Re: Rapier v. court sword

"Jay and Diane Rudin" <rudin@ev1.net>

> In boxing, I hope my
> opponent will be fine tomorrow. If he dies, I will be very upset, because
> that is not a legitimate outcome -- even though it sometimes happens. In
> dueling, I hope to wound or kill my opponent. If he dies, I will feel
> totally justified.

Are you certain that boxers really feel this way? Tell me that Mike
Tyson would be upset if he killed someone in the ring...


> The essential fact is that dueling always carries at least a potential
> intent to kill. Boxing doesn't.

Having known a few boxers, I am dubious that this is the case...




> In any event, the difference between fighting with bated blades and fighting
> with sharps was well known and legally important back when the same moves
> were being done in both. It still is.


OK...so the the core logic behind the distinction today is
"precedent"; but what was it back then? What was the original
thinking? Is it just that those who saw, or thought they saw, a real
difference in intent and so on, as you are arguing, "won out" over
those who didn't, as I do not, and got to write the laws? Was it naked
social control? Or what?





> You duel somebody because you want to get at him. Substituting somebody
> else misses the whole point. You box for money, or to win a tournament, and
> there is no hate or vengeance aimed at that person. If an opponent is
> unavailable, you are just as likely to box someone else. In a tournament,
> you don't know who you'll wind up boxing.

Hmm...so do you think that a 13th century-style tournament combat, ie
armored combat with sharps, would pass muster as a sport, like boxing?
Or do you think it would be treated by the law as duelling or
brawling, however governed by rules? That is to say, such a tournament
would seem to meet all your criteria---impersonality, lack of
individual animus, etc, but would still carry the risk of serious
injury or death...




> An illegal duel is expected to continue until somebody is harmed. After a
> certain number of rounds, the boxing match is over.
>
> If, in a duel, you stop hating each other, the duel might stop,
> inconclusively. If, in a boxing match, you start hating each other and
> start hitting below the belt, the fight should be stopped by the referee.
>
> But a knock-out is an acceptable outcome, so some degree of intent to harm
> could be imputed.
>
> So nobody has yet succeeded in suggesting that boxing is inherently assault,
> as dueling is. But it's possible that the law could eventually agree with
> you, and outlaw boxing. Some people think it should.


Interesting...have to ponder this awhile.




> There is no chance that any legislature will agree with you and therefore
> legalize dueling, however.


Obviously. That's not what I'm on about, though. I am just trying to
unearth the logic behind what seems to me an illogical distinction in
many ways. On a purely hypothetical basis. I have no plans to try to
get a pro-duelling bill introduced anywhere...




> Dueling is clearly assault with a deadly weapon.
> (Note that "assault with a deadly weapon" is *not* the same as "assault with
> intent to kill". In my state at least, an assault with a deadly weapon is
> felony assault, regardless of intent.)

At this point in time, yes. But why did it become so, when a duel was
a mutually agreed thing, like any boxing match?

And if intent is irrelevant, why isn't "trick shooting" or circus
knife-throwing prosecuted as felony assault?


> The purpose of boxing is to indulge in a sport as safely as possible within
> bounds of the sport. There are risks, but there is no intent to harm.


I still do not agree that the law can ever be certain that this is so,
that boxers are by and large mere sportsmen appalled by the idea of
inflicting harm, and that all the hostility and threats and
ear-bitings one sees in pro boxing is mere acting...

William Marshal wrote:

> I think there is an apples-and-oranges comparison here: there has
> never been, AFAIK, a class of professional duellists. To compare them,
> then, to professional boxers, or to compare their ruling ethos, is
> not, I think, apt.

Sorry about your lack of "IK", while I agree that there may not have
been an officially recognized class of card carrying "professional duelists"
I believe there were individuals who were essentially professional
duelists. Chris Amberger in "The Secret History of the Sword" - I think -
related of finding an rusty old weapon which had engraved on it a presentation
to "Messieur xxxxxx" on the occasion of his 11th duel. I have to say that
11 duels constitutes the beginnings of a good career in my book.
'Course they didn't say 11 successful duels.

In fact I vaguely remember that english society of the 18th? century
had strictures about how many duels a man might fight within some period
before becoming known as a "professional". But alas this isn't my area
of expertise.

J.


J.

I see Mr. Maloney is setting out on a trolling expedition
bait and gaff in hand. May I suggest refraining from being
his prey?
J.

Bryan J. Maloney wrote:
> trebuchet30303@yahoo.com (William Marshal) nattered on
> thusnews:dc7987e.0311201810.57f675d9@posting.googl e.com:
>
>
>>Courts, say so." ( I once asked this same question in a substantive
>>criminal law course, and got no real satisfaction there,
>>either---"Precedent", was what it seemed to boil down to. )
>
>
> Too bad you have such a hard time dealing with reality. Please quote that
> part of the law that states the law MUST agree with "logic" as you
> understand it.

"William Black" <black_william@hotmail.com> nattered on
thusnews:bplv4j$dr3$1@news.freedom2surf.net:

>
> "Jay and Diane Rudin" <rudin@ev1.net> wrote in message
> news:vrsr3e5h4hopd4@corp.supernews.com...
>
>> You're wrong. The word "duel" is not as restrictive as you have
>> believed
> in
>> the past. Check your favorite dictionary.
>
> OK then.
>
> Then what I'm trying to do is point out that there is a difference
> between a judicial fight and a social one.

Both are stil duels. One is a judicial duel, the other is a private duel.

> The secondary difference is that the judicial brawl is open to anyone,

Not hardly. The Wager of Battel was certainly not open to anyone,
regardless of social status.

Jonathan Jefferies <jonathanjefferies@alamedanet.net> nattered on
thusnews:3fbeba41$0$9402$2c56edd9@news.cablerocket .com:

> I see Mr. Maloney is setting out on a trolling expedition
> bait and gaff in hand.

Not at all. He has stated over and over that there ought to be no
difference in law merely because he cannot find a "logical" reason.
Nevertheless, there is a difference in law. Therefore, I have put forth a
reasonable challenge. Where in the law does it state that the law must
adhere to "logic" as he understands it?

In rec.sport.fencing on Fri, 21 Nov 2003 16:53:02 -0800
Jonathan Jefferies <jonathanjefferies@alamedanet.net> wrote:
>
> William Marshal wrote:
>
>> I think there is an apples-and-oranges comparison here: there has
>> never been, AFAIK, a class of professional duellists. To compare them,
>> then, to professional boxers, or to compare their ruling ethos, is
>> not, I think, apt.
>
> Sorry about your lack of "IK", while I agree that there may not have
> been an officially recognized class of card carrying "professional duelists"
> I believe there were individuals who were essentially professional
> duelists. Chris Amberger in "The Secret History of the Sword" - I think -
> related of finding an rusty old weapon which had engraved on it a presentation
> to "Messieur xxxxxx" on the occasion of his 11th duel. I have to say that
> 11 duels constitutes the beginnings of a good career in my book.
> 'Course they didn't say 11 successful duels.
>

There were certainly professional proxies in judicial duels, as one of
the famous Elizabethan duels involved a well known fencing master.

My reading of various Elizabethan and Jacobean authors implies there was
a small amount of "cheat at cards then if accused challenge to a duel"
scamming going on, with the idea of being paid off by parents. I don't
think it was anywhere near as common as the moralists suggested, but it
probably did happen.

Zebee

On 18 Nov 2003 21:36:28 GMT, Zebee Johnstone <zebee@zip.com.au> wrote:

>In rec.sport.fencing on 18 Nov 2003 21:25:52 GMT
>JDzik <jdzik@aol.com> wrote:
>> Agleos writes:
>>
>>>I know that
>>>boxing cause more injuries, but both sports have deadly accidents.
>>
>> Is that true? I had read in some intro-to-fencing book that there had been no
>> (one?) fatality in fencing as currently practiced.
>
>Depends on "currently".
>
>I think the last one was in 1982, someone got killed *through* a mask,
>and that's when they mandated 12kg masks instead of the previous 5kg.
>
>I believe there have only been 3 deaths in fencing competition in the
>20thC. Hard to tell what the relative risk is with boxing, because
>you'd have to know the exposure - how many are boxing compared to how
>many are fencing. PLus is it right to include amateur boxing - with
>much stricter sfety rules - or is it only pro.

Playing catch-up...

The 1982 death was Vladimir Smirnov at the World Championships. His
mask and head were punctured by a broken foil, which led to the FIE
mandating 12-kilo masks. There was a British fencer killed by a broken
epee through the throat in 1984, and a couple of French fencers got
killed in the 1990s from broken epees through the torso.

As Agleos posted, there were a total of seven fencing deaths in the
20th century.

-Chris Zakes
Texas

"Two things I have ever respected are warmth and the ability to sit still."

-Mayland Long in "Tea With the Black Dragon" by R.A. MacAvoy

On Wed, 19 Nov 2003 13:37:34 -0500, "Trim Plus Expert"
<trimplus@bellnet.ca> wrote:

>
>">
>> Wow, where'd you get that lot from?
>>
>>
>I keep it in my data base of fencing tough I am not sure where it is from.
>This source is probably a FIE report founded at fencing.net on the
>discutions.
>
>Agleos

It can be found at http://www.exra.org/FencingChptr.htm, scroll down
to section 4.2. It's not FIE-based, but from an article entitled
"Epidemiology of Sports Injuries" in the "Human Kinetics (1996).

-Chris Zakes
Texas

"Two things I have ever respected are warmth and the ability to sit still."

-Mayland Long in "Tea With the Black Dragon" by R.A. MacAvoy

Jonathan Jefferies <jonathanjefferies@alamedanet.net> wrote



> I believe there were individuals who were essentially professional
> duelists. Chris Amberger in "The Secret History of the Sword" - I think -
> related of finding an rusty old weapon which had engraved on it a presentation
> to "Messieur xxxxxx" on the occasion of his 11th duel. I have to say that
> 11 duels constitutes the beginnings of a good career in my book.
> 'Course they didn't say 11 successful duels.


I must get around to reading that book some day soon. ( So many books,
so little time! )

But in any event, I know that there were indeed avid duellists, even
many with a positive obsession with "honor" and its defense. But there
were none, so far as I know, who actually made a living at it, or who
did it for pay or prizes. Apart from the singlestick men, that is. ( I
wonder if singlestick, with its frequent cracked skulls and ribs,
would get treatment as a sport today? )

It's this I meant by "professional"---those who do it for payment, as
modern pro boxers have and do...

"William Marshal" replied to me:

> > In boxing, I hope my
> > opponent will be fine tomorrow. If he dies, I will be very upset,
because
> > that is not a legitimate outcome -- even though it sometimes happens. In
> > dueling, I hope to wound or kill my opponent. If he dies, I will feel
> > totally justified.
>
> Are you certain that boxers really feel this way? Tell me that Mike
> Tyson would be upset if he killed someone in the ring...

In general, yes, boxers feel that way, as evidenced by the fact that they
accept opponents based on either the tournament structure or the possible
payoff. Mike Tyson is not an example of the typical boxer, and has in
fact been jailed for violence more than once.

> > The essential fact is that dueling always carries at least a potential
> > intent to kill. Boxing doesn't.
>
> Having known a few boxers, I am dubious that this is the case...

If boxers, including Tyson, are entering the ring intending to kill, then
they are singularly bad at it. The death rates are appallingly low.

> OK...so the the core logic behind the distinction today is
> "precedent"; but what was it back then? What was the original
> thinking? Is it just that those who saw, or thought they saw, a real
> difference in intent and so on, as you are arguing, "won out" over
> those who didn't, as I do not, and got to write the laws? Was it naked
> social control? Or what?

As discussed before, the original thinking is that thrusting with sharp
swords is inherently more deadly than fist fighting is.

They didn't "think" they saw a difference between a bruised boxer and a
stabbed corpse. The difference is real.

> Hmm...so do you think that a 13th century-style tournament combat, ie
> armored combat with sharps, would pass muster as a sport, like boxing?

Make up your mind. Do you mean a 13th century style tournament, or armored
combat with sharps? Jousting lances and tourney swords weren't sharp.

But even in the thirteenth century, there were enough deaths that some
clergymen tried to ban tournaments.

> Or do you think it would be treated by the law as duelling or
> brawling, however governed by rules? That is to say, such a tournament
> would seem to meet all your criteria---impersonality, lack of
> individual animus, etc, but would still carry the risk of serious
> injury or death...

I don't know. In Texas, attempting to hit or threaten somebody with a
"deadly weapon" as defined in the law is felony assault. But I can't
imagine it getting to trial when the "victim" is prepared to testify for the
defense.

In Louisiana, before the constitutional re-write in the 1970s, the law
clearly defined such an encounter as a duel. But that's because when the
law was written, duels were a real concern. It was an attempt to prevent
duellists caught in the act from pretending they were just indulging in
sport, or training, or some such.

> > There is no chance that any legislature will agree with you and
> > therefore legalize dueling, however.
>
> Obviously. That's not what I'm on about, though. I am just trying to
> unearth the logic behind what seems to me an illogical distinction in
> many ways. On a purely hypothetical basis. I have no plans to try to
> get a pro-duelling bill introduced anywhere...

Most attempts to understand the law on a purely hypothetical basis fail
miserably. It's a common legal maxim that "the life of the law has not been
logic; it has been experience." Law is virtually always rooted in hard
practical experience.

In this case, experience shows that swords are generally deadly weapons, and
fists generally are not. Disagree if you like, but that's the experience
based on hundreds of years of court cases.

>> Dueling is clearly assault with a deadly weapon. (Note that
>> "assault with a deadly weapon" is *not* the same as "assault
>> with intent to kill". In my state at least, an assault with a
>> deadly weapon is felony assault, regardless of intent.)

> At this point in time, yes. But why did it become so, when a duel was
> a mutually agreed thing, like any boxing match?

There has never been a time, as far as I know, when a duel was like a boxing
match. It was either a legal proceeding in which the state in some form
presided, or it was an illegal blood feud. When do you believe that people
faced each other in a duel intending to test their fencing skill with no
issue of honor involved?

> And if intent is irrelevant, why isn't "trick shooting" or circus
> knife-throwing prosecuted as felony assault?

I never said that intent was irrelevant. I said that an assault with a
deadly weapon is felony assault, regardless of intent. "Assault" is a
defined legal term. If you are attempting to hit someone with a deadly
weapon, or a reasonable and prudent person has reason to believe that you
are, then that's assault. In trick shooting or knife-throwing, the other
person knows the shooter or thrower is trying to miss him. In a swordfight
that expects to have a real outcome, even if your goal is first blood, the
essential legal fact is that you are attempting to hit him with a deadly
weapon.

> I still do not agree that the law can ever be certain that this is so,
> that boxers are by and large mere sportsmen appalled by the idea of
> inflicting harm, and that all the hostility and threats and
> ear-bitings one sees in pro boxing is mere acting...

First, ear-biting is illegal in boxing, and there was some consideration of
pressing charges.

The law doesn't state that "boxers are by and large mere sportsmen"; it
states that fists are by and large not deadly weapons. The list of "illegal
weapons" according to the Texas Penal Code Chapter 46 includes swords, but
not fists. This is not a hypothetical or theoretical distinction, but one
rooted in centuries of experience about what people actual do with swords
and with fists.

According to Chapter 22.06, consent is an affirmative defense if "the
conduct did not threaten or inflict serious bodily injury". The vast number
of boxing matches that don't cause serious bodily harm is a valid legal
reason to believe that the conduct did not threaten to. Therefore boxing is
legal. But centuries of history show that attacking somebody with a sharp
weapon does threaten serious bodily injury. Therefore the swordfight is
illegal.

The law doesn't give a damn whether you agree about the level of threat of
serious bodily injury. It has dealt with a lot more corpses than you have.

Jay Rudin

Jay Rudin writes:

>Jousting lances and tourney swords weren't sharp.

Jousting actually is a good example in this line. There are still jousting
matches allowed - in fact, jousting is the official state sport of Maryland.
They do not use sharp weapons, but people can get hurt. (I saw a guy fall off
a horse in a joust this year. It looked like it hurt a lot - he was clearly
shaken when he got up.)

One question on the lethality of boxing: my understanding is that pre-20th
century boxing matches were often a lot more violent and hurtful than modern
matches, leading more often to serious injury and death. Is that correct? Is
it at all relevant to the discussion?

"Jay and Diane Rudin" <rudin@ev1.net> nattered on
thusnews:vs5gbi1hdnh3ca@corp.supernews.com:

> There has never been a time, as far as I know, when a duel was like a
> boxing match. It was either a legal proceeding in which the state in
> some form presided, or it was an illegal blood feud. When do you
> believe that people faced each other in a duel intending to test their
> fencing skill with no issue of honor involved?

Not in a duel, certainly. However, in England, there were often
encounters with "sharps", publically advertised and held in pubs, for
entertainment. They were legal.

"JDzik" <jdzik@aol.com> wrote in message
news:20031125084719.27944.00000902@mb-m06.aol.com...
> Jay Rudin writes:
>
> >Jousting lances and tourney swords weren't sharp.
>
> Jousting actually is a good example in this line. There are still
jousting
> matches allowed - in fact, jousting is the official state sport of
Maryland.
> They do not use sharp weapons, but people can get hurt. (I saw a guy fall
off
> a horse in a joust this year. It looked like it hurt a lot - he was
clearly
> shaken when he got up.)

You never meet any old jousters.

Middle-aged ones look ancient

Most have loads of broken bones.

People who fall of horses for fun have a limited time to enjoy their
sport...

--
William Black
------------------
On time, on budget, or works;
Pick any two from three
>
> One question on the lethality of boxing: my understanding is that pre-20th
> century boxing matches were often a lot more violent and hurtful than
modern
> matches, leading more often to serious injury and death. Is that correct?
Is
> it at all relevant to the discussion?

In rec.sport.fencing on Tue, 25 Nov 2003 14:14:04 GMT
Bryan J. Maloney <cavaggione@sbcglobal.nmungemungt> wrote:
> "Jay and Diane Rudin" <rudin@ev1.net> nattered on
> thusnews:vs5gbi1hdnh3ca@corp.supernews.com:
>
>> There has never been a time, as far as I know, when a duel was like a
>> boxing match. It was either a legal proceeding in which the state in
>> some form presided, or it was an illegal blood feud. When do you
>> believe that people faced each other in a duel intending to test their
>> fencing skill with no issue of honor involved?
>
> Not in a duel, certainly. However, in England, there were often
> encounters with "sharps", publically advertised and held in pubs, for
> entertainment. They were legal.

There were prizes for entertainment, but what is the evidence they were
using sharps?

Zebee


--
Zebee Johnstone (zebee@zip.com.au), proud holder of
aus.motorcycles Poser Permit #1.
"Motorcycles are like peanuts... who can stop at just one?"

In rec.sport.fencing on 25 Nov 2003 13:47:19 GMT
JDzik <jdzik@aol.com> wrote:
>
> One question on the lethality of boxing: my understanding is that pre-20th
> century boxing matches were often a lot more violent and hurtful than modern
> matches, leading more often to serious injury and death. Is that correct? Is
> it at all relevant to the discussion?

The descriptions of bareknuckle I've seen show a lot of exhaustion and a
lot of blood from cuts, but not a lot of death or serious injury.
see http://www.taijiworld.com/Articles/BOXING.html although I'm not sure
about the conclusions or the comparison to Thai fights because we know
that bareknuckle fights lasted for 20-30 rounds. The article does note
that modern boxers seldom die from boxing though.

See http://www.georgianindex.net/Sport/Boxing/boxing.html for a quick
potted history.

I expect that before Broughton's rules there might have been more
casualties.

Now Roman boxing *was* lethal - they used the cestus, a heavy spiked
glove. Gladiators only of course....

Zebee

Zebee Johnstone <zebee@zip.com.au> nattered on
thusnews:slrnbs7bac.tfm.zebee@zeus.zipworld.com.au :

> In rec.sport.fencing on Tue, 25 Nov 2003 14:14:04 GMT
> Bryan J. Maloney <cavaggione@sbcglobal.nmungemungt> wrote:
>> "Jay and Diane Rudin" <rudin@ev1.net> nattered on
>> thusnews:vs5gbi1hdnh3ca@corp.supernews.com:
>>
>>> There has never been a time, as far as I know, when a duel was like a
>>> boxing match. It was either a legal proceeding in which the state in
>>> some form presided, or it was an illegal blood feud. When do you
>>> believe that people faced each other in a duel intending to test their
>>> fencing skill with no issue of honor involved?
>>
>> Not in a duel, certainly. However, in England, there were often
>> encounters with "sharps", publically advertised and held in pubs, for
>> entertainment. They were legal.
>
> There were prizes for entertainment, but what is the evidence they were
> using sharps?

The advertisings posted at the time. I also have read accounts of these
encounters. This was in the 18th century, if I recall correctly.

In rec.sport.fencing on Tue, 25 Nov 2003 20:53:47 GMT
Bryan J. Maloney <cavaggione@sbcglobal.nmungemungt> wrote:
> Zebee Johnstone <zebee@zip.com.au> nattered on
> thusnews:slrnbs7bac.tfm.zebee@zeus.zipworld.com.au :
>
>>
>> There were prizes for entertainment, but what is the evidence they were
>> using sharps?
>
> The advertisings posted at the time. I also have read accounts of these
> encounters. This was in the 18th century, if I recall correctly.

INteresting! Never heard of it before. Can you recall where you read
the accounts or saw the ads? It's almost certainly not on the net, but
any pointers to library resources would be good.

I'm surprised they used sharps if the pre-17thC lot didn't, but I
suppose it made for more enticing spectacle when carrying swords was out
of fashion.

Zebee


--
Zebee Johnstone (zebee@zip.com.au), proud holder of
aus.motorcycles Poser Permit #1.
"Motorcycles are like peanuts... who can stop at just one?"

Zebee Johnstone <zebee@zip.com.au> nattered on
thusnews:slrnbs7hu6.ufu.zebee@zeus.zipworld.com.au :

> In rec.sport.fencing on Tue, 25 Nov 2003 20:53:47 GMT
> Bryan J. Maloney <cavaggione@sbcglobal.nmungemungt> wrote:
>> Zebee Johnstone <zebee@zip.com.au> nattered on
>> thusnews:slrnbs7bac.tfm.zebee@zeus.zipworld.com.au :
>>
>>>
>>> There were prizes for entertainment, but what is the evidence they
>>> were using sharps?
>>
>> The advertisings posted at the time. I also have read accounts of
>> these encounters. This was in the 18th century, if I recall
>> correctly.
>
> INteresting! Never heard of it before. Can you recall where you read
> the accounts or saw the ads? It's almost certainly not on the net,
> but any pointers to library resources would be good.

What drives me nuts is that I can't remember the book's name. I recall
how one account got into great detail about how a "nymph" (used loosely to
describe what we would call a groupie) went into a swoon over a cut one of
the combatants sustained. It was stitched up in short order to permit the
bout to continue.

"Jay and Diane Rudin" <rudin@ev1.net> wrote


> In general, yes, boxers feel that way,

Is this from personal knowledge, or is it an assumption?





> If boxers, including Tyson, are entering the ring intending to kill, then
> they are singularly bad at it. The death rates are appallingly low.

Perhaps the ones in US pro boxing are. Not so sure about the rest of
the world. But in any case, this says nothing about intent. More about
the opponent's conditioning and ability to defend himself, I'd say.
All that training serves its purpose. That, and the fact that fights
are generally stopped when it is clear that one or the other man is
unable to continue...

I would surmise that in many cases, the deaths that resulted from
duelling were due to a disparity in skill. Duels between truly
well-matched opponents could go on a very long time with no conclusive
outcome ( DuPont and Fourrier spring to mind ). Boxing matches with a
similar disparity in skill levels would probably result in a much
higher fatality rate.




> They didn't "think" they saw a difference between a bruised boxer and a
> stabbed corpse. The difference is real.


Apples and oranges. Just like comparing a brain-dead boxer to a
scratched duellist would be.

There is no difference between dead from a fist and dead from a blade,
or between injured from boxing and injured from duelling.

Dead is dead. It makes no real sene to me to say "Well, in activity A
deaths are 1:100, in activity B they are 1:10, so A is hunky dory and
B is evil". Which is in essence what the law has decreed, no?


>
> Jousting lances and tourney swords weren't sharp.

What gave you this idea? Sometimes they were and sometimes they
weren't ( joust a plaisane vs joust a l'outrance ). And the earlier in
period the less like a sport and the more like warfare they were.




> But even in the thirteenth century, there were enough deaths that some
> clergymen tried to ban tournaments.

Well, hey, "some clergymen" were opposed to sex even in marriage.
Sometimes
there's no accounting for the whims of the pious. I'm interested in
the legal and social thinking, not the religious...

> I don't know. In Texas, attempting to hit or threaten somebody with a
> "deadly weapon" as defined in the law is felony assault. But I can't
> imagine it getting to trial when the "victim" is prepared to testify for the
> defense.

One aspect of the former explicit laws against duelling was that they
dispensed with this defense. Merely agreeing to a duel was itself an
offense, whether it came off or not. And mutual agreement mitigated
nothing, apparently.




> Most attempts to understand the law on a purely hypothetical basis fail
> miserably. It's a common legal maxim that "the life of the law has not been
> logic; it has been experience." Law is virtually always rooted in hard
> practical experience.

Which flies in the face of the teaching of logic in law schools and
the many books written on logic and the law...



> In this case, experience shows that swords are generally deadly weapons, and
> fists generally are not. Disagree if you like, but that's the experience
> based on hundreds of years of court cases.

Well, except that the antiduelling laws, like most laws, indeed, came
out of monarchical or legislative bodies, not the courts, for the most
part.



> There has never been a time, as far as I know, when a duel was like a boxing
> match. It was either a legal proceeding in which the state in some form
> presided, or it was an illegal blood feud. When do you believe that people
> faced each other in a duel intending to test their fencing skill with no
> issue of honor involved?

More importantly, when did I say there ever was such a time??? I said
only that duels were mutual affairs, just like boxing matches.



> I never said that intent was irrelevant. I said that an assault with a
> deadly weapon is felony assault, regardless of intent. "Assault" is a
> defined legal term. If you are attempting to hit someone with a deadly
> weapon, or a reasonable and prudent person has reason to believe that you
> are, then that's assault. In trick shooting or knife-throwing, the other
> person knows the shooter or thrower is trying to miss him. In a swordfight
> that expects to have a real outcome, even if your goal is first blood, the
> essential legal fact is that you are attempting to hit him with a deadly
> weapon.


Mmmm...so is a surgeon with his scalpel. But intent still comes into
any charge of assault. The surgeon who kills his patient will be
prosecuted criminally if and only if mens rea can be demonstrated.
Only in duelling, AFAIK, is the condition of actus reus ALONE
sufficient to convict...



> The law doesn't state that "boxers are by and large mere sportsmen"; it
> states that fists are by and large not deadly weapons. The list of "illegal
> weapons" according to the Texas Penal Code Chapter 46 includes swords, but
> not fists. This is not a hypothetical or theoretical distinction, but one
> rooted in centuries of experience about what people actual do with swords
> and with fists.

I'd say that it has more do do with the fact that one can be
prohibited or limited and the other can't. It makes little sense to
criminalize something everyone has as an integral part of their body.




> According to Chapter 22.06, consent is an affirmative defense if "the
> conduct did not threaten or inflict serious bodily injury". The vast number
> of boxing matches that don't cause serious bodily harm is a valid legal
> reason to believe that the conduct did not threaten to.


I guess it depends on whether "serious bodily harm" is defined to mean
"immediate". But I'd reiterate that there were many duels, too, which
caused little or no real injury. ( Indeed in some places, viz Italy,
duels were more frequently arranged than actually fought...yet the
erstwhile antiduelling laws allowed for no such distinction. )

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Can anyone give the specific citation of the law that states that the law
must be 100% perfectly "logical" and not in any way influenced by custom,
historical accident, or other idiosyncratic precedent? That is, where in
the law does it say that law is not to behave as law generally behaves?