Legal Question for PAC, et al.

[wuapinmon]

If the basis for US law was English Common Law circa 1776, and since England didn't forbid the Medieval right of trial by combat until the early 1800's, then, conceivably, could someone argue that they have a right to fight their accuser to the death, or to accuse someone of something and fight it out if they agree to a duel, as it were?

I recognize that many states and the US military prohibit dueling. But, there are some states that would seem to have nothing on the books about it specifically, in the event that both parties were in a "consensual altercation."

Assuming you were in a state without a specific law, and not Louisiana either, could you argue that the common law right of trial by combat has primacy over implied limitations of a consensual altercation if someone were charged with manslaughter after engaging in and winning a duel with someone else?

Are there any cases that have taken up this before? I ask, not because I want to fight someone, solely out of curiosity after reading some stuff about Henry II by Winston Churchill, and it's been on my mind. A curiosity.

[LA Ute]

I ask, not because I want to fight someone, solely out of curiosity after reading some stuff about Henry II by Winston Churchill, and it's been on my mind. A curiosity.

wuap, don't do it. Let us find you a good attorney or dispute resolution professional. Violence under any guise only makes things worse.

[All-American]

No, because common law is not just what judges have said, but what you would expect judges to say right now. Common law is (in oversimplified terms) the notion that like cases should be judged alike, and a judge shouldn't treat a case differently unless there are different facts in the case. The passage of hundreds of years and the demise into obscurity of duels and trials by combat would be more than adequate to relieve judges of following the precedent of any cases not yet explicitly contradicted. Even if there were some hypothetical jurisdiction in which every court running up to the Supreme Court had left the matter of dueling untouched, a good judge, and most of the bad ones, would recognize that duels are no longer an acceptable means of dispute resolution in our society, and follow the persuasive influence of its sister courts.

[wuapinmon]

No, because common law is not just what judges have said, but what you would expect judges to say right now. Common law is (in oversimplified terms) the notion that like cases should be judged alike, and a judge shouldn't treat a case differently unless there are different facts in the case. The passage of hundreds of years and the demise into obscurity of duels and trials by combat would be more than adequate to relieve judges of following the precedent of any cases not yet explicitly contradicted. Even if there were some hypothetical jurisdiction in which every court running up to the Supreme Court had left the matter of dueling untouched, a good judge, and most of the bad ones, would recognize that duels are no longer an acceptable means of dispute resolution in our society, and follow the persuasive influence of its sister courts.

Alright, I think I get what you're saying though I still have two questions:

1. How does the first sentence square with the notion of stare decisis? Do decisions from 500 years ago, if they haven't had any intervening cases, not stand because of judicial privilege to interpret the law?

2. You've mentioned what a judge would say now, but could, theoretically and technically, an attorney argue before a jury (successfully) that a signed contract between two people acknowledging their consent to duel cannot be punishable by law because the tradition exists, and there is no current statute to make it punishable because the penal code assumes, I would imagine, that cases of violence are not usually willfully accepted by the victims?

I recognize the absurdity of my questions. But, my friends call me "Whiskers."

[Babs]

wuap, don't do it. Let us find you a good attorney or dispute resolution professional. Violence under any guise only makes things worse.

Don't worry: wuap would never beat the shit out of anyone. Come to think of it, he probably won't even deign to acknowledged your existence.

[wuapinmon]

Don't worry: wuap would never beat the shit out of anyone. Come to think of it, he probably won't even deign to acknowledged your existence.

I don't have many options. I have to be a peacemaker.

[Uncle Ted]

I don't have many options. I have to be a peacemaker.

Yes, be one with your weapon of choice.

IHMO, with today's choices in handguns the colt peacemaker wouldn't be my first choice but I am guessing you are into westerns.

[TripletDaddy]

This is a stupid thread. You cannot contract or consent to a tort or crime and it is irrelevant whether dueling has been outlawed because there are some pretty recent laws on the books that prohibit assault, battery, murder, use of deadly weapons, etc. Also, in the event of death, the State would likely be a party to the case, regardless of whether the deceased wanted to "sue" anyway.

Hope this helps.

Now onto another brain teaser....if I saw a dinosaur and killed it, would I get into trouble because there are no laws that specifically mention dinosaurs.

[YOhio]

This is a stupid thread. You cannot contract or consent to a tort or crime and it is irrelevant whether dueling has been outlawed because there are some pretty recent laws on the books that prohibit assault, battery, murder, use of deadly weapons, etc. Also, in the event of death, the State would likely be a party to the case, regardless of whether the deceased wanted to "sue" anyway.

Hope this helps.

Now onto another brain teaser....if I saw a dinosaur and killed it, would I get into trouble because there are no laws that specifically mention dinosaurs.

Sheesh! Grumpy!

[All-American]

Alright, I think I get what you're saying though I still have two questions:

1. How does the first sentence square with the notion of stare decisis? Do decisions from 500 years ago, if they haven't had any intervening cases, not stand because of judicial privilege to interpret the law?

2. You've mentioned what a judge would say now, but could, theoretically and technically, an attorney argue before a jury (successfully) that a signed contract between two people acknowledging their consent to duel cannot be punishable by law because the tradition exists, and there is no current statute to make it punishable because the penal code assumes, I would imagine, that cases of violence are not usually willfully accepted by the victims?

I recognize the absurdity of my questions. But, my friends call me "Whiskers."

Stare decisis is not an incorrigible doctrine. As recently as the decision in Citizens United, the Supreme Court has noted that "stare decisis is a principle of policy and not a mechanical formula of adherence to the latest decision.”

Our precedent is to be respected unless the most convincing of reasons demonstrates that adherence to it puts us on a course that is sure error. “Beyond workability, the relevant factors in deciding whether to adhere to the principle of stare decisis include the antiquity of the precedent, the reliance interests at stake, and of course whether the decision was well reasoned.” . . . We have also examined whether “experience has pointed up the precedent's shortcomings.”

The fact that the cases supporting dueling are old do not per se mean that they are bad-- the Court often respects precedent more, not less, because it is old-- but the fact that it has been so long since any cases have relied upon that precedent would weigh against abiding by it. A court would also be likely to find that the interests at stake are lower than society's interest in preserving order and eradicating a dangerous practice. Since the reasoning which led to the precedent no longer holds any staying power in modern society, the precedent itself is no longer determinative.

Attorneys are allowed to argue all kinds of strange theories. I just dealt with a case where a guy arrested for driving with a suspended license for the 14th time said that he did so out of necessity, because he needed to pick up pain meds from the store, a situation which his lawyer actually argued was a life or death scenario. Amazing stuff.

Even so, I sincerely doubt that the judge would allow an attorney to argue as an affirmative defense that the conduct was consensual.

[TripletDaddy]

Sheesh! Grumpy!

Quiet you, or we battle to the death! :fight:

[PaloAltoCougar]

AA's doing fine with the response. Wuap, obviously you're just foolin' around here, but the legal argument/question you raise is the type of thing death row inmates, with obviously lots of time on their hands, make when they're representing themselves.

Now onto another brain teaser....if I saw a dinosaur and killed it, would I get into trouble because there are no laws that specifically mention dinosaurs.

Another creative argument for ridding Raider Nation of its sclerotic owner/manager.

[HuskyFreeNorthwest]

wuap did you just watch Good Will Hunting?

Also DDD throwing down legal advice? I thought you made video games. I'll wait for PAC or SU to chime in. Though you do raise a good question about the dinosaurs.

[Babs]

This is a stupid thread.

Hey!! You leave these kinds of sweeping assessments to the experts.

[wuapinmon]

wuap did you just watch Good Will Hunting?

Also DDD throwing down legal advice? I thought you made video games. I'll wait for PAC or SU to chime in. Though you do raise a good question about the dinosaurs.

I read something that Churchill wrote about Henry II granting the right to a jury so that people didn't have to consent to trial by combat and risk "infamy."

I have no formal education in matters legal, so I asked a question to someone who would know. DDD's example is actually an interesting question to me, despite its lack of practical use or even possibility of happening. If someone killed the Loch Ness Monster, would it be a crime? Could a clever prosecutor find some statute by which to charge him/her? This stuff interests me, and I'm not even incarcerated. Of course, if he says it's stupid, then it's stupid, because it doesn't interest the pissy little doggie.