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So, I've always been a fan of the medieval ages and chivalry and honor and all that good stuff, and recently as I was thinking about it, it got me wondering. Is it possible to have a duel to the death set up in a way where neither party receives any negative legal backlash (i.e. being labelled a murderer and tried as such)? I know back in the time of the civil war it was still legal (at least I believe it was) to have a death duel, but of course we also could have slaves so the laws have changed a lot since then. But is it possible now, maybe with a contract of some sort to ensure that both parties knew what they were getting themselves into, to legalize a duel to the death?

  • Ok so structure the duel as a living will/suicide pact acknowledging each other as your helper, with some risk of method failure, and hold it in a jurisdiction with legal euthanasia. (A battle of wits over which glass has the iocane powder, perhaps) – user662852 Aug 9 '15 at 13:33
  • I'm not sure your assertion that it was legal is correct; dueling was illegal long before it became uncommon. – cpast Aug 9 '15 at 21:38
  • Okay, so I was talking with my cousin about this and he told me that as far as he knew, you could, in theory, go down to the Boise, Idaho Town Hall and if you got someone willing and they knew what they were getting themselves into, you could go on to the steps of the town hall and as long as you stood next to each other and walked so many paces apart with a crowd around you, one could duel another in a shoot off style because as far as he knew (note: I do not know if my cousin has any law learning, but he is surprisingly knowledgeable.) dueling is not illegal in Idaho. – Cyberson Aug 10 '15 at 22:01
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    Which country?~ – Franck Dernoncourt Nov 26 '16 at 3:47
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    @FranckDernoncourt Originally I was curious mainly about in the United States, but information about other countries is always fun to learn. – Cyberson Nov 28 '16 at 17:40
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One of the conditions for a contract to be enforceable is that its undertakings must be legal.

This would mean that you cannot, contractually, be indemnified for murder - at least, not in any jurisdiction where homicide is illegal.

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    Unfortunately? Really? – Dale M Aug 9 '15 at 9:27
  • Ha. A poor turn of phrase, I suppose. – jimsug Aug 9 '15 at 9:29
  • Notably, many state constitutions specifically prohibit dueling (it was a 19th century wave of reforms), so in those states it is actually unconstitutional to legalize dueling even by statute. – ohwilleke Dec 12 '17 at 17:24
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Jimsung and Dale's answers address the enforceability of the contract (i.e. the contract is unenforceable and has no value). For criminal liability, there's another issue in play: whether a crime committed with the consent of the victim is a crime. For some crimes, it is not; consensual rape is simply not rape, because a key element of rape is lack of consent. For crimes where consent is not an element, things can get somewhat complex, but one of the basic common-law rules is that no one can consent to be murdered. This is changing a little bit in some places to deal with assisted suicide, but the laws being passed in those jurisdictions are restricted to assisted suicide, and wouldn't apply to duels.

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  • Are you certain of your last assertion? E.g., if the duelers affirmed in advance that they both "wanted to commit suicide," and had enlisted each others' assistance, the survivor would not have the same claim on indemnity as any other person who assists suicide? – feetwet Aug 9 '15 at 15:54
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    @feetwet Most people are criminally sanctioned if they assist suicide in most ways, at least in the states I'm aware of (Washington, Oregon, Vermont). In all three states, it requires a patient with a terminal disease who will die within six months, forbids undue influence, and requires willing self-administration. If you try to make someone take it without intentionally and knowingly selecting the medication, it is not within the definition. – cpast Aug 9 '15 at 18:04
  • Consentual rape isnt rape. Legally speaking rape is sex without consent. You cant have non consensual sex with consent. – Shazamo Morebucks May 6 '17 at 23:23
  • @ShazamoMorebucks That's what I meant when I said "For some crimes, it is not; consensual rape is simply not rape, because a key element of rape is lack of consent." – cpast May 6 '17 at 23:56
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    There is no such thing as consensual rape. Its like saying "a sharp circle isnt a circle". It's nonsense. – Shazamo Morebucks May 7 '17 at 0:39
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Murder is illegal and is generally defined as the intentional taking of another persons life. You cannot contract outside the law. Therefore, no.

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    As noted elsewhere, specific laws (such as assisted suicide, but also death penalty) make certain deaths not murder. That's possible because specific laws can be exceptions to general laws. In turn, that follows from the fact that these laws are written by one lawmaker. Contracts, not written by that lawmaker, can only override laws when the lawmaker allows it. – MSalters May 7 '17 at 23:22
  • If you define all killing as murder, then of course it is illegal. But self-defence, protection of the lives of others, and in some circumstances killing of a criminal during a felony, are intentional killing without being murder. As Ixa suggests, it might be possible to mutually construct something that would make prosecution of the survivor impracticable. – Tim Lymington Apr 14 '19 at 11:24
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I stumbled across this question and I think I might have a reasonable answer not yet proposed.

If with absolute certainly you believe that another individual intends to do you harm then you have a constitutional right to self defense. If they intend to kill you, you can use lethal force to protect yourself.

It might be possible to argue that you were mutually engaging in the act of self defense. "If I didn't shoot, he would have shot me." This would also hypothetically apply anywhere. Though only some state have a stand your ground clause. In some you have a responsibility to retreat when possible.

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    This is interesting and I had the same thought. However, I want to say that an element of self defense is that you didn't cause the danger which prompted the need to defend yourself. Otherwise, if you rob a bank and then start ashoot-out with police, you could credibly claim self defense if they had fired at least one shot. – Patrick87 Apr 14 '19 at 12:10
  • Yes interesting but some states require you try to retreat before using force, thus another obstacle to a self-defense argument. – A. K. Apr 14 '19 at 13:32
  • There have been rulings that a shootout was "mutual self-defense", but I'm not aware of any more recent than the late 1800s. – Mark Apr 16 '19 at 1:20
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UK-based answer here.

It is in theory possible for two clinically insane (who are incapable of appreciating that what they were doing was wrong) people to duel eachother and the survivor wouldnt be guilty of murder by reason of insanity.

It is also possible for two people to murder eachothers wives (or any sort of "qualifying trigger"), and enrage eachother to the point that the "loss of control" defence applies. This only applies when a qualifying trigger occurs and when the jury finds that reasonable men would have acted in the same way.

For example: two men murder eachothers wives, this causes both of them to be so enraged (at the fact that their wives were murdered, thus being a qualified trigger) that they try to kill eachother (the extent to which this is an act that reasonable people would have also done is a question to the jury). They would be guilty of voluntary manslaughter but not murder (well theyd be guilty for the murder of eachothers wives, but not of eachother)

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  • For the gun to the head, that's the defense of duress, which as far as I can tell is no defense to murder or attempted murder under English law. For insanity, it's substantially more complicated than "someone who's clinically insane is not guilty." English law requires that the person have a defect of reason caused by a mental illness, and that that defect be such that the defendant either did not know what they were doing or did not know it was wrong. If the victor knew that what he was doing was illegal, he would be guilty of murder notwithstanding his illness. – cpast May 7 '17 at 0:10
  • You are correct. Edited my answer to reflect that – Shazamo Morebucks May 7 '17 at 0:49
  • @ShazamoMorebucks, you can't plan your rage so therefore your example about killing the wives does not apply. – A.fm. Dec 11 '17 at 16:53
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The term "contract" does not apply here. The concept of a "contract" refers to two parties mutually obligating each other for mutual benefit. Simply granting consent is not a contract. So @jimsug 's claim that "One of the conditions for a contract to be enforceable is that its undertakings must be legal." is largely moot, as there is nothing to enforce. Another issue is that the law treats criminal trials as being actions by the state against the defendant (notice that it's "The People vs. ...", not "[The victim] vs. ..."). Since the state is not a party to this agreement, the agreement does not affect their actions. If you could get the state to consent to the duel, that would be another matter entirely. As for whether you could get immunity from a civil suit, that is more complicated.

Of course, if you were to leave the jurisdiction of your country, say by sailing to international waters, then it would be difficult for the country to prosecute you (although they may have some grounds on which to assert the right to prosecute, such as claiming that it qualifies as piracy).

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  • Consent to involvement in an activity that provides some of value to the other party would be consideration under a contract. There is no concept of benefit involved. This is the basis of prostitution, which is legal in a number of jurisdictions. – Nij Dec 11 '17 at 7:24
  • How can you possibly say there is nothing to enforce and then a couple lines later say the state isn't a party to the agreement and therefore the agreement does not affect the state's actions? I thought you just said there was no agreement! – A.fm. Dec 11 '17 at 16:49
  • @A.fm. I said there was no contract. – Acccumulation Dec 11 '17 at 17:11
  • In law, contract and agreement are synonymous. See: service agreement, web hosting agreement, etc. Also, treaties as international agreements. The word agreement carries with it specific meaning in this context. – A.fm. Dec 11 '17 at 17:16
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I'm speaking from the American law perspective here, but the real question isn't what the law says you can do, it's what happens if and when the would-be murderer ends up in a courtroom. If it's a criminal trial, as soon as you hold up your contract, the judge will ask you where the state or federal government signed.

That's because when you commit a crime, you're not just committing it against people, you're committing it against the State. Why do you think it's possible to be convicted for using illicit drugs, when you yourself may have been the only person affected?

As far as the State is concerned, your contract may prevent the loser from pressing charges, but it certainly poses no such restrictions on government prosecutors, and it likely wouldn't even stop the loser's charges. You might notice many contracts have severability clauses, saying essentially that if any part of the contract is found to be unenforceable, the rest still applies. This is necessary because you very specifically cannot have a contract between private parties enforce an exception to the law for the very reason specified above: it's not your law to change, it's the government's.

A similar situation would be if an employer asked an employee to sign away their right to a minimum wage. While this is slightly different because there is language written into federal labor laws specifically for the purpose of preventing waiving these rights, the underlying principle is the same: you can't create exceptions to laws with only contracts between private parties.

If you really want to see the return of duels to-the-death, I'd suggest you talk to your president.

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I've been researching duals and from what I gather it is legal in most states the problem lies with manslaughter and aggravated assault. Mutual combat is essentially what a dual is. And if you look that up there are cases where people where not charged and others convicted of manslaughter. So the rule/law states both parties must enter mutually with witnesses stating as such Neither party can use excessive force I.e. party A uses a knife party B uses a gun. The most important part is the losers witnesses must agree with the winners witnesses both parties used equal force and any death was a result of mutual combat But remember in every state has wrongfull death laws. And federal law along with states law agree manslaughter is the accidental or unintentional death caused by one person to another. And you do not need a victim for manslaughter the prosecution has the right to act as the victim. Same goes for aggravated assault and domestic violence which if your dual doesn't end in death both parties would be charged with even if a written contract signed by both parties. The prosecution can choose to ignore the contract given the victim is not alive to validate the contract themselves. Then you add with the way things are now a days if you get into a fight let's say with your best friend fights over your both sitting on the porch having a beer crying saying your sorry ( if any of you have faught a real friend you know that's how it normally ends if your truly best friends anyway) neighbor called the cops. The law shows up. Now even though the fight is over nobody needs medical attention your both more than likely going to jail. Charges ranging for disturbing the peace, domestic violence and assault if not aggravated assault. Afterwards even if neither of you wanted to press charges it's now not up to you but the prosecution. Even if you go to court and defend each other you will be found guilty of at minimum of domestic violence.

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