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The International Journal
of Not-for-Profit Law

Volume 6, Issue 2, February 2004

A publication of the International Center for Not-for-Profit Law

Table of Contents

Letter from the Editor

The Pacific

Social Inclusion and the Indigenous People of Australia: Achieving a Better Fit Between Social Need and the Charity Law Framework
Kerry O'Halloran

Australia Crawls Closer to Reform of the Definition of Charity
Myles McGregor-Lowndes

Consultations Toward Legal Reform in Tuvalu
James Duckworth and Mose Saitala

Social Capital and Philanthropy in Maori Society
Tuwhakairiora Williams and David Robinson

The Challenges Facing American Nonprofits

Deterring Donors: Anti-Terrorist Financing Rules and American Philanthropy
Barnett F. Baron

A Needless Silence: American Nonprofits and the Right to Lobby
Jeffrey M. Berry

The Nonprofit Paradox: For-Profit Business Models in the Third Sector
Bill E. Landsberg

Articles

Survival Strategies for Civil Society Organizations in China
Julia Greenwood Bentley

An Introduction to Canadian Tax Treatment of the Third Sector
Robert Hayhoe

"Organized" Civil Society and Its Limits
Antonio Itriago and Miguel Angel Itriago

The Fiscal Framework for Corporate Philanthropy in CEE and NIS
David Moore

Defining Characteristics of Civil Society
Timothy J. Peterson and Jon Van Til

The Alchemy of Success: The Case of Corporate Responsibility
Simon Zadek

Civil Society at the Movies
Rod Smolla

Reviews

The Civil Society Reader
Edited by Virginia A. Hodgkinson and Michael W. Foley
Reviewed by Morgan Meis

The Perfect Gift: The Philanthropic Imagination in
Poetry and Prose
Edited by Amy A. Kass

Does Civil Society Matter?: Governance in Contemporary India
Edited by Rajesh Tandon and Ranjita Mohanty

The State of Civil Society in Japan
Edited by Frank J. Schwartz and Susan J. Pharr

Paved With Good Intentions: The NGO Experience in North Korea
Edited by L. Gordon Flake and Scott Snyder

The Legal and Regulatory Framework for CSO Self-Financing in Colombia;
The Legal and Regulatory Framework for CSO Self-Financing in Chile
By Nicole Etchart, Brian Milder, Maria Cecilia Jara, and Lee Davis

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Editorial Board

Civil Society at the Movies

By Rod Smolla*

It’s the holiday season. Our house is overstuffed with overstuffed people. Outside, it's cold; inside, cabin fever is slowly building. Kids from three to fourteen on school breaks overrun the premises. With the Internet and video games and music downloads and a hundred or so television channels, I worry less about the family's being bored than about our being fat and vacuous. We decide to spend part of each evening watching a movie together, rotating the selection.

I’m pleased to find that left to their own devices, the kids pick movies with some instinct for quality. The video games, commercial gluttony, and information overload must be vaguely nagging at them as well. They choose movies with meaning, as if they owe some fiduciary duty to the spiritual well-being and civility of the family as a whole. Not that they would think these thoughts in so many words or own up to them in my words, but the pattern is there. At least it humors me to think so.

A few flicks make it by acclamation: It’s a Wonderful Life, A Christmas Story, and National Lampoon’s Christmas Vacation, starring Chevy Chase. One of our teenaged daughters picks Pleasantville, a wonderful study of creativity and individuality busting loose against phony and complacent conformity. The Seven Samurai gets chosen by a teenaged son, and we are transported by Akira Kurosawa’s epic Japanese tale of war and honor. Casablanca makes the cut. So does To Kill a Mockingbird. To me there is positive portent in the fact that the kids will sit still for films in black and white.

I'm struck by how some of our choices portray civil society. Time and again in these films, citizens work together and manage to prevail over merciless authority. Community trumps power, whether the power is governmental (the Nazis in Casablanca) or corporate (the miserly banker in It's a Wonderful Life). Repeatedly, too, human decency leavens the exercise of official authority. Police Captain Renault in Casablanca watches as Rick Blaine, played by Humphrey Bogart, kills a Nazi major in self-defense--but rather than arrest Blaine, Renault orders his men to "round up the usual suspects." At the end of It's a Wonderful Life, the townspeople sing "Auld Lang Syne" as they place cash in a basket for impoverished George Bailey, played by Jimmy Stewart. A police officer holds up a warrant for Bailey's arrest, tears it in two, drops the pieces in the basket, and joins the chorus.

To Kill a Mockingbird is especially satisfying. Harper Lee won the Pulitzer Prize for her novel (the only one she ever wrote), and the 1962 film starring Gregory Peck as Atticus Finch is a classic in its own right. In the course of the last year, two of our kids read the book for school and wrote essays on it, and I assigned the movie to a law school class on the Constitution and American culture. To Kill a Mockingbird can inspire a person to become a lawyer.

It's a story about the failings of the law and the breakdown of the system of justice. At the same time it's about our yearning for justice and our faith in the law. With race-hatred and mob hysteria consuming their small Alabama community, Atticus Finch, the brave lawyer who dares to defend a falsely accused black man, and his two kids, Scout and Jem, somehow endure. And Justice, though at first perverted by prejudice, somehow triumphs. 

Early in the tale, Scout describes her father’s law office in the town courthouse as containing “little more than a hat rack, a spittoon, a checkerboard and an unsullied Code of Alabama.” I’ve always liked that image of the “unsullied Code of Alabama,” suggesting that Atticus didn’t find much need to consult the formal statutes. And there is the even more powerful intimation that “law” and “justice” don’t reside in the Alabama code, but in the hearts and minds of the human beings who administer each trial: the judge, the jurors, the sheriff, the witnesses, the defendant, the prosecutor, the defense attorney.

The story reflects what America was becoming on the verge of World War II, and what it is still becoming. Calpurnia, the black woman who cares for Scout and Jem, is a powerful moral anchor, helping Atticus hold his family together and showing Scout and Jem that the black community perceives their father as a hero. There are echoes of Hitler and the Holocaust, the New Deal, and the Supreme Court, including a reference to how the National Recovery Act was struck down by “nine old men.” Scout explains that Macomb County had recently been told that it had nothing to fear but fear itself, an allusion to Franklin D. Roosevelt’s First Inaugural Address. (Roosevelt’s speech on that occasion, remembered most for the “nothing to fear” sound bite, is also an unusually deep presidential commentary on the need for each new American generation to approach with flexibility the task of interpreting the Constitution: “Our Constitution is so simple and practical that it is possible always to meet extraordinary needs by changes in emphasis and arrangement without loss of essential form.”)

To Kill a Mockingbird is about the human tendency to caricature, fear, and hate outsiders, and the ways this tendency can pervert civil society. Scout and Jem and their friends turn their reclusive neighbor, the mysterious Boo Radley, into a mythical demon. And the soul of the story, of course, is how Atticus defends the African-American Tom Robinson, wrongly accused of raping a white woman, Mayella Ewell, a “thick-bodied girl accustomed to strenuous labor.” Scout and Jem endure the opprobrium of their schoolmates. The tension reaches a peak one night as a mob, intent on lynching Tom Robinson before the trial even starts, tries to storm the jail. Atticus camps out at the courthouse to try to dissuade the mob, yet he seems about to fail until little Scout arrives on the scene. She recognizes familiar townspeople, and in her innocence tries to engage them in polite conversation. The effect is to shame these mostly decent folks caught up in indecent prejudice and hysteria. Scout’s youthful innocence breaks the mob psychology, and the crowd disperses and goes home.

There is hope that the jury will also do the right thing. Everyone can see that the trumped-up case against Tom Robinson is nothing more than a cover for the fury of Bob Ewell, who seeks to work a tortured revenge for the fact that his daughter Mayella tried to seduce Robinson, breaking the taboo against miscegenation that's at the core of Ewell’s twisted identity. Atticus Finch’s plea to the jury is a masterpiece. Looking the jurors in the eye, he admonishes that trial by jury is the “one human institution that makes a pauper the equal of a Rockefeller, and a stupid man the equal of an Einstein.”

The tragedy accelerates at the pace of Shakespeare. The jury is not moved, and Tom is found guilty. Certain that justice will never be done, he tries to escape from the prison farm where he is being held pending his appeal, and he is shot dead by a guard. Bob Ewell, still enraged by the scandalous testimony about his daughter, wants even greater vengeance. He stalks the innocent children of Atticus Finch as they return home from a Halloween school play. In a brilliant sequence told through the confused eyes of Scout, Jem is hurt, and Bob Ewell lies dead, stabbed with a knife.

The sheriff, Heck Tate, at bottom a fair and solid man, is summoned to investigate. Atticus wants to protect his son. He is certain that Jem killed Ewell, though surely in self-defense. But for once Atticus does not see things clearly. It was the hermit neighbor, Boo Radley, who came from the shadows to rescue Jem and Scout, overpowering Bob Ewell and stabbing him--a justified homicide, to be sure, but also something that could produce another unpredictable show trial. To Atticus, the sheriff laments “taking the one man who’s done you and this town a great service an’ draggin’ him with his shy ways into the limelight.” He explains that his official report will say that Bob Ewell fell on his own knife. Atticus acquiesces. Once again, it’s not the official Code of Alabama but the innate instincts of decent human beings that achieve justice. As Scout walks Boo Radley home, she thinks about what it must be like to “stand in his shoes and walk around in them.”

The movie’s over. Two hours of grainy black and white picture, but the kids were riveted the whole time. Then comes the ultimate triumph: one of the girls says Atticus Finch reminds her of Dad. But all vanities are fleeting; it turns out she is only echoing Scout, who observed that Atticus was nearly fifty and thereby frail. After further debate, a consensus emerges that Dad reminds them more of Chevy Chase. It’s okay. I’ll take what I can get.

Notes

* Rod Smolla is the Dean of the University of Richmond School of Law. Copyright 2004 by Rod Smolla.

 
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