28 August 2026
The Unwritten Code
On the impossibility, for any society, of truly doing without its taboos
On 15 June 1777, in Tonga, James Cook sits down to a meal and notices that none of his hosts will touch the food. No one sits, no one tastes anything. Pressing for a reason, he receives an explanation that he sets down in the ship's log with the puzzlement of an officer used to charting coasts and currents: they are all tabu, a word of very broad meaning that, in general, designates what is forbidden. Pressing further, he learns the decisive detail: one of the women present had washed the body of a dead chief some weeks before, another had assisted her, and from that contact came the impossibility of putting food to their mouths. Cook dies less than two years later, in Hawaii; the journals of the third voyage appear posthumously in 1784, and with them one of the very few Polynesian words destined to become common currency enters the languages of Europe.
It is worth pausing a moment on the irony of the episode, because it already contains the whole problem. The word is imported to name conduct that Europeans see as characteristic of societies other than their own, and which they place, accordingly, at a certain distance — geographical and mental. Two and a half centuries later, that same word has become the instrument with which the West measures the distance separating it not from others, but from itself as it used to be: we say that a society has moved past its taboos to mean that it has grown up, that it has emancipated itself, that it has stopped fearing what it had no reason to fear. The exotic word has turned into an autobiographical category.
It is the story of formation that modernity tells about itself: a long exit from superstition, from unquestioned authority, from prohibitions handed down without reason. In this version, the taboo always belongs to some elsewhere — the archaic tribe, dogma, magical thinking — and history consists in dismissing it piece by piece. The narrative has the advantage of being partly true, which makes it all the harder to correct. But it mistakes a change of form for the disappearance of structure; and, as will become clear, it closes its circle at an unexpected point, the very one from which Cook had set out: the body of a dead man.
The first thing needed is to clear away a misunderstanding. A taboo is not a stricter kind of prohibition, not a rule with an aggravated penalty. Law belongs to the domain of jurisprudence: it establishes what is permitted, sets a penalty proportionate to the offence, and is by its nature historical, amendable, open to debate in parliament and in court. A law is enacted, applied, repealed. A taboo works on a different register altogether. It does not merely say that something may not be done: it withdraws an object, an act, a body, a word from the ordinary sphere of exchange and negotiation. Whoever breaks it does not simply incur a penalty proportionate to the harm caused; in the eyes of the community, it produces a damage that no reckoning can account for. A taboo is not negotiated: it is observed, or it is violated.
Sociology grasped this asymmetry from its very beginnings, and in a way worth reporting with precision, because it is usually cited the other way round. In The Elementary Forms of Religious Life, of 1912, Émile Durkheim does not argue that interdictions arise to protect what is already sacred. He argues the reverse: sacred are those things that interdictions protect and set apart; profane are those to which the interdictions apply and which must be kept at a distance from the first. The interdiction does not follow the sacred: it institutes it. It is a definition that turns the problem ninety degrees, because it makes it impossible to think of a taboo as a misjudgement to be corrected with more information. A society does not draw boundaries because it has already recognised something as untouchable; it recognises something as untouchable in the very act of drawing the boundary. It must be said at once, however, that a definition framed this way carries a cost: if the sacred is whatever the interdiction institutes, then the claim that no society is without one risks being true by construction, and therefore saying nothing at all. The trap is a real one, and the only way out of it is to stop arguing and go and see whether the interdictions actually exist, where they are to be found, and what they look like. This is what will be done further on, with the texts in hand.
It should be added — and this is not a formal caveat — that a sociological description of function does not settle the question of foundation. To say that the interdiction institutes the sacred is to describe how the separation operates within a community, not to establish whether what is set apart does or does not have a foundation exceeding the community itself. These are two distinct orders of question, and confusing them is an old vice, common both to those who wish to reduce religion to social glue and to those who claim to derive from its usefulness a proof of its truth. The pages that follow move entirely within the first order, and have neither the tools nor the intention to take up the second.
A year after Durkheim, in 1913, Sigmund Freud gathers into a single volume the four essays that had appeared in «Imago» between 1912 and 1913 and titles them Totem and Taboo. The second of these, devoted to the taboo and the ambivalence of emotions, opens by citing a definition from Wilhelm Wundt — the formula is his, not Freud's, and the misattribution is common enough to deserve a correction — according to which the taboo would be the oldest unwritten code of law of mankind; and he adds, offering it as commonly accepted opinion rather than as his own thesis, that it would be older than the gods and would reach back to a time before any religion. The term, moreover, says at once the consecrated and the forbidden, the untouchable through excess of dignity and the untouchable through contagion. Freud then brings to it the observation that is properly his own: the interdiction does not oppose an impulse foreign to us, but stands guard over a deep impulse, feared precisely because it is desired. Nothing is forbidden because it is a matter of indifference. And he goes so far as to suggest that clarifying the riddle of the taboo might throw light on the obscure origin of what we call the categorical imperative — a conjecture these pages will have occasion to meet again.
This duplicity is no accident of vocabulary. It indicates that the interdiction, in the very act of withdrawing something from common availability, also places it under shelter; and that the two operations are one and the same operation. This becomes clear in passing from psychoanalysis to ethnology. In The Gift, which appeared in the 1923–1924 volume of the «Année sociologique», Marcel Mauss reconstructs, through Melanesian, Polynesian and North American material, the system of obligations that governs exchange in so-called archaic societies: the obligation to give, the obligation to receive, the obligation to return. What circulates within that system is not merchandise, because it has no equivalent and settles nothing; every gift leaves a relation open rather than closing it, and it is exactly this openness that holds groups together.
On this foundation Claude Lévi-Strauss takes the decisive step. In The Elementary Structures of Kinship, a thesis defended at the Sorbonne in 1948 and published the following year, he observes that the prohibition of incest is explained neither by biology nor by psychology, and above all that it is poorly described as a prohibition at all. Its real content is positive: not so much the ban on marrying one's mother, sister, or daughter, as the obligation to give her to another. It is the rule of the gift in its purest form, and it marks the point at which human life ceases to be a fact of nature and becomes a system of rules. The interdiction, in closing off one possibility, opens another and makes it obligatory: closing the group in on itself would condemn it to repetition; closing it inward forces it into exchange. Every taboo has this double face, and to read only its negative side is an error of perspective before it is an error of substance.
What remains to be understood is why societies keep producing them. The most solid answer is the one Mary Douglas offers in Purity and Danger, of 1966, dismantling the idea that notions of purity and impurity in traditional cultures reflected rudimentary hygienic intuitions. Impurity, for Douglas, is not a property of things: it is disorder, that is, matter that has lost its place within a classification. Her example has remained famous for its domestic modesty: a pair of shoes is not dirty in itself, but becomes so if placed on the dining table; food is not dirty, but becomes so on one's clothes. It is not the substance that contaminates, it is the position.
From this everything else follows. Every culture lives by distinctions — human and non-human, living and dead, inside and outside, what may be eaten and what may not — and these distinctions are not intellectual decorations: they are the architecture within which its members manage to orient themselves. Whatever straddles two categories, whatever is ambiguous or composite, produces an unease that no functional explanation can exhaust. It is no surprise, then, that interdictions cluster around the same points again and again: birth, death, blood, sexuality, food, speech. These are the thresholds, the places where culture borders on what it has not produced and does not control.
That modernity has torn down a considerable part of this architecture is beyond dispute, and it would be foolish to deny it. Blasphemy and the abandonment of faith no longer entail, in most Western legal systems, exclusion from civil community. Sexuality outside marriage, once grounds for ostracism, has returned to the private sphere. Paternal, monarchical, ecclesiastical authority has lost the automatic deference that once placed it beyond discussion. In the lecture delivered in November 1917 and published two years later, Max Weber gave this process the name that has stuck to it: Entzauberung der Welt, the disenchantment of the world. Nature becomes a calculable mechanism, social organisation becomes administration, morality becomes preference.
But to conclude from this that the taboo has become extinct is a distance no one has actually travelled, except in words. The structure has not dissolved: what has changed are its objects. And since opinions on this ground are cheap, it is better to set argument aside and go and read a text, choosing one above suspicion of mysticism. The Italian penal code, enacted by royal decree on 19 October 1930, devotes Title IV of its second book to a matter whose heading today reads: offences against religious sentiment and against piety for the dead. The second chapter of that title, articles 407 to 413, protects a legal interest that the legislator names in full: piety for the dead. Not public hygiene, not cemetery order, not the estate of the heirs. A sentiment.
The history of that heading, however, is more instructive than the heading itself, and it must be told with precision, because it is here that the thesis stops being an interpretation. The original 1930 wording did not speak of religious sentiment: it spoke of offences against the religion of the State and the recognised cults, in keeping with the confessional framework of the time. In 2000 the Constitutional Court, in judgment no. 508, declared unconstitutional article 402, which had punished contempt for the State religion, finding it incompatible with the equality of citizens regardless of religion, with the equal freedom before the law of all denominations, and with the principle of secularity. Six years later, law no. 85 of 24 February 2006, on offences of opinion, completed the work: it removed from the code every reference to the religion of the State, extended to all denominations a protection once reserved to one alone, and replaced the entire heading of the title with the one now in force.
The principle these interventions invoke had been articulated by the Constitutional Court in judgment no. 203 of 1989, which recognised secularity as a supreme principle of the legal order, deriving it from the combined provisions of six articles of the Constitution and defining it as a facet of the Republic's form of State. It is worth understanding exactly what this means, because the term is often used as a synonym for indifference or hostility, and it is neither. Secularity, so configured, is not the State taking a position on the content of religious faiths, on which the State has no standing to pronounce; it is the guarantee that none of them is privileged or penalised, and that the citizen remains free either to profess one or to profess none. When the legal order names religious sentiment as an interest to be protected, it is not judging the truth of what believers hold: it is protecting their relationship to it.
Having made this clarification, the fact itself stands, and it is a striking one. The 2006 reform substantially lightened the penalty for offences against religious denominations, which article 403 now punishes with a fine. Within the same title, and in the very law that rewrote the heading, the articles concerning the dead were left untouched: article 407 still punishes the violation of a grave, tomb, or urn with imprisonment from one to five years, exactly as in 1930; article 410 punishes acts of contempt against a corpse or its ashes, and sharply increases the penalty for anyone who disfigures or mutilates it. It is not for the reader of a legal code to infer intentions from it, and leaving a provision untouched within a reform aimed at something else is not the same as reaffirming it. What remains, though, is the singular shape of the fact: within the same title, one inherited interdiction is dismantled and the other is not; and the distance between the two penalties is not one of degree but of kind, since one is paid in money and the other in years.
An objection presents itself here, and it deserves to be taken seriously, since it is the strongest that can be raised. The 2006 law concerned offences of opinion: the leniency that has since prevailed towards contempt for religious denominations would therefore be explained by the primacy accorded to freedom of expression, and not by the persistence of a taboo surrounding the dead. The objection is well founded and should be accepted in full, because it explains perfectly why that penalty came down. It does not explain why the other never went up, nor was ever so much as touched: article 407 has been in force in the same wording since 1 July 1931, in a single version, without one amendment in more than ninety years of rewriting of the code. And above all, followed through to the end, the objection concedes more than it takes away. To say that freedom of expression prevailed over an ancient prohibition is to say that one value has overtaken another in the hierarchy of what may not be touched: this does not describe the disappearance of the untouchable, it describes its reorganisation.
The point is that none of these conducts produces any appreciable material harm. No one is injured, nothing of economic value is destroyed, the offended person is no longer in a condition to be offended. A consistently utilitarian legal order would have no use for those articles, and would have repealed them with the same ease with which it reduced contempt for religious denominations to a fine. The reason it did not is that a dead body is no longer a person and not yet merely a thing: it stands exactly on that threshold Douglas described, and thresholds are the natural home of the interdiction. A century and a half later, a twentieth-century European code protects the very zone of contact that, in Tonga, kept a woman from putting food to her mouth. The two constructions do not coincide, and it would be crude to confuse them: there, contamination passed to whoever had touched; here, what is protected is the feeling of those who remain. But the point at which both of them catch fire is the same one, and it is not just any point. The justification has changed, the language has changed, the penalty has changed, and so has the very structure of the interdiction. What has not changed is the place where it comes to rest.
There is a simple way to verify that the distinction still holds, and it consists in comparing two transgressions. Whoever exceeds the speed limit or evades a tax commits an offence, and the community sanctions it in proportion to the harm: the act remains entirely within the register of accounting rationality, and no one thinks the tax evader has contaminated the ground he walks on. Whoever desecrates a grave, by contrast, provokes a reaction that no penalty can exhaust, and which is not merely more intense: it is of a different nature. Julia Kristeva gave it a name in Powers of Horror, of 1980, calling it abjection and defining it with precision: it is not the absence of cleanliness or health that produces it, but whatever disturbs an identity, a system, an order; whatever does not respect limits, positions, rules. The ambiguous, the composite, the in-between. The very family of phenomena that anthropology had already isolated while working on societies far removed from our own.
In the lexicon of contemporary individualism, the taboo appears almost always as an adversary of freedom. If it establishes what may not be touched or negotiated, it seems an arbitrary limit imposed on a subject who ought to be free to dispose of himself, of his own body and his own choices, bound only by mutual consent. The objection is a serious one and deserves a serious answer, not a shrug. The answer is that in a world stripped of any zone withdrawn from bargaining, the only force left capable of establishing the worth of things would be the logic of exchange; and that where everything is negotiable, everything tends to become a price.
The sharpest formulation of this alternative goes back to Kant, and closes a circle opened many pages earlier. In the Grundlegung zur Metaphysik der Sitten, of 1785, he observes that in the kingdom of ends everything has either a price or a dignity: what has a price can be replaced by something equivalent, and is thus an object of trade; what admits no equivalent, and therefore stands above any price, has dignity. This is no rhetorical flourish but a technical distinction, and it has the merit of making visible what is at stake: dignity is not a very high value, it is a value of a different kind altogether, one that no sum can reach because it does not belong to the scale on which sums are measured. To say that something has no price, in this sense, is not praise: it is to declare a good outside commerce, that is, to draw an interdiction. Whether this was in fact the connection Freud glimpsed when he linked the taboo to the categorical imperative is a matter open to discussion; what is certain is that the two lines of thought meet here.
Contemporary law does this in writing, and with a consistency that surprises anyone who has never had occasion to notice it. Article 5 of the Italian civil code, headed «Acts of disposition of one's own body», forbids disposing of one's own body when this would result in a permanent diminution of physical integrity, or when the act is contrary to law, public order, or accepted morality. It is a provision from 1942, and the exceptions subsequently opened within it are the most eloquent part of its history: law no. 167 of 19 September 2012, which permits disposing of parts of the lung, pancreas, and intestine between living persons for the purpose of transplant, allows this exclusively free of charge. The legislature moved the boundary exactly as far as medicine required, and not a millimetre further. One may give; one may not sell.
The same clause recurs at a higher level. The Oviedo Convention on Human Rights and Biomedicine, opened for signature in 1997, states in article 21 that the human body and its parts shall not, as such, give rise to financial gain; Italy authorised its ratification with law no. 145 of 28 March 2001, though the instrument of ratification does not appear to have been deposited, so that the text operates here chiefly as an interpretive criterion. The prohibition is nonetheless taken up, in almost identical terms, by article 3 of the Charter of Fundamental Rights of the European Union, which forbids making the human body and its parts as such a source of financial gain, and which, since the Treaty of Lisbon, carries the same legal force as the treaties. What is remarkable is the constancy of the formula: one may donate, one may not profit from it. It is, literally, the structure described by Mauss, transferred from the societies he studied to the legal regimes governing organ transplants; it is no accident that since 1970, when Richard Titmuss compared the British system of blood donation with the American one founded on purchase, the category of the gift has become the standard point of reference for reflection on these matters.
It should be noted, this is not an argument that the present boundary is the right one, or that it cannot be moved: it has been moved several times and will be moved again, and debating it is entirely legitimate. The point is rather to observe that a boundary exists, that it has been rewritten each time with the same clause, and that no European legislature has yet contemplated abolishing it. Without a limit of this kind, individual autonomy tends to flip with considerable speed into the freedom, ever less constrained, of the strong to buy what the weak are compelled to put up for sale: and the first autonomy to vanish would not be that of the buyer, but that of the one who has nothing else to offer but himself.
One can now return to the opening question. A society wholly without taboos — that is, without any zone withdrawn from permanent renegotiation — does not appear a workable proposition, granting that by society we mean something more than a provisional aggregate of individuals coordinated by administrative procedures and contracts. Not because inherited prohibitions are all just, or because every act of desacralisation represents a loss: many have been net gains, and some ought still to be carried through. But because a community that made everything, always, equally open to question would lose the elementary capacity to say that something is simply unacceptable — and that capacity, when needed, cannot be improvised.
The more interesting problem, then, is not the extinction of the taboo, which has not occurred, but our difficulty in recognising the ones we go on producing. We think of ourselves as wholly rational beings, and for that reason we struggle to admit how much survives, in the way we take offence, of a logic no theology any longer upholds and which nonetheless operates with the same force as before. This is not a flaw: it is the ordinary condition of any life in common. It becomes a flaw only when it remains unrecognised, because a boundary one does not know one has drawn cannot be discussed, and ends up being defended with an intransigence no one ever deliberately chose.
The question worth asking, then, is not whether it is possible to free ourselves of taboos. It is which things a community decides to render untouchable, on what grounds, and with how much awareness. Cook, in Tonga, took note of a fact he did not understand, recorded it honestly, and continued on his voyage; we have his journals, two centuries of anthropology, and a code that names in writing our piety for the dead, and we go on telling ourselves that we have moved past the question. It would already be progress to admit that the unwritten code is still in force, and that the only choice available to us concerns its articles, not its existence.
Gabriele Vitella