Law & Society Blog

The Wild West and duels are a staple of American popular culture. In Westerns, the duel marks the show-down between good and bad. But not only good and bad: The duel also marks the edge of the law. It is lawful to shoot the man who drew first; drawing first and killing is murder.

The duel represents a self-defense situation. Killing in self-defense is permissible. The reason for this exception to the general prohibition against killing is that the state and law are unavailable to protect the assailed citizen. Citizens are not permitted to resort to violence to kill, not even the guilty. The husband returning to find his wife murdered and the murderer still present is required to call the police and let the state do the killing (in the form of the death penalty), or more broadly, the punishment of the criminal, for him. The state’s monopoly on the use of force against law-breakers does not apply when the state is unavailable: If the police are not there to protect the citizen, the citizen may use force to defend himself or herself against an unlawful attack. That is the meaning of self-defense as a justification.

It follows that self-defense marks the edge of the law. Inside the law, the protection of citizens is the task and prerogative of the state. Outside the law (call it the state of nature, if you will), everyone has to fend for themselves, and the only right is the might to either defend oneself or to take what one wants. Unlike the old European nations, whose memory doesn’t reach back to times when wild nature was brought under the sway of civilization, America remembers this time very clearly: the Wild West. The sense of an elementary struggle between civilization and savagery, between law and outlaw, is present in the American mind. While the times of the frontier are long gone (and the entire period lasted only fifty years or so), it is remarkable in that it was mythologized already as it happened. William “Buffalo Bill” Cody (1846-1917), went from Buffalo hunting in the real Wild West, beset by outlaws and horse-thieves, to the stage: to the symbolic representation of the Wild West. Wild Bill Hickock (James Butler, 1837-1876), one of the more notorious gun slingers and at one time marshal of Abilene, Kansas, appeared in Cody’s Wild West Show several times before returning to the real Wild West, where he was murdered during a poker game in Deadwood, Dakota Territory.

In the meantime the law of self-defense underwent a significant change. The original justification at Common Law required the attacked person to flee from the attack where possible and to resort to deadly force against the attacker only where retreat wasn’t possible. In 1876, the Ohio supreme court ruled that a “a true man is not obligated to fly” from an assailant. Similar rulings followed in many courts. Oliver Wendell Holmes wrote the opinion for the U.S. Supreme Court decision Brown v. U.S., 256 U.S. 335 (1921), in which the right to not retreat but to shoot and kill an attacker armed with a knife, was recognized. Holmes is said to have remarked that in Texas, above all, a man is not born to run away.

If you take these three elements together: The myth of the Wild West, the duel as the stylized clash of right and wrong, and self-defense as the demarcation of law and untamed nature; what emerges is the cultural perception of the edge of law. There is a sense in America that there is a limit to law and society, that there is a space outside law and society. Civilization, society, and (on a technical level) law are about inclusion and exclusion. The Wild West is the time in American history when the struggle for inclusion and exclusion was most palpable. The Frontier is the physical symbol for the space outside civilization and society.

More about inclusion and exclusion in American law & society will follow.

The historic references in this entry are drawn from Paul Johnson’s excellent A History of the American People (1999).