Law in Contemporary Society

Symbolic Meaning in Publicized Trials

-- By LaurenManalang - 29 Jun 2009


In most any public trial, the parties to the case become Symbols, and the court’s decision is a voice for The State’s Message, or The Public’s Sentiment in regard to those symbols. In this instance, the symbolic nature of the theatrical piece we call a trial dominates whatever retributive or deterrent functions to which the trial pretends. In some cases, the state’s message and the public sentiment may attach different symbolic values to a trial, but no matter what a case means to a government and its public, political realities often determine the outcome. In the end, the state can use the law to issue whatever statement it likes, but the force of that message depends on the strength of the state. If the state is not as powerful as it thinks or its power is not enough to enforce the law, the statements it makes become empty pronouncements and the purpose of the trial is lost.

  • I think you mean "highly publicized trial," rather than "trial open to the public," which is what your phrase usually means. There are tends of thousands of public trials going on around the US in any given month, but a handful are highly publicized.

  • By the end of the graf we are talking only about trials in which the state is a party, almost certainly criminal trials, rather than trials in which the state acts as arbiter only. It's always useful to remind oneself that criminal justice is a fraction of justice.

Dudley and Stephens

The Dudley case is a natural first step in this discussion. This case captured the attention of the public in a visceral way, and it’s the one of the oldest examples of government using a trial to project a symbolic message.

  • Not for me. Greek examples come to mind fairly readily which are 2,300 years or so older, and it would be hard to think about the late Roman Republic for more than a few seconds without stumbling over a couple more from more or less 2,000 years before Dudley was born. I think you mean that mass media, such as the daily penny press, change the context for such message delivery, and that Dudley was tried only a generation after the onset of those developments.

It continues to be taught in many first year law classes for this same reason, in addition to being useful for posing interesting legal and moral questions. Our class discussed the case within the larger theme of cannibalism. Dudley and Stephens were, metaphorically, cannibalized themselves—they were eaten by the public and the state. They were turned into symbols, used as sacrifices to ask forgiveness for many crimes committed long before either set foot on the boat. It is unconvincing that the court’s decision was supposed to have a retributive effect; most agree that Dudley and company suffered enough, and the state’s lawyers showed a “determination to secure a conviction for murder, combined with a humane and slightly inconsistent desire to see that Dudley and his companions did not suffer unduly in consequence” p.294. Nor is it convincing that the decision served a deterrent purpose, as a main discussion point in class was the unlikelihood of starving castaways being deterred from self preservation because they feared breaking British law more than death. The only thing that is clear is that the case was used as a platform for the state to express itself using these individuals as symbols for their message. Dudley and Stephens became stand-ins for “the custom of the sea” and for the countless seafarers before them who took part in it. The British court punished Dudley and Stephens in order to make a statement about itself—“We are a Civilized Society, and as proof, we will no longer tolerate ‘the custom of the sea’.” In the end this statement was not only at odds with the public’s sentiment, many of whom felt that Dudley and company should not stand trial at all for the incident, but it was also an example of a nation making a statement that was beyond it’s reach. No nation, not even the British empire, is powerful enough to prevent starving people from resorting to cannibalism.

An unlikely comparison

Symbolism also overshadowed simple justice in a Philippine case that concluded in recent months. Although the rape case against U.S. Marine Daniel Smith differs from Dudley and Stephens in many significant ways – a crime that is more difficult to prove than murder, the Philippines’ colonial history and the probable influence of a foreign power’s interests on the outcome – Smith and the woman who accused him of rape, like Dudley and Stephens, came to represent more than mere criminals and victims. In fact, the different circumstances of the Philippine case reveal how a state’s intended message for a trial can change by interacting with public opinion and geopolitics.

The Philippine rape case

For the past four years, the Philippine public has avidly followed the trial of U.S. Marine Daniel Smith, who was accused, convicted, and later exonerated of the crime of raping a young Filipina woman. The case took many turns and at each stage of the story the Philippine courts seemed to alter their message to serve state interests. In 2005, Smith was accused and the case was brought to a regional Philippine court. To parts of the Philippine public, the question of guilt or innocence was a non-issue. Smith stood as a symbol for the U.S. Military, for the many servicemen before him who had treated the islands as punishment-free “R and R” playground, and for American colonization itself. Unlike in Dudley, where the symbolic elements eliminated any retributive function, here these were actually enhanced. Thus punishing Smith for this crime was seen by many as a way of settling colonial scores, a way for the Philippine people to assert their anger at the continuously inequal relationship between the two countries. The victim, “Nicole” as she became known in the press, was hailed as a symbol of the nation. “Justice for Nicole, Justice for the Nation” was a popular rallying cry, and a common slogan seen on posters during protests outside the U.S. Embassy in Manila.

Smith was convicted of rape by the regional Philippine court in 2006. NGOs, activists, and some members of the press rejoiced, citing that of the 3,000 rapes reported since the US naval bases opened in the Philippines during World War I, this was the first case that ever succeeded in securing a conviction. The court’s decision was considered historic because it ordered Smith to serve his sentence in a Philippine prison and not under U.S. authority. At this point in the story, the state’s message, retributive and symbolically so, was clear. At the same time however, political realities surfaced and tested the strength of this decision. The U.S. governnment, citing a Visiting Forces Agreement signed in 1999 insisted that Smith be detained at the embassy until the appeals process ended. Members of the Philippine press expressed doubt that the court could convict Smith even if they wanted to and treated this turn in the story as another example of Philippine capitulation to U.S. authorities, who had been circumventing and disrespecting Philippine law since the archipelago gained independence in 1946. Meanwhile, the appeal dragged on.

This year, a startling turn of events. After four years of being the symbol of her nation, “Nicole” recanted her story. At the same time, she managed to secure a visa to emigrate to the United States, a document few unwed Filipinas can obtain. Suspicions arose that the U.S. government had granted “Nicole” a visa in exchange for recanting her story. Many noted that “Nicole”’s signed affidavit in which she recanted her story matched the closing argument Smith’s lawyer had delivered at trial word for word. “Nicole” moved to the States, her last words to the Philippine press—“There is no justice in the Philippines.”

At this final stage of the case, the state was forced to change its message again. In light of Nicole’s recant, and the state’s refusal to acknowledge the economic realities that led to Nicole’s decision to recant, the state switched its message from one of asserting its strength to one of saving face.

  • Recantation.

The appellate court’s decision is a stunning example of blaming the victim that hardly reads like a legal decision:

This court finds deceptively posturing Nicole’s portrayal of herself as a demure provinciana lass. On hindsight, we see this protestation of decency as a protective shield against her own indecorous behavior.

For the court, acknowledging the economic realities that seem to have informed Nicole’s decision to recant would amount to admitting that Philippine law is difficult to enforce because its legal processes can be circumvented by offering citizens tickets to richer countries. Instead, the court’s decision deflects blame onto an individual, “Nicole,” for lying, and turns her once again into a symbol, this time of female irresponsibility.


In the course of writing this argument, I reflected often on the power of courts in general and how a nation can make statements with its laws. While it is unrealistic and almost arrogant for a nation to think its legal processes are so powerful that they would cause starving people to choose death over breaking the law, it is also sad that in our modern world there are still nations who cannot enforce common criminal laws because of unbalanced international power relations. The ideal lies somewhere in between these two extremes, but at both ends of the continuum the problem is caused by the same weakness. When the symbolic meaning of a case becomes somehow its center, the power of the court is misdirected, and justice is no longer its aim.

  • Lauren, I think this is a fine beginning. You have many useful observations to offer and a strong illustration with which to connect them. But I think the general framework, which I would summarize as "Criminal trials are often used to send messages about state power, including these two, and that may compromise the achievement of individual justice" is not as revealing as the material you bring forward, about which more can be said. In particular, you emphasize both the imperial self-confidence of the English lawyers and judges who made Dudley & Stephens the symbolic venture that it was, and the subaltern malleability and willingness to "kiss up and kick down" that causes the Philippine lawyers and judges to bow to the superior wealth and power of the US Embassy by denigrating their own citizen-complainant. These are stories of sovereignty and empire in relation to the law, it seems to me, and they can be more directly and productively discussed on that basis.


Webs Webs

r3 - 08 Jan 2010 - 22:42:54 - IanSullivan
This site is powered by the TWiki collaboration platform.
All material on this collaboration platform is the property of the contributing authors.
All material marked as authored by Eben Moglen is available under the license terms CC-BY-SA version 4.
Syndicate this site RSSATOM