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as to the difference between science and religion in the fol-
lowing language:

"In religion the source of authority for its beliefs and
activities is subjective experiences, believed not to be de-
pendent 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 meth-
od to be pursued for the acquisition of their respective truths.
The religionist resorts to faith, to prayer, to spiritual exer-
cises, to silent communion with unseeable powers, superhuman
intelligences, or extra-physical personages, as a means of se-
curing 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 environ-
ments.

"From these differences of source and method comes also
a 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 well-
being. On the other hand, religion is primarily concerned
with the laws of our 'spiritual/ (that is, our alleged super-
physical) nature, to the end that man's happiness, primarily
in some other existence, may be increased through the in-
dividual's adjustment to the conditions of 'spiritual' growth
and 'spiritual' well-being.

January, 1908. 'The Religious and Secular Distinguished.

280



UNCERTAINTY OF THE MORAL TEST OF OBSCENITY.

"The scientist, or secularist, never subordinates the human
happiness of this existence to that of any other. The re-
ligionist on the other hand, whenever a conflict arises be-
tween the joys of this life and those of some other kind of
existence, always must sacrifice the present for the advance-
ment 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 under-
stood. 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 defi-
nite about secular morality, and blindly continue to follow the
moral dogmatism and sentimentalism of their abandoned re-
ligion. 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 per-
sonal, at others adopted through imitation. The morality of
science is always based upon experienced consequences of con-
duct, 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." 2 He also
informs us that : "The eternal relations of the heart to a per-
fect 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 "ulti-
mate and unanalyzable fact."*

*Ethics and Religion by Prebendary Wace. In Journal of the Victoria
Institute, 1901, vol. 33.
Mt'nd, Oct., 1889.

28l



OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

Mortensen says : "Truly if the Light of religion be ex-
tinguished no reason is perceptible for leading a moral life in
all these finite and temporal relations." 4

"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," 5 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, " 6
is the opinion of the Rev. George Wm. Knox.

Notwithstanding the persistence of the clerical false-
hoods to the contrary, Thomas Paine was a theist, and al-
though 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 devia-
tion 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 re-
ligious convictions. This is the transitional stage of some ad-
vanced theologians and the ethical culturists. When these
dominating ethical ideals have become wholly scientific, then
the secularization of morals is complete. The following il-
lustrates the second stage of secularizing influence in an ad-
vanced theologian. "Religion must ever anew measure its
inherited ideas and customs against the standard of the ethical

4 Christian Ethics, p. 16.

8 Rev. Otto Pfleiderer in Am. Journal of Theology. April, 1899, vol. 3, p. 239.
Religion and Ethics by Rev. Geo. Wm. Knox of Union Theol. Sem. in
International Journal of Ethics, v. 12, p. 315.

282



UNCERTAINTY OF THE MORAL TEST OF OBSCENITY.

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 es-
tablished as theoretical or practical truth, and especially that
it shall not lag behind our ethical ideals." 7 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 o>f 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 con-
vert but slightly impaired. One can readily imagine the ex-
horter's impassioned tones accompanying this statement from
the Ethical Culturist.

"There is," he says, "no reason why men, become con-
scious 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 it
Morality as conscious willing glad subordination to the uni-
versal 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 pas-
sion 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

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

283



OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

before his eyes. Aye, then it is plain the sense in which Re-
ligion and Morality may become one." 8

It is apparent that the ethical culturist has that same
unreasoned, passionate devotion to his moral law which the
Brahmin manifests for the law of Manu, the Persian for the
laws of Zoroaster, the Mohammedan for his Koran, the Prot-
estant Christian for his Bible, the Catholic for his "permanent
oracle of the divine will" at Rome, and the Mormon for the
utterances of his "Prophet, Seer, and Revelator," who is the
Utah Pope; and each endorsing something which some other
denounced as immoral. It is also apparent that the same sub-
jective source of authority exists in all cases though it at-
taches itself to varying standards. Take these words of Mr.
Mangasarian, when he was still connected with the Ethical
Culture movement, as conclusive proof. "Ethical Culture
is the religion of the spirit. ***** Ethics is the heart of
religion. * * * * * ft is impossible to learn from the physical
world the lesson of morality. ***** Whenever we protest
against wrong it is from within that we draw our inspiration.
***** Ethical Culture is a spiritual religion." 9

RELIGION WITHOUT MORALS.

Not by this method, alone, but also by historical investi-
gation, can it be shown that we can have, not only religious
morals without theology, but also that we may have religion
without a moral code. Here again eminent authorities also
sustain our contention. We may begin by calling the Rev.
Dr. Batchelor to the witness stand. He says: "Religion
does not begin in ethics. It did not grow out of ethics. It
was before ethics in origin and has during a great part of
human history wrought in life independently of, and not in-
frequently in distinct opposition to, the ethical sentiment. Let
all sense of ethical obligation be destroyed, or reduce it again
to the level of the pre-historic standard, and still religion
would none the less be a power in human life not to be disre-
garded." 10

Next we quote Professor Everett, of Brown University.
He says r 11 "That religion may be non-ethical, finds numerous
.illustrations in the history of the world's religions. Indeed,

Rev. W. Salter in Morality and Religions, p. 33.

The Religion of Ethical Culture, by Mangasarian, Philadelphia.

10 Religion its own Evidence, p. 19.

^International Journal of Ethics, v, 10, p. 479.

284



UNCERTAINTY OF THE MORAL TEST OF OBSCENITY.

at a certain stage, many primitive religions appear to have
been non-ethical. That of Rome continued for centuries, re-
maining to the last almost exclusively formal and ritualistic.
The statement that ethics may be non-religious, finds abundant
support in modern life, as in the case of the positivists."

To this we may add the testimony of the Rev. Geo. Wm.
Knox, of Union Theological Seminary. 12 He says : "Re-
ligion is to be distinguished from ethics. Even when some-
what developed, it may have no ethical code. It is said that
Shinto has as its teaching only this : Fear God and obey the
Emperor! But in its earlier books there is not even this
teaching, nothing which implies either as an ethical maxim.
The later writers explain this unusual feature by saying that
the Japanese, being holy by nature, need no moral code ; which
was invented by immoral folk like the Hindoos and the
Chinese."

Aristotle and Bacon separated the sphere of religion and
ethics by assigning to the former those matters relating to an
after-life, and to the sphere of the latter those actions which
relate only to the present life. Of course many others would
insist that according to their conception of the after life, all
conduct here is related to it, affects it. Probably most of our
present day orthodox Christians hold with Thomas Aquinas
that God is the direct source of all the theological virtues, and
the indirect source of all earthly virtues. While thus agree-
ing as to the source of authority with all believers in theistical
religions, there is the widest range of belief as to what the
Deity really considers virtue. See the varying attitudes toward
sex problems entertained by Catholics, Shakers, Methodists,
Bible Communists, Mohammedans and Mormons, all being
Christian sectarists.

In practically all Christian ethics the foundation tenet is
that God requires obedience to his law, not because it is good,
but because it is his law. As to its goodness, finite humans
have neither capacity nor right to sit in judgment, except to
approve and obey. His moral law is good, not in itself, but
only as the expression of the Divine will. God might have
willed to the contrary and then his will would still have been
good.

ETHICS OF SCIENCE.

When we contrast this with any scientific conception of

"International Journal of Ethics, v. 12, p. 305.

285



OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

ethics the irrepressible conflict at once manifests itself. Here
responsibility rests upon the individual, not merely as to choos-
ing which God, or whose interpretation or conception of
God's will, it is to which he will yield blind and unquestioning
obedience, but also for the choice of conduct according to its
social utility. Conduct now is moral or not according to its
consequences, determined by its being a violation, or not, of
the natural law of our social organism. But the good and
ill of consequences are relative, so morality becomes a rela-
tive matter instead of an absolute thing. Responsibility
now cannot be shifted on to God, for having imposed an in-
scrutable injurious "duty," and each person must decide for
himself what is to be his own moral code, and himself must
take the consequences of judging wrong and violating nature's
moral law. For the breaching of nature's inexorable laws
there is no forgiveness, nor vicarious atonement. In natural
law all must take the natural consequences of their conduct.
No priest can save us. We must readjust, get in harmony
with the law or perish. No wonder then that Cotton Mather
denounced ethics as "a vile form of paganism." 13

THE NON-RELIGIOUS, NON-THEOLOGIC MORALITY OF SCIENCE.

To make the irresistible conflict between religious and
scientific morals still more evident it becomes desirable to
quote some of the standard writers upon ethics, to show
what is their source of ethical authority and what are their
varying criteria of the moral life.

As to the source of ethical authority, "Clifford says that
the 'Maxims of ethics are hypothetical maxims, derived from
experience and based on the assumption of the uniformity of
nature/ " 14

Another offers this : "Morality springs from those human
relationships in which the individual finds himself compelled
to live and act. It has its roots in the needs physical and
mental which other human beings can satisfy and in the
sympathies which answer to those needs." Science "seeks
to find the sanction of morality in the natural and inevitable
results of the conduct itself and to establish morality on a
rational basis by exhibiting the inescapable consequences of
right and wrong action, of good and evil character, as in

l3 See Hall's Adolesence, v. 2, pp. 287-288.

"Relipion and Ethics, by Rev. Geo. Wm. Knox, of Union Theol. Sem. in
.International Journal of Ethics, v. 12. p. 305

286



UNCERTAINTY OF THE "MORAL" TEST OF OBSCENITY.

themselves sufficient grounds for the choice of the one and
the avoidance of the other. As a science it does not even in-
quire if there is a supreme being." 15

While all scientific students of ethics agree that nature is
the ultimate source of authority in ethics, yet when it comes to
formulating a general statement of what is required of us by
the natural law of our interhuman relations there is, at least
seemingly, a wide range of difference in the statement. This
is quite inevitable in the present undeveloped state of our at-
tainments in the social sciences. We are as yet too near the
beginnings of our investigation into these subjects to have
arrived at any comprehensive and ultimate rational generaliza-
tions.

Let me now portray the criteria of moral guilt according
to various students of ethical science. I will begin with John
Stuart Mill whose ethical views are still very popular with
the masses, but have lost much of their authority with the
more modern scientists.

He says : "According to the greatest-happiness principle
as above explained, the ultimate end, with reference to and
for the sake of which all other things are desirable (whether
we are considering our own good or that of other people) is
an existence exempt as far as possible from pain, and as rich
as possible in enjoyment, both in point of quantity and quality;
the test of quality and the rule for measuring it against
quantity, being the preference felt by those who in their op-
portunities of experience, to which must be added their habits
of self-consciousness and self-observation, are best furnished
with the means of comparison. This being according to the
utilitarian opinion the end of human action, is necessarily also
the standard of morality/' 16

Another statement of such views is the following : "James
Mackaye, in 'The Economy of Happiness,' states that a right
act is an act of maximum utility, that act, among those at any
moment possible, whose presumption of happiness is a maxi-
mum, and that 'a wrong act is any alternative of a right act.'
The test therefore to be applied to an act is, does it produce,
happiness? If so it is a moral act." 17

As a criterion of conduct these statements are still vague.

15 Prof. Everett of Brown University in vol. 10, p. 479. International Jour-
nal of Ethics.

ie i . 28 of Mill's Utilitarianism.

"Arthur Smith in The Arena, August, 1907, p. ISO.

287



OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

Whose conception of the good and the useful has nature pre-
scribed as a measure of moral values? Is it right for a majority,,
deliberately and for its own pleasure, or good, or both, to
do injustice and inflict pain on a helpless minority? Most
people seem to think so, if we may accept the great popularity
of the dogma: "The greatest good to the greatest number,"
without limiting this test to such conduct as necessarily in-
volves social consequences as its direct result. The few, with
a more refined sense of justice, as it seems to me, decline to
give their assent to a doctrine which permits the greatest
number to do any wrong, no matter how outrageous, if only
in their own opinion the greatest number (to wit, them-
selves) deems it even momentarily to be advantageous to them-
selves, in its overweighing goodness.

Out of such speculations come conflicting ethical theories,
according to whether the emphasis is put upon the individual
good, the majority's good or the racial good. Others with a
broader vision and a more refined sense of justice, as it seems
to me, repudiate such notions of morality. "The highest
morality demands, therefore, careful judgment. The factors
to be considered are the complicated relations of men in the
society of which the judge and the actor himself is a mem-
ber ; morality may thus be identified with justice in the highest
sense of the word." 18

"Every action is right which in itself, or in the maxim on
which it proceeds is such that it can co-exist along with the
freedom of the will of each and all in action, according to a
universal law. If then my action or my condition generally
can co-exist with the freedom of every other, according to a
universal law, any one does me a wrong who hinders me in
the performance of this action, or in the maintainance of this
condition. For such a hindrance or obstruction cannot co-
exist with freedom according to universal law."

The last quotation, from Emanuel Kant's Philosophy of
Law, is but the rule of natural justice applied to the problem
of personal liberty, and justifies all conduct which, according
to Herbert Spencer's formula, is not an invasion of another's
greatest liberty, is consistent with an equality of liberty.

Even if the seeming differences thus far exhibited can be
reconciled, still others confront us. These, as it seems to me,.

'Williams' Evolutional Ethics. 445.

238



UNCERTAINTY OF THE MORAL TEST OF OBSCENITY.

result mostly from a partial view of the individual's relations
to his fellowman and the rest of the universe, and from this
defective view comes an undue emphasis upon some one aspect
or some one phase of the ethical problem. Thus the Egoist
finds the chief factor of moral obligation to be in the personal
good of each actor for himself. From the evolutional view-
point we have racial advantage emphasized most. Pres. G.
Stanley Hall states it thus: "The basis of the new biological
ethics of today and of the future is that everything is right
that makes for the welfare of the yet unborn, and all is wrong
that injures them, and to do so is the unpardonable sin the
only one that nature knows."

It may be a matter of interesting speculation to inquire
if these two seemingly divergent views are really in conflict.
The question then would be whether an individual can injure
himself without injury to his progeny and whether future
generations can possibly be injured except by first injuring
some one of the present generation? To ask these questions
already suggests the possibility that all these seemingly vary-
ing standards can be harmonized by reference to some broad
generalization of nature's moral law. Some such general
statements have already been attempted and will now be quoted
to emphasize further the inevitable and irreconcilable conflict
between the morality of religion and the results of ethical
science. Charles Lee says : "Vice represents an incomplete
response to the guidance of the law of life. * * * * Like every
other arbitrary standard, that of morality must be regarded
as the interpretation of the law of life for the guidance of the
individual man. * * * * Perfect freedom is only to be found
in absolute obedience to nature's law. All human laws are
but interpretations thereof, and according to the degree of their
imperfections the individual response to the guidance of na-
ture is fettered, and social sickness becomes more or less
acute." 19

But "the law of life" is still a vague phrase, and the law
itself but partially understood. However, it points clearly the
direction of our search for the ethical sanction. De Fleury
tries to be more specific when he says :

"The new morality is hygienic, science raising itself to the
dignity of a practical philosophy; it is therapeutics dealing

"Cosmic Ethics, pp. 143-152-203.

289



OBSCENE LITERATURE AND CONSTITUTIONAL LAW.

with the temporary weakness, or more serious paralysis of our
will, the great regulator of the human machine; disorder in
love, disorder in work, insensate anger or vain sadness; these
are the sins of enfeebled will. If the hygiene which we desire
succeeds in teaching men to live worthily, and to work well
then it in truth is a sound morality, for except loving and work-
ing, what is there of serious import here below? (p. 356) * * * *
I believe firmly that our vices develop themselves only in



Online LibraryTheodore Albert SchroederObscene literature and constitutional law; a forensic defense of freedom of the press → online text (page 28 of 43)