Should duels be legal?

[Minarchist]

Also, note Rand's approach to man as a "contractual being."

Your definition of "contract" is in conflict with this (valid) use of the term.

Edited May 31, 2010 by Minarchist

[DavidOdden]

That is what it means. That's it's dictionary definition, that's it's common usage, and Ayn Rand used it as such (look under permission vs. rights in the Lexicon).

This is entirely irrelevant, since common and casual usage of the word "contract" to mean "any agreement" has to give way to its proper definition in the context of a discussion of legality. In addition, your beliefs about what the dictionary says are simply false: the dictionary makes it clear that it is written and enforceable by law. For one reasonable definition of "contract", see here. See also the defnition in Blacks dictionary (not available online).

[smyjpmu]

Yes, I've heard of efficient breach. You will notice that I did not say that courts always force specific performance. When parties can never, in principle, be forced to comply with the terms of a contract, then there cannot be a contract.

In principle? Again, are you talking about what the law is, or what the law should be? I know you didn't say courts always force specific performance. But you said they always can force specific performance (by the definition of "contract"), and I assume you mean they always have the legal ability to force specific performance.

Specific performance is extremely rare. In the vast majority of cases, courts will not impose an order of specific performance. If dueling were legal, a court could certainly award damages for breach of contract. Just like they can award damages for any other breach of contract. Yes, they wouldn't order specific performance, but they almost never award specific performance.

If you enter into a contract to fight a boxing match, and you don't show up for the match, is the court going to order you into the ring? No? Well does that mean it's not a contract?

On the other hand, the contract is not what would, under your argument, create the permission to kill the other person. If I understand your argument correctly, it would be perfectly legal to get into an argument, call the other person out, and go into the (privately owned) alleyway in the back and shoot it up.

No contract would be necessary, but if dueling is legal, of course a contract to duel must be.

Nanite1018 gives sex as an example of a non-contractual agreement where either party has the right to back out at any time. Should a contract for sex be invalid? Should it be unenforceable? Are contracts to participate in a hard-core porno unenforceable today?

"Specific performance is ordered by courts only in rare cases in which the subject matter of the contract is unique, making it difficult to put a monetary amount on the damage incurred as a result of the breach. Specific performance is not awarded in personal service contracts. In the previous example, the court would not order the original roofer to complete the job." http://www.weblocator.com/attorney/fl/law/contbus.html

If you want to argue that courts *should* be able to award specific performance for any and all contracts, that's one thing. But saying that, by definition, "a contract must be something that a court can force either party to live up to", is just plain wrong. In "rare cases in which the subject matter of the contract is unique, making it difficult to put a monetary amount on the damage incurred as a result of the breach", courts can force either party to live up to the contract. But in the vast majority of cases, all they can do is award damages for breach (and only actual damages at that).

Edited May 31, 2010 by smyjpmu

[Minarchist]

This is entirely irrelevant, since common and casual usage of the word "contract" to mean "any agreement" has to give way to its proper definition in the context of a discussion of legality.

This is a discussion of proper legality, not legality as it is. What you're saying is that these contracts wouldn't be enforced in modern law, so they're not "contracts".

Just plain ridiculous.

In addition, your beliefs about what the dictionary says are simply false: the dictionary makes it clear that it is written and enforceable by law. For one reasonable definition of "contract", see here. See also the defnition in Blacks dictionary (not available online).

That is one usage of the term.

The other, a voluntary agreement, is valid and more commonly used.

Edited May 31, 2010 by Minarchist

[A is A]

An offer of a definition:

As long as the good or service provided is legal, any oral agreement between two parties can constitute a binding legal contract. The practical limitation to this, however, is that generally only parties to a written agreement have material evidence (the written contract itself) to prove the actual terms uttered at the time the agreement was struck. In daily life, most contracts can be and are made orally, such as purchasing a book or a sandwich. Sometimes written contracts are required by either the parties, or by statutory law within various jurisdiction for certain types of agreement, for example when buying a house[3] or land

So if the service, the duel, is not provided, then the terms of the oral agreement (aka, the contract) have been violated. And I agree that if dueling were regarded as legal, there would be every basis for taking the breach to court.

[DavidOdden]

So if the service, the duel, is not provided, then the terms of the oral agreement (aka, the contract) have been violated. And I agree that if dueling were regarded as legal, there would be every basis for taking the breach to court.

Okay, I understand your strategy now. This is an attempt at a reductio ad absurdum argument to the effect that dueling ought to be illegal, since dueling is not a valid subject matter of a contract, and if all legal acts are possible subject matters of contracts, then since there can be no contract to require dueling, dueling cannot be legal. Clever strategy, I must say. The flaw in the argument is the assumption that all legal acts are possible subject matters of contracts. So I will essay to refute that claim in the immediate future.

[Dante]

Yes, I've heard of efficient breach. You will notice that I did not say that courts always force specific performance. When parties can never, in principle, be forced to comply with the terms of a contract, then there cannot be a contract.

Where is your argument (post number) that contracts fit this description of unenforceable? I don't see why they would be.

[Dante]

If I come to you house, shoot you, and tell the police: "he told me to do it," is that an acceptable defense?

If you can prove it.

[DavidOdden]

Where is your argument (post number) that contracts fit this description of unenforceable? I don't see why they would be.

In fact I said, throughout this thread, that a contract is necessarily enforceable.

[Dante]

In fact I said, throughout this thread, that a contract is necessarily enforceable.

Oh, sorry, mistype. I meant an agreement to duel. It seems to me that it is possible to hold someone to an agreement to duel, and I was interested in being referred to your argument that this was not possible.

[nanite1018]

This is easy. The agreement can be attacked on the basis of some illegitimate social pressure was present (perhaps one of the duelers is an authority figure such as a cop) or it can be framed as a result of a temporary incapacity such as used in the "crime of passion" defense.

Again, I don't think "crime of passion" should mean anything, except that it wasn't premeditated and should therefore, perhaps have a lighter sentence. Temporary incapacity is different than non-premeditation, so my position isn't the same as what you suggest is a "crime of passion." To try to invalidate the consequences of someone's actions by claiming (as you are, essentially) "temporary insanity" is ridiculous. Unless you are actually insane, that is out of contact with reality and incapable of comprehending your actions, you need to be held to full account for your actions. To do otherwise is to allow people an easy out for murder and other such crimes. Plus, if you noticed in my examples, I suggested an explicit agreement, with signed witnesses to it, for the duel. Such a law may easily be put in place, to the effect that without such a written agreement, the so-called duel has no legal weight and the victor would be charged with whatever crime is appropriate (thereby eliminating the possibility of impassioned duels).

Also, do you suggest that a police officer is never allowed to enter into any agreement? For if his presence invalidates the agreement because of illegitimate social pressure as a result of his merely holding the office, then why not in dealings to buy a house, or a car, or at the donut shop? And if "illegitimate social pressure" (which I'm not sure really matters, unless there is an implied threat which can be shown objectively to exist) can be shown to exist by objective standards in any given contract or agreement, then its possible existence in a dueling agreement is no special problem for dueling, but rather something which must be looked for in all agreements as a general class.

So, your objections were easily dealt with because a) illegitimate social pressure is possible in every single agreement, and in order to invalidate them must be shown objectively to exist in the single instance at hand in any given agreement and simply a requirement of a signed agreement with a witness (or a notary) is enough to rule out crimes of passion as having a role.

[Grames]

So, your objections were easily dealt with because a) illegitimate social pressure is possible in every single agreement, and in order to invalidate them must be shown objectively to exist in the single instance at hand in any given agreement and simply a requirement of a signed agreement with a witness (or a notary) is enough to rule out crimes of passion as having a role.

The point is precisely that these are agreements subject to the same defects as other agreements, but there will be no refunds or other compensations made.

[A is A]

If you can prove it.

Why should I have to prove a verbal agreement for an act that is legal?

Edited June 2, 2010 by A is A

[A is A]

Okay, I understand your strategy now. This is an attempt at a reductio ad absurdum argument to the effect that dueling ought to be illegal, since dueling is not a valid subject matter of a contract, and if all legal acts are possible subject matters of contracts, then since there can be no contract to require dueling, dueling cannot be legal. Clever strategy, I must say. The flaw in the argument is the assumption that all legal acts are possible subject matters of contracts. So I will essay to refute that claim in the immediate future.

I hadn't thought of it that way. It wasn't my strategy. I was just drawing an implication from your distinction between an agreement and a contract. I'm trying to understand how an agreement to kill someone is outside the legal framework if two people agree to kill each other for the purpose of resolving some grievance between them. Nobody agrees to a duel because they want to die or to even risk dying. They duel to kill the other person to resolve a conflict. This was compared to the right to assisted suicide. But there is no grievance nor conflict resolution between people in assisted suicide. Yet you have denied that the reason for the duel is pertinent.

Edited June 2, 2010 by A is A

[DavidOdden]

I'm trying to understand how an agreement to kill someone is outside the legal framework if two people agree to kill each other for the purpose of resolving some grievance between them.

The existence of an agreement intended to achieve a end is, itself, entirely irrelevant to the legal evaluation except for exactly one thing, namely that it demonstrates that participation is voluntary. Such a demonstration is necessary in order to show that this was indeed a duel and not just an assassination.

[claire]

Wow. Looks like this argument is going to go on for quite a bit. Hmmmm ... to be there are no duels and won't be any duels and all of this is word salad. Guess this is within the comfort zone of a lot of people. Keeps from dealing with something called reality.

[JayR]

Wow. Looks like this argument is going to go on for quite a bit. Hmmmm ... to be there are no duels and won't be any duels and all of this is word salad. Guess this is within the comfort zone of a lot of people. Keeps from dealing with something called reality.

People capable of abstract thought can benefit from discussions of this nature. If you had read any of the posts in this thread rather than just the title you'd have noticed that some people are re-thinking their understanding of the legality and enforceability (word?) of contracts/vouluntary agreements when dealing with such unusual cases, and whether there is an objective ethical/legal basis for dealing with them. A solid foundation for understanding concepts such as "rights", "contract", "agreement", etc. can help us make better choices when dealing with this thing you call "reality". Not to mention no one is forcing you to participate in any of it.

j..

[SapereAude]

Wow. Looks like this argument is going to go on for quite a bit. Hmmmm ... to be there are no duels and won't be any duels and all of this is word salad. Guess this is within the comfort zone of a lot of people. Keeps from dealing with something called reality.

Claire, read about ethics:

"Secondly, ethics refers to the study and development of one's ethical standards. As mentioned above, feelings, laws, and social norms can deviate from what is ethical. So it is necessary to constantly examine one's standards to ensure that they are reasonable and well-founded. Ethics also means, then, the continuous effort of studying our own moral beliefs and our moral conduct, and striving to ensure that we, and the institutions we help to shape, live up to standards that are reasonable and solidly-based. "

This is why I am participating in this debate and I imagine why many others here are as well.

It is not enough to believe dueling is stupid, immoral or that it should be illegal. You must know why objectively it should be illegal.

So how much is your constantly coming back to troll helping you evade reality today?

[claire]

Not evading reality at all, QuoVadis. Never do. I am, however, always curious what subjects "real" intellectuals ponder. Always living and learning, you know.

[SapereAude]

Not evading reality at all, QuoVadis. Never do. I am, however, always curious what subjects "real" intellectuals ponder. Always living and learning, you know.

..and there are hundreds of topics on this site alone, and then many other sites as well.

The question is, if you find this particular topic to be without merit and you insist on returning to troll it constantly that would lead one to presume that your time has no value.

Frankly, to constantly come back to a topic only to bitch about how the topic doesn't merit discussion is immature.

[RationalBiker]

Not evading reality at all, QuoVadis. Never do. I am, however, always curious what subjects "real" intellectuals ponder. Always living and learning, you know.

Do not post in this thread again.

[A is A]

The existence of an agreement intended to achieve a end is, itself, entirely irrelevant to the legal evaluation except for exactly one thing, namely that it demonstrates that participation is voluntary. Such a demonstration is necessary in order to show that this was indeed a duel and not just an assassination.

Demonstrate, to whom? How does one demonstrate an agreement with no legal requirements other than that participation is voluntary?

If I go into a store and voluntarily buy a product in exchange for money, I get a receipt that serves as a legal document if there is a claim by either party against the other. The retailer cannot then legally claim that I only paid half of what it says on the receipt. The receipt demonstrates, objectively, that there was indeed a transaction not just a theft. What exactly does a dead body in the woods demonstrate other than one person shot another? Where is evidence of the voluntary? What legal evidence is there of a duel and not an assassination? Where is there evidence of a duel?

[nanite1018]

Demonstrate, to whom? How does one demonstrate an agreement with no legal requirements other than that participation is voluntary?

If I go into a store and voluntarily buy a product in exchange for money, I get a receipt that serves as a legal document if there is a claim by either party against the other. The retailer cannot then legally claim that I only paid half of what it says on the receipt. The receipt demonstrates, objectively, that there was indeed a transaction not just a theft. What exactly does a dead body in the woods demonstrate other than one person shot another? Where is evidence of the voluntary? What legal evidence is there of a duel and not an assassination? Where is there evidence of a duel?

What evidence is there that a shooting was in self-defense accept the evidence at the scene and the report of eyewitnesses? In duels, as it is a pre-arranged voluntary circumstance, it would be relatively easy to write up a simple document and get it signed by witnesses stating that there will be a duel between two individuals at a certain time; alternatively there would be eyewitnesses to the duel, etc. So there could easily be more evidence that a shooting was part of a voluntary duel than in the case of a shooting in self-defense.

To demonstrate that there is an agreement, i.e. that the action was voluntary on the part of all parties involved, there would be standards of evidence, just as in your example of the receipt for the transaction at the store. In all agreements, or actions in general, there are standards of evidence to show it was indeed voluntary. Generally, it is the default position, with force needing to be proven by certain standards in order to show the action was against the person's will. In the case of a killing, or a beating, generally the default position is that it was involuntary (as it doesn't make any sense, and the vast majority would not agree to such a thing), and one would have to show that it was indeed voluntary (with eyewitnesses, documentation of agreement, etc.). The fact is that for any type of action, there are legal standards to show that it was voluntary, and those standards are based on the particular action involved (so dueling might have particularly high standards, as the alternative is the worst crime possible). Determining whether something was voluntary and involuntary, and if involuntary who did the coercing, is the "bread and butter" of the legal system, and it has standards specifically for that purpose.

[Greebo]

I've not caught up on all the posts so far in this thread, but one question immediately jumps out at me with regards to the topic at hand.

While two parties may consent to enter a duel, how is being in a duel to the death not initiating force against ones opponent?

Since no person has the right to initiate force against another, no person can rightfully enter into such a contract.

One may argue that one enters a duel to retaliate against the actions of another - but the monopoly on the use of that force is held by Government, and thus the Government gets to decide when retaliatory may be used by individuals (such as in cases of immediate self defense).

[DavidOdden]

While two parties may consent to enter a duel, how is being in a duel to the death not initiating force against ones opponent?

Shaking hands is initiating force, as is boxing or playing football. Sex is force.

Since no person has the right to initiate force against another, no person can rightfully enter into such a contract.

It would follow from this that you can't play football. The key is that, in fact, force without consent is what is forbidden. In addition, AN AGREEMENT TO DUEL IS NOT A CONTRACT. IT IS AN AGREEMENT. A CONTRACT IS A SPECIAL SUBSET OF AGREEMENT.