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2012-25503 Legal Theory

SY 2018-2019 2nd Semester 05/12/19

To Kill a Mockingbird: A Legal Theory Examination

Summary

The story of To Kill a Mockingbird is about how a 6yr old child,

Scout Finch, learns the harsh truth of the world she lives in and the
moral lessons she receives from both her father and the events that
transpire in her town1.

The parts this paper will be discussing revolves around an

alleged crime of rape committed by Tom Robinson, an African
American, at a predominantly white southern community with racist
views. The events happen from 1933-1935, not long after the abolition of
slavery, about the same time as the Jim Crow Laws, and during an
economic depression.

The narrative of the story shows that there is segregation

between the classes both economic and racial. The most affluent
families lived closest to the town center. The less well off the family the
further away they settled with the least reputable household living
farthest away along with the African Americans, who regardless of
repute, lived at the edge of the town.

In this story, Atticus Finch, Tom’s lawyer, successfully provides

enough physical evidence to cast enough doubt in the accusations of
the prosecution. Despite this, the jury ultimately still convicts the
accused, not because the prosecution’s defense was so compelling,
but because a white jury would not acquit a black man accused of rape
by a white woman.

Tired of taking his chances with a prejudiced jury despite the

assurance of Atticus that his case could still be appealed, the accused
attempts to escape the prison only to die during the attempt.

Bob Ewell, the man who forced the accusation, vows revenge
against Atticus and attacks Scout and Jem, Atticus’s family members,
while they were trick-or-treating. The Finch’s reclusive neighbor,
Arthur Radley defended the children and ended up killing Ewell.

However, since Arthur was a recluse and despite his beliefs that
Arthur’s actions were not a crime, the sheriff of the town elects to state
1
Harper Lee, To Kill A Mockingbird (1960).
 2

that the assailant fell on his knife instead of the truth. This is because
the acclaim that Arthur Radley would receive from the town would be
more of a punishment for a recluse like him.

Disclaimer

The beginning of the story is left out intentionally because the

paper focuses primarily on the story beats stated above. These
elements can be discussed in a legal theory paradigm. Some of which
even contain potential for possible revision and expounding – which in
turn provides for possible question what could have been done by the
characters, whether their actions were right or wrong and under what
Legal Theory would categorize them as such. Albeit there will be
further explanations on the succeeding paragraphs this summary
would be the main source of information regarding the book.

Historical Background

The setting of the book can be examined under the lens of a legal
theorist. To be precise, this setting is in keeping with Myres McDougal’s
a more wholistic view of law which paints it as a process of decisions
and a process of decision taking place within the context of, and as
response to a larger community process2.

According to the theory, the community base their decisions on

the context present during the time with said decisions shaping their
values and said values shaping their perception of the situation. The
story happened at a Fictional Southern American Town of Maycomb
from the years 1933-1935; thus, the prevalent laws and cultures back
then were also present in the book. Said years were a very delicate
time in both in terms of the state of racial equality laws.

At this point of American History slavery had been abolished and

the 14 Amendment which states that:
th

“No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor shall
any State deprive any person of life, liberty, or property, without
due process of law; nor deny to any person within its jurisdiction
the equal protection of the laws.”3

had been promulgated.

At the same time the Jim Crow Laws were also in place. In effect,
even when the Constitution of America mandated that no man could be

2
Myres S. McDougal, Law as a Process of Decision: A Policy-Oriented Approach to Legal Study, NATURAL
LAW FORUM, Paper 6 (1956).
3
U.S. Consti., 14th Amendment
 3

owned; nor could they be denied equal protection of the laws, the Jim
Crow Laws allowed for racial segregation in public transportation and
schools as well as public places.4

Said segregation was even supported by court decisions like the

1892 landmark case, Plessy V Ferguson which created the separate but
equal doctrine5.

These values were also included in the book’s setting by the way
the housing in the communities were segregated as well as the
segregation of the African American community during the trial.

Moreover, the Economic depression of those times could have

also caused more strain between the two groups. This is mainly
because of the lack of available jobs for the citizens thus leading to
certain groups in the south demanding that no African-American be
employed as long as a White-American had no job.6 From this, we can
surmise that due to the Economic Depression, the inclination to
discriminate shifted to that which was mainly derived from a belief that
one race is superior from the other to that which also included a sense
of competition for resources.

The 13th Amendment forbade slavery7, but the prevalent notion of

racial superiority still existed, the town, like the rest of the country,
was adapting to the change. This already though time was only
exacerbated by the lack of income available to citizens. The town
employed decisions and rules – like segregation – which establish a
racial hierarchy and unfavorable treatment of the African-Americans
as the effects of the precious legal system and social order still echoed
during said times. This, plus the strain of the economic depression,
resulted in the people displaying a hostile demeanor against those
who may threaten they’re view on what the order of things should be.

Looking at the situation in hindsight, we can see that the law did
change as the Jim Crow Laws were abolished after the Civil Rights
Movement, however it took time and said changes were in response to
the changing political climates.

Examination of the Story

The story involved the case of Tom Robinson, a black man getting
accused of rape by a white woman. Even today, a case like this invokes

4
Jim Crow Law: United States [1877-1954], https://www.britannica.com/event/Jim-Crow-law
5
Plessy v. Furguson, 163 U.S. 537 (1898).
6
Great Depression and World War II, 1929- 1945: Race Relations in the 1930s and 1940s,
http://www.loc.gov/teachers/classroommaterials/presentationsandactivities/presentations/timeline/dep
wwii/race/
7
U.S. Consti., 13th Amendment
 4

controversy regarding the trial before it starts and well after it has
finished.

Before the trial began, the case already caused tension in the
town, most of which was directed at Atticus Finch, Tom’s lawyer .

“Atticus you must be wrong… most people think they’re right and
you’re wrong.” 8

This is a quote from Scout to her father, Atticus. Atticus’s

acceptance of the case was not well received. This resulted in his kids
getting jeers and hurtful remarks, not only from other kids, but also
from adults. It’s as if the town was trying to maintain a certain status
quo by punishing the Finch Family.

This situation can be explained under Hart’s Theory of Law.

According to Hart, Laws are the Union of Primary Rules, also known as
culture and customs, and Secondary Rules, remedies to the flaws of
Primary Rules. Said secondary rules include the Rule of Recognition,
the Rule of Change and the Rule of Adjudication9.

The rule of recognition solves the uncertainty of the primary

rules by putting them into writing and affixing a mark of Authority on
them. The Rule of Change allows for the addition, nullification, or
correction of rules. Finally, the rule of adjudication supplements the
inability of primary rules to equitably and reasonable decide whether a
primary rule has been violated and what effect said violation entails for
the criminal.

This collective action of the community of bullying the Finch

Family for representing an African-American can be likened to what
Hart describes as a Society that is Governed by Primary Rules. Here,
the community aims to maintain the status quo by mistreating those
who don’t conform; yet, there is no authoritative written rule which
implements such actions. Thus, albeit not unlawful, the community
treats said action as if it were unlawful.

The actions of the townspeople are also understandable when

we consider law as an order from a political superior to a political
inferior imposed with the threat of force/violence/harm.10 Under this
view, the White American Community would in effect be the political
superiors, while Atticus and the Black Community are the political
inferiors. The order would be to maintain status quo, and the threat

8
Harper Lee, To Kill A Mockingbird (1960).
9
H.L.A. HART, THE CONCEPT OF LAW, (3rd ed., 2012).
10
John Austin, Lecture I, THE PROVINCE OF JURISPRUDENCE DETERMINED 1 (1832).
 5

would be bullying and lowered societal status. Thus, Atticus’s actions

are unlawful and wrong in the eyes of the community.

This view is further supported by Friedrich Savigny in his work

“Of the Vocation of our Age for Legislation and Jurisprudence” where
he defines the nature of law as being that of the spirit of the people or
culture.11

That, however, does not explain the whole situation. There is also
Scout’s interpretation of the whole ordeal and how she arrived at said
interpretation. She concludes that since the majority are saying that
Atticus is wrong and are treating him like he did something wrong, then
he must be wrong.

This reasoning is understandable as according to Mailon an

individual comprehends society’s moral rules through a process of
observing the outcomes of social interactions through time. He
explains that acts which receive positive reactions would be
considered morally acceptable while those given a negative reaction
would be labelled as immoral. Laws to him are merely tools of
maintaining said moral rules; thus, Scout’s inferences are spot on
when viewed under this lens.12

Does this mean that Atticus’s act of representing Tom Robinson

is unlawful simply because the community’s values dictate it so?

No, as during these times the 14th Amendment had already been
promulgated as part of the Supreme Law of the land, the Constitution.
Thus, any law or rule lower in rank and contrary to the Constitution
becomes superseded due to the hierarchy of laws.13

The actions of the community are based on custom. Customs are

neither higher in rank than the Constitution, nor are they written law;
thus, it is lawful to prioritize the Constitution over the customs of
society. Atticus’s actions, albeit earning him the ire of the community,
are lawful.

During the trial, Atticus manages to create a compelling

argument to show that Tom couldn’t have committed the crime. He
showed that no medical examination was ever made; hence, it could
not be proven that the victim was raped. The victim was bruised at the
right side of her face which means that the assailant was most likely
lefthanded; yet the accused could not use his left hand because of an

11
Friedrich Carl Von Savigny, OF THE VOCATION OF OUR AGE FOR LEGISLATION AND JURISPRUDENCE (Abraham
Hayward, trans.): chapter ii (p. 24 et seq.); and chapter viii (p. 130 et seq.).
12
Sue H. Mailon, DECLINING MORAL STANDARDS AND THE ROLE OF LAW, (2014).
13
Michael Clegg, Katherine Ellena, David Ennis, Chad Vickery, THE HIERARCHY OF LAWS: UNDERSTANDING AND
IMPLEMENTING THE LEGAL FRAMEWORKS THAT GOVERN ELECTIONS, (2016).
 6

old injury. Moreover, Atticus showed that the victim’s father, Bob
Ewell, was lefthanded meaning he could have inflicted said injuries.

It is also revealed through Tom’s testimony that Tom decided to

help Mayella because he pitied her. After helping her out a few times,
Mayella decided to seduce him but he refused. Bob Ewell caught
Mayella and beat her up then forced her to accuse Tom of rape.

Despite the physical evidence, the compelling testimony from

Tom, and the lack of credibility of the Ewells, the jury still convicted the
accused. The white jury was never going to acquit him from the
charges.

Here we can see the bias of the community affecting the justice
system through the acts of the jury. In America, the jury weighs the
evidence presented and infers the facts of what happened from it; the
judge merely gives direction to the Jury on the which laws they need to
consider. If the jury decides that the accused is guilty then the judge
decides on the sentence. 14

From that description, it is plain to see that the jury’s role is to be

impartial; however, they still chose to decide in a biased manner. They
may have done so because of fear that they would receive sanctions if
they went against primary rules of the community or because they
have observed that making this decision is positively received as it is in
accordance with their society’s moral rules.

Perhaps they even thought their decisions were correct, noble

even. Aquinas believed that laws are made to stop actions which would
threaten society15, thus if a society’s values dictate that acquitting a
black man accused of raping a white woman is so morally wrong that it
threatens the order of society then there should be a law regarding it.
And since the interpretation of the law was at their hands during the
trial, they construed it in such a way that forbids the acquittal of Tom
Robinson.

Here, we can discuss whether the actions of the jury are just
according to Aristotle’s definition of justice. Aristotle defines just
actions in two ways. The first way defines just actions as those in
accordance with the law16. The paper finds that although the reader has
doubts on the impartiality of the jury, it cannot be proven that the
actions of the Jury were against Aristotle’s 1st conception of justice as it

14
Role of the Jury, https://www.citizensinformation.ie/en/justice/courtroom/jury.html
15
Thomas Aquinas, Treatise on Law, SUMMA THEOLOGIAE, 1a 2ae, q.96, a.2
16
Anton-Hermann Chroust & David L. Osborn, Aristotle's Conception of Justice, 17 NOTRE DAME L. REV. 129
(1942).
 7

is under the jury’s discretion to decide whether an accused is guilty or

not. Their partiality is not illegal.

Aristotle’s second definition however provides a narrower view

of justice as it believes that just actions are those which are not
motivated by a desire to exceed or fall short of what is fair or
proportional17. This definition imposes a notion of equality and fairness,
something a jury that decides the merit of a case based on the color of
the defendant’s skin does not possess. Thus, under Aristotle’s second
definition, the jury is not just.

This is also not in accordance with what Aquinas views as the

purpose of law to create a more virtuous citizen and to compel those
who are easily tempted to act virtuously with the use of threat and
force.18 The act of allowing the whims of a man like Bob Ewell in
convicting an innocent man simply out of spite cannot be considered as
virtuous in any manner.

Here we see a difference between what the law and what justice
is, as against what it should be. In the story, law and the justice system
are a means to impose a status quo by either using extra judicial
penalties or by the partiality of the jury. On the other hand, law and
justice are idealized by philosophers as the method to improve the
community and to direct them to a more virtuous path.

After the trial Tom decided to try and break out of prison. This is
despite Atticus’s advice that they could still plead for the case.
However, understandably lacking in faith in the justice system of
Maycomb, he still attempts the escape despite only having one
functional arm. This endeavor ended in his death.

Although I understand his distrust of the system that held him

guilty of a crime that he did not commit despite the overwhelming
evidence which shows his innocence; I cannot agree with his actions.

This act of disobeying the law cannot be considered just under

the lens of Aristotle’s definitions of justice nor under Mailon’s definition
of Moral Rules and its relationship with the law19.

His acts were blatantly against the law, and albeit he was not
given his rightful judgement there was a proper way to appeal his
concerns. His actions cannot be considered just under Aristotle’s
second definition which prohibits acts which seek to exceed or fall

17
Anton-Hermann Chroust & David L. Osborn, Aristotle's Conception of Justice, 17 NOTRE DAME L. REV. 129
(1942).
18
Thomas Aquinas, Treatise on Law, SUMMA THEOLOGIAE, 1a 2ae, q.95, a.1
19
Sue H. Mailon, DECLINING MORAL STANDARDS AND THE ROLE OF LAW, (2014).
 8

short of the fair mean20. This is because escaping places his fate in his
own hands instead of the law. Albeit he was treated unjustly, it does not
earn him the advantage of breaking the law.

Moreover, he himself knows that if he is found he would be

recaptured and placed back in prison with additional penalties.
Moreover, the law was made in order to prevent prisoners from trying
to escape or trying to avoid their sentences. Albeit the community
treated him unfairly, breaking the rules only encourages similar
actions thus increasing the tendency of other prisoner, some of whom
rightfully deserve to be behind bars, to try and escape.

This action may also backfire in the long run. As discussed

before, laws are a process based on or in response to events, ideas,
and cultures which are prevalent during the time. His action may lead
to the already biased town to try and create laws which further
discriminate against African-Americans. It could create a notion that it
is okay to incriminate African-Americans unjustly as they would try
their luck in escaping anyway. Even though it was not his intention, his
actions could have rippling effects in the community.

This notion was also entertained in Plato’s work Crito. Here it is

argued that escaping imprisonment breaks the law, and to break the
law is to endanger the community and endangering the community
harms the people in it. Thus, by escaping imprisonment, one indirectly
harms other people. Moreover, it is also a violation of the agreement
between the individual and the community, an agreement which entails
that the citizen must obey the law in exchange for protection by the
laws and inclusion in the community.21

One can argue that the community broke the agreement first by
unjustly incriminating the Tom thus he had no obligation to uphold his
end of the deal. However, as assured by Atticus, there was still a way
for the town to amend its mistake. The agreement was not made null
and void since there was still a way to remedy the mistake.

When examined under Aquinas’s view on the goals of justice in

making the people virtuous22, this action also falls short. This is
because staying behind bars and appealing the case would be the
virtuous option as it shows faith in our fellow man, respect to the
system or at the very least trust in the words of the man who worked
without fear nor bias in order to defend him. His incarceration,
although unjust, was not permanent. Atticus himself assured him that

20
Anton-Hermann Chroust & David L. Osborn, Aristotle's Conception of Justice, 17 NOTRE DAME L. REV. 129
(1942).
21
Plato, CRITO (c. 360 BC).
22
Thomas Aquinas, Treatise on Law, SUMMA THEOLOGIAE, 1a 2ae, q.95, a.1
 9

there were still more options for him, and that system could still end
with a just ruling, yet he still chose to go against the law.

One can Argue, that at the very least, his attempt of escape is in
line with henry Thoreau’s view that a citizen should think for
themselves and that if a law or social order is unjust then one must
disobey it23. However, the reasoning used by this Philosopher is a
double-edged sword as it is based on subjective reasoning. As in the
same way Tom Robinson could claim that the system was unjust thus
he must disobey it, the White Community could also claim, that since
they believe that the law should favor them then the decision of the jury
is correct.

Moreover, even Thoreau would be a poor source of support for

Tom’s actions as this philosopher believes that under a government
which imprisons any unjustly, the true place for a just man is a prison.24

In the final chapters of the book, Bob Ewell tries to get even with
Atticus by attempting to kill his children Scout and Jem Finch. He is
stopped and accidentally killed by the Finch’s kind yet reclusive
neighbor Arthur Radley.

The sheriff elects to state to the public that the assailant tripped
on a root and fell on his knife, thus covering the truth despite believing
that Arthur did nothing wrong and that the town would probably leave
cakes in front of his lawn because of his heroism. It is explained that
this is because the sheriff of the town knew of Arthur’s reclusive
personality. Thus, he chose to cover the truth in order to spare Arthur
of the attention he would receive for the act of heroism.

This event was meant to portray that we must put ourselves in

the shoes of other people in order to understand them and treat them
properly. Unfortunately, although the story paints this action as an act
of kindness by the sheriff, it hides a darker side. By hiding the truth of
the matter the sheriff deprives Bob’s Family their day in court.

This action is unacceptable when viewed under Aristotle’s

definitions of Justice as this action is blatantly illegal. The sheriff had a
legal duty to present the facts and not hide the truth, by covering up the
incident he effectively broke the law.

Moreover, this would provide unequal treatment to those Bob

leaves behind; thus making it contradictory to Aristotle’s second
definition of just acts. Bob’s family should have been given their due,
and that means their day in court. Although I agree that Arthur did

23
Henry David Thoreau, CIVIL DISOBEDIENCE, (1849). HTTP://XROADS.VIRGINIA.EDU/~HYPER2/THOREAU/CIVIL.HTML
24
Henry David Thoreau, supra note 23.
 10

nothing wrong, the responsibility of deciding that falls not on the

reader nor the sheriff. It falls in the shoulders of the jury.

The trial could go both ways, it could acquit Arthur because his
actions were in defense of the children, or the jury could convict him of
murder. All this depends on the facts which should have been
presented at court, not the discretion of the sheriff. Although Arthur’s
heroism must be lauded, the other party must also not be ignored.

One can argue that since Arthur is a recluse he shouldn’t be

subjected to the same rigor of the laws as the rest of the community.
Indeed, this is in keeping with Aquinas’s interpretation of the
implementation of the laws, as he believes that different ways of
measuring suits different types of people.25 However, this applies to
lenience of the law, not outright immunity from it. It must be kept in
mind that the incident resulted in the loss of a life. No matter how
horrible a person the deceased was, every society views taking a life
as a heavy, near unforgivable act if done in malice. Thus, although
considerations regarding Arthur’s state must be considered and
respected, the law must still be universally applied.

Under Thoreau, one can argue that it is more logical for the
sheriff to disobey the law as it saves a man who has acted heroically
from suffering from his kindness. This act is only rational when we
consider Arthur and Arthur alone, not when we include Bob’s family in
the equation.

Possible Revision

If allowed to rewrite the book in order to make it in keeping with

the legal theories presented, I believe it would have been better for
Tom Riley to wait for further adjudication of the case. That way the
community is shown more evidently of their errors by showing that
Tom is a law-abiding citizen and that despite their actions, he is still
going to uphold his dignity as a citizen. Moreover, it helps redeem the
system to show that even though it is imperfect there are ways to
remedy said imperfections.

I’d also like to make it so that a trial is held to ascertain the

innocence of Arthur Radley and give the Ewell Family their day in court.

Conclusion

25
Thomas Aquinas, Treatise on Law, SUMMA THEOLOGIAE, 1a 2ae, q.96, a.2
 11

The case in To Kill a Mockingbird shows the interactions of the

Community, its Culture, and the Law both in a holistic and specific
manner.

By analyzing the events which happened before the trial we can

see how a community implements and teaches its informal/unwritten
laws by levying positive or negative responses to the actions of the
citizens.

The trial itself allows us to contrast what the law is against what
the law should be and how interpretations of the law by the community
affects not only the decisions of the court but also the way the law is
implemented.

Finally, the post-trial events allow us to understand whether an

action is just or not based on Legal Theories. It allows to reader to
contemplate on whether it is right to always obey the law, and on which
circumstances is it moral to disobey them.