"I challenge you to a duel"

This paper will offer a proposal to re-introduce legalized dueling, an ancient tradition, on the grounds that it would provide a forum for injured parties to address their issues directly, reduce criminal violence and the burden on the courts of adjudicating certain disputes, and encourage more polite behavior overall. Each of these subjects, along with a description of the proposed system, will be discussed in greater length following a short, and hopefully entertaining, history of this fine tradition.

History

Dueling first emerged out of the medieval system of trial by combat. This form of judicial process emerged in Germany in the Middle Ages and was used in cases where neither side could offer a preponderance of evidence to persuade the court. The two parties would then engage in mortal combat, the idea being that the outcome would reflect God's wish and, by default, the truth. If the defendant were to be defeated he would be immediately executed (assuming he survived the match). If he defeated his opponent, however, or successfully held him off until sunset, he would win his freedom. Accordingly, if the plaintiff admitted defeat and surrendered he would be deprived of his rights as a free man and was potentially liable for damages inflicted on the defendant. This form of adjudication remained an available option to parties until the 16^th Century when it began to fall out of favor for some reason.

As an interesting side note, in order to ensure a truthful verdict, the court required that both parties abstain from using witchcraft to gain an advantage. As such, an oath was required before the judges in which both parties had to state:

Hear this, ye justices, that I have this day neither eat, drank, nor have upon me, neither bone, stone, ne grass; nor any enchantment, sorcery, or witchcraft, whereby the law of God may be abased, or the law of the Devil exalted. So help me God and his saints.

Out of the system of trial by combat emerged the modern duel and with it, in order to ensure fairness, a set of rules to govern the action, a primary set being the Irish dueling code which ultimately served as the basis for the American dueling standards. Aside from establishing the parameters of the dueling space, the weapons to be used, and the terms of the engagement, the code outlined the various conditions under which the duel was considered over. Possible endstates included:

• to first blood, in which case the duel would be ended as soon as one man was wounded;
• until one man was so severely wounded so as to be physically unable to continue;
• to the death, in which case there would be no satisfaction until one party was mortally wounded;
• or, in the case of pistol duels, one shot per party. If neither man was hit and if the challenger stated that he was satisfied, the duel would be declared over. A pistol duel could continue until one man was wounded or killed, but to have more than three volleys of fire was considered barbaric and, if no hits were achieved, somewhat ridiculous and embarrassing.

Although dueling had fallen out of fashion by the late-19^th Century, a modern form of it re-emerged over the skies of Europe during the First World War. Fighter pilots, usually the descendants of European aristocracy, battled in aerial combat in what were oftentimes one-on-one dogfights. In the early stages of the air war, the medieval code of chivalry was held in high regard with pilots oftentimes not engaging if they saw their opponent's guns jam but as time passed and the losses grew, the honor code that had been adhered to gave way to ruthless savagery that the Baron Manfred von Richtofen echoed when he said, “If I am alone with an opponent ... only a jammed gun or an engine problem can prevent me from shooting him down." Perhaps it was in the skies over Europe's killing fields in World War I that chivalry finally died. Nevertheless, for at least a brief period and amidst the horror of the newly-mechanized wars, the aerial dogfights of the First World War brought back the tradition of the gentleman's duel.

The Modern Duel

Now that the reader has some familiarity with the history of dueling and the form it took in its various stages we can turn our attention to how this practice can be adopted again today. There are a number of parameters that must be outlined upfront: 1) both parties must be over the age of 18, 2) the consent of the challenged party is required, 3) all duels shall take place in a public space and before witnesses to avoid unfair play, 4) the terms of the duel shall be agreed upon by both parties, in writing, prior to its execution, and 5) neither party shall be held liable, criminally or civilly, for injuries or damages sustained in the course of a properly executed action.

Many readers will surely contest that the reinstatement of such a practice will further no significant public interest but Through a Glass, Darkly takes issue with this view. For one, it would provide a recourse for aggrieved parties to settle their differences in a matter satisfactory to them that would prevent those same individuals from seeking vengeance in a criminal manner. That would, also, lessen the burden on the courts to resolve such disputes and preclude the state from having to prosecute those who otherwise may commit those crimes. Lastly, and perhaps most importantly, knowledge of the real possibility of being challenged to mortal combat is likely to influence individuals to be polite and far more considerate of the effect their actions have upon others. One need not look any further than medieval Japan, 18^th Century England, or the American South before the Civil War to realize they share a common denominator aside from an established practice of dueling – courtesy was a foundation of their culture.

Evidence of this byproduct was noted in the 1836 text, The Art of Dueling, where the author writes:

“The practice is severely censured by all religious and thinking people; yet it has very justly been remarked, that ‘the great gentleness and complacency of modern manners, and those respectful attentions of one man to another, that at present render the social discourses of life far more agreeable and decent, than among the most civilized nations of antiquity; must be ascribed, in some degree to this absurd custom.’”

For the interested reader, the full text of the work can be found here.

Ultimately, it is this publication's opinion that the fundamental psyche of the human animal has not significantly changed in the last 100,000 years and that one of its primary components is a capacity for violence. Our society, however, in a fit of arrogance and delusion, has convinced itself that it has somehow transcended this primordial urge and that its expression can be repressed indefinitely. This faulty assumption only results in the frequent uncontrolled expression of this potential in a manner that is truly unpredictable and generally far more harmful in the end than it need be. Michael Douglas' character in the film, Falling Down, illustrates this phenomenon perfectly.

A controlled forum for the expression of that primordial urge can prevent such disastrous outbursts and until Mankind evolves into the next stage of its existence such an outlet is necessary.

The Status of Dueling Today

For most readers dueling has a negative connotation, the likely result of the fact that the most famous duel in American history resulted in the killing of a notable Federalist by the then-sitting Vice President. And its lack of popularity at the time of the founding of the country may also arise from the encouragement that George Washington gave to his officers to deny challenges during the Revolutionary War to avoid losing men outside of the war effort. Nevertheless, the legal status of dueling in American jurisprudence is rather unclear.

Since the founding of the country there have been no common law cases that have established any precedents as to whether or not dueling remains a viable alternative to civil litigation. There is no Constitutional ban on the practice nor are there any Federal statutes dealing with it (aside from a section of the Uniform Code of Military Justice preventing service-members from participating in it). A number of states have banned the practice in their constitutions with the penalties ranging from disqualification from holding all official office at one end to felony prosecution at the other. Unfortunately, although some states have no specific law prohibiting dueling participants may be held criminally or civilly liable under existing penal codes.

Conclusion

In summary, it is this publication's hope that the reader will consider the various arguments for the reinstatement of this ancient practice and judge them on their merits. Perhaps in the future this solution will be available again to those for whom the options of walking away and civil litigation sometimes simply do not suffice.