Is Dueling the Answer? Thoughts on AutoAdmit

The plaintiffs in the ongoing AutoAdmit defamation litigation in Connecticut have obtained the real identities of some of the previously pseudonymous individual defendants, according to Wired.  Wired’s story includes comments by Ann Bartow (South Carolina and Feminist Law Profs) and Dan Solove (GWU and Concurring Opinions) on the harms and remedies associated with hateful anonymous online speech.  Here is Dan’s partly tongue-in-cheek comment:

Since libel lawsuits are mostly about clearing one’s name, Solove finds himself lamenting the lost ritual of duels, which he describes as an elaborate nonjudicial way of settling disputes that rarely actually got to the shooting phase.

“We don’t have any middle-ground dispute resolution processes in society anymore, and courts aren’t a good way to vindicate these non-monetary harms,” Solove says. “I think we need something else.”

That sent me running to an early piece of legal scholarship by Larry Lessig, The Regulation of Social Meaning, 62 U. Chi. L. Rev. 943 (1995), which uses duels (among other things) to illustrate the interrelated dynamism of social practices and social meaning.  What follows is the complete text of Lessig’s discussion of duels, without footnotes.  Dueling obviously isn’t the solution to the AutoAdmit problem and related problems of online harassment and bullying.  But the dueling suggestion gets at something important, which is designing ways to bring attacker and victim into some kind of guarded proximity.  The Internet simultaneously closes and expands social distance, and I think that the conduct and harms evident in the AutoAdmit situation are at least indirectly related to that phenomenon:

For much of the history of the American South, state governments struggled against a well-entrenched practice of dueling. Odd as it may seem, this practice of dueling–the ritual of retiring to a field and firing pistols at one another to satisfy a social insult–was the domain of southern gentlemen only. Not just anyone could successfully challenge another for a duel; only someone with a sufficiently high social standing. Lines, of course, were not sharp, and some on the margins of high society used dueling as a way to secure their place in high society (Aaron Burr, it is said, challenged Hamilton in part to elevate his social position). But social climbers notwithstanding, the class for whom dueling was a practice was relatively small.

The details of this scheme need not concern us here. For our purposes, it is enough to note some of the more obvious oddities of this social ritual. Consider first its disproportionality. A gentleman could be challenged for the slightest insult–merely for being personally cold, for example, in a social setting–yet the challenge could lead to death. More interesting still is its essential randomness: for the duel can result in the death of either the injurer or the injured, with no mechanism to assure that the punishment tracks the guilty. The duel was like a lawsuit where the judge, after establishing that indeed there was a wrong, flips a coin to decide who, between the plaintiff and the defendant, should be executed for the wrong. No doubt then, the duel often misfired, either because the challenge itself was wrongful and the challenged suffered death, or because the challenge itself was correct but the challenger suffered death (not to mention the harm of the death even if the “correct” person died). Charles Dickinson, for example, died at the hands of Andrew Jackson after Jackson had “made uncomplimentary remarks about” Dickinson’s wife.

Many have attempted to explain the rationality of this practice. The question of rationality has two perspectives. From one perspective, the question is whether, given structures as they were, it was rational for any individual to participate in a duel. The other is whether it is rational for a society to have the social structure of dueling. Consider each in turn.

We have seen enough to see how it could be rational for an individual to participate in a duel, if existing structures of social meaning are taken as fixed. To refuse a challenge wrongfully opened one up to severe social sanction, and the burden of this sanction could easily outweigh the expected cost of participating in the duel. Moreover, by rightfully and properly executing a duel, though risking death, one could establish oneself as a gentleman, a person to be trusted and engaged, and thus awarded significant social advantages. Social meanings could well be such that there would be a net benefit from engaging in a duel if right- fully challenged. If so, we could say, from the individual’s perspective, dueling was rational.

The harder question is whether the practice was rational from the social perspective. To us, certain features are clearly ridiculous: the practice is random, it strikes down some of the community’s most valuable citizens, and its sanction is not proportional to its harm. On the other hand, no doubt it was a polite society, whose honor (supported by the system of dueling) helped it avoid the cost of cheating. How–from where–one weighs these benefits and costs is an unanswerable question. But for our purposes, this ultimate judgment is not important. It is enough to note that southern states were quick to ban dueling, and to ask whether, and how, this ban was effective.

We should note up front what is a commonplace in the history of American dueling: Regardless of their form, attempts to regulate dueling were largely ineffective. But even though generally a failure, there are differences in the effectiveness of the different kinds of regulation. For our purposes, we can isolate two distinct forms. One form aimed to eliminate dueling simply by banning it from social life; the other aimed to eliminate it simply by changing its social meaning. Consider the very different ways these two regulations would work.

As suggested above, what held dueling together was solidarity among an elite class. Simply banning dueling would not necessarily challenge that solidarity. Indeed, if the elite viewed the ban as imposed by the nonelite, ignoring the ban would itself be a demonstration of solidarity. We can see this by imagining a somewhat stylized exchange between two potential combatants:

Challenged: “I decline your challenge on the grounds that dueling is illegal.”

Challenger: “But these are laws passed by commoners; they do not represent the will of gentlemen.”

Challenged: “Yes, but if we engage in dueling we are likely to be jailed or hanged, if one of us is killed.”

Challenger: “So you are as I thought–a coward.”

Proscription here fails in part because it directly challenges the norms of loyalty built within the social structure, and these norms can be quite strong. Within the elite’s rhetorical structure, a law banning dueling was not a sufficient reason to refuse to duel.

But a second type of sanction, while in some sense less severe, might actually have been more effective. Under this sanction, an individual participating in a duel was barred from public office after the duel. Holding public office, however, or more importantly, serving the public, was itself a duty of the elite. Thus, exclusion created a conflict in the duties faced by the elite, and hence an elite-based reason for refusing the challenge of a duel. Imagine again a dialogue declining the duel:

Challenged: “I decline your challenge on the grounds that it will bar me from serving in public office in the future.”

Challenger: “But you are obligated as a gentleman to accept my challenge.”

Challenged: “I am also obligated as a gentleman to serve my state, and I consider that duty superior to my duty to give you satisfaction. I agree it would be better if I were free to satisfy both duties, and I would willingly accept your challenge if it did not disable me from serving my state. I have no control over that, however. I must, therefore, respectfully decline.”

What is different about the second proscription is that it functions within the elite’s rhetorical structure, to undermine the very basis for dueling itself. A gentleman could appeal to a gentleman’s duty in escaping the duel, rather than appealing to self-interest or the rules of commoners. The state’s action here served to ambiguate a gentleman’s duty, and thereby facilitated the transformation of the social meaning of dueling itself. Against the background that the state has reconstructed, to choose to duel would be to choose to serve private interests over collective duty.

Even this sanction was ineffective for much of the history of the old South, however, usually because legislatures passing this disability would grandfather all duels up to the time of the legislation and would repass the grandfather legislation every few years. Thus the disability actually affected few, as the grandfathering reaffirmed the social status of the practice. Nonetheless, my point here is not so much about whether the laws were in fact effective, but rather the different ways that they could have been effective. It is enough to note that their effectiveness turned in part upon how well they connected with an existing structure of social meaning.

For much of the history of the American South, state governments struggled against a well-entrenched practice of dueling. Odd as it may seem, this practice of dueling–the ritual of retiring to a field and firing pistols at one another to satisfy a social insult–was the domain of southern gentlemen only. Not just anyone could successfully challenge another for a duel; only someone with a sufficiently high social standing. Lines, of course, were not sharp, and some on the margins of high society used dueling as a way to secure their place in high society (Aaron Burr, it is said, challenged Hamilton in part to elevate his social position). But social climbers notwithstanding, the class for whom dueling was a practice was relatively small.

The details of this scheme need not concern us here. For our purposes, it is enough to note some of the more obvious oddities of this social ritual. Consider first its disproportionality. A gentleman could be challenged for the slightest insult–merely for being personally cold, for example, in a social setting–yet the challenge could lead to death. More interesting still is its essential randomness: for the duel can result in the death of either the injurer or the injured, with no mechanism to assure that the punishment tracks the guilty. The duel was like a lawsuit where the judge, after establishing that indeed there was a wrong, flips a coin to decide who, between the plaintiff and the defendant, should be executed for the wrong. No doubt then, the duel often misfired, either because the challenge itself was wrongful and the challenged suffered death, or because the challenge itself was correct but the challenger suffered death (not to mention the harm of the death even if the “correct” person died). Charles Dickinson, for example, died at the hands of Andrew Jackson after Jackson had “made uncomplimentary remarks about” Dickinson’s wife.

Many have attempted to explain the rationality of this practice. The question of rationality has two perspectives. From one perspective, the question is whether, given structures as they were, it was rational for any individual to participate in a duel. The other is whether it is rational for a society to have the social structure of dueling. Consider each in turn.

We have seen enough to see how it could be rational for an individual to participate in a duel, if existing structures of social meaning are taken as fixed. To refuse a challenge wrongfully opened one up to severe social sanction, and the burden of this sanction could easily outweigh the expected cost of participating in the duel. Moreover, by rightfully and properly executing a duel, though risking death, one could establish oneself as a gentleman, a person to be trusted and engaged, and thus awarded significant social advantages. Social meanings could well be such that there would be a net benefit from engaging in a duel if right- fully challenged. If so, we could say, from the individual’s perspective, dueling was rational.

The harder question is whether the practice was rational from the social perspective. To us, certain features are clearly ridiculous: the practice is random, it strikes down some of the community’s most valuable citizens, and its sanction is not proportional to its harm. On the other hand, no doubt it was a polite society, whose honor (supported by the system of dueling) helped it avoid the cost of cheating. How–from where–one weighs these benefits and costs is an unanswerable question. But for our purposes, this ultimate judgment is not important. It is enough to note that southern states were quick to ban dueling, and to ask whether, and how, this ban was effective.

We should note up front what is a commonplace in the history of American dueling: Regardless of their form, attempts to regulate dueling were largely ineffective. But even though generally a failure, there are differences in the effectiveness of the different kinds of regulation. For our purposes, we can isolate two distinct forms. One form aimed to eliminate dueling simply by banning it from social life; the other aimed to eliminate it simply by changing its social meaning. Consider the very different ways these two regulations would work.

As suggested above, what held dueling together was solidarity among an elite class. Simply banning dueling would not necessarily challenge that solidarity. Indeed, if the elite viewed the ban as imposed by the nonelite, ignoring the ban would itself be a demonstration of solidarity. We can see this by imagining a somewhat stylized exchange between two potential combatants:

Challenged: “I decline your challenge on the grounds that dueling is illegal.”

Challenger: “But these are laws passed by commoners; they do not represent the will of gentlemen.”

Challenged: “Yes, but if we engage in dueling we are likely to be jailed or hanged, if one of us is killed.”

Challenger: “So you are as I thought–a coward.”

Proscription here fails in part because it directly challenges the norms of loyalty built within the social structure, and these norms can be quite strong. Within the elite’s rhetorical structure, a law banning dueling was not a sufficient reason to refuse to duel.

But a second type of sanction, while in some sense less severe, might actually have been more effective. Under this sanction, an individual participating in a duel was barred from public office after the duel. Holding public office, however, or more importantly, serving the public, was itself a duty of the elite. Thus, exclusion created a conflict in the duties faced by the elite, and hence an elite-based reason for refusing the challenge of a duel. Imagine again a dialogue declining the duel:

Challenged: “I decline your challenge on the grounds that it will bar me from serving in public office in the future.”

Challenger: “But you are obligated as a gentleman to accept my challenge.”

Challenged: “I am also obligated as a gentleman to serve my state, and I consider that duty superior to my duty to give you satisfaction. I agree it would be better if I were free to satisfy both duties, and I would willingly accept your challenge if it did not disable me from serving my state. I have no control over that, however. I must, therefore, respectfully decline.”

What is different about the second proscription is that it functions within the elite’s rhetorical structure, to undermine the very basis for dueling itself. A gentleman could appeal to a gentleman’s duty in escaping the duel, rather than appealing to self-interest or the rules of commoners. The state’s action here served to ambiguate a gentleman’s duty, and thereby facilitated the transformation of the social meaning of dueling itself. Against the background that the state has reconstructed, to choose to duel would be to choose to serve private interests over collective duty.

Even this sanction was ineffective for much of the history of the old South, however, usually because legislatures passing this disability would grandfather all duels up to the time of the legislation and would repass the grandfather legislation every few years. Thus the disability actually affected few, as the grandfathering reaffirmed the social status of the practice. Nonetheless, my point here is not so much about whether the laws were in fact effective, but rather the different ways that they could have been effective. It is enough to note that their effectiveness turned in part upon how well they connected with an existing structure of social meaning.