In a patriarchal society, it's inheritance. When a woman has a baby there is no question of who the mother is. Not so with the father.
Yes. And we see this appear repeatedly throughout history.
Lex Iulia de Adulteriis Coercendis, the Augustus moral legislation that prohibited adultery,
made it clear that adultery was about the behavior of married women and the rights of their legally recognized guardians, namely fathers (for married daughters) and husbands:
By the Julian law, if a husband kept his wife after an act of adultery was known to him, and let the adulterer off, he was guilty of the offence of lenocinium. The husband or father in whose power the adulteress was, had sixty days allowed for commencing proceedings against the wife, after which time any other person might prosecute (Tacit. Ann. II.85). A woman convicted of adultery was mulcted in half of her dos and the third part of her property (bona), and banished (relegata) to some miserable island, such as Seriphos, for instance. The adulterer was mulcted in half his property, and banished in like manner, but not to the same island as the woman. The adulterer and adulteress were subjected also to civil incapacities; but this law did not inflict the punishment of death on either party; and in those instances under the emperors in which death was inflicted, it must be considered as an extraordinary punishment, and beyond the provisions of the Julian law (Tacit. Ann. II.50, Ann. III.24; J. Lips., Excurs. ad Tacit. Ann. IV.42; Noodt, Op. Omn. I.286, &c.). But by a constitution of Constantine (Cod. IX.30, if it is genuine), the offence in the adulterer was made capital. By the legislation of Justinian (Nov. 134 c10), the law of Constantine was probably only confirmed; but the adulteress was put into a convent, after being first whipped. If her husband did not take her out in two years, she was compelled to assume the habit, and to spend the rest of her life in the convent.
The Julian law permitted the father (both adoptive and natural) to kill the adulterer and adulteress in certain cases, as to which there were several nice distinctions established by the law. If the father killed only one of the parties, he brought himself within the penalties of the Cornelian law De Sicariis. The husband might kill persons of a certain class, described in the law, whom he caught in the act of adultery with his wife; but he could not kill his wife. The husband, by the fifth chapter of the Julian law, could detain for twenty hours the adulterer whom he had caught in the act, for the purpose of calling in witnesses to prove the adultery. If the wife was divorced for adultery, the husband was intitled to retain part of the dos (Ulp. Frag. VI.12). The authorities for the Lex Julia de Adulteriis, but ancient and modern, are collected by Rein, Das Criminalrecht der Römer, 1844.
The Romans were also concerned with
stuprum, prohibited acts that involved unmarried women (never married and widows) as well as freeborn (perhaps minor) males. This is an offense against honor, and the women in question is not free to consent to a violation (nor I think is a freeborn male). At least one
Roman jurist, in addressing this offense,
makes it clear that assailants and failed guardians are the ones punished for the transgression (and by death which is severe). He also
wrote that "It has been decided that adultery cannot be committed with women who have charge of any business or shop." The latter might be a reference to prostitution in full, but it may also indicate that this position was somewhat extraordinary and freed such women from some of the traditional restraints on their behavior.
What does seem clear is that the concern for prohibiting adultery is directly tied to paternity concerns. First, the law did not prohibit married men from intercourse with women, and whether or not that was a crime depended on the woman's social status. By contrast, women did not enjoy the right to sexual access with slaves, if they were married. Note also that the father had power over the daughter, but the husband did not enjoy a similar level of control (i.e., he did not retain the power to kill her). We should also note that
Roman moralists' concern with "moral decline," real or imagined, was what prompted the Augustus reforms (which included compulsory marriage, more or less) and were tied to gender norms:
Whatever the effects of Augustus' family laws, they demonstrate a perception on the part of Augustus and his contemporaries of a serious moral decline that needed to be remedied. But had the Roman family really declined in the final century of the Republic--that is, the period from 146 BCE to 49 BCE--or was the decline a figment of Augustus' ideological imagination? In fact, the historical reality of the decline is very hard to demonstrate. The problem for us historians is one of accurate sources. The Romans emerged into the full light of history only in 200 BCE, at the time the first Roman historian wrote; for the period before 200 BCE we have virtually no contemporary written evidence. By 200 BCE, Rome was already the ruler of Italy and a world power. The earliest contemporary Latin writings date from the years immediately after the Second Punic War and just before the supposed moral decline; these texts date from 200-150 BCE and take the form of comic plays by Plautus and Terence and prose treatises by Cato.
What is interesting about these earliest Latin authors is that they are already deploring the moral decline of their own time. The stern, self-righteous moralist Cato, writing in the decades before his death, in 149 BCE, was already decrying independently wealthy women; he complained of wives who were rich enough to loan money to their husbands and then hounded them to repay when they became unhappy. A standard character type in the comedies of Plautus, written not long after 200 BCE, was the loose-living son who was smitten with love, often for a prostitute. In the plays--ancient versions of sitcoms-- there is a debate about whether fathers should be strict or indulgent toward the moral failings of their sons--usually they were indulgent in the end, just as in modern sitcoms. In fact, sons in these plays are never beaten for their disobedience, as slaves are. Plautus' errant sons are not a fictitious type invented by his imagination but are characters that had their counterparts in reality. The historian Polybius, who lived in Rome around 160-150 BCE , described the lifestyle of his senatorial friend, Scipio Aemilianus. According to Polybius, Scipio was an unusual youth precisely because he did not indulge in the fast living of his peers.
In short, the earliest Latin authors were already writing of the breakdown of the good, orderly family in which the paterfamilias maintained authority over his wife and children. If there was ever a better age before the decline, it must have been in the prehistoric era. An alternative interpretation--one that I lean toward--is that the golden age before the moral decline never existed in reality but was a later invention by Roman authors who certainly had no reliable historical evidence for moral trends. That is to say, the narrative of moral decline of the family was based on a historical mirage of a better past, and it was no more than a mirage. It is fascinating that one of Plautus' comic characters, an unusually introspective father, is made to wonder out loud whether the sons of his day really are worse behaved or whether fathers just like to imagine that in their own youth they were more obedient and morally virtuous.
The reforms that were ultimately adopted
were not those favored by egalitarian Romans, like the Stoic
Musonius:
Musonius’ opposition to luxurious living extended to his views about sex. He thought that men who live luxuriously desire a wide variety of sexual experiences, both legitimate and illegitimate, with both women and men. He remarked that sometimes licentious men pursue a series of male sex-partners. Sometimes they grow dissatisfied with available male sex-partners and choose to pursue those who are hard to get. Musonius condemned all such recreational sex acts. He insisted that only those sex acts aimed at procreation within marriage are right. He decried adultery as unlawful and illegitimate. He judged homosexual relationships as an outrage contrary to nature. He argued that anyone overcome by shameful pleasure is base in his lack of self-control, and so blamed the man (married or unmarried) who has sex with his own female slave as much as the woman (married or unmarried) who has sex with her male slave.
He had his
weird quasi-religious reasons for this, but it was definitely not the normal patriarchal justification:
In reply to this I have just one thing to say: if it seems neither shameful nor out of place for a master to have relations with his own slave, particularly if she happens to be unmarried, let him consider how he would like it if his wife had relations with a male slave. Would it not seem completely intolerable not only if the woman who [89] had a lawful husband had relations with a slave, but even if a woman without a husband should have? And yet surely one will not expect men to be less moral than women, nor less capable of disciplining their desires, thereby revealing the stronger in judgment inferior to the weaker, the rulers to the ruled. In fact, it behooves men to be much better if they expect to be superior to women, for surely if they appear to be less self-controlled they will also be baser characters. What need is there to say that it is an act of licentiousness and nothing less for a master to have relations with a slave? Everyone knows that.
What he does not do is disturb the law of adultery itself, nor the reasons for it. He just added an additional reason for male restraint in these "monogamous" marriages, being that the male householder had to exemplify self-mastery if he was to exercise authority over the women in his household. This very Stoic argument he provides is of course ridiculous: A master having sex with a female slave could not disturb the property progeny line the way that a female having sex with male slave could disturb the line.
Greeks had similar attitudes, at least according to ancient historians. We know
from Plutarch that a law was attributed to Solon, with the former judging it unfair or at least absurd:
But in general Solon's laws concerning women seem very absurd. For instance, he permitted an adulterer caught in the act to be killed; but if a man committed rape upon a free woman, he was merely to be fined a hundred drachmas; and if he gained his end by persuasion, twenty drachmas, unless it were with one of those who sell themselves openly, meaning of course the courtesans. For these go openly to those who offer them their price. [2] Still further, no man is allowed to sell a daughter or a sister, unless he find that she is no longer a virgin. But to punish the same offence now severely and inexorably, and now mildly and pleasantly, making the penalty a slight fine, is unreasonable; unless money was scarce in the city at that time, and the difficulty of procuring it made these monetary punishments heavy.
The same law attributed to Solon allowed for some type of excommunication for the woman being caught in adultery, while the man was to be executed (I think there is some leniency available as well, in terms of alternative financial contributions to avoid punishment). But the point is that the honor being protected here is clearly related to a property (and lineage) interest.
There is
substantial evidence that the gender imbalance is a consequence of agriculture. More specifically, that the surplus of goods, division of labor, and the emergence of property rights, was tied to the first agricultural revolution, which minimized the importance of women’s labor, or at least enabled men to control goods in ways that they had been unable to in a foraging economy. Particularly
plow-dependent societies.
Naturally, the industrial and post-industrial economies of today have very different concerns. We can ascertain paternity with DNA testing and in any event we have largely abolished the strict inheritance laws from the agricultural era. We have growing female labor participation rates, and women have a much larger role in governance as well. Marriage does not serve the same ends that it once did, and is now a much more egalitarian institution. As egalitarianism increased, the prosecution of adultery waned.
So I guess what does that all say about adultery? We do not live in cultures that are legally patriarchal these days (with some notable exceptions outside of the West). Neither women nor children are ruled over by the
pater familias, religion is largely a private affair and subject to one’s conscience and there is no slave class nor an aristocratic one. Marriage serves only capitalist and post-capitalist functions, as the case may be. Like all good rational agents that appear in supply and demand models, people are largely free to shape the terms of their personal relationships and the government’s ability to regulate adultery is questionable. If it is a transgression, it is a private one for the parties involved.
I actually expect that infidelity will become less important at the personal level as time passes. We may never eliminate jealousy or a desire for sexual exclusivity altogether, but if it is no longer wedded to our system of property rights and resource allocation it will not have much significance socially, and as its social importance wanes so too will its importance to individual couples. As has been the case with religion.
