REVIEWS
| DOI | http://doi.org/10.1111/j.1468-2230.1956.tb00377.x |
| Date | 01 September 1956 |
| Published date | 01 September 1956 |
REVIEWS
OBSCENITY
AND
~rn
LAW.
By
NORMAN
ST.
JOIIN-STEVAS.
With
an
Introduction
by
SIR
ALAN
HERBERT.
[London:
Sccker
&K
Warburg.
1956.
xxii
and
289
pp.
25s.I
“THERE
is no such thing as a moral or an immoral book. Books are well
written
or
bndly written. That is all.” Mr. St. John-Stevas quota this
epigram of Oscar Wilde’s in his admirable work on
Obscenity
and
tlre
Law
to illustrate the revolt of the “nesthctes” of the late nineteenth century
against what they felt to be the restrictive prejudices and conventions of
Victorian family morality. The epigram, which sounded
so
paradoxical and
risquc! in the “naughty nineties,” will strike many readers today as merely
sententious. Yet the law, when it tries to preserve
us
from literary works
‘‘of
a
nature calculated to shock the common feelings of decency in any well
regulated mind”-instead of leaving
us
to do the job for ourselves-has not
moved one inch from
a
position taken up almost
100
years ago. Indeed, to
judge from recent criminal statistics and the spate of recent prosecutioris
against reputable publishers for alleged obscenity of works of acknowledged
literary merit, the police seem to be determined to out-do, if possible, the
Victorians.
In the circumstances this full-scale inquiry into the history and present
working of the law of obscenity-the first,
so
it would seem, in a strangely
neglected field-is greatly to be welcomed. On
a
subject fraught with
controversy Mr.
St.
John-Stevas writes with moderation. He is far from
suggesting that the whole question of obscenity has been created by a group
of
“
unenlightened Grundys and Comstocks.” “Those authors who pretend
that there is no problem,” he writes, “only bring discredit on their own
cause
.
.
.;
on the other hand those who pose the question as
a
clash between
a
group of irresponsible intellectuals, leaders of
a
minority literary coterie,
striving to impose their extravagances on the virtuous and sober-living
majority are equally wide of the mark.
.
.
.”
The obscenity prohlem does
in the last resort involve
a
conflict between the right of the creative artist
to freedom of expression, and public morality;
it
is
a
field In which the law
ought to move, if
at
all, with extreme care.
In
fact, the historical survey which
fUls
more than half of this book
makes it plain that serious literature did not begin to suffer from the inter-
vention of the law courts until towards the end of the Victorian era. By
then the law, in its anxiety to keep in check
a
veritable flood of cheap
pornographic trash, had already hardened into the rigid grooves of Lord
Campbell’s Act,
1857,
and Sir Alexander Cockburn’s judgment in the
Eicklin
case
(1868).
If we have fortunately escaped direct censorship in literature,
the author makcs it abundantly clcar that the present situation is wholly
unsatisfactory. The law
is
so
wide and
so
ill-defined that it could be
considered tolerable only if it were administered by all concerned with
invariable moderation and restraint.
As
it is the vast discretion, and
responsibility, left to the Director of Public Prosecutions, to the judges and
juries ure by no means consistently, or even predictably, exercised. Writers,
publishers and printers of serious purpose and high reputation are wide open
to the hazard of finding themselves in the dock as criminals and open to
punishment which
is
practically
at
large. Their defence is seriously
embarrassed by the fact that neither artistic and literary merit, nor
the
551
VOL.
19
552
THE
MODERN
LAW
REVIEW
intention
or
purpose of
the
author,
artist
and publisher
are
taken into
account.
hlr.
St.
John-Stevas makes
a
sharp distinction between pornography on
the one hand and real literature on the other.
He
believes that
a
formula
could be devised which would enable juries and magistrates to distinguish
between the two. There are indeed many today who feel that the law can
be justifiably invoked only to suppress straight pornography designed to
exploit financially misguided
or
frustrated sexual instincts, while literary
expression of serious purpose should be left
to
be determined by prevailing
standards of public
taste.
The pressure of public opinion towards conformity
in methods of sexual decency, exercised through literary criticism, through the
lending libraries, through monopoly institutions like the B.B.C. and in
a
variety of more subtle forms
is
almost always severe, as those will realise
who recall Charlotte Bronte’s agonised outcry when she found this passage
in one of her reviews: “If Jane
Eyfe
be
the
production of
a
woman, she
must be
a
woman unsexed.”
Clearly the law only makes itself ridiculous if
it
attempts to endorse with
legal sanctions ephemeral and passing opinions on matters of morality and
decency. Yet the huge demand for horror comics and for evidently porno-
graphic publications would seem to indicate that it is not possible
at
this
stage for the police to leave the question of obscenity studiously alone.
I
am inclined to agree with the author that the courts, rather than an
independent board of review,
are
still the best place to deal with them.
Mr.
St.
John-Stevas sets
out,
and discusses, no fewer than twelve
‘‘
anomalies
”
in English law
as
it stands
at
present, the most serious of them perhaps the
fact that evidence concerning the literary and artistic merit of
a
book is not
admissible in proceedings of this kind.
In
the circumstances the Bill on
Obscene Publications, drafted by the (private) Herbert Committee
last
year
to amend, clarify and consolidate the law
(its
text
is
here reprinted in full),
deserves most serious consideration.
In addition to his exhaustive discussion of English law,
Mr.
St.
John-
Stevas has assembled
a
great deal of material on foreign law, which will be
most useful if and when this new Bill comes before Parliament (though
unfortunately there is little indication of how
far,
in any given country,
the existing provisions of the law
are
in fact enforced).
A
whole chapter
is
given to the law and practice of the United States, where they order
this matter rather better than over here; readers will be grateful for the
lengthy quotation from Judge Learned Hand’s enlightened judgment in the
Ulysses
cas:. Another chapter offers by contrast
a
full picture of the working
of censorship in Ireland and the author arrives
at
the conclusion that:
“undoubtedly the (Censorship) Board has succeeded in kceping out of Ireland
a
great mass of pornography of
a
filthy and corrupting kind, but this has
only been achievcd
at
the price of depriving Irish readers of many of the
best works of contemporary literature.” Good literature can flourish only in
an atmosphere of freedom.
It
was Henry James
who
wrote:
“It
may be
said that
our
Eriglish system is
a
good thing for virgins and boys and
a
bad thing for the novel itself, when the novel is regarded
as..
. .
a
composition
which treats of life and helps
us
to know.”
Mr.
St. John-Stevas has written
his survey
as
a
lawyer and
a
lover of literature; what he has
to
say is
addressed to
the
public
at
large and not only to the members of his own
profcssion.
It
may be too
late
for the courts today to free themselves
of their own volition of tests and criteria of obscenity
so
long and
so
firmly established. But the English bench and bar can claim with pride
that its relations, and its links, with literature have ever becn closc, and
this powerful plea for
a
new approach will certainly not
go
unheeded.
H.
A.
HAMMELMANN.
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