No Real Justice? Revive the Duel

0 Comments | Insight on the News, August 2, 1999 | by Woody West

Customs are established when a society decides it would be useful to institutionalize a practice or habit; customs fade or are proscribed when they no longer serve any purpose. Customs can be revived, of course -- and it may be time to reinstitute the duel.

Dueling has had a very long history. Once Homo sapiens stood upright (this was before the invention of television) and we had passed the Hobbesian stage of "a war of all against all" the notion of adjudication to preserve social order came into being. It was primitive, to be sure. At an early point "trial by combat" was invoked, in which it was presumed that the loser was guilty -- a convenient judgment but problematic.

As judicial sophistication evolved, however, the system became severely distorted by a tendency of principals to lie under oath (has a sort of contemporary ring, doesn't it?). As an alternative, dueling as "the Judgment of God" and under standardized rules was considered superior to sworn mendacity.

As more regularized procedures evolved to provide justice, dueling shifted to matters of honor, notwithstanding increasing social disapproval and legal proscription. However, the practice endured well into the 19th century. Numerous manuals were published on the protocols, the most famous the Irish code duello. Among its provisions: "No dumb firing or firing in the air is admissible in any case." No virtual reality there.

In the United States -- being as irredeemably violent a nation as the professors of women's studies tirelessly assert -- the duel was a sanguinary affair. Alexis de Tocqueville noted that in America duelists fought "only to kill." As every school kid knows, there have been some famous combats -- Alexander Hamilton killed by Aaron Burr is probably the most notorious.

But occasionally these confrontations could be wickedly wry. In Robert Baldrick's history of dueling, he details the meeting of two prominent Californians during Gold Rush days. The wife of one waited at a distance to be informed by mounted messengers of her husband's fate. After the first exchange of pistol fire, a messenger rode up and announced breathlessly, "Ma'am, first fire's over. Nobody hurt!"

"Thanks be to God" she murmured.

Moments later another messenger arrived and told her, "Second fire, and both are safe," to which she responded, "Praise be .... "But when the first messenger galloped up again and announced, "The third fire's over -- nobody's hurt and they've called it off," the wife merely observed, "That's good."

A friend asked if she didn't think the news was wonderful. "Yes" she said, "but there's been some mighty poor shooting today."

As the administration of justice in the waning months of the 20th century becomes ever more contentious, with judges dredging decrees out of their subjective notions of the law and individuals becoming litigious over hiccups, the resurrection of the duel has a good deal to recommend it.

Of course it would be necessary to draw up a contemporary code duello. Perhaps a National Blue Ribbon Commission could handle this -- we haven't had one for a while now. The distinguished body would establish "standing," similar to the criteria by which it is determined who legitimately may bring a lawsuit -- private citizen vs. private citizen, private citizen vs. government bureaucrat, corporate biggie vs. regulator and so forth.

For one example, if a liberal member of Congress would refer to a conservative member as a "Nazi" -- as happened not long ago -- the recipient clearly would be authorized to issue a challenge. Were a senator (Ted Kennedy comes to mind) slanderously to describe a Supreme Court nominee (Robert Bork, memory suggests) as a vicious enemy of civil liberties, why Bork clearly could call out the senator -- which would be an amusing matchup and for which Teddy uncharacteristically would have to do his own heavy lifting.

The new dueling protocol would specify the types of weapons permitted. At the most innocuous level, pugil sticks might be chosen -- the padded implements by which the Marine Corps instructs recruits in bayonet fighting. This would result in humiliation and bruises. More lethally, the challenger would specify knife or pistol. In past centuries, women and the aged were exempt from challenge and those exclusions would be maintained -- a way partially to resuscitate traditional masculinity.

The new code would have to delineate the levels of offense before dueling parties could go at it, and insurance policies could include "dueling disability" clauses.

This revival would be a boon for television, to be sure; prime-time presentation of genuine confrontations could be an antidote to the noxious and pervasive theme-park syndrome that devalues any experience not mediated by Disney or DreamWorks.

This may be an idea whose time has returned. It's on the table for discussion, so let Insight hear from you.

Woody West Associate Editor