On Law And Social Norm From Perspective Of The Duel Of Honor

The duel of honor, which had widely and chronically existed in many western societies, is a very attractive theme, and could be regarded as a kind of typical social norms. As a social controlling means that is different to law, social norm is not only universally present in our lives, but also has powerful influence, which functions as law and deeply affects the actual efficiency of formal institutions, and consequently, it is worthwhile to pay enough attention to this subject. This dissertation is such an attempt to examine the general issues relating to law and social norms through the perspective of the duel of honor, and by which to pursue an ability of theory analysis and interpretation.The dissertation is separated into six parts. The first part reviews what the duel of honor is, its brief history, and how it worked. Then, it educes three questions: why people did not resort to judicial procedure? Is duel simply a kind of alternative dispute resolution? Why honor was so important? By bringing these questions and seeking their answers one by one, it indicates that some previous illustrations can not trustworthy, and it induces us to provide another means to explain the many puzzling features of duel. Part two examines duel in the vast social contexts of early modern western societies, and demonstrates the special functions that dueling had assumed. It does not views duel as a substitute for law courts and a simply product of culture, but as a device for screening political capital, an institution aiming at the social regularmatters in order to serve the needs of people in that times. The most famous duel of the U.S., the Burr-Hamilton duel, is used as an analysis model to probe into the links between dueling and the features of early American Republic's politics, and to expound how duel worked as an institution for screening political capital. Then it extends the screening hypothesis to other western states, and with their instances in turn to support and verify the hypothesis. By this construction, dueling is not merely a sacrd convention or an alternative dispute resolution, but an unofficial social institution, and in legal meanings, it is also a kind of social norms.Part three focuses on social norm on the basis of the duel of honor. It firstly manages to describe the concept of "social norm" as the behavior rules resulting in and imposed by the opinions of community by borrowing the definition of "institution" of the New Institutional Economics, combined with several legal scholars' definition for social norm. Then it researches the norms' quality of the duel of honor based on the inference which regards rules and social consensus as the essential elements of social norm. Subsequently, it examines in brief the multi-party enforcement institution of social norm, of which the final guarantee relies on the pressures of community due to a lack of the supports of state powers. Therefore, it cannot but be confronted with the problem of free-ride, which determines that community's values are very necessary in sustaining the enforcement of social norms, and that its survival environment is small communities. It is the degree of tightness with regard to social norms and social demands, social norms and the special benefits of the individuals in community, and the relation between social norms and the size of community that determine its strength and weakness relative to law.Part four elaborates the inconsistent attitudes on western societies and states' dealing with dueling, which sufficiently embodied the conflicts between law and social norms. The vehement debates over opposing or upholding dueling, and the failure of anti-dueling activities indicate that the barbarous custom bears strong vitality. Many states attempted to suppress dueling norms which were so universally tolerated or actively supported by the public, but the actual situation behind legislations revealed the lawmakers' hesitant positions on dueling, and courts alsomade obvious concessions to the practice in the process of enforcing laws. It revealed that law gone against the still powerful force of public opinion and social sentiments could not acquire the foundation of legitimacy, and consequently it was impossible to deter the widely accepted social norms. With anti-dueling legislation prohibiting this convention, law and its opponent social norms were not in oppositions absolutely, and there were not an insurmountable gulf between the both, but it formed a clear contrast that in their interleaving and reciprocal operation, dueling norms had come about a series of complicated transformations, and the enforcement of law had turned into a mixture of formal and informal institutions, hi the case of certain situations, the two contradictory institutions worked together to meet to the demands of society and justice.After been thriving for several centuries, the duel of honor eventually declined and demised in many western states. A succession of sharply social changes permanently destroyed the roots of dueling institution, and brought it to a retreat from the history arena. The social norm concerning dueling and the correlative law presented a new vision correspondingly: the social norm broke up rapidly, and anti-dueling laws were enforced effectually. However, dueling was ended not by laws, whether the oppressive law or the inducible law, but by the social contexts where the institution of dueling as well as law came into being, and by which the both were determined.Through the examination it can conclude that the existence of social norms is useful to break up our law-centered thinking, leading us to pay attention to law in real life; that many features of social norms substantially originate from the various social circumstances of and by which it grew out and was constrained, and which determined its strength and weakness relative to law; that the conflicts between law and the duel of honor demonstrated that the function of law was limited, and its efficiency does not consist in itself, but the essential combination including the sweeping economy, politic and social elements; that during the course of their reciprocal operation, social norm and law permeated each other, and the former enjoyed legal status because of a popular acceptance by the public and the tacitapproval even the authorization by states, to which the later had to make a compromise as a result of a lack of legitimacy. It argued that although laws attempts to adjust social norms in order to meet policy goals, they cannot carry out the goals. Social norms always transformed the direction and forms of law, and made its effects always out of the previous expect. In a word, objective reality is the deciding factor of social orders. It is the fact that urges us to consider the goal of law and its legitimacy sources, and how states ought to deal with social norms.