To Duel or Not to Duel?

– by Douglas Hurt Yarn

As social group members, you and I might come into conflict over resources if the physical or social environment creates scarcity. If we chose to compete over our conflicting claims, we are disputing. We could fight over it, but the legal institutions of functional modern states discourage physical aggression and offer adjudication as an alternative way to compete. In lieu of violence, we can just sue one another. But what if you had the choice to challenge me to a duel? After reading my essay, Evolution and Dueling Dispute Processing, you might prefer dueling.

The last documented formal duel in the U.S. started with a lawsuit. After a hearing before the court, the two lawyers in the case had a heated exchange. A challenge was issued, and Rodolph Rufus Richards and Samuel Barnard Adams prepared to face each other with pistols a few days later. By 1877, dueling had long been illegal in Georgia and carried severe penalties, but the process provided a remedy and outcome that the law could not. Contrary to the popular conception of dueling, they rarely resulted in injury or even a pull on the trigger. The formal duel was a mode of dispute processing conducted under strict rules that emphasized conciliation. As in most cases, Richards and Adams reached a compromise through the mediation of their “seconds.” Their honor was preserved (a precious economic resource), and their relationship reconciled. They shared a carriage back to Savannah, became lifelong friends, and prospered in their subsequent legal careers. In contrast, their clients continued to fight it out in the courts, and the acrimony from that adversarial process forever ended that relationship. In short, adjudication ended their clients’ relationship while dueling allowed Richard and Adams to adapt their relationship to a new stable cooperative equilibrium.

The Richards-Adams duel is a story about how adjudication and conciliation play different roles in managing conflict in human societies. At the most basic level, the fitness of any collective requires a cooperative equilibrium—stable, ongoing cooperative (or mutually exploitive) relationships among its members. Cooperative equilibria are difficult to achieve, because individual cooperators must sacrifice some of their potential fitness for the benefit of the collective. Moreover, because of their proximity and interdependence, cooperating individuals are more likely to come into conflict with each other, especially as environmental changes undermine the existing cooperative equilibrium. The situation is ripe for defection, in game theoretic terms, and potential calamity. As Darwin noted, when the bees stop cooperating, the hive collapses. Some form of conflict management system is essential to maintain cooperation among group members in the face of pressures to defect. That system needs both conformity and reconciliation. Behaviorally, this translates to reciprocity and forgiveness. The cultural extensions of these phenotypes include law and conciliation.

Law operates both before conflicts and after disputes, primarily to enforce conformity to cooperative norms through the threat of punishment. Conciliation operates after disputes to promote reconciliation and new stable cooperative equilibria. But these functions can be in conflict. As influential legal philosopher Lon Fuller persuasively argued in a series of articles 50 years ago, the dispute processing mechanism provided by law – adversarial adjudication – is both an impediment to conciliation and an inefficient way to solve polycentric and non-zero-sum problems because it inhibits creative and flexible relations. By actively discouraging expressions of forgiveness and contrition, adjudication is more likely to destroy any potential of an ongoing cooperative relationship and a new more adaptive equilibrium. Admittedly, it’s sometimes healthier to end a particular relationship, but this may fail to address the underlying problem or conflict, from which future disputes may arise. Furthermore, there can be a conflict between legal norms created through adjudication and the more efficient social norms adopted or created in conciliatory processes. Conversely, conciliation can impede the adaptive and conformity functions of law in a large complex society, because it slows the creation of more efficient legal norms that promote cooperation at scales beyond the disputants. Moreover, serial defectors can use conciliatory processes to avoid the potentially harsher outcomes of adjudication.

When conformance and reconciliation are in conflict when managing social conflict, the law exerts a powerful role over any compromise. Anglo-American legal institutions have struggled for centuries to find the right balance between these two modes of dispute processing. As the state grows stronger, its legal institutions tend to favor adjudication, leading to the classic “if you only have a hammer, every problem is a nail.” Currently in the U.S. and many other Western societies, legal institutions have developed their own systems to offer forms of conciliation, raising concerns about the effect on the very ethos of such processes.

So, should you sue or duel? Your individual choice and the institutional incentives that shape it may have far reaching effects on social evolution and the fitness of the social group.

Read the full article: Yarn, D.H. (2023). Evolution and dueling dispute processing. Evolution & Human Behavior, 44(3), 272-277.