A friend of mine, let’s call him “Gene,” asked me for my take on dueling and some related issues. This was in response to one of his friends criticizing libertarianism because it would have all kinds of unacceptable or unpleasant things such as frequent resort to dueling. Presumably the friend would outlaw dueling, and thinks libertarianism is defective because it would not.
My friend asked me if I thought dueling would be legal in a libertarian world, and also whether someone repeatedly harassing you and challenging you to a duel, not taking no for an answer, could be seen as making a threat. In that case, could the target/victim of this harassment seek an injunction or restraining order to keep harasser away.
I said something along these lines.
First, dueling would not, and should not, be illegal in a libertarian society, since people are free to consent to things that would be battery absent their consent. A girl can consent to a kiss or sex, which would be battery or rape absent consent. Someone can consent to surgery, someone cutting your body open without consent would be committing battery. Boxers enter the ring and fight; American football players tackle each other, and no one accuses them of committing battery since the “victims” consented. As far as I know, the only reason shooting someone who consents to it counts as murder—when a boxer hitting another doesn’t count as battery—is that consent is not a defense to homicide (whereas self-defense is) (see La. Crim. Code §§ 20, 29); and also, assisting in suicide is often illegal (see La. Crim. Code §32.12), and suicide itself, or attempted suicide, are also sometimes illegal (see LII; Wikipedia). In a libertarian world, suicide would not be a crime, nor would assisted suicide, and consent would be a defense to a charge of homicide.
I do not believe challenging someone to a duel violates their rights, nor is it necessarily a threat (assault—La. Crim. Code §36), contrary to the views of some confused libertarians, such as Patrick Burke (see “Review of Patrick Burke, No Harm: Ethical Principles for a Free Market (1994)“). It is my understanding that the practice of dueling normally involves formal rules and the duel is normally consented to by both parties. Refusal to duel when challenged may embarrass the person challenged but it does not invade the borders of his body or alter its physical integrity—in short, a challenge is rightful since it does not commit aggression. Contra Burke, if someone feels “bullied” or pressured into accepting a duel, that still does not violate their rights. The fact that challenging someone to a duel might be “akin to blackmail (I do not think it is) is irrelevant since blackmail should also be legal (see A Tour Through Walter Block’s Oeuvre, at notes 4–5, 8, et pass).
But of course in some cases repeated harassment of someone who has refused the challenge may rise to the level of a serious threat and may be treated as an act of aggression and responded to as such—preemptively, or with something like a restraining order. I discuss this in further detail in “A Libertarian Theory of Punishment and Rights,” in LFFS, Part IV.F, “Why Assault, Threats, and Attempts Are Aggression”; and Kinsella, “Stalking and Threats as Aggression,” StephanKinsella.com (Jan. 10, 2021).
