Let’s bring back stigma and shame

The Turkish government recently announced that it intended to make adultery a criminal offence. This was not altogether surprising, since the Turkish government adheres to the principles of Islam, under whose laws adultery is a crime punishable by flogging or execution. Nevertheless, it caused such uproar among more progressive Turks, not to mention horrifying the EU, which threatened to tear up Turkey’s membership application as a result, that the Turkish government has now binned the proposal (perversely, along with a raft of reforms designed to impress the jittery Europeans; but let that pass).

So far, so relatively unexceptional. What was far less predictable, at least to me, was the reaction of the editor of The Spectator, who invited me to write an article which would not only support Turkey’s modest but now defunct proposal but recommend that Britain should follow this inspiring example and ban adultery, too.

In vain did I protest that banning adultery was a seriously bad idea, that I would never for a moment entertain such a proposition and was startled that he should imagine that I would. The more I said how baffled I was that he should think such a thing, the more baffled he became by my bafflement. ‘But I thought you’d think banning adultery was a jolly good idea,’ he said feebly.

It reminded me of the time I was invited to take part in a radio discussion about feminism in which, after I ventured that I thought feminism had gone too far because not every single disadvantage suffered by women was automatically the fault of a patriarchal society, my male interrogator inquired whether I would therefore prefer to live in Saudi Arabia.

Huh? What is it that makes people imagine that if you think that not all men are rapists, wife-beaters and child-abusers, you must therefore want women to be relegated to mediaeval serfdom? Or, if you are worried that the institution of marriage is going down the tubes and with it the life chances of rather a lot of children, you clearly want to start stoning people to death in Trafalgar Square?

But then, if you’re me, people assume that you are an intolerant authoritarian who would stamp on human rights with all the sensitivity of a Savonarola on speed. The fact that what concerns me happens to be the threat posed to the liberal values of tolerance, individual freedom and social justice from the assault upon the moral norms that sustain those values quite escapes those who hiss ‘Old Testament fundamentalist’ in my direction — the Saudi Arabia crack being singularly inappropriate in my case — which conjures up a suitably chilling vision of smiting, vengefulness and condign punishment by religion.

This reflects a more widespread confusion. Society has turned away from authority so comprehensively that any attempt to reassert it is considered authoritarian. Many no longer understand the difference. Yet without authority there can be no duty; and without duty there can be no social justice and individual freedom.

Take marriage and its transgressions. Hmm, bet that word ‘transgressions’ caused you a bit of a tremor, eh? Here she goes, you thought; being judgmental again. And as we all know, to be judgmental is just one sword stroke away from Riyadh’s Deera (‘Chop-Chop’) Square. But if you don’t like the idea of transgressions because that implies moral norms — and endorsing moral norms means that someone somewhere might be made to feel bad about themselves, which offends against the sacred doctrine of equal lifestyles with no shame or stigma ever — then you can quickly end up supporting behaviour that causes hurt or harm. Moreover, without making distinctions between one kind of behaviour and another, or the offender and the person offended against, you can also end up penalising a victim twice over.

This is what has happened over marriage, divorce and family life in general. It is, of course, the orthodoxy of the age that no one kind of family structure can be deemed better or worse than any other. But marriage is important because it is (still) the best guarantee that parents will stick around to bring up their children. That in turn is the best guarantee that those children will grow up emotionally healthy and properly socialised (not in every case, of course, but then nothing is perfect). For that reason marriage is the bedrock of society, and if it goes pear-shaped everyone else has to clear up the mess.

That is the only reason why the state gets involved in what would otherwise be a private sexual relationship. Marriage is at the intersection of the public and private spheres because of the consequences to society if it fails. It is not just the unsocialised or emotionally screwed-up children, or lonely ex-spouses neglecting themselves in some grotty bedsit. More fundamentally still, monogamous marriage of the kind practised in northern Europe helped produce the autonomous, inner-directed, equality-loving individuals who dreamed up liberal democracy. If marriage is undermined, individual autonomy ultimately gets hammered too. No society based on mass fatherlessness has ever flourished; yet that seems to be where we are now heading. It is this concern to protect the values of a liberal democratic society, rather than some atavistic desire to punish alternative lifestyles, that fuels the alarm over the rise and rise of cohabitation, transient partnering and serial parenting that have knocked marriage off its pedestal.

It follows, therefore, that those who are thus concerned for the welfare of both individuals and society should disapprove of personal behaviour that undermines or betrays the marriage vows, such as adultery. It follows also that they will take a dim view of the progressive relaxation of divorce law, as a result of which it is now possible to divorce someone against his or her will even though their behaviour has been blameless, and furthermore the spouse who has committed adultery might even end up with the house, the children and a substantial slice of the injured party’s earnings. This is largely because the notion of apportioning fault has been excised from divorce proceedings altogether — mainly because of the judiciary, who decided almost as soon as the ink was dry on the Divorce Reform Act 1969 that they couldn’t be expected to apportion fault for the breakdown of a marriage because even if someone committed adultery or other misbehaviour, the other party might have been at least partly to blame.

Now, there are various aspects of all this that might cause concern. Emptying divorce law of the concept of individual responsibility has not only created instances of personal injustice but undermined marriage itself. If a solemn promise made with the force of law can be voided with no good reason given, it makes that promise itself meaningless. If people could with similar impunity tear up other agreements, such as over the purchase of a house or a car, it would destroy the whole basis of contract law. In addition, the erosion of responsibility for adultery has blunted disapproval. Yet adultery causes pain and distress to others; it involves betrayal, dishonesty and infidelity. Not to disapprove is to shrug aside the infliction of harm.

But that does not mean adultery should be turned into a criminal offence, any more than it means that breach of contract should become a crime. A liberal society does not make a crime out of behaviour which merely causes disapproval. We may disapprove of people who tell lies, bully their subordinates or deliberately bring children into the world without a father. That does not mean we should lock them up.

The crucial distinction is surely between public and private behaviour. Family life should be free of state interference. Disputes between individuals, whether over the sale of a house, t he height of the neighbour’s leylandii or the conduct of a marriage, are private matters. Individuals go to court to secure justice in the arbitration of such private disputes. Crimes, on the other hand, are transgressions that threaten society in general, or the public sphere. That is why the state steps in to enforce punishment.

The breakdown of marriage as a social institution has repercussions for the whole of society. That is why the state regulates it in the public interest. But the breakdown of an individual’s marriage, or the betrayal of one spouse by another, has no implications for society in general (as opposed to the reaction to it, which does). It is a matter for the couple to sort out in private.

This distinction between the public and the private spheres lies at the very heart of the liberal social order. It was Christianity’s distinction between Church and State after the Reformation which paved the way for the free societies of the West. It is the absence of such a distinction in Islam which makes it fundamentally illiberal, since it regards it as a religious duty to regulate private behaviour by the state. That is why it criminalises adultery. And that is why it would be intolerably oppressive and indeed unthinkable for a liberal democracy to do so. Family life in the West is the single most important safeguard for the individual against the power of the state. To use that power coercively against private sexual behaviour would be to negate the very basis of our liberal society.

But at the same time that does not mean that criticising the erosion of honesty, fidelity and responsibility, or the knock-on effects this has upon children and society, represents an authoritarian departure from those liberal values. On the contrary, it is essential if they are to be defended. The absurd assumption that such disapproval leads straight to the prison cell means there is no space permitted for the exercise of judgment, stigma or shame, those informal moral structures that police behaviour and make possible civilised relationships based on concern for the welfare of others. It also means that a society cannot incentivise good behaviour and discourage bad, a deeply reactionary position which in turn denies the liberal ideal of improving the human condition.

For some reason, people seem to have lost the capacity to live in the space between extremes. So if you are not a libertine, you must be an authoritarian; either you endorse morally equivalent lifestyles, or you criminalise adultery. But in the space that has disappeared subsists the entire liberal tradition. It is not just the fanatic’s sword that threatens to destroy our most precious values. We are decapitating them ourselves.

Melanie Phillips is a Daily Mail columnist.