Author: Ananya P Muralidhar,
3rd Year B.A. L.L.B,
 School Of Law,
 CHRIST (Deemed To Be University).


The classic novel of Gone with the Wind is an exemplary illustration to understand the idea of Law and Literature concept put forth by Richard Posner, Martha Nussbaum and Boyd. This paper captures the relevance of the Law and Literature movement by citing various instances in the novel and further reaffirms the significance of it in the current society, through various cases. It upholds the empathetic relationship between the law and the people, as put forward by Martha and reflects on the judicious spectator concept. The paper further throws light on the ethical and cultural stages in the story which in turn had a major role to play in the liberation of slaves and in bestowing the rights to them. This paper, in its entirety establishes the significance of literature in the manner in which law is interpreted and the effect it has on the judges and the public.

Gone with the Wind, by Margaret Mitchell, was published in 1936. This sweeping Civil War saga owes its popularity to its gritty descriptions of war and its flowery love stories. Gone with the Wind, which won the Pulitzer Prize in 1937, is the story of the way a land and people ravaged by war can reach within themselves and overcome what seem to be unimaginable odds. This novel also shatters stereotypes about the place of women and minorities in society.[1] Gone with the Wind is the ultimate American Civil War story and stands up as one of the best novels of all time.
A classic is one which has passed the test of time and has a universal appeal. Gone with the wind is one such book that easily gets categorised as a classic. Readers of this age still relate to it, since the book narrates not only of the love story but also how Scarlett emerges from a dependent, spoilt southern Belle to a female heroine who is a driven businesswoman who breaks the stigma of the society to support her family.

Furthermore, the book makes us aware of the black slaves and the way they used to be treated during that period and makes understand the need and the relevance of the laws and statutes that abolishes slavery in this age. It also helps us understand the way the protagonist and the society interacted with each other.
 In case of Scarlett, she didn’t mind being an outcast since it was the only means for her to sustain and take care of her family. This makes it universally appealing because the era might be different, but the way the society thinks of women has not changed much. The presence of a wider canvas, involving many characters, each with his or her own backstory , makes the novel globally acceptable to all, irrespective of their caste, creed or economic background. The wider canvas also helps in understanding the historical relevance of the Civil War, which is the backdrop for this novel. Thus, making Gone with the wind, an ageless classic of its time.


Posner, in his article [2] writes strongly disagreeing with the law as literature movement, which dwells in the idea that laws and statutes are interpreted in the same manner as literary works are. He further states that the there are better places to learn about law than novels, unless they want to learn about how laymen react to law and lawyers.[3] 
Posner emphasises on two ideas explicitly in his article; one, is his reasons to not support the law as literature movement and explains how great writers often take the law in literature approach [4]. Second, how judicial opinions, like literature, belong to the branch of communication known as rhetoric, and the importance of rhetoric style.[5] 

Keeping in mind Posner’s Law in literature approach, and on applying it to the novel, it comes to our notice the various parts in which Margret Mitchell has used law or aspects of it in her book. One of the first instances that comes to mind is the part immediately after the civil war, when Scarlett returns to Atlanta to meet Rhett Butler, in order to let him know that she is willing to be his wife or mistress in return of money, for which she was in desperate need of. However, upon her return and on asking the whereabouts of Captain Butler, that he had been arrested for killing a free negro, who had insulted a white woman and that he would be hung to death if sufficient evidence would turn up against him. Furthermore, given the condition of events at the time, there was a dire need by the Yankees to get a hold on the southern confederate states after the war and to curb the growth and the increasing atrocities initiated by the Ku Klux Klan, against the free blacks who threaten the safety of the white women, they were willing to hang Rhett even without sufficient evidence to set an example to others regarding the consequences of such behaviours. Although Rhett got his freedom by blackmailing a prominent personality of the Democrat party, he confesses to Scarlett that he was guilty of the crime. Margret’s description in this part of the novel gives us an understanding of how the justice system during the period of the Reconstruction was rudimentary. It was based more on the grounds of how steps could be taken by the Yankees over the Confederate States to strengthen their grip and to free the blacks.
 It was clearly seen that around this post-civil war reconstruction period, the Yankees played a key role in exploiting their dominance over the trial proceedings and in getting judgements in their favour. Amongst a series of wrongfully convicted cases, on such case during this period was the case of State v William Gordon and John Gordon[6], where the defendants were falsely convicted for the murder of one black women, Amasa Sprague. The Court Justices, which included Justice Job Durfee, that were involved in all three trials acted as both trial judges and the court of final appeal. Included in jury instructions, Durfee told the jurors to give “greater weight to Yankee witnesses than Irish witnesses” [7]. Furthermore, the concept of “ low-rape” of black and white women became increasingly common and reached its heights during the Sherman’s March . It was considered by the Confederate soldiers that their true manhood was characterized by sexual restraint not sexual assertion; even mutually agreeable intercourse would have threatened masculine identity. Thus, thousands of rape cases went unrecorded during this later part of the Civil War.[8]

The rhetoric aspect of gone with the wind can be derived from the title itself which was inspired from the poem the first line of the third stanza of Dowson’s 1894 poem, Non Sum Qualis Eram Bonae Sub Regno Cynarae. He explains how Venus has inflicted mush pain and torture on him by taking away his Cynara. He talks about his love for her as an old passion, something that he was used to but now in the absence of it suffers more than anyone else. The same title appears in the novel , to express how, just like his love for Cynara has gone with the Wind, Scarlett wonders if Tara still exists or has too gone with the wind that swept through Georgia? “gone with the wind” refers to the pre -war south and it’s culture that got destroyed. The manner in which she poses the question of Tara’s existence using rhetoric, question the not just the destruction of Tara but everything that Scarlett has ever known; her family, her old life and the old South.


Martha’s article[9] on the other hand supports the law as literature movement where she elaborately discusses about the impact of the movement in providing an empathetic relation with law and people. She explains how judges must use literature and understand the historical and sociological background of the people under trail in order to empathise with them and to grant them with a fair judgement and thus, must become poet. These judges bring about a uniform opinion in every situation as they view all objects and situation in fairness and brings into light all the issues, no matter how small they are. The idea that law as literature was further described by explaining how literature allows a reader to have a better understanding of an individual and removes the way in which one sees everyone as merely any other man or woman, living a uniform life. Emphasis was further relied on the need for judicial neutrality, where in the judge should use literary imagination in pursuing this comparison: qualitative difference, individual separateness and appropriately constrained emotions.[10]
This novel can be approached as a judicious spectator as the entire novel is the story of the Civil War, from the perspective of southern belle of a confederate state. It shows us how the white upper class of the south got effected when the war took place; how the Yankee soldiers of the Sherman’s march took upon themselves to not just free the black slaves but also ruin and burn the south down to its roots, so that it can never raise back again to oppose them. Along side this, it narrates the story of those slaves, like Mammy and Porker who stood by their masters, to help them build the south back to it’s former glory after the war, while some chose to embrace their newly acquired freedom.

 Although, to sought revenge for the white women who were getting assaulted by these freed black men, cans like the Ku Klux Klan started emerging, which consisted of the local confederate men of the southern states. By gaining a perspective of the civil war from the side of the confederates and from the known perspective of the Yankees, we can understand the judgements given in landmark cases pertaining to black slavery and rights through a detached evaluation of the case. One of the major landmark cases that acted as a catalyst for the civil war to initiate was the Dred v. Stanford [11] case. This decision made by the U.S. Supreme Court determined that black slaves could not be American citizens, and therefore could not sue an American in federal court. The landmark decision also deemed the federal government unable to regulate slavery in territories established after the U.S. was created. The court cited the Fifth Amendment and claimed that the government could not deprive a slaveholder of his property. While Chief Justice Taney, who handed down the ruling, hoped this would end the slavery discussion, it actually resulted in more than further discussion. The judgement provided in this case is completely against what a poetic judge should provide as it is not a judgement providing equality or justice to the person under trail. Plessy v. Ferguson was an 1896 U.S. Supreme Court decision that upheld the constitutionality of racial segregation under the “separate but equal” doctrine. The case stemmed from an 1892 incident in which African-American train passenger Homer Plessy refused to sit in a car for blacks. Rejecting Plessy’s argument that his constitutional rights were violated, the Supreme Court ruled that a state law that “implies merely a legal distinction” between whites and blacks did not conflict with the 13th and 14th Amendments.[12] Restrictive “Jim Crow” legislation and separate public accommodations based on race were encouraged after the Plessy decision, and its reasoning was not overturned until the Brown v. Board of Education[13] decision in 1954. The lone dissenter, former slave owner Justice John Marshall Harlan, denied that a legislature could differentiate on the basis of race with regard to civil rights. He wrote: “The white race deems itself to be the dominant race,” but the Constitution recognizes “no superior, dominant, ruling class of citizens.”[14] Thus, expressing the true qualities of a poetic judge.


James Boyd White states that the legal imagination actually triggered the law and literature movement. He believes that every text is at once an ethical and a cultural performance-whether its writer knows it or not-and it can be judged as such.[15] The author puts forth an ethical question through her work in the novel, for which we sought the answers for. Cultural issues can be issue; economic issue, issues in the society, cultural interaction etc.
In this novel, there are various cultural performance and ethical questions that get raised throughout the story. The main cultural backdrop of this novel is the civil war of the 1861 in America, that changed the lives of all plantation owners and slave masters. The novel opens in pre-war Georgia, where tradition, chivalry, and pride thrive.[16] As the Civil War begins, the setting shifts to Atlanta, where the war causes the breakdown of traditional gender roles and power structures. When the South loses the war and the slaves are freed, putting a stop to the Southern way of life. It is seen how Scarlett grows into a women from a little girl as the old south transforms into a new one. Ashley remains a part of the old south, unable to change and rooted to the past, fading while Rhett represents the New south, full of new opportunity and realistic.
Scarlett emerges as a powerful, independent and intelligent woman as the novel progresses, quite different from the self-centred southern belle we are introduced to in the beginning of the story. Her true character as a feminist heroine is shown when she delivers Melanie’s baby as Atlanta burnt down to ashes and rode carriage back to Tara, in the middle of the night, on a path filled with dangerous Yankees with no man to protect her by her side.. Left behind with a demented father, burnt plantation, no food and only hope to live on, she works hard to rebuild Tara and works her way up in the new political order, taking care of helpless family members and friends along the way. Mitchell suggests that overcoming adversity sometimes requires ruthlessness. Scarlett becomes a cruel businesswoman and a domineering wife, willingly coarsening herself in order to succeed. She gains confidence and will power from people like Old Miss Fontaine, who watched Indians scalp her entire family as a child and then gritted her teeth and worked to raise her own family and run a plantation and Rhett Butler, thrown out of his house without a penny, but he manages to amass great wealth.

Scarlett is reminded, time and again by her father, Gerald of the importance of Tara. He tells her that land is the only thing in the world that amounts to anything. Scarlett is often reminded of Tara during her times of hardship. When Atlanta burnt down in flames, she rushed to Tara with sick Melanie, through the Yankee filled woods because she knew that she would be safe in Tara, where Gerald and Ellen would take care of her and relive her of all the burden she carried. It’s Tara that she tries hard to rebuild and gets her hands dirty in growing the cottons again. Scarlett prizes land even over love. When Ashley rejects Scarlett’s proposed affair, he gives her a clump of Tara’s dirt and reminds her that she loves Tara more than she loves him. Feeling the dirt in her hand, Scarlett realizes that Ashley is right. She was willing to let go of her dignity and pride, to become Rhett Butler’s mistress as she needed money to pay the taxes on the plantation. She gets married for the second time in order to save Tara. At the end of the novel, when all else is lost, Scarlett thinks of Tara and finds strength and comfort in its enduring presence.

The strong role of a female businesswoman that Scarlett emerges into is the very kind of role model that is required to inspire every girl in our society. This aspect of the novel deeply connects with its young readers and inspires them. It makes them feel driven and empowered for seeing a female heroine break free from the social stereotypes prevalent at the time and establishes her self to be a confident and independent young woman who is capable enough to take up all the duties that only men can do.


It is important to address the fact that literature teaches one, a way of reading that becomes a way of writing too.[17]  Boyd explains the meaning of this statement through an aspect of literature that he appreciates called as literary critique. Literary critique involves the analysis and questioning of the common underlying issue in a group of books taken and comparing and contrasting it with various civil and criminal laws of the world and checking whether it was applicable for that analysis. The lawyers and judges must have to question multiple perspective and derive some objectivity from it.[18]

In the given case, one of the common underlying issue in the case of Gone with the wind is the about the black rights and slavery at the backdrop of the Civil War. We say how several slaves get freed by the Yankees in this period and quite a few of them start targeting the whites. In order to seek revenge from them, the white men started organising crimes against them and kill these black men for their wrong doings. They called themselves the Ku Klux Klan. But on the other hand, there were black slaves like mammy who continued to serve Scarlett, even after the war. Slaves like porker and prissy who stood by their masters’ side during the times of hardship after the war, where they helped them build back their plantation from nothing. The main reason why the slaves stayed with the O’ Hara’s till the end was because of Gerald, who had never once in his life time as a plantation owner had raised his hands on a slave nor had her ever sold his slaves away. The slaves knew for a fact that this was the best way they will ever be treated on any plantation. We can compare the black rights and slavery aspect of this book, with that of Uncle Tom’s Cabin[19], Beloved [20]and Adventures of Huckleberry Fin[21].

Uncle Tom’s Cabin tells the story of Uncle Tom, depicted as a saintly, dignified slave. While being transported by boat to auction in New Orleans, Tom saves the life of Little Eva, whose grateful father then purchases Tom. Eva and Tom soon become great friends. Always frail, Eva’s health begins to decline rapidly, and on her death-bed she asks her father to free all his slaves. He makes plans to do so but is then killed, and the brutal Simon Legree, Tom’s new owner, has Tom whipped to death after he refuses to divulge the whereabouts of certain runaway slaves. Tom maintains a steadfastly Christian attitude toward his own suffering, and Stowe imbues Tom’s death with echoes of Christ’s.

Uncle Tom’s Cabin contains the single aspects of black sufferings whereas Beloved touches the different aspects of black culture. The course of slavery and racism, both have haunted the main characters and all other members of the black community. Sethe is extremely trying to hide her past and by taking the lesson from the past, she is trying to keep their children safe from the brutality of the slave owner. From the beginning to the end Morrison narrates only about the position of blacks and their activities together with the outcome of it. The novel contains the qualities of black narrative not only from the perspective of the protagonist, but other characters are also equally important to depict the qualities of black narratives. For e.g. Sixo, he is a slave who was known as a wild man. He is known as a wild man because, on one hand, he was black and on the other he was a slave. When he tried to escape from the slavery, he was caught and burnt alive.
In the story of Huckleberry Fin, Pap, Huck Finn’s harsh father, is a very racist person who sees black people as property. By including this in the book, Twain successfully showed how deeply racism was ingrained in the minds of southern people. It also provides some background for why Huck faces a moral dilemma over helping to free a slave. He, and other kids like him, had been raised to hate those who were not white. Even though he was friends with Jim, he had trouble getting past what he’d been told his whole life. On one hand, he wants to stay true to what those who raised him have said – that black people are inferior and don’t have rights. On the other hand, he wants to help Jim the slave escape, since he is such a good friend to him. One can see the moral dilemma he faces, as he tries to decide if he should turn Jim in and please his aunt, who owns Jim, or if he should save the man that has been kinder to him than his own father. It is because of this that he starts to realize that Jim is more than property, he is a human that has rights.

Thus, the analysis from the four books gives us a better understanding and various perspective of the black rights and slavery. We see how the NAACP emerged in order to protect the blacks from being lynched by the whites. Stricter laws providing more rights and freedom for the blacks, along with protection from the attacks from the white started coming into place.


Gone with the wind is an ageless classic that can be interpreted with both, a law in literature as well as a law as literature approach and would still be fruitful in inspiring the readers. It’s a powerful novel that takes one back to the Civil War and makes us feel what Scarlett does, and inspires us even more when we see her emerging as a strong woman at the end of the novel. Its most likely to be agreed upon that often the novel we read, affects us and changes our way of thinking and makes sure that it leaves us changed at the end of it.  By applying the approach given by Posner, Martha and Boyd, we understand the relation between law and literature and expands our understanding and interpretation of both by providing us a new perspective to approach them.

[1] MARGARET MITCHELL, GONE WITH THE WIND pg. (i)  (Macmillan) (1964).

[2] Richard Posner, Law and Literature: A Relation Reargued, 78. VIRGINIA LAW REVIEW 1351, 1355-    1360(1986).

[3] Id. Pg 1356.

[4] THE MERCHANT OF VENICE (Methuen Paperbacks) (1967); Franz Kafka, The trial (Royal Blind Society of New South Wales) (1953).

[5] Supra note 2.

[6] 1844. 1 R.I. 179 

[7] John Henry Newman, To William Philip Gordon, The Letters and Diaries of John Henry Newman, Vol. 15: The Achilli Trial: January 1852 to December 1853 , 303–303 (1964)

[8] Julie beck, Gender, Race, and Rape During the Civil War , THE ATLANTIC NEWS, (Feb 8th, 2018, 10:20 PM)

[9] Martha C. Nussbaum, Poets as Judges: Judicial Rhetoric and the Literary Imagination, 62 The University of Chicago Law Review, 1477 (1995)

[10] Id. Pg 1481

[11] Dred Scott v. Sandford, 60 U.S. 393 (1857)

[12] Plessy v. Ferguson, 163 U.S. 537 (1896)

[13] Brown v. Board of Education of Topeka, 347 U.S. 483 (1945)

[14] Id.

[15] James Boyd White, Law and Literature: No Manifesto, 38 MERCER LAW REVIEW. 739(1998).

[16] MARGARET MITCHELL, GONE WITH THE WIND pg. (i)  (Macmillan) (1964).

[17] Supra note 15, pg 6.

[18] Supra note 15, pg 6.

[19]Harriet Beecher Stowe & Howard Mumford Jones, Uncle Toms cabin. Introduced by Howard Mumford Jones (Charles E. Merrill Publishing Co.) (1969).

[20] Toni Morris, Beloved a novel (Picador edition published) (1988).

[21] Mark Twain, The adventures of Huckleberry Fin (Thomas Nelson & Sons Ltd.)

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