Why does Israeli law indirectly support adultery?

In past, adultery granted all-encompassing meaning: Prohibition of having extramarital sexual relations. Today's broader public morally disqualifies extramarital sexual relations as adultery as long as there is mutual consent

The story about the single woman whom the court allowed to undergo in vitro fertilization with the sperm of her married lover brought up another issue for me – what is going on with adultery? It's not just that democratic society doesn't outlaw adultery, but it seems as if it supports it. 


In the past, adultery was given an all-encompassing meaning: A prohibition of extramarital sexual relations, including between an unmarried, yet monogamous couple. Modern adultery is a mere shadow of its predecessor – it is left only meaning cheating.


Today's broader public morally disqualifies extramarital sexual relations as adultery as long as they are done with mutual consent, and the court doesn't address the little that remains. The law doesn't forbid cheating on one's partner.


What's happening here? Why shouldn't cheating on a marriage be forbidden by law? Perhaps because it isn't practical to contend with this widespread phenomenon?


Pangs of conscience

The literature shows that a majority of the public, both men and women, adulterates. Yet still, a majority of the public espouses the idea of fidelity. The adulterers, at least some of them, suffer from pangs of conscience, and they also educate their children to maintain a faithful, ethical family life.


Everywhere, as long as it is done secretly, as is the very nature of adultery, people are aware of the destructive nature of adultery and try to protect their partners from being hurt. That's to say, "Thou shall not commit adultery" is still a positive value that has yet to disappear. It was engraved in the Ten Commandments and is still seen as relevant to modern life.


The fact that most of the public adulterates doesn't diminish the value of not performing adultery. A social norm, as most social norms, is not based on what most of the public does, but on what most of the public wants and aspires to do. And "don't adulterate" is still considered correct.


The law ignore this value 

Why, then, does the law ignore this value? Why does it seem as if it even supports its violation, like in the case of the single woman and her married lover who wanted to have a child together?


"Thou shall not commit adultery" isn't backed up by the law. "Thou shall not commit adultery" is today the only relevant value in the Ten Commandments which is does not reflected in the law, not even indirectly.


"Thou shall not have any other gods but Me" is expressed in a series of laws and amendments protecting the Jewish uniqueness of the State of Israel. It is a bit forced at times, and often only implied because of the democratic nature of the state, but it is definitely there.


"Thou shall not make any idols or graven images" unlike "Thou shall not commit adultery" is apparently not a relevant value for a majority of the public.


"Remember the Sabbath and keep it holy" is reflected in the Sabbath Law.


"Respect your father and your mother" is reflected in the legal commitment for children, at least until a certain age, to be educated according to their parents' values, usually expressed through religious or ideological beliefs and way of life.


There is no need to elaborate on the legal expression of "Thou shall not murder," "Thou shall not steal," and "Thou shall not bear false witness against your neighbor."


The only uncited commandment

"Thou shall not covet" is a complex commandment. It refers both to property and to adultery (thou shall not cover your neighbor's wife). In regards to property, the law is quite elaborate.


So, what is the only commandment not cited or implied, not even indirectly, in the law? "Thou shall not commit adultery."


In a certain sense, one could claim that "Thou shall not commit adultery" has come in the back door of Israeli democracy by way of matrimony law that remain on a religion by religion basis according to the law. But it truly is a back door, to the point that at times it seems as though it isn't even attached to the house.


Religious adjudicators can worsen divorce terms for an adulterous wife, but democratic thought is appalled. So appalled, that it opens escape routes. Israeli matrimony law is an exceptional phenomenon in western democratic law.


So why adultery out of all the commandments relevant to our time? I am looking for the answer in the law's attitude to emotion: Democratic law tries to deal as little as possible with emotions between people engaged in fully consensual activity. In this sense, democracy limits its role as educator – and its good that it does.


Democracy is a regime whose role is to ensure maximum freedom within reason among its citizens, and is not a regime that is supposed to educate its adult citizens to have specific emotions. 


Avinoam Ben Zeev is a philosopher, writer, and lecturer, specializing in, among other things, dilemmas, emotions and prejudice


פרסום ראשון: 08.18.06, 09:46
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