This past week, nearly fifty-six years after her To Kill a Mockingbird was published, Harper Lee died. The popularity and impact of the novel, and the extraordinary faithful film based upon it, will remain for some time. Many words have been written about Mockingbird and its themes, most laudatory, but some critical. More will doubtless follow.
The themes of the story are law, lawyers, coming of age, and justice.
Today we look upon our legal system and courts as a font of justice. The iconic figure of Justitia, the blindfolded goddess holding the scales sits atop and in many a courthouse in the world of Anglo-American law. But after nearly a half-century of careers in law enforcement, business, and the practice of law, I have come to realize that law is not about justice at all.
The term “law and order” is a redundancy; law is about order, stability, and a modicum of certainty. In the American system, a legacy of the 18th Century Enlightenment, it is ideally about order established for the protection of life, liberty, and property. Occasionally, what might be called justice is obtained, but it is a byproduct of the order maintained.
Law is also a product of public policy—the “felt necessities of the time, the prevalent moral and political theories…even the prejudices which judges [and juries] share with their fellow-men” not the other way around. Leftists, progressives, or whatever you want to call them, seek to impose change in prevailing public attitudes through the coercive power of the state. It does not work, and when it does appears to work for awhile, the downstream results are usually perverse. Two examples come to mind. The so-called war on drugs has ben an abject failure. It has probably caused as much drug abuse as it has curtailed, if not more. The “war” has spawned criminal organizations and, through the over-regulation of the legitimate medical use of certain pharmaceuticals, has increased the cost of health care. The “Great Society” and “War on Poverty” schemes of the late 1960s exacerbated poverty and economic distress rather than ameliorated them and produced a toxic urban subculture.
Malcolm Gladwell, a good writer with whom I generally disagree, and frequent contributor to the New Yorker wrote an article “The Courthouse Ring” criticizing the “change hearts and minds” approach of Lee’s fictional Atticus Finch. Gladwell’s premise is the legal coercive model espoused by the left, is the correct one. He is dismayed by Atticus’s defense of Tom Robinson where he challenges the credibility of his accusers. “Finch wants his white, male jurors to do the right thing. But as a good Jim Crow liberal he dare (sic) not challenge the foundations of their privilege.” Gladwell criticizes Atticus’ cross-examination of both Ewell and the alleged victim Mayella, suggesting the possibility of parental abuse by a ne’er-do-well alcoholic father.
Lawyers, as well as criminal investigators, are supposed to challenge the credibility of accusers and witnesses. Gladwell is also offended that Atticus does not erupt in righteous rage, but rather, outwardly, accepts an unjust verdict. He misunderstands Atticus’ role and his milieu. Nowhere is Teddy Roosevelt’s maxim to “speak softly but carry a big stick” more applicable than in a courtroom. An eruption of righteous indignation there is invariably counter-productive.
More to the point of this essay, Gladwell intimates that Atticus fails his final moral test in the last scene of the novel where he “and the Sheriff have decided to obstruct justice in the name of saving” Boo Radley, the reclusive neighbor, from the public exposure of an inquest into whether killing Bob Ewell was legally justified. The irony is palpable. This was one scene in Mockingbird where justice was obtained, not obstructed.
Perfect, or perhaps even substantial, justice is probably unattainable in this world. It may exist, as Isaac Newton mused, where in the remote regions of the fixed stars or perhaps far beyond them, there may be some body absolutely at rest. Here, when we obtain justice, it often, if not usually, it is through informal or even extra legal means.
Harper Lee learned this growing up in a family of lawyers— her father and older sister Alice. She illustrated it through Atticus and the story of Tom Robinson and his Ewell accusers. Atticus failed in his defense of Tom because the order and stability provided by the law prevailed over justice for one individual. When Boo Radley, the perhaps emotionally challenged recluse, killed the villain Ewell defending Scout and Jem, some balance was restored to a small corner of the universe. Atticus was conflicted by the manner of Ewell’s demise, first believing that his son Jem managed to kill the attacker, and then realized that Boo Radley was responsible. To Atticus, it seems a clear cut case of self-defense or defense of others, but, to his lawyer’s mind, that was up to the legal system to affirm the justification of the homicide. For Boo, however, who valued his reclusiveness and anonymity above all, that would not be justice. Exposing him to the public eye would, like Scout observed, be like killing a mockingbird—a useless, intrinsically cruel act.
Sheriff Tate, the lawman who deals with the dilemmas and ambiguities of human life daily and first-hand, rather than in a sterile courtroom, comes forward to serve justice. The sheriff humbly but firmly declares to Atticus, “Let the dead bury the dead… I may not be much, Mr. Finch, but I’m still sheriff of Maycomb County, and Bob Ewell fell on his knife. Good night, sir.” This denouement of the novel makes it clear that, while Atticus is no less a hero for his principled defense of Tom Robinson, the heroes who ultimately served justice were Boo Radley and Sheriff Tate.
“the felt necessities of the time…” from Oliver Wendell Holmes, Jr., The Common Law (Boston, 1881). Holmes was Chief Justice of the Massachusetts Supreme Judicial Court, and later an Associate Justice of the U. S. Supreme Court.
Malcolm Gladwell’s article in The New Yorker, August 10, 2009.
“You get justice…” William T. Gaddis, A Frolic of His Own (Poseidon Press 1994).
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