CHAPTER XV.

UNCERTAINTY OF THE “MORAL” TEST OF OB

SCENITY.*

Our Courts, in their blind non-logical gropings for some practical criteria of guilt under these vague statutes against "obscenity,” have often amended the statutes so as to make the criminality of admitted facts depend, not upon the literal application of the letter of the statute, but upon the jury's opinion, according to its personal standards, as to whether or not the matter is such as might tend to deprave the morals of some hypothetical person who might be open to such immoral influences. Assuming now for the sake of argument that this judicial legislation is entirely proper as a matter of legitimate statutory construction, then the question arises whether this makes the statutory criteria of guilt so certain in meaning as is necessary to constitute this statute "due process of law."

If courts can be said to have answered a question which they have not even considered, because the answer is a necessary inference from their acts, then the courts have answered this question in the affirmative. Is this answer by implication correct?

The inquiry now to be pursued is as to whether or not there exists an agreement as to the criteria of the ethical right in general, and of sex ethics in particular, such as enables the "moral" test of obscenity to satisfy the constitutional requirement as to the necessary certainty of the criteria of guilt in a penal statute. The method will be to study the various schools of ethics, and to exhibit what the various leaders of thought have to say upon the subject.

RELIGION AND SCIENCE DISTINGUISHED. The most conspicuous line of cleavage between differing schools of morals, is that which separates religious morality from ethical science. The matter of differentiating the ethics of science from religious morality, is but a sub-division of the larger problem of the distinctions between religion and science

•Revised from the Truth Seeker.

in general. In The Arena' (Jan. 1, 1908), I discussed this latter question, rather too briefly, but summarized my conclusions as to the difference between science and religion in the following language:

"In religion the source of authority for its beliefs and activities is subjective experiences, believed not to be dependent for their existence upon material objective stimuli. To describe these subjective processes for the acquisition of religious knowledge such phrases are used as an act of faith, an assurance of the heart, the inward miracle of grace, and the inward monitions of the spirit.

“Science, on the contrary, deals only in objectives, and in our relation with them finds its only source of knowledge. Even when psychic phenomena are being studied the scientist must consider them objectively.

"From this difference in the sources of religious and scientific knowledge, comes an unavoidable difference of method to be pursued for the acquisition of their respective truths. The religionist resorts to faith, to prayer, to spiritual exercises, to silent communion with unseeable powers, superhuman intelligences, or extra-physical personages, as a means of securing those subjective experiences by which he knows because he feels, and is firmly convinced because strongly agitated. The scientist on the contrary can sum up his method in an application of the processes of synthesis and analysis to our human experience with our material environments.

"From these differences of source and method comes also difference of aim. The scientist is concerned with the laws of nature, under which are included not merely things and their forces, but men and their ways, to the end that human happiness here and now may be increased by a more perfect adjustment to the conditions of our present material wellbeing. On the other hand, religion is primarily concerned with the laws of our 'spiritual,' (that is, our alleged superphysical) nature, to the end that man's happiness, primarily in some other existence, may be increased through the individual's adjustment to the conditions of 'spiritual growth and 'spiritual' well-being.

January, 1908.

The Religious and Secular Distinguished.

The re

"The scientist, or secularist, never subordinates the human happiness of this existence to that of any other. ligionist on the other hand, whenever a conflict arises between the joys of this life and those of some other kind of existence, always must sacrifice the present for the advancement of that other, super-physical, existence.”

What is thus true of the difference between religion and science in general, is equally true of the difference in the particular, between religious and scientific ethics. That the general sources of religious authority, method for discovering religious truth, and the ends to be achieved by it, are all true of religious ethics in particular, is quite generally understood. The antipathy between religious and secular morality is not so generally known. Indeed, very few, even among those who have left the churches, seem to know anything definite about secular morality, and blindly continue to follow the moral dogmatism and sentimentalism of their abandoned religion. Religious morality either directly, or indirectly through the meditation of holy writ or a holy priest or priesthood, rests upon the authority of some a priori sanctity, whose inerrancy is certified to by some subjective experience, sometimes personal, at others adopted through imitation. The morality of science is always based upon experienced consequences of conduct, and between these differing moral standards there is, and always will be, an irrepressible conflict, arising from their different source of authority, of method, and of end to be achieved. This I will now try to make more plain.

THEOLOGICAL MORALS. Prebendary Wace says: "Morality cannot for practical purposes be left to rest on scientific experiences. * * * * * It

** is essential in practice, to the welfare of individuals and of society alike, that the chief false routes of moral life should be barred by plain and authoritative prohibitions."? He also informs us that: “The eternal relations of the heart to a perfect being, towards whom every emotion of love and gratitude can be indulged to the highest degree,” is a higher purpose and motive for morals than can be supplied by natural law.

Prof. Sedgwick considers the moral ought as an “ultimate and unanalyzable fact."

Mortensen says: "Truly if the Light of religion be extinguished no reason is perceptible for leading a moral life in all these finite and temporal relations."

“Blind obedience to extraneous law does not approve itself to us as really moral. * * * * The question concerning the ground of our moral obligations finds an adequate solution only in God," says the Rev. Otto Pfleiderer.

In religious ethics the appeal is to "the reality which transcends that which now is and that which now is known, is the opinion of the Rev. George Wm. Knox.

Notwithstanding the persistence of the clerical falsehoods to the contrary, Thomas Paine was a theist, and although his religious emotions no longer prompted him to adopt the Bible, or the priest, as embodying the divine will, he nevertheless did not place his morality upon a scientific basis. His words are: “The practice of moral truth, or in other words a practical imitation of the moral goodness of God, is no other than our acting towards each other as he acts benignly toward us.”

Such theistic morality, though strictly religious in an unsectarian sense, yet is the associate of a conspicuous deviation from the habit of applying the religious method to all the factors of life. Thus is marked the beginning of a transition from the all-religious to the complete secularization of our thinking.

THE TRANSITION TOWARDS SECULAR MORALITY. With that religionist whose mind is wholly "uncorrupted” by the scientific method, his religion, its methods and aims, will determine his ethical ideals. As a man gets away from the religious habit of mind, he gradually acquires moral and other ideals whose authority will dominate and determine his religious convictions. This is the transitional stage of some advanced theologians and the ethical culturists. When these dominating ethical ideals have become wholly scientific, then the secularization of morals is complete. The following illustrates the second stage of secularizing influence in an advanced theologian. “Religion must ever anew measure its inherited ideas and customs against the standard of the ethical

ideals, (otherwise acquired ?) and in so far as they do not harmonize with that, it must strive for their purification and progressive development. **** * It may be justly demanded that its teachings shall not conflict with what has been established as theoretical or practical truth, and especially that it shall not lag behind our ethical ideals.” But how are we to judge of differing standards, which is the one that is lagging behind and which running ahead? This author seems to demand that even the religious authority in matters of ethics may properly be subordinated to the standards of science.

In this progression toward the secularization of our morals, the ethical culture movement represents the "last ditch” of religion, in resisting the secular advance. Here the religious method, and its subjective source of authority, are still in full operation as to morals, but the theology and the use of the religious method in every other branch of human thinking may have been abolished. In the following quotation we see a non-theological religious morality in full force, with the ecstatic joy and hysterical enthusiasm of the revival convert but slightly impaired. One can readily imagine the exhorter's impassioned tones accompanying this statement from the Ethical Culturist.

“There is," he says, “no reason why men, become conscious of their responsibilities and of the great issues at stake, (in ethical conduct,) should not be touched with reverence and awe as they think of these things, should not become hushed and subdued. Morality would then become a religion to men, in the fundamental and indeed universally recognized sense of the term. Morality as I conceive it, morality as I have tried-and yet too well know I am unable, to picture itMorality as conscious willing glad subordination to the universal law of life, morality as lifting one to comradeship with suns and stars, because it is faithful as they, Morality loving the law of life more than life, Morality ready to die rather than to be untrue—that Morality may be the very ideal which one may seek all one's life to follow, that may be the supreme passion to a man, down on his knees he may bow before it, as he may before Jesus, or before Buddha, or any other son of man, who has exemplified the ideal, or made it any brighter

"Rev. Otto Pfleiderer in Am. Journal of Theology, April, 1899, vol. 225-249.