Unique and common origins

Whether conveyed in its literary or cinematic form, it is impossible to separate To Kill a Mockingbird from the life of its author, Nelle Harper Lee. Lee began writing her now celebrated novel in the early 1950s while living in New York. Although far removed from the Southern surrounds of her childhood, it was that time and place that provided her with much of the basis for the novel. In 1964, she offered a glimpse into her reason for writing:

The portrayal of Southern life that Lee offered was coloured by a fondness that arguably worked against a clear recognition and condemnation of those aspects of Southern society that fostered glaring inequities, not merely in terms of race, but also in relation to gender and class. Moreover, Lee flatly rejected all attempts to label To Kill A Mockingbird an activist tome. Nonetheless, central to the novel, and even more so its cinematic adaptation,Footnote ³ is a story about racial injustice – the conviction of a Black man falsely accused of the rape of a White woman. Law professor Steven Lubet is perhaps the only person who has ever publicly dared to wonder how we might regard the story and its characters had Tom Robinson really been guilty – or as guilty as a fictional character can be (Lubet, Reference Lubet1999). Such an idea appears almost heretical given the moral weight that has come to be attached to the book, and certainly when Lubet gave voice to it, it was staunchly, and in some cases, furiously rejected.Footnote ⁴ Teresa Phelps has suggested that no one reads To Kill a Mockingbird for its plot. Drawing upon the descriptions of the attitudes and actions of the townsfolk, some of whom considered the defendant better lynched than tried, Phelps contends that ‘the outcome of Tom Robinson's rape trial is never in doubt’ (Phelps, Reference Phelps1994, p. 512). The same might be said in relation to the film. As the opening credits roll, an anonymous child hums. Her hand opens a cigar box revealing a familiar, yet somehow discomforting collection of childhood memorabilia – tiny doll-like figures, a watch, a black and a white marble. The eeriness of this sequence hints at the difficulties to follow; difficulties that most viewers of the film would already have known of, either as a consequence of their familiarity with Harper Lee's novel or the prominence of race-based tensions and injustices within the broader public memory.

There are significant parallels between Lee's childhood experiences and the story she would later tell. The fictional town of Maycomb which provides the setting for the story was modelled upon Monroeville, Alabama, where Lee lived from her birth in 1926 until 1944. And it was the figures that filled Lee's childhood – the merchants, neighbours, churchgoers, officials and other townsfolk – who directly or indirectly provided the basis for the array of characters featured in the book (Shields, Reference Shields2007, p. 127). Lee herself is embodied in Scout, the bright and tomboyish narrator of the story, while her older brother Edwin and childhood neighbour Truman Capote appear respectively as Jem, Scout's older brother, and the precocious visitor, Dill. Lee's mother, who was a constant but distant figure throughout the author's childhood, is present in the story by virtue of her very absence.Footnote ⁵ In the Lee household, much of the practical work associated with child-raising was undertaken by Hattie Belle Clausell, an African-American woman who lived in the ‘Negro’ part of town and each day walked to work at the Lee home (p. 41). In To Kill a Mockingbird, Hattie is brought to life in the figure of Calpurnia, the African-American woman who tends with warmth and patience to the children's welfare. Boo Radley, who features as the object of their insatiable curiosity, is also acknowledged as having a basis in one of Monroeville's residents, the mysterious Sonny. He is remembered as:

It is Atticus Finch, however, who looms largest in To Kill a Mockingbird. Malcolm Gladwell (Reference Gladwell2009) recently linked this character to James Folsom, a former Governor of Alabama who, while being ‘nice’ to Blacks, failed to use his political powers in any radical sense to substantially improve their circumstances. A more likely source, as Lee's biographer Charles Shields illustrates, was the author's father, Amasa Coleman Lee. Indeed, the book has been described by one commentator as ‘an open love letter to her father’ (Atkinson, Reference Atkinson1999, p. 1371). By all accounts, A. C. Lee was a thoughtful, churchgoing, respectable and respectful man. His daughter reportedly once commented that Atticus was ‘not exactly her father’, but that the two were very alike in ‘disposition’ (Shields, Reference Shields2007, p. 215). These figures also importantly shared a profession – the law. As a practising attorney and as a member of the state legislature, A. C. Lee was a conduit linking his family to the law in a very immediate and personal way. And, as the editor, part owner and publisher of the town paper, The Monroe Journal, he also linked his family to the community and beyond. Indeed, Shields notes that many of the incidents reported by the paper between 1932 and 1935 became ‘part of the fabric’ of To Kill a Mockingbird (p. 127).

Monroeville, like the fictional Maycomb, was a far from prosperous town, and in the early 1930s was particularly hard hit by the country's failing economy. Nonetheless, the Lee family, like the Finches, lived a relatively secure and comfortable life by virtue of their membership of Monroeville's genteel White establishment. Families such as the Lees were largely protected from uncomfortable situations and interactions, for the axes of class and race effectively divided the geography of the town and shaped the nature and extent of contact between townsfolk. Occasionally, however, the illusion of harmonious order created and enforced through segregation was punctuated by incidents that revealed the raw racism and brutality upon which it was built. When Harper Lee was eight years old, for example, the hooded members of the Klu Klux Klan paraded past the family home and down Monroeville's main street. On this occasion, A. C. Lee is said to have directly confronted them, an action which he repeated in a separate incident when Klansmen tried to break up a Hallowe'en party organised by Capote (Shields, Reference Shields2007, pp. 57–58; Moates, Reference Moates1989, pp. 61–62). Such blatant displays of opposition were rare. Widespread belief in White superiority, expressed through euphemistic allusions to a ‘natural’ or ‘proper’ order, rendered race-based injustice pervasive and the threat of violence a clear and ever-present danger. African-Americans who were alleged to have caused offence to White citizens routinely risked being subjected to immediate and unsanctioned violence. The likelihood of violence increased with economic hardship. During the depression years of the early 1930s, the number of documented lynchings in Alabama increased to almost twenty per year (Johnson, Reference Johnson1994, p. 6). Black men who were accused of raping White women were particularly vulnerable to spontaneous attack, while those who were formally charged and tried were unlikely to fare much better. The operations and outcomes of the criminal justice system offered indisputable evidence of institutionalised race-based injustice.

The most notorious example of this occurred in 1931 when nine Black youths were arrested as they disembarked from a freight train in Paint Rock, near Scottsboro, Alabama. Two young White women who had also been aboard the train had accused the youths of rape. At trial, despite an overwhelming lack of evidence, all of the accused were convicted and all but one – twelve-year-old Roy Wright – were sentenced to death. This outcome prompted outrage followed by a flurry of legal actions that ensured the sentences never took effect, yet the Scottsboro case remains remembered as one of the most infamous episodes in America's legal history.Footnote ⁶ Commentators, including Claudia Johnson, Harold Bloom, Eric Sundquist and most recently James Miller, have suggested that the Scottsboro case inspired the story of Tom Robinson. In support of this, they have pointed to a number of parallels. These range from more general aspects, such as time and place and the type of case and its outcome, through to more specific details such as the physical disability of the defendant, the background and character of the female accuser and the contents of the defence counsel's summation to the jury (Johnson, Reference Johnson1994, pp. 5–8; Bloom, Reference Bloom2004, p. 14; Sundquist, Reference Sundquist2005, pp. 197–98; Miller, Reference Miller2009, pp. 222–25). James Miller has described Lee as offering a ‘Scottsboro narrative’, and has suggested that this case remained for her ‘an important touchstone for gauging the potential of the South for civilised behaviour’(Miller, Reference Miller2009, p. 221).

In contrast, Charles Shields has argued that the Scottsboro case was simply too large for Lee's purpose of detailing the minutiae of small-town Southern life. He has suggested that Lee turned instead to the lesser-known case of Walter Lett, a Black man who had lived near Monroeville and who in 1933 had been tried for the rape of a poor White woman (Shields, Reference Shields2007, pp. 117–20). As in the Scottsboro case, Lett had been convicted on the basis of flimsy evidence only to be saved from execution after a public campaign resulted in his death sentence being commuted to life imprisonment. The timing and location of Lett's trial, the fact that it was reported in The Monroe Journal, and that Harper Lee was familiar with it, adds considerable weight to Shields's argument as to its significance. Yet Lee has always refuted attempts to ground Tom Robinson's story in any specific historical case (Rowley, Reference Rowley1999, p. 3) and, in many ways, any particular significance that might be attributed to the Lett case or any other is rendered almost irrelevant by the sheer commonness of its components. Its legal and social aspects were like those of so many other cases, grounded as they were in unequal power relationships built upon racial contempt, hostility and exclusion. In telling the story of Tom Robinson's demise at the hands of White society and White law, Harper Lee was describing attitudes and practices that were all too familiar in the 1930s, and which, by the late 1950s, were a source of growing discomfort and shame.

Significantly, while Lee was writing To Kill a Mockingbird, some of the most notable events in the history of American civil rights were occurring. In 1955, fifteen-year-old African-American Emmett Till was murdered in Mississippi by two White men. Their crime and subsequent courtroom acquittal by an all-White jury sparked a wave of protest that highlighted once again the stark reality of racial violence and the impotence of the criminal justice system to counter it. In the same year, in Montgomery, Alabama, where Lee had once attended school, Rosa Parkes was arrested for violating the town's bus segregation ordinance, sparking a boycott that would last until buses were integrated more than a year later. Meanwhile, Autherine Lucy's attempts to enrol as a student at the University of Alabama were overwhelmed not by law, but by the hostility of Whites who refused to recognise either the moral or legal authority of the Supreme Court's ruling in the 1954 case Brown v. Board of Education. Claudia Johnson has argued that the events of the 1930s and 1950s affected the composition of To Kill a Mockingbird, and that the latter also profoundly influenced the book's reception (Johnson, Reference Johnson1994, p. 13). Eric Sundquist has added to this by suggesting that the period setting of the book offered readers a safe opportunity to reflect upon issues and anxieties that accompanied the growth of the civil rights movement and demands for change. As he puts it:

Lee completed the first draft of To Kill a Mockingbird in 1957, the same year as Abby Mann began writing Judgment at Nuremberg. He too turned to a historical moment to grapple with issues of race, law, politics and justice, but his stance as a writer was far more public and far less modest than Lee's. This was perhaps most obviously evidenced in 1961, when he accepted the Academy Award for best screenplay adaptation ‘on behalf of all intellectuals’ (Harris, Reference Harris1987, p. 146). Mann was the son of a Russian Jewish immigrant. Born in 1927, he was raised in East Pittsburgh, in a predominantly Catholic working-class neighbourhood, where he felt himself to be an outsider. He attributed his later identification with minorities to his early experiences, and their struggles for justice were to become a persistent theme in his work (Martin, Reference Martin2008). Mann believed that any writer ‘worth his salt ha[d] an obligation not only to entertain but to comment on the world in which he live[d]’ (Weiskind and Vancheri, Reference Weiskind and Vancheri2003), and that is precisely what he sought to do in writing Judgment at Nuremberg.Footnote ⁷ In the context of the late 1950s, Mann was particularly concerned by the developing Cold War and the ‘collapse of international morality’ that he believed it signalled (Mann, Reference Mann1961, p. v). He believed this had an earlier parallel in the events leading up to World War II, and indeed later noted how at that time, in America and much of Europe, ‘it was considered a breach of good manners in polite society … to bring up the subject of German guilt or the victims of the Third Reich during the … years 1935 to 1942’ (p. v). Time, distance and the development of the Cold War had fostered a silence that was respectful to the sensitivities of new-found allies, but which appeared to him to be lacking in its responsibility to both the present and the past.

According to Mann, the idea of Judgment at Nuremberg came to him after hearing an anecdote about a lawyer who in 1948 had withdrawn in protest from the Nuremberg Trials as a consequence of concerns that the legal proceedings were being compromised by political events (Mann, Reference Mann1961, p. 3).Footnote ⁸ Upon subsequently discovering that all of the defendants imprisoned by the second Nuremberg trial had already been released, Mann reached what he later described as the premise of the screenplay: ‘a glimmering understanding that the very philosophy that enabled the Nazis to come to power was not unrelated to the motive in their being released’ (p. v). In the screenplay, Mann thus sought to highlight the need to acknowledge the dangerous potential posed by the inseparability of law and politics, and further to that, he was concerned with questions of moral responsibility. How could individuals, including those otherwise considered enlightened and intelligent, acquiesce with or overtly participate in events that would wreak such havoc? And, if they did, to what extent might they be held accountable?Footnote ⁹

America's history of antisemitism also no doubt fuelled Mann's interest in such questions. Events such as the 1917 Leo Frank case served as glaring reminders of the overt hostility once directed towards Jews in America and, moreover, provided a touchstone for identifying with the experiences of African-Americans. Frank, a Jewish factory owner, had been accused of murdering a thirteen-year-old girl; however, his hopes of a fair trial had disappeared as rampant antisemitism overwhelmed the trial process and evidence of his innocence. Frank was convicted and subsequently died at the hands of a lynch mob that included some of Georgia's most upstanding citizens. These men went on to form the nucleus for the revival of the Klu Klux Klan, which, during the 1930s, eagerly aligned itself with American Nazis (Freedman, Reference Freedman1994, pp. 473–74).Footnote ¹⁰ American Jews who advocated involvement in World War II were labelled ‘warmongers’, adding to the already existing repertoire of unfavourable stereotypes that had long served to limit access to housing, employment and university education. Jewish organisations anticipated an upsurge in antisemitism at the war's end, and united to combat it (Shapiro, Reference Shapiro1992, pp. 16–17). However, recognition of the full extent of the Holocaust, together with the arrival of Jewish refugees and returning military personnel, fostered an embracing of ‘Judeo-Christian’ values and identity (Mart, Reference Mart2004).

By the 1950s many American Jews were abandoning the more traditional and identifiable aspects of their culture and immersing themselves instead in the trappings of an idealised American life. But this process of assimilation was neither easy nor without its critics. In the mid-1950s some Jewish intellectuals railed against what they perceived as an uncritical acceptance of a conservative lifestyle and ideology. Social and literary critic Irving Howe, for example, launched a blistering attack upon those intellectuals whom he believed had allowed themselves to be co-opted by American capitalism and who, in their anti-Communist obsession, failed to see the dangers posed by McCarthyism and widespread conformity. He argued that if intellectuals were to remain true to the ideal of social critics, they needed to return to the ranks of the outsiders (Shapiro, Reference Shapiro1992, p. 26). This is clearly a position that Mann had some affinity with. In the introduction to the published screenplay of Judgment at Nuremberg, Mann expressed his desire to correct the impression that Americans were accepting ‘without thought and without protest’ the dangerous events that were dominating and dividing the global stage (Mann, Reference Mann1961, p. v).

In the America that Lee and Mann knew, politics, race and the law were dramatically and publicly intertwined. The ways in which law could be used to target and oppress brutally the marginal and the suspect was clearly on display, no more so than in the rise of McCarthyism and its relentless targeting of those considered politically or otherwise suspect. However, at the same time, the potential of law as a tool for dismantling oppression and facilitating social change was also beginning to be seen. The civil rights movement was gathering momentum and relentlessly exposing the racially based inequities of the South to a broader audience, and legal challenges to segregation laws, and to other matters concerning civil liberties and domestic security, were gaining a more sympathetic hearing before a Supreme Court revitalised by the appointment of Earl Warren as Chief Justice. Warren, a three-term Governor of California, had been nominated by Dwight Eisenhower but proved to be far more liberal in his judicial approach than the Republican president expected. Between 1952 and 1968, the Warren Court handed down landmark rulings discarding older laws and establishing precedents that today continue to frame the operation of America's legal system. More broadly, its decisions in cases such as Brown v. Board of Education, Gideon v. Wainwright and Miranda v. Arizona Footnote ¹¹ built faith in law as a tool that might be used to eliminate injustice by protecting the individual from an oppressive and overbearing state.

According to Lucas Powe, during the life of the Warren Court, interest in the relationship between law, public policy and politics flourished in America. In academia, political scientists breached the long-standing gap between law and politics, generally questioning law's mythical status as autonomous and, more specifically, offering insights into its relationship between the Supreme Court and American society (Powe, Reference Powe2000, p. xii). In cinemas, Americans were beginning to be presented with films that explored law and legal issues in more complex ways than previously. Earlier attempts to do this had been inhibited by the Motion Picture Production Code. Introduced in 1933, the Hay's Code, had sought to ensure film makers promulgated culturally acceptable ideals within a broadly conservative moral and political agenda. By prohibiting certain subjects and defining basic moral principles, the Code, amongst other things, strongly discouraged film makers from depicting American institutions, including the law, in overtly critical ways (Giglio, Reference Giglio2005, p. 72). The sanitised picture of American life that the Code promoted sat uncomfortably with those film makers who were interested in exploring, in more realistic terms, subjects such as racism, sex and crime; however, by selectively masking or sidestepping certain historical facts and realities, some managed to comply with the Code while shedding light on the very subjects it was intended to obscure. For example, Mervyn LeRoy's 1937 film They Won't Forget told the story of a young Northern teacher lynched in the South after being wrongly accused of murdering a teenage student. The film was a veiled retelling of the case of Leo Frank (Kuzina, Reference Kuzina2001, p. 85).

In 1952, the Warren Court handed down the first of a series of rulings that would contribute to the eventual abandonment of the Hay's Code some eighten years later (Giglio, Reference Giglio2005, p. 75; Powe, Reference Powe2000, p. 191). The Court's assertion of the primacy of the First Amendment and the right of citizens to freedom of expression was immediately welcomed by Hollywood, and opened the way for the production of those films now regarded as America's most classic courtroom dramas. Machura and Ulbrich, like Rafter, have argued that in the period roughly coinciding with the Warren Court, film makers tended to ‘portray lawyers as heroes and the legal enterprise as a noble one’ (Reference Machura and Ulbrich2001, p. 122). However, it must also be acknowledged that these films often also sought to expose the relationship between law and society; more particularly, in such cases they used the courtroom as a setting for exploring significant social issues and tensions. This is particularly the case with the two movies under discussion here. In the politically and racially charged context of the 1950s, it is hardly surprising that Harper Lee's novel To Kill a Mockingbird should so quickly have been adapted to film. The story spoke to both Whites and Blacks. To the former, especially the middle class and educated, it offered a tale of some hope and reassurance, and to the latter it offered at least some recognition of sufferings and injustices. Although Judgment at Nuremberg dealt with very different subject matter, it too was very much a product of the tensions existing within 1950s America. Mann's script grappled with the relationship between law, politics, nationalism and race, and, in so doing, attracted the interest of director Stanley Kramer, who was regarded as one of Hollywood's most committed liberals. Kramer had already carved a reputation for producing films that were socially concerned and aware (Christensen, Reference Christensen1987, pp. 103–104), and, behind the scenes, he was also known to buck the establishment.Footnote ¹² In one famous instance, he had employed director Edward Dmytryk, one of the ‘Hollywood Ten’ who had been blacklisted and imprisoned after failing to co-operate with the McCarthy-led House Committee on Un-American Activities (Spoto, Reference Spoto1978, p. 91). The social and political relevance of Mann's script appealed to Kramer. Added to this was a compelling central character, Judge Dan Haywood, who was explicitly likened by Mann to Chief Justice Earl Warren (Mann, Reference Mann1961, p. 2). The characters of Haywood and Finch, like the films they are part of, have come to be associated with law's finest and most idealised qualities, and yet there are good grounds for questioning this. As will be discussed below, both Judgment at Nuremberg and To Kill a Mockingbird may be read as offering far less reassuring images of law and legal actors than is commonly thought.

Law and legal Actors

Judgment at Nuremberg begins with a collage of newsreel footage. Scenes of the Nuremberg Rally roll into images of a city in ruin until a camera focuses on the face of the film's central character, Judge Dan Haywood, who is being driven through the streets on the way to taking up his position as Justice of the Nuremberg Military Tribunal. Mann takes this opportunity in the screenplay to provide the film's cast with some insight into the judge's character:

If Judge Haywood is a thoughtful and modest man, who can summon up considerable strengths to surmount what appear to be almost impossible challenges, then so too is To Kill a Mockingbird's Atticus Finch. He demonstrates this whether he is facing up to a rabid dog or refusing – even in the face of a lynch mob – to abandon Tom Robinson. In a scene that is pivotal to the film, Atticus appears seated on a chair at the top of the town hall steps. Armed only with a newspaper which he holds open under the light of a standard lamp, his figure summons to mind another iconic American image – the statue of Abraham Lincoln that adorns New York's famous memorial. Faced by an angry lynch mob, Atticus appears calm and reasoned, and to an audience tempered by an awareness of America's history of racial injustice, inarguably right.

Both characters must bear their responsibilities without the support of a significant woman. Viewers learn that both Dan Haywood and Atticus Finch are widowers, but that each fondly remembers his wife. One of Haywood's first acts in settling into his temporary abode in Nuremberg is carefully to place a photograph of his deceased wife on the piano. The home, the instrument and the photograph are reminders of civility and happiness in what is a broken world. The judge strikes up a friendship with Mrs Berholdt, the widow of an executed German general, but maintains a respectful distance. He is aware of the differences between them, but also keen to guard against any distractions to his work or his thinking. In To Kill a Mockingbird, we learn that Atticus's watch bears an inscription from his wife. He answers his daughter's questions about her mother. Yes, she was pretty, and nice, and yes, he did love her, and yes, he does miss her. The viewer is thus made aware of the responsibilities he carries as a single parent, and moreover, the patient and dutiful manner in which he attends to these. One senses that Miss Maudie, the mature and attractive woman who lives next door to the Finches, would welcome a romantic overture from Atticus if only he would make it. The casting of two of Hollywood's leading men, Spencer Tracey as Haywood, and Gregory Peck as Atticus, works to amplify the impression that these men are a good catch. But they are also too self-effacing and too busy. They have responsibilities and stand impervious to distractions, ultimately harnessing most of their energy in order to pursue a greater calling – that of the law.

In the light of all of this, it is not surprising that these characters, like the films in which they appear, have been perceived as belonging to a ‘heroic tradition’. This positioning resonates with a broader critique that challenges some of the basic premises and claims of Western law. The understanding and image of law that is promulgated within legal circles and which is often replicated in popular forms of representation, is rooted in Enlightenment thought. This ‘official version’, as Naffine (Reference Naffine1990, p. 24) calls it, positions law as ‘a relatively autonomous social practice, discrete from politics, ethics, religion’ (Lacey, Reference Lacey1998, p. 7). This understanding is manifested in positivist legal reasoning and practices that ensure that it is law itself – or more specifically, its amassed body of principles, methods, rules and rulings – that are privileged as the only proper source through which ‘truth’, which is considered as synonymous with justice, might be arrived at. Within this conception of the law, legal actors are understood as being confined to those who play a part in the administration of law. The judge, in particular, assumes a special place and role. He is cast as a distant but discerning figure; as one who is able to act with complete impartiality in applying the rules of the court and in exercising his wisdom to adjudicate on the matters before him. The use of the word ‘he’ is no accident here, for as feminist scholars have long noted, law has traditionally been characterised as a male domain, and its practitioners – be they judges or lawyers – as possessing qualities traditionally associated with a particularly prized notion of post-Enlightenment Western masculinity. According to Margaret Thornton, ‘Benchmark Men’Footnote ¹³ have not only historically dominated the constitution of Western legal fraternities but have also come to represent and embody law within popular culture (Thornton, Reference Thornton and Thornton2002, pp. 7–8). Dan Haywood and Atticus Finch might well then be thought of as men of law in the most celebrated, idealised and criticised sense. Yet such a characterisation, like that which fixes these films within a heroic tradition, perhaps conceals more than it reveals. There is much to suggest that the representations of law and legal actors afforded within these films are more diverse, complex and problematic than such categorisation allows for.

Certainly, the formal legal domains portrayed in these films are dominated by men, yet the absence of women as judges or lawyers is surely understandable given that their inclusion would have been out of kilter with the times these films sought to capture.Footnote ¹⁴ What is more interesting and noteworthy is the fact that, within these films, the arena of law is not confined to legislatures and courtrooms. It is the stuff of kitchen conversations and everyday observation. When Dan Haywood seeks to understand the rise and effects of Nazism, he does so by walking the streets of Nuremberg. He takes in the physical remains and the street life of the city. In the kitchen of his residence he converses with the servants who, he says, remind him of people ‘back home … good people’ (Mann, Reference Mann1961, p. 51). The problem of moral responsibility that Haywood grapples with cannot be confined to the courtroom or to those officially acknowledged as legal actors. The same can be said in regard to Atticus Finch, his family and their local community of Maycomb. Whether To Kill a Mockingbird is considered as a book or as a film, the text refuses to demarcate where law, legal issues, and for that matter lawyers, begin and end. In doing so, it defies a simplistic demarcation between the public and private, and between formal and informal legalities. As Claudia Johnson has noted, To Kill a Mockingbird is:

The entwining of the public and private worlds of Atticus Finch adds a depth and relevance to this character that exceeds his role and status as a lawyer. The Robinson case, and Atticus's role within it, arouses such passionate and conflicting responses amongst the people of Maycomb that they become fundamental to Jem and Scout's realisation that the world and those within it are not always fair or forgiving. As events unfold, different aspects of familiar people are revealed to the children. Mr Cunningham, for example, a seemingly mild-mannered farmer who is indebted to Atticus, is one of the lynch mob who gathers to claim Tom. On other occasions, such as Atticus's visits to his client's wife, the children encounter the people who live at the margins of Maycomb and whose circumstances are far removed from their own comfortable existence. Atticus helps his children negotiate these new experiences by answering their many questions and steering them away from confrontations. He insists that Scout not respond to the taunts of other children by fighting and introduces her to the importance of ‘compromise’. This is not ‘bending the law’, as Scout initially thinks. Rather, he explains, ‘It's an agreement reached by mutual consent’ (Foote, Reference Foote1989, p. 35). In explaining this, Atticus is in fact introducing Scout to the ‘social contract’; the fundamental principle that informs law as practice and theory, and which supposedly affords all citizens an equal measure of freedom and protection. And this lesson is accompanied by another, as he tells his daughter:

By the end of the Robinson case, Scout no longer needs to glimpse the adult world of the courtroom through windows not intended for her eyes. Instead of being shooed from the courthouse, she, Jem and Dill sit in the court gallery, having been made welcome by the members of Maycomb's Black community who have gathered to witness the proceedings. The children thus appear as both insiders and outsiders to law; surrounded by its appearance and its promises but becoming increasingly aware of its limitations and of the marginality of some people to it.

None of America's other celluloid heroes stands taller or is more fondly remembered than Atticus Finch. He has been named by the American Film Institute as ‘the greatest hero in 100 years of film’,Footnote ¹⁵ and has been offered up as a role model to generations of students and budding lawyers. However, his designation as a hero and his suitability as a role model has not gone entirely unchallenged. Professor of legal ethics Monroe Freedman has been particularly critical of what he describes as Atticus's ‘mythological deification’.Footnote ¹⁶ He has argued that far from being ‘a paragon of social activism’ or being motivated by true compassion, Atticus ‘acted out of an elitist sense of noblesse oblige’ (quoted in Phelps, Reference Phelps1994, pp. 511–12). He reminds us that Atticus did not seek out the case of Tom Robinson, but was asked to take it. Freedman argues that, in his daily life, Atticus at best failed overtly to challenge, and at worst tolerated and sometimes even trivialised and condoned the mechanics of race and class that made his life so comfortable whilst so grievously undermining the dignity and existence of others. Freedman concludes that whilst Atticus possesses an ‘enviable array of qualities’Footnote ¹⁷ and is ‘truly courageous in one instance’, he is ‘both more and less than the mythological figure that has been made of him. He is human – sometimes right and sometimes wrong’ (Freedman, Reference Freedman1994, p. 482).

Tim Dare, who, like Freedman, is interested in legal ethics, has also argued that at least on one occasion Atticus was clearly wrong. He draws attention to the final stages of To Kill a Mockingbird, which sees the convergence of its two parallel but interrelated storylines. The first of these concerns Tom Robinson and the second involves Boo Radley, the mysterious neighbour whose past and present looms large in the imagination of the Finch children. These storylines come together when Bob Ewell, the drunken and angry father of the young woman allegedly raped by Robinson, attacks the Finch children. Scout and Jem are saved by Boo but in the process, somehow, Ewell is stabbed and killed. In the aftermath, there is no clear explanation as to how this has occurred. Atticus thinks Jem is responsible. He acknowledges that a trial will be needed but adds that his son will be acquitted given that it was ‘a clear case of self-defense’ (Foote, Reference Foote1989, p. 78). In response, Sheriff Heck Tate offers an entirely different explanation:

In offering up this scenario, Tate absolves both Jem and Boo from further inquiry. Balance is restored informally through reference to a schema of retributive justice which, although it may be appealing to many, stands outside the principles and practices that the sheriff and the lawyer are meant to represent. It is for the courts to decide if Boo Radley or Jem are to be absolved, but Tate's explanation and Finch's simple acceptance of it negate this process. Dare argues that when faced with the prospect of defending another of Maycomb's marginal figures, the lawyer is overwhelmed by the possibility that once again the case might end in tragedy. And so Atticus explains to Scout that to put Boo Radley on trial, to even him expose him to the curiosity of Maycomb's townsfolk, ‘would be sort of like shooting a mockingbird’ (Foote, Reference Foote1989, p. 79). For Dare, this is neither legally ethical nor heroic. He instead describes it as:

The possibility that legal actors might depart from the principles of fairness and objectivity is central to Judgment at Nuremberg. It is encapsulated in the story of Ernst Janning, the former Director of the Ministry of Justice under the Nazis, who, along with three others, stands accused of committing crimes against humanity. To Haywood's mind, Janning's actions appear to defy and yet demand explanation. He reminds his fellow judges – uninterested though they are – that Janning was once a well-known and much respected jurist. Haywood is struck not by what separates him from Janning, but by what they have once had in common. He refers his colleagues to Janning's books, including one titled The Meaning of Law:

Janning is damning in his assessment of his co-accused, but he describes himself as ‘worse than any of them’ because, as he tells the court, ‘he knew what they were and he went along with them’ (Mann, Reference Mann1961, p. 151). He describes himself as having ‘made his life excrement’ because he walked with his co-defendants and other men like them (p. 151). It is this realisation that distinguishes Janning from those who cling so desperately to claims of either innocence or ignorance. It also marks him in the eyes of Haywood as a man who was once great and who is now ‘a tragic figure’. ‘Janning's record and his fate’ Haywood later concludes:

In saying this, Haywood recognises the humanity and vulnerability of both Janning and himself. He is acutely aware of the imperfections of both law and humankind. He emerges as the only character really intent upon seeking to understand what has occurred and as the only one who refuses to be swayed by expeditiousness, politics or raw emotion. He rejects, for example, the proposal of his fellow judge that in the light of developing military and political concerns the Court should find the charges against the defendants unsubstantiated. Throughout the proceedings, his determination to apply the rules of the tribunal without fear or favour prevails, even though at times being sorely tested. His stature grows but it is only as others are diminished.

In Judgment at Nuremberg, there is considerable differentiation between legal actors and how they go about ‘doing law’. This is evidenced in the attitudes and actions of Haywood and his judicial colleagues, as well as those of the lawyers who appear before them. Colonel Tad Lawson, who we learn was among the American soldiers who entered Dachau at the war's end, is responsible for presenting the prosecution case. He is abrasive and belligerent in his approach, sometimes to the point of fury. At times, his emotional investment threatens to overwhelm his role and effectiveness as counsel. In stark contrast to Lawson's impatience is the strategically calculated and technically incisive defence offered by Oskar Rolfe, the young German civilian lawyer appointed by the tribunal to represent Ernst Janning. Janning refuses to recognise the legitimacy of the Court and is equally unco-operative in his dealings with Rolfe. The young lawyer, however, remembers and admires the older man as an exemplar of what a lawyer might be, ‘a shining light to us all’ (Mann, Reference Mann1961, p. 30). Rolfe's deference towards Janning is framed by the hierarchical relations that typically dominate legal culture and which routinely promote reciprocal displays of subservience and patronage. Thus Rolfe promises to defend Janning in a manner that he believes recognises his proper standing:

In this film, the validity of legal principles and the question of what exactly constitutes acceptable legal practice is brought to the fore. Audiences, for example, are drawn to sympathise with the frustration of Lawson as he struggles to find sufficient evidence to prove the guilt of the defendants. That some evidence is ruled inadmissible appears to fly in the face of what is known, thus casting doubt upon the validity of rules that require that particular standards of relevance and particularity be met. The possibility that law might impede rather than assist the quest for justice is clearly put on display. But prompting an even greater sense of unease over law's capacity to be just in both its proceedings and its outcome is Rolfe's defence of Janning. Rolfe's acuity, tenacity and unwavering commitment to his client's cause results in ruthlessness. Unlike Lawson, who appears frustrated and constrained by the technicalities of courtroom procedure, Rolfe thrives in the environment. His determination to exploit every avenue available to him whilst working within ‘the rules of their game’ is most obviously revealed during his cross-examination of prosecution witnesses. In one harrowing scene, Rolfe reduces a young German man, Rudolph Peterson, to a pitiful wreck as he seeks to prove that the witness's sterilisation by the Nazis was not an act of political payback but rather a legitimate measure under German laws pertaining to the congenitally feeble-minded. Rolfe's cross-examination includes an ‘intelligence test’ which Peterson fails to complete. As the scene draws towards its conclusion, the harmless and distraught Peterson produces a photograph of his mother and implores the court to judge whether or not she was ‘feeble-minded’. Rolfe uses this desperate plea as evidence that Peterson is indeed ‘not in control of his mental processes’ (Mann, Reference Mann1961, p. 69).

A second cross-examination that proves no less gruelling involves Irene Hoffman, an Aryan woman who appears as a result of Lawson's implorings that she help bring to justice those responsible for the 1942 prosecution and execution of Lehmann Feldenstein, an elderly Jewish man who had been convicted of having sexual relations with her. Janning had presided over the trial, and once again Rolfe sets about defending him in a manner that is as relentless as it is merciless. He lays a platform for his attack, calling first upon the cleaner who had provided the scant evidence used to convict Feldenstein. Upon Rolfe's request she recounts that on one occasion she had seen Hoffman and Fendelstein kissing, and on another she had seen the young woman sitting on the old man's lap. In his examination of Hoffman, Rolfe uses this testimony in an attempt to affirm the guilt not only of Feldenstein, but also of Hoffman. He proceeds to highlight how as a young girl Hoffman had contravened laws prohibiting interactions between Aryans and Jews by maintaining contact with the elderly man, and calls into question her motives for doing so. Her attempts to describe their friendship, together with Feldenstein's kindness and his fatherly treatment of her, are swept aside as Rolfe extracts confirmation that she had kissed him and sat on his lap. And in his questions he suggests that there is more to know: ‘Was there more than one kiss? … What else did you do? … What else do you admit to?’ (Mann, Reference Mann1961, pp. 137–39). While Haywood is visibly discomforted by the unfolding events, he cannot rule Rolfe's questions out of bounds. Meanwhile the increasingly distraught witness can only cry out ‘Stop it! Stop It’.

For all of his technical precision and his devotion to defending his client, Oskar Rolfe is unlikely to be labelled a hero, and yet the tactics he employs are not at all far removed from the courtroom conduct of Atticus Finch. Atticus too stays within the law, he even appears gentlemanly in contrast to those around him, but he is also ruthless in a way that only the law allows. His cross-examinations are no less calculated and clinical than Rolfe's. When Atticus produces a pen and paper from his pocket and asks Bob Ewell to write his name, he knows that it will reveal not only which hand the witness favours but also his near-illiteracy. It will reveal once again, for all to see, the ignorance and worthlessness commonly ascribed to those who live by the dump. Teresa Phelps has noted that it is not only race but also class distinctions which infuse the social and geographical make-up of Maycomb (Phelps, Reference Phelps1994).Footnote ¹⁸ And it is these distinctions, intertwined with particular understandings of gender, which Atticus deploys in his defence of Tom Robinson. As Steven Lubet has argued, Atticus ‘rightly or wrongly, designed his defence to exploit a virtual catalogue of misconceptions and fallacies about rape, each one calculated to heighten mistrust of the female complainant’ (Lubet, Reference Lubet1999, p. 1351). In his examinations of Mayella and Tom, Atticus sets out to elicit details which in combination create a potent image of the alleged victim as a woman who is driven by sexual fantasy, who is sexually voracious, spiteful, confused, and ultimately so ashamed, that she can do nothing else but lie.Footnote ¹⁹ What Atticus offers, Lubet argues, is a multidimensional rendering of the ‘she wanted it’ defence; an advocacy tool that lawyers still commonly use in the belief that it is the most likely to achieve the acquittal of defendants (pp. 1351–53). After Mayella has provided her account of events in response to Atticus's questions, Atticus makes his rejection of them clear: ‘Do you want to tell us what really happened?’, he asks. Mayella's response is to lash out at the court:

Mayella dissolves into tears, knowing that she is trapped in her own lies. But her words also reveal her acute awareness of the differences that exist between herself and those who judge her. She is trapped as much by her own father as she is by the hierarchy of the town and the callousness and neglect its residents display towards people like her.

In considering the actions of Atticus and Rolfe as legal actors, it is impossible to remove them from the fictional and not-so-fictional contexts in which they are presented. The German counsel's actions, for example, appear far more merciless than those of Atticus because he is representing a man who we know, or at least think of, as being guilty beyond doubt. Moreover, it is the innocent victims of his alleged crimes who are forced to endure Rolfe's clever but bombastic legal manoeuvrings. Indeed, so torturous do these become that the defendant Ernst Janning interjects, bringing the proceedings to a halt. He later expresses his unwillingness to perpetuate the lies that had led to his own debasement and that of his country. Conversely, Atticus Finch is defending a man who we believe or assume to be innocent of a capital offence and in a racial context that offers little prospect of acquittal. Given these factors, it has been argued that Atticus was right to use the ‘she wanted it’ defence. What else could he have done? However, whether or not the use of such an approach should be considered heroic or desirable is an entirely different question. In offering such a defence, Atticus Finch was arguably doing what any lawyer in the same situation would have done, but that does not mean that such an action necessarily reflects well upon law or legal actors. As Lubet notes:

In the light of this observation, it is also worth considering Atticus's closing statement, which has commonly been read as evidence of his faith in the law and as a testament to law's capacity to do justice. His final summation concludes with the following:

This passage might well be interpreted as evidence that To Kill a Mockingbird offers an idealised view of the law. However, there is also an alternative reading available. Within this, Atticus's statement can be understood as part of his strategy to gain the acquittal of his defendant, rather than as a statement of fact or personal belief. In the earlier stages of his summation, Atticus expresses his pity for Mayella Ewell, whom he describes as ‘the victim of cruel poverty and ignorance’ (Foote, Reference Foote1989, p. 66). But he goes on to make clear that this pity does not extend to accepting her claim of rape against an innocent man. Atticus argues that Mayella's accusation is a result of her desire to rid herself of guilt at having broken a ‘rigid and time-honored code’ precluding White women from making sexual overtures to Black men. This iteration of the ‘she wanted it’ defence culminates with Atticus's appeal to the jury. As Lubet points out, ‘for Tom to be the most believable, Mayella must be the most disgraceful’ (Lubet Reference Lubet1999, p. 1355). If there is any hope that Tom is to be acquitted, then the jury must be persuaded to suspend their assumptions positing all Blacks as ‘immoral beings’, and all Black men as potential rapists. Further, Atticus has to convince the jury to enact principles of fairness in their deliberations, thus he offers an idealistic view of the legal system, but for a specific purpose – to win the acquittal of Tom Robinson. Understood in this way, Atticus's summation exemplifies law as ‘constitutive rhetoric’, as:

If Atticus's summation is not understood in this way, if it is accepted simply as evidence of his faith in the law, then we are faced with two possibilities. The first is that Atticus is astonishingly ignorant or blind to the reality faced by many; namely, that far from being great levellers, the courts as they existed at that time, like the law generally, constituted a significant force in facilitating the maintenance of a social order that was blatantly unjust in its treatment of the Black and the poor. This possibility echoes Monroe Freedman's controversial condemnation of Atticus as a ‘passive participant in that pervasive injustice’ (quoted in Johnson, Reference Johnson1994, p. 18). The second possibility is that Atticus ultimately becomes a tragic figure who by the end of the narrative has abandoned his faith in the law. In acquiescing to Sherriff Tate's plan to spare Boo Radley from prosecution, Atticus acknowledges that the law cannot protect the recluse. Even more tellingly, as Tim Dare notes, it is at this point that Atticus becomes part of the process by which guilt or innocence is determined according to ‘the “secret court's of men's hearts” rather than by the public processes of the courts of law’ (Dare, Reference Dare and Economides1998, p. 44). The dynamic that contributed to the tragic outcome in the Robinson case is replicated informally in the treatment of Boo Radley. However, it appears a more amenable result given the preceding events and who is it that decides guilt or innocence in this instance. Neither of these possibilities enhance the status of law or legal actors. Just as in Justice at Nuremberg, it is the fragility of law and its inextricable basis in social relations that comes to the fore.

Unsettling visions

Despite both being products of the social and political milieu of mid-twentieth-century America, and sharing common concerns with law and justice, Judgment at Nuremberg and To Kill A Mockingbird experienced quite different fates. The American premier of Judgment at Nuremberg took place on 16 December 1961, the same day as an Israeli court sentenced former Nazi leader Adolf Eichmann to death. Some reporters wondered if the timing was the result of deliberate engineering by the film's director, Stanley Kramer, while others found that the timing added to the film's resonance (Gonshak, Reference Gonshak2008, p. 156). According to Henry Gonshak, critical responses to the film tended to focus on ‘two large issues’, both of which transcended the historical setting and events featured in the film. The first of these concerned the fundamental philosophical issue of moral accountability; in other words, the degree to which human beings, individually and collectively, might be considered to be responsible for the well-being of others. The second line of response related the film to prevailing political concerns, in particular, America's involvement in the Cold War and its arms race with the Soviet Union. As one commentator, Jason Epstein, put it:

As Gonshak argues, and as this quote more than amply illustrates, commentators of the day were not particularly interested in what the film had to say about the Holocaust. It seems that in America the resounding silence that had partly prompted Mann to write the screenplay continued to linger. Whilst the film boasted a star-studded cast, and a handful of Academy Award nominations as well as considerable critical acclaim, Judgment at Nuremberg failed at the box office (Harris, Reference Harris1987, pp. 145–46). Kramer attributed this to the film and not to filmgoers. Certainly, the film's length (over three hours) and its narrative heaviness may have proved off-putting for some prospective viewers. But equally, if not more so, was the subject of the Holocaust and Kramer's handling of it. Included within the film, for example, is documentary footage taken by American soldiers entering the concentration camps at Dachau and Belsen in the final stages of the war. The footage contains a barrage of images: ovens, corpses, a lampshade made of human skin, a human pelvis used as an ashtray. Whether the inclusion of this film within a film is described as a stroke of brilliance or as an example of unnecessary heavy-handedness, the images are as confronting today as they were fifty years ago. Also, throughout the film are moments which hint at some consistency between American thoughts and actions and those that have come to be so singularly associated with Nazi Germany and the Holocaust. The most striking instance of this occurs in a scene in which Rolfe challenges the claim that sexual sterilisation laws were a ‘novel National Socialist measure’ (Mann, Reference Mann1961, p. 36). He argues that sterilisation had been widely used, and supported this through reference to a legal opinion espousing the necessity of sterilising those deemed mentally incompetent. It is subsequently revealed to the court – and to the surprise and displeasure of the Americans therein – that the opinion is that of eminent American Jurist and Supreme Court Judge Oliver Wendell Holmes.Footnote ²⁰ In such moments, Judgment at Nuremberg clearly sought to challenge the knowledge and preconceptions of those who viewed it, and, along with that, the acceptance of law as necessarily objective and just. This challenge may partly contribute to what was its popular rejection.

In contrast, To Kill a Mockingbird was enthusiastically embraced even before it reached America's cinemas. By the time of the film's premier in Hollywood on Christmas Day 1962, Harper Lee's novel had sold 500,000 copies and had been translated into ten languages (Johnson, Reference Johnson1994, p. xiii). A Pulitzer Prize was amongst the accolades directed to the author. The reputation of the novel, together with the casting of Gregory Peck in the lead role, contributed to the sense of anticipation that saw people queued around the block for the film's New York opening on Valentine's Day in 1963 (Shields, Reference Shields2007, p. 226). In the Southern states, audiences were more reserved, reflecting existing tensions and divisions over race. These were clearly on display in Birmingham, where the screening of the film coincided with an organised street march by thousands of Black children. It was broken up by police who arrested as many as they could and then turned fire hoses upon the rest (Shields, Reference Shields2007, p. 229). Harper Lee was reportedly of the view that the film ‘did justice to the book’ and thus, we can assume, to her aim of giving ‘a sense of proportion to life in the South, that there isn't a lynching before every breakfast’ (Shields, Reference Shields2007, p. 221). Others, however, were not so sure. In a review that predicted some of the criticism that would later be levelled at both the book and the film, Brendan Gill wrote in the New Yorker:

Others then and since have noted that, within the film, the collapsing of the narrative into a single year, the focus on a smaller array of characters and the absence of young Scout's narrative voice resulted in much of the subtlety and texture of the book being lost. Moreover, the concentration on Peck, which was partly due to the actor's demands, led to a pronounced shift in the perspective that was offered. To Kill a Mockingbird was transformed from a story about a young girl growing up in a small Southern town into one that principally concerned Atticus. As Shields tellingly notes, the film ‘is largely Atticus's story, even to the point that Tom's fate, which means death, seems less important than Atticus's losing the case’ (Shields, Reference Shields2007, p. 226). In a sense then, viewers of the film are invited to walk in Atticus's shoes, not Scout's or Tom's. This focus upon the character and struggles of Atticus has had an important effect in stifling acknowledgement and discussion of To Kill a Mockingbird's more unsettling aspects. It has also no doubt contributed to this film being regarded as part of a cinematic tradition that is characterised as offering a heroic representation of law and legal actors. However, as this discussion has sought to illustrate, such categorisation may conceal more than it reveals. In the cases of Judgment at Nuremberg and To Kill a Mockingbird, there is much to suggest that it is not certainty, but rather the fragility of law and legal actors that is exposed. Whether or not we choose to recognise and explore this fragility is another matter entirely.