 Meanwhile Boaz went up to the town gate and sat here. When the kinsman-redeemer he had mentioned came along Boaz said “Come over here, my friend and sit down.” So he went over and sat down.
2- Boaz took ten of the elders of the town and said “Sit here” and they did so.
3- Then he said to the kinsman-redeemer, “Naomi, who has come back from Moab, Is selling the piece of land that belonged to our brother Elimelech.
4- I thought I should bring the matter to your attention and suggest that you buy it in the presence of these seated here and in the presence of the elders of my people. If you will redeem it, do so. But if you will not, tell me, so I will know. For no one has the right to do it except you, and I am next in line.” “I will redeem it,” he said.
5- Then Boaz said, “On the day you buy the land from Naomi and from Ruth the Moabitess, you acquire the dead man's widow, in order to maintain the name of the dead with this property;”
6- At this, the kinsman-redeemer said, “Then I cannot redeem it because I might endanger my own estate. You redeem it yourself. I cannot do it.”
7-Now in earlier times in Israel, for the redemption and transfer of property to become final, one party took off his sandal and gave it to the other. This was the method of legalizing transactions in Israel.
8-So the kinsman-redeemer said to Boaz, “Buy it yourself.” And he removed his sandal.
9-Then Boaz announced to the elders and all the people, “Today you are witnesses that I have bought from Naomi all the property of Elimelech, Kilion and Mahlon.
10- I have also acquired Ruth the Moabitess Mahlon's widow, as my wife, in order t maintain the name of the dead with his property, so that his name will not disappear from among his family or from the town records. Today you are witnesses!”
11- Then the elders and all those at the gate said “We are witnesses. May the Lord make the woman who is coming into your home like Rachel and Leah, who together built up the house of Israel. May you have standing in Ephrathah and be famous in Bethlehem.
12- Through the offspring the Lord gives you by this young woman, may your family be like that of Perez, whom Tamah bore to Judah.”
13-So Boaz took Ruth and she became his wife. Then he went to her and the Lord enabled her to conceive and she gave birth to a son.
14- The women said to Naomi: “Praise be to the Lord, who this day has not left you without a kinsman-redeemer. May he become famous throughout Israel!
15-He will renew your life and sustain you in your old age. For your daughter-in-law, who loves you ad who is better to you than seven sons, has given him birth.”
16-Then Naomi took the child, laid him in her lap and cared for him.
17- The women living there said “Naomi has a son.” And they named him Obed. He was the father of Jesse, the father of David.
18-This, then, is the family line of Perez:
Perez was the father of Hezron,
19-Hezron the father of Ram, Ram the father of Amminodab,
20-Amminadab, the father of Salmon,
21-Salmon, the father of Boaz, Boaz the father of Obed,
22-Obed the father of Jesse and Jesse the father of David.

Onan's Crime, refusing to give a family line to his brother (…) and Tamar's stratagem.

1-At that time, Judah left his brothers and went down to stay with a man of Adullam named Hirah.
2-There Judah met the daughter of a Canaanite man named Shua. He married her and lay with her;
3-she became pregnant and gave birth to a son, who was named Er.
4-She conceived again and gave birth to a son and named him Onan.
5-She gave birth to still another son and named him Shelah. It was at Kezib that she gave birth to him.
6-Judah got a wife for Er, his firstborn, and her name was Tamar.
7-But Er, Judah's firstborn, was wicked in the Lord's sight; so the Lord put him to death.
8- Then Judah said to Onan, "Lie with your brother's wife and fulfil your duty to her as a brother-in-law to produce offspring for your brother."
9-But Onan knew that the offspring would not be his; so whenever he lay with his brother's wife, he spilled his semen on the ground to keep from producing offspring for his brother.
10-What he did was wicked in the Lord's sight; so he put him to death also.
11-Judah then said to his daughter-in-law Tamar, "Live as a widow in your father's house until my son Shelah grows up." For he thought, "He may die too, just like his brothers." So Tamar went to live in her father's house.
12-After a long time Judah's wife, the daughter of Shua, died. When Judah had recovered from his grief, he went up to Timnah, to the men who were shearing his sheep, and his friend Hirah the Adullamite went with him.
13-When Tamar was told, "Your father-in-law is on his way to Timnah to shear his sheep,"
14-she took off her widow's clothes, covered herself with a veil to disguise herself, and then sat down at the entrance to Enaim, which is on the road to Timnah. For she saw that, though Shelah had now grown up, she had not been given to him as his wife.
15-When Judah saw her, he thought she was a prostitute, for she had covered her face. 16-Not realizing that she was his daughter-in-law, he went over to her by the roadside and said, "Come now, let me sleep with you."
"And what will you give me to sleep with you?" she asked.
17-"I'll send you a young goat from my flock," he said.
"Will you give me something as a pledge until you send it?" she asked.
18- He said, "What pledge should I give you?" "Your seal and its cord, and the staff in your hand," she answered. So he gave them to her and slept with her, and she became pregnant by him.
19-After she left, she took off her veil and put on her widow's clothes again.
20-Meanwhile Judah sent the young goat by his friend the Adullamite in order to get his pledge back from the woman, but he did not find her.
21-He asked the men who lived there, "Where is the shrine prostitute who was beside the road at Enaim?"
"There hasn't been any shrine prostitute here," they said.
22-So he went back to Judah and said, "I didn't find her. Besides, the men who lived there said, 'There hasn't been any shrine prostitute here.' "
23-Then Judah said, "Let her keep what she has, or we will become a laughingstock. After all, I did send her this young goat, but you didn't find her."
24-About three months later Judah was told, "Your daughter-in-law Tamar is guilty of prostitution, and as a result she is now pregnant."
Judah said, "Bring her out and have her burned to death!"
25-As she was being brought out, she sent a message to her father-in-law. "I am pregnant by the man who owns these," she said. And she added, "See if you recognize whose seal and cord and staff these are."
26-Judah recognized them and said, "She is more righteous than I, since I wouldn't give her to my son Shelah." And he did not sleep with her again.

Lot's Daughters

30-Lot and his two daughters left Zoar and settled in the mountains, for he was afraid to stay in Zoar. He and his two daughters lived in a cave.
31-One day the older daughter said to the younger, "Our father is old, and there is no man around here to lie with us, as is the custom all over the earth.
32-Let's get our father to drink wine and then lie with him and preserve our family line through our father."
33-That night they got their father to drink wine, and the older daughter went in and lay with him. He was not aware of it when she lay down or when she got up.
34-The next day the older daughter said to the younger, "Last night I lay with my father. Let's get him to drink wine again tonight, and you go in and lie with him so we can preserve our family line through our father."
35-So they got their father to drink wine that night also, and the younger daughter went and lay with him. Again he was not aware of it when she lay down or when she got up.
36-So both of Lot's daughters became pregnant by their father.
37-The older daughter had a son, and she named him Moab; he is the father of the Moabites of today. 38 The younger daughter also had a son, and she named him Ben-Ammi; he is the father of the Ammonites of today.


Thanks to the civil defense speech of the orators, we know (the precise) reasons that the Athenians developed to justify close marriages. For the reasons of inheritance. (Voir : Sally C. Humphreys, “Le mariage entre parents dans l'Athènes classique”, op. cit. : 31-58 et Giulia Sissa, “Mariages de raison en Grèce ancienne” : 419-437.) When a man died without a male heir, his daughter (called epiclerate, literally, “under the inheritance”) could be married by the brother or the son of her father. The function of the epiclerate was to collect the heritage, but also to provide the daughter with a dowry when she didn't marry a relative and this, even if there wasn't a fortune to inherit. Furthermore, the Heliaia could break up the marriage of the epiclerate, if she was already married at the time of her father's death. Thus, it was a matter of collecting the inheritance, but also of perpetuating the rank. The pleas often depict the conflict of interest between the personal interest of those who “inherit” the epiclere girl and the social task that they receive. It is tempting to keep the inheritance for oneself and to marry the girl at the least cost. “If Epylicos was alive and if, on dying, he had left a large fortune, we would claim the right, being one of his closest relatives, to marry his daughter. And so, what we would do because of Epylicos and his fortune, we are doing by our virtue” (Andocide I, 17). One of the roles of the archont as Aristotle sets forth in his “Athenian Constitution” (LVI, 6-7) was precisely to protect the incapable, major or minor, and notably orphans and epiclere daughters, personifying public order, family ethos and rank, to act as a substitute for the possible abusive parents. Thus Iseus (Speech X) pleads for the son of an epiclere that a relative has given in marriage with a dowry, keeping for him the major part of the heritage. “My mother had become epiclerate over the whole household. Thus, in the beginning, all this fortune belonged to my mother, with her rights over the fortune. She had to marry the nearest relation, but she was unworthily treated, oh judges. In fact […] Aristomenes, who himself had a son and daughter, scorned to make her his own wife or to give her to his son with the heritage. He took neither one nor the other solution but married his daughter to Kyronides, giving him my mother's wealth.” (4-5)

The personal story of Demosthenes illustrates a similar scenario, where we see how the dowry is supposed to protect the interests of the heir entrusted to the care of the sons of-law. Demosthenes' father, a rich entrepreneur, arms and furniture maker, wanted to pass down his wealth to his son, who was still a child. (Louis Gemet specifies in his "Notice", Belles Lettres Edition p.29, that “the fortune of Demosthenes' father was one of the most considerable of its time” : “My father possessed more than 50 slaves”, recalls Demosthenes, Contra Aphobos I, 31, who evaluates the amount of the succession which he should have inherited to 14 talents. Contra Aphobos I, 11) He conceived for this purpose a system to be put in place after his death. A guardianship whose spirit reveals that patrimonial interests are much better protected when the matrimonial alliance doubles the kinship, when the blood loyalty is consolidated with the attraction and the guarantee of a dowry. Demosthenes father in effect plans the marriage of his widow with the son of his sister, Aphobos and the marriage of his daughter with the son of his brother, Demophon (Demosthenes will therefore have as a father-in-law a man who is already his cousin and for a brother-in-law, another cousin). He thinks that by giving his wife and his daughter with dowries (2 talents for the girl and 80 mines with the possession of the house until Demosthene becomes major for the mother) to his close parents who are his nephews, they will maintain and pass down the inheritance of his father to their cousin, son-in-law and father-in-law, more heartedly. “He imagined that our kinship being thus reinforced, the guardianship could be better managed”. (Contra Aphobos I, 5)

The system fails: the cousins take the dowry and do not marry the women. And so an epileclerate daughter “unworthily treated” Demosthene is widely swindled. It's the object of the guardianship action he intends (Contra Aphobos I, II, III). (According to Ps-Plutarch the guardians were sentenced. Ten Orat., p. 884, c ). This despoilment reveals us The Greek intentions about endogamy. The affair brought before the judges clearly expresses that alliance and blood ties, far from being in opposition to one another can be superimposed and that, in the case in point, marriage can serve to bring already close relations closer together. In other words, blood ties appear to be little reason not to marry before the Athenian law, on the contrary we have the feeling that kinship is already an invitation to alliance. Thus, not to give one of his daughters to a relative in ease appears to be a perfect example of family disharmony. “Although Eupolis had two daughters, pleads Iseus, he was of the same blood as Apollodoros (his nephew), and he lived comfortably, he never gave him one of them in marriage (Iseus: Sur la succession d'Apollodoros). The Greek proverb “Between friends all is common” is thus interpreted by an orator in order to include the endogamy within: “Between truly close relations everything is common.” “As Apollodoros was exemplary with regards to my sister and to us all, as he considered that between truly close relations all is common, I, in turn, married his daughter who was also my niece”. (Pseudo-Demosthenes, Contra Neaira, 2, Sissa, in Bonte: 424)

Thus understood, endogamy is an expression of family solidarity and alliance the realization of a pre-existing community - a circle that is animated in a cycle of reciprocities, whose patrimonial purpose is articulated by the actors. This model, that judiciously (and idealistically) organises a “society of relatives” (in the sense that the word 'society' takes in our commercial law) the affectio societatis and the affectio parentalis becoming one, indeed virtually comprise a certain number of contradictions (notably the opposition submitted to the judges, engendered by the redoubling of the positions of kinship and the priority, in conformance with the philosophy of dowry systems, of descendance on collaterality), but the closeness of the spouses is not counted in the number of these difficulties.

Roman Egypt

The book cited contains an article by Keith Hopkins on “brother-sister marriage in Roman Egypt” - which is an abridged version of a text (already cited in the previous communication) published in 1980 (op.cit.: 79-95), which has as a base works published by Marcel Hombert and Claire Préaux (Hombert et Préaux, 1952).

When we recall incestuous marriage in Ancient Egypt we immediately think of the marriages of the Pharaons. But, rather, it is a popular custom that we are dealing with here. Between the year 19 and the 257, the Roman administration took a census of the population every 14 years with the aim of determining the tax base. The heads of families were made to draw up a list of the members of their household-their name, age and position at the heart of the family. 270 of these rolls were preserved, 172 are usable concerning 880 people. They date from the 2nd century and originate from the region of Fayum, an irrigated region situated to the South-West of Cairo.

“In usable censuses, marriages between siblings and half-siblings represent between 15-21% of all validated marriages. (80) It's a matter of marriages sealed by contract and dowry, publicly celebrated with ceremony and guests. The demographic evaluation carried out by Hopkins shows that “between a third and a half of brothers who have a sister available for marriage married within the family rather than taking a wife from outside.” (80) [Note 4: “ The marriages between brother and sister that are known to us are nearly all contracted between an older brother and a younger sister.”] Brother-sister marriages are mentioned in this administrative literature “without embarrassment, as if it went without saying” Hopkin precises. These marriages were fruitful. It is thus possible to reconstitute the family tree if a fiancée across three successive generations of brother-sister marriages (83) (Document noted P. Amh 75). Hopkins notes that in a context of high mortality rate (infant, notably) the effect of blood ties is not visible. These marriages were held in high esteem as we can see in the content of this horoscope: If a brother is born when the Sun is under the sign of Mercury, he will gain every success and will have great powers […] He will be brave and tall, acquire wealth, what's more, he will marry his own sister and have children with her. (86, quoting Gundel, 1936: 99) They were a matter of contracts and certain people will draw up a statement of the payment of a dowry and maintenance due to the wife (BGU 183). The mother of the married couple gave her assent to the contract and allowed for a donation for the husband and wife “equally and jointly” as well as for them each, individually. (84)

Marriage between brother and sister in Roman Egypt, concludes Hopkins - who declares that he has no explanation for this practise - was compatible with an undeniable cultural and economic success. (90) At the very most, he admits that the domestic unit, being characterised by the frèrèche and marriage age being late, a sister-wife, since always accustomed to her brothers could be considered as a source of harmony in a family group composed of brothers and less interested in taking an advantage of her share of inheritage.

In their 1952 study, Hombert and Préaux started by reporting on a “matriarchal” transmission of statuses where it proves to be “indispensable […] that a man marry his sister to insure that his children inherit the power which, if it is exercised by men, is only passed down only by the women” (149), to advance the cause that “seems to them to be the one good for the country as well as for the town” : “Marriage between blood relations, in the same way as joint ownership, would constitute one of the remedies to the consequences of an extreme individualism” (152). (“Marriage between brother and sister prevents the division of inheritances which, in an inheritance system, ends in an awkward division the land.”- Idem)


The ideal of a sexual reproduction that is also patrimonial reproduction would occur therefore, in a marriage between brother and sister, when the devolution that Goody proposed calling “diverging” (the inheritance of the son and daughter) once more becomes convergent. An average or more civil solution (if a compromise is needed) consists in reinforcing the circle of relations by marriage, exchanging between parents. This alliance - which isn't really one - seems to be like a method of reproducing oneself identically and therefore neutralising the centrifugal process, exogamic (of redistribution: vide supra) coextensive to sexual reproduction. That towards which social and professional endogamy tends, where equals are potential allies, is in fact doubly “achieved” when the equals are kin. This trait appears to be characteristic of stratified societies, dowry societies. The “Marriage of Reason” expresses a conservatism associated with the perpetuation of statuses. Endogamy has there as a base the concept of a patrimony, founder and differentiator whose dividing up can vary but which remains - at least a hypothesis - intangible. It is thus the land that constrains when she gives her name, her substance and her continuity (her “immortality”) to the lineage. Matrimonial strategies and inheritance rules aim at preserving and passing down this fons et origo, this matrix of distinction owing to alliances that conserve whilst appearing to share, whilst correcting the aleas of births (these inheritances “tombés en quenouille” - passed into female hands - for example) and by discouraging private adventures. Devolution is only divergent by appearance. Literally, the possessions circulate. More precisely, it's the cercle of individuals, trustees of the inheritance, that turns, the wealth, often immovable and ideally unchanging, embodying the permanence that thwarts the impermanence and the inconstancy of men. This is what Montaigne expresses when he writes “Whatever one might say, one does not marry for himself; one marries for as much or more for his descendants, for his family. The use and interest of marriage touches our race far above us. However, this way pleases me, that we conduct it rather by a third party than by our own and by the will of others rather than by one's own. All this, how many contrary of amorous conventions! Also is it a type of incest to go and employ to this venerable and sacred parenthood the efforts and extravagances of amorous licentiousness” (Essais, III, 5). This free interpretation - patrimonial - of the avoidance by hypothesis natural, of incest shows, if needs be, the freedom of culture compared to nature. Culture being able to elude this labile constraint, but also to claim, under the guise of the prohibition of incest, constraints that have no natural foundation.

To summarise the discussion relating to the status of the prohibition of incest: it is subscribed to the hypothesis
-1) that a natural foundation exists (a selective characteristic reason of Mendelian heredity: genetic mixing operated for each generation) to the avoidance of incest, a foundation from where the prohibition and its feeling originated;
-2) that the expressions of this natural foundation are residual in this denatured mammal that man is;
-3) that culture can stand in for this indetermination but as can well play on it: the examples presented here showing, for whatever purpose it may serve, that its not in order to escape the “streaming strengths” of the psychical life that man manages withdraw from nature and establish himself in the clarity of the law, but, more so, for reasons which judged against the idealism of the culture or to the necessities of the civil peace put forward (marrying out or being killed out; “pre-eminence of the social” over the “arbitrary”…), can appear to be singularly material reasons, at least more domestic than ecumenical.


We will ask the question to find out, by way of conclusion - if it is enough to pull a plough in order to engender consequences as considerable as: ownership, monogamy, the inheritance of daughters, birth control (or the celibacy of priests) - what is the primum mobile of the norm that governs us and which signifies, in a long-term vision, the “legislative graphomania” that has marked the history of family law for half a century. Some responses have just been supplied in this symposium.


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(Communication présentée au colloque “Familles–Parentés–Filiation” (Hommage à Jean Gaudemet), Palais du Luxembourg et Université Jean Monnet, Sceaux, juin 2005.)

Plan of the chapter:

A) Some notions on the incest taboo: on the culture of species
Paper presented at the conference “Marriage - Marriages”, Palace of Luxembourg and University Jean Monnet, Sceaux, May 1997.

B) Passing down genetic heritage, passing down economic heritage:
paradoxes of reproduction
Paper presented at the conference “Families-Kinship-Filiation” (in honour of Jean Gaudemet), Palace of Luxembourg and University Jean Monnet, Sceaux, June 2005.

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