See Related: Missouri Proposal Would Allow Senators to Challenge Each Other to a Duel to Settle Differences

Well, why not? Sometimes it’s fun to play devil’s advocate. Think of this not as a serious proposal, but as a thought exercise.

Should Dueling be Legal?

Proposed: Should dueling be legal? I’m not talking about sparring on Twitter or in the comments section of some news story, or “dueling protests,” or anything euphemistic like that. I’m talking honest-to-gosh, 18th-century-style pistols at ten paces dueling.

See Related: Dueling Protests Block Streets in Downtown LA as Parental Rights Supporters Face LGBTQ Advocates

Dueling has been illegal everywhere in the United States, and in most of the Western world, since the early 19th century. But let’s set aside our ingrained prejudices for a moment and ask ourselves, in a society that honestly and completely exists under the concept of liberty – should it be?

Let’s do a thought experiment.

Thinking it Through

Two men (or two women, or two gender-fluid otherkin, or two of whatever) have a serious disagreement, one which cannot be reconciled by any normal means. Courts have been unable to arrive at a settlement acceptable to both. Counsel has failed. They are well and truly at loggerheads.

So, both of them, as capable, competent, consenting adults in full possession of their faculties, agree to pistols at sunrise to settle the dispute. They meet in a field with their seconds, who oversee the loading of the pistols; they take their places, step away from each other on the count, and, when indicated, turn and fire. One is killed, and the other emerges the victor.

Now – answer me this – what crime has been committed?

Oh, yes, I know there is a statutory crime committed. But has there been a moral crime? Both parties went into the affair knowing that death was a likely outcome. I’ve read that back when the code duello was more commonly practiced, it was considered the gentlemanly thing to do to just pink your opponent in the arm or leg and claim victory without fatality, but fatal injuries were a normal outcome; it even happened to one of the more famous of our Founding Fathers.

But even in the event of a fatality – what qualifies this as a crime? Both parties agreed to the duel. Both parties know the likely outcome. Both parties are, presumably, competent to make the decision. If we are truly to be a society that values personal liberty, we must also allow people to face the likely consequences of that liberty. Dueling may be an extreme example of that, but it’s no less a valid one.

So. Should dueling be legalized? In a society based first and foremost on the principle of individual liberty, two parties agree to settle their differences in one-on-one mortal combat, knowing the outcome is likely to be at least one of them shuffling off the mortal coil, then what role does government play in preventing them from so doing?

Limits?

There would have to be some limits. You could scarcely allow a duel between two people using nuclear weapons as the weapon of choice, for example. I’d be willing to consider the following restrictions:

• Weaponry is limited to personal, individual weapons only. Pistols, swords, or even a sniper duel with rifles, but no explosives, machine guns, or flamethrowers, entertaining as that last one would be. Why? Because of the possibility of the battle spilling over onto observers or bystanders. That would be… bad.
• Both parties obviously must be competent, consenting adults, willing to sign legal documents waiving any damages or legal penalty from any death or disability resulting from the duel.
• I suppose I’d entertain the idea of a cooling-down period between the filing of the legal paperwork and the event itself since death is a likely (and final) outcome.
• It seems to me that seconds would be a reasonable requirement. The second’s role is to act as a dispassionate advocate for the duelist. The seconds act in concert, presumably without the inflamed passions that led to the duel, to ensure that the duel is fair and that neither duelist takes an unfair advantage.
• Some kind of time limit to the combat itself seems like a good idea. Say the parties agree to a duel by sword; if they hack away for, say, two hours, until both are on the brink of collapse, there ought to be a way for the seconds to call a draw.

The trouble here is, as with so many things: the limits here would have to be legislated, and as it is the nature of government to grow ever larger and more intrusive, and eventually the code duello would be so full of requirements and conditions as to be useless, kind of like the tax code. It would be better to have the government as completely divorced as possible from the process. The only law that applies would be contract law.

Questions

“But,” some might ask, “wouldn’t a duel have the possibility of setting off a vendetta, say between two families?”

The reply? “Sure, and as long as all parties agree to the code duello and the likely consequences, and follow the guidelines and rules applying, then, fine. I have very little problem with families who are so prickly that they can’t settle their differences by non-legal means thinning themselves out thusly, besides, you can only have the duel if both parties agree; this makes it pretty easy to break the chain.”

“Even so,” the questioners go on, “wouldn’t you have the possibility of a revenge killing outside the code duello system?”

“Again, sure,” comes the reply, “…and that would be a crime, to be dealt with by the legal system just like any other premeditated murder.”

“But… wouldn’t this disproportionately affect (insert name of particular aggrieved community/ethnicity/religion/whatever here)?”

“Probably. So what?”

“What about the families they leave behind? Their children! Think of their children!”

“It’s not my place to think about their children; it’s their damn place to think of their children. So, they leave behind some orphans? Not my circus, not my monkeys.”

“But wait,” comes one final question, “…what about the Non-Aggression Principle?”

“That’s an interesting one. It seems that since both parties are initiating aggression in unison, by prior agreement under conditions also agreed to, the NAP is satisfied. Both parties are violating the NAP – and neither are. As the initiation is simultaneous – say, five paces, turn and fire – then both are initiating, and both are responding. You can make an argument here that, in the final outcome, the NAP isn't violated.”

And So…

It’s a pretty problem.

Of course, this is just an intellectual exercise, and it’s unlikely in the extreme that dueling will ever be legalized anywhere in our modern era, and honestly, one would hope that civilized people have better ways to resolve their differences.

The veneer of civilization is pretty damn thin. We’ve seen that fact exposed with disconcerting reality in Israel last October. If things ever got to the point where trial by arms was again an acceptable way to settle differences, it would be best to have some kind of guidelines around how to conduct those trials.

More to the point, I find the moral question interesting. It seems to me that a duel is morally acceptable if both parties are competent adults, fully informed, and willing to sign on to a legally binding agreement to enter into mortal combat.

So. Thoughts?