The Dialogics of Legal Meaning: Spectacular Trials, the Unwritten Law, and Narratives of Criminal Responsibility

Drawing upon Mikhail Bakhtin's theory of the dialogic, this essay explores the production of legal meanings about criminal responsibility in the 19th and early 20th centuries. In particular, it examines the honor-based defense of the "unwritten law" as it was articulated in relation to the formal law of provocation in the 19th century, and in the 1906 trial of Harry K- Thaw for the murder of Stanford White. Meanings about criminal responsibility emerge, I argue, from a process of discursive conflict and negotiation between the domains of legal consciousness and formal law. At trial, competing narratives of indictment and exoneration literally enact that dynamic process, so that trials may be said to be the materialization of the dialogic production of "law" in its broadest sense. In his closing argument to the jury in Harry Kendall Thaw's first trial for the 1906 murder of renowned New York architect Stanford White, Thaw's attorney Delphin Delmas argued that his client should be acquitted on the basis of what he called "dementia americana," "that species of insanity which makes every home sacred ... which makes a man believe that the honor of his wife is sacred ... which makes him believe that whoever invades the sanctity of that home ... whoever stains the virtue of that wife has forfeited the protection of human laws and must look to the eternal justice and mercy of God."1 At first glance Delmas's oxymoronic appeal, one that couples competing medical and moral conceptions of responsibility in an attempt to persuade the jury to acquit Thaw of murder, appears to exemplify what historian Lawrence Friedman (1993:398) has called, in describing Thaw's trials, "a carnival of scandal mixed with psychiatric mumbo jumbo." As the country's first "trial of the century," Thaw's proceedings were most certainly the "super-sensation" Friedman suggests. They manifested in full all the show-trial trappings with which we are now so familiar: the crowds and the cameras; the scandalous revelations of unseemly private behavior, inevitably made into fodder for moralists; the legal maneuvering and posturing and the ensuing public skepticism of law's ability to do justice. And yet to assimilate Delmas's oxymoronic claims to the atmosphere of carnival surrounding such trials, and thus to dismiss those claims as just so much mumbo jumbo, is to detach such trials from both "law" in its graver aspects and the serious cultural anxieties that infect and inform trials. It is, in other words, to deny any significance, legal or cultural, to the spectacular trial except insofar as it "provides the public with a vicarious thrill" (Friedman 1993:398). What would it mean to take such a show trial seriously as a site of law? How might we begin to theorize such trials as spaces in which, far from being irrelevant or evicted by the irrational dynamics of spectacle, law is enacted in critical, if peculiar, ways? In this essay I begin to answer that question through the lens of Harry Thaw's trials by exploring the conditions of possibility that produced Delphin Delmas's honor-based argument to the jury in the first of Thaw's two trials for Stanford White's murder. The proceedings ended with a hung jury in spite of what might be construed as Delmas's appeal to nullify the law via a defense known as the "unwritten law." The important question for my purposes, however, is not why Delmas failed to gain Thaw's acquittal, but rather how he was able to raise such a defense plausibly in the first instance; that is, how we might understand his argument not as "mumbo jumbo" but as marking a deep instability in the law of criminal responsibility at the turn of the century. In its attempt to map the terrain of that instability, this essay offers a meditation on the role of narrative in law and, in particular, on the dynamics of narrative within the legal domain of the trial. The trial, I argue, is a distinctive domain for the production of legal meaning. …