The South Korean Constitutional Court handed down a ruling last week that most people would find both amusing and disturbing in equal measure. The court struck down a 63 year-old law that criminalized adultery; or to use its more fanciful phrase, extra-marital sex. The law prescribed a penalty of two years in the slammer; a time deemed sufficient for transgressors to cool their ardour.
Big brother, the state, is omnipresent. Its right to look into their bedrooms was guaranteed by the law. There must be good reasons why the Korean state, only one of a few non-Muslim countries to criminalise extra-marital sex, found it necessary to watch over the sexual conduct of its citizens and ensure that people did not take the liberty to fish in other people’s ponds. I thought it was a splendid example of how to put the padlock on the gate of covetousness running riot.
While it lasted for 63 years, the law did a fairly good job of catching and putting away those who could not help coveting other people’s wives and husbands. In 2004 alone, for instance, 216 such people earned the title of ex-convicts. But the sinners happily kept sinning, daring the law to find them out. The law found some 5,500 of them in six years. Not such a huge number considering the fact that the bug of covetousness makes reasonable gentlemen unreasonable. The 5,500 people were in line for possible jail terms. Luck is on their side. The law is dead.
South Korea certainly cannot be the most adulterous nation in the world. And it is not true South Korean men and women have problems with letting their under wears stay in place. If Nigeria enacted the same law today, the prisons would be bursting at the seams within only one week. You would require perhaps ten times the number of our current police force to keep their eyes on hotels and short time dinghy spots where men and women render the law of the lord ineffective.
Adultery is a complicated matter because, and this is important, the temptation to covet other people’s property, be it wife or husband, has proved difficult to resist all these years. I am told there is a strange pull towards anything forbidden. Ask Adam and his dutiful wife, Eve. I do not think the framers of the 1953 Korean law on adultery were naïve enough to entertain any illusions that by criminalizing it, their country would have nine out of the Ten Commandments to observe. That would be a leg up on other countries.
It hardly bears repeating that all societies, ancient and modern, regard adultery as immoral and repugnant. The problem is societal ambivalence towards it. Where it is not a criminal offence, it is a civil offence that allows a man to protect his familial territory, the one castle every man builds for himself. The Korean court ruling does not attempt to change that fact. Nor does its view amount to a licence for every man to freely fish in his neighbour’s pond. It only ousts the right claimed by the state to put adulterers out of circulation.
I find the opinion of the court intriguing. Park Han-Chul, the presiding judge, said: “Even if adultery should be condemned as immoral, state power should not intervene in individuals’ private lives.”
Reactions to the landmark ruling are either ignorant or simplistic, as in this newspaper headline: Court legalises adultery. Not quite. What the court did was stop the state from peering into people’s bedrooms; or more appropriately, hotel rooms. It should not be difficult for people to appreciate the fact that the ruling is clearly a fundamental shift in a judicial stand on the slippery slope of policing public morals. What is at issue is this weighty question: Does the state have the right to police our moral choices?
That question has always been answered in the affirmative. Apparently, the court does not think so. It said: “The precondition of human dignity and right to pursue happiness is for each individual to have their rights to choose their fate. And the rights to choose their fate include rights to be engaged in sex and choosing the partner.”
This gets murkier. The argument of the court is this: A man has the right to choose what fate befalls him. The state has no right to stop him from exercising his right to choose his fate. It may or may not bring him to a violent end. Because of a woman. A man who commits adultery has a fairly good idea of the fate likely to befall him. You can hardly find an angrier or a madder man than one whose marital sanctity has been violated by another. The court says it is his choice. He must accept the consequences too. The reasoning gives the faint smell of anarchy.
I find the argument of the court cynical in the extreme. Let us face it, family honour is important to every man and every society. A man is duty bound to protect the honour of his wife and of his family. When that honour is tossed about in the wind, the poor loses to the rich and the weak loses to the strong.
Two of the seven judges dissented from the majority opinion. Their argument is sensible. They said: “Adultery and fornication go beyond a person’s rights (and) intrude on other people and the community. Considering that the relationship between husband and wife is the fundamental element of a family, the country and the society should legally protect and maintain (this) relationship.”
Men and women have fought and died pursuing and defending human rights and freedoms from the beginning of the formation of human communities. I am not aware that anyone has ever fought for the right of men and women to commit adultery. This sort of right, if right it is, does not qualify as something a man is entitled to legally or morally.
You never know, of course. The times are changing. The walls of many a taboo have come down, pulverized by the hooves of modern civilization. I rest my case.
