VIRTUE ETHICS, LAWYERS AND HARPER LEE’S TO KILL A MOCKINGBIRD
Tim Dare University of Auckland, New Zealand
Atticus Finch, the lawyer-hero of Harper Lee’s To Kill a Mockin^ird, played by Gregory Peck in the classic 1962 film version, has been adopted as an exemplar by advocates of a virtue ethics approach to legal ethics. When Atticus condones a departure from the rules of law in order to spare Boo Radley a trial, these theorists argue, he displays practical wisdom, or phronesis, and shows that the good lawyer gives priority to judgement and character over rules and principles. Yet Atticus can be understood in a quite different way as a tragicfigurewho, when faced with the possibility of a tragedy in Boo’s case, abandons the commitment to law which earlier was a central part of his character. From this perspective, Atticus’ lesson for legal ethics is not about the priority of judgement and character, but instead about tke value of the rules and principles he abandons. •
LAWYERS AND VIRTUE ETHICS awyers are widely thought to be callous, self-serving, devious, and indifferent to justice, truth, and the public good. The profession could do with a hero, and some think that Atticus Finch of Harper Lee’s To Kill a Mockingbird (1960) fits the bill. Claudia Carter, for instance, urges lawyers to adopt Atticus as a role model: “I had many heroes when growing up . . . . Only one remains very much ‘alive’ for me . . . . Atticus made me believe in lawyer-heroes” (1988: 13).
Aristotles View On Ethics And Virtue Aristotle believes that human beings have three parts to their psychologies, what he calls three souls: the vegetative soul (that unconscious part that takes care of autonomic functions such as digestion and circulation), the animal soul (that conscious part that feels emotions, desires, and appetites) the rational soul (that part that thinks, evaluates, ...
Not everyone endorses Atticus’ nomination as a role model. Most influential, Monroe Freedman argues that Atticus was hardly a man to be admired since, as a state legislator and community leader in a segregated society, he lived “his own life as the passive participant in that pervasive injustice” (1992: 20).
Although there is plainly disagreement between Freedman and his critics, there is also an important point of consensus. Both sides to the
JOURNAL OF INTERDISCIPLINARY STUDIES
debate accept that Atticus’ character settles his suitability as a role model. Freedman objects that Attictis should not be a role model, since he is not the admirable figure he is made out to be: Atticus does not take on Robinson’s defence willingly, but only when appointed by the court. Atticus admits that he had hoped “to get through life without a case of this kind” (Lee 1960: 98).
He excuses the leader of a lynch mob as “basically a good man” who “just has his blind spots along with the rest of us” (Lee 1960: 173).
Atticus sees that “one of these days we’re going to pay the bill” for racism, but hopes that payment, and so justice for blacks, will not come during his children’s life times (Lee 1960: 243-44).
Freedman argues, then, that Atticus’ character makes him unsuitable as a role model. On the other hand, a leading Atticus supporter, Thomas Shaffer, maintains that Atticus shows us precisely that what matters in professional ethics is character rather than moral principle: One thing you could say about Atticus is that he had character . . . . We say that a good person has character, but we do not mean to say only that he believes in discernible moral principles and, under those principles, makes good decisions. We mean also to say something about who he is and to relate who he is to his good decisions. When discussion proceeds in this way, principles need not even be explicit. We can say, “How would Atticus see this situation?” or “What would Atticus do?” rather than, “What principles apply?” (1987: 5).
So understood, the debate about Atticus connects with the recent resurrection of virtue ethics, and with concomitant suggestions that a virtue or character-based ethics might provide a particularly promising approach to professional ethics in general and to legal ethics in particular. However, this appeal to Atticus is misplaced. Although Atticus can teach us important lessons for legal ethics, they are not about the priority of virtue or character. Neither side to the debate has Atticus quite right. Sorting out what it is about him which makes him an appropriate or inappropriate role model for lawyers may both enrich one’s appreciation of a fine novel and further understanding of what it is to be an ethical lawyer. More generally, it suggests that virtue ethics has little to offer toward an understanding of the moral responsibility of lawyers. TO KILL A MOCKINGBIRD To Kill a Mockingbird is the story of the trial of a black man, Tom Robinson, for the rape of a white woman, Mayella Ewell, in segregationist
Fathers are important role models who raise and nurture their children with much love. A good father is a man who protects and provides for his children, who disciplines his children, and who tries to bring them up to know the difference between good and bad. Fathers should be there for their children in all times of need, to help and comfort them.1 According to Nicky Marone, the author of How To ...
TO KILL A MOCKINGBIRD
Alabama in the 1930s. Appointed to defend Robinson, Atticus Finch takes the task seriously, drawing upon himself and his children the slurs and taunts of neighbors. At trial, he proves that Robinson could not have raped Mayella, showing her attacker to have been left-handed with two good arms, whereas Robinson had lost the use of his left arm in a cotton gin accident. The plain implication of the evidence is that Mayella’s father. Bob Ewell, beat her after seeing her with her arm around Robinson’s waist. Yet Robinson is convicted nonetheless. The verdict does not surprise Atticus. Racism, “Maycomb’s usual disease,” has made it a forgone conclusion (Lee 1960: 98).
But Atticus is not led to compromise the zealous pursuit of Tom’s interests. Indeed, he tells his children that “you display real courage when you know you’re licked before you begin anyway and you see it through no matter what. You rarely win, but sometimes you do” (Lee 1960: 122).
Atticus’ principal act of courage is standing up for Tom, against the prejudices of his community, though he knows it will in the end come to nothing. After the trial verdict, Atticus tells Tom that they will have a good chance on appeal, but Tom refuses to be comforted: “Good-bye, Mr. Finch,” he responds, “there ain’t nothing you can do now, so there ain’t no use tryin” (Lee 1960: 258).
... Atticus is the definition of courage. The man who is ostracized by Maycomb, the man who lives in mysterious seclusion- all words describing Boo ... 50. Shooting Tim Johnson proves to the children Atticus is anything but feeble, he is ... theme of courage In 1960, Harper Lees To Kill a Mockingbird was published. It ... cheap popularity. In the novel, Atticus takes on the Tom Robinson case. When asked about ...
Sure enough, shortly afterward Tom is killed, shot 17 times while trying to climb a prison fence in full view of guards. Atticus describes the event as showing that Tom was “tired of white men’s chance and preferred to take one of his own” (Lee 1960: 260), though it reads as easily as suicide, and some commentators assume it was murder. Freedman treats the episode as showing Atticus’ naivete: “You can believe this improbable story [that Tom was broke into a blind, raving charge in a hopeless attempt to climb over the fence and escape], as Finch purports to. But I believe (and Harper Lee appears to believe) that Tom was goaded into a desperate, futile run for the fence on threat of being shot where he stood” (1994: 478).
Tom’s death completes one story in Mockingbird: an innocent black man was falsely accused, wrongfully convicted, and killed. “Tom’s story” occurs in the middle parts of the novel, flanked by another focusing on Finch’s mysterious neighbor, Arthur “Boo” Radley. Neither of the Finch children have ever seen Boo. He was kept a recltise inside his family’s home for some twenty-five years, unseen since stabbing his father with a pair of scissors about fifteen years into this period of isolation. The children regard him as a bogeyman, and play what seem to them dangerous games of
JOURNAL OF INTERDISCIPUNARY STUDIES
brinkmanship with him. The reader sees that Boo is not as the children perceive him; rather, he is a gentle person: he leaves gifts for the children, he wraps a blanket around Scout as she watches a fire in the cold, he attempts to mend the trousers Jem has torn and abandoned in flight from a raid into the Radley property. Tom and Boo’s stories come together at the end of the novel. Walking home from a school pageant, the Finch children are attacked by Bob Ewell. Scout is saved by her pageant costume. Jem is knocked unconscious and has his arm badly broken. They are saved by a mysterious rescuer who turns out to be Boo Radley. Boo kills Bob Ewell. In what will be an important moment for this account of the novel, Atticus ultimately decides to go along with the Sheriffs recommendation that they do not charge Boo over Ewell’s death. Instead, Atticus and the Sheriff adopt the fiction that Ewell fell on his knife. Each story is a vehicle for the moral fable that runs through Mockingbird. In the simplest terms still, this is a fable of innocence confronting evil and learning from the experience. Scout the narrator personifies the theme. Her childish innocence is a crucial aspect of her narration.
When The Legends Die Hal Borland SETTINGS The story begins in Piedra Town, Arboles, on the Southern Ute reservation, in Southwestern Colorado. When Tom, the protagonist, turns five, his parents take him to Horse Mountain. After his parents pass away when he is still young, he is taken back to Piedra Town against his wishes and forced to attend school. He manages to run away to Horse Mountain in ...
The senselessness of racism and class divisions that rend Maycomb is highlighted by her genuine lack of comprehension, just as her inability to comprehend Tom’s conviction makes explicit the senselessness of justice destroyed by prejudice. The innocent narrator finds all these things mysterious, and through her eyes readers, too, are invited to cast aside any jaundice or resignation that may dull the impact of what is after all a tragically familiar story. Scout’s innocence wanes during the course of the novel, but it gives way to informed goodness rather than prejudice, a transformation most evident in her attitude toward Boo. At the beginning of the story, she regards him as an outsider and misfit, legitimately tormented and feared. The novel closes with her taking his hand to lead him home, and seeing that things look the same from the Radley porch as they do from her own. Much of the credit for Scout’s moral development is owed to Atticus. He Is a loving, patient, and understanding father who guides his children to virtue while respecting them as individuals capable of judgement and decision. He teaches them compassion and tolerance, frequently advising Scout to “step into the shoes” of others like the Ewells and Boo Radley. Atticus treats everyone with respect, regardless of class or color. He is
TO KILL A MOCKINGBIRD
courageous, both in zealously pursuing Tom’s defence while knowing that it will not succeed, and in arming himself only with a newspaper though anticipating a confrontation with a lynch mob. In sum, Atticus’ is a voice of decency, wisdom, and reason, courageously speaking out against bigotry, ignorance, and prejudice. THREE GREAT MOMENTS FOR LEGAL ETHICS There are three moments in Mockingbird of particular lawyers and legal ethics. The first is Atticus’ summation to often hears, he remarks, that all men are created equal. struals, the assertion is simply ridiculous: as a matter of fact, born equally smart or equally wealthy. But, says Atticus: significance for the jury. One On some conpeople are not
Maycomb County, a fictional area in Alabama, is just like any other city in the United States. This county has many people who go on the side of codes not on the side of the law. To Kill a Mockingbird, was written by Harper Lee. In today’s society, people make up codes just to make life easier for them and not to get into fights with anyone. In this book, the Ewells kid does not go to school more ...
There is one way in this country in which all men are created equalthere is one human institution that makes a pauper the equal of a Rockefeller, the stupid man the equal of an Einstein and the ignorant man the equal of any college president. That institution, gentlemen, is a court . . . . Our courts have their faults, as does any human institution, but in this country our courts are the great levelers, and in our courts all men are created equal (Lee 1960: 227).
This is as plain a statement of the role of courts as one could hope for: Whatever inequalities people suffer outside the court, within it they are to be treated as equals. The second moment occurs after Tom’s death. Mr. Underwood, the editor of the local newspaper, has published a courageotis editorial condemning the death as sinful and senseless, likening it to the “slaughter of songbirds” (Lee 1960: 265).
Initially, Scout is puzzled by the editorial: How could Tom’s death be sinful when he had been granted due process of law and vigorously defended in an open court, but, then, she continues: “Mr. Underwood’s meaning became clear: Atticus had used every tool available to free men to save Tom Robinson, but in the secret courts of men’s hearts Atticus had no case. Tom was a dead man the minute Mayella Ewell opened her mouth and screamed” (Lee 1960: 266).
Again, the meaning of the passage seems clear: Tom was convicted, despite the evidence, because he had not been tried in a court of law at all. His trial was conducted “in the secret courts of men’s hearts,” courts governed, in Maycomb at least, not by presumptions of equality and innocence, but by prejudices and bigotry. Atticus’ plea to the jury, to ensure that Tom was tried in the public courts
JOURNAL OF INTERDISCIPLINARY STUDIES
of law, was ignored, and Tom was convicted and killed as a result. Extraordinarily, this key passage was omitted from Horton Footes’ screenplay of Mockingbird and, hence, from the classic 1962 movie based on the novel. In his summation, Atticus makes clear his commitment to the ideal of a rule of law, understood precisely as rule by public standards rather than by the private wishes and inclinations of individuals. Scout’s explication of Mr. Underwood’s editorial further emphasizes that commitment. An innocent man died because a jury chose to try him secretly by their own standards rather than by those of the public system of law. Thus far, then, the message of Mockingbird to lawyers seems to be that they should fight for, and maintain, commitment to the rule of law rather than to the rule of individuals. They should honor and protect the public judgements of courts in preference to, and from, the private judgements of individuals. The third moment occurs in its last few pages, when Tom and Boo’s stories come together. Bob Ewell attacked Atticus’ children as they walked home through the woods after dark. Boo Radley comes to their rescue, and Bob Ewell is killed. Initially, all that is clear is that the children were attacked, and that tbeir attacker lies dead, “a kitchen knife stuck up under his ribs” (Lee 1960: 294).
Boo Radley and Tom Robinson Both Boo Radley and Tom Robinson were outcasts to the society of Maycomb. Boo was locked away in his house, where Tom was a black man. Racism was very bad in the 1930 s. No one wanted to be a black man s friend and if someone said he had done something wrong, he had obviously done something wrong. Like in Tom s case. Tom had been framed for rape, which he didn t do. Tom ...
Atticus thinks that Jem killed Hwell, wresting the knife away during the attack, and he takes it for granted that Jem will go before a court, though he will be acquitted, since “it was clear cut self defence” (Lee 1960: 300).
Sheriff Tate interrupts, telling Atticus that Jem did not stab Ewell; that he fell on his own knife. Atticus assumes Tate is trying to hush up what happened to protect Jem, and refuses to go along with the subterfuge. But soon Atticus realizes that it is Boo, not Jem, that the Sheriff is trying to protect. It would, Tate maintains, be a sin to bring Boo, “and his shy ways,” before a court. Atticus sits, looking at the floor for a long time before finally raising his head and saying to Scout: “Mr. Ewell fell on his knife. Can you possibly understand?” Scout’s response demonstrates that she understands perfectly well: there has been a decision to adopt a fiction. “Yes sir,” she says, “I understand . . . . Mr. Tate was right . . . . Well, it’d be sort of like shootin’ a mockingbird, wouldn’t it?” (Lee 1960: 304).
These three episodes pose an obvious challenge. In the first two, we have a clear message in favor of the rule of law, put quite specifically as a warning about the danger of deciding upon guilt or innocence in the “secret courts of men’s hearts” rather than by the public processes of the courts of
TO KILL A MOCKINGBIRD
law. But this seems to be exactly what Atticus countenances in the final episode. Atticus and the Sheriff decided that Boo should be spared a trial. They tried him in the secret courts of their own hearts, and declared him “not guilty,” and Scout endorses their decision: to try Boo would be like shooting a mockingbird. What was a wicked thing in Tom’s case is a good thing in Boo’s case. MOCKINGBIRD AND THE RETURN TO VIRTUE The apparent ethical contradiction has not gone unnoticed, and some commentators have been mildly critical. Shaffer describes Atticus’ decision to go along with the Sheriffs account of Ewell’s death as a mistake, albeit one which does not diminish his character (1981: 196).
For the most part, however, commentators, including Shaffer, applaud both Atticus’ stance in his summation and his decision to spare Boo. Indeed, the apparent inconsistency in Atticus* responses in the two episodes is taken to show his praiseworthy character and his laudable attitude toward the law. “Despite Atticus’s respect for the law,” writes Claudia Johnson, “he believes that reason must prevail when law violates reason . . . . In the case of Boo Radley’s killing of Bob Ewell, law is proven inadequate, because on occasion reason dictates that laws and boundaries must be overridden for justice to be done. Circumstances must override honor; a human being’s needs must supersede principle” (1994: 499).
And, while admitting that Atticus made a mistake over Ewell’s death, Shaffer does not think the mistake diminishes Atticus as a hero, but that it shows precisely “how a good man makes a doubtful choice,” and once again reminds us of the importance of character, since the episode demonstrates “that more is involved than whether the choice is sound in principle” (1981: 196).
These commentators take the importance of Mockingbird to lie in its demonstration of the importance of the character of practitioners in professional ethics. In effect, they render Atticus’ character coherent by subsuming his conduct under the notion of “judgement.” His conduct may well be inconsistent when viewed from the perspective of this or that general principle or rule of right conduct, but this, like the equity jurisdiction of the courts, shows the inadequacy of principle or rule-governed approaches to ethical conduct. Nonetheless, the debate about Atticus connects with wider developments in contemporary ethics. One of the most striking features of contemporary moral philosophy is the rediscovery of Aristotle. At the heart of this renaissance is the idea that moral deliberation and justification cannot
JOURNAL OF INTERDISCIPLINARY STUDIES
proceed deductively through the application of general principles to particular cases. Aristotle supposes that the phenomena with which ethical inquiry is concerned are marked by mutability, indeterminacy, and particularity such that they can never be unproblematically subsumed under general principles of right action. Aristotle’s view of the limitations of general principles of right action led him to stress the importance of “practical judgement” (phronesis), a practical reasoning skill which is neither a matter of simply applying general principles to particular cases nor of mere intuition. Phronesis is a complex faculty in which general principles and the particularities of the case both play a role: “Practical wisdom is not concerned with universals only; it must also recognize particulars, for it is practical and practice concerns particulars” (Aristotle 1908: 1141).
The phronimos relies upon his judgement to identify the right thing to do in light both of principles and the exigencies of the particular case. This emphasis upon judgement brings the character of the practical reasoner to centrestage. One cannot look to general principles to settle what is the right thing to do, hence one must look to the character-or virtues—of those doing the judging. Although the Aristotelian model once dominated normative theory, including legal theory, it fell into disfavor around the time of the Scientific Revolution. Isaac Newton showed that the whole of nature could be explained by a small set of fundamental principles, and moral philosophers sought to follow his example. Thus, philosophers like Baruch Spinoza and Thomas Hobbes explicitly described their work as following the scientific or geometric method, while Jeremy Bentham’s entire philosophical project may be characterized as an attempt to provide a single, fundamental principleutility-from which all practical discourse might proceed by “moral arithmetic.” Recently, there has been a dramatic return to Aristotle. Though it is difficult to characterize virtue theory so as to capture everything under that rubric, it holds that judgements about the character of persons, independently of assessments of the rightness or the value of the consequences of their actions, is what is most fundamental in moral evaluation. Bluntly, virtue theories are character-based in so far as they eschew principle- or rule-based moral reasoning, and place emphasis instead upon the judgement of moral agents. A flavor of the new wave of virtue theory, understood in this broad fashion, may be gained from John McDowell who maintains that morality is “uncodifiable,” and that “one knows what to do (if one does) not by applying universal principles but by being a certain sort of person: one who sees situations in a certain way” (in Clarke
TO KILL A MOCKINGBIRD
& Simpson 1989: 105).
Martha Nussbaum avers that “the conception of ethical theory on which I rely is, roughly, an Aristotelian one” (1986: 10), while arguing for the priority of perception over rules, and claiming that “to confine ourselves to the universal is a recipe for obtuseness” (in Clarke & Simpson 1989: 126).
One might regard the response to Mockingbird as part of this wider rediscovery of Aristotle and virtue ethics. Those who nominate Atticus as a role model present him as the phronimos, an expert practical reasoner sensitive both to general principles and the particularities of individual cases. Atticus is one who knows what to do not by applying general principles, but by being the sort of person he is, by having the sort of character he has. Atticus recognizes that confining himself to general principles such as those he defended at Tom’s trial would be a recipe for obtuseness. Again, his lesson for us is the priority of character over rules and principles. ATTICUS AS A TRAGIC FIGURE Yet, I am not convinced that Atticus is an appropriate ethical role model for lawyers. He fails in this regard not-as Freedman suggestsbecause his character makes him unsuited to the role, but because the character approach itself is unable to provide an appropriate grounding for the ethical obligations of lawyers and other professionals. That is Atticus’ lesson for us. Recall the challenge posed by the three episodes: Atticus’ defenders respond to that challenge by subsuming Atticus’ conduct under the notion of “judgement.” His conduct may well be inconsistent when viewed from the perspective of this or that general principle or rule of right conduct, but this just shows the inadequacy of principle or rule-governed approaches to ethical conduct. Such reading has textual difficulties. Instead, one might offer a more natural reading of Atticus’ conduct. We have such a reading if we appreciate that Atticus is a tragic figure. Mockingbird has at least some elements of tragedy: an innocent man falls victim to evil despite the best efforts of the novel’s hero. Atticus’ story is tragic as well. He is a man who regards the rule of law as of tremendous importance. He presents his arguments in its favor to the jury with passion and all of his professional ability, recognizing that the life of an innocent man rests upon his success. But he fails, and Tom dies. When a decision over Boo is required, Atticus is struck not by the differences between the cases, but by the similarities. From Atticus’ perspective, Boo’s case is
JOURNAL OF INTERDISCIPLINARY STUDIES
hauntingly familiar. Both Tom and Boo are mockingbirds: innocents who it would be sinful to harm. Both Tom and Boo are “outsiders”; Tom because he is black, and Boo because he has lived as a recluse, isolated from the wider community for so long. In each case, an outsider must rely upon the community to ignore the fact that they are outsiders. In Tom’s case, it did not do so. When confronted with the fact that Boo stabbed Bob Ewell, Atticus must decide whether he will allow another outsider to face that threat. Atticus is cast as protector of both men. In Boo’s case, he has the power to do what he tried and failed to do in Tom’s case. When faced with the possibility of another tragedy in Boo’s case, Atticus’s faith in the rule of law, and perhaps his courage as well, fail him. He cannot bear the possibility that he will be party to the “death” of another mockingbird. In the end, Atticus abandons a principle that he has passionately defended, in terms of which he has understood himself, which has to a large extent secured his unique and valuable role in Maycomb. That is the stuff of tragedy: a principled man is confronted by the inability of principles by which he understands himself to resist evil, and realizes that he cannot risk another loss. He abandons the principles and adopts a fiction. Whether or not it is wicked to try people in the secret courts of men’s hearts now depends upon which men’s hearts. Hence, one need not strain for a reading that makes Atticus’ conduct consistent: it was not consistent. It is not that Atticus acted throughout as the phronimos, an eye firmly on substantive principles of justice and fairness. He was a more accessible figure who tragically, though understandably, was not prepared to risk a vulnerable person effectively in his care, having so recently seen how the legal system mistreated another similarly placed outsider. One should not misunderstand the significance of interpreting Atticus as a tragic figure. The point is not to brand Atticus as less than admirable and therefore as an unsuitable role model. I propose tbe reading of Atticus as a tragic figure as an alternative to the conclusion that Atticus deliberated as an AiisioieXian phronimos, and as an alternative to the assumption shared by both sides of the debate that his significance for legal ethics is to be settled by reference to his character. Cast as a tragic figure, Atticus has a very different message for us from that he conveys as a wise figure. We are not meant to admire what he does qua tragic figure. Rather, we shouid be struck by the gravity of his loss. Viewed as a tragic figure, his message is one about the value of the principles he abandons, not one about the desirability of regarding them as disposable, trivial, or burdensome.
TO KILL A MOCKINGBIRD ATTICUS AS PHRONIMOS
A tenacious supporter of Atticus as a role-model might claim that even if Atticus did abandon the principles he defended in Tom’s case, the decision to do so was “a wise one,” and does not show Atticus to have acted other than as a phronimos. But there are reasons to reject this assessment. Some of these reasons are specific to Boo’s case: they undercut the claim that Atticus’ decision in Boo’s case was a wise one. Perhaps the most striking Boo-specific feature in this context is the fate from which Atticus and Sheriff Tate are attempting to save Boo. Atticus as a tragic figure could not bear the thought of being party to the death of another mockingbird. The talk of “death” is rhetorical. The rhetoric is warranted if one seeks to characterize the phenomenological structure of Boo’s case for Atticus. It is the appropriateness of “death” in this context which explains why Scout speaks so effectively when she likens putting Boo on trial to “shootin* a mockingbird.” But the reference to death is rhetorical. None of the parties to the decision to spare Boo seem to think that there is a real chance Boo will suffer Tom’s fate. They take it for granted that he has committed no crime, and that he will be acquitted. It is not even the trauma of the trial that is foremost in Atticus’ or the Sheriffs minds. Sheriff Tate makes this clear when he says to Atticus: maybe you’ll say it’s my duty to tell the town all about it and not hush it up. Know what’d happen then? All the ladies of Maycomb includin’ my wife’d be knocking on his door bringing him angel food cakes. To my way of thinkin’, Mr. Finch, taking the one man whose done you and this town a great service an’ draggin’ him and his shy ways into the limelight-to me, that’s a sin (Lee 1960: 304).
The worst Sheriff Tate can imagine for Boo is that grateful Maycomb ladies would besiege him! Plainly, this would not be a trivial matter, since for Boo and his shy ways this public attention would be an ordeal. But, surely, this cannot be an appropriate ground upon which to reject what on any reading of the novel is a fundamental principle of justice to which Atticus is deeply committed. This is to suggest that Atticus made a mistake in Boo’s case. He too easily put aside fundamental principles in the face of insufficiently countervailing considerations. It is not hard to see why he might have done so. At least two features of the case offer themselves naturally to an explanation. First, the most significant fact about Boo’s case from Atticus’ perapective
JOURNAL OF INTERDISCIPLINARY STUDIES
was its similarity with Tom’s case. Atticus’ deliberations about Boo were dominated by these similarities, and in particular by the perception that Boo was, like Tom, an outsider. The significance of Boo’s status as an outsider is highlighted by Atticus’ insistence that Jem would not be spared a court appearance. There is no need to save Jem from the system. Jem is not an outsider, and Atticus assumes that his guilt or innocence will be decided upon institutional criteria rather than within the secret courts of men’s hearts: “Of course it was clear cut self defence” (Lee 1960: 300).
But while Boo was indeed an outsider, he was an outsider of a very different sort to Tom, and the difference was both plain and important. We see it illustrated starkly in the Sheriffs very different responses to Boo and Tom. After a somewhat perfunctory investigation of each episode, he immediately arrests Tom, with no apparent qualms about the reliability of Ewell’s accusation. He does not, for instance, think it necessary to obtain medical evidence of the assault, an omission to which Atticus draws eritical attention at the trial. Yet he decides on the spot to adopt a fiction to spare Boo a trial, evidencing a sensitivity to Boo quite absent from his dealings with Tom. It apparently does not occur to Sheriff Tate that Tom is as much a mockingbird as Boo. Atticus says not a word about the Sheriffs apparent change of heart. But it shows clearly that Boo was not the same sort of outsider as Tom. Ironically, the very fact that the Sheriff recommends treating Boo unequally shows that Boo had nothing to fear except the trauma of the appearance itself and public gratitude. At least as compared with Bob Ewell, Boo was a privileged outsider, and Atticus seems not to bave noticed or to have given too little weight to this fact. The second obvious explanation for Atticus’ lapse is the involvement of his own children in Boo’s case. His gratitude to the man who saved his children is surely understandable, and one can see that a parent in his position would be loathe to be the one to insist that his children’s rescuer be put through a public trial and, for Boo in particular, the ensuing ordeal of displays of public gratitude. By the same token, however, surely the involvement of Atticus’ children should have led him to be especially careful about trying Boo in the secret court of his own heart. One might worry here both about the reliability of Atticus’ own assessment of the appropriate thing to do in Boo’s case and about the way in which his decision might be interpreted by others who come to hear about it. Note that no middle grounds are canvassed: there is no discussion of the possibility of putting Boo on trial, and forbidding the Maycomb ladies
TO KILL A MOCKINGBIRD
from tormenting him with gratitude and angel cakes, for instance. Nor is there any discussion of whether the public had a legitimate interest in knowing what has happened. It is surely only a little churlish to point out that Boo had already had special consideration from tbe legal authorities, and that it was far from obvious that it had been to his benefit. “According to neighborhood legend,” at least, he had been released into his father’s custody rather than being sent away to a state industrial school after some youthful hi-jinx. While his fellow hooligans “received the best secondary education to be had in the state; one of them eventually working his way through to engineering school in Albany,” Boo was not seen or heard of for fifteen years (Lee 1960: 11).
He did not come to public attention again until he gratuitously stabbed his father with a pair of scissors. Again, he received special consideration: after a period in tbe local cells, he was once more released into his family’s custody rather than being sent for psychiatric help, his father insisting that “no Radley was going to any asylum” (Lee 1960: 12).
By the time of the episodes recounted in Mockingbird, Boo bas been held a recluse in his family home for some twenty-five years. Surely, one need not be terribly hard-hearted to think that the local community has an interest in knowing that a person with Boo’s history had been about with a honed kitchen knife with which he dispatched Bob Ewell, no matter how much Ewell deserved his fate or how clearly Boo had merely been trying to prevent a crime. And, one might also wonder whether Boo would have been better served by giving him his day in court at last, bringing him out of the shadowy world he had occupied for so long. In light of all this, there seem grounds to wonder whether Atticus got it right in Boo’s case, and jtist how one should interpret his decision. Shaffer also describes Atticus’ decision to spare Boo as a mistake, though be thinks it is one which shows “how a good man makes a doubtful choice,” and once again reminds us of the importance of character, demonstrating “tbat more is involved than whether the choice is sound in principle” (1981: 196).
But, Sheriff Tate had it right when he said: “Mr. Finch I bate to fight you when you’re like this. You’ve been under a strain tonight no man should ever have to go through. Why you ain’t in bed from it I don’t know. But I do know that for once you haven’t been able to put two and two together” (Lee 1960: 303).
There is a link between this reading of Atticus’ decision in Boo’s case and the interpretation of him as a tragic figure. He makes a poor decision in Boo’s case because his focus on the common themes between the cases
JOURNAL OF INTERDISCIPLINARY STUDIES
prevents him paying sufficient detail to the particularities of Boo’s situation. Indeed, the considerations, and Atticus Finch’s response to them, may be regarded as a further defence of the reading of Attietis as a tragic figure: It is difficult to believe they would not have moved “Atticus the phronimos,” but one would expect “tragic-Atticus” to respond just as Atticus Finch responds. This, however, is not their only significance. They also speak to the difficulty even a character like Atticus will face from time to time in making decisions in particular cases, and in this role are reasons to be wary of the character approach in general. If even Atticus cannot avoid the sort of understandable cognitive dissonance that seems on reflection to mark his deliberations in Boo’s case, then one should favor an alternative approach that places less emphasis upon the particular judgements of individuals. A rule- or principle-based approach, though not eliminating the need for judgement, is such an alternative. Another point is the idea that the decision to spare Boo would have been more reasonable had there been a genuine risk that Boo would have suffered Tom’s fate. Yet the facts of Boo’s case simply do not support that conclusion. Suppose for a moment that we accept that Boo’s status as an outsider would have led a Maycomb jury to unjustly convict him of wrongdoing in the death of Bob Ewell. The supposition renders Mockingbird the story of a legal system in crisis. One may think, indeed, that Tom’s fate alone is enough to show that this is just what Mockingbird is. But what would its lesson be for lawyers if this were correct? It would not be the lesson identified by those who see Atticus as a phronimos. Rather, assuming that it is the story of a system in crisis. Mockingbird*^ lesson is that lawyere should not admire and emulate Atticus’ alleged attitude to rules and principles. For, on the reading of the novel which portrays it as the story of a legal system in crisis, it is precisely the jury’s disregard for these constraints which generates the crisis. Here, once again, Atticus’ lesson would be one about the importance of rules and principles, not one about their triviality. VIRTUE AND THE RULE OF LAW There are two sorts of reasons to doubt that Atticus’ decision in Boo’s case was a wise one, some specific to Boo’s case and others of more general import. As well as bearing upon tbe question of Atticus’ wisdom, these are reasons to think that one should reject the “character” approach to legal ethics itself, quite apart from the grounds for thinking Atticus was led astray
TO KILL A MOCKINGBIRD
in Boo’s case. First, an account of the nature and function of law. One of Atticus’ most important moral lessons to his children is that of tolerance and the appreciation of difference: “you never really understand a person,” he tells Scout, “until you consider things from his point of view-until you climb into his skin and walk around in it” (Lee 1960: 33).
Here, Atticus gestures at what some describe as the most significant fact about modern Westem societies, namely the existence of a plurality of reasonable views of how one should live. The dilemma of political liberalism, writes John Rawls, is “how is it possible that there may exist over time a stable and just community of free and equal citizens profoundly divided by reasonable religious, philosophical and moral doctrine?” (1993: xxv).
A central part of the liberal response to this question has been the establishment of procedures and institutions tbat aspire to an ideal of neutrality between the reasonable views represented in the communities to which they apply. Members of a pluralist community, the idea goes, will often be able to agree on the structure of neutral institutions and practices even where they cannot agree on the right outcome of a policy question as a substantive matter. These institutions and practices cannot guarantee outcomes which will suit all the reasonable views: often there will be no such universally acceptable outcomes. The hope of liberalism, however, is that even those whose substantive preferences do not win the day on this or that occasion will have cause to accept the decisions of these institutions as fair and just. At the very least, they must have reason to believe that their views have been taken seriously, and that the decision procedures have not simply turned the individual preferences of some members of the community into public policy to be imposed on all. Precisely these sorts of general political concerns lie behind the requirement that individuals are to be tried by public standards in public courts rather than by private or secret tribunals. Why object to trials in the secret courts of men’s hearts? Not because one is worried about whether or not we have the right men’s hearts. It is because a crucial part of the rule of law in pluralist communities is to allow individuals to see the mechanisms by which public decisions are made, and to see that those mechanisms have indeed been used in particular cases. Liberal community so understood is undercut by those who insist upon appeal to their own substantive views of the good rather than to the procedures. Appeals to individual judgement are likely to be conceptually confused as well: to suppose it legitimate to override public process when it conflicts with private
JOURNAL OF INTERDISCIPLINARY STUDIES
judgement is to ignore the fact that it is the inappropriateness of appeal to private judgement which leads us to adopt public decision processes in the first place. Atticus had it right in his summation to the jury. A commitment to tolerance and equality leads to decision procedures which render trial within the secret courts of men’s hearts illegitimate. Atticus* decision to spare Boo a public trial is a mistake not just because it fails to take account of the particular facts of Boo’s case, but because it undercuts the mle of law in securing community between people who hold a range of diverse and reasonable views. This view about the rule of law in pluralist societies has consequences for the ethical obligations of lawyers. They act improperly when they substitute their own judgements for those of the procedures, acceptance of which makes pluralist community possible. An appreciation of the rule of law should lead one away from, rather than toward, a character-based approach to legal ethics. The issue is not whether we have the right men’s hearts, but whether any individual’s heart will do. This discussion provides a response to an important contribution to the legal ethics debate. Anthony Kronman argues that the legal profession is in the grips of “a spiritual crisis which strikes at the heart of [the lawyer’s] professional pride,” and threatens the very soul of the profession itself (1993: 2).
The crisis has resulted from the demise of a professional ideal-the “lawyer-statesman””Which portrayed the outstanding or model lawyer as, in essence, Aristotle’s phronimos: not a mere technician, but a person of practical wisdom possessed of a range of honorable and more or less peculiarly legal character traits. This Aristotelian professional ideal served as a model for lawyers for the better part of two centuries, providing compelling reason to believe the various “law jobs” worthwhile. With its demise, lawyers have come to regard law as an essentially technical discipline requiring no particular character or virtue on the part of its leading practitioners, judges, and teachers. Kronman aims to revise and revive the Aristotelian ideal in the hope that “we may hope to find a foundation for the belief that to be a lawyer is to be a person of a particular kind, a person one may reasonably take pride in being” (1986: 208).
As the “lawyer-statesman” epithet suggests, Kronman takes lawyere to have a significant leadership role. In the political sphere, the lawyerstatesman seeks a certain kind of political integrity, namely one whicb obtains despite the existence of significant and ineliminable conflict. The
TO KILL A MOCKINGBIRD
lawyer-statesman directs us to a condition of political wholeness in which “the members of a community are joined by bonds of sympathy, despite the differences of opinion that set them apart on questions concerning the ends, and hence the identity, of their community” (Kronman 1993; 93).
By establishing bonds of fellow feeling among members of a community, bonds based upon a willingness to sympathize with other’s interests and concerns, political fraternity helps to counteract the destructive forces posed by groundless yet identifying choices that confront both individuals and communities. The above discussion of the role of law and lawyers allows a better account of these matters. First, note that the “procedural” story is directed precisely at securing political community in tbe face of ongoing substantive disputes. The neutral institutions of political liberalism aim to give us ways of going on as a community whicb take the reasonable views represented witbin our midst seriously, and which assure even those whose personal preferences have failed to carry the day that neither they nor their views have been ignored. Law is an essential part of the effort to secure stable and just political community between advocates of diverse views of the good. Given this role, the procedural approach provides a response to Kronman’s spiritual crisis as well: On the procedural account, the various law jobs are extraordinarily important in pluralist communities, and hence are ones in which lawyers can and should take pride. One might think, indeed, that some such story would be a source of considerably more comfort to lawyers than Kronman’s-it tells them, after all, that what most of them are doing has moral and political value. It seems not unlikely that any currenl crisis of morale would be made worse by Kronman’s conclusion that contemporary lawyers belong to the generation that killed tbe lawyer-statesman. Tbe lesson for legal ethics is not that lawyers need to throw over the rule- and principle-based model of professional ethical obligation, but tbat they should appreciate the significance of the social roles they serve, and understand and take pride in fulfilling tbe duties that flow from those roles. It is no coincidence that Kronman appeals to historical examples of the lawyer-statesman, just as the supporters of Atticus appeal to a fictional figure. Both are led to characterize the phronimos ostensively, since they are suspicious of the possibility of doing so by appeal to anything like “principles” of deliberation or good character. The use of such principles would threaten to undercut the suppositions of the character approach.
JOURNAL OF INTERDISCIPLINARY STUDIES VIRTUE AND THE CLIENT-PROFESSIONAL RELATIONSHIP
The rule of law in pluralist communities has significance for the ethical obligations of lawyers working within those communities. There are also “micro-normative” reasons to be wary of character-based approaches to legal ethics, reasons that focus not upon the political or social significance of law in general, but upon the nature of lawyer-client relationships. One can relate these concerns to Mockingbird by noting a difference between Atticus’ stance and that of most contemporary lawyers. Mockingbird is importantly the story of an intimate community. A good deal of the book is concerned to place Atticus and his family within Maycomb, to show how he and his forebears came to the town, to show that the neighbors and the community knew him well. As a result, one might suppose, Atticus’ professional relationships have much in common with relationships such as those between family-members or friends. But this is not typical. We do not tend to know our lawyers as the Maycomb folk knew Atticus. Nonetheless, we often, of necessity, place ourselves in positions of vulnerability to professionals in a way and to an extent which we typically reserve for much more intimate relationships. In these latter relationships, we have grounds-our intimate or personal knowledge of the individual-to make assessments of the character of the person to whom we are vulnerable, of their motivations, their priorities, and so forth, which explain our willingness to place ourselves in their hands. But, most of us do not have this kind of detailed knowledge of professionals, and do not live in Maycomb or anywhere much like it. Hence, we cannot rely upon the character of our professionals as we rely upon the characters of friends. The clients of professionals, this is to say, typically rely upon relative strangers, to whom they stand in relationships of considerable inequality of expertise, for things of importance, when they cannot reliably assess or constrain the diligence or expertise which professionals apply to their task. The result is that the “character aspect” of the virtues approach makes it inappropriate for professional and legal ethics. Clients do not have access to infonnation about the character of their professionals in a way that would make it reasonable to ask them to place themselves in positions of vulnerability in reliance upon character-based considerations. This analysis may capture the compelling aspects of the idea that the professional is the client’s “special purpose friend” (Fried 1976: 1060-89),
TO KILL A MOCKINGBIRD
Given this analysis of professional-client relations, it is important not only that professionals are ethical, but that potential clients have some way of knowing the ethical stance of practitioners even though they do not know them or their moral views personally. The adoption and promulgation of a distinct professional morality is a way of making the ethics of the profession public in a way that the personal ethics of its members cannot be. Clients get the benefit of this “publie ethics,” however, only if it is indeed given priority over personal ethics in members’ dealings with the public. The client need only know what values the professional role requires the professional to adopt, and that the professional is a role-occupant, to know what values at least should govern the professional’s conduct in the relationship. In a different world, perhaps one characterized by the positive communal aspects of life in Maycomb, we may not need these guides to the ethical views of professionals. But Maycomb, both thankfully and sadly, is not our world. In conclusion, Atticus offers important lessons for professional and legal ethics, but not one about the importance of character over rules and principles. Atticus allows one to see the importance of the principles of law he defends so eloquently in Tom’s case, and abandons so tragically in Boo’s case. In doing so, he shows why one cannot found an adequate professional ethics on the character of its practitioners. Character approaches make it less rather than more likely that professionals will fulfill the ethical obligations appropriate to their roles. Atticus’ lesson is not that lawyers should throw over rule- and principle-based models of professional ethical obligation, but that they should appreciate the significance of the social roles they serve, and understand and take pride in fulfilling the duties which flow from those roles. REFERENCES: Aristotle. 1908. Nicomaehean Ethics. Tr. W. D. Ross. Oxford, UK: Clarendon Press. Carter, Claudia. 1988. Lawyers as Heroes: The Compassionate Activism of a Fictional Attorney as a Model We Can Emulate. Los Angeles Lawyer (JulyAugust): 13. Clarke, Stanley G. & Evan Simpson, eds. 1989. Anti-Theory in Ethics and Moral Conservatism. Albany, NY: SUNY Press. Freedman, Monroe. 1992. Atticus Finch, Esq., R.I.P. Legal Times (24 February): 20. . 1994. Atticus Finch-Right and Wrong. Alabama Law Review 45: 473-82.
JOURNAL OF INTERDISCIPLINARY STUDIES
Fried, Charles. 1976. The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relation. Yale Law Joumal 85: 1060-89. Johnson, Claudia. 1994. Without Tradition and Within Reason: Judge Horton and Atticus Finch in Court. Alabama Law Review 45: 483-510. Kronman, Anthony. 1986. Practical Wisdom and Professional Character. Social
PhUosophy and Policy 4: 203-34.
. 1993. The Lost Lawyer. Cambridge, MA: Belknap Press. Lee, Harper. 1960. To Kill a Mockingbird. London: Heinemann. Nussbaum, Martha. 1986. The Fragility of Goodness: Luck and Ethics in Greek Tragedy and Philosophy. New York: Cambridge University Press. Rawls, John. 1993. Political Liberalism. New York: Columbia University Press. Shaffer, Thomas L. 1981. The Moral Theology of Atticus Finch. University of Pittsbur^ Law Review 41: 181-224. . 1987. Faith and the Professions. Provo, UT: Brigham Young University Press.
Tim Dare teaches philosophy at the University of Auckland, P.O. Box 92 019, Auckland, New Zealand.