APOLOGIA PRO OPERE SUI part V

6.MATRIMONY or FORNICATION

Now we come to a crucial point. What is the magistrate to do in all this? Keep in mind that no magistrate, howsoever wise, can learn and know the private dealings of everyone who comes before the court. The laws must be simple and clear enough for all rational men to be able to conform to them.

Fornication (including adultery) either is or is not against the law, and either it is punished or not. If it is either not against the law, or not punished, no deterrent exists, and the law is a dead letter.

Likewise, if fornication (including adultery) either is or is not rigorously and vigorously penalized by social opprobrium. In this, there is not much latitude for diversity of opinions: the society as a whole is either committed to the proposition, or is not committed. The minority has a veto over the majority. If the majority condemns adultery, but a sizeable minority does not join in that condemnation, the condemnation has no real force or effect. Anyone suffering ostracism or mockery for his adultery can move to the neighborhood where it is not condemned. The society merely polarizes in this case, it does not form an enforceable consensus.

That decision to condemn fornication at law rests with the magistrate, and to condemn with social opprobrium with the common opinion of the consensus of the people.

Such is the human condition.

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Originally published at John C. Wright's Journal. Please leave any comments there.