The duel is therefore
adopted as the means of demonstrating his courage as that
characteristic upon which the honour of his profession essentially
rests; and this is done even if it should issue in the killing of
his adversary. But as such a result takes place publicly and under the
consent of both parties, although it may be done unwillingly, it
cannot properly be called murder (homicidium dolosum). What then is
the right in both cases as relating to criminal justice? Penal justice
is here in fact brought into great straits, having apparently either
to declare the notion of honour, which is certainly no mere fancy
here, to 'be nothing in the eye of the law, or to exempt the crime
from its due punishment; and thus it would become either remiss or
cruel. The knot thus tied is to be resolved in the following way.
The categorical imperative of penal justice, that the killing of any
person contrary to the law must be punished with death, remains in
force; but the legislation itself and the civil constitution
generally, so long as they are still barbarous and incomplete, are
at fault. And this is the reason why the subjective
motive-principles of honour among the people do not coincide with
the standards which are objectively conformable to another purpose; so
that the public justice issuing from the state becomes injustice
relatively to that which is upheld among the people themselves.
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