Let us take some illustrations. I have a friend, a high-minded man, who has taken part in arduous and dangerous enterprises of great public importance and is almost unbelievably kind in all his private relations. This man has a wife who is a dipsomaniac, who has become imbecile, and has to be kept in an institution. She cannot divorce him because she is imbecile; he cannot divorce her because she affords him no ground for divorce. He does not consider himself morally bound to her and is therefore, from a conventional point of view, a wicked man. On the other hand a man who is perpetually drunk, who kicks his wife when she is pregnant, and begets ten imbecile children, is not generally regarded as particularly wicked. A business man who is generous to all his employees but falls in love with his stenographer is wicked; another who bullies his employees but is faithful to his wife is virtuous. This attitude is rank superstition, and it is high time that it was got rid of.
Sexual morality, freed from superstition, is a simple matter. Fraud and deceit, assault, seduction of persons under age, are proper matters for the criminal law. Relations between adults who are free agents are a private matter, and should not be interfered with either by the law or by public opinion, because no outsider can know whether they are good or bad. When children are involved the state becomes interested to the extent of seeing that they are properly educated and cared for, and it ought to insure that the father does his duty by them in the way of maintenance. But neither the state nor public opinion ought to insist on the parents living together if they are incompatible; the spectacle of parents’ quarrels is far worse for children than the separation of the parents could possibly be.
The ideal to be aimed at is not life-long monogamy enforced by legal or social penalties. The ideal to be aimed at is that all sexual intercourse should spring from the free impulse of both parties, based upon mutual inclination and nothing else. At present a woman who sells herself successively to different men is branded as a prostitute, whereas a woman who sells herself for life to one rich man whom she does not love becomes a respected society leader. The one is exactly as bad as the other. The individual should not be condemned in either case; but the institutions producing the individual’s action should be condemned equally in both cases. The cramping of love by institutions is one of the major evils of the world. Every person who allows himself to think that an adulterer must be wicked adds his stone to the prison in which the source of poetry and beauty and life is incarcerated by “priests in black gowns.”
Perhaps there is not, strictly speaking, any such thing as “scientific” ethics. It is not the province of science to decide on the ends of life. Science can show that an ethic is unscientific, in the sense that it does not minister to any desired end. Science also can show how to bring the interest of the individual into harmony with that of society. We make laws against theft, in order that theft may become contrary to self-interest. We might, on the same ground, make laws to diminish the number of imbecile children born into the world. There is no evidence that existing marriage laws, particularly where they are very strict, serve any social purpose; in this sense we may say that they are unscientific. But to proclaim the ends of life, and make men conscious of their value, is not the business of science; it is the business of the mystic, the artist, and the poet.
Modern Marriage and Ancient Laws
By Arthur Garfield Hays
Arthur Garfield Hays
is an attorney practicing in New York City. He was manager of the New York State La Follette campaign, 1924.
MODERN MARRIAGE AND ANCIENT LAWS
BY ARTHUR GARFIELD HAYS