Дуэль: узаконенное убийство или самоубийство?

Khroyan K.P.,
Student at the Russian State University of Justice named after V.M. Lebedev, Moscow

Scientific advisor:
Bulanovskaya T.A.,
PhD in Philology, 
Associate Professor at the Foreign Languages Department,
Russian State University of Justice 
named after V.M. Lebedev, Moscow

Duel: legalized murder or suicide?

Abstract. The article explores the history of duels as a means of resolving disputes and restoring honour, beginning with judicial combats in ancient times and extending to private duels of honour that became popular in Europe from the 16th century. Duels, conducted according to established rules, varied by time and country, sometimes including participation from women and clergy. In Russia, duelling gained popularity in the 17th century despite strict prohibitions from tsars. Today, duels are virtually non-existent, except in Paraguay where they remain legal, while conflicts are more commonly resolved through courts and lawyers, reflecting the evolution of legal norms.

Keywords: duel, judicial duel, combat, historical practice, rules, honour, court, prohibitions, legalization.

This article makes an attempt to show that duel in its historic form cannot be restored today as a means of settling legal matters or personal disagreements, as it is described in official sources. It might be sensible to explore the legality of duels throughout ages and states as the debates continues between parties involved, and not only on the issues of terms and conditions.

Encyclopaedia Britannica defines duel as «a combat between persons, armed with lethal weapons, which is held according to prearranged rules to settle a quarrel or a point of honour . It is an alternative to having recourse to the usual process of justice» [1]. Historically it is preceded by judicial duel, or trial by battle, reported by Julius Caesar and historian Tacitus as a typical way for Germanic tribesmen to settle their disputes. Whether this method was borrowed by other Europeans, or was developed independently is an open question. But in the Middle Ages it became a popular method of establishing who is right and wrong in a dispute. The outcome of the fight was determined by God, whereas the sides in the conflict often gave false oaths as to their righteousness. If neither opponent admitted lying, the judge ordered trial by battle.

Depending on the time and country, different kind of people were decreed to take part in this ordeal. Sometimes women, clergymen and even serfs were allowed to participate, sometimes not. If a person could not participate for valid reasons (age, sickness, etc.), they could employ a “champion” to fight for their side. It was believed that the «judgment of God» was that the defender of the right could not be the loser, so, if still alive after the fight, the loser (and their champion) was dealt with as a guilty person according to law. Sometimes duels also served to decide impersonal question, like a duel in 1085 in Toledo to decide what rite should be used in the liturgy [1]. Judicial duel was introduced in England by William the Conqueror and was abolished in 1819. In France the last judicial duel to be authorized by a French king took place on July 10, 1547.

Duels of honour were private encounters about real or imagined slights or insults. They are believed to have originated in Italy in the end of XVI century. The fashion was facilitated by the fact that a sword or a knife was a part of everyday dress and easily available. At first, duels were secret affairs, but then it became usual for duellists to be accompanied by friends or “seconds”, as secrecy was abused. Later, these seconds also fought, to prove themselves worthy of their friends.

Rulers were not happy with this emerging fashion, and in France kings, beginning with Charles IX, issued edicts against duels of honour, threatening dire punishments to participants, including long terms of imprisonment and even death. However, the tradition survived the monarchy in France, and in XIX and XX century political duels were fought, although in XX century they were organized to be non-fatal and often only for publicity reasons.

In Germany duels between the military were authorized by the military code until World War I and legalized again by the Nazis in 1936. Mensur , which was not fought for personal reasons, still exists in universities as a sporting event with peculiar rules, which prescribe hitting the opponent on the face and head to produce scars that used to be the pride of a German student. Duels between women, although rare, have been recorded.

The tradition of duels came to Russia from Western Europe in the middle of the XVII century, when two foreign officers serving in the Russian army fought a duel. It soon became quite popular, especially among military people and young aristocrats. The procedure was different from West European and was generally assessed as tougher and riskier affair. Pistol duels were often fought at ten space distance, and sometimes even face-to-face [2].

Like other rulers, Russian Tzars opposed duels and introduced all kinds of punishments for taking part in one. For officers it was demoting and exile to the Caucasus to continue their military career. But these punishments were gradually softened, and duelling was actually legalized by Alexander III in 1894, when a decree was published abolishing the punishment for duelling, provided it was fought “according to the rules”. This stimulated a new wave of duel popularity.

The rules were different at different times in different countries, but basically, they boiled down to the idea of fair play: identical weapons, equal opportunities, no ambushes or tricks, seconds to monitor the procedure and so on. A doctor was usually brought to the scene to determine whether a wounded participant was able to continue. A duellist could not avoid fighting – his honour was lost even if he was so much as late to the prearranged location.

At first duels were fought with swords (sometimes daggers in Italy), but later pistols were introduced, and gunsmiths started producing special sets of two pistols specifically for duelling. If firearms were used, the right to shoot first was decided by a draw. If one of the participants was wounded and fell, he still had the right to make his shot lying down. Distances and other particulars were determined by the seconds at the suggestion of the challenger and the challenged person. The latter traditionally had the right to choose weapons.

Theoretically duels were not fought to kill the opponent, but to gain “satisfaction”, to restore one’s honour that was damaged by the opponent’s words or actions. At certain periods care was taken for the duel not to end in homicide. But, of course, even then a strong emotion or bad luck made all precautions void.

American history has known many political duels. Alexander Hamilton (the one on ten-dollar bill), Andrew Jacson (later the 7 ^th president) were among the best-known participants. Often American duels escalated into general knife-fighting, like in Sandbar Fight initiated by James Bowie [3]. Contrary to popular belief, duels were not at all common in the American Wild West, although shootouts were frequent occurrences. But those were neither formalized, nor fought according to the rules, or to defend one’s honour. They were mostly the result of too much drinking and aggressiveness of the rabble migrating away from comparatively civilized way of life in the East Coast cities and towns. This legend was mostly created by cheap fiction called dime-novels and later Hollywood films of similar quality. Cowboys were doing hard manual jobs and had neither energy nor leisure to imitate idle French aristocracy.

Cesare Beccaria, in his work on crimes and punishments, pointed out the futility of restricting duels in Italy, even if participation was prohibited on pain of death penalty [4]. In his opinion, this is due to the fact that the issues of honour, because of which swords were crossed, dominate the hearts of men over ordinary laws and the danger of punishment. His contemporary, the great English lawyer William Blackstone (1723-1780) treated duels uncompromisingly: “... in the case of a deliberate duel, when both sides meet by agreement with intent to kill, considering it their duty as gentlemen and their right to play with their lives and the lives of their friends, without any permission from some authority, divine or human, but in direct contradiction to the laws of God and man, thus, in accordance with the law, they commit a crime and must be punished for murder, they and their seconds”. Having made such a statement, Blackstone also recognized the inability of laws alone to control duels: “The strictest prohibitions and punishments established by law will never be able to completely eradicate this unfortunate custom until a way is found to force the original offender to provide the victim with another satisfaction, which in the eyes of the world will be considered equally worthy” [5].

Granville Sharp expressed a similar opinion in his “A Tract on Duelling, where the Opinions of Some of the Most Celebrated Writers on Crown Law Are Examined and Corrected... In Order to Ascertain the Due Distinction between Manslaughter and Murder” [4]. Interestingly, although many other lawyers since the reign of Elizabeth have held the idea that a duel in the eyes of the law should not differ from murder, the public had a different point of view, and it was difficult to find a jury that would decide to apply draconian punishments to duellists, which surprised Bentham. In general, duels have always caused heated debates, so numerous that it would be superfluous to describe them in detail, since they are outside the topic of this note [5]. As a result, this happened, as Blackston said: it was not the laws that caused the disappearance of duels at all, but changes in society and morality. Another version is the influence of the legal community, which sought to replace duels with less fleeting, and therefore more profitable lawsuits. Here is an example of the truth of Hegel's words that law only mediates social relations existing in a country and cannot radically change them. Unfortunately, too many legislators do not understand this.

Today most people do not ever entertain the idea of fighting a duel. However, despite all the progress of mankind, there are still duels in some parts of our world.

Firstly, duels still exist and are actively used in the areas inhabited by Afghan tribes. In the hills between Afghanistan and Pakistan, the laws are not governed by the respective nations but by local tribal laws. Honour plays a huge role in tribal life and nothing is more honourable than a duel.

In the South Pacific Ocean, Pitcairn Island there is a country where duelling is still practiced. The country is so small that it only has two police officers and not a single lawyer. Since there are very few laws governing all of 50 inhabitants, there is only one law that covers assaulting another person. If they do take offense to your duel, just pay the $100 fine and carry on.

Another country where duelling is still allowed is Western Sahara. The laws of the Western Sahara technically fall under Moroccan jurisdiction, but no one really cares because there is nothing there but a desert. The region’s laws are more concerned with maintaining religious customs, which has led to a rise in terrorism. When you are out in the desert, it is practically lawless – but legality of duelling is probably the last thing you should be concerned about. Just you, the desert, terrorists, and your duelling opponent.

There are also international waters. It is a misconception that anyone can do anything on the high seas. When you are 12 miles offshore, the laws of the ship are of whichever country the ship is registered to. This is why cruise ships do not become lawless hellscapes when traveling.

While everywhere else on this list leaves duelling in a sort-of grey area, Uruguay made it a national law in 1920 [7]. Surprisingly enough, the last duel took place in 1971 between two politicians after one was called a coward. Another duel came close in 1990 between a police inspector and newspaper editor, but the inspector backed down. Shortly after this incident, duelling was officially banned in Uruguay in 1992. However, since duelling played a huge role in their politics and culture, if you could get the consent of their congress and president, you can still take your ten paces. They will probably say no to keep up positive relations with the US and it would not look good if an American died there. After it was wrongly added to a book of “facts”, there was a common misconception that you could legally duel in Paraguay if both participants were blood donors. This falsity was quickly shot down by their government.

The immortal call for duelling touched Russians as well. The new approach to the duelling occurs in the Russian Federation these days, although sounds a bit tricky. In the State Duma, Liberal Democratic Party of Russia deputy Sergei Ivanov introduced for consideration the draft “Duel Code of the Russian Federation”, which allows duels only between officials. He notes that in accordance with the legislation of the Russian Federation, libel is a criminal offense, and insult is an offense, guilt and responsibility for which is established by the court. “In order to streamline the main reasons for calling a duel and the procedure for conducting it, this draft Duel Code is proposed,” says the explanatory note to the bill. Moreover, according to the authors of the document, a duel between citizens is possible, but it is an anomaly and does not meet its purpose. An example could be as follows. September 11, a video message from the director of the Federal Service of the National Guard Troops of the Russian Federation, Viktor Zolotov, was published to opposition leader Alexei Navalny with a call to fight noting that sometimes “slander must be fought by any means”.

As we have seen, people still do fight, but these are mostly non-formalized clashes that can be diagnosed as battery, assault or bodily injury, all of which fall under the jurisdiction of criminal law. People who feel their honour has been humiliated take their cases to court, especially if they are a public person. Even if a formal duel should be organized, according to the code, it would be considered a criminal offence, its gravity depending on how much the participants were injured. But today there is no public pressure to accept a challenge of this kind, so the challenged person can easily refuse to take part in a duel without dishonouring themselves in the eyes of their community. Hence, the revival of this tradition seems quite unlikely.

Литература

1. Duel | History, Rules & Etiquette. URL: https://www.britannica.com/topic/duel (дата обращения 07.11.2024).

2. The Anatomy & Rules of the Russian Duel. URL: https://latgale.academy/russian-duel/ (дата обращения 09.11.2024).

3. The History of Duelling in America | American Experience. URL: https://www.pbs.org (дата обращения 09.11.2024).

4. Beccaria Cesare. About crime and punishment. URL: https://protivpytok.org/biblioteka/bekkaria-chezare-o-prestuplenii-i-nakazanii.

5. Commentaries on the Laws of England (1765-1769) \\ URL: http://files.libertyfund.org/files/2140/Blackstone_1387-01_EBk_v6.0.pdf.

6. Zasolkin P.A. Analysis of criminal liability for conducting a duel under the legislative acts of the Russian Empire of the 18th – first half of the 19th centuries // Skif. 2021. NO.10 (62). URL: https://cyberleninka.ru/article/n/analiz-ugolovnoy-otvetstvennosti-za-provedenie-dueli-po-zakonodatelnym-aktam-rossiyskoy-imperii-xviii-pervoy-poloviny-xix-veka (дата обращения: 13.11.2024).

7. Parker, D. S. (2001). Law, Honor, and Impunity in Spanish America: The Debate over Duelling, 1870-1920. Law and History Review, 19(2), 311–341. https://doi.org/10.2307/744132. URL: https://www.jstor.org/stable/744132 (дата обращения: 01.06.2025).