LAW OF DURESS IN ISLAMIC LAW AND COMMON LAW: A ...
LAW OF DURESS IN ISLAMIC LAW AND COMMON LAW: A ...
LAW OF DURESS IN ISLAMIC LAW AND COMMON LAW: A ...
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Islamic Studies (Islamabad) 30:3 (1991)<br />
<strong>LAW</strong> <strong>OF</strong> <strong>DURESS</strong> <strong>IN</strong> <strong>ISLAMIC</strong> <strong>LAW</strong> <strong>AND</strong><br />
<strong>COMMON</strong> <strong>LAW</strong>: A COMPARATIVE STUDY<br />
KHALED ABOU EL FADL<br />
This article war jhtpublished in the Arab Law Quarterly [ZSSN<br />
0268-0556, Graham & Trotman, Sterling Houre, 66, Wilton<br />
Road, London SWN ZDE], r4erenee [I9921 ALQ 121. It is<br />
reproduced here by the pennisswn of the Editor, Dr. Mark<br />
Hoyle.<br />
The Islamic and Common legal systems both assume that a person<br />
is normally free to choose which courses of action to pursue or abandon.<br />
From this assumption, follow the legal liabilities that attach themselves to<br />
certain acts. Duress is perceived as an aberration that negates the presump<br />
tion of voluatary action, and, thus, calls for exceptional treatment from the<br />
legal apparatus.' TZhe accepted wisdom is that people ought not be held<br />
responsible for choices imposed upon them. This wisdom, for instance, is<br />
reflected in BlacLstone's statement that it is "highly just and equitable that<br />
a man should be excused for those action, which are done through unavoidable<br />
force and compul~ion".~ Despite the absolutist language, the treatment<br />
afforded the coerced, in reality, involves a difficult balance between accomodating<br />
the weak .and the oppressed, and setting standards of conduct<br />
for society, On the one hand, it is important to take cognizance of the<br />
specific circumstances, and even the particular idiosyncrasies of an oppressed<br />
individual. On the other hand, the history of duress in Common law and<br />
Islamic law reflects the desire as a matter of policy, to set a standard of<br />
conduct that people are expected to live by.<br />
TZhe purpose of this essay is to provide a ompiuative study of the<br />
law of duress in the common law and Islamic law traditions. Both systems<br />
grapple with the same difficulties and problems, and resolve them in a similar<br />
fashion. Both legal systems differentiate between criminal and civil cases,<br />
and impose a more demondiag standard of d u c t in crimbal cases. Islamic<br />
law, however, offers a methodologically more coherent and systematic ap proach to duress. TZhe Common law's pronouacements on the subject are
306 Islamic Studies, 30:3 (1991)<br />
contradictory and vacillitate between subjective and objective epproaches<br />
without an internally consistent methodology. The Islamic law starts with a<br />
threshold objective inquiry into the nature of rights affected and then pro-<br />
ceeds to a consideration of the subjective feelings of the coerced. Addition-<br />
ally, Islamic law imposes general principles, such as choosing the lesser evil<br />
and proportionality, that provide useful limiting guidlines.<br />
'Zhere has been a wealth of material, that defects citation produced<br />
on difierent aspects of duress. This is partly because duress is an amorphous<br />
subject that encompasses a vast array of legal subjects and problems. Because<br />
duress involves an assessment of the voluntariaess of acts, it is not surprising<br />
to find it implicated in a multitude of legal acts. Hence, one finds duress<br />
factors into assessing the validity of adoptions, marriages, plea bargains,<br />
self incriminations, jury verdicts, contempt of court for refusal to testify and<br />
assumption of risk in the employment conte~t.~ In addition, duress is a<br />
significant aspect of the law of senritude: and duress can implicate freedom<br />
of speech issues or inten-iational law problems.5 Additiody, Duress ocws<br />
in many different forms, the most straightfornard of whihutright physical<br />
f o d s applied against the person of another to bring about a certain<br />
result. It could also take the form of a threat, whether explicit or implicit,<br />
to harm someone if a certain act is not undertaken. Even more, duress could<br />
take the form of some financial necessity not necessarily created by a particular<br />
person. In other words, a weak person might find himself in a dire<br />
financial position, and, consequently, such a person will be forced to comply<br />
with certain demands that might or might not be ad~antageous.~<br />
In each, of these fields, several policy and moral considerations as<br />
well as widely varied factual cinwnstances pertain. Hence the difficulty in<br />
finding a comprehensive and systematic method of analysing all cases of<br />
duress, or in even explaining the common moral and policy considerations<br />
that are relevant to each area of duress. Writers have proposed different<br />
theories to differentiate between legal and illegal duress. Some arguing for<br />
a value free empirical theory while others maintaining that duress essentially<br />
involves a moral judgement? At a less abstract level, He*rt Fingarette<br />
argues, somewhat persuasively, that at the core of all duress cases is a<br />
concept of victimization in which a more powerful party exploits a less<br />
powerful party in order to obtain a certain benefit.'<br />
But even if it true, this does not tell us what legal consequences<br />
should follow from th& victimization. The law does not remedy every act<br />
of oppression, exploitation or victimization, partly because victimization is<br />
as broad a concept as duress. Both concepts are ultimately products of social<br />
standards and moral policies a society prescribes for itself. More will be said<br />
about this issue later. This essay, however, does not aspire to present an
Islamic Studies, 30:3 (1991) 307<br />
overall approach or theory of duress. Nor will this essay address all forms<br />
of duress. The goal is to contrast Islamic law with the Common law, and to<br />
argue that the methodology adopted by Islamic law presents a useful addition<br />
to the field.<br />
A DEFTNITION <strong>OF</strong> <strong>DURESS</strong><br />
There is no uniform legal definition of duress. Because of the amorph-<br />
ousness of the concept, duress can only be defined in the most indefinite<br />
sense. Generally, duress is a wrongful pressure placed upon the person of<br />
another forcing such a person to commit or not to commit a certain act.9<br />
Article 948 of the Mejelle defines duress as "[Duress] is without right to<br />
compel a person to do a thing without his consent by fear."1° These defin-<br />
itions have the virtue of simplicity but, of course, they do not say much,<br />
some would add to this definition that the threatened harm must be present<br />
and imminent." While others might add that the threatened harm must<br />
overcome or overbear a persons' will and deprive him or her of the freedom<br />
of choice.12 Still, in the articulation of some sources, the threat must produce<br />
a reasonable fear of harm or produce a fear which a person of reasonable<br />
firmness would be unable to resist.13<br />
Regardless of the definition, at essence there is an everexisting tension<br />
between the desire to accommodate the actual feelings and practical limita-<br />
tions of the victims of duress, and the need for society to impose standards<br />
of conduct. Thus, should the law of duress accommodate the especially timid<br />
and weak, or should it require all persons to live up to a standard of social<br />
conduct irrespective of their particular circumstances? Should one hold de-<br />
terminative the subjective feelings and fears of the threatened person or<br />
should the type of threatened harm be held determinative Or, should the<br />
proportionality between the threatened harm, and the crime committed be<br />
determinative? If one decides that the subjective feelings of the victim are<br />
determinative, does it make a difference whether the victim's response to<br />
the threat is very unusual and generally unreasonable? Even then, does it<br />
matter that the victim's uncommon response is the result of his selfish and<br />
self-centred personality rather than a faint hearted and feeble character?<br />
Even more, are there situations in which society will decide that<br />
certain choices are inexcusable or unjustifiable as a matter of law? For<br />
example, assume that a scholar who adores her books murders an innocent<br />
person to escape a threat to destroy her library. Should society provide, as<br />
a matter of law, that human life is more valuable than books? What if the<br />
scholar's library consists of very rare and irreplaceable manuscripts, does<br />
that make a difference? What if in the course of trying to save a library<br />
from the hands of an oppressive government, a scholar commits a murder<br />
or, perhaps, seriously injures a person: does that make a difference?
308 Islamic Studies, 30:3 (1991)<br />
Furthermore, are there certain types of threats that are presumptively<br />
coercive; for example, a threat of death or serious bodily injury, while others<br />
are presumptively ineffective, such as threats to destroy property? In a sense,<br />
the tension is always between over-legislating to insure that certain social<br />
values and choices are upheld, or under-legislating to maintain a flexible<br />
standard able to accommodate individual feelings and exceptional cir-<br />
cumstances.<br />
The Common law, mainly in Britain and the United States but also<br />
in Australia and New Zealand, adopted different and often inconsistent<br />
solutions to these problems. W e maintaining a considerable degree of<br />
flexibility, the Common law remains unsystematic in its underlying rationale,<br />
Islamic law created dichotomy between types of acts, and types of duress.<br />
In criminal acts, Islamic law opted for a restrictive alternative, only admitting<br />
certain types of duress while adopting a much more flexible approach in<br />
civil acts. In either case, while accommodating the subjective feelings of the<br />
individual, Islamic law imposes overriding social standards of conduct such<br />
as committing the lesser evil. First, we consider the legal developments<br />
within the Common law and then we shall turn to Islamic law.<br />
THE <strong>COMMON</strong> <strong>LAW</strong> <strong>OF</strong> <strong>DURESS</strong><br />
The original Common law held a rather una~~~mmodating view of<br />
duress. In order to constitute duress, the coercion had to be sufficient to<br />
overcome the will of a constant or brave man.14 Even though this standard<br />
was eventually relaxed to that of a man of ordinary firmness, it did not<br />
significantly alter the law because it was assumed that only a threat of death<br />
or serious bodily injury would be sufficient to overcome the will of such a<br />
person. Hence threats of destruction of property or minor injury were not<br />
recognised as duress.'' Additionally, threats directed at third parties or<br />
persons other than the duressed were inadmissible." The threat had to be<br />
immediate and imminent leaving no opportunity for escape.''<br />
The focus at Common law was on the type of coercion, and not so<br />
much on the psychological condition of the coerced person. Certain types<br />
of threats, like death, mayhem or maiming, by definition, were considered<br />
coercive. Significantly, the same test applied regardless of the type of act a<br />
person was coerced to commit. Therefore, whether the threat was designed<br />
to force a person to sign a contract or commit a crime, the same test applied.<br />
Additionally, there was no inquiry as to the proportionality between the<br />
harm threatened and the act committed. Rather, the inquiry was largely<br />
focussed on the kn;er's misconduct in lieu of other factors.'' Common<br />
law courts approached the defence of duress with caution and conservatism.<br />
Therefore, the approach was rather categorical, designed to set limits that<br />
eliminate the potential for abuse inherent in defence.19
Islamic Studies. 30:3 (1991) 309<br />
At the present time, the Common law, particularly in the area of<br />
civil law, has undergone a major shift in the emphasis. For the most part,<br />
the type of duress became of secondary importance, and the impact of duress<br />
on the victim ascended to primary importance. Tbus, the focus became the<br />
state of mind induced by duress in the victim.m Consistent with this approach,<br />
Common law rules as to third party duress were liberalized, particularly in<br />
civil transactions. Likewise, the rules as to the immediacy of the harm became<br />
somewhat relaxed. We shall review the rules on these topics in some detail<br />
in later sections on criminal and civil acts.<br />
Tbe Common law retained the requirement that the duress be wrong-<br />
ful. Although, the traditional Common law held that "it is not duress to<br />
threaten to do what one has a legal right to do", this has been substantially<br />
modified. The threatened duress need not be unlawful in the legal sense,<br />
but need only be wrongful in the moral sense.21 Tbus; threatening to use a<br />
legal right in an abusive or oppressive fashion is considered sufficient<br />
duress." Tbe wrongfulness of the threat is at issue particularly in economic<br />
duress cases. Beyond cases of economic duress, the crux of the matter,<br />
especially in civil cases, is whether the victim felt oppressed and overwhelmed<br />
by the threat, and not necessarily whether the threat could be legally classified<br />
as impermissible."<br />
Despite the fact that the Common law has de-emphasised the type<br />
of duress, it has not been able to resolve whether if any attention whatsoever<br />
should be placed on the type of coerced act. Tberefore, even if we accept<br />
that only wrongful threats can overcome a person's will, must we con-<br />
sequently excuse any act the coerced commits regardless of its nature? This<br />
is fundamentally a question of policy and morality. But the failure of the<br />
Common law to realize that the whole defence of duress is founded on such<br />
considerations has created- inconsistencies and confusion. This will be<br />
explained in more detail later.<br />
For now, we turn to Islamic law and its approach.<br />
<strong>DURESS</strong> AT <strong>ISLAMIC</strong> <strong>LAW</strong>^^<br />
Islamic law has a multifaceted approach to duress. Motivated by a<br />
need to protect the sanctity of particular human and divine rights, Islamic<br />
law is in certain respects rigid. But motivated by a similar need to protect<br />
the rights of the duressed, it is in other respects flexible. Tbe whole Islamic<br />
jurisprudential discourse on the subject is phrased in terms of balancing the<br />
rights of God and society against the rights of the coerced individual. Hence<br />
Islamic law in certain areas emphasie the type of duress and the dature of<br />
the injured rights while simultaneously accommodating the subjective feel-<br />
ings of the coerced.
310 Islamic Studies, 30:3 (1991)<br />
Muslim jurists divided duress into two main categories. The first<br />
compelling or constraining (mulji), and the second, not as compelling or<br />
constraining (ghyr mulji) . 25 The first type (compelling duress) nullifies con-<br />
sent and vitiates free choice. The second type (non-oompelling duress) nul-<br />
lifies consent but does not vitiate free choice. In other words, there are two<br />
types of duress: one that is so compelling that the victim not only cannot<br />
freely consent but is not really left with a choice at all. The second type of<br />
duress is not as overwhelming and, therefore, practically speaking, the victim<br />
is left with a choice.26<br />
Hanafi jurists argued that consent, as in being content or pleased<br />
with ones decisions, often lacks even without duress or with minimal duress.<br />
Often a person agrees to something that is not entirely satisfactory, pleasing<br />
or even in her best possible interest. An example given by Hanafi jurists is<br />
that of a person who divorces his beautiful bride might not be happy with<br />
his decision, but he does it anyway because it might be neces~ary.~ On the<br />
other hand, choice always exists even if duress is present. One can always<br />
choose to die whether one is happy with the decision or not. But, if the<br />
duress is powerful enough then the choice, although not lacking, is vitiated<br />
or spoiled. Therefore, any amount of duress is liable to negate consent. But<br />
only serious or compelling duress will also spoil choice.<br />
Al-Kasiini (d. 587/1189) explains the two categories:<br />
Duress is of two types. One type creates necessity and leaves no<br />
recourse by its very nature like (a threat) of death or maiming or ti<br />
beating that endangers the life or limb (that is) wheth;er the beating<br />
is excessive or light. And some have said that such beating must be<br />
about the amount of lashes required in a &add [a set punishment that<br />
ranges from 40 to 100 lashes], however, such an opinion is incorrect<br />
because what is important here is that necessity is created and if<br />
[necessity] exists then there is no reason to require a certain amount<br />
of lashes. And this [ht] type is called fdm (complete). The second<br />
type does not create a necessity and does leave some recourse and<br />
that is like imprisonment or bondage or beating that does not threaten<br />
to cause grave injury. And bere again] there is no specific amount<br />
of duress required but that it [the duress] causes agony. . . and this<br />
type is called ikrcsh -4 (incomplete comp~lsion).~~<br />
As quoted above, al-Kasani cites imprisonment as an instance of<br />
non-compelling duress. Actually, the threat of imprisonment can never be<br />
compelling.29 While others have held that long imprisonment, contrary to<br />
a one-day detention, could be compelling duress." While still others implied<br />
that this depends on the condition of the prison; if it is in a bad condition
Islamic Studies, 30:3 (1991) 31 1<br />
then imprisonment is compelling duress.31 It would seem that the viey<br />
holding that long imprisonment in bad condition could be compelling duress<br />
is more consistent with the overall approach of Islamic law.<br />
The relevant point, according to Islamic law, is that duress is divided<br />
into two general categories. Threats of grevious harm, in whatever form,<br />
could excuse serious offenses. All other forms of duress would only excuse<br />
less serious offenses. The law defines what is a grevious harm, but the threat<br />
has to be subjectively felt and believed by the coerced. Therefore, there is<br />
a threshold question of whether the law recognises the form of duress and<br />
if it does, what category it falls under. Once the threshold question is trans-<br />
cended, there remains a question of the subjective feelings of the coerced.<br />
Consequently, if the law considers a threat of one day imprisonment to be<br />
non-compelling, regardless of the hypersensitivities of a timid person it will<br />
only excuse less serious offenses. Generally, only threats of death or serious<br />
bodily injury constitute compelling duress.<br />
There is some disagreement among Muslim jurists as to whether<br />
certain types of threats should be considered duress at all. For example,<br />
most jurists held that an act of public humiliation like a single slap on the<br />
face could be duress while a minority (particularly from the Hanbali School)<br />
disagreed." However, since a slap on the face cannot cause grevious bodily<br />
injury it is not compelling duress.<br />
According to the majority of Muslim jurists a threat of damage to<br />
property could constitute duress, and if the damage is substantial and grevi-<br />
ous, the threat could constitute compelling duress. Some jurists contended<br />
that whether the damage to property is substantial or not must be relative<br />
to the wealth of the victim.= A threat of destruction to ones home could<br />
be compelIing duress to a poor person while only constituting noncompelling<br />
duress to a person owning the means to easily replace his lost home.<br />
Most Muslim jurists also recognised threats of harm to third parties<br />
as duress. But they disagreed over who may the third party be. Some only<br />
recognised threats directed at parents or offsprings, and a few recognised<br />
even threats directed at strangers.% Nevertheless, particularly Hana6 and<br />
HanbaIi jurists insisted that whatever the type of threat, it only constitutes<br />
nowcompelling duress if directed at third parties.% Although the matter is<br />
not free from doubt, it seems that, as to the otber schooIs, whether a threat<br />
to a third party is compelling duress depends on the type of harm threatened.<br />
So, if a third party is threatened with death or grevious bodily injury then<br />
that is considered compelling duress.<br />
Notably, the Islamic approach to duress resembles. somewhat the<br />
traditional common law in its adoption of an objective inquiry focussing on
312 Islamic Studies, 30:3 (1991)<br />
the type of duress. Nevertheless, a major difference is that while the traditional<br />
Common law only admitted certain types of duress no matter the<br />
coerced act, as mentioned later, Islamic law admits most forms of duress,<br />
but insists on proportionality between the type of duress and the type of<br />
act. Additionally, the traditional Common law held people to an objective<br />
standard of a braver or constant person. Islamic law, however, combines a<br />
subjective inquiry designed to ascertain whether, in fact, the victim felt<br />
compelled due to a present fear to oblige the coercer. Hence, Muslimjurists<br />
stated that we should iuquire into whether the victim believed, by a preponderance<br />
of his thought, that he was faced with a necessity that left him no<br />
alte~native.~~ Al Sarakhsi (d. 483/1090) explains this point in the following<br />
passages:<br />
"[We consider] the preponderance of thought [of the victim] and<br />
what he felt because the victim's belief takes precedence over the<br />
reality concerning matters that we have no way of verifying indepen-<br />
dently. . . . The conditions of people vary according to their ability<br />
to withstand pain, therefore, we have no alternative but to wnsider<br />
what the victim believed.""<br />
Al-Sara argues that since we cannot know what people can withstand<br />
or endure. We have to inquire into the specific individual case to ascertain<br />
whether fear existed.38 Tben a14arakW argues that this approach is best<br />
in order to "alleviate hardship from the people" (taysfr 'ulu'l-?I&). Finally,<br />
he adds that in each individual case it will have to be left up to the judge<br />
to decide whether the victim actually felt compelled or not.39<br />
This necessarily means that duress could be relative according to the<br />
circumstances of the duressed. Hence, what is not duress for a street-wise<br />
persion could be its opposite for a timid and inexperienced persoh. Iikewise,<br />
a single slap on the face or single lash with a whip could be oppressive for<br />
one person but not for the other. Each case has to be decided individually<br />
on its facts.& However, as mentioned earlier, the person's subjective feelings<br />
cannot transform noncompelling duress into compelling duress.<br />
On the closely associated issue of whether the threatened duress need<br />
be impending and immediate, there is dhgreement among Muslim<br />
Some jurists held that the duress is recognised only if the victim performed<br />
the coerced act in the presence of the coerced." Nonetheless, the majority<br />
of Muslim jurists disagreed, Shafi'i jurists argued that the threatened danger<br />
has to be immediate (a'jif) leaving little opportunity to escape. The crux of<br />
the matter, however, is the formation of fear in the victim's mind and that<br />
the victim would think he is left with no choice. Actual physical presence<br />
of the coercer is not necessary in order for the victim to form the belief that<br />
he is in danger."
Islamic Studies, 30:3 (1991) 313<br />
The Malikis affirmed this argument; but they added that since the<br />
real issue is the formation of fear in the victim's mind, there is no need to<br />
require that the threatened harm be immediate. Consequently, even if the<br />
threatened violence would occur after a whole month and the victim was<br />
terrified by this, and he could not seek help, then there is duress.44 Al-<br />
Sarakhd, although a Hanafi, went much further in arguing that in certain<br />
situations even an explicit threat is not required. One such situation arises<br />
when A,ia person of authority, orders B to kill another, but A does not<br />
explicitly threaten to kill B if he does not comply. If from the context of<br />
the situation B believes that if he fails to comply, he will be killed then there<br />
is duress. Al-Sarakbsi justified this rule by arguing that, "it is the habit of<br />
oppressors, because of their haughtiness, not to explicitly threaten to kill<br />
people. But [in reality] they issue orden, and then if they are not obeyed,<br />
they always punish by death those who disobey them. And, therefore, if<br />
this is the common practice, then a simple order might be considered an<br />
explicit threat of death . . . that fulfills the requirements of<br />
Hence, the majority, and the better supported, view is that immediacy<br />
is only a factor to be considered as to the ultimate question of whether the<br />
coerced felt compelled.46 This is consistent with the Islamic emphasis on the<br />
preponderance of the victim's mind. As mentioned earlier, however, one<br />
should carefully note that the Islamic approach is not entirely subjective.<br />
For example, a single slap on the face or minor destruction to property,<br />
except perhaps to an indigent person, will never constitute compelling duress<br />
regardless of the particular idiayncrasies of the victim. Consequently, certain<br />
types of duress cannot excuse certain grave offenses although a particularly<br />
timid victim might feel completely overwhelmed by a relatively minor form<br />
of duress. The subjective inquiry is only designed to ascertain whether the<br />
victim in fact felt threatened. But the categorization of the duress, and what<br />
acts it can excuse is determined according to legal standards.<br />
The Islamic approach seems to be premised on the idea that although<br />
it is appropriate to consider the subjective feelings of the coerced, whether<br />
the duress should be recognised or not is essentially a policy and moral<br />
decision. Even in the existence of duress a person's will is really never<br />
overcome. Similarly, duress does not really negate consent nor the power<br />
of choice. Whatever the amount of physical or mental violence, a person<br />
still has the choice between endurance and submission. After all, a choice<br />
between two evils is still a choice. If a person is threatened by death to sign<br />
a contract, he could make a rational decision to sign the contract rather<br />
than die. The person might not be happy with the result, but he makes his<br />
choice based on the best possible scenarios available to him at the time. If<br />
the circumstances were different, the perion might have chosen a different<br />
course of action, but the circumstances being what they are, a person consents
314 Islamic Studies, 30:3 (1991)<br />
and chooses an undesirable course of action. This is why the Hanafi jurists<br />
argue that choice is merely corrupted duress (i.e it is not a choice made<br />
under the best possible circumstances) but the choice is never rendered<br />
non-existent. More will be said about this matter by way of evaluating the<br />
Islamic approach.<br />
Inherent to the Islamic approach to the types of duress, is that the<br />
victim's response be proportional. First, the victim cannot commit more<br />
damage than the situation requires and he is held liable for the excess<br />
behaviour or the over reaction. Second, the victim cannot commit a great<br />
harm to avoid a lesser harm.47 merefore, the threat required varies with<br />
the harm committed. In £act, the whole logic of compelling duress and<br />
noncompelling duress is that there be proportionality between the type of<br />
duress and the type of act committed. By contrast, the Common law has<br />
ignored, and to an extent continues to ignore, the requirement of proportion-<br />
ality?<br />
In addition to the principle of proportionality, Islamic law requires<br />
that a victim of duress choose the lesser of the evils he faces (Wycfr akhaff<br />
ol-&~arayn).~~ Al-S- sates the general principle, "And if it is said . . .<br />
'an unjustly treated person has a right to resist injustice in whatever way he<br />
can'. We say: 'yes, but an unjustly treated person cannot commit injustice<br />
against others'. . . ."'" 'Ibis rule applies if the two evils are equal; the<br />
victim cannot save himself at the expense of others. But if the evil he will<br />
suffer is greater than the evil he will commit then he is excused.51 Otherwise,<br />
the victim is always under a duty to minimize the damage. So if he is forced<br />
to divorce his wife or commit a murder he must divorce his wife rather than<br />
commit a murder." If he is forced either to kill someone or pronounce<br />
apostasy, and he chooses to kill then he is not excused because prqnouncing<br />
apostaiy is a lesser crime than murder.s3 If he is compelled to murder a<br />
slave or destroy property, he must destory the property because a slave is<br />
a protected life. Furthermore, if he is compelled to destroy the property<br />
either of a rich person or a poor person, he must destroy the property of<br />
the rich person because that is the lesser evils.% A final example; if pe<br />
victim is compelled either to rape or murder neither choices are excused' in<br />
the hereafter. Meaning he will be punished for either choice on the final<br />
day. But as far as the earthly legal remedies are concerned, he must commit<br />
rape rather than murder i.e. if he commits rape, he will not be punished.<br />
But if he perseveres and commits neither that is much better in the final<br />
judgement."<br />
THE EFFECTS <strong>OF</strong> <strong>DURESS</strong> ON ACTS<br />
In an attempt to formulate a systematic law of duress, Muslim jurists<br />
divided acts into two separate categories: (1) physical acts and (2) verbal
Islamic Studies, 30:3 (1991) 315<br />
acts.Physicalactskcrimiaalinana~esuchcrsmurder,rape,anddestruction<br />
of properly. Verbal acts are mainly civil such as forming contracts, divorce<br />
or marriage. In general, only compelling duress affects physical acts whild<br />
both compelling and noncompelling duress affect verbal acts.%<br />
Some Muslim jurists chose to make the centre of categorical divisions<br />
not so much the nature of the acts in question but, rather, the nature of the<br />
rights affected. According to these jurists, acts are divided into two kinds;<br />
(1) Those acts that only affect the rights of the victim of duress, and (2)<br />
lluse acts that affect the rights of other innocent people andlor the rights<br />
of God, such as apostasy. In the first type, a lesser form of duress may<br />
excuse the act. In the second type, a more compelling fonn of duress (like<br />
a threat of death or serious physical injury) is needed to negate liabi~ity.'~<br />
The Common law did not create a dichotomy between the types of<br />
acts and the types of duress. Nonetheless, some of the rules articulated at<br />
traditional Common law were apparently premid on a differentiation be-<br />
tween the nature of rights affected. Some of that can be discerned from the<br />
Latin maxim privik@m non vdct contra ranpublicon (necessity does not<br />
excuse acts committad against the republic), and, hence, the rule that neces-<br />
sity does not excuse treason. Fmds Bacon demonstrates the logic of the<br />
above-mentioned maxim in the following example. If people at sea are faced<br />
by a tempest, they are not liable if they cast properly and goods overboard.<br />
But they are not excused if the shipisuuryingordnnace or atnmunition "to<br />
relieve any of the king's towns that are distressed. . . . ." Blackstone offers<br />
a more telling example of the original approach at the Common law.<br />
Blackstone argues that duress excuses "positive crimes" or, in other words,<br />
aimes created by the laws of society. "[But] not [so] as to natural offenses,<br />
so declared by law of God, wherein human magistrates are only the<br />
executioners of divine punishment." Therefore, a person placed in danger<br />
of life or limb cannot save himself by killing another." Pursuant to this<br />
logic, crimes against God's laws, the crown or the commonwealth were<br />
deemed inexcusable. This categorical approach somewhat resembles Islamic<br />
law. But Islamic law, although categorical, did not rely on the same rationale.<br />
Crimw against the rights of God are excused by duress, and whether crimes<br />
against the commonwealth are excused depends on a variety of considera-<br />
tions, the belief of the coerced being among them.60<br />
The modem Common law for the most part has abandoned categorical<br />
or dichotomous approaches. Nevertheless, the modem Common law does<br />
adhere to different forms of analysis in criminal as opposed to civil cases.<br />
The distinction, however, is not premised on anything dubious such as the<br />
differentiation between verbal and physical acts, and it does not seem to be<br />
premised on a differentiation between-the involvement or non-involvement
316 Islamic Studies, 30:3 (1991)<br />
of innocent persom6' In fact, the Common law fails to explain the reason<br />
for adopting a standard of duress in civil cases different from that which<br />
applies in criminal cases.<br />
Other than discussing criminal and civil cases separately, this essay<br />
will not structure the discussion around the theoretical categories established,<br />
particularly, by Muslim jurists. Rather the focus will be on the specific rules<br />
that apply to the different types of acts. Firstly, contractual or civil matters<br />
will be examined, secondly, criminal acts such as destruction of property,<br />
rape and murder will be examined. Finally, our attention will be turned to<br />
the subject of superior orders.<br />
CONTRACTUAL <strong>AND</strong> CIVIL ACTS<br />
In the modem Common law, duress is recognised only if it overcomes<br />
the will of the victim. According to most cases and commentators, the<br />
approach is entirely ~ubjective.~' Therefore, section 492 of the Restatement<br />
of contracts states:<br />
Duress . . . means (a) any wrongful act of one person that compels<br />
a manifestation of apparent assent by another to a transaction without<br />
his volition, or (b) any wrongful threat of one person by words or<br />
other conduct that induces another to enter into a transaction under<br />
the influence of such fear as precludes him from exercising free will<br />
and judgement. If the threat was intended or should reasonably have<br />
been expected to operate as an ind~cement.~~<br />
Although, courts frequently speak of a will overcome by duress, and<br />
of an entirely subjective approach, evidence showing whether a reasonable<br />
person would have felt compelled is pertinent as to whether the victim's will<br />
was, in fact, overcome.64 In other words, a court would consider what a<br />
reasonable person would have believed or done in order to evalkte the<br />
credibility of the victim's claim. This is inconsistent with the entirely subjec-<br />
tive standard that the modem Common law claims to follow. In fact, espe-<br />
cially in cases involving economic duress,65 as opposed to threats of physical<br />
injury, courts often grant relief on public policy grounds such as unjust<br />
enrichment, gross unfairness or bad faith dealing by the ~oercer.~~<br />
The Restatement Second of Contracts resolves this discrepancy by<br />
abandoning the totally subjective standard. Section 175 provides:
Islamic Studies, 30:3 (1991) 317<br />
If a party's manifestation of assent is induced by an improper threat<br />
by the other party that leaves the victim no reasonable alternative,<br />
the contract is voidable by the victim.<br />
Hence, in order for duress to exist two prongs must be fulfilled. One,<br />
the victim's assent must be induced by an improper threat. -0, there, must<br />
be no reasonable alternative left to the victim.67 The assent of the victim is<br />
decided through a subjective inquiry.68 Nonetheless, the existence, or lack<br />
thereof, of a reasonable alternative is a "mixed question of law and fact, to<br />
be answered in clear cases by the court". In summary, the Restatement<br />
Second pursues both a subjective and objective inquiry. The feelings and<br />
understandings of the duressed are accommodated to an extent. But the<br />
reasonableness of the alternatives available to the duressed would be objec-<br />
tively determined. One, however, has to admit, as in all areas of the law,<br />
that the word "reasonable" is extremely vague. It is not at all clear what<br />
does the phrase, "leaves the victim no reasonable alternative" means. Fun-<br />
damentally, what is reasonable can only be determined by reference to moral<br />
and policy experiences and expectations of society. These are the same<br />
considerations that help draw the thin line differentiating hard bargain situ-<br />
ations from oppressive and coercive conditions.69 Therefore, the Restate-<br />
ment Second seems to open the door for a host of moral and policy deter-<br />
minations. Importantly, a determination of the reasonableness of alternatives<br />
left to the coerced, threatens to make the subjective inquiry into the duressed's<br />
assent largely irrelevant. For example, in Miller v. ~ ikele,~ plaintiff<br />
believed that his stock broker made improper charges to plainti£Ps securities<br />
account which resulted in additional margin. In order to prevent defendant<br />
from selling more of his securities, plaintiff made the margin call payments<br />
under protest. The appellate court held that the trial court erred in granting<br />
the defendant's motion for non-suit, asserting that there were sdficient<br />
factual issues to send the case to the jury. In reaching its decision, the court<br />
heavily relied on the fact that plaintiff made these margin call payments<br />
during the market crash of 1929. The subsequent depression, the court<br />
reasoned, proved the phiintiff prudent in not waiting to sue for the value of<br />
his securities.<br />
As a practical matter, the fact that the plaintiffs worries proved<br />
correct is quite irrelevant as to whether his assent was coerced or whether<br />
duress existed. If the depression did not follow, plaintiffs assent would have<br />
been equally coerced at the time he made his decision. Ultimately, in asses-<br />
sing the reasonableness of the alternatives available to the duressed, one<br />
might ignore the assent or feelings of the duressed since these alternatives<br />
.could have been unknown to the duressed. Once it is said that a reasonable<br />
person should have thought of the alternatives, we are no longer seriously<br />
considering, and, in fact we are ignoring, the subjective feelings of the<br />
coerced.
318 Islamic Studies, 30:3 (1991)<br />
It should be emphasised, however, that the approach of the Restate-<br />
ment Second does not represent the majority view. The majority of courts<br />
insist that the victim's will must be overcome and, consequently, that the<br />
inquiry be entirely subjective.<br />
In deciding whether the victim's assent was procured by duress, or<br />
in the terminology of most cases, whether the victim's will was overcome<br />
or not, the lapse of time between the threat and the coerced act only goes<br />
to the ultimate issue of fact. In other words, modem Common law, considers<br />
the imminence of the threat only as evidence of whether the victim's will<br />
has been overcome or not." Threats of harm to property or third parties,<br />
for the most part, are also admitted.n However, as to third parties, there<br />
is disagreement as to whether only threats to relatives should be recognised<br />
or all relationships should be admitted as long as there is affinity between<br />
the third party and the coerced person.n<br />
Finally, contracts made under duress are normally held to be voidable;<br />
they are void only in rare circumstance^.^' For example, if a person<br />
threatened by death signs a contract without knowledge of its contents or<br />
if a person under the influence of hypnosis signs a contract then these<br />
agreements are void rather than voidable. In both these situations, there is<br />
a total absence of consent. But in the more common situation, where the<br />
party's will has been overcome by duress, the contract is voidable."<br />
Islamic Law<br />
Islamic law, in many respects, is War to the Common law. As<br />
reviewed earlier, when it comes to civil acts, Islamic law recognises both<br />
types of duress, compelling and noncompelling. Since all types of duress<br />
are recognised, the only remaining question is whether, in fact, the victim<br />
felt that he had to assent to the transaction or risk getting harmed. If that<br />
is the case, as a matter of legal standard, and moralheligious policy, the<br />
transaction will not stand. Hence the inquiry as to the victim's state of mind<br />
is subjective. But as mentioned earlier, the law imposes an overriding objec-<br />
tive principle of choice of the lesser evil and proportionality. Therefore, if<br />
A threatens to destroys B's house unless he signs a condemnation order<br />
against ten houses, B cannot do so. The harm inflicted by B exceeds the<br />
harm avoided. Similarly if A threatens to destroy B's house unless B signs<br />
a condemnation order against Cs house and B is rich but C is poor, and B<br />
knows that C is poor, then B cannot inflict the harm.<br />
Islamic law incorporates the Common law dodrine that there must<br />
be no other alternative through the principle of choosing the lesser evil. If<br />
there was a less harmful alternative and the victim failed to pursue it then
Islamic Studies, 30:3 (1991) 319<br />
the lesser of the two evils has not been observed. For example, if the person<br />
could have avoided the harm by seeking legal advice or police protection,<br />
the victim has a duty to commit the lesserpvil which in this case means<br />
seeking legal advice.76<br />
Taken to the extreme, this logic would nullify all claims of duress of<br />
goods or, more broadly, most cases of economic duress. For example, in<br />
the Miller case the plaintiff's alternative was to refuse to make the demanded<br />
payments and sue for breach of contract as well as other grounds rather<br />
than claim duress. At one level, Islamic law appears to resolve this problem<br />
by pursuing an essentially utilitarian approach. If waiting to sue for breach<br />
of contract would cause more harm than an immediate claim of duress, then<br />
the lesser of the two evils is to comply with the defendant's demands, and<br />
then claim duress. Importantly, however, "harm" is not identified solely by<br />
reference to the plaintiff's condition. Rather social and religious policies can<br />
enter into defining the extent of An example, taken from outside<br />
the context of Islamic law might help demonstrate the point.78 Suppose that<br />
A, an already rich individual, is due to inherit a large sum of money from<br />
an estate. An unethical lawyer threatens to tie up the estate in court unless<br />
A agrees to pay him exorbitant legal fees. A has two options; either he pays<br />
the fees now and claim duress later or sue the lawyer immediately and risk<br />
receiving his inheritance after a long delay. Since Islamic law does not rely<br />
on the logic of an overcome will, it can hold that duress exists because as<br />
a matter of public policy, lawyers cannot be permitted to behave in this<br />
fashion. In Islamic terminology, litigating the dispute in court is not the<br />
lesser evil, since, as a matter of law, allegations of attorney misconduct are<br />
a greater and more general evil or harm (erar kuli and not a +rur hiss).79<br />
Interestingly, the Restatement Second in civil cases seems to be closer to<br />
the Islamic approach than the traditional Common law. Both are standard-<br />
setting or standard-recognising, and both are vague but for different<br />
reasons.80<br />
Once duress is found, Muslim jurists could not agree on whether the<br />
resulting contract is void or voidable. According to the Hanafis, a defect of<br />
duress differs from other contractual defects (like a defect of fraud or mutual<br />
mistake) in certain respects. One, the contract could be subsequently invali-<br />
dated and, two, it could be invalidated even if handled by an innocent<br />
purchaser.81 Thus, according to the majority of Hanafi jurists, a sale or<br />
contract induced by duress is compt fjiiid), nonetheless, it is enforceable.<br />
The victim of duress, however, has the power to subsequently invalidate<br />
the contract of sale.82<br />
If the victim of duress eventually attacks the validity of the contract<br />
of sale, it becomes void even if there & a third innocent party who relied
320 Islamic Studies, 30:3 (1991)<br />
on such a contract. In other words, even if the object of the illegal act of<br />
duress moves into the regular course of business (even if it is handled by<br />
hands, in Islamic terminology) it is still retrievable by the victim. If we may<br />
illustrate, assume A illegally compels B to give his horse to C and % sells<br />
the horse to D. Both C and D know nothing of A's illegal acts. Nonetheless<br />
B can retrieve the horse from C or D wherever it may be. D can sue C or<br />
A for the price of the horse, and D can sue A for the same price. In other<br />
words, the victim of duress is entitled to retrieve his rights, and the other<br />
parties are left to settle things amongst themselves. Ultimate, liability lies<br />
with the offending oppressor. The victim, however, cannot commit any act<br />
that evidences his acquiescence in the transaction. For example, if he willingly<br />
delivers the product or accepts a price after the duress is removed, that is<br />
a sign of acquiescence and approval. In effect, the Hanafis argued that<br />
contracts or sales induced by duress are voidable at the election of the victim.<br />
The Shafi'is, Hanbalis and Zahiris disagreed. They considered such transactions<br />
as void from the moment of their creation. Ibn Hazm, the Zahiri,<br />
relied on the Qur'hic injunctions prohibiting compulsion in religi~n,'~ then<br />
he argued, by analogy, that duress creates inherently illegal transactions<br />
that may not be sanctioned at any stage." The Shafi'is took another point<br />
of departure. According to them, consent (al-tarrudi) is a prerequisite for<br />
a contract to form in the first place. Since duress negates such consent, in<br />
reality, a contract was never formed, and, therefore, no legal effect can be<br />
given to such duress. Thus, the contract is void from its inception. The<br />
Hanafis, on the other hand, argued that consent is not a prerequisite for a<br />
contract to form, consent, rather, is necessary for a contract to be effective.<br />
This led the Hanafi school to conclude that a contract induced by duress is<br />
simply voidable and not void.''<br />
The Maliki school chose a less stringent alternative. Maliki jurists<br />
decided that contracts or sales induced by duress are non-binding (ghayr<br />
kern): Thus, they cannot be enforced against the victim, but the victim<br />
cannot enforce his rights against innocent third parties who take in the course<br />
of business without knowledge of the illegality. The victim's remedy is to<br />
pursue the oppressor and obtain just compen~ation.~<br />
If we rank the Islamic schools of thought in terms of how far they<br />
were willing to go to negate the effect of duress, the Shafi'is, Hanbalis, and<br />
Zahiris were willing to go to the furthest; to them the contract is void. They<br />
are followed by the Hanafi school; to them the contract is voidable. The<br />
MHliki school seems to be the most permissive in this regards; to them the<br />
contract is not binding.87
Islamic Studies, 30:3 (1991) 321<br />
CRIM<strong>IN</strong>AL ACTS: DESTRUCTION <strong>OF</strong> PROPERTY, RAPE <strong>AND</strong><br />
MURDER<br />
The Common Law<br />
The Common law excuses all crimes except murder, and, perhaps<br />
treason, if such crimes are committed under the influence of a well-grounded<br />
fear of imminent death or serious bodily injury from which there is no<br />
escape." The Common law. of crimes for the most part has refused to<br />
recognise threats to property, financial interests or reputation.@ Although<br />
the traditional rule refused to recoguise threats to third parties, the modem<br />
Common law has created an exception in the case of close relativesg0 Ad-<br />
ditionally, the Model Penal Code does not require that the threat be im-<br />
mediate or imminent. Nonetheless, it does not seem that courts have accepted<br />
this reform.91<br />
The Common law standard, regardless of the crime, is the same, and<br />
as such it lacks pr~portionality.~~ Therefore, whether someone is forced to<br />
destroy someone's car or sever his arm, the test is the same. Similarly, if<br />
threatened by death or serious injury a person can inflict a bodily injury on<br />
another of the same or even greater magnitude, or such person can inflict<br />
bodily injury on two or even ten people.<br />
Partly in response to the Common law's inflexible standards and lack<br />
of proportionality, some commentators have advocated an entirely subjective<br />
standard in criminal duress. Thus, according to Newman and Weitzer:<br />
Factors such as the opportunities for escape, the weakness of the<br />
duressed, the immediacy of the situation, the availment of self help,<br />
the strength of the threat, the gravity of the crime, the resistance<br />
shown or not shown, should go to the weight of the evidence and the<br />
jury should be called . . . to decide whether these nuances of evidence<br />
prove lack of free willed action or not.93<br />
This approach unwittingly achieves proportionality, in certain regards,<br />
since a person threatened by a serious injury to property might be excused<br />
if he commits a less than serious offense. Nonetheless, this approach does<br />
not focus on, nor in any systematic sense promote, proportionality. Rather,<br />
the focus is on the will of the duressed regardless of the gravity of his crime.<br />
Consequently, even if the avoided harm is less than the committed harm,<br />
the duressed is excused if his will was overcome.<br />
This approach is untenable for three reasons. First, it relies ori a legal<br />
construct in trying to undermine other legal constructs. Namely, the assump-
322 Islamic Studies, 30:3 (1991)<br />
tion that a person can only be duressed by death or serious bodily injury is<br />
a legal construct. But the idea of free will overcome, as discussed later, is<br />
itself a legal construct. Second, it assumes that the criminal law has no<br />
interest in promoting certain moral or social standards in society. It is incor-<br />
rect to assume that the legal system should recognise the fallibilities of people<br />
without regard to any moral or social standards. After all, any crime commit-<br />
ted is the product of some human weakness, and, yet, no one will be heard<br />
to argue that such frailities of the human character should absolve a criminal<br />
of wrongdoing. The reason the law creates exceptions such as duress, mis-<br />
take, or self-defense is for moral and policy reasons quite apart from the<br />
mem rea or state of mind that the defendant laboured under. Third, there<br />
is no possible moral or policy reason to absolve someone who, for example,<br />
kills a human being in order to avoid injury to his beloved dog. That is so<br />
even if the duressed's will was overcome by the threat to his beloved dog,<br />
it would not be proper to say that a person who wished to save his beloved<br />
library, for instance, is excused if he rapes, severs a limb, or kills a person.<br />
A subjective standard is, of course, fair to the individual in that it accommo-<br />
dates his particular temperament and personality. However, it is inherently<br />
unfair to society unless it is accompanied by the principle of proportionality.<br />
Aware of the difficulties inherent in the subjective approach, the<br />
Model Penal Code rejected it stating that,"[t]o make liability depend upon<br />
the fortitude of any given actor would be no less impractical or otherwise<br />
impolitic than to permit it to depend upon such other variables as intelligence<br />
or clarity of judgement, suggestibility or moral insight."94 The Model Penal<br />
Code adopts, what it calls a "partially objective" standard. The victim must<br />
establish that he has been coerced in circumstances under which a person<br />
of reasonable firmness in his situation would have been unable to resit."<br />
The size, strength, age or health but, not the temperament of the duressed,<br />
would be considered in deciding whether a reasonable person in the victim's<br />
circumstances would have acted similarly.% There is no specific type of<br />
threat required by the Model Penal Code. Except for threats to property or<br />
reputation, which the Commentary says, cannot as a matter of law exercise<br />
sufficient coercive power over a person of reasonable firmness, all other<br />
threats are recogni~ed.~~<br />
Nonetheless, the Model Penal Code, Section 2.09 is incomplete in<br />
the sense that it is standardless. For example, assume A threatens to kill B<br />
if B does not break the lkg of C, a competent football player, right before<br />
the superbowl. A fanatic sports fan jury might find that B acted unreasonably<br />
in breaking Cs leg. B is not excused by Section 2.09. However, the Model<br />
Penal Code remedies this situation by Section 3.02. Section 3.02 provides<br />
that a person is justified in committing any act if the harm sought to be<br />
avoided is greater than the harm of the act committed.% Hence, because
lskmic Studies, 30:3 (1991) 323<br />
of Section 3.02, not 2.09, B in our hypothetical example would be justified<br />
in breaking Cs leg. Likewise, a person who kills one to save the lives of<br />
ten others would be excused.99<br />
Despite Section 3.02 which compliments and completes Section 2.09,<br />
the Model Penal Code's approach still lacks proportionality in important<br />
respects. Assume, A threatens to kill B if B does not plant a bomb 'on an<br />
aircraft full of passengers. B does so and 300 people are killed if a jury<br />
decided that what B did was reasonable, Section 2.09 vindicates B. Section<br />
3.02 would not apply. In the alternative, assume A and three other people<br />
are stranded at sea. A consequently kills and consumes all three people to<br />
stay alive. If the jury decides that A acted reasonably, it leads to a very<br />
disproportionate result. In other words, while Section 3.02 pennits a person<br />
to claim he committed the lesser of two evils, Section 2.09 would pennit<br />
the greater of two evils to stand. Consequently, although the Model Penul<br />
Code is successful in achieving a certain degree of proportionality, it lacks<br />
in other respects.<br />
One should note, however, that the Model Penal Code is unique in<br />
that it pennits the defence of duress in the case of murder. The traditional<br />
Common law refused to recognise that murder is ever excused or justified<br />
by duress, calling murder the "inexcusable choice". As Blackstone put it,<br />
"he ought to die himself than to escape by the murder of an innocent<br />
person".'00 Most modem jurisdictions recoguk the murder exception to<br />
duress,''' but this exception has been heavily criticised by several writers.'''<br />
It is argued that it is totally unrealistic to expect people to be willing to<br />
sacrifice themselves rather than murder another. The Model Penal Code<br />
itself calls it hypocritical to require a standard of conduct that a person's<br />
judges are unable to live up to if placed in the same ~ituation.'~~ It is argued,<br />
if most.people placed in the same situation would succumb to and<br />
commit murder then the law loses its deterent value in imposing too high a<br />
standard. The law, in fact, would be imposing a meaningless penalty unjustified<br />
by any social value.'Oq<br />
This argument, however, is not persuasive on several counts. Firstly,<br />
it assumes that the only reason for penal laws is deterence. Quite apart from<br />
deterence, the law could affirm moral values such as the sanctity of human<br />
life. Thus, the law could play a morally educative role setting standards of<br />
conduct. '"<br />
Secondly, this argument is essentially limitless since it defers to social<br />
practices regardless of their moral content. If most people would give more<br />
value to the lives of a certain mcial group, should that be accepted? Or, if<br />
most people would kill a person to save their pets, should that be accepted?
324 Islamic Studies, 30:3 (1991)<br />
The law is replete with instances where regardless of the dominant social<br />
practices, a standard is set. Thirdly, the argument lacks proportionality.<br />
Perhaps, it would make some sense to argue that a person should kill a<br />
stranger to save his three young children but it makes no sense to permit a<br />
person who plants a bomb in a crowded train to claim duress.'"<br />
Most criminal acts implicate @e rights of innocent persons. The limits<br />
and inviolabilities (hwzlmdt) are great because, according to Muslim jurists,<br />
one should not repel injustice by committing injustice. Since the rights of<br />
innocent people involved, the standards are higher and the moral and policy<br />
concerns of the law are greater. Therefore, Ibn Hazat asserts that the victim<br />
of duress has a primary duty to resist committing acts that violate the rights<br />
of others. A Muslim, according to Ibn Hazm, should resist injustice rather<br />
than succumb and harm others.107 Muslim jurists,including Ibn Hazm, then<br />
add that if a Muslim resists committing murder, rape, or destruction of<br />
property and is injured or killed in the process, he is rewarded by ~od.'<br />
The absence of altruistic behaviour, however, does not mean that<br />
the victim of duress is held liable. In Islamic law in most cases, there are<br />
two separate and independent rulings. There is a religious ruling (pertaining<br />
to the person's liability in the hereafter) and, a secular ruling (pertaining to<br />
the person's criminal liability in this world). The religious xuling is designed<br />
to uphold the ideals of religion. The secular ruling accommodates human<br />
frailties while at the same time trying to uphold certain standards of conduct<br />
inspired by policy and religion.<br />
We shall deal with three categories of criminal adestruction of<br />
property, rape, and murder-+ illustrations of the effect of duress on crim-<br />
inal liabilities in Islamic law. Generally, as mentioned earlier, in the field<br />
of criminal liability, only compelling duress is admitted. Once it is established<br />
that compelling duress was used, a subjective inquiq determines whether<br />
the person was, in fact, coerced. The rejection of non-compelling duress,<br />
in most cases, in this area, is motivated by the principle of proportionality.<br />
A person should not commit a greater harm than that which is threatened.<br />
The less serious case is that pertaining to the destruction of property.<br />
A typical example of this would be when A forces B to burn C's house or,<br />
alternatively, A forces B to burn his own house. As to the religious rules,<br />
there is no liability on the dwessed if the criminal- act does not involve the<br />
rights of others. However, if the rights of others are involved, a person<br />
cannot succumb unless the duress involves compelling duress. Muslim jurists<br />
argued, however, that even non-com~lling duress can act as an excuse if
Islamic Studies, 30:3 (1991) 325<br />
the property damage is not extensive so that the threatened harm is greater<br />
than the committed harm.<br />
The secular ruling as to criminal liability mirrors the religious ruling.<br />
Nevertheless, there is an additional issue of who should compensate the<br />
innocent party (C in our example). On the issue of compensation there is<br />
much disagreement among Muslim jurists. Some jurists10g asserted that if<br />
the duress is compelling then responsibility for compensation should lie with<br />
the mercer and coerced. So to apply this to our example, C (the i~ocent<br />
party) can seek compensation from A (the coercer) or, alternatively, from<br />
B (the coerced). Other juristsl10 argued that if the duress is compelling then<br />
only the mercer, A is liable and not the coerced, B.<br />
If, on the other hand, the duress is not compelling, the majority of<br />
jurists decided that only the victim (B in our example) would be liable to<br />
the innocent party (C in our example). Some jurists, correctly in my opinion,<br />
argued that, in this case, although the victim (B) might not be forgiven for<br />
his behaviour on the final Day of Judgement, liability should still be shared<br />
by A and B, or at least C must be able to get compensation from either A<br />
or B. In other words, Cs options for compensation must not be limited<br />
because of B's frailty."'<br />
Rape is a more serious matter. For one, it involves serious criminal<br />
sanctions, additionally, it is absolutely prohibited. There are several possible<br />
scenarios involving non-consenting intercourse. A could physically attack C<br />
(a female or male) and rape her or him. Alternatively, A (a male or female)<br />
could threaten to kill C (a male or female) if he or she does not have sexual<br />
intercourse with him or her. Or, A could coerce B (a male or female) into<br />
raping C (a female or male).<br />
The first two scenarios involve cases of traditional rape. As a general<br />
rule, the rapist is always liable and raped is never liable. The third scenario<br />
is the one more typically discussed by the law of duress, and the question<br />
is whether B could commit rape in order to save himself from harm.<br />
Most Muslim jurists held that if the duress involves serious bodily<br />
injury or death (but not extensive destruction of property) then B is excused<br />
from all liability, religious or secular. On the other hand, if the duress is<br />
nonampelling, the duressed is liable in this life and the hereafter. Some<br />
jurists, however, held that rape can never be excused, the duressed should<br />
have sacrificed himself rather than commit the grevious harm of rape."2<br />
Finally, we deal with the case of murder. The religious rule, in Islam,<br />
is that murder is never justified. Therefore, no matter what type of duress
326 isiamic Studies, 30:3 (1991)<br />
is brought to bear upon a person she may not commit murder, and if she<br />
does, she will be liable on the Day of judgement. The religious rule affirms<br />
the moral principle that people should not prefer their own lives over others,<br />
and that only God should decide when a person should die.<br />
As to the secular ruling, there are two main schools. The first school<br />
holds that if the duress is compelling, only the coercer is held liable, and<br />
the duressed, for the most part, is excused. The justification propounded<br />
by this school was that by the utilization of compelling duress the coerced<br />
has become the instrument of the coercer, and, therefore, it is as if the<br />
duressed has not acted at all. Nonetheless, this justification cannot be taken<br />
seriously since the proponents of this school insisted that the duressed should<br />
receive some light punishment as well as be responsible for the blood money.<br />
The second school, that includes the majority, and the most plausible in my<br />
view, decided that both the coercer and the coerced should be punished.<br />
The coercer is punished for being the primary motivator of murder, and the<br />
coerced is punished for prefering his life to the life of others.'" The hypothet-<br />
ical example frequently cited by Muslim jurists is that of a boat in danger<br />
of capsizing. In order to save themselves, the passengers may throw over-<br />
board property such as goods and animals. But they may not lighten the<br />
load by throwing human beings overboard even if it means throwing over-<br />
.board a single passenger to save the rest. As a matter of religious and moral<br />
policy, the law should not appear to be granting preference to the life of<br />
some over others."'<br />
The second school's view is justified particularly when a coerced<br />
person kills one or several innocent individuals to save himself. There is no<br />
reason to condone a person who saves himself at the expense of others. The<br />
more di£6cult situation is, as above, when fewer people are killed W save<br />
a larger n ~ber of lives. For example, if A threatens to kill B's three children<br />
unless B kills C. Here the rules of proportionality, and the principle of<br />
committing the lesser evil would not support holding B liable for murder.<br />
But the hypothetical example mentioned above, and the unequivocal language<br />
used by Muslim jurists in not excusing murder under duress suggest<br />
a contrary result. As noted eariier, Islamic law seems to premise its position<br />
on a belief that a human being should not prefer a life or, even a number<br />
of lives, over others. People should not be in the business of drawing preferences<br />
quantitatively or qualitatively between lives. As such, Islamic law does<br />
noi seem concerned with wrximizing social utility by sacrificing the least<br />
number of lives. Rather it upholds a principle founded on religious basis,<br />
as a goal in itself. All life is equally inviolable, and the law should not get<br />
involved in dangerous task of preferential selection.<br />
However, Muslim jurists dealt with the most straightforward situation,<br />
i.e. when A coerces B to murder C, or when A and B faced with starvation
lslamic Studies, 30:3 (1991) 327<br />
kill and consume C. Muslim jurists did not deal with the more difficult<br />
examples that might arise under 'a form of duress or necessity, and that<br />
might pose a serious challenge to the Islamic response to the problem. For<br />
instance, assume Ali and Ibrahim wete climbing a mountain while being<br />
roped together for protection. Ibrahim slips and fells, but Ali grip a moun-<br />
tain edge and Ibrahim dangles down supported only by Ali. Ibrahim is<br />
unconscious, and Ali cannot pull him up. Either Ali cuts the rope, kills<br />
Ibrahim but saves himself, or he will be overcome by exhaustion, and both<br />
Ali and Ibrahim will plunge to their death."' Ali cuts the rope, Ibrahim<br />
dies and Ali is saved.<br />
For another difficult hypothetical position let us assume Ali, an en-<br />
gineer, works on a dam. 'helve men are busily working on a farm below,<br />
Ali suddently notices serious over-floading. Either he opens the dam gates,<br />
drowning the twelve men and saving himself or he does not open the gates<br />
and drowns himself and a town lying behind the dam. There is no time to<br />
warn the twelve farmers below. Ali opens the gates, saves himself and the<br />
town but kills the twelve men.l16 The question in both hypothetical positions<br />
is: Can Ali be held responsible for murder? Ones moral intuition is to say<br />
no. More importantly, Islamic law does not offer a definitive answer."'<br />
One suspects that a serious answer will only emerge when a real case<br />
with similar facts arises in a court applying Islamic law.<br />
Another point of comparison between the Common and Islamic laws<br />
of duress is the area of superior orden. The legal doctrine of "superior<br />
order$' was much debated in the West after the Second World War. Basi-<br />
cally, as a criminal law concept, it is a defence raised by those accused of<br />
obeying illegal d en of superion (for example, a superior orden a soldier<br />
to execute a prisoner of war). The majority opinion in Common law jurispru-<br />
dence is that a superior order is a defence only if the follower reasonably<br />
and honestly believed that it was legal at the time he obeyed it. The Model<br />
Penal Code goes further in holding that members of the armed forces are<br />
insdated from liability in civil courts unless they had actual knowledge that<br />
the superior order was illegal. The fact that a person of o&ary intelligence<br />
would have known that the order was illegal is insu£ficient, acmrding to the<br />
Model Penal Code. Rather, the person must have actual knowledge and<br />
belief that the order was, in fact, illegal.11g<br />
Muslim jurists discussed a similar doctrine usually under the heading<br />
of amr al-sul* (the order of the ruler). The discussion centred on the legal<br />
consequences of an illegal order by a superior to one of his agents. Muslim
328 Islamic Studies, 30:3 (1991)<br />
jurists argued that the agent should be liable for any illegal orders implemented<br />
if the agent knew of their illegality. Some jurists added that the<br />
agent is also liable if he should have known of the illegality of the orders,<br />
either because of the superiors prior illegal course of conduct or becam of<br />
the agent's own presumed level of kn~wledge.~ Therefore, if the superior<br />
is well-known for his injustice, the agent will not be allowed to claim ignorance<br />
of the illegality of the orders. Similarly, if the agent is a knowledgeable<br />
person he cannot be excused.<br />
Both legal systems, quite apart from any question of an overcome<br />
will, reach a policy determination that an agent should not be able to insulate<br />
himself from liability by claiming he was simply following orders. The reasons<br />
for this are quite obvious. If the law decided that the agent should have<br />
known the illegality of the orders issued to him, the agent's subdued state<br />
of mind will not vindicate him as a matter of law. Once again, this de-<br />
monstrates that it is not so much the state of mind of the coerced that<br />
motivates the law of duress as it is the moral and policy standards that the<br />
law hopes to set.<br />
APPRAISAL<br />
The fact that there is a causal co~ection between a person's behaviour<br />
and an act does not necessarily mean that the person is legally responsible<br />
for such an act. There is a significant difference between, what Wertheimer<br />
calls, "ascription of responsibility" and "reasonability simp~iciter".'~'<br />
Beyond factual causation, the responsibility of a person for his actions in<br />
the moral or ethical sense can and should be taken into account. But countervailing<br />
policy reasons or even codlicting moral considerations might interfere<br />
to modify the co~ection between responsibility and liability. Such<br />
is the case, for example, with strict liability or statutory rape legislati~n.'~~<br />
The law, for the most part, does not hold a person liable if he commits<br />
an act under the pressure of wrongful duress. Not every duress, however,<br />
is wrongful, and not every wrongful duress merits a legal vindication. Rather,<br />
the relevant question to pose is: when is it appropriate to relieve a duressed<br />
person from liability for his acts?'"<br />
From the theoretical point of view, there are two approaches to this<br />
question; empirical or mora~ised.'~ One approach is to analyse duress basically<br />
as an empirical fact. Did the threat terrify the victim? Is there a causal<br />
co~ection between the psychological state and the act committed? Could<br />
the victim have done anything other than yield to the pressure exerted upon<br />
her?
Islamic Studies, 30:3 (1991) 329<br />
A different approach is to ask, did the coercer have a right to threaten?<br />
Did the threatened have right to succumb to the pressure? Does the victim<br />
owe any obligations to others including the coercer? A third approach, I<br />
propose, is to combine both inquiries, and to incorporate a policy, based<br />
inquiry. This third approach would ask three essential questions: (1) Did<br />
the duressed in fact feel forced to do what he did? (2) Assuming that prop<br />
ortionality and committing the lesser evil are requirements of fairness, was<br />
what the duressed did fair to society or did the duressed unfairly violate the<br />
rights of others? (3) Are there any policy questions, including moral and<br />
constitutional, that need to be considered? Policy questions, for instance,<br />
could include concerns about due process guarantees against coerced confes-<br />
sions, finality of adoptions, or the necessity of obtaining testimony even if<br />
the witness feels intimidated and threatened.<br />
Islamic law roughly follows this approach, it begins by asking the last<br />
question first. Furthermore, Islamic law phrases the last question in terms<br />
of religious policy. Hence, as a matter of religious policy if the rights of<br />
innocent people, other than the rights of the coerced, are involved, the law<br />
demands a higher level of perseverance and endurance. Consequently, duress<br />
is divided into two types, compelling and non-compelling. The law excuses<br />
the act committed depending on the type of duress inflicted. In civil acts,<br />
in most cases, only the rights of the coerced are involved and, therefore,<br />
both types of duress are recognised. The dichotomy between compelling<br />
and non-compelling duress is also necessitated by the second prong. However<br />
this dichotomy alone cannotachieve proportionality. Although compelling<br />
duress will excuse serious crimes, it will not excuse all serious crimes whatever<br />
the scale.<br />
.Also, as a matter of religious policy, Muslim jurists maintain that<br />
murder is never excused. Additionally, religious policy determines if third<br />
party threats are recognised. As discussed, Ibn Hazm, for example, maintains<br />
that the policy of brotherhood between Muslims necessitates recognising<br />
threats directed at strangers.125 What is religious policy in Islam is informed<br />
by textual sources such as the Qur'h and the Sunnuh (the Traditions of the<br />
Prophet and his ~om~anions).'~ But, as noticed from the diversity of opinions<br />
within Islamic law, that does not preclude the possibility of disagreement<br />
among jurists nor does that necessarily create a well-defined set of religious<br />
policies.<br />
Furthermore, religious policy is not the only type of policy inquiry<br />
permitted in Islamic jurisprudence. Of course, Muslim Jurists did not deal<br />
with modem problems such as whether plea bargains are coerced. Nonethe-<br />
less, policy could be based on customs or social practices as long as these<br />
customs do not violate fundamental religious tenets.ln
330 Islamic Studies, 30:3 (1991)<br />
After passing the threshold question of religious or social policy, the<br />
subjective feelings of the coerced are considered, and, finally, the question<br />
of fairness is addressed. Therefore, the act committed must be the lesser of<br />
two evils as well as proportional and not excessive. Naturally, these limiting<br />
guidelines would play a more significant role in criminal law than in civil<br />
acts. The main virtue of the Islamic approach lies in its inner coherence and<br />
systematic presentation, and in the fact that it has clearly realized that the .<br />
law plays a standard setting role in the field of duress.<br />
The Common law, unlike Islamic law, does not offer a methodolog-<br />
ically systematic response to duress. As noted earlier, the traditional Com-<br />
mon law did pursue a categorical approach. And as seen, Blackstone's jus-<br />
tification for the murder exception is that the sdciety cannot forgive when<br />
the rights of God are involved. But this approach was never elaborated or<br />
developed.la In modern times, as to the question when is it appropriate to<br />
relieve a duressed person from liability for his acts, the Common law gives<br />
various answers. In civil cases, a person is not liable if his will is overcome.<br />
In criminal cases, the majority opinion is that a person is not liable if his<br />
response to duress is reasonable. The basis for the distinction is not de-<br />
veloped. More importantly, it is not clear what does an "overcome will" or<br />
"reasonableness" mean.<br />
A number of scholars have criticised the overborne or overcome will<br />
approach. P.S. Atiyah even recommends that the theory "be consigned to<br />
the 'historical ~cra~hea~".'*~<br />
The difficulty arises from the fact that in the course of life many<br />
decisions, although not the result of duress, are made under so called "no<br />
choice" conditions.lM For example, a person might be forced to accept a<br />
job he dislikes simply because there is no other option, other than starvation.<br />
Or, a person might be forced to take a loan to avoid becoming homeless or<br />
a person might be forced to go to a doctor and pay the medical fee in order<br />
to avoid the risk of death to his sick daughter. In other words, duress, in<br />
the Literal sense, exists in every aspect of life. Simply because humans have<br />
necessities, certain conditions are by their nature coercive.<br />
The duress recognised by law is a legal construct based on vague<br />
notions of fair play, equity and social and moral policy. As Atiyah contends,<br />
duress is only partly a question .of fact, but also a question of law. The<br />
overcome will theory gives the mistaken impression that duress is a question<br />
of psychology.'3' The fact that policy issues permeate the whole legal a p<br />
proach is quite clear. For example, it has been held that a fear of the death<br />
penalty does not render a plea bargain agreement coerced.132 Likewise, a<br />
fear of serious bodily harm does not necessarily excuse prison escapes.'33
lslamic Studies, 30:3 (1991) 33 1<br />
In these, and other fields of legal duress, there are contravening social<br />
problems that require balancing the psychology of the duressed with the<br />
needs of society. Therefore, the legal approach to the subjective feelings of<br />
the coerced depends on the particular area of law under considerati~n.'~~ I<br />
am not arguing that considerations of policy or morality should render a<br />
subjective inquiry entirely irrelevant. But as with most issues, law has to<br />
balance rights and such a balance renders the language of an overcome will<br />
inappropriate. 13'<br />
Nevertheless, from a comparative perspective, the Islamic approach<br />
would not yield very different results from those reached by the Common<br />
law. Both systems would not exclude most types of duress, and both would<br />
focus on the factual question of the coerced's state of mind. Nonetheless,<br />
Islamic law would, more consistently with its premises, be able to admit<br />
that it is balancing the interests of the individual with that of society. 'Ihree<br />
examples might demonstrate the similarities and differences.<br />
Assume that a wife threatens to expose her ex-spouse's extramarital<br />
affair unless he agrees to- certain property concessions. At Common law,<br />
there is some evidence that this threat would not be considered coercive.136<br />
Islamic law would probably consider such a threat coercive as a matter of<br />
religious policy. Unproven accusations of infidelity are a criminal offense,<br />
and the burden for proving infidelity is ins~mountable.'~' m e remaining<br />
question, since the type of duress is recognised, is what impact did such a<br />
threat have on the coerced's mind. This form of threat to reputation would<br />
probably also be recognised in criminal cases, but it is not clear whether it<br />
would be considered compelling or non-ompelling duress.13' Probably, like<br />
threats to property, the classification would depend on the extent of expezted<br />
damage to the coerced.<br />
To take a different scenario, assume that A threatens to destroy B's<br />
supply of cocaine if B, a drug dealer, does not sign a contract on a collateral<br />
matter. Assume further that B's will was, in fact, overcome by A's threat.<br />
Islamic law, can, consistently with its premises, refuse to recognise this type<br />
of threat as legal duress. This is because Islamic law's approach only gets<br />
to the coerced's mind after it decides as a matter of policy that the type of<br />
duress inflicted is actionable. The Common law probably would also not<br />
reoognise this type of duress. But it can only do so by referring to elements<br />
external to the coerced's will. The threat here might be wrongful but that<br />
does not necessarily olean it is recognisable by law.<br />
A final example will further help contrast the approaches. In King<br />
v. Lewis, an African-American farmer made statements before a grand jury<br />
to the effect that the county's sheriff is stealing money and accepting bribes.
332 klamic Studies, 30:3 (1991)<br />
Upon hearing these statements the sheriff vigorously expressed his displeasure.<br />
Fearing harm, the h e r and his brothers went to meet the sheriff.<br />
The sheriff made statements to the effect that the farmer had slandered him,<br />
and, again expressed his anger. 'Ihe sheriff advised the farmer to go meet<br />
the sheriff's attorney to settle the matter. Upon visiting the sheriff's attorney,<br />
the attorney stated that it was good thing the farmer came to see him because<br />
he was getting ready to attach everything the farmer owned for a 3000 dollar<br />
slander suit. After protestations of poverty, the farmer agreed to a 5000<br />
dollar settlement. The farmer later sued claiming that the settlement was<br />
obtained under duress. A jury found in favour of plaintiff, and defendant's<br />
motion for a new trial was denied. 'Ihe Supreme Court of Georgia reversed<br />
finding no evidence of duress. 'Ihe Court stated: "With an appreciation of<br />
the veneration and sometimes fear in which the 'high sherifP is held, especially<br />
by some members of the coloured citizens in this southern country,<br />
we can well understand how plaintiff, when he began to hear rumblings of<br />
the sheriff's wrath could have become frightened and fearful of the comequences<br />
to himself'. Nonetheless, the Court held that even if this fear resulted<br />
in his signing the contract that, "does not measure up to the legal definition<br />
of duress". The duress exerted upon plaintiff, according to the Court, came<br />
from within and not from with0~t.l~~<br />
If a standard to overcome will is accepted, the Court's holding is of<br />
doubtful validity.14' 'Ihe existence of an explicit threat from the sheriff<br />
should be irrelevant. If the plainti£f's will was overcome by the coercive<br />
situation, it would seem there is no reason to deny relief.<br />
As to Islamic law, we have already encountered Sarakhsi's analysis<br />
as to commands or requests by superiors known for their injustice or oppres-<br />
sion.14' Islamic law would deal first with the question of whether the practices<br />
of officials in a society call for recognition for this type of duress. The<br />
practices of the particular official are largely immaterial; the essential fact<br />
is whether the social circumstance call for added protection to a segment of<br />
society or all of society.142 Subsequently, the subjective feelings of plaintiff<br />
would be examined to determine if he was, in fact, coerced. The merit of<br />
this approach is that it would force a court to explicitly state its policy analysis.<br />
'Ihe standard of reasonableness pursued by the Common law in the<br />
criminal context seems to partly solve this problem. In explaining why a<br />
certain behaviour is reasonable, a court necessarily has to articulate the<br />
social and moral standards relied on. But the relevance of "reasonableness"<br />
to the law of duress is not readily apparent. It is not clear why is it important<br />
that a coerced person act reasonably, or even if it is possible. Realistically,<br />
it is entirely unreasonable to expect people panicking under the threat of<br />
an impending serious injury to act reasonably. In all likelihood, if placed
Ishmic Studies, 30:3 (1991) 333<br />
under the threat of imminent danger, a person will panic and react on<br />
impulse.'43 Nevertheless, to say that the reasonableness standard is unrealis-<br />
tic is not necessarily to say it is inappropriate.<br />
The reasonableness standard is too indefinite. What is reasonable for<br />
a particular person will vary with his or her personal characteristi~s.'~~ The<br />
indefinitness does not neoessarily arise from the need to individualize the<br />
inquiry, but because reasonableness essentially involves a hindsight evaluation<br />
of the moral appropriatness of the coerced's response to duress. To say<br />
someone acted reasonably under the circumstances is to say no more than<br />
that society approves or, at least, cannot condemn the coerced's rea~ti0n.l~~<br />
As Fletcher succinctly puts it:<br />
Indeed, the appeal of the reasonable man is precisely that he permits<br />
one, covertly, to make the same judgement that one would make in<br />
openly discussing the defendant's moral responsibility for his conduct.<br />
Yet if that is the case, one wonders why common law judges bother<br />
with the circumvention; why not simply ask whether the accused<br />
ought to have been able to resist the pressure exerted on him?146<br />
- Fletcher, however, argues that the law's approach to duress should<br />
not be based on rules. Rather it should focus on an individualized approach.<br />
However, rules are important not only for predictability, but also for affirm-<br />
ing standards of conduct. Such standards should be based on moral and<br />
social considerations and notions of fairness such as proportionality.<br />
It should be stressed that Islamic law does not ignore the individual's<br />
feelings. After all, there is something inherently moral about considering<br />
the individual feelings of a person in a difficult predicament. But that cannot<br />
be the sole consideration. At the same time, Islamic law does not commit<br />
itself to upholding vague moral standards such as "reasonableness". Con-<br />
sequently, it can limit itself to recognising only certain forms of duress in<br />
proportion to the interest at stake. Importantly, based on moral and social<br />
considerations, rules elucidating standards of conduct can provide an element<br />
of predictability in the law.<br />
But while adopting a methodology capable of providing predictability,<br />
Islamic law lacks in im*rtant respects. Foremost, Islamic law, as it now<br />
exists, speaks in too many voices. Hence many contradictory evaluations<br />
and determinations of the admissible types of duress and relevant standards<br />
of conduct can be found. Some voices, for example, have excused murder<br />
or, at least, held that the defendant will not be punished in this life although<br />
saving themselves at the expense of others.'" Further confusion is created<br />
by the fact that some jurists express rules or exclusions unsupported by any
334 Islamic Studies, 30:3 (1991)<br />
possible religious, moral or social policy. For example, there seems to be<br />
no rational policy behind refusing to admit duress directed at third parties<br />
especially relatives and loved ones.'48<br />
More importantly, Islamic law fails to comprehensively explain the<br />
proper balance between the rights of society, religion and*individual. The<br />
approach of saying some choices are inexcusable as a matter of law is fundamentally<br />
correct, but the essential question is what are the limits. For example,<br />
take a person who, threatened by rape, escapes from prison. Rape,<br />
according to Islamic law, is a grevious bodily injury and, thus, compelling<br />
duress. ~utcbuld society's interest in maintaining order in prisons be equated<br />
with society's interest in the inviolability of life, and, therefore, a threat of<br />
rape would not excuse an escape? In other words, as there is a murder<br />
exception, could there be a prison escape exception? It seems that there is<br />
something very immoral in saying, as a matter of law, people should withstand<br />
rape rather than escape. Probably, most Muslim jurists would insist that<br />
rape is compelling duress, and as long as the crime annitted is proportional<br />
to the threatened harm there is no liability. Hence a threat of rape would<br />
excuse prison escapes. Nonetheless, this response is unsatisfactory because<br />
if one recognises a murder exception, other exceptions could be created.<br />
Fundamentally, while Muslim jurists worked out an appropriate methodology,<br />
they have failed to fully explain the value system or moral theory that<br />
underlies this meth~dology.'~~ This lack of clarity is a product of the medieval<br />
historical period in which Islamic law was formulated, and also a product<br />
of the difficulties Islamic law has encountered in the modem w~rld.'~<br />
Since the Colonial era, and to this day, most Muslim countries have<br />
abandoned Islamic law in favour of Western legal systems, especially the<br />
Civil law system.''' This is unfortunate not only because Islamic law has<br />
been denied the opportunity for development, but also because Islamic law<br />
has been largely removed from the international legal discourse. However,<br />
incomplete legal systems can both inform and reform each other. Implicitly,<br />
comparative studies are indispensable for this task. Frequently, the specific<br />
rules adduced by a legal systems are not as probative and insightful as the<br />
methodology or approach adopted. In this regard, the main contribution of<br />
Islamic law in the field of duress is its methodology.<br />
As Alan Watson has stressed, a comparative approach to the study<br />
of law is not only significant for understanding the relationship of law to<br />
society, but also for the practical value of reform through selective borrowing.'"<br />
Beyond outright legal borrowing, comparative studies could inspire<br />
innovative thinking that transcends the'constraining influence of precedent,<br />
and the mental sets of a particular legal cult~re.''~ The fact that the Islamic
law of duress is in need of development and elaboration does not negate<br />
the validity of its approach. This approach could inspire the Common law<br />
towards a more systematic and coherent approach to duress.<br />
NOTES <strong>AND</strong> REFERENCES<br />
The term "duress", instead of coercion or compulsion, will be used in most pans of this<br />
essay. Coercion in Common law refers to a special defence available to wives who commit<br />
an illegal act in the prcscnce of their husbands. Smith and Hogan, C M Low (5th 4..<br />
1983) p. 209; Bishop, Commmtariu on the C M Lmv, vol. 1 (7th ed., 1882). p. 224.<br />
The justification for this rule as explained by Francis Bacon is that "the law intends [a<br />
woman] to have no will, in regard of the subjection and obedience she owes her husband".<br />
F. Bacon, "A Collection of Some Principal Rules and Maxims of the Common Laws of<br />
England," in Thc Works of Francis Emon, vol. 13, ed. B. Montague, (831). pp. 161; and<br />
see, W. Blackstone, Blacksfone's Commentaries, ed. G. Tucker (18[n), bk. N, chap. 11, p.<br />
27, noting that the rule is at least a thousand years old. But this defence is now becoming<br />
defunct. W. Lafave and A. Scott, Handbook on Criminal Low (1972). pp. 3W81; Perkins.<br />
Criminal Law (2nd cd., 1969). p. 918. But see, Edwards, "Compulsion, Coercion and<br />
Criminal Responsibility," 14 Mod. L. Rev. 297,312-13 (1951), who argues for the retention<br />
of the special defence of coercion. Compulsion seems to apply to situations where one person<br />
physically form a person to commit an act by the application of direct force, for example,<br />
grabbing a person's hand and striking another with it. See H. Fingarette. "Victimization: A<br />
Legalist Analysis of Coercion, Deception, Undue Influence and Excusable Prison Excape",<br />
42 Wash. & Lee L. Rev. 65, 65 n. 1 (1985); 1. Dennis, "Duress, Murder and Criminal<br />
Responsibility," % Low Q. Rev. U)8.u#1 n. 1 (1980). Also see Edwards, Id.. p. 297 for the<br />
differences between the !ern. The Arabic term for duma b -but it will not be used<br />
in this essay for the sake of consistency.<br />
Blackstone, Commenfarics, p. 27. Blackstone reasons that punishment is only appropriate<br />
for the abuse of the will given to people by God. Francis Bscon repeats the similar rhetoric:<br />
"The law chargeth no man with default where the act is compulsory and not voluntaj, and<br />
where there is not a consent and election; and, therefore, if either there be an impossibility<br />
for a man to do otherwise, or so great a perturbation of the judgement and reason as in<br />
presumption-of law man's nature cannot overcome, such necessity cameth a privilege in<br />
itself." F. Bacon, Colkchbn, p. 160.<br />
D. Bradley, "Duress and Arranged Marriages," 46 Mod. L. Rev. 499 (1983); L.N. Brown,<br />
"Shotgun Marriage," 42 Tul. L. Rev. 837 (1%8); Robert Brown, "Dwess and Fraud as<br />
Ground for Annulment of Marriage," 10 Znd. L. J. 471 (1935); H. Abrams, "Systematic<br />
Coercion: Unconstitutional Conditions in the Criminal Law," 72 1. Crim. L. & Criminology<br />
128 (1981); C. Brunk. "The Problem of Voluntariness and Coercion in the Negotiated Plea,"<br />
13 L. & Soc'y Rev. 527 (1979); Gammty v. New Jew, 385, US. 493 (1967); S. Mass, '"The<br />
Dilemma of the Intimidated Witness in Federal Organized Crime Prosecutions: Choosing<br />
Among the Fear of Reprisals, the Contempt Powers of the Court, and the Witness protection<br />
Programme," 50 Fordham L. Rev. 582,590410 (1982); and see, A. Wertheimer, Coercion<br />
(1987) pp. 54144.<br />
See, G. Alexander, "Freedom, Coercion and the Law of Servitudes," 73 Cornell L. Rev.<br />
883 (1988); J. Haag, "Involuntary Servitude: An Eighteenth-Century Concept in Search of<br />
Twentieth-Century Definition," 19 Pac. L.J. 873 (1988).<br />
See for example. Note, "The Effect of Duress on the Iranian Hostage Settlement Agreement,"<br />
14 Vand, J. Tranmnl'l L. Rev., 847 (Fall, 1981); and Comment, "Coercion, Blackmail,<br />
and the Limits of Protected Speech," 131 (1. of PA L. Rev. 1469 (1983).
Islamic Studies, 30:3 (1991)<br />
For a useful discussion see Hale. "Bargaining, Duress and Economic Liberty." 43 Cdum.<br />
L. Rev. 603 (1943); J. Dawson, "Economic Duress: An Essay in Perspective," 45 Mich. L.<br />
Rev. 253. (1947).<br />
See, D. Zimmerman, "Coercive Wage Offers," 10 Phil. and Pub. Aff. 121 (1981): G.<br />
Dworkin, "Compulsion and Moral Concepts," 78, Ethh 227 (1968); also see, discussion in<br />
Wettheimcr. Coacion, pp. 242-266.<br />
fingarctte, "Vition." 6546.<br />
See, "Lafavette Dramatic Reductions Inc. v. Ferank." 305 Mich 193, 9 N. W. 2d 57,65<br />
(1943) relying on Webster's Ncw Intrmotional Dictionary 2d Ed. for a definition of dwess<br />
and coercion; G. Orchard. "The Defence of Compulsion." 9 New Zcoland UniwrsiricJ L.<br />
Rev. 105 (Dec. 1980)<br />
The MejeUe, Tysar Demetridas, Haqqi Effendi, trans. (Lahore: Punjab Educptid Pms.<br />
1%7). The MejeUe was compiled between 1869 and 1876 as a codification of Hanafi Muslim<br />
Civil law. A similar definition is in the Iraqi Civil Codc article 112 (Duress is to compel a<br />
person, without right to do something which he does not consent to) bn Hajar al-'Asqallani,<br />
Fat+ af-Bdrifi Sharh af-BuWlriri (Beirut: Ma'arif, n.d.), vol. 12, p. 311, defines duress as<br />
"forcing someone to do something which he does mt wish to do". See also al-Darayni,<br />
af-Tardifi'l 'Uqrid wa'l-MubddcJirr (Jadah: Dar al-Sh-, 1982). p. 362 (Duress is to force<br />
someone to do an act that he does not wish to do if it had not been for the force applied<br />
against him) and B+r al-'UJBm, 'Uytib al-lrcidoh fi'l Shaniah af-lshniyyah (Beirut: Dar<br />
al-Zahri, 1984) p. 257 (Duress is to force someone to commit an act that he would not have<br />
otherwise committed if it had not been for the fear of harm). Although offering a definition<br />
of actual duress, these jurists are not describing legally recognisabk duress.<br />
Nall v. Commonwealth, 208 Ky 700,271, S.W. 1059 (1925); State v CIay 220 Iowa 1191,264<br />
N.W. 77, 83, (1935); Burns v. State, 89, Ga. 527, 15, S.E. 748 (1892); Baine v. State, 67<br />
Miss 557.7 So. 408 (1890): United States v. Contentc+Pachon, 723. F. 2d. 691,693-W (9th<br />
Cir. 1984).<br />
17 C.J.S. Conrroc~, kc. 168 (1955); 25 Am. Jur. 2d. "Duress and Undue Influence" sec. 1<br />
(1%4); Ruhenstein v. Rubenstein, 20 N.J, 359 120 A. 2d. 11, 14 (1956); State v. Gann, 244<br />
N.W. 2d 746,752 (N.D. 1976); Talmadge v. Robinson, 158 Ohio St. 333,109 N.E. 2d 404,<br />
500 (1952); B v. Boume (1952) 36 Crim. App. R. 125, 128 (1952); R.v. Hudson, [I9711 1<br />
All. E.R. 244, 246-47,<br />
See. Mpdel P d Code (MPC) set: 2.09 (Of6cial Draft. 1962); Lafave and Scott. Handbook<br />
374; State v. Toscano 74 N.J. 421,378 A. 2d 755.765 (1977); Lafavette Dramatic Rodudions<br />
Inc. v. Ferenk, 305 Mich. 193.9 N.W. 2d 57.65 (1943); see, Hochman v. Zigler's Incorpo-<br />
rated, 50 A. 2d. 97.99 (N. J. 1%).<br />
17. C3.S. Confmcfs, sec. 174 United States v. Hasttell, 26 Fed. Cas. 207 (Pa. Cu Ct. 1823);<br />
Calamari and Perrillb, The Low of Confmcrs (1987). p. 337.<br />
Commonwealth v. Refitt, 149 Ky. 300,148, S.W. 48 (1912); Moore v. State, 23 Ala. App.<br />
432, 127 So. 796 (1930); People v. Ricker, 45 111,2d. 562,262. N.E. 2d. 456 (1970); State<br />
v. Toscano, 74 N.J. 421, 378 A. 2d. 755, 761, (1977); 25 Am. Jw. 2d. "Duress." sec. 11;<br />
Pdha d Boyce. Crimind hw (l!J82), p. 1061; BlacLstoac, Cornmcnforics, bk. 1, chap.<br />
1. pp. 1W31; M e. Second Institute 483 (1648).<br />
Bishop, The Criminaf law (1892). vol. 1, p. 207;17C.J.S.,Conbacrr, sec. 179; 25Am. Jur.<br />
2d, "Duress" sec. 22; Edwards, Compulsion, p. 334, but see Bush v. People, 10 colo. 566,<br />
16 Pac. 290 (1888) (recognising a serious injury directed against a brother).<br />
Bums v. State, 89 Ga. 527, 15 S.E. 748 (1892); Baine v. State. 67 Miss. 557, 7 So. 408<br />
(1890); D'Aquino v. United States, 192 F. 2d. 338,358 (9th Cir. 1951); Burton v. State, 51<br />
Tex. Crim. 1%. 101 S.W. 226 (1907); G. Williams. Textbook On Criminul h w, 580(1978);<br />
17 C.J.S. Contmcu, sec. 168.<br />
Damon, Economic Duress, p. 255; L. Newman and L. Weitzer, ''Dwess. Free Will and<br />
the Criminal Law." 30 S. Cd. L. Rev. 313,329-331 (1957); 25 Am. Jw. 2d. "Dunu." sec.<br />
11; State v. Toscano, 74 N.J. 421, 378 A. 2d. 755, 762, (1977).<br />
L. Newman and L. Weitzer. "Duress, Free Will," 315. 'Ibe approach of the common law<br />
was far from unusual. In fact, most anaent legal systems approached the subject with the
Islamic Studies, 30:3 (1991) 337<br />
same conservatism. For example, at Roman law, "'Mchrc (duress) consisted in threats of<br />
pbykal hum, death, emlavement, accusation on a capital charge or of an attack upon the<br />
chastity of the prty so threatened or of a member of his family; threats of merely economic<br />
damage would not suflia." Thomas. Tatbook of Romon law (Amsterdam: North-Holland<br />
Publishing Co., 1976). p. 227. Jwrimimf Digest, however, states that fear of infamy is not<br />
amred by the mthh edict. See Juuinian's Digest, Book 4. Title 2, section 7 Watson<br />
bum. 7%~ Digw of Jy1rinion (Philadelphia: Univ. of Pem Ress, 1985) vol. 1 at p. 114.<br />
Rubenstein v. Rubenstein, 20 N.J. 359,120 A. 2d. 11,15 (1996); Ensign v. Home for Jewish<br />
Aged, 274 S. W. 2d. 5U2 (Mo. App. 1955); Orchard, Defence of compulsion, 11 1; G. Fridman,<br />
"Duress in the Canadian and English Law of Restitution: A Comparison," 11 no. 1 Ddho11sie<br />
L.J. 47. XL52 (Sept. 1987); 17 C.J.S. Controctr, sec 175, p. 959-%0.<br />
See, 17 C.J.S. Contracts, sec. 172, 954-956, sec. 175 at %2 and sec. 177, 966-%7; 25 Am.<br />
Jur. 2d. "Duress," sec. 18. Hochman v. Zigler's Incorporated, 50 A. 2d. 97, 100 (N.J. Ch.<br />
1946); Miller v. Elsele. 168 A. 426,430 (N.J. 1933); Uniform Corrrmcnicrl Code, sec. 2-3U2<br />
(1%2) (Pqmses). "The act or heat upon which a claim of coercion is predicated must<br />
only be wrongful in a moral sense, not necessarily a legal one." Justice Holmes earlier on<br />
held that whether the threat is unlawful or not is not determinative. Sallsbee v. Webber.<br />
171 Maos, 378, 50 N.E. 555 (1898). However, some modem courts continued to state that<br />
it is never duress to threaten to do what one has a legal right to do, for example, Fidelity<br />
& Casuality Co. of N.Y. v. United States, 490 F. 2d. %0, !766 (Ct. CI. 1974). But see,<br />
Rubenstein v. Rubenstein, 20 N.J. 359, 120 A. 2d. 11, 15 (1956).<br />
See, Fingarette, Vidimizcrtin, p. 109, Fridman, Canadian and English law, pp. 51-52 (expressing<br />
the view that British law is unclear on this point); Hale, Bargaining, 613-615; N. Rafferty,<br />
'The Element of Wrongful Resure in A Finding of Duress," 18, no. 3 Alkm L. Rev. 431<br />
(I=); Sutton, "Duress by Threatened Breach of Contract," 20 McGill L.J. 544 (1974);<br />
Dalzell, "Duress by Economic Pressure," 20 N.C.L. Rev. 341 (1942); J. Dawson, "Duress<br />
Through Civil Litigation". 45 Mich. L. Rev. 571 (1947).<br />
Wer(beimervthst m dl - m a twopronedysisisat work. One, what the<br />
lntbor alb a "cboia pmq" ia which tbe coart iaqr6ra rhetber the coenrr's "jmqod<br />
rruta a cboia aihution for [the merad] such thst [the d] has no alternative but to<br />
do I". lko, a "pupad prone" m which the mutt inquirts "whether it i wrong for [the<br />
anrar] to make such a prcqxmal to [the menad]". Wertheimer argues thst courts adopt a<br />
~.admonlrppo;rhm~bdh~.Butwhikthepmposslprmg:'does<br />
matdtheaat"meivil~,thecboiapronemmmdm~tiveincriminalcsrres.<br />
(Wertheimer. Canion, pp. 17273; 274-75). Only a selective reading d the came law csn<br />
support thir adysk. But even if this is, m fact. the underlying philosophical reasoning<br />
behind the cauq this h not the law. The case law does not reflect such a coherent and<br />
It is difficult to make a uniform presentation of Islamic law since, not unlike the Common<br />
law, there is no single authoritative source of law. Islamic law is represented in the writings<br />
of several medieval Muslim jurists. mere are five major Sunni schools of law, ShWi, Hanafi,<br />
MPi, Wbali and w, as well as, at least, two Shi'ite schools. When I use the term<br />
:slatkc law, I mean the opinion of the majority of the jurists on a particular point. If there<br />
is no majority view. I point that out in the endnotes. Additionally, in prrwnting Islamic law<br />
I have sometimes used the consensus of modem Muslim jurists studying the subject.<br />
This division is often ascribed only to the Hanaii school of thought in Islamic law. See M.<br />
Hamid, "Duress and its Effect on Contracts in Islamic law," Sudon L.J. and Reports 334.<br />
334-335 (1971); A. El-Hasan, "The Doctrine of Duress (ikd) in Sharia, Sudan and English<br />
Law," I. Arab. L. Q. 231, 231 (1986). However, this is largely inaccurate. Other Islamic<br />
schools did have a general conaption of two types of duressone so compelling as to negate<br />
liability in grave offenses and the other not so compelling. The Shafi'i jurists used the term<br />
ruinous duress (ikr& dlik) while the MBliki jurists used the term total duress (ikrcih<br />
mu!laq) for what the I+I%S called ikr& m4i. See al-Jamal. Hlirhiyat al-JaMI (Cairo:<br />
al-Wktabah al-Tij*yyah al-Kubra, n.d.), vol. 5, p. 9; and al-Dusuqi. Hlirhiyaf d-Dusuqi
Islamic Studies, 30:3 (1991)<br />
'ala'l-Sharh al-Kabir(n.p.: Dar ih~S al-kit&b .I-'ArPbi, n.d.), vd. 2 at W, h see F. Abu<br />
Myy&, d - M ji'l Swah d-lsbniyyah (al-Mdh: PI-Rubid. 1982). p. 41. a d M.A.<br />
AWur RPhim, lk Phciph of M- Jvrispnrdarae (198I). pp. 232-37.<br />
Lbn al-HmnHm. Sh@ Fe d-podt. (Cairo: al-Mntba'ab al-AmmAmiriyyeh, H 1317). d. 7,<br />
pp. 293-294; Ibn 'Abidin, Radd al-Mukhtrir (Cairo, al-Halabi, 1%6), vol. 6, pp. 128129;<br />
al-KasPni, Badci'i d-Sanri'i' fi Tmib d-Sharci'i' (Beirut: Dar al-Kitab al-Arab, 1974). vol.<br />
7, p. 175; al-Sarakhsi, d-Mabsri! (Cairo: al-Haji Muhammad Effendi, n.d.), vol. 23, p. 40.<br />
'Zhis distinction between consent and choice is particularly Hanafi. Other schools of thought,<br />
though recognising that there are two types of duress, did not distinguish between consent<br />
and choice.<br />
Al-KaQni, Ba&i', p. 182.<br />
Al-KasW, &rdm", p. 175. The Mejdle codifies this rule in Seetion 949 which states: "[Duress]<br />
is of two sorts. The first sort is compelling duress. It leads to destruction of life, or loss of<br />
a lib or one of them. It is the compulsion. which is by a hard blow. The second sort is<br />
noncompelling duress. This causes only grief and pain. It is compulsion which is by things<br />
like a blow or imprisonment." 'Zhe Iraqi Civil Coclr, Article 112, similarly provides: "And<br />
duress is considered compelling if it poses a serious and imminent threat of loss of life or<br />
limb or severe beating or severe harm or great destruction of property and it is not compelling<br />
if it is a threat of imprisonment or beating, and this varies a&ording to the condition of<br />
people." Also see. discussion in Abdur Rahim. Principles, pp. 233-34.<br />
For example, albarakhsi, d-Mhri!, pp. 49-50, and Ibn Nujaym, d-Ashbdh wa'l Nazci'ir,<br />
printed with Hamawi as commentator in Ghnmf 'Vyrin 01-Be't (Karachi: Idkat al-Qur'8n.<br />
1988). vol. 3, p. 203.<br />
Ibn Humiim. Sharh fat!^ d-Qodir. p. 294.<br />
Ibn 'Abidin, Rae., p. 133.<br />
See, al-Ramli, Nwah d-M+tcil (Cairo: Musfafi al-Halabi 1%7), vol. 6, p. 447; alJamal,<br />
Hbhiyah, vol. 4, p. 325; al-Dardir, d-Sharh d-Soqhir (Cairo: Dar al Ma'arif, 1972). vol.<br />
2, pp. 546-547; al-Khd-, d-Shu+ d+aghir 'dd MI&- Sayyid K M (Cairo: Matba'ah<br />
al-Kubra, H. 1317). vol. 4, p. 34. al-Dusfiqi, Hashiyard-Dq vol. 2, p. 368: Ibn Qudimah,<br />
d-Mughni (Cairo: Maktabat al-Qahirah. 1968). vol. 7. p. 384, Ibn Muflii, al-Maqdisi, al-<br />
Mubdi'fiSharh d-Mughni(Damascus: al-Maktab al-Islami, 1977), vol. 7, p. 2%; al-Buhuti,<br />
K~(hafd-Qina' 'an M~mdlg~'(Riyad: Maktabat al-Nasral-Hadithah, n.d.),vol. 5. p. 236.<br />
Al-Ramli, Nilrciyah, vol. 6, p. 447; al-Jamal, Huiyah, vd. 4, p. 325; al-Dardir, d-Saghir.<br />
vol. 4, p. 35; Lbn Qudhah, d-Mughni, vol. 7, p. 384, andsee, ~ bii ~a6yyah. d-lknih, p. 44.<br />
See Lbn m, d-Mu@fd (Cairo: Dar al-Turath, n.d.), vd. 8, p. 330, d-Jamal, Hdshiyah.<br />
vol. 4, p. 325. Zbn Hazm, for example, after citing a @&% stating that Muslims are.brothers,<br />
argues that it follows that they should proteet one another. Si MusIims are joined by<br />
mutual empathy, hanu to a third party. even a stranger, will cause enough grief to constitute<br />
duress.<br />
A-M, N W , d. 6, p. 447; al-mi, H w d-D- vol. 2. pp. 368369,<br />
-, d-Mbbsuf, d. 5, p. 236, Lbn Qudimnh, d-M- vol. 7, p. 384, Lbn m,<br />
d-MUM', vol. 7, p. 255. Also see PI-Damyni, d-Td, pp. 3Z-375; Blgr al-Ulh, 'ma,<br />
pp. 281-283; Dagbi. Mabda' d-R@fl 'VqJd. (Beirut: Dar al-Basha'er al--yah, 1985)<br />
vd. 1. p. 4W, Ah S&yy&. d-lbnh, pp. 53-SI.<br />
Al-Knan-. Bad&ii, p. 176; Daghi. M W d-Reidcr pp. 428429.<br />
AISaRLhsi, d-MahM!, p. 49, alao see p. 50. Also see al-Kashi. M for the same idea.<br />
Id; h see Lbn 'Abidin (Commentator), Rdd, d. 6, p. 133.<br />
Al&dhai, d-Mabslit, pp. 52 and 66. The MejeUc codifies this ruk in acction 1004, which<br />
states:<br />
It is a condition that the pem compelled should be afraid of the taking place of<br />
the thing, which causes his fear, that is to say, that he should have formed a<br />
preponderant opinion in his own mind,.that the person using compulsion, would<br />
do the tbing threatened if he did not do the thing k was compelled to do.<br />
'he EgypPirn Civil Codc, Artide 127, and the Imqi Civil Codc, Artide 113. have
Islamic Studies, 30:3 (1991) 339<br />
See. al-Ramli, Nih@ah, vol. 6, p. 447; al-Jamal. Hbrhiyah, vol. 4, p. 325; al-Buhuti,<br />
M-hid KhM, ~ l 5, . p. 236, lbn QudBmah, MU@, VOI. 7, p. U)4, lbn Mm, d-~uhk, vd. 7, p. 256 (duma varies with thc conditions of people); al-Kh- (al-'Adawi,<br />
commnt.tor) MuUirafm Sayyid Khdil, vol. 4, p. 34, al-M, d+agW, vol. 2, p. 546,<br />
al-. Hdpkiya d-Lhdqi vol. 2, p. 368, and a& ibn al-Humh (ad-Babarti, commenmar).<br />
Shm?, d-F+ d-Qadir, p. 295, for the same approach m thc Hanafi school. Also a&<br />
E& d--, 'Urn, p. 267; and al-Dar~pi, d - T d , pp. 367-368.<br />
This dhgree~nt has been noted by the commentator to Ibn 'AbiQn's work, Radd, vol.<br />
6, p. 129.<br />
lEia h pdomiaatly thc opinion of some Hanrfi Jurists. The Mjdlc relyiug on this opinion<br />
date in Article 1005:<br />
If the person ampelled, do [sic) what he is compelled to do, m thc presence of<br />
the person, who u~ts compubion, or his agent, the compulsion is wnsided.<br />
But, if he do [sic] it m the absence of the person who u~ts c~mpukion, and m the<br />
absence of his agent, the compulsion h not dded, by reason of his ha*<br />
acted with willing auhissh afier thc removal of thc comprlsion.<br />
Some HanbaG jurists went even further in requiring that some physical harm would befall<br />
the victim before he submits to pressure; therefore, a mere threat unaccompanied by some<br />
actual physical harm will not suiia. Ibn M*, d-Mubdr', vol. 7, p. 256; and Ibn Qudhah,<br />
al-Mughni, vol. 7, p. 383. But see al-Buhuti, Kmhdf. vol. 5,236, from the HanbaG school,<br />
for a contrary opinion.<br />
AI-Jamal. Hddiyah, vol. 4, p. 323; and al-Ramli. NWyah, vol. 4, p. 447. Also see lbn<br />
al-. S w Fu@ d-(?ad&, p. 293, fmm thc +di school for thc same appmach.<br />
Al-Khurashi, M-ar Sayyid Khalil, vol. 4, p. 34; and al-Dusiiqi, Hahiyal al-D~~~liqi,<br />
wl. 2, p. 368.<br />
Al-Sarakhsi, al-Mabse, pp. 76-77. AISaraLhsi, later argues, somewhat i~lconsistantly. that<br />
if a person 01 authority orders another to grab people's money, the ordered person cannot<br />
comply if he is far away fmm the oppressor. Thea al-- adds that those who assist<br />
opprcssor~ always claim that they were compelled to do so but m reality they had no excuse<br />
unless the opressor was standing over them at all times. Otherwise, they really never know<br />
whether the oppressor will in fact s u d in hurting them and, therefore, they cannot assist<br />
oppressors. See al-Sarakhsi, al-Mobslit, pp. 77-78. me only way we can read the two abovedrscussed<br />
passages consistently is to rend al-SarM as saying that if a person has an opporhlaity<br />
to escspe he will not be excused unless he is cornered mto compliance. Also see Ibn<br />
'Abidin, R d , p. 132; and lbn al-Nujaym, d-Ashbrih. vol. 3, p. 203; Ibn Qayyim al-Jawziyyah,<br />
A ' h d-Muqa'in (Beirut: Dar al-Jtel, n.d.) vol. 4, pp. 53-54.<br />
See. D&-. M M d-Re, pp. 427; Blgr al-'UItim 'Uyyrsb, p. 269; al-Daray-, d-Tmdii<br />
pp. 371-372; al-Sanhm-. Ma+ d-Haqq fi? Fqh d-I- (Beirut: al-Mujama al-by,<br />
n.d.), vol. 2. pp. 1W52.<br />
Al-Saralrhsi, al-Mobsri!, p. 135; Ibn Qud%mah, d-Mughni, vol. 7, p. 384; al-Kashi, Ba&ii',<br />
p. 181.<br />
Atcomm~ah."[t]he~to~thedcgreeofcDmpulsionmtcrmsofgravity~f<br />
thc o&aa ~ lI- r overlooked". (Pertins and Boyce, Criminal Lmv, p. 1061). Regde=<br />
of uime, thc test of that ef death or serious personal miury, was thc same. State v. Toscano<br />
J18A. 2d. at 762; R.v. Hudson & Tavloc. [I9711 2 Q.B. 202. Whatever the offense, the<br />
threat of a serious physical mjwy is required. (Orchard, '"I'k Defence of Compulgion,"<br />
111; Ncumau & Wdkcr. "Duress," p. 330). However, an 1887 a&ms to hart reeogrised<br />
& of- dcgree of pmportionelity etating: "It m~gt be obvious to thc dctiberate<br />
judlFment of cvq reflecting mind that much less freedom of will is requisite to render a<br />
pcm responrdbk for wimc thau to bind him by a sale or other contrsct. To overcome the<br />
will, so far rr to render it iacapable of contrecting a avil obligation, is a mere trifle compared<br />
with~ittoth.tdcgecofal.veyand~~bmirsionwbichwillexamp~punishmcnt."<br />
McCoy v. State. 78 Ga. 490, 3 S.E. 768. 769 (1887). In McCoy. a judge ch- thc jury<br />
thrt,"Ihuwaanmintsmthabofbodilyorothcrhsrm,orOthermtans.. .amo~ntillgto<br />
or tending to ooera thc will of another. . . ." The Supreme Court of Georgia reversed
Islamic Studies, 30:3 (1991)<br />
stating that tbL imtrvction mi@t be proper in civil cmes. But the criau of perjury. Iike<br />
other felonies, reqe a threat to lik or limb. Some Watgn aebob have mpd for a<br />
rule ofpqmhdky. See. Mve & Sam, Handboo&, pp. 37Em. M. !hmaj&. "Dursu<br />
d Murder in the ClnnmonllraW CrimiaPl JAW." 30 1w. prd Canp L. Q. tXO,678 (1981).<br />
See,Ehvudr"."pppp.302md308.<br />
AtCammoalaw.~ofcvilMe~y~inthelawof"ntarity"a<br />
opposed to "duress". In neagity the force of mcrcion is natural face whik in duress the<br />
compelling fora isa human being. Modern Ameriaa c . have tended to blur the dirtinetion<br />
between durar d nearity. See United Stata v. Balky. 444 U.S. 394. 410 (1980). but<br />
ccrtaiu ampa haw praaved the dirtinction. United State v. Conteato-Padnm. 723 E 2d.<br />
691,695 (9h Q. 1981). Islamic law das not dbthpbh bmeen the two doetriaer. On<br />
the"chdaofWMe.=Hi~."~.saDefeaain~Csres."4Va<br />
L. Rev. 519 (1917) Lafaw. CriminolIm, (1986) at pp. 433 and 441-443. Abo ace, the ~~IUOUC<br />
cane of Qucen v. Dudley & Stephens (1884) 14 Q.B.D. 273 and its dkmkm in Smith &<br />
Hopn. Criminal Low, pp. 201-209.<br />
AlSaraLM. dSiyor d-Kabi? (Hyderabad: Da'int al-Ma'arif), Irt ed. rol. 4, p. 222.<br />
Abo scc Ibn m, d-MuMld, vol. 8, p. 330.<br />
There are exaptions as will be seen in the next section.<br />
Al-Dardi. d-Saghir, vol. 2. p. 548.<br />
Ai-K&ni. Badrk". p. 181, and see al-Sarakhsi. She@ d-Siyar, pp. 131136 for the argument<br />
that even though the victim makes the wrong choice by commiting murder, the victim should<br />
not be punished if he believed in good faith that pronouncing apostasy was i#*cusable<br />
under all circumstances. It seem that al-Sarakhsi is arguing that this is a common mistake<br />
peopk make and, therefore, as a matter of policy they should be excused.<br />
Al-Sarakhsi, d-Mabsai!, p. 141 and see p. 135.<br />
Ibn 'Abibin (Commentator). Rudd, p. 140 and al-Sarakhsi, d-Mobsti!. 137. See more examples<br />
in Abdur Rahim. Ptinciplcr. p. 233.<br />
I am greatly simplifying the &&rent categorizdtion efforts by Muslim juriats. But for the<br />
purpores of this essay there is no need to go into the details. See al-Sa&h& d-Mabsti!,<br />
pp. 39-42; al-KasiM, Bodcii' p. 176; and Ibn Nujap, d-Ashbtih, vol. 3, p. 2(n. Also see,<br />
Abdur Rahim, Principles, p. 234 and 356. The Mcj& codified these categorizations in<br />
Section 1007, which states:<br />
[Duress], which is canpelling, like as it is considered in tmudom by word as<br />
above said so also it is considered in tmmactions by deed. But [durese], which is<br />
[noncompellig], is considered only in verbal tmnsa&m, in transactions by deed<br />
it is not considered.<br />
Therefore, if someone says to another, "Destroy the property of such a one. if you<br />
don't I will kill you or cut off one of your limbs", and the person, against whom<br />
the anupubion is used, dsstroys it, the compulsion is taken into coarideration,<br />
liability &I be enforad agaiuat the person u& tbe compllaion &me.<br />
-But if the says, [sic] "Destroy the pmperty of such a one, if you do not, I will strike<br />
or imprison yw," if that peMn does not destroy it, rhc compulsion is not taken<br />
into consideration, it is nwesq for the person, who destroys the thing, alone to<br />
make compensation.<br />
See abo. Ibn Hum, d-Mu+& vol. 8, p. 330.<br />
See Ibn 'Abid~~, ilPldd, p. 129: Ibn Nujap, d - a d. 3, p. p(; d-Dudir, d-+z@t,<br />
d. 2, pp. 367 d 370. For a far mom complu theoretial catc~tion from a ShWi<br />
SCC, d-Tdug, (d. 2, p. 197) dLwrcd d quoted by alS.nb~& MnpddL, 4. 2,<br />
pp. 195-196.<br />
Bacon. Cdlecnbn, p. 161. Although the dsrsic rule at common law was that no amount of<br />
durar would jurtay .cts of treason tbi abrolutist view was never followed to the latter, me.<br />
Edwards, ~vlrion, p. 298, Smitb and Hogan, Crlminol Low, p. 212 d Perldar and<br />
Bop, Crlminol LAV, p. 503.<br />
Bk+ckstone. Cmma&rh, bk., IV, chap. 11, p. 30. Blackstone displays a logic amazingly<br />
similar to Islamic analysis. Blackstone states that duress per minar excuses many crimes and
Islamic Studies, 30:3 (1991) 341<br />
mLdcmeanoro "at least before the humsn tribunal". Hem, implying that sccularvindicaoion<br />
does not neceararily wan divine hgivewr. This rearoning has been fully expounded by<br />
Mudim jurists.<br />
See, al-Sm-. Shu+ dSiy d-Kabir, vol. 3, pp. 218-38, on treason. Al&rakk argues<br />
that if a Muslim is threatened by compelline duress to manufacture maponary fDr the enemy.<br />
he may do so only if in the preponderance of his thought such weapons will not cause the<br />
defeat of Muslim armies, and likewise if he is threatened by death to reveal the road to an<br />
WIIllic fort, he may do so ody if in the prepondtrana of his thought the enemy will not<br />
be able to conquer the fort. But if the enemy threatens him to find out where a partiarlar<br />
person is, and he believes that the enemy wishes to rape or Lill such a person, the coerced<br />
should sacrifia himself.<br />
The coed is not entirely innoant because he ads as the instrument or agent of the<br />
eoerar. Sec, Wertheimer, Coercion, pp. S281. Werthcimcr argues that murk adopt a<br />
higher stadud of duress when inooant parties are involved. This, aamrding to Werthcimer,<br />
partly accounts for the higher standard in aiminal cases. Id. p. 162. This might be correct<br />
asamattcrof commonsense but hisis not how courts justify the different standardsadopted.<br />
Cdamari aad PerriUo. Lmv of Confroc~~, p. 397; 17 C.J.S.. Conbucts, aec. 175; 25 Am. Jur.<br />
2d, "Dunsr." sec. 512; United States v. Bethlehem. 315 U.S. 289. m301 (la); Eclrstein<br />
v. Eckstcm, 38 Md. App. 506,379 A. 2d. 757 (Ct. Spec. App., 1978); Slade v. Slade 310,<br />
111. App. n:33 N.E. 2d. 951 (1941); Kaolan V. K;aoIan. 25 111. 2d. 181. 186, 182. N.E.<br />
2d. 706.709 (1%2); R~t(llUMlf Second, Contrrcb, a. 175 Comment (1979); Alma S.S.<br />
Co. v. Vela, 285 F. Supp. 123,125 (D.P.R. 1%8), (duress is the pres~urc of circumstances<br />
which aornpeU the will to yield).<br />
Ratntacn, Conbacbi aec. 492 (1932). Comment uplainr; "The same threats may cause<br />
feu in one person and not in another. Tbe test of what act or threat produces the required<br />
degree of fear is not objective. The threat need not be such as would put a brave man, or<br />
even a man of ordinary firmness, in fear. Tbe question is rather, did it put one entering into<br />
the transastion in such fear as to preclude the exercise by him of free will and judgement.<br />
Age, sa, capacity, relation of the parties. attendant circumstances, muat all be conridered.<br />
Pmom of a wed or cowardly nature are the very oaes that need protation. Tbe co~lr;leaouo<br />
can usually protect thcmoelves; timid persons are generally the ones iatluend by threats,<br />
and thc unaaupulou~ are not allowed to impme upon them because they are so unforhmately<br />
conrtituted."<br />
Calamari aad Pcrrillo. Law of ConfrocLI, P. 337, Ru-, Contracts, aec. 492, comment<br />
(b) (1932); Sec. Milla v. Eisck. 168 A. 426.432 (N.J. 1933) indicating that since the plaintiff<br />
acted reasonably he can daim durcy; sad Wm v. Midtown Motors, 231 ffi. 46.42 N.W.<br />
2d 404 (1950) defendant threatened to firt plaintiff unless he signed a release of an aaion<br />
againat a fDnier employer. In granting relief the court ituisted that the test is entirely<br />
subjective. Tbe type of threat or the response of a penon of ordinary firmness are irrelevant<br />
ddrrpdiom. However the decision of the court primarily relied on the wrongfulaess of<br />
thc thnat. aad on the fact that plaintiff had no other rearonable alternative. Id. 407-406.<br />
Econolaie duma ohea involves a threat to cause a victim financial injury unless the victim<br />
agreed to certain terms. This could involve a threat to deny esential goods or services or a<br />
threat to breach a contract.<br />
Aurtia Itmumat Inc. v. Lod Corp., 29 N.Y. 2d. 124,324 N.Y.S. 2d. 22.272 N.E. 2d.<br />
533 (1971); Leeper v. ~eltraml, 53 a. 2d. 195.1 ~al. ~ptr 12.347 p. 2d 12 (1959); young<br />
v. Hoaghd, 212 Cal. 426,298 P. 9% (1931); London Homes Inc. v. Korn 234 Cal. App.<br />
2d. 333, 44 Cal. rptr 262 (1965); See also Calamari and Perillo, Law of Confmcts. p. 337;<br />
Fridman, CrmodicM ad English Law, pp. 54-55; Hale, "Bargaining," pp. 2&4-286, Dawson,<br />
haa l#uough Civil Uigrrtion, op. at.. pp. 695m. Daizeil, "Duress by Ecooomic Prrssure."<br />
pp. 367-382; F v . Viaimircraion, pp. 86-91. In economic duma caas the inquiry<br />
k often p h d in terms of whether the threat is wmngful. LaBcad~ v. Beatrice Foods Co.,<br />
461 E Supp. 152,1567 (S.D. N.Y. 1978); Louiwik Tie Ins. Co. v. Surety Title and Guar<br />
Co. 60 Cal. App. 3d 781,805,132 Cal. rptr. 63.80 (1976). A court may look to the moral
Islamic Studies, 30:3 (1991)<br />
obligations of the coercer and whether his threat is made for outrageous purposes. Hochmen<br />
v. Zigler, 50 A. 2d. 97,100 (N.J. Ch. 1946) or to whether the threat is against public policy.<br />
shaeta Water Co. v. Croke, 276 p. 2d. 88.91. (GI. dist. a. App. 19YI). (threats of criminal<br />
su&red the risk of heparable injury. Tri-State Roofins Company of Union Town v. Simon,<br />
187 pa. super 17.142. A. 2d. 333 (1958). Needkss to say. as a pwerical matter even rightful<br />
(as opposed to wrongful) threats an ovenmne a will.<br />
The RatoPnncnf Second rrfusbd to incorporate the "omcome will" language saying that it<br />
is too vague and hpradbble. Ramemmt Second, '"tracts," see. 175, Comment (b).<br />
Ibid., Comment (c).<br />
fidelity & Causality Co. of New York v. United States, 490 F. 2d. %0,966 (Ct. C1.1974).<br />
(mere strcss of ~~ circumstances is not duress). Despite similar factual situations, cwrts<br />
will reach different conclusions depending on how the court evaluates the equities and policies<br />
at stake. For example, see, Meier v. Nightingale. 46 A. 2d. 785 (N.J. 1946). defendant<br />
refused to return plainWs car unless he pays an amount greater than what plaintiff believed<br />
they agreed upon. Plaintiff paid and used daiming duress of goods. The wurt denied relief<br />
to plaintiff asserting that plaintiff had other, especially statutory, alternatives. But see,<br />
Leeper v. Beltrami, 53 Cal. 2d. 195,347 p. 2d. 12.1 cal. Rptr. 12 (1959), defendant threatened<br />
to foredose on plaintiff's house unless she made a certain payment. Plaintiff paid and then<br />
claimed duress. Court held fo~ plaintiff relying on equity and policy consider;ltions. It is not<br />
reasonable, according to the wurt to e w people to lose their homes as they await the<br />
result of litigation. Aka see, Tri-State Roofing Co. v. Simon, 187 Pa. Super 17,142 A. 2d.<br />
333 (1%5), (wrongful threat to breach contract is not duress because there is no irreparable<br />
injury). Austin Instrumental v. Loral Corp. 29 N.Y. 2d. 124 (1971), (wrongful threat to<br />
breach a government contract is duress). Hochman v. Zigler's Incorp., 50 A. 2d. 97. 100<br />
(N.J. Ch. 1946), (when landlord's threat of eviction is made for outrageous purposes and<br />
the tenant had no adequate relief, duress is found); Laaeach v. Beatria Foods Co. F. Supp.<br />
152 (1978), (summaryummaryjudgment for defendant appropriate when plaintiff claimed that-he<br />
was intimidated by defendant's vast economic power into releasing his interest in a Nigerian<br />
company).<br />
168 A. 426,432 (N.J. 1933).<br />
RarutmMf, Coutracts, 492 Comment (c); Calamari and Perillo, Lmw of Contmcts, 4436, 1<br />
Perkins and Boyce, Criminal Lmw, p. 1064; Clark and Marshall, A Tmatise on the Law of I<br />
Crimes (7th ed.), p. 366.<br />
Calmari and Pedo, Lmw of Contnacts, pp. 343-344; 17 C.J.S. "Conhacts," p. %3; 25 Am<br />
Jur. 2d. "Dunns," pp. 358-359.<br />
Kronmover v. Vuck, 258 III, 586.101 N.E. 935 (1913); (only recognising a close relaltive):<br />
Saxon v. Saxon (1976) 4, W.W.R. 300, 305 (B.C.S.C.) (only rrcognising a close relative),<br />
25 Am. Jur. 2d. "Dwess," sec. 22 (noting that courts only rewgnise close relative); 17 C.J.S<br />
"contractr." sec. 179 (noting that there is disagreement between the courts); Restatement<br />
'<br />
First of Contracts only recognised threats to near relatives (sec. 499, but Rc~fatemrnt Second<br />
of Contracts provides that the threat does not even have to be directed at a relative as long /<br />
as the third party duress induces the victim to manifest his assent. Sec. 176 Comment (b). j<br />
See, Corbin, On Comm (one volume edition, 1952). pp. 10-14. In modem legal tenninol- :<br />
ogy, contracts that might lack legal effect are either voidable, void or unenforceable. In the<br />
case of voidable contracts, a party has the power to either validate or avoid the contract. I<br />
In other words, the legal effect of the contract is a-ested until released by the wronged<br />
party. A void contract has no legal effect from the moment of its inaption. It is negatory i<br />
!<br />
and ineffective and cannot be cured by a subsequent validation. An unenforceable contract I<br />
'<br />
is a contract enjoying complete legal validity, however, it is unenforceable because of external<br />
legal factors like a statute of Limitations or the statute of frauds. i<br />
See. Ra- Second, article 174 and 175. See; Rcstclrmuru, C h ~ utides , 4% and<br />
495; and Calamari and Perrillo, h w of Contmcn, pp. 349-350. In Roman law, contracts I ,<br />
obtained by duress were not void per se. Nonetheless, the victim of duress (metll~) could<br />
i
Islamic Studies, 30:3 (1991) 343<br />
Oppose the @I-tation of the contract and render it ineffective. Additionally, the vi&,,<br />
dd bring a delis (ac&n q d metus UW) agaiost the oppressor and be entitled to a<br />
penalt)Lsuch action had to be brought witbin one year from the date of the illegal<br />
See- Ihom=, Tex&ok of Itom Low (Amsterdam: North-Holland Publishing<br />
Co., 1976). pP 228 and 373; Md lber, Rorrurn Private Low (Durban: Butterworth, 1%5),<br />
P. 49. Also see Kes~el, ~ ~ ~ ~ R c I ACrhinak, D J u Beinhart s and Warmelo trans. (Johannaberg:<br />
Juts and Co. Ltd. 1973). VOI. 1, p. 389 and vol. 2. p. 907.<br />
See, B e al-'Uliun, 'Uyyrib, p. 306.<br />
See, Me#&, Artides 26-30. Artide 26 provides: "A private injury is tdmted in order to<br />
ward off a public injury." Also see, al-Qarafi, d-Fvnip, vd. IV (Beirut: 'dam al-Kutub,<br />
n.d.), pp. &9; al-Gh-, al-Musmsjd, vol. I (Cairo: al-Matba'a al-Amiriyah, p. 322) pp.<br />
S297; Ibn 'AM alSalam, Qawa'id al-Ahhim, vol. I (Beirut: Dar al-Ji, 1980). pp. 54-62<br />
and 93-94. me work cited are on the general principles of Idamic law. me example given<br />
by these jurists comes from criminal law but the example only demonstrates the general<br />
principle.<br />
This factual scenario is taken from Wertheimer, Coenion, p. 275. Wertheimer, however.<br />
uses this scenario in the amtext of addressing diierent issues.<br />
Wertheimer seems to argue that A should pay the fees and sue to recover later. 1 am not<br />
sure that even under the Common law system this conclusion is correct.<br />
'2ht Ra-w Suond is vague becaw of the imprecision inherent in the reasonableness<br />
standard. Idamic law is vap bmw the value system on which it relies is unclear.<br />
lbn Nujaym, d-Ashbcih, vol. 3, p. 203.<br />
The only disagreement from within the Hanafi ranks came from war who argued that the<br />
contract is not corrupt, rather, it is conditioned on the victim's s"bsequent approval. If the<br />
victim never approves it then the contract is unenforceable. I am not sure, however, that<br />
there is a real difference in contents between Far's arguments and his other Hanafi col-<br />
Som of the Whit verses state, "Let there be no ampubion in religion; T ~th stands<br />
out dcar from em." (11:256) "Anyone who, after accepting faith in God, uttaymbelief,<br />
except rmda complbioo. . . On them is wrath from God." (16:106) A h sec (24:33) and<br />
(4:19). 'Lbe Propha is reported to have Mid, "My nation has been absolved [from liability]<br />
regardiug [* invohg] mistakes, forgcthrlness and what they have been compelled to<br />
do." See, Ibn H-, al-Mu!uaUii, wl. 8, p. 334.<br />
Ibn +mu, aCM- vol. 9. p. 21.<br />
See, an extensive discussion of this issue in al-Sarakhsi, d-She al-Siyar, pp. 55-59, also<br />
see, pp. %97. ALSO see, al-Ramli, Nihdyah, vol. 3, p. 397; al-Jamal, Htishiyah, pp. 17-18;<br />
Ibn M e , al-MihY, vol. 4, p. 7; and Ibn QuW, d-Mu*, vol. 5. p. 110.<br />
AI-K~&-, M-r Sayyid KW, wl. 5, pp. 9-10; al-Wqi. Hbhiyat d-Dus~iqi, vd.<br />
2, p. 369, and al-Dardii, al-Saghir, vd. 3, p. 18.<br />
See. al-Sanhh-. Maydir, pp. 207-214 for a fairly detailed study of this issue. me Imqi Civil<br />
Code, article 115, provides that duress makes a contract unenforceable; the Egyptian Civil<br />
Code, article 127, provides that duress makes a contract voidable.<br />
D'Aquim v. United States, 192 F. 2d 338.358 (9th Cir.. 1951); Nall v. Commonwealth.<br />
208 Ky, 700,271 S.W. 1059 (1925); State v. St. Claire, 262 S.W. 2d. 25 (Mo. 1953); United<br />
States v. Gordon, 526 f. 2d. 406,407 (9th Cir. 1975); Shannon v. United States, 76F. 2d.<br />
490,493 (10th Cir., 1935); DPP v. Lynch, [I9751 A.C. 653,655; R.V. Hudson [I9711 2 All<br />
E.R. 244,247; United State v. Balley, 444 U.S. 390,410-11 (1980); United States v. Boomer,<br />
571 F. 2d. 543-545 (10th Ci.) Cert denied 436 U.S. 911 (1978); Cde v. United States 347<br />
F. 2d. 492 @.C. Ci.) Cert. Denied, 381 U.S. 929 (1965); United States v. DiFr01120.345<br />
F. 2d. 383 (7th Cir.) Cert, Denied, 382 U.S. 829 (1965); Phillips v. United States, 334 F.<br />
2d. 589 (9th Cir., 1%4) Cert Denied. 379 U.S. 1002 (1965); 22 C.J.S., C* Low, Sec.<br />
100.180. Perkins. C* Low, 916-18.<br />
United States v. Palmer 458 F. 2d 663 (9th Cir., 1972); People v. Ricker, 45 111. 2d. 562,<br />
262 N.E. 2d 456 (1970); Kawakita v. United States, 343 U.S. 717 (1952); Even the Model
Islamic Studies, 30:3 (1991)<br />
3.) However, threats to property or reputation are adpiribk under seaion 3.02 (Choice<br />
of Evils). And see Commonwealth v. Reffitt, 149 Ky. 300 148 S.W. 48 (1912). recognising<br />
threats to property or reputation.<br />
Koonh v. State, 204 So. 2d. 224 (Fla. App., I%?, State v. Nodine, 198 Ore. 679,259 p.<br />
2d. 1056 (1953); State v. Torano, 74 N.J. 421, 378 A. 2d 755, 762 (lm); y, Orchard,<br />
Defeme of Cornphion, 111-112, for the law in Newzedand. Several writers have argued<br />
that threats to strangers should be rewpnised. Wan and Scott, Hadbook, pp. 1W1061,<br />
Clark and Marshall, Treotire, W, Wave, CriminrJ Low, pp. 436-438; Donaclly. Goldstein<br />
and Schwark, Criminol Law (1983), p. 662; and Bishop. Criminal Imc: p. 207.<br />
MPC, Comment 3. However, a British case R.V. Hudron [I9711 2. Q.B. 202.2 All E.R.<br />
244, has allowed a defence of durcss although the threatened harm was not immediate.<br />
See, note 44 above but see, State v. Toscano, 74 N.J. 421,378 A. 2d 755,762 (19?7), stating<br />
that under certain circumstances the commiseion of minor crimes should be excusable even<br />
if the threat is not one of death or serious bodily injury. Also see, Orehard, Defmce of<br />
Compulsion, p. 111, discussing cases that imply that the threat required should vary with<br />
the seriousness of the harm amunitted. K.J.M. Smith. "Duress-the Role of the Reasonably<br />
Steadfast Man," 98 L.Q. Rrv. 347. 351 (1982), argues that issues of praportionality limits<br />
should be a matter for the legislature because matters of policy such as this should not be<br />
left to juries.<br />
Newman and Weitzer, "Duress, Free Will." P. 331; also see, Williams, Criminal Law; The<br />
General Part, sec. 246 (2nd ed. 1%1).<br />
MPC, m. 209 comment 2, p. 374.<br />
Section 2.09; (1) it is an affirmative defena that Ihe actor en& in the amduct drarged<br />
to constitute an offense because he was coerced to do so by tbe urt of or a that to use<br />
unlawful force against his person or the person of another, that a person of reasonable<br />
firmness in hi situation would have been unable to resist.<br />
(2) The defena provided by the Section is unavailable if the actor recklessly placed hidlf<br />
in a situation in which it was probable that he would be subjected to duresr. Ibe defence<br />
is also unavailable if he was negligent in placing himaelf in such a situation, whenever<br />
negligence suf6ces to establish culpability for the offense charge.<br />
(3) It is not a defence that a woman acted on the command of her husband, unksc she<br />
acted under such coercion as would establish a defence under this don. presumption<br />
that a woman acting in the presence of her husband is a~rced is abolished.]<br />
(4) When the conduct of the actor would otherwire be justifiable under Sectioa 3.02, this<br />
Seaion does not preclude such defence.<br />
MPC, at comment 3, p. 375. 'Ibe reasonablenes test adopted by the MPC seems to be the<br />
majority position in the modem criminal Common law. MPC. Id., pp. 376-378. Several<br />
commentators have suppolted the reasonablener standard. See, Milgate. "Duress and the<br />
Criminal Law: Another Aboutturn by the House of Lords," 47 CMlbridge L.J.61.67 (1988);<br />
Dennis, "Duress, Murder," pp. 232-235; Sornarajah, "Commonwealth Criminal Law," pp.<br />
665-667.<br />
MPC, Comment 3, p. 375.<br />
Seetion3.OLstata:(l)Coaductthattheactorbe~~tobe~toavoidahsrmor<br />
evil to hbdforto.notha kju&hbk, provided tIut<br />
(c) a k@ddvc puposc to exdude the jurtidiatioa chimed does aot otkwk<br />
PMY w.<br />
As note at noted 49 above, the choice of evils doctrine musually requires that<br />
that comes fmm natural causes. Ibe Model Pmd Codc rej- that position.
klamic Studies, 30:3 (1991) 345<br />
One paaes the question: would a penon who asravinated an authoritarian leader or even<br />
a demoeratic one be entitled to claim the defena if he believes that in doing so he is saving<br />
tbe country or working for the general good? 'Ibc last segment of 3.02 (1) (a) might resobe<br />
th* mblem. Ihe defena of necessity hu been rejected in r~~litidy motivated offenses.<br />
~ee.'~nited States v. Knmcke, 459 F. 2d Zd, mi (8th CE~.~ 19?2); speci6ca~y relyiag on .<br />
this provision of the MPC. Courts often mad in a resronabkncss requirement by atating<br />
that there must be a reasonable anticipation of a causal connection between the action taken<br />
and the hanu sought to be avoided. Courts also often rely on the rationale of the availability<br />
of other reasonable alternatives, a rationale that poses a serious problem in non-democratic<br />
nations. United States v. Cassidy, 616 F. 2d lOl,l(n (4th Cir. 1979); United States v. Kabat,<br />
797 F. 2d 580. 591-92 (8th Cir. 1984); United States v. Seward. 687 F. 2d 1270. 1276 (10th<br />
ar. 1982); United States v. Coup, 603 F. 2d. 1347, 1352 (9th Cir. 1979); United States<br />
v. Simosoa, 460. F. 2d 515,518 (8th Cir. lW2); United States v. DomU, 758 F. 2d 427 (9th<br />
Cir. 1985). Wave and Scott note that a defena of necessity necessarily implicates the<br />
determination of the relative values at stake. If a criminal statute has made a determination<br />
of values then a wurt is pduded from sewnd pesiag the legislature. Otherwise, a court<br />
d d have to weigh the relative values involved. 'Ibis matter takes spacial prominence when<br />
abortion statutes or invohred. Wave and Scott. Handbook, p. 382; and See, Rex v. Bourne,<br />
(19391 1 K.B. 687 (the value of a mother's health ishigher than the value of an unborn fetus.)<br />
Blackstone, C-, bk. 4, p. 30. Also sce, Bishop. Criminnl Law, p. m, and Clark<br />
and Marshal, Treairc, p. 362; Edwards, Compulsion, 301, murder, "the crime being so<br />
heinous that even the strongest duress should not be a justification".<br />
LaFave and Scott. Hand600k. P. 376; But see, E.B. Amolds and N.F. Garland. "The<br />
Dcfena of Neassity in Criminal Law." 65 1. of Crim. L. & Criminology 289 n. 14 (1974);<br />
in D.P.P. for Northern Ireland v. Lynch (1975) A.C. 653, the House of Lords held that the<br />
defena of duress was available to a charge of principle in the sewnd degree (aiding and<br />
abatiog). In Abbott v. r., [19n] A.C. 755, the judicial committee of the Privy Council<br />
refused to extend the defena of duress to a charge of ruder as primapel in the 6nt degree.<br />
Recently, the House of Lords in R v. Howe and Barrister (19871 A.C. 417 held that duress<br />
can never be a defena to murder and. hena. reversing - ~ynch. - - see, - G. Fletcher, '*The<br />
Individualization of Excuting ~onditions;" 47 S. ~al. L. RN. 1269,1279 n. 33 (1974). noting<br />
that wum frequently base this rule on the impermissibility of killing innoant pemns. The<br />
rule seems entrenched in the Common law. For example, when the Supreme Court of<br />
Georgia recognid duras u a defena m murder caaes, Jones v. State, 207 Ga. 379,152<br />
S.E. 2d. 187 (1950), the Georgia legblature intervened to revem the ruling. G.A. Code<br />
AM. sec. %906 (I!%!), cited in Fletcher, Id.. p. 1289 n. 65.<br />
Suaarajah, Commonwcrrlth Criminol hw; Milgate. Dums and Ihc Criminol Law; Dennis,<br />
"Duress, Murder."<br />
MPC (Comment 2) at p. 374.<br />
Thir essentially utilitarian argument is promoted by Jeremy Bentham. Bentham argues that<br />
in cares of duress punishment is inefiicacious. J. Bentham, Infmkhn to the Ptinciprcs of<br />
Mods and hgirlotion, sec. 3, Xii. 6 (1873). Taken to the extreme, this view would lead<br />
to excusing all acts wmmined under d m , a view not sanctioned by any legal system. 'Ibc<br />
theoretical response to Bentham'sargument ispropounded by Hart. Hart arguesthat although<br />
punishing a person acting under duress might not have a deterrent effcd on the coerced, it<br />
might deter others. H.L.A. Hart, PvnLhmmt and RwpoNibiliry (1%8), p. 19 see, the<br />
dirusdon in Wcrtheimer. C@n. p. 1489.<br />
See, Jean Hampton, "The Moral Education theory of Punishment," 13, no. 3, Phil. and<br />
Pub. Aff. 208 (1984).<br />
See. Wertheimer's Mena of the murder ruk exception on mod grout&. However, his<br />
a%lment on omd rr(pcoey (h coerad being the mod ant of the carter) - is umemmsive. .<br />
'Ibis has the same overtones as the "ins&ent ration&' utitized by some M& jurltl.<br />
exapt Mdim jurists argued that by becoming the imtrument of the coerar, the coerced<br />
is not hue. See. Kasbi. E d , p. 179, Rnhim. f%c@lu, pp. 35157. This instrument or<br />
agency theory, if admitted, cannot be limited to the cau of murder. In other words, sina
Islamic Studies, 30:3 (1991)<br />
narldamrbeuamed.<br />
Ibn m, d-M-, ~ l 8. . p. 330.<br />
lbn 'AbkSn. w, p. 136, .I---. B&, p. In, al-Buhiiti, Kmhdf, vol. 5. p. 517;<br />
al-DsrdIr, d+aghir, -1. 2, p. 548, al-Dusiiqi. Hdahirrt d-Dm*, vol. 2, p. 367; ad see<br />
notabelow.<br />
EapeciaUrtheshiUi%.~andMlliLis.<br />
Primprily, and ysullu68.<br />
See, Ibn Rajab, Qawd'id ((him al-Halabi. lnt ed.), p. 286; alSuyii!i, d-hhbah vo'l Ne'ir,<br />
(Cairo, Matba'at Mustafa Mohammad, n.d.), p. 176; al-Dprdir. d-+z&fr, wl. 3, p. 5, see<br />
pp. 581412; al-Lhuiiq& HdsM d-mi, vol. 3, pp. 444 and see 442a. Ibn Nujaym,<br />
d-hhb&, vol. 3, p. m, al-Kurinl, Boddi: p. 177 lad 179; Ibn al-HumCm. S w Fcclfc d<br />
Q&, p. 3@ -and al-SurLhd, d-Mae, p. 69; abo aee. p. 142 for the view that llomaimes<br />
a pmvm is duty- bound to destroy property to save a thi~I peram's life.<br />
See, al-Dusq. H&hiat d-Duniqi, vol. 2, pp. 369-Jl0, sod al-Ddk, d-+gfi, vol. 2, pp.<br />
548-549. See, on this topic as a whole Ibn Hazm. d-M+Ud. vol. 8. p. 331; al-Sarakhsi.<br />
d-Sip, pp. 13&37; al-Jamal. Hdshiyah, vol. 5, p. 9; Ibn QudSad~, d-Mughni, vd.<br />
9, pp. 59-60., al-Matdab. (al-Muwaq; on the side bar), Mavdlrib d-Jdil (Bcit: Dar al-Kitab<br />
n.d.),vol.6,p.2W,d-~M~Soyyid~,~l.8,p.80,al-R~~~i,N<br />
vol. 7 on p. 424; d-BulWn, Knrhdf. vol. 6, p. 7.<br />
ste, on the ~ubjed, ~bn H-. PI-M- WI. 10, p. ~ 8 al-M-. ; ~oddi', pp. in and<br />
179.80. lbn al-Humim,~Sha+ d-Fed-Qadir,~. 3QIbn 'Abidin. Radd, pp. ?2-74, al-Jamal,<br />
Hdshiyah, vd. 5, p. 9; al-Buhiiti, Khhdf, vd. 5, p. 517; lbn Qud&nah, d-Mughi, vol. 8<br />
onpp. 26647; al-Khunahi. M~arsoyYidKlubl, vol. 8. onpp. 3 dP-lo; aod al-Dusiiqi,<br />
Hayah d-Dm- vol. 2 on p. 369. See Abdur al-DimPsbqi. Rahmat d-Ummah<br />
fi lkhlildfd-A'immd, (Kuwait: Mahabat al-Bukhari, ad.), p. 327.<br />
See, discussion in Sub@ Mahmasaai. The Philosophy of Jwispnrdmcr in Islam. Farhat<br />
Ziadeh trans. (Malaysia, Pencbitao Hizbi. 1987). p. 158; Rahim, Rinciplu, pp. 237 and<br />
257. and s o w cited Idem. Al-GW. (MY1 111) further states that a starving group of<br />
Muslim amot daughter one of their fold for food inorder to stay alive. M G W , ia a<br />
very sophisticated discussion, distinguishes this fmm a cane whcre the ~mintentiod sacri6a<br />
of some people is absolutely necessary for a definitive and universal publicgood. For example,<br />
if the enemy is holding Muslim hostages, then attacking the enemy, and in the proass risking<br />
the life of the hostages, is permitted only if several conditions are WiIled, Fmt, attacking<br />
the enemy must be absolutely necessuy. For example, if the enemy is not attacked the<br />
Mush state would be in snious danger. Second, there is no alternative but to take action<br />
that would risk the Lives of the hostages. Unfortunately, al-Ghmdi's discussion is too<br />
extensive for an adequate review here. AlGhd, d-Mwfasfi, pp. S97.<br />
One would be remiss not to note the remarkable similarity between the hypothetical<br />
example used by the Muslim jurist writing for the most part about 800 or more years ago,<br />
and thc case of Queen v. Dudley, and Stephens (1884) 14 Q.B.D. 273, in which two men,<br />
last at sea, drifting in a boat killed a boy and kd on him until they were saved. They were<br />
convicted for mu&, and the death se&d was imposed. ~o-r, responding-to the<br />
invitation of the court, the Crown commuted the sentence to six months im~risonment. For<br />
a similar case from the United States is United States v. Holmes, 26F. Cas. 360 (No. 15.<br />
383) C.C.E.D Pa. 1842). 9 seamen and 32 passangers were in a life boat in danger of sinking.<br />
14 passangers were thrown overboard with the intention of saving the rest. Defendant was<br />
convicted of manslaughter and received sentence of *month's hard labour. .See discussion<br />
in LaFave and Scott, Handbook, 385.<br />
This hypothetical example is taken from Perkins and Boyce, Crimjnul Low, 1057.<br />
This hypothetical is inspired by Smith aod Hogan. Crimid Low, P. 208.<br />
GhaztS's analysis. (see note 114 above), seems to yield a positive response for the second<br />
hypothetical. But that depends on how "unintentional dce" and a "univenal public<br />
good" is defined.
Islamic Studies, 30:3 (1991) 347<br />
118.<br />
119.<br />
120.<br />
121.<br />
122.<br />
123.<br />
124.<br />
125.<br />
126.<br />
in.<br />
See, United States v. Wey, 22 C.M.A. 534 (1973); Neu v. McCarthy, 309 Mos. 17, 33<br />
N.E. Y. 570 (1941); LaFave, Crimincd Law, P. 441; Bishop, C m Low, P. 212; Smith<br />
and Hogaa, Climinol Law, p. 22. Some writers have claimed that the sEandPrd is far kss<br />
stringent. If the order given by the superior "does not expreesly and clearly show on its faa<br />
its illegality", the follower h entitled to rely on it. Clark aod M.rabPU. Tnoaiac, p. 36B.<br />
MK, sec. 2.10 Comment 2. Section 2.10 provides: "It is an afknative defence that the<br />
actor, in engaging in the conduct charged to constitute an offem, does no more then excute<br />
an order of his superior in the armed se~ees that he does not know to be unlawiitl."<br />
Ibo Qudhmh. d-Mughi, rol. 8. p. 36& al-Bdttiti. w, MI. 5. pp. 518-519; al-Jd.<br />
Hddu'yd, vd. 5, p. 11; al-W-. (al-'Adawi, c~mmentator), Mukh+r hyyid KhdIl,<br />
vd. 10; ~ba H-. d-~+&i, MI. 10, p. 511; and al-smakhsi, d-~obs*, pp. n76.<br />
Werthekr, anmion, p. 282.<br />
Id., but Wexrheima amtests thc of making d m claims turn on policy<br />
d~Ptpp.~281.Kant~thattbm~c~,aswbeaarhipmcL<br />
paroo thnnamotberoverboard to~avehimself, in whirhbehrviourisnot iaarlp.bkbut<br />
it might deserve punitive Petion. Kant, of anuse, advoc;ltes that the &naption iItight be<br />
annbined in both caxs. and. therefore. this difierentatkm would dhmcar. Thus, whenever<br />
the bcimviour is m l e , it would also be punishn~e. 1mmpnue1 Kant. ~lribsofiy of<br />
Law. W. H.slL trans. (New Jeney; Augustus Valky. 1974). p. 53.<br />
AsDwoxtin T, a pmonmight act ~~~dercomprlrion but that -not neasssrily<br />
nuan he was compelled to act. Although acting under caqmhion, b behaviour atight wt be e x d or justified. Dvorkin, "Cornpubion and Moral Conapts," p. 229. Although a<br />
major issue of camtention among jurists, it is not helpful to enter into thc debate to<br />
wI~~ther duress is an excuse or justilkation. See, on this kue Dennis. "Duws. Murder."<br />
pp. 228-235. Thc question is whether duress judies the act amunitteal, and, thus, responsibility<br />
omr attrhLs m the 6mt place, and the law merely mmgokd this £act. Alternatively.<br />
if~,isan~,then~'bilityattrrhestothe~~ttealbutthelawu<br />
the act because d the circumstanux surrouading the act. Although of obvious moral<br />
came, this debate would take us too far alidd.<br />
In the world of philosophy both concepts k a rather predse meaning and notable prop<br />
onents. Zimmcrmclo, "Coercivc Wage Offers," reprerents the empirical appmach. Dworkin.<br />
"Compllrion and Moral eoacepts." Robat N&, "Comion." ia l%ilosophy, sciaue d<br />
M& hays in Honor of Eincn Noqd. tds. Sid~ey Mogeabacxr. Patrick ruppes and<br />
Morton White (I-); and Jeffrie Murphy. "Consent. Coercion and Hard Choias." 67 Virg.<br />
L. Rev. 79 (1981). represent the moralized app.oeeh. See the dircussion in WCrtpeimer,<br />
Coercion, p. 7 and Z4U-258 on fhe two approache. Ncvcrtheksc. when I use the tern I<br />
rm not refering to their pm+c meaning within the philaophical tradition.<br />
Se+. note 34 above.<br />
Frapmtry, textual ropnar will be mcondndve or at least invotve<br />
-<br />
complex adysb. For<br />
example, Ibn Hazm dhwes a subject of Idamic law lmoM as the "sale of the preswued"<br />
(bay'd++g&) or oramhacts of necessity. Ibn explains that typically in thae sales<br />
a pcmm goes through financial hardship or poverty, and in order to survive he sells his<br />
~ . ~ ~ ~ ~ t h a t ~ t o m p p o r t t h e ~ t b a t t<br />
dapmoninon-bhding.Ibo~~b.cl;Pad~thathcwooldhavelmed<br />
to.cceptsuch~aadbddth.toaathefinaocial~tioaofsuchapmonimproves<br />
he is entitled to invatidate the sale. Nevertheless, the H&, Ibn argues, are weak<br />
or unauthentic, and cannot be relied on as a murce of legislation. Atter noting that the<br />
Prophet himstif sold his in order to survive at times of hardship. Ibn Hazm<br />
condu&sthatmchasakbbinding. Ibn+m,d-MI+& vd.9.pp.22-23. Seed-Khurmhi.<br />
MuMwpr Sayyid KhalR, MI. 5, pp. %lo; al-Dusiqi. Hdrhiot d-Dtrniqi, vol. 3. p. 6; and<br />
al-Derdir. d-pghir, MI. 3, p. 18 on the Wliki position on this matter, and al-hakhsi,<br />
d-Mabag, p. 61 for a H d treatment.<br />
Foruampk.~,mtc45aboveand~yingtuton~s~onth<br />
p.Ctiarofoppressive~,andthe~omsuchpraEtia8haveforthchwofdm.
348 lslamic Studies, 30:3 (1991)<br />
128. See. mm 539 above and, acamp+q W. Som liLe the m in L.hvene.<br />
-tic Produebioo v. Fcrcnh, 305. Mieh. 193.9. N.W. 2d. 57.65 (1943) ooatimred to<br />
ate that "[t* qaatim a to what constitutes domr is a matter of law, but wktkr dums<br />
edrts in a particular cau is a quation of fact". Tbir, of anute, raembh the Llamic<br />
appro& in m y rrspear. Nevertheless, at Comntam law his appwh is lugely limited<br />
129.<br />
to~oft~)nomicd~inrhichtbc~~intothenooBfulntsrofthedurrsstaL<br />
apdal pr6mhma.<br />
P.S.Atiyeh."EcwomicI)mtsrandtheOverbomcnill."98L.Q.~~.'197.201(April.<br />
1982); rimikr mitiquw have been made by lbfbty. "Ekmenm of Wrongful Raaue." p.<br />
440; Pertins and Boys. Chid Low, p. 1054; Smith and Hop, Criminal Law, p. 209,<br />
cal.rmui and Penillo. Luw of Confmcp. P. 338, Dcnnio. "Duress. Murder." P. 222; LaFave<br />
and Scott. .. . Handbook, p. 382; Fitte. vicrunrroho n, pp. 73.74.7881; Fridman. Gmadian<br />
Md English Law, pp. 69-70., L. Vandervoit. "Social Justice m the Modern Regulatory State:<br />
Durea. Necc~sity. and the Chsemunl Model in Law." wl. 6. No. 2 L. & Mill, 205, %211<br />
(1987); Hale. "Bargahrio1p." pp. 606 and 618; Dawson, Econ. Dunn," p. 267; Orchard.<br />
"Dcfemr of Compulsion." pp. 105106.<br />
130. David Hume ona argued, can we seriously claim that a poor pxsmt who knows m foreign<br />
language, and lives day to day by small waga is free to lave his country? D. Hume. "Of<br />
the Origi~I aontrrt." m 2 &says and TraatLe. 268,281-282 (London: 1710). In fact, the<br />
~thfraetol~butheirunaMeto&~o.hArLtotle~thntlo~w<br />
choice dtuatiom are only involuntary m the abtract. Aristotle. Eahico N i c d , 1110a.<br />
(W.D. Ross trans. 1925). ci&d in Flacber. "Individualization." p. 1277. See. Fittc,<br />
Vidimizaton, pp. 78-79 diacussion of free choice and duress. and P. 104 N. 157 citing cases<br />
that strecs the difference betweea legal duress and d v e life situations.<br />
131. Atiyah. sypm mte 125 p. 2112.<br />
132. Brady v. United States, 390 U.S. 570 (1%8); ace. Note, '%e Udtutiondity of Plea<br />
Bnrgrining." 83 Haw. L. Rev. 1387. 13%-1403 (1910); pointing to the iaeOairtency in tbc<br />
Supreme Court's wlition adysis. The Supreme Court held that a kar of king 6rcd is<br />
mcrcivc cnougb to reodes ones self incriminating testimony in vduntary. Gmity v. New<br />
Jersey, 385 U.S. 493. 497-498 (1%7). In SpeneL v. Klein. 385 U.S. 511-515 (1%7), the<br />
Supreme Caurt held that a feu of dihnnmt rndtrs d-' ' ' ltiag testimony mvoluntary.<br />
This secmr inanrfrtent with maiataiaing tb.t fur of the death ptnalty is noncocrcive<br />
d u e one is conaidering other than the dcfcodant's psychology.<br />
133. State v. Grccn. 470 S.W. Y. 565 (Mo. 1971). M. Denicd. 405 U.S. 1U73 (197L). lhc trt<br />
is objadve; thsrr mut lm an .caul belief and a mammabk belief, Pbopk v. Coadkv, 69<br />
Cal. App. 3d. 1008. 101@1011. 138 Cal. Rptr. 515. 521-522, Cert. Denied. 434 U.S. 988<br />
(1977). Courts frequently ltresr policy masons for denying a claim or necessity, and the<br />
importame of maintaining prison order. People v. Richards. 269 CI1. App. 2d768,778,75<br />
Cal. Rplr. 597,6041 (I-); State v. Pahner. 45 Del. 308.310. RA. 2d 442.444 (0. Gea.<br />
~er., 1950); ~sople V. NOW 18 m. ~pp. MD, im N.W. Y. 916,918 (I-). see,<br />
dirurion and cases cited m Fletcbcr. "IadividualiPtion." pp. 124S1286. Conrcquently.<br />
Chrla E.ilor solution that -tes the prisoner's predicament and sodety's interest<br />
in not having prbmm escape. People v. Lover Camp, 43 Cal. App. 3d. 823,831-32.118<br />
Cal. Rpa. 110. 115 (1947); United Statcs v. Boomer. 571 F. 2d. 543, 545 (Cir.), Cert.<br />
DM, 436, U.S. 1911 (1976); United Statu v. Bailey, 444 US. 394,41243 (1980) and<br />
United SUtg v. Mer, 598. S.W. Y. 540 (Mo. App. 1930) (w a mon hdividurlizad<br />
rpporrb).Thm~~t~theCourtsmarhetherprimoucapeaorspdca<br />
of the ddena of aeadty or durcs. United Srates v. MicheIron. 559 F. 2d 567 (9th Cir.<br />
19n), (dunar); Pmple v. Luther, 394 Mich. 619,232, N.W. 2d. 184 (1975). (durcs); State<br />
v. Baker, ibid. (nearrity); People v. Lover Camp, idem. (nemrity); Pwpk v. Uoger. 66.<br />
III. 2d. 333 5 III Du. 848.362 N.E. 2d. 319 (1977), (nummity); People V. Ricbudr, idem.<br />
(noceaity). See gcnwdly. Note, "Prism Esgpe and Dchces bad on Ckditbm: A<br />
cboory of Social Prehmcc." 67 Caf. L. RN. 1183 (1979); Note "Intokmble,*' Coaditim<br />
m a Defence to Risoa Escape," 26 U.C.L.A. 11% (1979) and Note, "Duress and the Rioon<br />
@acapc: A New me for an old Dcfena," 45 S. Cd. L. Rev. 1062 (1972).
Islamic Studies, 30:3 (1991) 349<br />
For example, conarning tbe Wbility of involuntary coofedom, the Supreme Court<br />
baa~aniadividualizcdrpproeehbsredonthetotrlityd~.(3ulombev.<br />
Canoectieut, 367 US., 3%. 602 (1961); Fikes v. Alabama, 352 U.S. 191,197 (1957), Paync<br />
v. Artuua. 356. U.S. 560. 567 (1958); Haley v. Ohio. 332. U.S. 596. 599 (1948). Sec,<br />
Mdloy v. Hogan, 378 U.S. 1.7. (1964); Haynts v. W-, 373 U.S. 503 (1963) Minay<br />
v. Arinnu, 437 U.S. 385 (1978). In Cukms6e. while atstiq that dmtahcu h the utiinatc<br />
test of the ntidity of umfcdsions, the Supreme Court recognLsd that this h not &ly a<br />
quation of pychololly but nrlee of law applied to psychological facts. In Stein v. New York.<br />
346 U.S 156.182-186 (1952) m'd on other grounds. Jsctson v. Denno. 378 U.S. 368 (1964).<br />
the Cwrt uaerted that sina physical violence serves no lawful pqm& it is inhenntly<br />
d. Intamgation docs serve a axial value and, tbmfore, it i not inbcrently coercive.<br />
Sec.Pletcber. "Individualiution",pp. 1m-1mand Fiagamte. VicZindElllion, pp. SlW.<br />
ThcImpedofdmoresisevidentinthe~ofanradmarri.ges.Se~notiom<br />
concerning women's honour played a larger rde than they at present do. Sac. Memdith v.<br />
Meredith. 79 Mo. App. 636 (1899). (Threatending to kill the man who dishonoured a<br />
daugbtm is not dureaa); Shepberd v. Shepherd. 192 S.W. 658. 661-63 (1917). (threats that<br />
raulthaman~the~he~tedandpomiaedto~inotdurrrv<br />
bealeethmisastrongprerrumptiOnthattbemarrisgewasentmdhtoinMmntof<br />
moral obligations); Sec also, L.N. Bmwn. 'The Shotgun marriage," 42 Tul. L. Rev. 837<br />
(1968). D. Bradky. "Duress and Arranged Marriages," 46. Modem L. Rev. 499 (1983);<br />
Wertheimer, C h , pp. 71-n.<br />
A eue miming from outside the field of dues dmomtrata, that even juries can believe<br />
that there i h a p a choice. In Maddl v. Rraoe. 511 S.W. 2d 225 (Ts. 1974). Marshall<br />
was held priooner in his how by his neighbow's vidous boar. The boar had charged Marahdl<br />
ten or twelve timcs. MarsbaU had pmioudy disarssed the Hog's viaoumea with defendant.<br />
Eventually, the boar managed to in@ Marshall as be attempted to kave hio home. The<br />
jury found that MarsbaU was conbibutody negligent for fading to build a face around hio<br />
~,andbe*~therisLofinjurywhen,despiteofhiob~ofthe<br />
v i h propearities of boar. Madd faikd to aboot the boar. Thc Court of Appcd affhncd.<br />
Thc Supreme Court of Texan held that contributory ne-a is not a dsfoaa in stria<br />
lirbility cases. Importantly, the Court held that Marshall did not anumc the risk because<br />
he did not have a free and voluntary choice. The plaintiff's choice3 of riaking injury arc<br />
remaining a Ppironer at home mere not as a mattcr of law the vduntary choices to which<br />
the law mtiW him. Additionally. the daughter ofthe aoimal was not areaonable al-tive<br />
sina be d d have faad pnxca,tion for ouch an act. Idcm, at 2#%1. Evidently, tbe<br />
Covrtwasforcedbythe jurie8uns~emlyvadicttoa~prrtcnrionrofaviYmenx,me.<br />
'h Cow? had to rely on legal standards, and on the I@ jargon of "as a mattcr of law"<br />
which in reality betray idea of appmpriate social bebaviow. and balancing of rights and<br />
entiUemmts. ilia arc is d*arsred h Wcrtheimer, Cocrdan p. 61.<br />
Kaph v. K.plan. la. N.E. 2d. M6.710 (1962). (the threat of personal embamsmmt<br />
wuwt~asnttorendcrpl.intitibmnofqdtyofd~ti.lformaLingacon~);<br />
ace. Wertheimer. Corrdon, p. 12.<br />
Inordertopmvedterytheaccuoerha~topmvidefourwi~whobdtheseNd<br />
ret including penetration without apying. Sec, on Qcrdhf (the crime of ururing mucone of<br />
sdultery or fornication). Ibn Rushd. Biddym d-MyW, (Cairo Mumtapha Halabi. 1981),<br />
VOI. n, pp. 44043.<br />
'he MPC, docs not ~~4)gniSe threats to reputation in criminal carcs. Sac note W above<br />
and acannpanying W.<br />
WV. Lewis, 4 S.E. 2d. 464,468 (Cia. 1939). lbis case is d i d in Wertheimcr, Coercion,<br />
P. 38.<br />
Ibe Court in m, hoveva, atated that, 'lbc thnat. . . must be suf6cicnt to ovmanc<br />
the mind and will of a penon of onbary hem." Id.. p. 467. 'hk might uplrin the<br />
court's duision. Oae ferL the Court WM motivated by mutated policy (or otherwbe)<br />
conaidemtiom cspeeidly in Light of the fad that the purportbdly ~d that a -tiff
Islamic Studies, 30:3 (1991)<br />
wan a yarn- rrmn he "would have givcn him hell." Id., p. 466. If belimd by the Jmy.<br />
refuses. A angdy leavethe amtract in B's possessim and leaves. 'lh days later C telb B<br />
that A is a violent person, and that A once broke someone's arm. B bearms tenified and<br />
his will m although no cxpliat a implicit threats were levied rgeinst him, and he<br />
nuhestosbtheam~.Assumetb.tBhasnoruaoatobelievethatCisA'srl&nt.Ibe<br />
~ommon~,ifthe~ofen~will~tobetlteamianlg,~h~ld<br />
amtractvoidable. Ihe~ofarulthreatorthe~c~of B'scwchrtshould<br />
be irmnatcrinl. Islamic law, however, m this csse, can deny relief on the banb that the type<br />
of duress inflicted hm is not donable because thm is no moral or social policy resson<br />
to recognise duress ~BMOml#LOied by M explicit threat m this context.<br />
Fa a good critical PpprPbal of the MsoaaMencaa requinmcnt in Neumcm end Wcitzr.<br />
"Durese. Frce wffl," pp. 326328.<br />
Smith. at p. 348.<br />
See. Idem for the same poiat and on the indefiniteness of the reasonabkness standard.<br />
Fletcher, "IndividualiEation," p. 1293.<br />
Note 113 above end accompanying text.<br />
Notes 34 and 35. end acunupM~ text.<br />
For example, al- opposes the beating of suspeeb to obtnin evidence or confessions<br />
but he does so on baakally utilitarian grounds. Al-Ghazdi, d-Mwta$6, vol. I, 297-299.<br />
morally motivated rules such as the murder exception.<br />
Most of the rules were articulated mound the nincth to fourttenth centuries.<br />
Several voias have called for the dmlopmcnt of Islamic law but not much haa been achieved<br />
in that regard. See, on modern attempts at reform, and on Islamic law in the modern world.<br />
N.J. wulson. A History of lslunic Low (1978). especially pp. 149-225; M. Khaddiiri, 7he<br />
I k i c Conaplion of Jvstice. (1984). especially pp. 192-232.<br />
Alan Watson. Roman Lmu and Cotnparalive Low (1991), particularly pp. 97-110 and Alan<br />
Watson. L.qd TmplMtr (1974).<br />
See, on the subject of legal mental sets and the legal culture, Alan Watson, Failurn of tkc<br />
Legd Imrrgindon (1988). particularly pp. 13S154.<br />
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