Law and the River
Professions are in important respects alike. Mark Twain, perhaps the most American of all authors, relished his experience in becoming a professional riverboat pilot and left us a luminous account of that experience in Life on the Mississippi. He reported that men (they were then all males) sought to be pilots at least partly to satisfy an appetite for power. He described his own attraction thus:
My father was a justice of peace and I supposed that
he had power of life and death over all men, and could hang anybody that
offended him. That was distinction enough for me as a general thing, but the
desire to be a pilot kept intruding nevertheless....[I]n truth, every man or
woman has a master ... but in the day I write of, Mississippi pilots had
none. A pilot's movements were
entirely free, he consulted no one, he received comments from nobody ... So here was the novelty of ... an absolute monarch who was absolute in sober truth and not by a fiction of words.
Twain mastered the language of piloting as had those who had one before, much as those who study law or medicine master thousands of new words or new meanings of old words, and thereby acquired status and security similar to that of Twain's learned pilots. He grew to understand that the status-conferring jargon reflected realities of the pilots' special work and professional skill. Behind the mystifying terms were genuine complexities and shared premises facilitating professional work. Beneath the tinsel power of language was real power derived from mastery of a difficult and important task.
Thus, Twain was quick to discover the daunting challenge of steering a boat from New Orleans to Saint Louis. There was not in Twain's time a single buoy on the 1200-mile route. Going upstream, the pilot on schedule had to steer for the slack water, staying close first to one bank and then the other, according to the pattern of flow of the river. To find the slack water, the pilot needed to know of a hundred landmarks for each of the 1200 miles of the journey. Every point, stump, limb, ridge, rock, or snag had navigational use. Going downstream, the pilot sought the fast water, using the same navigational aids but in a quite different way. Going upstream at night, as they often did, it was necessary to recognize the landmarks in the dark. For safety, it was necessary to know the depth of the river in all places. To some extent, it is possible to read the surface of the water; a knowledgeable pilot can detect a submerged reef from the appearance of the water above, but an unskilled pilot can readily mistake a "wind reef" which is false for a "bluff reef" which is real. Reading the water was assisted by accurate memory of the depth at each place when last measured by the pilot's leadsmen who constantly monitored the amount of water under the bow and under the stern of the boat. Reading was also assisted by the feel of the helm, for, as Twain tells us, steamboats do not like shoal water. Those best understanding these phenomena earned their authority, and thus the status and power accompanying their rank.
Twain observed, however, that the taste for status and power was not always fully satisfied by the attainment of rank as master pilot. It seemed to continue, and to influence relations amongst members of the profession, and especially between master pilots and the cubs whom they trained. His own mentor, Horace Bixby, could be described as a crude, even abrutal, practitioner of the Socratic method of teaching cubs. He asked Twain a lot of questions. And in conformity with the practice of legendary law teachers, he commented forcefully when Twain's responses were inadequate. When Twain missed his first question, Bixby cruelly denounced him as "the stupidest dunderhead I ever saw or heard of." On another occasion, Bixby summed up his appraisal of Twain: "taking you by and large, you do seem to be more kinds of an ass than any creature I ever saw before." If Bixby used the carrot of praise, we are not told. Only later did Twain find that there was a bond of shared purpose between master and cub, for Bixby's irritability concealed high hopes for Twain. Contemporary novices in law face a task bearing some resemblance to that faced by the cub pilot. They often react to the task much as Twain did. Faced with so much technical data and prodded by a demanding mentor, Twain sought, as do many law students, to master his work by brute memory. But, like professional students in many fields, he came soon to realize the impossibility of that technique.
All the bits of technical data and skill of the pilots, like that of lawyers, was subject to constant change. The water ebbs and rises; a course that can be followed when the water is at one elevation is perilous when the water is lower; for the knowing pilot, high water makes a short trip. Also, erosion was then a very rapid process; points, reefs, snags, and channels moved from one week to the next, like laws repealed or decisions distinguished. Because of the rapid change in the shape and depth of the river, it was necessary to persist in studying it. Good pilots were perpetual students of the river. Hence, the bigger steamboats often carried supernumerary unpaid pilots whose own boats were being refitted or repaired, or who were perhaps unemployed. These pilots were traveling "to look at the river," to enlarge and refresh their knowledge of transient marks and channels.
But furthermore, Twain soon came to recognize that even perfect knowledge of all the marks and channels would not make him a good pilot. The technical knowledge and skill drilled into him by Bixby was not the durable substance he received. Twain tells us that what he really learned from Bixby were not marks and channels, but judgment and courage -- judgment in the evaluation of the technical knowledge at his command and courage to exercise that judgment despite the ubiquitous risk of professional error. Bixby taught clear-eyed realism and mastery of self-doubt. He taught these traits in part by putting Twain in stressful situations, chiding him when he overconfidently exceeded his competence or timidly failed to exercise it. But Twain acknowledged the limits of professional teaching --Bixby could not expect to confer upon any cub the soul of a riverboat pilot who lacked the requisite impulses. In the same way that a detailed knowledge of the river is insufficient to make a good pilot, a detailed knowledge of statutes and legal decisions is insufficient to make a good lawyer; knowledge must be accompanied by judgment.
The medium of
lawyers is, of course, words not water, and the forces that influence
their meanings are social and political, not natural. Even less than the
river is law subject to precise measurements and certain predictions. Law
is a craft, or perhaps an art or even a faith, but seldom in any
useful sense a
science. Intuition is a critical element of sound professional legal judgment. Yet all who use intuition need to know its limits. Lawyers must be especially distrustful of themselves, on guard against the risk of mistaking their own political or social preferences or those of their clients for those embodied in legal texts. For lawyers, as for pilots, the balance to judgment is courage, intellectual courage, the courage to
risk error when the odds are right. Without that form of courage,
professional judgment is neutralized by timidity. Fortunately for lawyers, the stakes with which they gamble are materially less than those riding on the judgment of riverboat pilots, upon whose judgment depended the lives of all on board. But the stakes are significant, and include not only the welfare of clients, but also the usual hazards of competitive activities -- the risks of humbling defeat and the exposure
to public view of one's limitations.
Bixby, like other mentors of apprentices, also aught by example. Far more than any classroom teacher, he was a professional role model. On one occasion, a nighttime passage of the dangerous Hat Island Crossing, he provided a gaudy example of professional courage. The big boat and her pilot house were full of supernumerary pilots, many of whom were booked to leave Cairo the next morning. On their account, and in their presence, Bixby made the crossing at full downstream speed without a ray of light, gliding by instinct through two narrow sand bar channels, in order to make a sharp turn through a third and shallow channel. Twain was greatly moved by the event, saying:
Fully to realize the marvelous precision required in laying the great steamer on her marks in that murky waste of water, one should know that not only must she pick her way through snags and blind reefs and then shave the island so closely as to brush the overhanging foliage with her stern, but at one place she must pass almost within an arm's reach of a sunken and invisible wreck that would snatch the hull timbers from under her if she should strike it, and destroy a quarter of a million dollars' worth of steamboat and cargo in five minutes and maybe a hundred and fifty lives into the bargain. As the boat entered the third channel, her keel rasped against the sand and for a moment hung on the apex of disaster. When she went over the bar and into calm, deep water, a great cheer loosened the roof of the pilot house. And, as Twain reported it, "The last remark I heard that night was a compliment to Mr. Bixby, uttered in soliloquy and with unction by one of our guest pilots. He said "By the Shadow of Death, but he's a lightning pilot."
"Lightning lawyers" may sometimes employ comparable courage in the exercise of professional judgment. Yet Twain's account suggests an inescapable tension: was Bixby justified in risking the lives of passengers to get some of them to Cairo on time? To presume to make such decisions is at once an arrogation and an indispensable service to those in no position to evaluate the hazards for themselves. Driven by the urge to impress his co-professionals, Bixby seems for the moment to have forgotten his primary responsibility for the safety of his boat, passengers, and cargo. Similar temptations confront lawyers.
To become adept in such intricate professional work, Twain observed, effects a change in the values of the worker. Indeed, professional skills alter our capacity to perceive events and relations by substituting a new lens through which they are observed. For Twain, the change was noticed in his ability to appreciate the river for what it is to lay persons. "I had lost something," he complained, "that could never be restored to me while I lived. All the grace, the beauty, the poetry, had gone out of the majestic river." Twain could remember appreciating a beautiful sunset on the river, but after his training, he could no longer enjoy rapture, but would comment on a sunset thus:
This sun means that we are going to have wind tomorrow; that floating log means that the river is rising, small thanks to it; that slanting mark on the water refers to a bluff reef which is going to kill somebody's steamboat one of these nights, if it keeps on stretching out like that; those tumbling boils show a dissolving bar and a changing channel there; the lines and circles on the slick water over yonder are a warning that troublesome place is shoaling up dangerously; that silver streak in the shadow of the forest is the break of a new snag, and he has located himself in the very place he could have found to fish for steamboats; that tall dead tree, with a single living branch, is not going to last long, and then how is a body going to get through this blind place at night without the friendly old landmark? No, the romance and beauty were all gone from the river. All the value any feature of it had for me now was the amount of usefulness it could furnish toward compassing the safe piloting of a steamboat.
Since those days, I have pitied doctors from my heart. What does the lovely flush of a beauty's cheek mean to a doctor but the break that ripples above some deadly disease? Are not all her visible charms sown thick with what are to him signs and symbols of hidden decay? Does he ever see her beauty at all, or doesn't he simply view her professionally, and comment on her unwholesome condition all to himself? And doesn't he sometimes wonder whether he has gained most or lost most by learning his trade?
Twain overbears this point, valid though it is for other forms of professional work. Most who perform such work succeed in creating a divide between personal and professional activities and bring different values to the separate spheres of their lives. By this means, most of the doctors whom Twain pities do seem to manage sex lives that are not unduly burdened with their professional perceptions of blemishes on their partners. But few such divides are impervious, and just as personal preferences may distort professional judgment, professional values can influence private attitudes and relations.
Moreover, it is plain that Twain's romance with the river had not been destroyed by his professionalism. It had been transformed, and perhaps even elevated to a new level of appreciation. The river had become part of his life in a way that could never happen to a mere idolater of sunsets. He had come to see himself as part of the great river, deriving from it an important part of his self-regard. If this were not evident from his accounts, Twain is at last explicit when he observed another essential characteristic of good pilots, of those pilots who are most intense in reading the river, who travel when they are not working in order to maintain their knowledge and their skill, who have honed their intuitive judgment so that they sense what lies beneath the surface of the river, who have developed the self-confidence to use that judgment for the safety and convenience of passengers. Such pilots, Twain believed, were romantics: they had fallen in love with the everlasting mystery of that great flow of mud. "Your true pilot," he said, "cares nothing about anything on earth but the river, and his pride in his occupation surpasses the pride of kings."
Few American lawyers are more proud than kings. True,Tocqueville, writing in 1835, compared them to European aristocrats in a passage often cherished by lawyers. Tocqueville had in mind not the social status of lawyers, but their political role; he correctly saw them as the bulwark protecting citizens of the republic from abuse by those they select to exercise the powers of office. Collectively, lawyers supply the structure holding the republic together. The rightful pride of lawyers is therefore not that of royalty, but of anti-royalists. It is this political dimension of American law that makes it uniquely complex and such a source of infatuating and everlasting wonder. Lawyers are not notably less conscious of status or less greedy than Twain's pilots. Many fail to honor their calling. But many find moral redemption in the public mission they share, a public mission not wholly unlike that of steering crowded boats past unstable riverbanks and through moving shoals.