For your consideration, guest author Liam Boyle submits this modest proposal for the reinstatement of the duel.
“Sir, I Demand Satisfaction!”
Turning on any television show based on small claims court a person is bound to hear some variant of that title, many times in a much less polite form. Sitting in a small claims court, or any civil court for that matter, a person is bound to hear some variant of that title phrase. Yet, in many representations of historical duels, those words are commonly found. Conflict seems to underscore our society and the phrase, “I’ll see you in court,” has almost seemed to reach the status of a common greeting. This could give someone cause to wonder that wouldn’t it be simpler and possibly more effective to just have the disputing parties put on gloves and go the proverbial twelve rounds rather than tie up the court with expensive and needless litigation. This lead this writer to the posting of the question, Should dueling (non-firearm) be legalized to replace some civil lawsuits?
A professional martial artist of this author’s acquaintance, Sifu Bill Phillips of NYC’s Patience Tai Chi, replied, “I was hoping we were becoming more civilized than that. I would like to see a world with less fighting, less lawsuits, and more quiet discussions. (I thought lawsuits replaced the duel.)”
Douglas Yarn, Associate Professor of Law at Georgia State University and Executive Director of the Consortium on Negotiation and Conflict Resolution, observes:
Litigation can be seen as a form of dueling. Both litigation and dueling are methods of resolving disputes. Moreover, the sequence of events in both processes is similar. The filing of a formal complaint to initiate civil action is equivalent to issuing a formal challenge to duel. The responsive pleading is the formal reply of the party receiving the challenge. The courtroom is the dueling ground, the rules of civil procedure governing the trial are the terms of engagement, and the trial is the “combat” analogous to the duel itself. (Given the nature of much modern litigation, it may not be an exaggeration to describe it as a form of trial by combat.) (Yarn 16)
Attorneys are advertising themselves as “The Heavy Hitter” (Isaacs), “The Kentucky Hammer” (Isaacs), or promoting their experience as ring fighters (Winton). Such advertisements make litigation sound like combat and civil court the battleground. This seems closer to a street fight than not or why else would a person want a four time all-American Boxer and former national kickboxing champion (Winton) to represent them.
It can be asked that:
What is the acceptable degree of zealous behavior? This concept can be abused when used to justify the extremely hostile, hyper-competitive adversary behavior commonly caricatured as the “Rambo Litigator.” In this extreme form, the zealous advocate stops at nothing in dogged pursuit of victory for the client. Such a lawyer does not necessarily violate the law and ethical standards but simply seeks to win regardless of the economic and non-economic costs. Additionally, the zealous advocate ignores civility or violates non-obligatory professional norms requiring compromise or concessions or that imply weakness in the client’s cause. (Yarn 2)
Is such behavior in litigation really more civilized than the duels of the 19th century? Compared to such behavior from legal counsel, an unrestrained bar brawl might actually seem preferable. To be honest, one might actually have the better odds of winning in the melee. “As in dueling, the outcome of a trial may not favor the aggrieved party, nor may it reflect the actual facts underlying the dispute” (Yarn 16). Indeed, many hold the famous 1992 McDonalds’ coffee lawsuit as a prime example of the result of a civil lawsuit not reflecting the facts of case, although as with many examples of litigation not all the information was released to the public (” ‘Lectric Law Library”).
Indeed, the United States has become a very litigious society. In 2007, approximately 18 million civil cases were reported by state courts (LaFountain et al 1). Contract and small claims monetary disputes make the majority of these cases (LaFountain et al 1). That this actually represents an increase in civil litigation is subject to debate as different sources report varying claims. Some report an increase (LaFountain et al 1) and others report little change (Jost 1037). Small claims civil cases typically have very small awards, under $1500 in the Commonwealth of Kentucky (“Small Claims Handbook” 2).
Since, “Many states are struggling to clear their civil caseloads, possibly as a result of increased contract filings and tightening resources” (LaFountain et al 1). It might benefit modern society if an alternative method could be found that would take some of these cases out of the overwhelmed courts and settle them in another manner. With adversarial and predatory attorneys twisting civil law towards their own ends, what recourse apart from the courts does a person have?
And just as modern law can be twisted to benefit the unjust, so too could the law during the Viking Age. However, during that time there was a way in Iceland and Norway for a litigant to achieve the justice sought by a faster route than a suit. Anyone could challenge his opponent to a duel called a holmganga. (Matson, “Holmgang Part One”)
That is correct, dueling. The famous Japanese swordsman and philosopher, Miyamoto Musashi stated, “It is by virtue of the sword that both society and oneself are put in order” (52.) Small claims cases are over small amounts of money, and contract disputes run the gamut from serious economic issues, to wording disagreements, to disagreements about whether or not a contract existed in the first place. Therefore, in any case where there is not clear injury to one side, the litigants may be better off by marking out a ring and fighting it out.
Now, this suggestion does not mean that folks should start brawling in the streets with fists, knives, and guns at the slightest perceived insult. Before, the cry of “how barbaric” escapes unbelieving mouths, an understanding of what exactly historical dueling entailed might be in order.
Douglas Yarn shows the most common image of a duel, in the minds of many, in an article about the professional ethical conflicts attorneys face. “Two men, with their backs to each other and observed only by their solemn seconds, walk ten paces, turn, aim, and fire. One or both fall dead or are mortally wounded” (6). Yet, society has become more civilized than the society of previous times when dueling was commonplace, has it not?
“Surprisingly, dueling was a recognized form of extra-judicial dispute resolution sharing some of the same objectives as modern ADR [alternative dispute resolution] – to avoid the courts, contain violence, and promote reconciliation” (Yarn 6). Readers of this tract may very well be asking themselves how the formalized combat of a duel could possibly contain violence.
The answer is simply that duels were never thought of as matters to be undertaken lightly. The 15th Century Fechtmeister (fight master) Hans Talhoffer writes that there are only seven reasons for calling a duel:
Yet, firstly this – Nobody is happy when one of his comrades cuts up his honour [sic] with loud words. He who have at dueling with such a comrade, indeed he is within his rights and may well-fight him if he would. Thus dueling is wantonness ~
Now those aforesaid causes and articles are seven, wherefor [sic] a man has duty to fight:
Thus the first is murder.
The second is treason.
The third is heresy.
The fourth is becoming an urger [sic] of disloyalty to one’s lord.
The fifth is betrayal in strife or otherwise.
The sixth is falsehood.
The seventh is using either a maiden or lady. (Hull 8r)
In modern times, that list would differ, as some of the reasons mentioned by Talhoffer are criminal acts. However, it can be seen that dueling was not a light undertaking, even in the supposedly unenlightened society of the 15th century. The more modern “Code Duello” adopted in the 18th century (“Code Duello”) which does allow for dueling over insult has as its first rule, “The first offense requires the first apology, though the retort may have been more offensive than the insult” (“Code Duello”). This requirement of apology before proceeding certainly does not sound like the image of dueling mentioned earlier in this writing.
Many people do not realize that dueling is not brawling. In the days of dueling, one could not just pick up weapons at the spur of the moment and go after someone’s blood. Even in Viking times, “Almost all duels were to be fought three to seven days after the challenge” (Matson, “Holmgang Part Two”). In the 19th century, “Dueling traditions discouraged parties from acting in the heat of passion by prohibiting challenges in immediate reaction to a perceived insult and before the offended party had sought advice and politely requested an acceptable explanation or apology, known as an amende honorable” (Yarn 7).
A good example of this difference in modern times actually comes from the actions of a five-year-old child. Now, during one of my son’s Taekwondo classes, an older child (who shall henceforth be known as nameless brat) spent a good portion of that class calling my son, “baby.” For readers unfamiliar with the social mechanics of young boys, them’s fighten’ words, to use the common slang. My son did hold his temper during class and did not let his increasing anger about the name-calling distract him over much. However, when we were leaving class and walking home my son said, “I want to spar nameless brat. I want to punch him and knock him down when we spar.” This was not my child asking permission to fight another child, which would have been assault. This was my child seeking redress for a grievance, since what the other child did legally constitutes harassment, “the act of systematic and/or continued unwanted and annoying actions of one party or a group, including threats and demands” (Law.com).
Grown adults may have well brought this issue to litigation. Instead, the five-year-old wanted to join in a formal physical confrontation with rules, limits, safety considerations, and under the watchful eye of trained professionals. Had the sparring match actually happened, it would have been a contest of Olympic Sport Taekwondo. This is a bit different from a street brawl or playground fight.
Some of history’s famous duels, notably the Lincoln-Shields duel, the Dooly-Tait duel, the Jones-Gardner duel, and the Adams-Richards duel were all conflicts that were actually avoided before reaching, or just after reaching the point of combat (Yarn 10-16). How was this done? The conflicts in these duels were arbitrated by the “Seconds” of the dueling parties (Yarn 10-16). The dueling seconds were friends of the disputing parties in a duel. The job of the seconds was to “conciliate by using his personal skills to restrain his principal [the duelist], defuse anger, lower levels of hostility, and reframe perceptions” (Yarn 15).
Many litigants in civil cases would benefit from such oversight that ensures attempts at reconciliation before continuing further. It is this writer’s opinion that, many civil litigation cases to include some types of personal contract disputes, some cases of harassment (personal, non-terroristic, non-sexual, and with no economic damages) could be more effectively settled by the plaintiff and defendant fighting in a formal sport combat than by tying up the legal system. To make this all nice and legal would be litigants should go through Professional Dueling Seconds. These professionals should be trained in martial arts, inter-personal conflict resolution, and legal arbitration.
The job of these professionals would be: primarily, to determine if the dispute is something that could be decided by a duel; secondly, to seek equitable resolution between the disputing parties; lastly, to ensure that the combat is carried out so that neither party has uneven advantage over the other even if it would mean the second fighting in place of one or both of the disputants.
These professionals could be trained with less schooling than is required for a legal degree. While I am not using the term Martial Arts to apply exclusively to Asian martial arts, the Asian martial arts can be looked at as representative in terms of training time. “The community consensus seems to be that a black belt should take about 5 years to earn” (Martial Development). This could be done concurrently with the other training in arbitration, and inter-personal conflict resolution. These new Professional Seconds could be finished with training and entering the workforce with only the expense of a bachelor degree. This should help hold expense down, as these persons would not have costly educational debts to recover from, at least not as costly as a law degree. Lower expense would open this method of dispute resolution to many who feel they would not be able to afford the court costs associated with a legal suit, and fees could be recovered from the losing party.
Going through such professionals would help eliminate unfair advantage between combatants, as would happen with an elderly woman and young construction contractor challenging each other. It would be the job of the second to fight for the disadvantaged party; the other party would have the option of either fighting themselves or also being represented by the second.
Non-lethal forms of combat can be used such as boxing, wrestling, mixed martial arts, fencing, or even arm wrestling. (This writer prefers fencing with wooden sword under the rules of the Traditional Chinese Sword League, but that is because this writer practices Tai chi and Tai Chi swordsmanship.) It is no secret that shows like WWE Raw and UFC fighting consistently score high ratings. Legal dueling could even be made into a public event with paid sponsorship generating an entire industry. Moreover, such a system could keep the court system clear so that other legal actions could be accomplished more swiftly.
Yarn comments that:
On the surface, dueling was a violent, archaic ritual that relied on seemingly irrational social conventions that are almost impossible to imagine today. Under the surface, it was a very rational method of managing disputes in an elite society lacking acceptable alternatives to unrestrained violence. Similarly, litigation appears to be a costly, archaic ritual often relying on seemingly irrational social conventions that may be impossible for some future generation to imagine. (22)
Perhaps, the solution to this dilemma is to bring back the duel but updated for the modern age.
“The Actual Facts About – The Mcdonalds’ Coffee Case.” The ‘Lectric Law Library. Consumer Attorneys of California, 1996. Web. 7 Nov 2010.
“Code Duello: The Rules of Dueling.” The American Experience – The Duel. PBS Online, 2000. Web. 20 Oct 2010.
Commonwealth of Kentucky. Small Claims Handbook. Frankfort: Kentucky Administrative Office of the Court, 2010. Web. 22 Oct 2010.
Hull, Jeffery. “Talhoffer and Causes for Fighting.” Association for Renaissance Martial Arts. Association for Renaissance Martial Arts, 2005. Web. 20 Oct 2010.
Isaacs, Daryl. Isaacs & Isaacs P.S.C., 2010. Web. 22 Oct 2010.
Jost, Kenneth. “Limiting Lawsuits.” CQ Researcher 18.44 (2008): p. 1034-1053. Web. 21 Oct 2010.
LaFountain, R, et al. Examining the Work of State Courts: A National Perspective from the Court Statistics Project. National Center for State Courts, 2009. Web. 21 Oct 2010.
“Law.com Law Dictionary.” Law.com. ALM Media Properties, LLC, 2010. Web. 28 Oct 2010.
“Black Belt Envy.” Martial Development. 27 Apr 2001. Web. 7 Nov 2010.
Matson, Garfield. “Holmgang – It’s Use, Abuse, and Fictionalization Part One.” Valhalla’s Svar 6.7 (1995): Web. 20 Oct 2010.
Matson, Garfield. “Holmgang – It’s Use, Abuse, and Fictionalization Part Two.” Valhalla’s Svar 6.8 (1995): Web. 20 Oct 2010.
Miyamoto, Musashi. The Book of Five Rings. William Scott Wilson trans. Kodansha International, 2002. p. 52. Print.
Winton, Jeremy. Winton Law Group, 2010. Web. 22 Oct 2010.
Yarn, Douglas H. “The Attorney as Duelist’s Friend: Lessons From The Code Duello.” Case Western Reserve Law Review 51.1 (2000): p. 1-22. MasterFILE Premier. EBSCO. Web. 21 Oct. 2010.