L A W Y E R S I N L I T E R A T U R E“…Twain’s <strong>of</strong>t-expressed opinion that human law — in its substance and in itsexecution — does not always conform to moral notions <strong>of</strong> true, absolute justice.”Often, when the justice system fails inTwain’s fiction it is because the weight <strong>of</strong>emotional public opinion outweighs thecalm, rational search for truth. A democraticsociety prides itself — and, <strong>of</strong>ten,correctly so — on being ruled by theexpressed will <strong>of</strong> the majority. In its positivelight, this protects the public fromtyranny by a powerful minority bent onexerting unjust influence. It ensures that"the many" rather than merely "the few"have a say in public affairs.Yet, Twain warns that the legal systemcan be tyrannized by the majority aswell. Indeed, in many <strong>of</strong> Twain’s works,"the public" or "the townspeople" seemto be characters in their own right whoexert great influence over the legal systemand <strong>of</strong>ten urge it toward ignobleconclusions. For justice to triumph,Twain suggests that the power <strong>of</strong> thenameless, faceless "crowd" be limitedlest it overpower a legal system that can<strong>of</strong>ten only perform justly when it resistspopular pressure. This is not to suggestthat the majority is always wrong or villainous.However, the worst <strong>of</strong> Twain’soutcomes <strong>of</strong>ten occur when the majorityis not resisted by the guardians <strong>of</strong> justicebecause those very guardians desire towin approval more than they desire todo justice.In a more blatant critique, Twainalso urges vigilance against legal actors— particularly judges — who are influencedby direct financial or personalinterest in the outcome <strong>of</strong> their cases.This undercurrent in many <strong>of</strong> Twain’stales parallels much <strong>of</strong> the self-interesthe observed in his real-life observations<strong>of</strong> the legal system. Twain provides nosuggestions as to how this problem is tobe avoided. However, he alerts his readersto the dangers <strong>of</strong> a justice systemadministered by those whose vision maybe clouded by self-interest. Twainunderstood, all too well, that those in thepositions <strong>of</strong> authority are <strong>of</strong>ten thosesubject to the most serious temptations.These temptations — for money, influence,praise, or position — can overpowerwhat might be an underlying desire todo good. These temptations troubledTwain and are a strong caution formodern times.Twain’s fiction also warns againstlegal systems based entirely on law withno provision for equity. Often, Twain’scharacters — particularly his judges —pursue unjust results because the lawsthemselves leave no possibility for anequitable remedy. Judges are not giventhe power to protect children, to fashiona novel remedy, or to prevent unjustconduct from occurring. This puts legalactors in the position <strong>of</strong> either followingthe law honestly or pursuing justice dishonestlythrough the exercise <strong>of</strong> understandablebut unsanctioned equity. Theformer is a detriment to justice; the latteran affront to the legal system.However, lack <strong>of</strong> equitable remedies liesbehind much <strong>of</strong> the injustice Twain portraysand demonstrates how a legal systemdevoid <strong>of</strong> equity is virtually pre-programmedeither for injustice or evasion<strong>of</strong> legal rules.Relatedly, Twain’s legal characters— and the consequences <strong>of</strong> their actions— make a strong case for the value <strong>of</strong>discretion in sentencing those whoadmittedly break the law. All too <strong>of</strong>ten,Twain confronts his readers with circumstancesin which there is an admittedor proven violation. However, theprescribed punishment is <strong>of</strong>ten so gravethat no fair outcome is possible. To findthe honest verdict <strong>of</strong> "guilty" would leadto a penalty that far exceeds the seriousness<strong>of</strong> the crime. Yet, to administer afair penalty would require dishonesty inthe pronouncement <strong>of</strong> guilt. Facedwith two unattractive options, theparticipants in the legal system mustchoose between justice and legality,because there is no honest, open, oreffective way to pursue both and balancejustice with mercy.Finally, and most passionately,Twain’s characters and their actionsplead with readers to consider the objectivejustice <strong>of</strong> the substantive law thatjudges and lawyers are asked to serve.Regardless <strong>of</strong> whether the legal processis sound or flawed, judges and lawyersare incapable <strong>of</strong> both following legalrules and achieving just results if theunderlying legal rules are not just.Judges and lawyers are charged withimplementing laws. To the extent thatthose laws are just, there is no conflictbetween the pursuit <strong>of</strong> the law and thepursuit <strong>of</strong> justice. However, a law that isunjust, immoral or unwise places lawyersand judges in the unenviable position <strong>of</strong>irreconcilable conflict. This realityshould challenge all those who careabout the way in which the legal systemadvances or threatens justice to careeven more about the morality <strong>of</strong> theunderlying laws that they ask theirjudges and lawyers to administer.Mark Twain lived through andduring an era plagued by laws thatrequired or openly condoned injustice.Alas, the same criticism can be made <strong>of</strong>nearly every time and place. Because thelaw is the most human <strong>of</strong> institutions, itis all too <strong>of</strong>ten tainted by the mosthuman <strong>of</strong> flaws. Twain’s writings should,if anything, inspire his readers to examinethe rules under which their legalregimes labor, and to be vigilant inensuring that there is nothing in themthat could make the pursuit <strong>of</strong> law andthe pursuit <strong>of</strong> justice conflicting goals.In Twain’s The Gilded Age, an innocent,well-meaning character, Philip,remarked that "neither he nor anycitizen had a right to consult his ownfeelings or conscience in a case where alaw <strong>of</strong> the land had been violated beforehis own eyes." Yet, Twain’s true messageis the complete opposite <strong>of</strong> Philip’sreasoning. His fiction warns that indeed,it is only in consulting the consciencethat the morality <strong>of</strong> law can bestbe ascertained.26<strong>CUA</strong>LAWYER /<strong>Winter</strong> <strong>2004</strong>
M Y T A K EThe Moral Flawin the Pro-Choice PositionEditor’s Note: It remains one <strong>of</strong> the most unsettled issues the Supreme Court has ever decided. Thirty years after Roe v. Wade legalizedabortion in America, the country remains deeply and bitterly split over the ruling. Two things appear likely: The issue will not go away,nor will Americans ever reach full consensus about it. In this essay, published here for the first time and expressing his own opinions,<strong>CUA</strong> law pr<strong>of</strong>essor Raymond Marcin says the high court missed something important in its reasoning.by Raymond B. MarcinPr<strong>of</strong>essor <strong>of</strong> <strong>Law</strong>The Catholic University <strong>of</strong> AmericaPro-choice arguments are <strong>of</strong>ten made from several different vantagepoints. Some pro-choice advocates openly and unapologeticallyargue that they themselves favor the pro-choice position, and theydefend it absolutely and straightforwardly. Others, perhaps most <strong>of</strong> those wh<strong>of</strong>avor the pro-choice position, admit that the choice to abort the developing life<strong>of</strong> a fetus is always or almost always a tragic choice, but they argue that thechoice can be justified morally. Still others adorn themselves with the nowfamiliarmantra, “I’m personally opposed to abortion, but I don’t feel I have theright to impose that moral view on those whomight have a different moral perspective onthe issue.” These last will sometimes suggestthat they are pro-life and not prochoicein their positions because <strong>of</strong>their personal opposition, but in terms<strong>of</strong> advocacy, they usually take thepro-choice stance. Many Catholics,wishing to avoid running afoul <strong>of</strong> thedoctrines <strong>of</strong> their Church, but at thesame time wishing to ingratiatethemselves with the politics <strong>of</strong> theday, have adopted this last position.The “I’m personally opposed toabortion, but…” viewpoint sometimesevokes a partially tongue-in-cheekresponse from some pro-life advocates that goessomething like this: “I understand your point. I’mpersonally opposed to killing abortionists, but Idon’t feel I have the right to impose that moralview on those who might have a different moralperspective on the issue.” The response isdesigned to bring the person holding the “I’m personallyopposed, but…” position to a realizationthat abortion does indeed involve the taking <strong>of</strong> alife, and that one cannot, or at least ought not, sit onan ethical fence when the taking <strong>of</strong> a life is<strong>Winter</strong> <strong>2004</strong> / C UALAWYER 27
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