The Task of Social Hygiene

by Havelock Ellis

It is clear that all such cases affecting morals are not only altered by circumstances, and by consideration of the psychic state of the individual, but that in regard to them different sections of the community hold widely different views. The sanctions of the criminal law to be firm and unshakeable must be capable of literal interpretation and of unfailing execution, and in that interpretation and execution be accepted as just by the whole community. But as soon as law enters the sphere of morals this becomes impossible; law loses all its certainty and all the reverence that rightly belongs to it. It no longer voices the conscience of the whole community; it tends to be merely an expression of the feelings of a small upper-class social circle; the feelings and the habits and the necessities of the mass of the population are altogether ignored. [194] Nor are such legislative incursions into the sphere of morals any more satisfactory from the point of view of the class which is responsible for them. It very soon begins to be felt that, as Hagen puts it, "the formulas of penal law are stiff and clumsy instruments which can only in the rarest instance serve to disentangle the delicate and manifoldly interwoven threads of the human soul, and decide what is just and what unjust. Formulas are adopted for simple, uncomplicated, rough everyday cases. Only in such cases do they achieve the conquest of justice over injustice."

It is true that no sharp line divides criminal acts from merely immoral acts, and the latter tend to be indirectly, even when not directly, anti-social. It would be highly convenient if we could draw a sharp distinction between major anti-social acts, which may properly be described as "crime," and justly be pursued with the full rigour of the law, and minor anti-social acts, which may be left to the varying reaction of the social environments since they cannot properly be visited by the criminal law. [195] Such a distinction exists, but it cannot be made sharply because there are a large number of intermediate anti-social acts which some sections of the community regard as major, while others regard them as minor, or even, in some cases, as not anti-social at all. The only convenient test we can apply is the strength of the social reaction—provided we are dealing with an act which is definitely anti-social, injuring recognized rights, and not merely an unusual or disgusting act. [196] When an anti-social act meets with a reaction of social indignation which is fairly universal and permanent, it may be regarded as a crime coming under the jurisdiction of the law. If opinion varies, if a considerable section of the community revolt against the punishment of the alleged anti-social act, then we are not entitled to dignify it with the appellation of "crime." This is not an altogether sure or satisfactory criterion because there are frequently times and places, especially under the stimulation of some particular occurrence evoking an outburst of increased public emotion, when a section of the community succeeds by its noisy vigour in creating the impression that it voices the universal will. But, on the whole, it works out justly. Ethical standards differ in different places at different times. They are, indeed, always changing. Therefore, in regard to all matters which belong to the sphere of what we commonly call morals, there are in every community some who approve of a given act, others who disapprove of it, yet others who regard it with indifference. In such a shifting sphere we cannot legislate with the certainty of carrying the whole community with us, nor can we properly introduce the word "crime," which ought to indicate only an action of so gravely anti-social nature that there can be no possibility of doubt about it.

It is, however, important to understand the marked national differences in the reaction to these slightly or dubiously anti-social acts, for such differences rest on ancient tradition, and are to some extent the expression of the genius of a people, though they are not the absolutely immutable product of racial constitution, and, within limits, they undergo transformation. It thus happens that acts which in some countries are pursued by the law and punished as crime, are in other countries untouched by the law, and left to the social reaction of the community. It becomes, therefore, of some importance to compare national differences in the attitude towards immorality, to find out whether the attempt to repress it directly, by law, is more effective, or less effective, than the method of leaving it to social reaction.

In many respects France and Germany present a remarkable contrast in their respective methods of dealing with immorality. The contrast has only existed since the sweeping legal reforms which followed the Revolution in France. In old France the laws against sexual and religious offences were extremely severe, involving in some cases death at the stake, and even during the eighteenth century this extreme penalty of the law was sometimes carried out. The police were active, their methods of investigation elaborate and thorough, yet the rigour of the law and the energy of the police signally failed to suppress irreligion and immorality in eighteenth-century France. The Revolution, by popularizing the opinions of the more enlightened men of the time, and by giving to the popular voice an authority it had never possessed before, remoulded the antiquated ecclesiastical laws in accordance with the ideas of the average modern man. In 1791 nearly all the ancient laws against immorality, which had proved so ineffectual, were flung away, and when in 1810 Napoleon established the great penal code which bears his name, he was careful to limit to a minimum the moral offences of which the law was empowered to take cognisances, and—acting certainly in accordance with deeply rooted instincts of the French people—he avoided any useless or dangerous interference with private life and the freedom of the individual. The penal code in France remains substantially the same to-day, while the other countries which have constructed their codes on the French model have shown similar tendencies.

In Germany, and more especially in Prussia, which now dominates German opinion, a very different tendency prevails. The German feels nothing of that sensitive jealousy with which the French seek to guard private life and the rights of the individual. He tolerates a police system which, as Fuld has pointed out, is the most military police system in the world, and he makes little complaint of the indiscriminating thoroughness, even harshness, with which it exercises its functions. "The North German," as a German lawyer puts it, "gazes with sacred respect on every State authority, and on every official, especially on executive and police functionaries; he complacently accepts police inquisition into his private life, and the regulation of his behaviour by law and police affects his impulse of freedom in a relatively slight manner. Hence the law-maker's interference with his private life seems to him a customary and not too injurious encroachment on his individuality." [197] It thus comes about that a great many acts, of for the most part unquestioned immoral character—such as incest, the procuring of women for immoral purposes, and acts of a homosexual character—which, when adults are alone concerned, the French leave to be dealt with by the social reaction, are in Germany directly dealt with by the law. These things and the like are viewed in France with fully as much detestation as in Germany, but while the German considers that that detestation is itself a reason for inflicting a legal penalty on the detested act, the Frenchman considers that to inflict a punishment upon such acts by law is an inadmissible interference of the State in private affairs, and an unnecessary interference since the social reaction is quite adequate. In Germany, Dr. Wilhelm points out, a man who allows his daughter's fiancé to stay overnight in his house with her is liable to be dragged before the police court and sent to prison for procuring immorality; [198] to a Frenchman this is a shocking and inconceivable insult to private rights. [199] So also with the German legal attitude towards sexual inversion. The German method of dragging private scandals into the glare of day and investigating them at interminable length in the law courts is a perpetual source of astonishment to Frenchmen. They point out that not only does this method defeat its own end by concentrating attention on the abnormal practices it attacks, but it adds dignity to them; a certain small section of the community justifies and upholds these practices, but while in France this section has no reason to come prominently before the public since it has no grievances demanding redress, in Germany the existence of a cause to advocate in the name of justice has produced a serious and imposing body of literature which has no parallel in France. [200] Thus, as Wilhelm points out, we find exactly opposite methods adopted in Germany and France to obtain the same ends: "In Germany, punishment on account of alleged injury to general interests; in France absence of punishment in order to avoid injury to general interests; in Germany the police baton is called for in order to ward off threatened injury, while in France it is feared that the use of the police baton will itself cause the injury."

The question naturally arises: Which method is the more effective? Wilhelm finds that these differences in national attitude towards immorality have not by any means rendered immorality more prevalent in France than in Germany; on the contrary, though extra-conjugal intercourse is in Germany almost a crime, sexual offences against children are far more prevalent than in France, while family life is at least as stable in France as in Germany, and more intimate. "The freer way of regarding sexual matters and its results in legislation have, as compared to Germany, in no respect led to more immoral conditions, while, on the other hand, it has been the reason why the vigorous agitation which we find in Germany for certain legal reforms in respect to sexuality are quite unknown."

It is forgotten, in Germany and in some other countries, sometimes even in France, that to bring immorality within reach of the arm of the law is not necessarily by any means to make the actual penalty, in the largest sense of the term, more severe. So long as he retains the good opinion of his fellows, imprisonment is no injury to a man; it has happened to some of our most distinguished and respected public men. The bad opinion of his fellows, even when the law is powerless to touch him, is often an irretrievable injury to a man. We do not fortify the social reaction, in most matters, when we attempt to give it a legal sanction; we do not even need to fortify it, for it is sometimes harsher and more severe than the law, overlooking or not knowing all the extenuating circumstances. In France, as in England, the force of social opinion, independently of the law, is exceedingly and perhaps excessively strong.

In England, however, we see an attitude towards immorality which differs alike from the French attitude and the German attitude, though it has points of contact with both. The distinctive feature of the Englishman's attitude is his spirit of extreme individualism (which distinguishes him from the German) combined with the religious nature of his moral fervour (which distinguishes him from the Frenchman), both being veiled by a shy prudery (which distinguishes him alike from the Frenchman and the German). The Englishman's reverence for the individual's rights goes beyond the Frenchman's, for in France there is a tendency to subordinate the individual to the family, and in England the interests of the individual predominate. But while in France the laws have been re-moulded to the national temperament, this has not been the case to anything like the same extent in England, where in modern times no great revolution has occurred to shake off laws which still by their antiquity, rather than by their reasonableness, retain the reverence of the people. Thus it comes about that, on the legal side the English attitude towards immorality in many respects resembles the German attitude. Yet undoubtedly the most fundamental element in the English attitude is the instinct for personal freedom, and even the religious fervour of the moral impulse has strengthened the individualistic element. [201] We see this clearly in the fact that England has even gone beyond France in rejecting the control of prostitutes. The French are striving to abolish such control, but in England where it was never extensively established it has long been abolished, leaving only a few faint traces behind. It is abhorrent to the English mind that even the most degraded specimens of humanity should be compulsorily deprived of rights over their own persons, even when it is claimed that the deprivation of such rights might be for the benefit of the community. In no country, perhaps, is the prostitute so free to parade the streets in the exercise of her profession as in England, and in no country is public opinion so intolerant of even the suspicion of a mistake by the police in the exercise of that very limited control over prostitutes which they possess. The freedom of the prostitute in England is further guaranteed by the very fervour of English religious feeling; for active interference with prostitutes involves regulation of prostitution, and that implies a national recognition of prostitution which to a very large section of the English people would be altogether repellant. Thus English love of freedom and English love of God combine to protect the prostitute. It has to be added that this result is by no means, as some have imagined, hostile to morality. It is the opinion of many foreign observers that in this matter London, for all its freedom, compares favourably with many other large cities where prostitution is severely regulated by the police and so far as possible concealed. For the police can never become the agents of any morality of the heart, and all the repression in the world can only touch the surface of life.

The English attitude, again, is characteristically seen in the method of dealing with homosexual practices and other similar sexual aberrations. Here, legally, England is closer to Germany than to modern France. No country in the world, it is often said, has preserved by tradition and even maintained by recent accretion such severe penalties against homosexual offences as England. Yet, unlike the Germans, the English do not actively prosecute in these cases and are usually content to leave the law in abeyance, so long as public order and decency are reasonably maintained. English people, like the French people, are by no means impressed by the advantages of the German system by which purely private scandals are made public scandals, to be set forth day after day in all their details before the court, and discussed excitedly by the whole population. Yet the English law in this matter is still very widely upheld. There are very many English people who think that the fact that homosexuality is disgusting to most people is a reason for punishing it with extreme severity. Yet disgust is a matter of taste, we cannot properly impart it into our laws; a disgusting person is not necessarily a criminal person, or we shall have to enact that many inmates of our hospitals and lunatic asylums be hanged. There is thus a fundamental inconsistency in the English method of dealing with immorality; it is made up of opposite views, some of them extreme in contrary directions. But by virtue of the national tendency to compromise, these conflicting tendencies work in a fairly harmonious manner. The result is that the general state of English morality—notwithstanding, and perhaps partly by reason of, its prudish anxiety to leave unpleasant matters alone—is at least as satisfactory as that of countries where much more logical and thorough methods are in favour.

In the United States we see yet another attitude towards immorality. It is, indeed, related to the English attitude, necessarily so, since the most ancient and fundamental element of it was carried over to America by the English Puritans, who cherished in the extreme form alike the English passion for individualism and the English fervour of religious idealism. These germs have been too potent for destruction even under all the new influences of American life. But they are not altogether in harmony with those influences, and the result has been that the American attitude towards immorality has sometimes looked rather like a caricature of the English method. The influx of a vast and racially confused population with the over-rapid development of urbanization which has necessarily followed, opens an immense field for idealistic individualism to attempt reforms. But this individualism has not been held in check by the English spirit of compromise, which is not a part of Puritanism, and it has thus tended alike to excess and to impotence. This result is brought about partly by facilities for individualistic legislation not voicing the tendencies of the whole population, and therefore fatally condemned to sterility, and partly by the fact that in a new and rapidly developed civilization it is impossible to secure an army of functionaries who may be trusted to deal with the regulation of delicate and complex moral questions in regard to which the community is not really agreed. The American police are generally admitted to be open with special frequency to the charge of ineffectiveness and venality. It is not so often realized that these defects are fostered by the impossible nature of the tasks which are imposed on the American police.