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In Two Minds

David Kenny and Rosemary Hennigan

The legacy of Harper Lee – seemingly assured by the universally beloved To Kill A Mockingbird – was complicated by last year’s publication of another novel by Lee, Go Set A Watchman. Atticus Finch, champion of civil rights and embodiment of the liberal virtues of tolerance and equality, is undoubtedly Lee’s best loved literary creation and the surprise announcement of the existence of a second novel in which he was a character last year generated excitement among fans and critics alike. But shock soon followed as Finch was exhumed from his literary resting place and shown to harbour the kind of racist beliefs he was thought to have abhorred. Now, as we eulogise Harper Lee and remember the influence her great novel had on so many young readers, we are forced to confront a more complicated and more difficult vision of her hero than she might otherwise have left with us.

In Watchman – an early and very different iteration of the book that would become Mockingbird – we discover that Atticus Finch viewed African Americans as “still in their childhood as a people”. He asks Scout: “[d]o you want Negroes by the carload in our schools and churches and theaters? Do you want them in our world? ... Do you want your children going to a school that’s been dragged down to accommodate Negro children?” Scout echoes the disappointment of many a Mockingbird fan when she says: “I looked up to you, Atticus, like I never looked up to anybody in my life and never will again.”

Many readers, discovering the truth about Atticus’s views, have gone through the same process as Scout: shock, anger, disbelief. He was the moral core of her home town – the watchman – and her disillusionment is devastating. In Watchman, the hero of her youth – and of many of ours – turns out to be wholly different from what we had imagined. Finch represented a purity, an objectivity, an ability to stand apart from yourself and empathise with others that is at the heart of the liberal mindset to this day. His famous injunction to Scout in Mockingbird was for her to set aside her biases and see things from the other side: “You never really understand a person until you consider things from his point of view … until you climb into his skin and walk around in it.”

While the Atticus Finch of Mockingbird is a renowned icon of liberalism, he is also (perhaps even more so) an icon of lawyering. He is the archetypal legal hero, a man who fights an intransigent and unjust system, who defends his client to the last, even if it is unprofitable or unpopular. Atticus’s heroic and ultimately futile stand for justice in Mockingbird drew many young people to the law in the belief that, in court, it was possible to fight to make the world a fairer and more equitable place.

Lawyers, then, might be thought particularly vulnerable to the revelations about Atticus, but for those of us acquainted with the practice of law, this realisation should, in fact, be less shocking. The seeming cognitive dissonance in Atticus’s views in the two novels – defending Tom Robinson vigorously against the charge of rape made against him in Mockingbird while ultimately being opposed to integration and harbouring deeply racist views about African Americans in Watchman – is something that lawyers experience all the time, albeit in different contexts. Lawyers regularly have to vigorously defend procedural justice while ignoring substantive justice and Watchman is a rare example of a work that illustrates this nuance. In doing so, it offers a richer, if ultimately darker, portrait of Atticus Finch seen through the eyes of the adult Jean Louise instead of Scout. While for many readers the Atticus of Mockingbird is likely to be the defining image of Lee’s contribution to literature, there is much to be said for remembering also the imperfection of Atticus Finch and what it can say about our own, idealised image of justice and the law.

Those shocked at the revelations of Watchman have assumed that Atticus transformed between the two books. The same character that vigorously defended Tom Robinson in Mockingbird supports the Citizen’s Council (a sort of sanitised version of the Klan), opposes integration, and makes deeply offensive and racist remarks about the capacity of African Americans in Watchman. But many have persuasively argued that no transformation has in fact taken place, and that the two views could have coexisted in Atticus all along. Adam Gopnik, in his review for The New Yorker, noted that these latter views would have been widely shared by those of Atticus’s generation, with his views on race being unusually complex and, by the standards of the South of that time, “liberal”. Indeed, academics have argued, long before Watchman, that the Atticus of Mockingbird was not as pure in his racial politics as the narrative in popular culture suggests. In Mockingbird, Atticus denies being a radical on the issue of race, saying he was “about as radical as Cotton Tom Heflin”, a white supremacist politician who was suspected of being a member of the Klan. And while to most readers, the dissonance between the books is almost incomprehensible, for lawyers, it’s a part of the job description. One of the first lessons for aspiring lawyers involves learning to sever professional actions from wider social views.

It is something of a cliche to ponder the lawyer’s dilemma of how to react to defending a person we know to be guilty. In reality, in criminal law, if you know your client to be guilty – if they confess to you, say – you could not then advance a case for their innocence, and should your client wish to advance such a case, you would be ethically obliged to withdraw from the case so that another lawyer, not compromised by such knowledge, could represent the client instead. But inside and outside of the criminal law, there is a much bigger problem upon which this question touches: how do you advance the interests of clients whose priorities you think it is wrong to advance? And why would you spend your working life advancing interests that you think are bad for society?

The answer is relatively simple: professional legal training teaches you to put aside your politics and your social vision. Lawyers, you are taught, are committed to the processes of law and these processes are designed to advance fairness: a jury of your peers, an independent judge, a right to a defence etc. This is the enlightenment liberal conception of fairness: everyone is entitled to equal treatment in the legal process. This is what the practice of law is all about.

That commitment to process, as lawyers soon learn, has an unpleasant consequence: if everyone gets the benefit of process, this means that a fair amount of one’s time is to be spent representing those about whom no one ever wrote a folk song ‑ the guilty, the greedy, and the guileful who are hoping to avoid comeuppance for morally questionable conduct or to get ahead by morally questionable means. If you commit yourself to the importance of the process, you have to pursue the fairness of the process and the right to avail of it no matter whom it is for, and regardless of whether their ends seem morally questionable. Sometimes, you’re going to be helping the bad guys to get away with it.

But the extent to which legal practice involves the ceding of moral judgement is deeper than that. It is not merely representing clients regardless of whether, in a particular instance, you think they acted well. To commit yourself to the process is to lose your focus on the bigger picture: whether the advancement of your client’s interests generally helps build a better society. That is not a question that lawyers ask. Lawyers have to put aside their own conception of substantive fairness and social justice and put their faith in the process instead. When it comes to their work as lawyers, they must disclaim any role in changing the structures of society and focus instead on making sure the processes within those structures are procedurally fair for all, even if the results of those processes will be, by their lights, profoundly unfair or bad for society. This view of justice helps a great deal with the need to represent some questionable causes: if we lawyers can’t express our politics and social vision in our work, then it is easier to advance causes to which we are politically opposed. While every law student might dream of it, the realisation soon dawns that the work of a lawyer rarely if ever leads to social change and developing a belief in the importance of fair process instead helps to ease the bitterness of this realisation.

Looking at Atticus Finch in Mockingbird, we see someone deeply committed to the process. He believes that Tom Robinson has been wrongly accused of rape, and will struggle to get procedural justice in Maycomb, Alabama. Fighting for fair legal process for all is Atticus’s crusade. As his brother Jack says of him in Watchman, “[t]he law is what he lives by ... he’ll always do it by the letter and by the spirit of the law”.

But this commitment to fair process does nothing for the advancement of the broader causes of African Americans in the South, and this is why Atticus can fight for the vindication of an African American defendant while still holding deeply racist views. That is what it means to commit to process: justice becomes the impartial application of the system of rules to everyone. Whether or not that system is deeply, intrinsically racist, and whether that structural racism is bad, are simply different questions. They are questions which lawyers in practice do not regard as ours to answer: a matter of policy and politics, severed from the practice of law.

This is how Atticus’s claim to see the situation through Tom Robinson’s eyes – to walk around in his skin – can ultimately prove to be so shallow: it’s easy for him to empathise with Tom when all he must see from Tom’s viewpoint is the legal process – fairness in the resolution of this criminal charge – not Tom’s vision of what would make a fair society in general. At the end of the trial, if Atticus had succeeded and Tom Robinson were acquitted, he would still walk free into a society that was deeply, profoundly and structurally racist. As Watchman reveals, that is not what Atticus sees when he steps into Tom’s skin. He sees only the trial, the legal process, and he fights only for justice in this. In Watchman, Jean Louise realises that this was always the reality, saying to her father that what he believed in was “[a]bstract justice written down item by item on a brief ‑ nothing to do with that black boy”. When he talked about justice, he “forgot to say that justice is something that has nothing to do with people”.

In this way then, Atticus’s split personality is something lawyers know well. For Atticus, this division of law and personal politics results in fighting for racial justice within the legal process, while fearing and opposing it from the outside. For lawyers today, it justifies occasionally defending the morally indefensible, or advancing causes in law that we would never support politically. The practice of law is about process. The moral and political questions about what sort of society we should build are for another time and another place. Lawyers are able to understand the apparent moral duplicity of Atticus because it’s a fundamental part of the practice of law. Atticus says, and perhaps lawyers can relate to the sentiment: “hypocrites have just as much right to live in this world as anybody”.

It is probably fair to say that most aspiring lawyers, particularly those of us who were inspired by Atticus Finch, didn’t see the practice of law in this way before we signed up to it. Mockingbird suggested that law could be a tool for the advancement of a grand social project, and that lawyers could push society towards more progressive ends. It suggested that the practice of law could shape a better world in a sense grander than just fair process and procedure. Many socially conscious young students are pursuing these ends when they choose a career in law, thinking it something more socially constructive than just a good, respectable, well-paid job that might impress their parents’ friends.

When lawyers come to understand and experience the practice of law in real life, our childhood vision of Atticus Finch becomes implausible. Of course, the law is capable of creating great social change, and it very occasionally does, as with the famous desegregation case that is the backdrop of Watchman, Brown v Board of Education (though the reality of Brown is more complicated – it relied almost entirely on the intervention of politicians for its efficacy). Far more often however, the law does not effect such change. Far more often, its practice involves helping people navigate the bureaucracy of a contemporary state: conforming to regulations, managing their affairs with certainty, finding resolution in commercial disputes etc. All of this is important work, and someone has to do it. But it’s not the work which we dreamed about when we aspired to be Atticus Finch.

When we realised this truth about legal practice, we also realised that Atticus Finch wasn’t really doing what we once thought he was. Particularly now, in the light of Watchman, it is apparent that those inspired by Atticus’s devotion to the cause of Tom Robinson misunderstood the nature of what he was fighting for in Mockingbird. He was never campaigning for great social change or trying to make a point about the broader social order: he was trying to fix a particular legal problem.

Legal education has the effect of stifling the appetite for change. In part this is because it treats the mass of legal rules ingested in law school as though they came down the mountain on tablets. There is little or no reflection on where these rules came from, how they came about, who made them, who benefits from them or what kind of society they create. We are not told about the people who make the laws: their biases, their prejudices, or the social context in which legal norms were generated. Instead, we are told that laws exist because we need to right civil wrongs, enforce contracts and protect private property. This is compounded by a relentless focus not only on the trees rather than the wood, but on the bark rather than the trees: legal cases tend to turn on such minute points of doctrine and specific facts and circumstances that there is little time to dwell on what the rules accomplish let alone how they relate to one another or how the system of rules taken as a whole shapes society. With no sense of the political context or consequence of the rules, it is difficult to see how you might change them, or why you would want to, except in the manner of minute, case-by-case reformism. As critical legal studies scholar Duncan Kennedy puts it, you end up thinking of reform of the rules as “rooting for the occasional judge who seems willing to make them marginally more humane”. It creates, in Kennedy’s words, “a passive attitude towards the content of the legal system”.

In legal education, we distinguish between legal arguments and “policy arguments”, by which is meant arguments that the law in an area should develop in a particular way because of a social or political concern for the consequences of the rule. Legal education, however, teaches that policy arguments are unlegal, irrelevant, almost childish by the standards of legal discourse. The focus is on legal argument – which means technical, unemotional attention to the logic of the rules and the rationality of their application – at the expense of discussing their social consequences. So dominant is this view of law that by the time a student begins practising the desire to change the law, or the idea that such change is achievable will probably have fallen by the wayside, seen as the innocent, idealistic dreaming of youth.

Having learned that law school might not have been the best place for a smart kid with a social conscience to go, students of law and young lawyers deal with their disappointment in different ways. Some finish law school and then go do something else. Some find genuine pleasure and satisfaction in the reality of the work. Many or most accept the reality of the job, even if they don’t love it, and roll up their sleeves with the knowledge that social change happens somewhere else. Some try to live up to their vision of Atticus Finch, and they are the ones who will defend the moral and social importance of the profession and its potential to achieve change, all the way down although, in reality, it probably doesn’t live up to this promise for them. Gradually, they find themselves more and more wedded to process as the concept of justice they pursue becomes narrower and narrower and the prospect of change recedes ever further.

Most lawyers found out along the way that Atticus wasn’t quite what he seemed. We learned that our simple vision of him as a crusader for social change through law was too simplistic; that the law in practice isn’t necessarily about doing good in this grand sense; that the reality is very different from our youthful aspirations. For many of those inspired by Mockingbird in their youth, Go Set a Watchman came as a shock as it drove these lessons about Atticus’s character home. Those who were inspired to be lawyers, however, had this realisation long ago: Atticus Finch was always too good to be true. 

Many see Watchman as the sullying of a childhood hero. As we write Harper Lee’s epitaph, there is a risk that – if it is remembered at all –the book will be forever regarded as an unfortunate blemish on her legacy. The unusual and controversial circumstances of its publication make that all the more likely. But it does not deserve this fate. Watchman casts light on who Atticus really was and, in complicating our vision of him, it teaches us something important about what it is to fight injustice.

It is often claimed that the law can be applied objectively, free from passion and prejudice. So accepted is this claim that we are unaccustomed to probing the biases, assumptions and political beliefs of our lawyers, lawmakers and judges. If we were conscious of this, lawyers and others might be more likely to see the structural injustices that law can create, those same injustices that Atticus chose not to concern himself with when he practised law “fairly” in a deeply segregated South.

Watchman shows that under the veneer of impartiality which lawyers maintain there is an array of political leanings, prejudices, biases and assumptions which, to a greater or lesser extent, influence our approach to the law. While objectivity and impartiality are the ideals for which lawyers strive, it is dangerous to ignore the reality that behind every legal rule is a policy decision based on social and cultural context, popular political beliefs and, potentially, views which may in time be regarded as deeply offensive. Legal education often suggests that objectivity and true impartiality are possible: that a lawyer can set aside her personal beliefs to defend a client’s interests, that a judge can set aside her personality and apply the law. It is never that simple.

In Watchman, the grandson of Calpurnia ‑ Scout and Jem’s much-loved nanny and housekeeper from Mockingbird ‑ is arrested for causing a fatal road accident and, when called upon, Atticus agrees to represent him. While Mockingbird would suggest that this is the action of a fair-minded lawyer determined to help a disadvantaged young man in a similar position to Tom Robinson, it is not in fact the act of a lawyer setting aside his own views for the sake of a client. Rather, it is a lawyer choosing to represent a client in order to prevent the involvement of the NAACP and the risk that the case might “go federal”.

We do not see the case go to trial in Watchman, so we can only speculate on the ways in which the deeply political act of representing a client with the express motive of preventing a trial advancing to the liberal federal courts might have impacted on the outcome of the case for the accused, or how this motive might have consciously or unconsciously impacted on Atticus’s ability to impartially represent his client. But it is worth considering this example of the effect of political belief on the application of the law: the county court would view the law in one way, the federal court would view it in another way. Politics is endemic in law, wrapped up so tightly in it that it is impossible to see where policy consideration ends and legal consideration begins. Denying the political context within which the law operates ignores – and even tries to hide – the social consequences. This is what Watchman’s revelations can teach us: that the law does not allow us to escape from prejudice and politics; that we must always be wary of the insidious influence of our assumptions and prejudices; and that we should not have too much faith in the law’s vision of justice if we want to make a better world.

In the end, Watchman is a fitting part of Harper Lee’s legacy because it adds a complex layer to an idealised story. Where Mockingbird gave us a childhood hero in Atticus Finch, Watchman reflects the realities of adulthood. Mockingbird, after all, is the story of a group of children’s first confusing encounter with an unjust adult world; Watchman probes the complexity of that world. It is the story of segregation told without the innocence of a child’s perspective, allowing characters to be fallible, heroes to be flawed. Though it is hard to lose a hero, the Atticus of Watchman shows us something we missed in Mockingbird: the weakness of procedural justice in the face of deeply-rooted structural injustice. This is not a lesson from a dead past; it is a lesson for a living future. We continue to live in an intolerant, unfair, and unjust world. And there is no Atticus Finch to fix it.

1/5/2016

David Kenny is an assistant professor of law at Trinity College Dublin. Rosemary Hennigan is a solicitor.

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