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In Defense Of Dueling
Ryan Ruby intellectually attacks, feints and parries in favour of legally reinstating the duel as a means of settling personal disputes.
While dueling is one of the oldest activities in the books (as readers of the Iliad will remember), laws against it are some of the oldest on them. In Europe, dueling was officially discouraged by the Catholic Church as well as by King James I of England. In America, both Washington and Franklin disapproved of the practice; Washington for tactical reasons – he didn’t want to diminish his officer corps – and Franklin, who described it as “uselessly violent,” for moral ones. Prohibitions against dueling made their way into a number of state constitutions, for instance those of Alabama, Kentucky, Mississippi, Tennessee and Florida, as well as into the Uniform Code of Military Justice (Article 114). But only slight penalties accrued to participating in duels – usually disenfranchisement, debarring, disqualification from office-holding or some other loss of social status or privilege. From this and from the way in which these laws were phrased, one gets the impression that dueling was not thought of as a moral plague, like drinking and prostitution – although the Alabama state constitution goes so far as to call it an “evil practice.”
Dueling, which had its roots in the honor codes of the European aristocracy, was inconsistent with America’s new anti-feudal self-image, although it is interesting to note that all the aforementioned prohibitions come from the constitutions of Southern states, whose economic structures, being centered around plantation ownership, were more similar to their European feudal ancestors than their Northern mercantile siblings. It should also be noted that, despite the prohibitions, America has provided the soil for a number of legendary duels, the most famous being the encounter between Hamilton (L) and Burr (W) in Weehawken, and between the unscrupulous Andrew Jackson (W) and Charles Dickinson (L), and Stephen Decatur (L) and James Barron (W). The one-on-one shoot-outs of the Old West also provided a uniquely American variation on the European tradition. Instead of taking turns, as in the European style, which is designed to test the stoic courage of an individual to take fire at a prearranged number of paces, in the American style both gunslingers draw at the same time, which emphasizes the competing speed and skill of each shooter. The former style presides under the sign of honor, while the latter presides under the sign of the marketplace, where merit sorts the quick and the dead.
A Challenge To Duel
The first argument in favor of modern dueling is a libertarian argument, which hopes to show why it is inconsistent with our values of freedom to prohibit dueling. The second set of arguments are utilitarian, through which I hope to show why it would be a benefit to our society to reinstate the practice.
The libertarian point in favor of dueling is that two adults should not be prohibited by law from doing whatever they please to and with their bodies. So, the legalization of dueling ought to be considered alongside arguments for the legalization of a number of other socially-stigmatized practices that have been prohibited by law, from this standpoint, unjustly – prostitution, gay marriage, polygamy, personal drug use, doctor-assisted suicide, to name a few. The guiding principle here is mutual consent between adults (which the modernized legal dueling regulations described below will attempt in each instance to establish). As J.S. Mill rightly noted, while governments are responsible for protecting their citizens, they have no right, and ought to have no power, to enforce their protection against an individual’s wishes. In Mill’s theory, individual freedom is constrained by a principle of non-harm – a person may do as much damage to himself as he wishes, but as soon as his actions harm others he is legally and morally culpable.
This may seem to be a bad argument to marshall in my own defense, as the express purpose of a duel is precisely to harm another individual. However, I think that mutual consent to accept harm is fully consistent with Mill’s non-harm principle, extended from one individual to two on the basis of a contract publicly recognized as valid.
It might be said that without the culture of honor which provided the psychological motivation for dueling in aristocratic Europe, there would be no rational reason for an individual to accept the risks that accompany a duel. Very well; but the infrequency of a practice does not merit an unjust prohibition of it. Personally, proceeding on the assumption that no one would be so imprudent as wish to cross swords with me, I can think of a number of individuals whom I would allow to shoot at me just for the opportunity of returning fire.
Unfortunately, to paraphrase Mill once more, for some it is not enough to be shown that a law has no justification (in Mill’s case the disenfranchisement of women, in ours forbidding dueling); they must also be shown what benefit would arise from abolishing it. Those who make this demand are quite sure that the violence of the duel is – as Franklin incorrectly thought – ‘useless’. This view is likely prejudiced by a wishy-washy non-violence adjoined to hippie notions of verbal conflict resolution. Allow me then to disabuse these ]acofosts with the following three points:
1) Let us observe that it is the law that creates criminals, by classifying certain actions as crimes. This is certainly the case with buyers and sellers of illicit drugs. If we decriminalized their product, we would instantaneously decrease our crime rates, free up our prison cells, speed up the processing rates of our legal system, and afford our police force more time and opportunity to do their job – that is, to serve and protect. Just so with dueling. If it were to become popular, it would help decrease illicit murders. Because of the regulations imposed upon it and its setting in a controlled environment (see below), dueling would also minimize third party casualties – not to mention fatalities that would otherwise occur during the time lapse between an emergency call and the arrival of the first ambulance, because of the presence of a doctor. Decreasing crime rates would increase the general feeling of public safety, and thereby increase citizens’ confidence in government security programs, making it less plausible for politicians to divert voters and tax dollars away from important social issues by running on strong-arm ‘protect the suburbs’ platforms.
2) If you do believe that dueling is an irrational risk, why shed tears over the loss of those who take it? Instead, consider dueling, which only rarely risks more than severe injury, to be a form of unobjectionable (because self-volunteering) population control.
3) As has already been noted, the motivation for historic European dueling was the defense of honor; a value currently sorely lacking in our narcissistic, morally fragmented society. We contemporary individuals lack a sense of honor because we have errantly abolished all the ideology that might foster it – on the admittedly justifiable grounds of lifestyle pluralism and social egalitarianism. However, appropriately modified, dueling would infringe on neither of these grounds, instead fostering, through the back door as it were, a new, democratic sense of honor. The belief that one’s honor is worth fighting over would imbue participants in this revolutionary institution with an accompanying sense of self-worth, which has hitherto only been achieved in our society through the willful self-delusion which allows individuals to attempt to discover personal and interpersonal value in shameless consumerism.
The Modern Thrust
Lifting the dueling ban would require a modernization consistent with contemporary values and needs. Traditionally, dueling was limited to men of property, and non-aristocrats were punished for participating in them. In this egalitarian age we would make the practice more inclusive, allowing any two mutually consenting legal adults (18 years or older) of ‘sound mind and body’ to participate, regardless of their race, gender, sexual orientation, or creed. This inclusiveness would remove the aristocratic, inegalitarian trappings of dueling and make the practice safe for democracy.
Next, the duel, traditionally monitored by personally chosen seconds, would require monitoring by an impartial legal authority acting as a notary public. The legal observer would preside over the signing of the initial dueling contract, in which issues such as weapons (swords or pistols, and of these ancient or modern), number of paces (depending on the choice of pistol), style (taking turns or simultaneous drawing), level of agreed-upon permissible injury (to the first blood, to the death, one shot per dualist) and so forth. They would also preside over the duel itself to see whether the stipulations of the contract were properly followed. Each signing individual would forfeit the right to legal or economic compensation from his rival, unless foul play or the inexact following of the agreed contract could be proven in a court of law. All weapons used during the duel would have to be legally registered, and a doctor would have to be present for a duel to be legally valid (one can also amend the above regulations to include demonstration of health-care as a prerequisite for being granted a dueling contract). As the participants would know in advance, all invalid duels would be treated legally as first-degree murder (attempted or actual), and no-one could claim protection from prosecution under dueling laws without a valid contract properly followed. Any third party who is accidentally injured during the course of the duel would have a right to press charges (eg of involuntary manslaughter) and seek redress of grievance against the offending party. Individual organizations, private and public – such as the military and the government – may prohibit dueling as a condition of membership, and punish offending individuals accordingly. Dueling could be grounds for court marshal, impeachment, or firing, but these individuals would not then face trial in a public court of law.
It is my hope that there will be a referendum in support of legalization on the ballot in my native state of California soon. I am counting on the support of my fellow Californians to help me get enough signatures to send this important proposition to the voters for their consideration and then for their vote. I am also encouraging the non-Californian readership to petition their government representatives in support of similar resolutions, so that together we can all take ten paces toward a greater humanity.
© Ryan Ruby 2008
Ryan Ruby has an MA in political philosophy from the University of Chicago.
Note: For more information please see the highly entertaining Wikipedia article ‘Duel’. (My advice: go straight to the Russian duels, in particular the duel fought between Russian poets Nikolay Gumilyov and Maksimilian Voloshin for the heart of a non-existent woman, poet Cherubina de Gabriak). There are also game-theoretical aspects of dueling, and helpful links.