Tuesday, February 21, 2012
Glove Slap, Baby
Article 114 of the Uniform Code of Military Justice:
“Any person subject to this chapter who fights or promotes, or is concerned in or connives at fighting a duel, or who, having knowledge of a challenge sent or about to be sent, fails to report the fact promptly to the proper authority, shall be punished as a court-martial may direct.”
Whatever else one might believe about the US military, force leadership is not especially well known for retaining systematically dysfunctional rules. Tales of intractable ego on the battlefield or career-aggrandizing myopia at headquarters can only be appropriately interpreted in context: the military is well-staffed with multiple claimants over constituencies perched atop beds of quicksilver. Strategic and (especially) tactical decisions made in the fog of war are subject to the same sorts of calculus constraints present in routine economic decisions, though often fraught with more dire opportunity costs than the decision whether or not to open a new distribution center in Sheboygan. Higher-level meta rules such as those found in the UCMJ tend to hew closer to Hayek's vision of law as the set of rules, norms and behavioral constraints that allow for smooth and efficient operation of an organization or society. Very little of the language in the UCMJ strikes me as top-down meddling with military order to suit the peccadilloes of a social tinker.
Now, perhaps the proscription against dueling is an exception to this general observation. Perhaps some general somewhere simply thought it would be funny to abrogate Soldiers' implicit right to attempt to kill each other over matters of honor. Perhaps penning Article 114 was a pointless flourish, a ban on an antiquated practice on par with applying a cease-and-desist order to foot-binding in the ranks. I do not believe this to be the case.
A brief defense of duels, as she were fought.
In the absence of formal institutions to redress the loss of reputational capital brought on by gossip, slander or libel, the institution of dueling serves as a brake against spreading lies. Ex ante, if I knew that I might expect a thrown gauntlet in response to my rumor-mongering (apologies to the legitimate mancgeres out there), I might be more recalcitrant. In a pre-impersonal-exchange setting where reputational capital represents a large share of one's ability to conduct business, dueling may very well have been the lowest-cost mechanism to preserve that capital. Now, as a truth-seeking mechanism, there must be a few additional rules, but I propose we shelve a detailed subgame equilibrium analysis to concentrate on the evolution of the institution of dueling past its useful life.
Consideration the first: the emergence of the open-access order. At the risk of simplifying North, Wallis and Weingast, an open-access order implies that elites are visible, identifiable and accountable. In an open-access order, rents from reputational capital dwindle: value is chiefly created by positive-sum competition rather than the generation and maintenance of appropriable rents or quasi-rents. That's fancy economist jargon for saying that the distinguishing feature of the modern secular West is the focus on the customer rather than the landed gentry. In other words, reputation is less important to folks' livelihood now than it once was.
Consideration the second: judicial capture. Credit where credit is due, the English judicial system did a pretty fair job of eating private dispute resolution mechanisms' lunches. In the circles I frequent, the Law Merchant is widely touted as a dandy-fine example of an emergent order. No state official, no noble, no single authority drafted the language of the Law Merchant, it was rather the product of a whole lot of trial and error and a set of best-fit rules for contracture. A fair hunk of it still survives to this day: in America we call it the Uniform Commercial Code and we owe stuff like the Implied Warranty of Merchantability to its wide adoption. Since English judges earned their living on commission, it was in their interest to 1) assert jurisdiction over commercial law and 2) refrain from altering the rules of the game unduly (lest litigants just take their business abroad). So as the scope of court authority expanded, judges gobbled up the underlying functions of dispute resolution institutions, including dueling. I encourage interested readers to peruse the fascinating history of defamation law in anglophone countries, particularly the considerably differing burden of proof between, say, the US and Great Britain.
Consideration the third: rifling. Duels fought using rifled barrels are necessarily more predictably fatal than using black powder cap and ball or flintlock weapons. Part of what makes dueling a credible truth-seeking institution is the moderated, yet non-negligible threat of death: it's lethal enough that people have an incentive to avoid being challenged, but not so lethal that any challenger can also expect to kick the bucket with anything resembling great regularity. That is to say that the risk of fatality is high enough to act as a check on defamation, but not so high as to generate a chilling effect on challenges. Note also that the credibility of the institution of dueling depends critically on sending a very strong signal of opprobrium: if I challenge the GTM to a duel and specify that we fight with a tube sock filled with marbles, that's a much different signal than letting him pick his weapon and offering him a comprehensive selection of scoped match grade modern sidearms equipped with laser sights. To send a credible signal, thereby ensuring others don't smear my good name, I need to offer serious terms. Serious, but not preposterous. I have my doubts that anyone ever fought a duel using cannon (though that would probably make for a pretty sweet scene in a historical drama). In terms of lethality, today's sidearms more closely resemble a pear gun than the harquebus which is its natural forebear.
This triple salvo of institutional, legal and technological change all but rendered dueling redundant. Without knowing more about the details of the timing of the explicit ban, I would hesitate to claim which factor proved pivotal, but it is plausible that all three at least contributed to dueling's demise. The interesting questions are, therefore, was dueling euvoluntary in its historical context and is it euvoluntary today?
As a first stab (no pun intended) at an answer, I would say that time has transformed the BATNA to defamation cases by a whole lot. On the one hand, the cost of letting a challenge to one's honor pass has fallen considerably with the shift to open-access orders. On the other hand, redress has been formalized, thanks to the expansion of civil law. On the other other hand, the direct costs of participating in a duel have grown thanks to far deadlier military technology. In 1612 or in 2012, the decision calculus would have to address the following questions: a) what is the present discounted value of ignoring defamation b) what is my next available alternative to restore my honor and c) what risk-adjusted costs must I bear to cross sabers with this cad? I argue that for the 17th Century gentleman, the answer was a) high b) not a whole lot that isn't costly on its own terms and c) eh, I can live with those odds. The 21st Century bloke answers differently: a) piddling b) sue him for libel c) are you kidding me--I'm not going to let this maniac point a gun at me?
So back to Article 114. Keeping this statue on the books struck me as silly when I read it for the first time in Boot Camp--who the modern world would think an offer to participate in a duel is anything but utterly ridiculous (and yes, I know The Simpsons did it first, people)? Why not just strike it from the books? Of course, why bother? It's an uncontested issue and the very act of striking it would draw attention to it: imagine the headlines... TEN PACES AT DAWN: MILITARY TO PERMIT GENTLEMEN'S DUELS. This probably isn't the kind of press the DoD is looking for.
I suppose the last puzzle remaining is why bother keeping the ban on the books in wider society. Do we imagine that if the ban on duels were lifted, we'd see a rash of elegantly-mustachioed, waistcoated rakes flinging gloves about higgledy-piggledy?
Alternatively, what if the drive-by shooting is a substitute for the formal duel and with its re-institution, we might observe a reduction in collateral damage? This last question is not entirely rhetorical: I'm not at all sure I know its answer. The analysis might very well be quite different once we partition by social class and income. Interesting.