LAW OF DURESS IN ISLAMIC LAW AND COMMON LAW: A ...

Islamic Studies (Islamabad) 30:3 (1991) 

LAW OF DURESS IN ISLAMIC LAW AND 

COMMON LAW: A COMPARATIVE STUDY 

KHALED ABOU EL FADL 

This article war jhtpublished in the Arab Law Quarterly [ZSSN 

0268-0556, Graham & Trotman, Sterling Houre, 66, Wilton 

Road, London SWN ZDE], r4erenee [I9921 ALQ 121. It is 

reproduced here by the pennisswn of the Editor, Dr. Mark 

Hoyle. 

The Islamic and Common legal systems both assume that a person 

is normally free to choose which courses of action to pursue or abandon. 

From this assumption, follow the legal liabilities that attach themselves to 

certain acts. Duress is perceived as an aberration that negates the presump 

tion of voluatary action, and, thus, calls for exceptional treatment from the 

legal apparatus.' TZhe accepted wisdom is that people ought not be held 

responsible for choices imposed upon them. This wisdom, for instance, is 

reflected in BlacLstone's statement that it is "highly just and equitable that 

a man should be excused for those action, which are done through unavoidable 

force and compul~ion".~ Despite the absolutist language, the treatment 

afforded the coerced, in reality, involves a difficult balance between accomodating 

the weak .and the oppressed, and setting standards of conduct 

for society, On the one hand, it is important to take cognizance of the 

specific circumstances, and even the particular idiosyncrasies of an oppressed 

individual. On the other hand, the history of duress in Common law and 

Islamic law reflects the desire as a matter of policy, to set a standard of 

conduct that people are expected to live by. 

TZhe purpose of this essay is to provide a ompiuative study of the 

law of duress in the common law and Islamic law traditions. Both systems 

grapple with the same difficulties and problems, and resolve them in a similar 

fashion. Both legal systems differentiate between criminal and civil cases, 

and impose a more demondiag standard of d u c t in crimbal cases. Islamic 

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) 

contradictory and vacillitate between subjective and objective epproaches 

without an internally consistent methodology. The Islamic law starts with a 

threshold objective inquiry into the nature of rights affected and then pro- 

ceeds to a consideration of the subjective feelings of the coerced. Addition- 

ally, Islamic law imposes general principles, such as choosing the lesser evil 

and proportionality, that provide useful limiting guidlines. 

'Zhere has been a wealth of material, that defects citation produced 

on difierent aspects of duress. This is partly because duress is an amorphous 

subject that encompasses a vast array of legal subjects and problems. Because 

duress involves an assessment of the voluntariaess of acts, it is not surprising 

to find it implicated in a multitude of legal acts. Hence, one finds duress 

factors into assessing the validity of adoptions, marriages, plea bargains, 

self incriminations, jury verdicts, contempt of court for refusal to testify and 

assumption of risk in the employment conte~t.~ In addition, duress is a 

significant aspect of the law of senritude: and duress can implicate freedom 

of speech issues or inten-iational law problems.5 Additiody, Duress ocws 

in many different forms, the most straightfornard of whihutright physical 

f o d s applied against the person of another to bring about a certain 

result. It could also take the form of a threat, whether explicit or implicit, 

to harm someone if a certain act is not undertaken. Even more, duress could 

take the form of some financial necessity not necessarily created by a particular 

person. In other words, a weak person might find himself in a dire 

financial position, and, consequently, such a person will be forced to comply 

with certain demands that might or might not be ad~antageous.~ 

In each, of these fields, several policy and moral considerations as 

well as widely varied factual cinwnstances pertain. Hence the difficulty in 

finding a comprehensive and systematic method of analysing all cases of 

duress, or in even explaining the common moral and policy considerations 

that are relevant to each area of duress. Writers have proposed different 

theories to differentiate between legal and illegal duress. Some arguing for 

a value free empirical theory while others maintaining that duress essentially 

involves a moral judgement? At a less abstract level, He*rt Fingarette 

argues, somewhat persuasively, that at the core of all duress cases is a 

concept of victimization in which a more powerful party exploits a less 

powerful party in order to obtain a certain benefit.' 

But even if it true, this does not tell us what legal consequences 

should follow from th& victimization. The law does not remedy every act 

of oppression, exploitation or victimization, partly because victimization is 

as broad a concept as duress. Both concepts are ultimately products of social 

standards and moral policies a society prescribes for itself. More will be said 

about this issue later. This essay, however, does not aspire to present an

Islamic Studies, 30:3 (1991) 307 

overall approach or theory of duress. Nor will this essay address all forms 

of duress. The goal is to contrast Islamic law with the Common law, and to 

argue that the methodology adopted by Islamic law presents a useful addition 

to the field. 

A DEFTNITION OF DURESS 

There is no uniform legal definition of duress. Because of the amorph- 

ousness of the concept, duress can only be defined in the most indefinite 

sense. Generally, duress is a wrongful pressure placed upon the person of 

another forcing such a person to commit or not to commit a certain act.9 

Article 948 of the Mejelle defines duress as "[Duress] is without right to 

compel a person to do a thing without his consent by fear."1° These defin- 

itions have the virtue of simplicity but, of course, they do not say much, 

some would add to this definition that the threatened harm must be present 

and imminent." While others might add that the threatened harm must 

overcome or overbear a persons' will and deprive him or her of the freedom 

of choice.12 Still, in the articulation of some sources, the threat must produce 

a reasonable fear of harm or produce a fear which a person of reasonable 

firmness would be unable to resist.13 

Regardless of the definition, at essence there is an everexisting tension 

between the desire to accommodate the actual feelings and practical limita- 

tions of the victims of duress, and the need for society to impose standards 

of conduct. Thus, should the law of duress accommodate the especially timid 

and weak, or should it require all persons to live up to a standard of social 

conduct irrespective of their particular circumstances? Should one hold de- 

terminative the subjective feelings and fears of the threatened person or 

should the type of threatened harm be held determinative Or, should the 

proportionality between the threatened harm, and the crime committed be 

determinative? If one decides that the subjective feelings of the victim are 

determinative, does it make a difference whether the victim's response to 

the threat is very unusual and generally unreasonable? Even then, does it 

matter that the victim's uncommon response is the result of his selfish and 

self-centred personality rather than a faint hearted and feeble character? 

Even more, are there situations in which society will decide that 

certain choices are inexcusable or unjustifiable as a matter of law? For 

example, assume that a scholar who adores her books murders an innocent 

person to escape a threat to destroy her library. Should society provide, as 

a matter of law, that human life is more valuable than books? What if the 

scholar's library consists of very rare and irreplaceable manuscripts, does 

that make a difference? What if in the course of trying to save a library 

from the hands of an oppressive government, a scholar commits a murder 

or, perhaps, seriously injures a person: does that make a difference?


Furthermore, are there certain types of threats that are presumptively 

coercive; for example, a threat of death or serious bodily injury, while others 

are presumptively ineffective, such as threats to destroy property? In a sense, 

the tension is always between over-legislating to insure that certain social 

values and choices are upheld, or under-legislating to maintain a flexible 

standard able to accommodate individual feelings and exceptional cir- 

cumstances. 

The Common law, mainly in Britain and the United States but also 

in Australia and New Zealand, adopted different and often inconsistent 

solutions to these problems. W e maintaining a considerable degree of 

flexibility, the Common law remains unsystematic in its underlying rationale, 

Islamic law created dichotomy between types of acts, and types of duress. 

In criminal acts, Islamic law opted for a restrictive alternative, only admitting 

certain types of duress while adopting a much more flexible approach in 

civil acts. In either case, while accommodating the subjective feelings of the 

individual, Islamic law imposes overriding social standards of conduct such 

as committing the lesser evil. First, we consider the legal developments 

within the Common law and then we shall turn to Islamic law. 

THE COMMON LAW OF DURESS 

The original Common law held a rather una~~~mmodating view of 

duress. In order to constitute duress, the coercion had to be sufficient to 

overcome the will of a constant or brave man.14 Even though this standard 

was eventually relaxed to that of a man of ordinary firmness, it did not 

significantly alter the law because it was assumed that only a threat of death 

or serious bodily injury would be sufficient to overcome the will of such a 

person. Hence threats of destruction of property or minor injury were not 

recognised as duress.'' Additionally, threats directed at third parties or 

persons other than the duressed were inadmissible." The threat had to be 

immediate and imminent leaving no opportunity for escape.'' 

The focus at Common law was on the type of coercion, and not so 

much on the psychological condition of the coerced person. Certain types 

of threats, like death, mayhem or maiming, by definition, were considered 

coercive. Significantly, the same test applied regardless of the type of act a 

person was coerced to commit. Therefore, whether the threat was designed 

to force a person to sign a contract or commit a crime, the same test applied. 

Additionally, there was no inquiry as to the proportionality between the 

harm threatened and the act committed. Rather, the inquiry was largely 

focussed on the kn;er's misconduct in lieu of other factors.'' Common 

law courts approached the defence of duress with caution and conservatism. 

Therefore, the approach was rather categorical, designed to set limits that 

eliminate the potential for abuse inherent in defence.19

Islamic Studies. 30:3 (1991) 309 

At the present time, the Common law, particularly in the area of 

civil law, has undergone a major shift in the emphasis. For the most part, 

the type of duress became of secondary importance, and the impact of duress 

on the victim ascended to primary importance. Tbus, the focus became the 

state of mind induced by duress in the victim.m Consistent with this approach, 

Common law rules as to third party duress were liberalized, particularly in 

civil transactions. Likewise, the rules as to the immediacy of the harm became 

somewhat relaxed. We shall review the rules on these topics in some detail 

in later sections on criminal and civil acts. 

Tbe Common law retained the requirement that the duress be wrong- 

ful. Although, the traditional Common law held that "it is not duress to 

threaten to do what one has a legal right to do", this has been substantially 

modified. The threatened duress need not be unlawful in the legal sense, 

but need only be wrongful in the moral sense.21 Tbus; threatening to use a 

legal right in an abusive or oppressive fashion is considered sufficient 

duress." Tbe wrongfulness of the threat is at issue particularly in economic 

duress cases. Beyond cases of economic duress, the crux of the matter, 

especially in civil cases, is whether the victim felt oppressed and overwhelmed 

by the threat, and not necessarily whether the threat could be legally classified 

as impermissible." 

Despite the fact that the Common law has de-emphasised the type 

of duress, it has not been able to resolve whether if any attention whatsoever 

should be placed on the type of coerced act. Tberefore, even if we accept 

that only wrongful threats can overcome a person's will, must we con- 

sequently excuse any act the coerced commits regardless of its nature? This 

is fundamentally a question of policy and morality. But the failure of the 

Common law to realize that the whole defence of duress is founded on such 

considerations has created- inconsistencies and confusion. This will be 

explained in more detail later. 

For now, we turn to Islamic law and its approach. 

DURESS AT ISLAMIC LAW^^ 

Islamic law has a multifaceted approach to duress. Motivated by a 

need to protect the sanctity of particular human and divine rights, Islamic 

law is in certain respects rigid. But motivated by a similar need to protect 

the rights of the duressed, it is in other respects flexible. Tbe whole Islamic 

jurisprudential discourse on the subject is phrased in terms of balancing the 

rights of God and society against the rights of the coerced individual. Hence 

Islamic law in certain areas emphasie the type of duress and the dature of 

the injured rights while simultaneously accommodating the subjective feel- 

ings of the coerced.


Muslim jurists divided duress into two main categories. The first 

compelling or constraining (mulji), and the second, not as compelling or 

constraining (ghyr mulji) . 25 The first type (compelling duress) nullifies con- 

sent and vitiates free choice. The second type (non-oompelling duress) nul- 

lifies consent but does not vitiate free choice. In other words, there are two 

types of duress: one that is so compelling that the victim not only cannot 

freely consent but is not really left with a choice at all. The second type of 

duress is not as overwhelming and, therefore, practically speaking, the victim 

is left with a choice.26 

Hanafi jurists argued that consent, as in being content or pleased 

with ones decisions, often lacks even without duress or with minimal duress. 

Often a person agrees to something that is not entirely satisfactory, pleasing 

or even in her best possible interest. An example given by Hanafi jurists is 

that of a person who divorces his beautiful bride might not be happy with 

his decision, but he does it anyway because it might be neces~ary.~ On the 

other hand, choice always exists even if duress is present. One can always 

choose to die whether one is happy with the decision or not. But, if the 

duress is powerful enough then the choice, although not lacking, is vitiated 

or spoiled. Therefore, any amount of duress is liable to negate consent. But 

only serious or compelling duress will also spoil choice. 

Al-Kasiini (d. 587/1189) explains the two categories: 

Duress is of two types. One type creates necessity and leaves no 

recourse by its very nature like (a threat) of death or maiming or ti 

beating that endangers the life or limb (that is) wheth;er the beating 

is excessive or light. And some have said that such beating must be 

about the amount of lashes required in a &add [a set punishment that 

ranges from 40 to 100 lashes], however, such an opinion is incorrect 

because what is important here is that necessity is created and if 

[necessity] exists then there is no reason to require a certain amount 

of lashes. And this [ht] type is called fdm (complete). The second 

type does not create a necessity and does leave some recourse and 

that is like imprisonment or bondage or beating that does not threaten 

to cause grave injury. And bere again] there is no specific amount 

of duress required but that it [the duress] causes agony. . . and this 

type is called ikrcsh -4 (incomplete comp~lsion).~~ 

As quoted above, al-Kasani cites imprisonment as an instance of 

non-compelling duress. Actually, the threat of imprisonment can never be 

compelling.29 While others have held that long imprisonment, contrary to 

a one-day detention, could be compelling duress." While still others implied 

that this depends on the condition of the prison; if it is in a bad condition

Islamic Studies, 30:3 (1991) 31 1 

then imprisonment is compelling duress.31 It would seem that the viey 

holding that long imprisonment in bad condition could be compelling duress 

is more consistent with the overall approach of Islamic law. 

The relevant point, according to Islamic law, is that duress is divided 

into two general categories. Threats of grevious harm, in whatever form, 

could excuse serious offenses. All other forms of duress would only excuse 

less serious offenses. The law defines what is a grevious harm, but the threat 

has to be subjectively felt and believed by the coerced. Therefore, there is 

a threshold question of whether the law recognises the form of duress and 

if it does, what category it falls under. Once the threshold question is trans- 

cended, there remains a question of the subjective feelings of the coerced. 

Consequently, if the law considers a threat of one day imprisonment to be 

non-compelling, regardless of the hypersensitivities of a timid person it will 

only excuse less serious offenses. Generally, only threats of death or serious 

bodily injury constitute compelling duress. 

There is some disagreement among Muslim jurists as to whether 

certain types of threats should be considered duress at all. For example, 

most jurists held that an act of public humiliation like a single slap on the 

face could be duress while a minority (particularly from the Hanbali School) 

disagreed." However, since a slap on the face cannot cause grevious bodily 

injury it is not compelling duress. 

According to the majority of Muslim jurists a threat of damage to 

property could constitute duress, and if the damage is substantial and grevi- 

ous, the threat could constitute compelling duress. Some jurists contended 

that whether the damage to property is substantial or not must be relative 

to the wealth of the victim.= A threat of destruction to ones home could 

be compelIing duress to a poor person while only constituting noncompelling 

duress to a person owning the means to easily replace his lost home. 

Most Muslim jurists also recognised threats of harm to third parties 

as duress. But they disagreed over who may the third party be. Some only 

recognised threats directed at parents or offsprings, and a few recognised 

even threats directed at strangers.% Nevertheless, particularly Hana6 and 

HanbaIi jurists insisted that whatever the type of threat, it only constitutes 

nowcompelling duress if directed at third parties.% Although the matter is 

not free from doubt, it seems that, as to the otber schooIs, whether a threat 

to a third party is compelling duress depends on the type of harm threatened. 

So, if a third party is threatened with death or grevious bodily injury then 

that is considered compelling duress. 

Notably, the Islamic approach to duress resembles. somewhat the 

traditional common law in its adoption of an objective inquiry focussing on


the type of duress. Nevertheless, a major difference is that while the traditional 

Common law only admitted certain types of duress no matter the 

coerced act, as mentioned later, Islamic law admits most forms of duress, 

but insists on proportionality between the type of duress and the type of 

act. Additionally, the traditional Common law held people to an objective 

standard of a braver or constant person. Islamic law, however, combines a 

subjective inquiry designed to ascertain whether, in fact, the victim felt 

compelled due to a present fear to oblige the coercer. Hence, Muslimjurists 

stated that we should iuquire into whether the victim believed, by a preponderance 

of his thought, that he was faced with a necessity that left him no 

alte~native.~~ Al Sarakhsi (d. 483/1090) explains this point in the following 

passages: 

"[We consider] the preponderance of thought [of the victim] and 

what he felt because the victim's belief takes precedence over the 

reality concerning matters that we have no way of verifying indepen- 

dently. . . . The conditions of people vary according to their ability 

to withstand pain, therefore, we have no alternative but to wnsider 

what the victim believed."" 

Al-Sara argues that since we cannot know what people can withstand 

or endure. We have to inquire into the specific individual case to ascertain 

whether fear existed.38 Tben a14arakW argues that this approach is best 

in order to "alleviate hardship from the people" (taysfr 'ulu'l-?I&). Finally, 

he adds that in each individual case it will have to be left up to the judge 

to decide whether the victim actually felt compelled or not.39 

This necessarily means that duress could be relative according to the 

circumstances of the duressed. Hence, what is not duress for a street-wise 

persion could be its opposite for a timid and inexperienced persoh. Iikewise, 

a single slap on the face or single lash with a whip could be oppressive for 

one person but not for the other. Each case has to be decided individually 

on its facts.& However, as mentioned earlier, the person's subjective feelings 

cannot transform noncompelling duress into compelling duress. 

On the closely associated issue of whether the threatened duress need 

be impending and immediate, there is dhgreement among Muslim 

Some jurists held that the duress is recognised only if the victim performed 

the coerced act in the presence of the coerced." Nonetheless, the majority 

of Muslim jurists disagreed, Shafi'i jurists argued that the threatened danger 

has to be immediate (a'jif) leaving little opportunity to escape. The crux of 

the matter, however, is the formation of fear in the victim's mind and that 

the victim would think he is left with no choice. Actual physical presence 

of the coercer is not necessary in order for the victim to form the belief that 

he is in danger."


The Malikis affirmed this argument; but they added that since the 

real issue is the formation of fear in the victim's mind, there is no need to 

require that the threatened harm be immediate. Consequently, even if the 

threatened violence would occur after a whole month and the victim was 

terrified by this, and he could not seek help, then there is duress.44 Al- 

Sarakhd, although a Hanafi, went much further in arguing that in certain 

situations even an explicit threat is not required. One such situation arises 

when A,ia person of authority, orders B to kill another, but A does not 

explicitly threaten to kill B if he does not comply. If from the context of 

the situation B believes that if he fails to comply, he will be killed then there 

is duress. Al-Sarakbsi justified this rule by arguing that, "it is the habit of 

oppressors, because of their haughtiness, not to explicitly threaten to kill 

people. But [in reality] they issue orden, and then if they are not obeyed, 

they always punish by death those who disobey them. And, therefore, if 

this is the common practice, then a simple order might be considered an 

explicit threat of death . . . that fulfills the requirements of 

Hence, the majority, and the better supported, view is that immediacy 

is only a factor to be considered as to the ultimate question of whether the 

coerced felt compelled.46 This is consistent with the Islamic emphasis on the 

preponderance of the victim's mind. As mentioned earlier, however, one 

should carefully note that the Islamic approach is not entirely subjective. 

For example, a single slap on the face or minor destruction to property, 

except perhaps to an indigent person, will never constitute compelling duress 

regardless of the particular idiayncrasies of the victim. Consequently, certain 

types of duress cannot excuse certain grave offenses although a particularly 

timid victim might feel completely overwhelmed by a relatively minor form 

of duress. The subjective inquiry is only designed to ascertain whether the 

victim in fact felt threatened. But the categorization of the duress, and what 

acts it can excuse is determined according to legal standards. 

The Islamic approach seems to be premised on the idea that although 

it is appropriate to consider the subjective feelings of the coerced, whether 

the duress should be recognised or not is essentially a policy and moral 

decision. Even in the existence of duress a person's will is really never 

overcome. Similarly, duress does not really negate consent nor the power 

of choice. Whatever the amount of physical or mental violence, a person 

still has the choice between endurance and submission. After all, a choice 

between two evils is still a choice. If a person is threatened by death to sign 

a contract, he could make a rational decision to sign the contract rather 

than die. The person might not be happy with the result, but he makes his 

choice based on the best possible scenarios available to him at the time. If 

the circumstances were different, the perion might have chosen a different 

course of action, but the circumstances being what they are, a person consents


and chooses an undesirable course of action. This is why the Hanafi jurists 

argue that choice is merely corrupted duress (i.e it is not a choice made 

under the best possible circumstances) but the choice is never rendered 

non-existent. More will be said about this matter by way of evaluating the 

Islamic approach. 

Inherent to the Islamic approach to the types of duress, is that the 

victim's response be proportional. First, the victim cannot commit more 

damage than the situation requires and he is held liable for the excess 

behaviour or the over reaction. Second, the victim cannot commit a great 

harm to avoid a lesser harm.47 merefore, the threat required varies with 

the harm committed. In £act, the whole logic of compelling duress and 

noncompelling duress is that there be proportionality between the type of 

duress and the type of act committed. By contrast, the Common law has 

ignored, and to an extent continues to ignore, the requirement of proportion- 

ality? 

In addition to the principle of proportionality, Islamic law requires 

that a victim of duress choose the lesser of the evils he faces (Wycfr akhaff 

ol-&~arayn).~~ Al-S- sates the general principle, "And if it is said . . . 

'an unjustly treated person has a right to resist injustice in whatever way he 

can'. We say: 'yes, but an unjustly treated person cannot commit injustice 

against others'. . . ."'" 'Ibis rule applies if the two evils are equal; the 

victim cannot save himself at the expense of others. But if the evil he will 

suffer is greater than the evil he will commit then he is excused.51 Otherwise, 

the victim is always under a duty to minimize the damage. So if he is forced 

to divorce his wife or commit a murder he must divorce his wife rather than 

commit a murder." If he is forced either to kill someone or pronounce 

apostasy, and he chooses to kill then he is not excused because prqnouncing 

apostaiy is a lesser crime than murder.s3 If he is compelled to murder a 

slave or destroy property, he must destory the property because a slave is 

a protected life. Furthermore, if he is compelled to destroy the property 

either of a rich person or a poor person, he must destroy the property of 

the rich person because that is the lesser evils.% A final example; if pe 

victim is compelled either to rape or murder neither choices are excused' in 

the hereafter. Meaning he will be punished for either choice on the final 

day. But as far as the earthly legal remedies are concerned, he must commit 

rape rather than murder i.e. if he commits rape, he will not be punished. 

But if he perseveres and commits neither that is much better in the final 

judgement." 

THE EFFECTS OF DURESS ON ACTS 

In an attempt to formulate a systematic law of duress, Muslim jurists 

divided acts into two separate categories: (1) physical acts and (2) verbal


acts.Physicalactskcrimiaalinana~esuchcrsmurder,rape,anddestruction 

of properly. Verbal acts are mainly civil such as forming contracts, divorce 

or marriage. In general, only compelling duress affects physical acts whild 

both compelling and noncompelling duress affect verbal acts.% 

Some Muslim jurists chose to make the centre of categorical divisions 

not so much the nature of the acts in question but, rather, the nature of the 

rights affected. According to these jurists, acts are divided into two kinds; 

(1) Those acts that only affect the rights of the victim of duress, and (2) 

lluse acts that affect the rights of other innocent people andlor the rights 

of God, such as apostasy. In the first type, a lesser form of duress may 

excuse the act. In the second type, a more compelling fonn of duress (like 

a threat of death or serious physical injury) is needed to negate liabi~ity.'~ 

The Common law did not create a dichotomy between the types of 

acts and the types of duress. Nonetheless, some of the rules articulated at 

traditional Common law were apparently premid on a differentiation be- 

tween the nature of rights affected. Some of that can be discerned from the 

Latin maxim privik@m non vdct contra ranpublicon (necessity does not 

excuse acts committad against the republic), and, hence, the rule that neces- 

sity does not excuse treason. Fmds Bacon demonstrates the logic of the 

above-mentioned maxim in the following example. If people at sea are faced 

by a tempest, they are not liable if they cast properly and goods overboard. 

But they are not excused if the shipisuuryingordnnace or atnmunition "to 

relieve any of the king's towns that are distressed. . . . ." Blackstone offers 

a more telling example of the original approach at the Common law. 

Blackstone argues that duress excuses "positive crimes" or, in other words, 

aimes created by the laws of society. "[But] not [so] as to natural offenses, 

so declared by law of God, wherein human magistrates are only the 

executioners of divine punishment." Therefore, a person placed in danger 

of life or limb cannot save himself by killing another." Pursuant to this 

logic, crimes against God's laws, the crown or the commonwealth were 

deemed inexcusable. This categorical approach somewhat resembles Islamic 

law. But Islamic law, although categorical, did not rely on the same rationale. 

Crimw against the rights of God are excused by duress, and whether crimes 

against the commonwealth are excused depends on a variety of considera- 

tions, the belief of the coerced being among them.60 

The modem Common law for the most part has abandoned categorical 

or dichotomous approaches. Nevertheless, the modem Common law does 

adhere to different forms of analysis in criminal as opposed to civil cases. 

The distinction, however, is not premised on anything dubious such as the 

differentiation between verbal and physical acts, and it does not seem to be 

premised on a differentiation between-the involvement or non-involvement


of innocent persom6' In fact, the Common law fails to explain the reason 

for adopting a standard of duress in civil cases different from that which 

applies in criminal cases. 

Other than discussing criminal and civil cases separately, this essay 

will not structure the discussion around the theoretical categories established, 

particularly, by Muslim jurists. Rather the focus will be on the specific rules 

that apply to the different types of acts. Firstly, contractual or civil matters 

will be examined, secondly, criminal acts such as destruction of property, 

rape and murder will be examined. Finally, our attention will be turned to 

the subject of superior orders. 

CONTRACTUAL AND CIVIL ACTS 

In the modem Common law, duress is recognised only if it overcomes 

the will of the victim. According to most cases and commentators, the 

approach is entirely ~ubjective.~' Therefore, section 492 of the Restatement 

of contracts states: 

Duress . . . means (a) any wrongful act of one person that compels 

a manifestation of apparent assent by another to a transaction without 

his volition, or (b) any wrongful threat of one person by words or 

other conduct that induces another to enter into a transaction under 

the influence of such fear as precludes him from exercising free will 

and judgement. If the threat was intended or should reasonably have 

been expected to operate as an ind~cement.~~ 

Although, courts frequently speak of a will overcome by duress, and 

of an entirely subjective approach, evidence showing whether a reasonable 

person would have felt compelled is pertinent as to whether the victim's will 

was, in fact, overcome.64 In other words, a court would consider what a 

reasonable person would have believed or done in order to evalkte the 

credibility of the victim's claim. This is inconsistent with the entirely subjec- 

tive standard that the modem Common law claims to follow. In fact, espe- 

cially in cases involving economic duress,65 as opposed to threats of physical 

injury, courts often grant relief on public policy grounds such as unjust 

enrichment, gross unfairness or bad faith dealing by the ~oercer.~~ 

The Restatement Second of Contracts resolves this discrepancy by 

abandoning the totally subjective standard. Section 175 provides:


If a party's manifestation of assent is induced by an improper threat 

by the other party that leaves the victim no reasonable alternative, 

the contract is voidable by the victim. 

Hence, in order for duress to exist two prongs must be fulfilled. One, 

the victim's assent must be induced by an improper threat. -0, there, must 

be no reasonable alternative left to the victim.67 The assent of the victim is 

decided through a subjective inquiry.68 Nonetheless, the existence, or lack 

thereof, of a reasonable alternative is a "mixed question of law and fact, to 

be answered in clear cases by the court". In summary, the Restatement 

Second pursues both a subjective and objective inquiry. The feelings and 

understandings of the duressed are accommodated to an extent. But the 

reasonableness of the alternatives available to the duressed would be objec- 

tively determined. One, however, has to admit, as in all areas of the law, 

that the word "reasonable" is extremely vague. It is not at all clear what 

does the phrase, "leaves the victim no reasonable alternative" means. Fun- 

damentally, what is reasonable can only be determined by reference to moral 

and policy experiences and expectations of society. These are the same 

considerations that help draw the thin line differentiating hard bargain situ- 

ations from oppressive and coercive conditions.69 Therefore, the Restate- 

ment Second seems to open the door for a host of moral and policy deter- 

minations. Importantly, a determination of the reasonableness of alternatives 

left to the coerced, threatens to make the subjective inquiry into the duressed's 

assent largely irrelevant. For example, in Miller v. ~ ikele,~ plaintiff 

believed that his stock broker made improper charges to plainti£Ps securities 

account which resulted in additional margin. In order to prevent defendant 

from selling more of his securities, plaintiff made the margin call payments 

under protest. The appellate court held that the trial court erred in granting 

the defendant's motion for non-suit, asserting that there were sdficient 

factual issues to send the case to the jury. In reaching its decision, the court 

heavily relied on the fact that plaintiff made these margin call payments 

during the market crash of 1929. The subsequent depression, the court 

reasoned, proved the phiintiff prudent in not waiting to sue for the value of 

his securities. 

As a practical matter, the fact that the plaintiffs worries proved 

correct is quite irrelevant as to whether his assent was coerced or whether 

duress existed. If the depression did not follow, plaintiffs assent would have 

been equally coerced at the time he made his decision. Ultimately, in asses- 

sing the reasonableness of the alternatives available to the duressed, one 

might ignore the assent or feelings of the duressed since these alternatives 

.could have been unknown to the duressed. Once it is said that a reasonable 

person should have thought of the alternatives, we are no longer seriously 

considering, and, in fact we are ignoring, the subjective feelings of the 

coerced.


It should be emphasised, however, that the approach of the Restate- 

ment Second does not represent the majority view. The majority of courts 

insist that the victim's will must be overcome and, consequently, that the 

inquiry be entirely subjective. 

In deciding whether the victim's assent was procured by duress, or 

in the terminology of most cases, whether the victim's will was overcome 

or not, the lapse of time between the threat and the coerced act only goes 

to the ultimate issue of fact. In other words, modem Common law, considers 

the imminence of the threat only as evidence of whether the victim's will 

has been overcome or not." Threats of harm to property or third parties, 

for the most part, are also admitted.n However, as to third parties, there 

is disagreement as to whether only threats to relatives should be recognised 

or all relationships should be admitted as long as there is affinity between 

the third party and the coerced person.n 

Finally, contracts made under duress are normally held to be voidable; 

they are void only in rare circumstance^.^' For example, if a person 

threatened by death signs a contract without knowledge of its contents or 

if a person under the influence of hypnosis signs a contract then these 

agreements are void rather than voidable. In both these situations, there is 

a total absence of consent. But in the more common situation, where the 

party's will has been overcome by duress, the contract is voidable." 

Islamic Law 

Islamic law, in many respects, is War to the Common law. As 

reviewed earlier, when it comes to civil acts, Islamic law recognises both 

types of duress, compelling and noncompelling. Since all types of duress 

are recognised, the only remaining question is whether, in fact, the victim 

felt that he had to assent to the transaction or risk getting harmed. If that 

is the case, as a matter of legal standard, and moralheligious policy, the 

transaction will not stand. Hence the inquiry as to the victim's state of mind 

is subjective. But as mentioned earlier, the law imposes an overriding objec- 

tive principle of choice of the lesser evil and proportionality. Therefore, if 

A threatens to destroys B's house unless he signs a condemnation order 

against ten houses, B cannot do so. The harm inflicted by B exceeds the 

harm avoided. Similarly if A threatens to destroy B's house unless B signs 

a condemnation order against Cs house and B is rich but C is poor, and B 

knows that C is poor, then B cannot inflict the harm. 

Islamic law incorporates the Common law dodrine that there must 

be no other alternative through the principle of choosing the lesser evil. If 

there was a less harmful alternative and the victim failed to pursue it then


the lesser of the two evils has not been observed. For example, if the person 

could have avoided the harm by seeking legal advice or police protection, 

the victim has a duty to commit the lesserpvil which in this case means 

seeking legal advice.76 

Taken to the extreme, this logic would nullify all claims of duress of 

goods or, more broadly, most cases of economic duress. For example, in 

the Miller case the plaintiff's alternative was to refuse to make the demanded 

payments and sue for breach of contract as well as other grounds rather 

than claim duress. At one level, Islamic law appears to resolve this problem 

by pursuing an essentially utilitarian approach. If waiting to sue for breach 

of contract would cause more harm than an immediate claim of duress, then 

the lesser of the two evils is to comply with the defendant's demands, and 

then claim duress. Importantly, however, "harm" is not identified solely by 

reference to the plaintiff's condition. Rather social and religious policies can 

enter into defining the extent of An example, taken from outside 

the context of Islamic law might help demonstrate the point.78 Suppose that 

A, an already rich individual, is due to inherit a large sum of money from 

an estate. An unethical lawyer threatens to tie up the estate in court unless 

A agrees to pay him exorbitant legal fees. A has two options; either he pays 

the fees now and claim duress later or sue the lawyer immediately and risk 

receiving his inheritance after a long delay. Since Islamic law does not rely 

on the logic of an overcome will, it can hold that duress exists because as 

a matter of public policy, lawyers cannot be permitted to behave in this 

fashion. In Islamic terminology, litigating the dispute in court is not the 

lesser evil, since, as a matter of law, allegations of attorney misconduct are 

a greater and more general evil or harm (erar kuli and not a +rur hiss).79 

Interestingly, the Restatement Second in civil cases seems to be closer to 

the Islamic approach than the traditional Common law. Both are standard- 

setting or standard-recognising, and both are vague but for different 

reasons.80 

Once duress is found, Muslim jurists could not agree on whether the 

resulting contract is void or voidable. According to the Hanafis, a defect of 

duress differs from other contractual defects (like a defect of fraud or mutual 

mistake) in certain respects. One, the contract could be subsequently invali- 

dated and, two, it could be invalidated even if handled by an innocent 

purchaser.81 Thus, according to the majority of Hanafi jurists, a sale or 

contract induced by duress is compt fjiiid), nonetheless, it is enforceable. 

The victim of duress, however, has the power to subsequently invalidate 

the contract of sale.82 

If the victim of duress eventually attacks the validity of the contract 

of sale, it becomes void even if there & a third innocent party who relied


on such a contract. In other words, even if the object of the illegal act of 

duress moves into the regular course of business (even if it is handled by 

hands, in Islamic terminology) it is still retrievable by the victim. If we may 

illustrate, assume A illegally compels B to give his horse to C and % sells 

the horse to D. Both C and D know nothing of A's illegal acts. Nonetheless 

B can retrieve the horse from C or D wherever it may be. D can sue C or 

A for the price of the horse, and D can sue A for the same price. In other 

words, the victim of duress is entitled to retrieve his rights, and the other 

parties are left to settle things amongst themselves. Ultimate, liability lies 

with the offending oppressor. The victim, however, cannot commit any act 

that evidences his acquiescence in the transaction. For example, if he willingly 

delivers the product or accepts a price after the duress is removed, that is 

a sign of acquiescence and approval. In effect, the Hanafis argued that 

contracts or sales induced by duress are voidable at the election of the victim. 

The Shafi'is, Hanbalis and Zahiris disagreed. They considered such transactions 

as void from the moment of their creation. Ibn Hazm, the Zahiri, 

relied on the Qur'hic injunctions prohibiting compulsion in religi~n,'~ then 

he argued, by analogy, that duress creates inherently illegal transactions 

that may not be sanctioned at any stage." The Shafi'is took another point 

of departure. According to them, consent (al-tarrudi) is a prerequisite for 

a contract to form in the first place. Since duress negates such consent, in 

reality, a contract was never formed, and, therefore, no legal effect can be 

given to such duress. Thus, the contract is void from its inception. The 

Hanafis, on the other hand, argued that consent is not a prerequisite for a 

contract to form, consent, rather, is necessary for a contract to be effective. 

This led the Hanafi school to conclude that a contract induced by duress is 

simply voidable and not void.'' 

The Maliki school chose a less stringent alternative. Maliki jurists 

decided that contracts or sales induced by duress are non-binding (ghayr 

kern): Thus, they cannot be enforced against the victim, but the victim 

cannot enforce his rights against innocent third parties who take in the course 

of business without knowledge of the illegality. The victim's remedy is to 

pursue the oppressor and obtain just compen~ation.~ 

If we rank the Islamic schools of thought in terms of how far they 

were willing to go to negate the effect of duress, the Shafi'is, Hanbalis, and 

Zahiris were willing to go to the furthest; to them the contract is void. They 

are followed by the Hanafi school; to them the contract is voidable. The 

MHliki school seems to be the most permissive in this regards; to them the 

contract is not binding.87


CRIMINAL ACTS: DESTRUCTION OF PROPERTY, RAPE AND 

MURDER 

The Common Law 

The Common law excuses all crimes except murder, and, perhaps 

treason, if such crimes are committed under the influence of a well-grounded 

fear of imminent death or serious bodily injury from which there is no 

escape." The Common law. of crimes for the most part has refused to 

recognise threats to property, financial interests or reputation.@ Although 

the traditional rule refused to recoguise threats to third parties, the modem 

Common law has created an exception in the case of close relativesg0 Ad- 

ditionally, the Model Penal Code does not require that the threat be im- 

mediate or imminent. Nonetheless, it does not seem that courts have accepted 

this reform.91 

The Common law standard, regardless of the crime, is the same, and 

as such it lacks pr~portionality.~~ Therefore, whether someone is forced to 

destroy someone's car or sever his arm, the test is the same. Similarly, if 

threatened by death or serious injury a person can inflict a bodily injury on 

another of the same or even greater magnitude, or such person can inflict 

bodily injury on two or even ten people. 

Partly in response to the Common law's inflexible standards and lack 

of proportionality, some commentators have advocated an entirely subjective 

standard in criminal duress. Thus, according to Newman and Weitzer: 

Factors such as the opportunities for escape, the weakness of the 

duressed, the immediacy of the situation, the availment of self help, 

the strength of the threat, the gravity of the crime, the resistance 

shown or not shown, should go to the weight of the evidence and the 

jury should be called . . . to decide whether these nuances of evidence 

prove lack of free willed action or not.93 

This approach unwittingly achieves proportionality, in certain regards, 

since a person threatened by a serious injury to property might be excused 

if he commits a less than serious offense. Nonetheless, this approach does 

not focus on, nor in any systematic sense promote, proportionality. Rather, 

the focus is on the will of the duressed regardless of the gravity of his crime. 

Consequently, even if the avoided harm is less than the committed harm, 

the duressed is excused if his will was overcome. 

This approach is untenable for three reasons. First, it relies ori a legal 

construct in trying to undermine other legal constructs. Namely, the assump-


tion that a person can only be duressed by death or serious bodily injury is 

a legal construct. But the idea of free will overcome, as discussed later, is 

itself a legal construct. Second, it assumes that the criminal law has no 

interest in promoting certain moral or social standards in society. It is incor- 

rect to assume that the legal system should recognise the fallibilities of people 

without regard to any moral or social standards. After all, any crime commit- 

ted is the product of some human weakness, and, yet, no one will be heard 

to argue that such frailities of the human character should absolve a criminal 

of wrongdoing. The reason the law creates exceptions such as duress, mis- 

take, or self-defense is for moral and policy reasons quite apart from the 

mem rea or state of mind that the defendant laboured under. Third, there 

is no possible moral or policy reason to absolve someone who, for example, 

kills a human being in order to avoid injury to his beloved dog. That is so 

even if the duressed's will was overcome by the threat to his beloved dog, 

it would not be proper to say that a person who wished to save his beloved 

library, for instance, is excused if he rapes, severs a limb, or kills a person. 

A subjective standard is, of course, fair to the individual in that it accommo- 

dates his particular temperament and personality. However, it is inherently 

unfair to society unless it is accompanied by the principle of proportionality. 

Aware of the difficulties inherent in the subjective approach, the 

Model Penal Code rejected it stating that,"[t]o make liability depend upon 

the fortitude of any given actor would be no less impractical or otherwise 

impolitic than to permit it to depend upon such other variables as intelligence 

or clarity of judgement, suggestibility or moral insight."94 The Model Penal 

Code adopts, what it calls a "partially objective" standard. The victim must 

establish that he has been coerced in circumstances under which a person 

of reasonable firmness in his situation would have been unable to resit." 

The size, strength, age or health but, not the temperament of the duressed, 

would be considered in deciding whether a reasonable person in the victim's 

circumstances would have acted similarly.% There is no specific type of 

threat required by the Model Penal Code. Except for threats to property or 

reputation, which the Commentary says, cannot as a matter of law exercise 

sufficient coercive power over a person of reasonable firmness, all other 

threats are recogni~ed.~~ 

Nonetheless, the Model Penal Code, Section 2.09 is incomplete in 

the sense that it is standardless. For example, assume A threatens to kill B 

if B does not break the lkg of C, a competent football player, right before 

the superbowl. A fanatic sports fan jury might find that B acted unreasonably 

in breaking Cs leg. B is not excused by Section 2.09. However, the Model 

Penal Code remedies this situation by Section 3.02. Section 3.02 provides 

that a person is justified in committing any act if the harm sought to be 

avoided is greater than the harm of the act committed.% Hence, because

lskmic Studies, 30:3 (1991) 323 

of Section 3.02, not 2.09, B in our hypothetical example would be justified 

in breaking Cs leg. Likewise, a person who kills one to save the lives of 

ten others would be excused.99 

Despite Section 3.02 which compliments and completes Section 2.09, 

the Model Penal Code's approach still lacks proportionality in important 

respects. Assume, A threatens to kill B if B does not plant a bomb 'on an 

aircraft full of passengers. B does so and 300 people are killed if a jury 

decided that what B did was reasonable, Section 2.09 vindicates B. Section 

3.02 would not apply. In the alternative, assume A and three other people 

are stranded at sea. A consequently kills and consumes all three people to 

stay alive. If the jury decides that A acted reasonably, it leads to a very 

disproportionate result. In other words, while Section 3.02 pennits a person 

to claim he committed the lesser of two evils, Section 2.09 would pennit 

the greater of two evils to stand. Consequently, although the Model Penul 

Code is successful in achieving a certain degree of proportionality, it lacks 

in other respects. 

One should note, however, that the Model Penal Code is unique in 

that it pennits the defence of duress in the case of murder. The traditional 

Common law refused to recognise that murder is ever excused or justified 

by duress, calling murder the "inexcusable choice". As Blackstone put it, 

"he ought to die himself than to escape by the murder of an innocent 

person".'00 Most modem jurisdictions recoguk the murder exception to 

duress,''' but this exception has been heavily criticised by several writers.''' 

It is argued that it is totally unrealistic to expect people to be willing to 

sacrifice themselves rather than murder another. The Model Penal Code 

itself calls it hypocritical to require a standard of conduct that a person's 

judges are unable to live up to if placed in the same ~ituation.'~~ It is argued, 

if most.people placed in the same situation would succumb to and 

commit murder then the law loses its deterent value in imposing too high a 

standard. The law, in fact, would be imposing a meaningless penalty unjustified 

by any social value.'Oq 

This argument, however, is not persuasive on several counts. Firstly, 

it assumes that the only reason for penal laws is deterence. Quite apart from 

deterence, the law could affirm moral values such as the sanctity of human 

life. Thus, the law could play a morally educative role setting standards of 

conduct. '" 

Secondly, this argument is essentially limitless since it defers to social 

practices regardless of their moral content. If most people would give more 

value to the lives of a certain mcial group, should that be accepted? Or, if 

most people would kill a person to save their pets, should that be accepted?


The law is replete with instances where regardless of the dominant social 

practices, a standard is set. Thirdly, the argument lacks proportionality. 

Perhaps, it would make some sense to argue that a person should kill a 

stranger to save his three young children but it makes no sense to permit a 

person who plants a bomb in a crowded train to claim duress.'" 

Most criminal acts implicate @e rights of innocent persons. The limits 

and inviolabilities (hwzlmdt) are great because, according to Muslim jurists, 

one should not repel injustice by committing injustice. Since the rights of 

innocent people involved, the standards are higher and the moral and policy 

concerns of the law are greater. Therefore, Ibn Hazat asserts that the victim 

of duress has a primary duty to resist committing acts that violate the rights 

of others. A Muslim, according to Ibn Hazm, should resist injustice rather 

than succumb and harm others.107 Muslim jurists,including Ibn Hazm, then 

add that if a Muslim resists committing murder, rape, or destruction of 

property and is injured or killed in the process, he is rewarded by ~od.' 

The absence of altruistic behaviour, however, does not mean that 

the victim of duress is held liable. In Islamic law in most cases, there are 

two separate and independent rulings. There is a religious ruling (pertaining 

to the person's liability in the hereafter) and, a secular ruling (pertaining to 

the person's criminal liability in this world). The religious xuling is designed 

to uphold the ideals of religion. The secular ruling accommodates human 

frailties while at the same time trying to uphold certain standards of conduct 

inspired by policy and religion. 

We shall deal with three categories of criminal adestruction of 

property, rape, and murder-+ illustrations of the effect of duress on crim- 

inal liabilities in Islamic law. Generally, as mentioned earlier, in the field 

of criminal liability, only compelling duress is admitted. Once it is established 

that compelling duress was used, a subjective inquiq determines whether 

the person was, in fact, coerced. The rejection of non-compelling duress, 

in most cases, in this area, is motivated by the principle of proportionality. 

A person should not commit a greater harm than that which is threatened. 

The less serious case is that pertaining to the destruction of property. 

A typical example of this would be when A forces B to burn C's house or, 

alternatively, A forces B to burn his own house. As to the religious rules, 

there is no liability on the dwessed if the criminal- act does not involve the 

rights of others. However, if the rights of others are involved, a person 

cannot succumb unless the duress involves compelling duress. Muslim jurists 

argued, however, that even non-com~lling duress can act as an excuse if


the property damage is not extensive so that the threatened harm is greater 

than the committed harm. 

The secular ruling as to criminal liability mirrors the religious ruling. 

Nevertheless, there is an additional issue of who should compensate the 

innocent party (C in our example). On the issue of compensation there is 

much disagreement among Muslim jurists. Some jurists10g asserted that if 

the duress is compelling then responsibility for compensation should lie with 

the mercer and coerced. So to apply this to our example, C (the i~ocent 

party) can seek compensation from A (the coercer) or, alternatively, from 

B (the coerced). Other juristsl10 argued that if the duress is compelling then 

only the mercer, A is liable and not the coerced, B. 

If, on the other hand, the duress is not compelling, the majority of 

jurists decided that only the victim (B in our example) would be liable to 

the innocent party (C in our example). Some jurists, correctly in my opinion, 

argued that, in this case, although the victim (B) might not be forgiven for 

his behaviour on the final Day of Judgement, liability should still be shared 

by A and B, or at least C must be able to get compensation from either A 

or B. In other words, Cs options for compensation must not be limited 

because of B's frailty."' 

Rape is a more serious matter. For one, it involves serious criminal 

sanctions, additionally, it is absolutely prohibited. There are several possible 

scenarios involving non-consenting intercourse. A could physically attack C 

(a female or male) and rape her or him. Alternatively, A (a male or female) 

could threaten to kill C (a male or female) if he or she does not have sexual 

intercourse with him or her. Or, A could coerce B (a male or female) into 

raping C (a female or male). 

The first two scenarios involve cases of traditional rape. As a general 

rule, the rapist is always liable and raped is never liable. The third scenario 

is the one more typically discussed by the law of duress, and the question 

is whether B could commit rape in order to save himself from harm. 

Most Muslim jurists held that if the duress involves serious bodily 

injury or death (but not extensive destruction of property) then B is excused 

from all liability, religious or secular. On the other hand, if the duress is 

nonampelling, the duressed is liable in this life and the hereafter. Some 

jurists, however, held that rape can never be excused, the duressed should 

have sacrificed himself rather than commit the grevious harm of rape."2 

Finally, we deal with the case of murder. The religious rule, in Islam, 

is that murder is never justified. Therefore, no matter what type of duress

326 isiamic Studies, 30:3 (1991) 

is brought to bear upon a person she may not commit murder, and if she 

does, she will be liable on the Day of judgement. The religious rule affirms 

the moral principle that people should not prefer their own lives over others, 

and that only God should decide when a person should die. 

As to the secular ruling, there are two main schools. The first school 

holds that if the duress is compelling, only the coercer is held liable, and 

the duressed, for the most part, is excused. The justification propounded 

by this school was that by the utilization of compelling duress the coerced 

has become the instrument of the coercer, and, therefore, it is as if the 

duressed has not acted at all. Nonetheless, this justification cannot be taken 

seriously since the proponents of this school insisted that the duressed should 

receive some light punishment as well as be responsible for the blood money. 

The second school, that includes the majority, and the most plausible in my 

view, decided that both the coercer and the coerced should be punished. 

The coercer is punished for being the primary motivator of murder, and the 

coerced is punished for prefering his life to the life of others.'" The hypothet- 

ical example frequently cited by Muslim jurists is that of a boat in danger 

of capsizing. In order to save themselves, the passengers may throw over- 

board property such as goods and animals. But they may not lighten the 

load by throwing human beings overboard even if it means throwing over- 

.board a single passenger to save the rest. As a matter of religious and moral 

policy, the law should not appear to be granting preference to the life of 

some over others."' 

The second school's view is justified particularly when a coerced 

person kills one or several innocent individuals to save himself. There is no 

reason to condone a person who saves himself at the expense of others. The 

more di£6cult situation is, as above, when fewer people are killed W save 

a larger n ~ber of lives. For example, if A threatens to kill B's three children 

unless B kills C. Here the rules of proportionality, and the principle of 

committing the lesser evil would not support holding B liable for murder. 

But the hypothetical example mentioned above, and the unequivocal language 

used by Muslim jurists in not excusing murder under duress suggest 

a contrary result. As noted eariier, Islamic law seems to premise its position 

on a belief that a human being should not prefer a life or, even a number 

of lives, over others. People should not be in the business of drawing preferences 

quantitatively or qualitatively between lives. As such, Islamic law does 

noi seem concerned with wrximizing social utility by sacrificing the least 

number of lives. Rather it upholds a principle founded on religious basis, 

as a goal in itself. All life is equally inviolable, and the law should not get 

involved in dangerous task of preferential selection. 

However, Muslim jurists dealt with the most straightforward situation, 

i.e. when A coerces B to murder C, or when A and B faced with starvation

lslamic Studies, 30:3 (1991) 327 

kill and consume C. Muslim jurists did not deal with the more difficult 

examples that might arise under 'a form of duress or necessity, and that 

might pose a serious challenge to the Islamic response to the problem. For 

instance, assume Ali and Ibrahim wete climbing a mountain while being 

roped together for protection. Ibrahim slips and fells, but Ali grip a moun- 

tain edge and Ibrahim dangles down supported only by Ali. Ibrahim is 

unconscious, and Ali cannot pull him up. Either Ali cuts the rope, kills 

Ibrahim but saves himself, or he will be overcome by exhaustion, and both 

Ali and Ibrahim will plunge to their death."' Ali cuts the rope, Ibrahim 

dies and Ali is saved. 

For another difficult hypothetical position let us assume Ali, an en- 

gineer, works on a dam. 'helve men are busily working on a farm below, 

Ali suddently notices serious over-floading. Either he opens the dam gates, 

drowning the twelve men and saving himself or he does not open the gates 

and drowns himself and a town lying behind the dam. There is no time to 

warn the twelve farmers below. Ali opens the gates, saves himself and the 

town but kills the twelve men.l16 The question in both hypothetical positions 

is: Can Ali be held responsible for murder? Ones moral intuition is to say 

no. More importantly, Islamic law does not offer a definitive answer."' 

One suspects that a serious answer will only emerge when a real case 

with similar facts arises in a court applying Islamic law. 

Another point of comparison between the Common and Islamic laws 

of duress is the area of superior orden. The legal doctrine of "superior 

order$' was much debated in the West after the Second World War. Basi- 

cally, as a criminal law concept, it is a defence raised by those accused of 

obeying illegal d en of superion (for example, a superior orden a soldier 

to execute a prisoner of war). The majority opinion in Common law jurispru- 

dence is that a superior order is a defence only if the follower reasonably 

and honestly believed that it was legal at the time he obeyed it. The Model 

Penal Code goes further in holding that members of the armed forces are 

insdated from liability in civil courts unless they had actual knowledge that 

the superior order was illegal. The fact that a person of o&ary intelligence 

would have known that the order was illegal is insu£ficient, acmrding to the 

Model Penal Code. Rather, the person must have actual knowledge and 

belief that the order was, in fact, illegal.11g 

Muslim jurists discussed a similar doctrine usually under the heading 

of amr al-sul* (the order of the ruler). The discussion centred on the legal 

consequences of an illegal order by a superior to one of his agents. Muslim


jurists argued that the agent should be liable for any illegal orders implemented 

if the agent knew of their illegality. Some jurists added that the 

agent is also liable if he should have known of the illegality of the orders, 

either because of the superiors prior illegal course of conduct or becam of 

the agent's own presumed level of kn~wledge.~ Therefore, if the superior 

is well-known for his injustice, the agent will not be allowed to claim ignorance 

of the illegality of the orders. Similarly, if the agent is a knowledgeable 

person he cannot be excused. 

Both legal systems, quite apart from any question of an overcome 

will, reach a policy determination that an agent should not be able to insulate 

himself from liability by claiming he was simply following orders. The reasons 

for this are quite obvious. If the law decided that the agent should have 

known the illegality of the orders issued to him, the agent's subdued state 

of mind will not vindicate him as a matter of law. Once again, this de- 

monstrates that it is not so much the state of mind of the coerced that 

motivates the law of duress as it is the moral and policy standards that the 

law hopes to set. 

APPRAISAL 

The fact that there is a causal co~ection between a person's behaviour 

and an act does not necessarily mean that the person is legally responsible 

for such an act. There is a significant difference between, what Wertheimer 

calls, "ascription of responsibility" and "reasonability simp~iciter".'~' 

Beyond factual causation, the responsibility of a person for his actions in 

the moral or ethical sense can and should be taken into account. But countervailing 

policy reasons or even codlicting moral considerations might interfere 

to modify the co~ection between responsibility and liability. Such 

is the case, for example, with strict liability or statutory rape legislati~n.'~~ 

The law, for the most part, does not hold a person liable if he commits 

an act under the pressure of wrongful duress. Not every duress, however, 

is wrongful, and not every wrongful duress merits a legal vindication. Rather, 

the relevant question to pose is: when is it appropriate to relieve a duressed 

person from liability for his acts?'" 

From the theoretical point of view, there are two approaches to this 

question; empirical or mora~ised.'~ One approach is to analyse duress basically 

as an empirical fact. Did the threat terrify the victim? Is there a causal 

co~ection between the psychological state and the act committed? Could 

the victim have done anything other than yield to the pressure exerted upon 

her?


A different approach is to ask, did the coercer have a right to threaten? 

Did the threatened have right to succumb to the pressure? Does the victim 

owe any obligations to others including the coercer? A third approach, I 

propose, is to combine both inquiries, and to incorporate a policy, based 

inquiry. This third approach would ask three essential questions: (1) Did 

the duressed in fact feel forced to do what he did? (2) Assuming that prop 

ortionality and committing the lesser evil are requirements of fairness, was 

what the duressed did fair to society or did the duressed unfairly violate the 

rights of others? (3) Are there any policy questions, including moral and 

constitutional, that need to be considered? Policy questions, for instance, 

could include concerns about due process guarantees against coerced confes- 

sions, finality of adoptions, or the necessity of obtaining testimony even if 

the witness feels intimidated and threatened. 

Islamic law roughly follows this approach, it begins by asking the last 

question first. Furthermore, Islamic law phrases the last question in terms 

of religious policy. Hence, as a matter of religious policy if the rights of 

innocent people, other than the rights of the coerced, are involved, the law 

demands a higher level of perseverance and endurance. Consequently, duress 

is divided into two types, compelling and non-compelling. The law excuses 

the act committed depending on the type of duress inflicted. In civil acts, 

in most cases, only the rights of the coerced are involved and, therefore, 

both types of duress are recognised. The dichotomy between compelling 

and non-compelling duress is also necessitated by the second prong. However 

this dichotomy alone cannotachieve proportionality. Although compelling 

duress will excuse serious crimes, it will not excuse all serious crimes whatever 

the scale. 

.Also, as a matter of religious policy, Muslim jurists maintain that 

murder is never excused. Additionally, religious policy determines if third 

party threats are recognised. As discussed, Ibn Hazm, for example, maintains 

that the policy of brotherhood between Muslims necessitates recognising 

threats directed at strangers.125 What is religious policy in Islam is informed 

by textual sources such as the Qur'h and the Sunnuh (the Traditions of the 

Prophet and his ~om~anions).'~ But, as noticed from the diversity of opinions 

within Islamic law, that does not preclude the possibility of disagreement 

among jurists nor does that necessarily create a well-defined set of religious 

policies. 

Furthermore, religious policy is not the only type of policy inquiry 

permitted in Islamic jurisprudence. Of course, Muslim Jurists did not deal 

with modem problems such as whether plea bargains are coerced. Nonethe- 

less, policy could be based on customs or social practices as long as these 

customs do not violate fundamental religious tenets.ln


After passing the threshold question of religious or social policy, the 

subjective feelings of the coerced are considered, and, finally, the question 

of fairness is addressed. Therefore, the act committed must be the lesser of 

two evils as well as proportional and not excessive. Naturally, these limiting 

guidelines would play a more significant role in criminal law than in civil 

acts. The main virtue of the Islamic approach lies in its inner coherence and 

systematic presentation, and in the fact that it has clearly realized that the . 

law plays a standard setting role in the field of duress. 

The Common law, unlike Islamic law, does not offer a methodolog- 

ically systematic response to duress. As noted earlier, the traditional Com- 

mon law did pursue a categorical approach. And as seen, Blackstone's jus- 

tification for the murder exception is that the sdciety cannot forgive when 

the rights of God are involved. But this approach was never elaborated or 

developed.la In modern times, as to the question when is it appropriate to 

relieve a duressed person from liability for his acts, the Common law gives 

various answers. In civil cases, a person is not liable if his will is overcome. 

In criminal cases, the majority opinion is that a person is not liable if his 

response to duress is reasonable. The basis for the distinction is not de- 

veloped. More importantly, it is not clear what does an "overcome will" or 

"reasonableness" mean. 

A number of scholars have criticised the overborne or overcome will 

approach. P.S. Atiyah even recommends that the theory "be consigned to 

the 'historical ~cra~hea~".'*~ 

The difficulty arises from the fact that in the course of life many 

decisions, although not the result of duress, are made under so called "no 

choice" conditions.lM For example, a person might be forced to accept a 

job he dislikes simply because there is no other option, other than starvation. 

Or, a person might be forced to take a loan to avoid becoming homeless or 

a person might be forced to go to a doctor and pay the medical fee in order 

to avoid the risk of death to his sick daughter. In other words, duress, in 

the Literal sense, exists in every aspect of life. Simply because humans have 

necessities, certain conditions are by their nature coercive. 

The duress recognised by law is a legal construct based on vague 

notions of fair play, equity and social and moral policy. As Atiyah contends, 

duress is only partly a question .of fact, but also a question of law. The 

overcome will theory gives the mistaken impression that duress is a question 

of psychology.'3' The fact that policy issues permeate the whole legal a p 

proach is quite clear. For example, it has been held that a fear of the death 

penalty does not render a plea bargain agreement coerced.132 Likewise, a 

fear of serious bodily harm does not necessarily excuse prison escapes.'33

lslamic Studies, 30:3 (1991) 33 1 

In these, and other fields of legal duress, there are contravening social 

problems that require balancing the psychology of the duressed with the 

needs of society. Therefore, the legal approach to the subjective feelings of 

the coerced depends on the particular area of law under considerati~n.'~~ I 

am not arguing that considerations of policy or morality should render a 

subjective inquiry entirely irrelevant. But as with most issues, law has to 

balance rights and such a balance renders the language of an overcome will 

inappropriate. 13' 

Nevertheless, from a comparative perspective, the Islamic approach 

would not yield very different results from those reached by the Common 

law. Both systems would not exclude most types of duress, and both would 

focus on the factual question of the coerced's state of mind. Nonetheless, 

Islamic law would, more consistently with its premises, be able to admit 

that it is balancing the interests of the individual with that of society. 'Ihree 

examples might demonstrate the similarities and differences. 

Assume that a wife threatens to expose her ex-spouse's extramarital 

affair unless he agrees to- certain property concessions. At Common law, 

there is some evidence that this threat would not be considered coercive.136 

Islamic law would probably consider such a threat coercive as a matter of 

religious policy. Unproven accusations of infidelity are a criminal offense, 

and the burden for proving infidelity is ins~mountable.'~' m e remaining 

question, since the type of duress is recognised, is what impact did such a 

threat have on the coerced's mind. This form of threat to reputation would 

probably also be recognised in criminal cases, but it is not clear whether it 

would be considered compelling or non-ompelling duress.13' Probably, like 

threats to property, the classification would depend on the extent of expezted 

damage to the coerced. 

To take a different scenario, assume that A threatens to destroy B's 

supply of cocaine if B, a drug dealer, does not sign a contract on a collateral 

matter. Assume further that B's will was, in fact, overcome by A's threat. 

Islamic law, can, consistently with its premises, refuse to recognise this type 

of threat as legal duress. This is because Islamic law's approach only gets 

to the coerced's mind after it decides as a matter of policy that the type of 

duress inflicted is actionable. The Common law probably would also not 

reoognise this type of duress. But it can only do so by referring to elements 

external to the coerced's will. The threat here might be wrongful but that 

does not necessarily olean it is recognisable by law. 

A final example will further help contrast the approaches. In King 

v. Lewis, an African-American farmer made statements before a grand jury 

to the effect that the county's sheriff is stealing money and accepting bribes.

332 klamic Studies, 30:3 (1991) 

Upon hearing these statements the sheriff vigorously expressed his displeasure. 

Fearing harm, the h e r and his brothers went to meet the sheriff. 

The sheriff made statements to the effect that the farmer had slandered him, 

and, again expressed his anger. 'Ihe sheriff advised the farmer to go meet 

the sheriff's attorney to settle the matter. Upon visiting the sheriff's attorney, 

the attorney stated that it was good thing the farmer came to see him because 

he was getting ready to attach everything the farmer owned for a 3000 dollar 

slander suit. After protestations of poverty, the farmer agreed to a 5000 

dollar settlement. The farmer later sued claiming that the settlement was 

obtained under duress. A jury found in favour of plaintiff, and defendant's 

motion for a new trial was denied. 'Ihe Supreme Court of Georgia reversed 

finding no evidence of duress. 'Ihe Court stated: "With an appreciation of 

the veneration and sometimes fear in which the 'high sherifP is held, especially 

by some members of the coloured citizens in this southern country, 

we can well understand how plaintiff, when he began to hear rumblings of 

the sheriff's wrath could have become frightened and fearful of the comequences 

to himself'. Nonetheless, the Court held that even if this fear resulted 

in his signing the contract that, "does not measure up to the legal definition 

of duress". The duress exerted upon plaintiff, according to the Court, came 

from within and not from with0~t.l~~ 

If a standard to overcome will is accepted, the Court's holding is of 

doubtful validity.14' 'Ihe existence of an explicit threat from the sheriff 

should be irrelevant. If the plainti£f's will was overcome by the coercive 

situation, it would seem there is no reason to deny relief. 

As to Islamic law, we have already encountered Sarakhsi's analysis 

as to commands or requests by superiors known for their injustice or oppres- 

sion.14' Islamic law would deal first with the question of whether the practices 

of officials in a society call for recognition for this type of duress. The 

practices of the particular official are largely immaterial; the essential fact 

is whether the social circumstance call for added protection to a segment of 

society or all of society.142 Subsequently, the subjective feelings of plaintiff 

would be examined to determine if he was, in fact, coerced. The merit of 

this approach is that it would force a court to explicitly state its policy analysis. 

'Ihe standard of reasonableness pursued by the Common law in the 

criminal context seems to partly solve this problem. In explaining why a 

certain behaviour is reasonable, a court necessarily has to articulate the 

social and moral standards relied on. But the relevance of "reasonableness" 

to the law of duress is not readily apparent. It is not clear why is it important 

that a coerced person act reasonably, or even if it is possible. Realistically, 

it is entirely unreasonable to expect people panicking under the threat of 

an impending serious injury to act reasonably. In all likelihood, if placed

Ishmic Studies, 30:3 (1991) 333 

under the threat of imminent danger, a person will panic and react on 

impulse.'43 Nevertheless, to say that the reasonableness standard is unrealis- 

tic is not necessarily to say it is inappropriate. 

The reasonableness standard is too indefinite. What is reasonable for 

a particular person will vary with his or her personal characteristi~s.'~~ The 

indefinitness does not neoessarily arise from the need to individualize the 

inquiry, but because reasonableness essentially involves a hindsight evaluation 

of the moral appropriatness of the coerced's response to duress. To say 

someone acted reasonably under the circumstances is to say no more than 

that society approves or, at least, cannot condemn the coerced's rea~ti0n.l~~ 

As Fletcher succinctly puts it: 

Indeed, the appeal of the reasonable man is precisely that he permits 

one, covertly, to make the same judgement that one would make in 

openly discussing the defendant's moral responsibility for his conduct. 

Yet if that is the case, one wonders why common law judges bother 

with the circumvention; why not simply ask whether the accused 

ought to have been able to resist the pressure exerted on him?146 

- Fletcher, however, argues that the law's approach to duress should 

not be based on rules. Rather it should focus on an individualized approach. 

However, rules are important not only for predictability, but also for affirm- 

ing standards of conduct. Such standards should be based on moral and 

social considerations and notions of fairness such as proportionality. 

It should be stressed that Islamic law does not ignore the individual's 

feelings. After all, there is something inherently moral about considering 

the individual feelings of a person in a difficult predicament. But that cannot 

be the sole consideration. At the same time, Islamic law does not commit 

itself to upholding vague moral standards such as "reasonableness". Con- 

sequently, it can limit itself to recognising only certain forms of duress in 

proportion to the interest at stake. Importantly, based on moral and social 

considerations, rules elucidating standards of conduct can provide an element 

of predictability in the law. 

But while adopting a methodology capable of providing predictability, 

Islamic law lacks in im*rtant respects. Foremost, Islamic law, as it now 

exists, speaks in too many voices. Hence many contradictory evaluations 

and determinations of the admissible types of duress and relevant standards 

of conduct can be found. Some voices, for example, have excused murder 

or, at least, held that the defendant will not be punished in this life although 

saving themselves at the expense of others.'" Further confusion is created 

by the fact that some jurists express rules or exclusions unsupported by any


possible religious, moral or social policy. For example, there seems to be 

no rational policy behind refusing to admit duress directed at third parties 

especially relatives and loved ones.'48 

More importantly, Islamic law fails to comprehensively explain the 

proper balance between the rights of society, religion and*individual. The 

approach of saying some choices are inexcusable as a matter of law is fundamentally 

correct, but the essential question is what are the limits. For example, 

take a person who, threatened by rape, escapes from prison. Rape, 

according to Islamic law, is a grevious bodily injury and, thus, compelling 

duress. ~utcbuld society's interest in maintaining order in prisons be equated 

with society's interest in the inviolability of life, and, therefore, a threat of 

rape would not excuse an escape? In other words, as there is a murder 

exception, could there be a prison escape exception? It seems that there is 

something very immoral in saying, as a matter of law, people should withstand 

rape rather than escape. Probably, most Muslim jurists would insist that 

rape is compelling duress, and as long as the crime annitted is proportional 

to the threatened harm there is no liability. Hence a threat of rape would 

excuse prison escapes. Nonetheless, this response is unsatisfactory because 

if one recognises a murder exception, other exceptions could be created. 

Fundamentally, while Muslim jurists worked out an appropriate methodology, 

they have failed to fully explain the value system or moral theory that 

underlies this meth~dology.'~~ This lack of clarity is a product of the medieval 

historical period in which Islamic law was formulated, and also a product 

of the difficulties Islamic law has encountered in the modem w~rld.'~ 

Since the Colonial era, and to this day, most Muslim countries have 

abandoned Islamic law in favour of Western legal systems, especially the 

Civil law system.''' This is unfortunate not only because Islamic law has 

been denied the opportunity for development, but also because Islamic law 

has been largely removed from the international legal discourse. However, 

incomplete legal systems can both inform and reform each other. Implicitly, 

comparative studies are indispensable for this task. Frequently, the specific 

rules adduced by a legal systems are not as probative and insightful as the 

methodology or approach adopted. In this regard, the main contribution of 

Islamic law in the field of duress is its methodology. 

As Alan Watson has stressed, a comparative approach to the study 

of law is not only significant for understanding the relationship of law to 

society, but also for the practical value of reform through selective borrowing.'" 

Beyond outright legal borrowing, comparative studies could inspire 

innovative thinking that transcends the'constraining influence of precedent, 

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 

the validity of its approach. This approach could inspire the Common law 

towards a more systematic and coherent approach to duress. 

NOTES AND REFERENCES 

The term "duress", instead of coercion or compulsion, will be used in most pans of this 

essay. Coercion in Common law refers to a special defence available to wives who commit 

an illegal act in the prcscnce of their husbands. Smith and Hogan, C M Low (5th 4.. 

1983) p. 209; Bishop, Commmtariu on the C M Lmv, vol. 1 (7th ed., 1882). p. 224. 

The justification for this rule as explained by Francis Bacon is that "the law intends [a 

woman] to have no will, in regard of the subjection and obedience she owes her husband". 

F. Bacon, "A Collection of Some Principal Rules and Maxims of the Common Laws of 

England," in Thc Works of Francis Emon, vol. 13, ed. B. Montague, (831). pp. 161; and 

see, W. Blackstone, Blacksfone's Commentaries, ed. G. Tucker (18[n), bk. N, chap. 11, p. 

27, noting that the rule is at least a thousand years old. But this defence is now becoming 

defunct. W. Lafave and A. Scott, Handbook on Criminal Low (1972). pp. 3W81; Perkins. 

Criminal Law (2nd cd., 1969). p. 918. But see, Edwards, "Compulsion, Coercion and 

Criminal Responsibility," 14 Mod. L. Rev. 297,312-13 (1951), who argues for the retention 

of the special defence of coercion. Compulsion seems to apply to situations where one person 

physically form a person to commit an act by the application of direct force, for example, 

grabbing a person's hand and striking another with it. See H. Fingarette. "Victimization: A 

Legalist Analysis of Coercion, Deception, Undue Influence and Excusable Prison Excape", 

42 Wash. & Lee L. Rev. 65, 65 n. 1 (1985); 1. Dennis, "Duress, Murder and Criminal 

Responsibility," % Low Q. Rev. U)8.u#1 n. 1 (1980). Also see Edwards, Id.. p. 297 for the 

differences between the !ern. The Arabic term for duma b -but it will not be used 

in this essay for the sake of consistency. 

Blackstone, Commenfarics, p. 27. Blackstone reasons that punishment is only appropriate 

for the abuse of the will given to people by God. Francis Bscon repeats the similar rhetoric: 

"The law chargeth no man with default where the act is compulsory and not voluntaj, and 

where there is not a consent and election; and, therefore, if either there be an impossibility 

for a man to do otherwise, or so great a perturbation of the judgement and reason as in 

presumption-of law man's nature cannot overcome, such necessity cameth a privilege in 

itself." F. Bacon, Colkchbn, p. 160. 

D. Bradley, "Duress and Arranged Marriages," 46 Mod. L. Rev. 499 (1983); L.N. Brown, 

"Shotgun Marriage," 42 Tul. L. Rev. 837 (1%8); Robert Brown, "Dwess and Fraud as 

Ground for Annulment of Marriage," 10 Znd. L. J. 471 (1935); H. Abrams, "Systematic 

Coercion: Unconstitutional Conditions in the Criminal Law," 72 1. Crim. L. & Criminology 

128 (1981); C. Brunk. "The Problem of Voluntariness and Coercion in the Negotiated Plea," 

13 L. & Soc'y Rev. 527 (1979); Gammty v. New Jew, 385, US. 493 (1967); S. Mass, '"The 

Dilemma of the Intimidated Witness in Federal Organized Crime Prosecutions: Choosing 

Among the Fear of Reprisals, the Contempt Powers of the Court, and the Witness protection 

Programme," 50 Fordham L. Rev. 582,590410 (1982); and see, A. Wertheimer, Coercion 

(1987) pp. 54144. 

See, G. Alexander, "Freedom, Coercion and the Law of Servitudes," 73 Cornell L. Rev. 

883 (1988); J. Haag, "Involuntary Servitude: An Eighteenth-Century Concept in Search of 

Twentieth-Century Definition," 19 Pac. L.J. 873 (1988). 

See for example. Note, "The Effect of Duress on the Iranian Hostage Settlement Agreement," 

14 Vand, J. Tranmnl'l L. Rev., 847 (Fall, 1981); and Comment, "Coercion, Blackmail, 

and the Limits of Protected Speech," 131 (1. of PA L. Rev. 1469 (1983).

Islamic Studies, 30:3 (1991) 

For a useful discussion see Hale. "Bargaining, Duress and Economic Liberty." 43 Cdum. 

L. Rev. 603 (1943); J. Dawson, "Economic Duress: An Essay in Perspective," 45 Mich. L. 

Rev. 253. (1947). 

See, D. Zimmerman, "Coercive Wage Offers," 10 Phil. and Pub. Aff. 121 (1981): G. 

Dworkin, "Compulsion and Moral Concepts," 78, Ethh 227 (1968); also see, discussion in 

Wettheimcr. Coacion, pp. 242-266. 

fingarctte, "Vition." 6546. 

See, "Lafavette Dramatic Reductions Inc. v. Ferank." 305 Mich 193, 9 N. W. 2d 57,65 

(1943) relying on Webster's Ncw Intrmotional Dictionary 2d Ed. for a definition of dwess 

and coercion; G. Orchard. "The Defence of Compulsion." 9 New Zcoland UniwrsiricJ L. 

Rev. 105 (Dec. 1980) 

The MejeUe, Tysar Demetridas, Haqqi Effendi, trans. (Lahore: Punjab Educptid Pms. 

1%7). The MejeUe was compiled between 1869 and 1876 as a codification of Hanafi Muslim 

Civil law. A similar definition is in the Iraqi Civil Codc article 112 (Duress is to compel a 

person, without right to do something which he does not consent to) bn Hajar al-'Asqallani, 

Fat+ af-Bdrifi Sharh af-BuWlriri (Beirut: Ma'arif, n.d.), vol. 12, p. 311, defines duress as 

"forcing someone to do something which he does mt wish to do". See also al-Darayni, 

af-Tardifi'l 'Uqrid wa'l-MubddcJirr (Jadah: Dar al-Sh-, 1982). p. 362 (Duress is to force 

someone to do an act that he does not wish to do if it had not been for the force applied 

against him) and B+r al-'UJBm, 'Uytib al-lrcidoh fi'l Shaniah af-lshniyyah (Beirut: Dar 

al-Zahri, 1984) p. 257 (Duress is to force someone to commit an act that he would not have 

otherwise committed if it had not been for the fear of harm). Although offering a definition 

of actual duress, these jurists are not describing legally recognisabk duress. 

Nall v. Commonwealth, 208 Ky 700,271, S.W. 1059 (1925); State v CIay 220 Iowa 1191,264 

N.W. 77, 83, (1935); Burns v. State, 89, Ga. 527, 15, S.E. 748 (1892); Baine v. State, 67 

Miss 557.7 So. 408 (1890): United States v. Contentc+Pachon, 723. F. 2d. 691,693-W (9th 

Cir. 1984). 

17 C.J.S. Conrroc~, kc. 168 (1955); 25 Am. Jur. 2d. "Duress and Undue Influence" sec. 1 

(1%4); Ruhenstein v. Rubenstein, 20 N.J, 359 120 A. 2d. 11, 14 (1956); State v. Gann, 244 

N.W. 2d 746,752 (N.D. 1976); Talmadge v. Robinson, 158 Ohio St. 333,109 N.E. 2d 404, 

500 (1952); B v. Boume (1952) 36 Crim. App. R. 125, 128 (1952); R.v. Hudson, [I9711 1 

All. E.R. 244, 246-47, 

See. Mpdel P d Code (MPC) set: 2.09 (Of6cial Draft. 1962); Lafave and Scott. Handbook 

374; State v. Toscano 74 N.J. 421,378 A. 2d 755.765 (1977); Lafavette Dramatic Rodudions 

Inc. v. Ferenk, 305 Mich. 193.9 N.W. 2d 57.65 (1943); see, Hochman v. Zigler's Incorpo- 

rated, 50 A. 2d. 97.99 (N. J. 1%). 

17. C3.S. Confmcfs, sec. 174 United States v. Hasttell, 26 Fed. Cas. 207 (Pa. Cu Ct. 1823); 

Calamari and Perrillb, The Low of Confmcrs (1987). p. 337. 

Commonwealth v. Refitt, 149 Ky. 300,148, S.W. 48 (1912); Moore v. State, 23 Ala. App. 

432, 127 So. 796 (1930); People v. Ricker, 45 111,2d. 562,262. N.E. 2d. 456 (1970); State 

v. Toscano, 74 N.J. 421, 378 A. 2d. 755, 761, (1977); 25 Am. Jw. 2d. "Duress." sec. 11; 

Pdha d Boyce. Crimind hw (l!J82), p. 1061; BlacLstoac, Cornmcnforics, bk. 1, chap. 

1. pp. 1W31; M e. Second Institute 483 (1648). 

Bishop, The Criminaf law (1892). vol. 1, p. 207;17C.J.S.,Conbacrr, sec. 179; 25Am. Jur. 

2d, "Duress" sec. 22; Edwards, Compulsion, p. 334, but see Bush v. People, 10 colo. 566, 

16 Pac. 290 (1888) (recognising a serious injury directed against a brother). 

Bums v. State, 89 Ga. 527, 15 S.E. 748 (1892); Baine v. State. 67 Miss. 557, 7 So. 408 

(1890); D'Aquino v. United States, 192 F. 2d. 338,358 (9th Cir. 1951); Burton v. State, 51 

Tex. Crim. 1%. 101 S.W. 226 (1907); G. Williams. Textbook On Criminul h w, 580(1978); 

17 C.J.S. Contmcu, sec. 168. 

Damon, Economic Duress, p. 255; L. Newman and L. Weitzer, ''Dwess. Free Will and 

the Criminal Law." 30 S. Cd. L. Rev. 313,329-331 (1957); 25 Am. Jw. 2d. "Dunu." sec. 

11; State v. Toscano, 74 N.J. 421, 378 A. 2d. 755, 762, (1977). 

L. Newman and L. Weitzer. "Duress, Free Will," 315. 'Ibe approach of the common law 

was far from unusual. In fact, most anaent legal systems approached the subject with the


same conservatism. For example, at Roman law, "'Mchrc (duress) consisted in threats of 

pbykal hum, death, emlavement, accusation on a capital charge or of an attack upon the 

chastity of the prty so threatened or of a member of his family; threats of merely economic 

damage would not suflia." Thomas. Tatbook of Romon law (Amsterdam: North-Holland 

Publishing Co., 1976). p. 227. Jwrimimf Digest, however, states that fear of infamy is not 

amred by the mthh edict. See Juuinian's Digest, Book 4. Title 2, section 7 Watson 

bum. 7%~ Digw of Jy1rinion (Philadelphia: Univ. of Pem Ress, 1985) vol. 1 at p. 114. 

Rubenstein v. Rubenstein, 20 N.J. 359,120 A. 2d. 11,15 (1996); Ensign v. Home for Jewish 

Aged, 274 S. W. 2d. 5U2 (Mo. App. 1955); Orchard, Defence of compulsion, 11 1; G. Fridman, 

"Duress in the Canadian and English Law of Restitution: A Comparison," 11 no. 1 Ddho11sie 

L.J. 47. XL52 (Sept. 1987); 17 C.J.S. Controctr, sec 175, p. 959-%0. 

See, 17 C.J.S. Contracts, sec. 172, 954-956, sec. 175 at %2 and sec. 177, 966-%7; 25 Am. 

Jur. 2d. "Duress," sec. 18. Hochman v. Zigler's Incorporated, 50 A. 2d. 97, 100 (N.J. Ch. 

1946); Miller v. Elsele. 168 A. 426,430 (N.J. 1933); Uniform Corrrmcnicrl Code, sec. 2-3U2 

(1%2) (Pqmses). "The act or heat upon which a claim of coercion is predicated must 

only be wrongful in a moral sense, not necessarily a legal one." Justice Holmes earlier on 

held that whether the threat is unlawful or not is not determinative. Sallsbee v. Webber. 

171 Maos, 378, 50 N.E. 555 (1898). However, some modem courts continued to state that 

it is never duress to threaten to do what one has a legal right to do, for example, Fidelity 

& Casuality Co. of N.Y. v. United States, 490 F. 2d. %0, !766 (Ct. CI. 1974). But see, 

Rubenstein v. Rubenstein, 20 N.J. 359, 120 A. 2d. 11, 15 (1956). 

See, Fingarette, Vidimizcrtin, p. 109, Fridman, Canadian and English law, pp. 51-52 (expressing 

the view that British law is unclear on this point); Hale, Bargaining, 613-615; N. Rafferty, 

'The Element of Wrongful Resure in A Finding of Duress," 18, no. 3 Alkm L. Rev. 431 

(I=); Sutton, "Duress by Threatened Breach of Contract," 20 McGill L.J. 544 (1974); 

Dalzell, "Duress by Economic Pressure," 20 N.C.L. Rev. 341 (1942); J. Dawson, "Duress 

Through Civil Litigation". 45 Mich. L. Rev. 571 (1947). 

Wer(beimervthst m dl - m a twopronedysisisat work. One, what the 

lntbor alb a "cboia pmq" ia which tbe coart iaqr6ra rhetber the coenrr's "jmqod 

rruta a cboia aihution for [the merad] such thst [the d] has no alternative but to 

do I". lko, a "pupad prone" m which the mutt inquirts "whether it i wrong for [the 

anrar] to make such a prcqxmal to [the menad]". Wertheimer argues thst courts adopt a 

~.admonlrppo;rhm~bdh~.Butwhikthepmposslprmg:'does 

matdtheaat"meivil~,thecboiapronemmmdm~tiveincriminalcsrres. 

(Wertheimer. Canion, pp. 17273; 274-75). Only a selective reading d the came law csn 

support thir adysk. But even if this is, m fact. the underlying philosophical reasoning 

behind the cauq this h not the law. The case law does not reflect such a coherent and 

It is difficult to make a uniform presentation of Islamic law since, not unlike the Common 

law, there is no single authoritative source of law. Islamic law is represented in the writings 

of several medieval Muslim jurists. mere are five major Sunni schools of law, ShWi, Hanafi, 

MPi, Wbali and w, as well as, at least, two Shi'ite schools. When I use the term 

:slatkc law, I mean the opinion of the majority of the jurists on a particular point. If there 

is no majority view. I point that out in the endnotes. Additionally, in prrwnting Islamic law 

I have sometimes used the consensus of modem Muslim jurists studying the subject. 

This division is often ascribed only to the Hanaii school of thought in Islamic law. See M. 

Hamid, "Duress and its Effect on Contracts in Islamic law," Sudon L.J. and Reports 334. 

334-335 (1971); A. El-Hasan, "The Doctrine of Duress (ikd) in Sharia, Sudan and English 

Law," I. Arab. L. Q. 231, 231 (1986). However, this is largely inaccurate. Other Islamic 

schools did have a general conaption of two types of duressone so compelling as to negate 

liability in grave offenses and the other not so compelling. The Shafi'i jurists used the term 

ruinous duress (ikr& dlik) while the MBliki jurists used the term total duress (ikrcih 

mu!laq) for what the I+I%S called ikr& m4i. See al-Jamal. Hlirhiyat al-JaMI (Cairo: 

al-Wktabah al-Tij*yyah al-Kubra, n.d.), vol. 5, p. 9; and al-Dusuqi. Hlirhiyaf d-Dusuqi


'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 

Myy&, d - M ji'l Swah d-lsbniyyah (al-Mdh: PI-Rubid. 1982). p. 41. a d M.A. 

AWur RPhim, lk Phciph of M- Jvrispnrdarae (198I). pp. 232-37. 

Lbn al-HmnHm. Sh@ Fe d-podt. (Cairo: al-Mntba'ab al-AmmAmiriyyeh, H 1317). d. 7, 

pp. 293-294; Ibn 'Abidin, Radd al-Mukhtrir (Cairo, al-Halabi, 1%6), vol. 6, pp. 128129; 

al-KasPni, Badci'i d-Sanri'i' fi Tmib d-Sharci'i' (Beirut: Dar al-Kitab al-Arab, 1974). vol. 

7, p. 175; al-Sarakhsi, d-Mabsri! (Cairo: al-Haji Muhammad Effendi, n.d.), vol. 23, p. 40. 

'Zhis distinction between consent and choice is particularly Hanafi. Other schools of thought, 

though recognising that there are two types of duress, did not distinguish between consent 

and choice. 

Al-KaQni, Ba&i', p. 182. 

Al-KasW, &rdm", p. 175. The Mejdle codifies this rule in Seetion 949 which states: "[Duress] 

is of two sorts. The first sort is compelling duress. It leads to destruction of life, or loss of 

a lib or one of them. It is the compulsion. which is by a hard blow. The second sort is 

noncompelling duress. This causes only grief and pain. It is compulsion which is by things 

like a blow or imprisonment." 'Zhe Iraqi Civil Coclr, Article 112, similarly provides: "And 

duress is considered compelling if it poses a serious and imminent threat of loss of life or 

limb or severe beating or severe harm or great destruction of property and it is not compelling 

if it is a threat of imprisonment or beating, and this varies a&ording to the condition of 

people." Also see. discussion in Abdur Rahim. Principles, pp. 233-34. 

For example, albarakhsi, d-Mhri!, pp. 49-50, and Ibn Nujaym, d-Ashbdh wa'l Nazci'ir, 

printed with Hamawi as commentator in Ghnmf 'Vyrin 01-Be't (Karachi: Idkat al-Qur'8n. 

1988). vol. 3, p. 203. 

Ibn Humiim. Sharh fat!^ d-Qodir. p. 294. 

Ibn 'Abidin, Rae., p. 133. 

See, al-Ramli, Nwah d-M+tcil (Cairo: Musfafi al-Halabi 1%7), vol. 6, p. 447; alJamal, 

Hbhiyah, vol. 4, p. 325; al-Dardir, d-Sharh d-Soqhir (Cairo: Dar al Ma'arif, 1972). vol. 

2, pp. 546-547; al-Khd-, d-Shu+ d+aghir 'dd MI&- Sayyid K M (Cairo: Matba'ah 

al-Kubra, H. 1317). vol. 4, p. 34. al-Dusfiqi, Hashiyard-Dq vol. 2, p. 368: Ibn Qudimah, 

d-Mughni (Cairo: Maktabat al-Qahirah. 1968). vol. 7. p. 384, Ibn Muflii, al-Maqdisi, al- 

Mubdi'fiSharh d-Mughni(Damascus: al-Maktab al-Islami, 1977), vol. 7, p. 2%; al-Buhuti, 

K~(hafd-Qina' 'an M~mdlg~'(Riyad: Maktabat al-Nasral-Hadithah, n.d.),vol. 5. p. 236. 

Al-Ramli, Nilrciyah, vol. 6, p. 447; al-Jamal, Huiyah, vd. 4, p. 325; al-Dardir, d-Saghir. 

vol. 4, p. 35; Lbn Qudhah, d-Mughni, vol. 7, p. 384, andsee, ~ bii ~a6yyah. d-lknih, p. 44. 

See Lbn m, d-Mu@fd (Cairo: Dar al-Turath, n.d.), vd. 8, p. 330, d-Jamal, Hdshiyah. 

vol. 4, p. 325. Zbn Hazm, for example, after citing a @&% stating that Muslims are.brothers, 

argues that it follows that they should proteet one another. Si MusIims are joined by 

mutual empathy, hanu to a third party. even a stranger, will cause enough grief to constitute 

duress. 

A-M, N W , d. 6, p. 447; al-mi, H w d-D- vol. 2. pp. 368369, 

-, d-Mbbsuf, d. 5, p. 236, Lbn Qudimnh, d-M- vol. 7, p. 384, Lbn m, 

d-MUM', vol. 7, p. 255. Also see PI-Damyni, d-Td, pp. 3Z-375; Blgr al-Ulh, 'ma, 

pp. 281-283; Dagbi. Mabda' d-R@fl 'VqJd. (Beirut: Dar al-Basha'er al--yah, 1985) 

vd. 1. p. 4W, Ah S&yy&. d-lbnh, pp. 53-SI. 

Al-Knan-. Bad&ii, p. 176; Daghi. M W d-Reidcr pp. 428429. 

AISaRLhsi, d-MahM!, p. 49, alao see p. 50. Also see al-Kashi. M for the same idea. 

Id; h see Lbn 'Abidin (Commentator), Rdd, d. 6, p. 133. 

Al&dhai, d-Mabslit, pp. 52 and 66. The MejeUc codifies this ruk in acction 1004, which 

states: 

It is a condition that the pem compelled should be afraid of the taking place of 

the thing, which causes his fear, that is to say, that he should have formed a 

preponderant opinion in his own mind,.that the person using compulsion, would 

do the tbing threatened if he did not do the thing k was compelled to do. 

'he EgypPirn Civil Codc, Artide 127, and the Imqi Civil Codc, Artide 113. have


See. al-Ramli, Nih@ah, vol. 6, p. 447; al-Jamal. Hbrhiyah, vol. 4, p. 325; al-Buhuti, 

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, 

commnt.tor) MuUirafm Sayyid Khdil, vol. 4, p. 34, al-M, d+agW, vol. 2, p. 546, 

al-. Hdpkiya d-Lhdqi vol. 2, p. 368, and a& ibn al-Humh (ad-Babarti, commenmar). 

Shm?, d-F+ d-Qadir, p. 295, for the same approach m thc Hanafi school. Also a& 

E& d--, 'Urn, p. 267; and al-Dar~pi, d - T d , pp. 367-368. 

This dhgree~nt has been noted by the commentator to Ibn 'AbiQn's work, Radd, vol. 

6, p. 129. 

lEia h pdomiaatly thc opinion of some Hanrfi Jurists. The Mjdlc relyiug on this opinion 

date in Article 1005: 

If the person ampelled, do [sic) what he is compelled to do, m thc presence of 

the person, who u~ts compubion, or his agent, the compulsion is wnsided. 

But, if he do [sic] it m the absence of the person who u~ts c~mpukion, and m the 

absence of his agent, the compulsion h not dded, by reason of his ha* 

acted with willing auhissh afier thc removal of thc comprlsion. 

Some HanbaG jurists went even further in requiring that some physical harm would befall 

the victim before he submits to pressure; therefore, a mere threat unaccompanied by some 

actual physical harm will not suiia. Ibn M*, d-Mubdr', vol. 7, p. 256; and Ibn Qudhah, 

al-Mughni, vol. 7, p. 383. But see al-Buhuti, Kmhdf. vol. 5,236, from the HanbaG school, 

for a contrary opinion. 

AI-Jamal. Hddiyah, vol. 4, p. 323; and al-Ramli. NWyah, vol. 4, p. 447. Also see lbn 

al-. S w Fu@ d-(?ad&, p. 293, fmm thc +di school for thc same appmach. 

Al-Khurashi, M-ar Sayyid Khalil, vol. 4, p. 34; and al-Dusiiqi, Hahiyal al-D~~~liqi, 

wl. 2, p. 368. 

Al-Sarakhsi, al-Mabse, pp. 76-77. AISaraLhsi, later argues, somewhat i~lconsistantly. that 

if a person 01 authority orders another to grab people's money, the ordered person cannot 

comply if he is far away fmm the oppressor. Thea al-- adds that those who assist 

opprcssor~ always claim that they were compelled to do so but m reality they had no excuse 

unless the opressor was standing over them at all times. Otherwise, they really never know 

whether the oppressor will in fact s u d in hurting them and, therefore, they cannot assist 

oppressors. See al-Sarakhsi, al-Mobslit, pp. 77-78. me only way we can read the two abovedrscussed 

passages consistently is to rend al-SarM as saying that if a person has an opporhlaity 

to escspe he will not be excused unless he is cornered mto compliance. Also see Ibn 

'Abidin, R d , p. 132; and lbn al-Nujaym, d-Ashbrih. vol. 3, p. 203; Ibn Qayyim al-Jawziyyah, 

A ' h d-Muqa'in (Beirut: Dar al-Jtel, n.d.) vol. 4, pp. 53-54. 

See. D&-. M M d-Re, pp. 427; Blgr al-'UItim 'Uyyrsb, p. 269; al-Daray-, d-Tmdii 

pp. 371-372; al-Sanhm-. Ma+ d-Haqq fi? Fqh d-I- (Beirut: al-Mujama al-by, 

n.d.), vol. 2. pp. 1W52. 

Al-Saralrhsi, al-Mobsri!, p. 135; Ibn Qud%mah, d-Mughni, vol. 7, p. 384; al-Kashi, Ba&ii', 

p. 181. 

Atcomm~ah."[t]he~to~thedcgreeofcDmpulsionmtcrmsofgravity~f 

thc o&aa ~ lI- r overlooked". (Pertins and Boyce, Criminal Lmv, p. 1061). Regde= 

of uime, thc test of that ef death or serious personal miury, was thc same. State v. Toscano 

J18A. 2d. at 762; R.v. Hudson & Tavloc. [I9711 2 Q.B. 202. Whatever the offense, the 

threat of a serious physical mjwy is required. (Orchard, '"I'k Defence of Compulgion," 

111; Ncumau & Wdkcr. "Duress," p. 330). However, an 1887 a&ms to hart reeogrised 

& of- dcgree of pmportionelity etating: "It m~gt be obvious to thc dctiberate 

judlFment of cvq reflecting mind that much less freedom of will is requisite to render a 

pcm responrdbk for wimc thau to bind him by a sale or other contrsct. To overcome the 

will, so far rr to render it iacapable of contrecting a avil obligation, is a mere trifle compared 

with~ittoth.tdcgecofal.veyand~~bmirsionwbichwillexamp~punishmcnt." 

McCoy v. State. 78 Ga. 490, 3 S.E. 768. 769 (1887). In McCoy. a judge ch- thc jury 

thrt,"Ihuwaanmintsmthabofbodilyorothcrhsrm,orOthermtans.. .amo~ntillgto 

or tending to ooera thc will of another. . . ." The Supreme Court of Georgia reversed


stating that tbL imtrvction mi@t be proper in civil cmes. But the criau of perjury. Iike 

other felonies, reqe a threat to lik or limb. Some Watgn aebob have mpd for a 

rule ofpqmhdky. See. Mve & Sam, Handboo&, pp. 37Em. M. !hmaj&. "Dursu 

d Murder in the ClnnmonllraW CrimiaPl JAW." 30 1w. prd Canp L. Q. tXO,678 (1981). 

See,Ehvudr"."pppp.302md308. 

AtCammoalaw.~ofcvilMe~y~inthelawof"ntarity"a 

opposed to "duress". In neagity the force of mcrcion is natural face whik in duress the 

compelling fora isa human being. Modern Ameriaa c . have tended to blur the dirtinetion 

between durar d nearity. See United Stata v. Balky. 444 U.S. 394. 410 (1980). but 

ccrtaiu ampa haw praaved the dirtinction. United State v. Conteato-Padnm. 723 E 2d. 

691,695 (9h Q. 1981). Islamic law das not dbthpbh bmeen the two doetriaer. On 

the"chdaofWMe.=Hi~."~.saDefeaain~Csres."4Va 

L. Rev. 519 (1917) Lafaw. CriminolIm, (1986) at pp. 433 and 441-443. Abo ace, the ~~IUOUC 

cane of Qucen v. Dudley & Stephens (1884) 14 Q.B.D. 273 and its dkmkm in Smith & 

Hopn. Criminal Low, pp. 201-209. 

AlSaraLM. dSiyor d-Kabi? (Hyderabad: Da'int al-Ma'arif), Irt ed. rol. 4, p. 222. 

Abo scc Ibn m, d-MuMld, vol. 8, p. 330. 

There are exaptions as will be seen in the next section. 

Al-Dardi. d-Saghir, vol. 2. p. 548. 

Ai-K&ni. Badrk". p. 181, and see al-Sarakhsi. She@ d-Siyar, pp. 131136 for the argument 

that even though the victim makes the wrong choice by commiting murder, the victim should 

not be punished if he believed in good faith that pronouncing apostasy was i#*cusable 

under all circumstances. It seem that al-Sarakhsi is arguing that this is a common mistake 

peopk make and, therefore, as a matter of policy they should be excused. 

Al-Sarakhsi, d-Mabsai!, p. 141 and see p. 135. 

Ibn 'Abibin (Commentator). Rudd, p. 140 and al-Sarakhsi, d-Mobsti!. 137. See more examples 

in Abdur Rahim. Ptinciplcr. p. 233. 

I am greatly simplifying the &&rent categorizdtion efforts by Muslim juriats. But for the 

purpores of this essay there is no need to go into the details. See al-Sa&h& d-Mabsti!, 

pp. 39-42; al-KasiM, Bodcii' p. 176; and Ibn Nujap, d-Ashbtih, vol. 3, p. 2(n. Also see, 

Abdur Rahim, Principles, p. 234 and 356. The Mcj& codified these categorizations in 

Section 1007, which states: 

[Duress], which is canpelling, like as it is considered in tmudom by word as 

above said so also it is considered in tmmactions by deed. But [durese], which is 

[noncompellig], is considered only in verbal tmnsa&m, in transactions by deed 

it is not considered. 

Therefore, if someone says to another, "Destroy the property of such a one. if you 

don't I will kill you or cut off one of your limbs", and the person, against whom 

the anupubion is used, dsstroys it, the compulsion is taken into coarideration, 

liability &I be enforad agaiuat the person u& tbe compllaion &me. 

-But if the says, [sic] "Destroy the pmperty of such a one, if you do not, I will strike 

or imprison yw," if that peMn does not destroy it, rhc compulsion is not taken 

into consideration, it is nwesq for the person, who destroys the thing, alone to 

make compensation. 

See abo. Ibn Hum, d-Mu+& vol. 8, p. 330. 

See Ibn 'Abid~~, ilPldd, p. 129: Ibn Nujap, d - a d. 3, p. p(; d-Dudir, d-+z@t, 

d. 2, pp. 367 d 370. For a far mom complu theoretial catc~tion from a ShWi 

SCC, d-Tdug, (d. 2, p. 197) dLwrcd d quoted by alS.nb~& MnpddL, 4. 2, 

pp. 195-196. 

Bacon. Cdlecnbn, p. 161. Although the dsrsic rule at common law was that no amount of 

durar would jurtay .cts of treason tbi abrolutist view was never followed to the latter, me. 

Edwards, ~vlrion, p. 298, Smitb and Hogan, Crlminol Low, p. 212 d Perldar and 

Bop, Crlminol LAV, p. 503. 

Bk+ckstone. Cmma&rh, bk., IV, chap. 11, p. 30. Blackstone displays a logic amazingly 

similar to Islamic analysis. Blackstone states that duress per minar excuses many crimes and


mLdcmeanoro "at least before the humsn tribunal". Hem, implying that sccularvindicaoion 

does not neceararily wan divine hgivewr. This rearoning has been fully expounded by 

Mudim jurists. 

See, al-Sm-. Shu+ dSiy d-Kabir, vol. 3, pp. 218-38, on treason. Al&rakk argues 

that if a Muslim is threatened by compelline duress to manufacture maponary fDr the enemy. 

he may do so only if in the preponderance of his thought such weapons will not cause the 

defeat of Muslim armies, and likewise if he is threatened by death to reveal the road to an 

WIIllic fort, he may do so ody if in the prepondtrana of his thought the enemy will not 

be able to conquer the fort. But if the enemy threatens him to find out where a partiarlar 

person is, and he believes that the enemy wishes to rape or Lill such a person, the coerced 

should sacrifia himself. 

The coed is not entirely innoant because he ads as the instrument or agent of the 

eoerar. Sec, Wertheimer, Coercion, pp. S281. Werthcimcr argues that murk adopt a 

higher stadud of duress when inooant parties are involved. This, aamrding to Werthcimer, 

partly accounts for the higher standard in aiminal cases. Id. p. 162. This might be correct 

asamattcrof commonsense but hisis not how courts justify the different standardsadopted. 

Cdamari aad PerriUo. Lmv of Confroc~~, p. 397; 17 C.J.S.. Conbucts, aec. 175; 25 Am. Jur. 

2d, "Dunsr." sec. 512; United States v. Bethlehem. 315 U.S. 289. m301 (la); Eclrstein 

v. Eckstcm, 38 Md. App. 506,379 A. 2d. 757 (Ct. Spec. App., 1978); Slade v. Slade 310, 

111. App. n:33 N.E. 2d. 951 (1941); Kaolan V. K;aoIan. 25 111. 2d. 181. 186, 182. N.E. 

2d. 706.709 (1%2); R~t(llUMlf Second, Contrrcb, a. 175 Comment (1979); Alma S.S. 

Co. v. Vela, 285 F. Supp. 123,125 (D.P.R. 1%8), (duress is the pres~urc of circumstances 

which aornpeU the will to yield). 

Ratntacn, Conbacbi aec. 492 (1932). Comment uplainr; "The same threats may cause 

feu in one person and not in another. Tbe test of what act or threat produces the required 

degree of fear is not objective. The threat need not be such as would put a brave man, or 

even a man of ordinary firmness, in fear. Tbe question is rather, did it put one entering into 

the transastion in such fear as to preclude the exercise by him of free will and judgement. 

Age, sa, capacity, relation of the parties. attendant circumstances, muat all be conridered. 

Pmom of a wed or cowardly nature are the very oaes that need protation. Tbe co~lr;leaouo 

can usually protect thcmoelves; timid persons are generally the ones iatluend by threats, 

and thc unaaupulou~ are not allowed to impme upon them because they are so unforhmately 

conrtituted." 

Calamari aad Pcrrillo. Law of ConfrocLI, P. 337, Ru-, Contracts, aec. 492, comment 

(b) (1932); Sec. Milla v. Eisck. 168 A. 426.432 (N.J. 1933) indicating that since the plaintiff 

acted reasonably he can daim durcy; sad Wm v. Midtown Motors, 231 ffi. 46.42 N.W. 

2d 404 (1950) defendant threatened to firt plaintiff unless he signed a release of an aaion 

againat a fDnier employer. In granting relief the court ituisted that the test is entirely 

subjective. Tbe type of threat or the response of a penon of ordinary firmness are irrelevant 

ddrrpdiom. However the decision of the court primarily relied on the wrongfulaess of 

thc thnat. aad on the fact that plaintiff had no other rearonable alternative. Id. 407-406. 

Econolaie duma ohea involves a threat to cause a victim financial injury unless the victim 

agreed to certain terms. This could involve a threat to deny esential goods or services or a 

threat to breach a contract. 

Aurtia Itmumat Inc. v. Lod Corp., 29 N.Y. 2d. 124,324 N.Y.S. 2d. 22.272 N.E. 2d. 

533 (1971); Leeper v. ~eltraml, 53 a. 2d. 195.1 ~al. ~ptr 12.347 p. 2d 12 (1959); young 

v. Hoaghd, 212 Cal. 426,298 P. 9% (1931); London Homes Inc. v. Korn 234 Cal. App. 

2d. 333, 44 Cal. rptr 262 (1965); See also Calamari and Perillo, Law of Confmcts. p. 337; 

Fridman, CrmodicM ad English Law, pp. 54-55; Hale, "Bargaining," pp. 2&4-286, Dawson, 

haa l#uough Civil Uigrrtion, op. at.. pp. 695m. Daizeil, "Duress by Ecooomic Prrssure." 

pp. 367-382; F v . Viaimircraion, pp. 86-91. In economic duma caas the inquiry 

k often p h d in terms of whether the threat is wmngful. LaBcad~ v. Beatrice Foods Co., 

461 E Supp. 152,1567 (S.D. N.Y. 1978); Louiwik Tie Ins. Co. v. Surety Title and Guar 

Co. 60 Cal. App. 3d 781,805,132 Cal. rptr. 63.80 (1976). A court may look to the moral


obligations of the coercer and whether his threat is made for outrageous purposes. Hochmen 

v. Zigler, 50 A. 2d. 97,100 (N.J. Ch. 1946) or to whether the threat is against public policy. 

shaeta Water Co. v. Croke, 276 p. 2d. 88.91. (GI. dist. a. App. 19YI). (threats of criminal 

su&red the risk of heparable injury. Tri-State Roofins Company of Union Town v. Simon, 

187 pa. super 17.142. A. 2d. 333 (1958). Needkss to say. as a pwerical matter even rightful 

(as opposed to wrongful) threats an ovenmne a will. 

The RatoPnncnf Second rrfusbd to incorporate the "omcome will" language saying that it 

is too vague and hpradbble. Ramemmt Second, '"tracts," see. 175, Comment (b). 

Ibid., Comment (c). 

fidelity & Causality Co. of New York v. United States, 490 F. 2d. %0,966 (Ct. C1.1974). 

(mere strcss of ~~ circumstances is not duress). Despite similar factual situations, cwrts 

will reach different conclusions depending on how the court evaluates the equities and policies 

at stake. For example, see, Meier v. Nightingale. 46 A. 2d. 785 (N.J. 1946). defendant 

refused to return plainWs car unless he pays an amount greater than what plaintiff believed 

they agreed upon. Plaintiff paid and used daiming duress of goods. The wurt denied relief 

to plaintiff asserting that plaintiff had other, especially statutory, alternatives. But see, 

Leeper v. Beltrami, 53 Cal. 2d. 195,347 p. 2d. 12.1 cal. Rptr. 12 (1959), defendant threatened 

to foredose on plaintiff's house unless she made a certain payment. Plaintiff paid and then 

claimed duress. Court held fo~ plaintiff relying on equity and policy consider;ltions. It is not 

reasonable, according to the wurt to e w people to lose their homes as they await the 

result of litigation. Aka see, Tri-State Roofing Co. v. Simon, 187 Pa. Super 17,142 A. 2d. 

333 (1%5), (wrongful threat to breach contract is not duress because there is no irreparable 

injury). Austin Instrumental v. Loral Corp. 29 N.Y. 2d. 124 (1971), (wrongful threat to 

breach a government contract is duress). Hochman v. Zigler's Incorp., 50 A. 2d. 97. 100 

(N.J. Ch. 1946), (when landlord's threat of eviction is made for outrageous purposes and 

the tenant had no adequate relief, duress is found); Laaeach v. Beatria Foods Co. F. Supp. 

152 (1978), (summaryummaryjudgment for defendant appropriate when plaintiff claimed that-he 

was intimidated by defendant's vast economic power into releasing his interest in a Nigerian 

company). 

168 A. 426,432 (N.J. 1933). 

RarutmMf, Coutracts, 492 Comment (c); Calamari and Perillo, Lmw of Contmcts, 4436, 1 

Perkins and Boyce, Criminal Lmw, p. 1064; Clark and Marshall, A Tmatise on the Law of I 

Crimes (7th ed.), p. 366. 

Calmari and Pedo, Lmw of Contnacts, pp. 343-344; 17 C.J.S. "Conhacts," p. %3; 25 Am 

Jur. 2d. "Dunns," pp. 358-359. 

Kronmover v. Vuck, 258 III, 586.101 N.E. 935 (1913); (only recognising a close relaltive): 

Saxon v. Saxon (1976) 4, W.W.R. 300, 305 (B.C.S.C.) (only rrcognising a close relative), 

25 Am. Jur. 2d. "Dwess," sec. 22 (noting that courts only rewgnise close relative); 17 C.J.S 

"contractr." sec. 179 (noting that there is disagreement between the courts); Restatement 

' 

First of Contracts only recognised threats to near relatives (sec. 499, but Rc~fatemrnt Second 

of Contracts provides that the threat does not even have to be directed at a relative as long / 

as the third party duress induces the victim to manifest his assent. Sec. 176 Comment (b). j 

See, Corbin, On Comm (one volume edition, 1952). pp. 10-14. In modem legal tenninol- : 

ogy, contracts that might lack legal effect are either voidable, void or unenforceable. In the 

case of voidable contracts, a party has the power to either validate or avoid the contract. I 

In other words, the legal effect of the contract is a-ested until released by the wronged 

party. A void contract has no legal effect from the moment of its inaption. It is negatory i 

! 

and ineffective and cannot be cured by a subsequent validation. An unenforceable contract I 

' 

is a contract enjoying complete legal validity, however, it is unenforceable because of external 

legal factors like a statute of Limitations or the statute of frauds. i 

See. Ra- Second, article 174 and 175. See; Rcstclrmuru, C h ~ utides , 4% and 

495; and Calamari and Perrillo, h w of Contmcn, pp. 349-350. In Roman law, contracts I , 

obtained by duress were not void per se. Nonetheless, the victim of duress (metll~) could 

i


Oppose the @I-tation of the contract and render it ineffective. Additionally, the vi&,, 

dd bring a delis (ac&n q d metus UW) agaiost the oppressor and be entitled to a 

penalt)Lsuch action had to be brought witbin one year from the date of the illegal 

See- Ihom=, Tex&ok of Itom Low (Amsterdam: North-Holland Publishing 

Co., 1976). pP 228 and 373; Md lber, Rorrurn Private Low (Durban: Butterworth, 1%5), 

P. 49. Also see Kes~el, ~ ~ ~ ~ R c I ACrhinak, D J u Beinhart s and Warmelo trans. (Johannaberg: 

Juts and Co. Ltd. 1973). VOI. 1, p. 389 and vol. 2. p. 907. 

See, B e al-'Uliun, 'Uyyrib, p. 306. 

See, Me#&, Artides 26-30. Artide 26 provides: "A private injury is tdmted in order to 

ward off a public injury." Also see, al-Qarafi, d-Fvnip, vd. IV (Beirut: 'dam al-Kutub, 

n.d.), pp. &9; al-Gh-, al-Musmsjd, vol. I (Cairo: al-Matba'a al-Amiriyah, p. 322) pp. 

S297; Ibn 'AM alSalam, Qawa'id al-Ahhim, vol. I (Beirut: Dar al-Ji, 1980). pp. 54-62 

and 93-94. me work cited are on the general principles of Idamic law. me example given 

by these jurists comes from criminal law but the example only demonstrates the general 

principle. 

This factual scenario is taken from Wertheimer, Coenion, p. 275. Wertheimer, however. 

uses this scenario in the amtext of addressing diierent issues. 

Wertheimer seems to argue that A should pay the fees and sue to recover later. 1 am not 

sure that even under the Common law system this conclusion is correct. 

'2ht Ra-w Suond is vague becaw of the imprecision inherent in the reasonableness 

standard. Idamic law is vap bmw the value system on which it relies is unclear. 

lbn Nujaym, d-Ashbcih, vol. 3, p. 203. 

The only disagreement from within the Hanafi ranks came from war who argued that the 

contract is not corrupt, rather, it is conditioned on the victim's s"bsequent approval. If the 

victim never approves it then the contract is unenforceable. I am not sure, however, that 

there is a real difference in contents between Far's arguments and his other Hanafi col- 

Som of the Whit verses state, "Let there be no ampubion in religion; T ~th stands 

out dcar from em." (11:256) "Anyone who, after accepting faith in God, uttaymbelief, 

except rmda complbioo. . . On them is wrath from God." (16:106) A h sec (24:33) and 

(4:19). 'Lbe Propha is reported to have Mid, "My nation has been absolved [from liability] 

regardiug [* invohg] mistakes, forgcthrlness and what they have been compelled to 

do." See, Ibn H-, al-Mu!uaUii, wl. 8, p. 334. 

Ibn +mu, aCM- vol. 9. p. 21. 

See, an extensive discussion of this issue in al-Sarakhsi, d-She al-Siyar, pp. 55-59, also 

see, pp. %97. ALSO see, al-Ramli, Nihdyah, vol. 3, p. 397; al-Jamal, Htishiyah, pp. 17-18; 

Ibn M e , al-MihY, vol. 4, p. 7; and Ibn QuW, d-Mu*, vol. 5. p. 110. 

AI-K~&-, M-r Sayyid KW, wl. 5, pp. 9-10; al-Wqi. Hbhiyat d-Dus~iqi, vd. 

2, p. 369, and al-Dardii, al-Saghir, vd. 3, p. 18. 

See. al-Sanhh-. Maydir, pp. 207-214 for a fairly detailed study of this issue. me Imqi Civil 

Code, article 115, provides that duress makes a contract unenforceable; the Egyptian Civil 

Code, article 127, provides that duress makes a contract voidable. 

D'Aquim v. United States, 192 F. 2d 338.358 (9th Cir.. 1951); Nall v. Commonwealth. 

208 Ky, 700,271 S.W. 1059 (1925); State v. St. Claire, 262 S.W. 2d. 25 (Mo. 1953); United 

States v. Gordon, 526 f. 2d. 406,407 (9th Cir. 1975); Shannon v. United States, 76F. 2d. 

490,493 (10th Cir., 1935); DPP v. Lynch, [I9751 A.C. 653,655; R.V. Hudson [I9711 2 All 

E.R. 244,247; United State v. Balley, 444 U.S. 390,410-11 (1980); United States v. Boomer, 

571 F. 2d. 543-545 (10th Ci.) Cert denied 436 U.S. 911 (1978); Cde v. United States 347 

F. 2d. 492 @.C. Ci.) Cert. Denied, 381 U.S. 929 (1965); United States v. DiFr01120.345 

F. 2d. 383 (7th Cir.) Cert, Denied, 382 U.S. 829 (1965); Phillips v. United States, 334 F. 

2d. 589 (9th Cir., 1%4) Cert Denied. 379 U.S. 1002 (1965); 22 C.J.S., C* Low, Sec. 

100.180. Perkins. C* Low, 916-18. 

United States v. Palmer 458 F. 2d 663 (9th Cir., 1972); People v. Ricker, 45 111. 2d. 562, 

262 N.E. 2d 456 (1970); Kawakita v. United States, 343 U.S. 717 (1952); Even the Model


3.) However, threats to property or reputation are adpiribk under seaion 3.02 (Choice 

of Evils). And see Commonwealth v. Reffitt, 149 Ky. 300 148 S.W. 48 (1912). recognising 

threats to property or reputation. 

Koonh v. State, 204 So. 2d. 224 (Fla. App., I%?, State v. Nodine, 198 Ore. 679,259 p. 

2d. 1056 (1953); State v. Torano, 74 N.J. 421, 378 A. 2d 755, 762 (lm); y, Orchard, 

Defeme of Cornphion, 111-112, for the law in Newzedand. Several writers have argued 

that threats to strangers should be rewpnised. Wan and Scott, Hadbook, pp. 1W1061, 

Clark and Marshall, Treotire, W, Wave, CriminrJ Low, pp. 436-438; Donaclly. Goldstein 

and Schwark, Criminol Law (1983), p. 662; and Bishop. Criminal Imc: p. 207. 

MPC, Comment 3. However, a British case R.V. Hudron [I9711 2. Q.B. 202.2 All E.R. 

244, has allowed a defence of durcss although the threatened harm was not immediate. 

See, note 44 above but see, State v. Toscano, 74 N.J. 421,378 A. 2d 755,762 (19?7), stating 

that under certain circumstances the commiseion of minor crimes should be excusable even 

if the threat is not one of death or serious bodily injury. Also see, Orehard, Defmce of 

Compulsion, p. 111, discussing cases that imply that the threat required should vary with 

the seriousness of the harm amunitted. K.J.M. Smith. "Duress-the Role of the Reasonably 

Steadfast Man," 98 L.Q. Rrv. 347. 351 (1982), argues that issues of praportionality limits 

should be a matter for the legislature because matters of policy such as this should not be 

left to juries. 

Newman and Weitzer, "Duress, Free Will." P. 331; also see, Williams, Criminal Law; The 

General Part, sec. 246 (2nd ed. 1%1). 

MPC, m. 209 comment 2, p. 374. 

Section 2.09; (1) it is an affirmative defena that Ihe actor en& in the amduct drarged 

to constitute an offense because he was coerced to do so by tbe urt of or a that to use 

unlawful force against his person or the person of another, that a person of reasonable 

firmness in hi situation would have been unable to resist. 

(2) The defena provided by the Section is unavailable if the actor recklessly placed hidlf 

in a situation in which it was probable that he would be subjected to duresr. Ibe defence 

is also unavailable if he was negligent in placing himaelf in such a situation, whenever 

negligence suf6ces to establish culpability for the offense charge. 

(3) It is not a defence that a woman acted on the command of her husband, unksc she 

acted under such coercion as would establish a defence under this don. presumption 

that a woman acting in the presence of her husband is a~rced is abolished.] 

(4) When the conduct of the actor would otherwire be justifiable under Sectioa 3.02, this 

Seaion does not preclude such defence. 

MPC, at comment 3, p. 375. 'Ibe reasonablenes test adopted by the MPC seems to be the 

majority position in the modem criminal Common law. MPC. Id., pp. 376-378. Several 

commentators have suppolted the reasonablener standard. See, Milgate. "Duress and the 

Criminal Law: Another Aboutturn by the House of Lords," 47 CMlbridge L.J.61.67 (1988); 

Dennis, "Duress, Murder," pp. 232-235; Sornarajah, "Commonwealth Criminal Law," pp. 

665-667. 

MPC, Comment 3, p. 375. 

Seetion3.OLstata:(l)Coaductthattheactorbe~~tobe~toavoidahsrmor 

evil to hbdforto.notha kju&hbk, provided tIut 

(c) a k@ddvc puposc to exdude the jurtidiatioa chimed does aot otkwk 

PMY w. 

As note at noted 49 above, the choice of evils doctrine musually requires that 

that comes fmm natural causes. Ibe Model Pmd Codc rej- that position.

klamic Studies, 30:3 (1991) 345 

One paaes the question: would a penon who asravinated an authoritarian leader or even 

a demoeratic one be entitled to claim the defena if he believes that in doing so he is saving 

tbe country or working for the general good? 'Ibc last segment of 3.02 (1) (a) might resobe 

th* mblem. Ihe defena of necessity hu been rejected in r~~litidy motivated offenses. 

~ee.'~nited States v. Knmcke, 459 F. 2d Zd, mi (8th CE~.~ 19?2); speci6ca~y relyiag on . 

this provision of the MPC. Courts often mad in a resronabkncss requirement by atating 

that there must be a reasonable anticipation of a causal connection between the action taken 

and the hanu sought to be avoided. Courts also often rely on the rationale of the availability 

of other reasonable alternatives, a rationale that poses a serious problem in non-democratic 

nations. United States v. Cassidy, 616 F. 2d lOl,l(n (4th Cir. 1979); United States v. Kabat, 

797 F. 2d 580. 591-92 (8th Cir. 1984); United States v. Seward. 687 F. 2d 1270. 1276 (10th 

ar. 1982); United States v. Coup, 603 F. 2d. 1347, 1352 (9th Cir. 1979); United States 

v. Simosoa, 460. F. 2d 515,518 (8th Cir. lW2); United States v. DomU, 758 F. 2d 427 (9th 

Cir. 1985). Wave and Scott note that a defena of necessity necessarily implicates the 

determination of the relative values at stake. If a criminal statute has made a determination 

of values then a wurt is pduded from sewnd pesiag the legislature. Otherwise, a court 

d d have to weigh the relative values involved. 'Ibis matter takes spacial prominence when 

abortion statutes or invohred. Wave and Scott. Handbook, p. 382; and See, Rex v. Bourne, 

(19391 1 K.B. 687 (the value of a mother's health ishigher than the value of an unborn fetus.) 

Blackstone, C-, bk. 4, p. 30. Also sce, Bishop. Criminnl Law, p. m, and Clark 

and Marshal, Treairc, p. 362; Edwards, Compulsion, 301, murder, "the crime being so 

heinous that even the strongest duress should not be a justification". 

LaFave and Scott. Hand600k. P. 376; But see, E.B. Amolds and N.F. Garland. "The 

Dcfena of Neassity in Criminal Law." 65 1. of Crim. L. & Criminology 289 n. 14 (1974); 

in D.P.P. for Northern Ireland v. Lynch (1975) A.C. 653, the House of Lords held that the 

defena of duress was available to a charge of principle in the sewnd degree (aiding and 

abatiog). In Abbott v. r., [19n] A.C. 755, the judicial committee of the Privy Council 

refused to extend the defena of duress to a charge of ruder as primapel in the 6nt degree. 

Recently, the House of Lords in R v. Howe and Barrister (19871 A.C. 417 held that duress 

can never be a defena to murder and. hena. reversing - ~ynch. - - see, - G. Fletcher, '*The 

Individualization of Excuting ~onditions;" 47 S. ~al. L. RN. 1269,1279 n. 33 (1974). noting 

that wum frequently base this rule on the impermissibility of killing innoant pemns. The 

rule seems entrenched in the Common law. For example, when the Supreme Court of 

Georgia recognid duras u a defena m murder caaes, Jones v. State, 207 Ga. 379,152 

S.E. 2d. 187 (1950), the Georgia legblature intervened to revem the ruling. G.A. Code 

AM. sec. %906 (I!%!), cited in Fletcher, Id.. p. 1289 n. 65. 

Suaarajah, Commonwcrrlth Criminol hw; Milgate. Dums and Ihc Criminol Law; Dennis, 

"Duress, Murder." 

MPC (Comment 2) at p. 374. 

Thir essentially utilitarian argument is promoted by Jeremy Bentham. Bentham argues that 

in cares of duress punishment is inefiicacious. J. Bentham, Infmkhn to the Ptinciprcs of 

Mods and hgirlotion, sec. 3, Xii. 6 (1873). Taken to the extreme, this view would lead 

to excusing all acts wmmined under d m , a view not sanctioned by any legal system. 'Ibc 

theoretical response to Bentham'sargument ispropounded by Hart. Hart arguesthat although 

punishing a person acting under duress might not have a deterrent effcd on the coerced, it 

might deter others. H.L.A. Hart, PvnLhmmt and RwpoNibiliry (1%8), p. 19 see, the 

dirusdon in Wcrtheimer. C@n. p. 1489. 

See, Jean Hampton, "The Moral Education theory of Punishment," 13, no. 3, Phil. and 

Pub. Aff. 208 (1984). 

See. Wertheimer's Mena of the murder ruk exception on mod grout&. However, his 

a%lment on omd rr(pcoey (h coerad being the mod ant of the carter) - is umemmsive. . 

'Ibis has the same overtones as the "ins&ent ration&' utitized by some M& jurltl. 

exapt Mdim jurists argued that by becoming the imtrument of the coerar, the coerced 

is not hue. See. Kasbi. E d , p. 179, Rnhim. f%c@lu, pp. 35157. This instrument or 

agency theory, if admitted, cannot be limited to the cau of murder. In other words, sina


narldamrbeuamed. 

Ibn m, d-M-, ~ l 8. . p. 330. 

lbn 'AbkSn. w, p. 136, .I---. B&, p. In, al-Buhiiti, Kmhdf, vol. 5. p. 517; 

al-DsrdIr, d+aghir, -1. 2, p. 548, al-Dusiiqi. Hdahirrt d-Dm*, vol. 2, p. 367; ad see 

notabelow. 

EapeciaUrtheshiUi%.~andMlliLis. 

Primprily, and ysullu68. 

See, Ibn Rajab, Qawd'id ((him al-Halabi. lnt ed.), p. 286; alSuyii!i, d-hhbah vo'l Ne'ir, 

(Cairo, Matba'at Mustafa Mohammad, n.d.), p. 176; al-Dprdir. d-+z&fr, wl. 3, p. 5, see 

pp. 581412; al-Lhuiiq& HdsM d-mi, vol. 3, pp. 444 and see 442a. Ibn Nujaym, 

d-hhb&, vol. 3, p. m, al-Kurinl, Boddi: p. 177 lad 179; Ibn al-HumCm. S w Fcclfc d 

Q&, p. 3@ -and al-SurLhd, d-Mae, p. 69; abo aee. p. 142 for the view that llomaimes 

a pmvm is duty- bound to destroy property to save a thi~I peram's life. 

See, al-Dusq. H&hiat d-Duniqi, vol. 2, pp. 369-Jl0, sod al-Ddk, d-+gfi, vol. 2, pp. 

548-549. See, on this topic as a whole Ibn Hazm. d-M+Ud. vol. 8. p. 331; al-Sarakhsi. 

d-Sip, pp. 13&37; al-Jamal. Hdshiyah, vol. 5, p. 9; Ibn QudSad~, d-Mughni, vd. 

9, pp. 59-60., al-Matdab. (al-Muwaq; on the side bar), Mavdlrib d-Jdil (Bcit: Dar al-Kitab 

n.d.),vol.6,p.2W,d-~M~Soyyid~,~l.8,p.80,al-R~~~i,N 

vol. 7 on p. 424; d-BulWn, Knrhdf. vol. 6, p. 7. 

ste, on the ~ubjed, ~bn H-. PI-M- WI. 10, p. ~ 8 al-M-. ; ~oddi', pp. in and 

179.80. lbn al-Humim,~Sha+ d-Fed-Qadir,~. 3QIbn 'Abidin. Radd, pp. ?2-74, al-Jamal, 

Hdshiyah, vd. 5, p. 9; al-Buhiiti, Khhdf, vd. 5, p. 517; lbn Qud&nah, d-Mughi, vol. 8 

onpp. 26647; al-Khunahi. M~arsoyYidKlubl, vol. 8. onpp. 3 dP-lo; aod al-Dusiiqi, 

Hayah d-Dm- vol. 2 on p. 369. See Abdur al-DimPsbqi. Rahmat d-Ummah 

fi lkhlildfd-A'immd, (Kuwait: Mahabat al-Bukhari, ad.), p. 327. 

See, discussion in Sub@ Mahmasaai. The Philosophy of Jwispnrdmcr in Islam. Farhat 

Ziadeh trans. (Malaysia, Pencbitao Hizbi. 1987). p. 158; Rahim, Rinciplu, pp. 237 and 

257. and s o w cited Idem. Al-GW. (MY1 111) further states that a starving group of 

Muslim amot daughter one of their fold for food inorder to stay alive. M G W , ia a 

very sophisticated discussion, distinguishes this fmm a cane whcre the ~mintentiod sacri6a 

of some people is absolutely necessary for a definitive and universal publicgood. For example, 

if the enemy is holding Muslim hostages, then attacking the enemy, and in the proass risking 

the life of the hostages, is permitted only if several conditions are WiIled, Fmt, attacking 

the enemy must be absolutely necessuy. For example, if the enemy is not attacked the 

Mush state would be in snious danger. Second, there is no alternative but to take action 

that would risk the Lives of the hostages. Unfortunately, al-Ghmdi's discussion is too 

extensive for an adequate review here. AlGhd, d-Mwfasfi, pp. S97. 

One would be remiss not to note the remarkable similarity between the hypothetical 

example used by the Muslim jurist writing for the most part about 800 or more years ago, 

and thc case of Queen v. Dudley, and Stephens (1884) 14 Q.B.D. 273, in which two men, 

last at sea, drifting in a boat killed a boy and kd on him until they were saved. They were 

convicted for mu&, and the death se&d was imposed. ~o-r, responding-to the 

invitation of the court, the Crown commuted the sentence to six months im~risonment. For 

a similar case from the United States is United States v. Holmes, 26F. Cas. 360 (No. 15. 

383) C.C.E.D Pa. 1842). 9 seamen and 32 passangers were in a life boat in danger of sinking. 

14 passangers were thrown overboard with the intention of saving the rest. Defendant was 

convicted of manslaughter and received sentence of *month's hard labour. .See discussion 

in LaFave and Scott, Handbook, 385. 

This hypothetical example is taken from Perkins and Boyce, Crimjnul Low, 1057. 

This hypothetical is inspired by Smith aod Hogan. Crimid Low, P. 208. 

GhaztS's analysis. (see note 114 above), seems to yield a positive response for the second 

hypothetical. But that depends on how "unintentional dce" and a "univenal public 

good" is defined.


118. 

119. 

120. 

121. 

122. 

123. 

124. 

125. 

126. 

in. 

See, United States v. Wey, 22 C.M.A. 534 (1973); Neu v. McCarthy, 309 Mos. 17, 33 

N.E. Y. 570 (1941); LaFave, Crimincd Law, P. 441; Bishop, C m Low, P. 212; Smith 

and Hogaa, Climinol Law, p. 22. Some writers have claimed that the sEandPrd is far kss 

stringent. If the order given by the superior "does not expreesly and clearly show on its faa 

its illegality", the follower h entitled to rely on it. Clark aod M.rabPU. Tnoaiac, p. 36B. 

MK, sec. 2.10 Comment 2. Section 2.10 provides: "It is an afknative defence that the 

actor, in engaging in the conduct charged to constitute an offem, does no more then excute 

an order of his superior in the armed se~ees that he does not know to be unlawiitl." 

Ibo Qudhmh. d-Mughi, rol. 8. p. 36& al-Bdttiti. w, MI. 5. pp. 518-519; al-Jd. 

Hddu'yd, vd. 5, p. 11; al-W-. (al-'Adawi, c~mmentator), Mukh+r hyyid KhdIl, 

vd. 10; ~ba H-. d-~+&i, MI. 10, p. 511; and al-smakhsi, d-~obs*, pp. n76. 

Werthekr, anmion, p. 282. 

Id., but Wexrheima amtests thc of making d m claims turn on policy 

d~Ptpp.~281.Kant~thattbm~c~,aswbeaarhipmcL 

paroo thnnamotberoverboard to~avehimself, in whirhbehrviourisnot iaarlp.bkbut 

it might deserve punitive Petion. Kant, of anuse, advoc;ltes that the &naption iItight be 

annbined in both caxs. and. therefore. this difierentatkm would dhmcar. Thus, whenever 

the bcimviour is m l e , it would also be punishn~e. 1mmpnue1 Kant. ~lribsofiy of 

Law. W. H.slL trans. (New Jeney; Augustus Valky. 1974). p. 53. 

AsDwoxtin T, a pmonmight act ~~~dercomprlrion but that -not neasssrily 

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 

major issue of camtention among jurists, it is not helpful to enter into thc debate to 

wI~~ther duress is an excuse or justilkation. See, on this kue Dennis. "Duws. Murder." 

pp. 228-235. Thc question is whether duress judies the act amunitteal, and, thus, responsibility 

omr attrhLs m the 6mt place, and the law merely mmgokd this £act. Alternatively. 

if~,isan~,then~'bilityattrrhestothe~~ttealbutthelawu 

the act because d the circumstanux surrouading the act. Although of obvious moral 

came, this debate would take us too far alidd. 

In the world of philosophy both concepts k a rather predse meaning and notable prop 

onents. Zimmcrmclo, "Coercivc Wage Offers," reprerents the empirical appmach. Dworkin. 

"Compllrion and Moral eoacepts." Robat N&, "Comion." ia l%ilosophy, sciaue d 

M& hays in Honor of Eincn Noqd. tds. Sid~ey Mogeabacxr. Patrick ruppes and 

Morton White (I-); and Jeffrie Murphy. "Consent. Coercion and Hard Choias." 67 Virg. 

L. Rev. 79 (1981). represent the moralized app.oeeh. See the dircussion in WCrtpeimer, 

Coercion, p. 7 and Z4U-258 on fhe two approache. Ncvcrtheksc. when I use the tern I 

rm not refering to their pm+c meaning within the philaophical tradition. 

Se+. note 34 above. 

Frapmtry, textual ropnar will be mcondndve or at least invotve 

- 

complex adysb. For 

example, Ibn Hazm dhwes a subject of Idamic law lmoM as the "sale of the preswued" 

(bay'd++g&) or oramhacts of necessity. Ibn explains that typically in thae sales 

a pcmm goes through financial hardship or poverty, and in order to survive he sells his 

~ . ~ ~ ~ ~ t h a t ~ t o m p p o r t t h e ~ t b a t t 

dapmoninon-bhding.Ibo~~b.cl;Pad~thathcwooldhavelmed 

to.cceptsuch~aadbddth.toaathefinaocial~tioaofsuchapmonimproves 

he is entitled to invatidate the sale. Nevertheless, the H&, Ibn argues, are weak 

or unauthentic, and cannot be relied on as a murce of legislation. Atter noting that the 

Prophet himstif sold his in order to survive at times of hardship. Ibn Hazm 

condu&sthatmchasakbbinding. Ibn+m,d-MI+& vd.9.pp.22-23. Seed-Khurmhi. 

MuMwpr Sayyid KhalR, MI. 5, pp. %lo; al-Dusiqi. Hdrhiot d-Dtrniqi, vol. 3. p. 6; and 

al-Derdir. d-pghir, MI. 3, p. 18 on the Wliki position on this matter, and al-hakhsi, 

d-Mabag, p. 61 for a H d treatment. 

Foruampk.~,mtc45aboveand~yingtuton~s~onth 

p.Ctiarofoppressive~,andthe~omsuchpraEtia8haveforthchwofdm.

348 lslamic Studies, 30:3 (1991) 

128. See. mm 539 above and, acamp+q W. Som liLe the m in L.hvene. 

-tic Produebioo v. Fcrcnh, 305. Mieh. 193.9. N.W. 2d. 57.65 (1943) ooatimred to 

ate that "[t* qaatim a to what constitutes domr is a matter of law, but wktkr dums 

edrts in a particular cau is a quation of fact". Tbir, of anute, raembh the Llamic 

appro& in m y rrspear. Nevertheless, at Comntam law his appwh is lugely limited 

129. 

to~oft~)nomicd~inrhichtbc~~intothenooBfulntsrofthedurrsstaL 

apdal pr6mhma. 

P.S.Atiyeh."EcwomicI)mtsrandtheOverbomcnill."98L.Q.~~.'197.201(April. 

1982); rimikr mitiquw have been made by lbfbty. "Ekmenm of Wrongful Raaue." p. 

440; Pertins and Boys. Chid Low, p. 1054; Smith and Hop, Criminal Law, p. 209, 

cal.rmui and Penillo. Luw of Confmcp. P. 338, Dcnnio. "Duress. Murder." P. 222; LaFave 

and Scott. .. . Handbook, p. 382; Fitte. vicrunrroho n, pp. 73.74.7881; Fridman. Gmadian 

Md English Law, pp. 69-70., L. Vandervoit. "Social Justice m the Modern Regulatory State: 

Durea. Necc~sity. and the Chsemunl Model in Law." wl. 6. No. 2 L. & Mill, 205, %211 

(1987); Hale. "Bargahrio1p." pp. 606 and 618; Dawson, Econ. Dunn," p. 267; Orchard. 

"Dcfemr of Compulsion." pp. 105106. 

130. David Hume ona argued, can we seriously claim that a poor pxsmt who knows m foreign 

language, and lives day to day by small waga is free to lave his country? D. Hume. "Of 

the Origi~I aontrrt." m 2 &says and TraatLe. 268,281-282 (London: 1710). In fact, the 

~thfraetol~butheirunaMeto&~o.hArLtotle~thntlo~w 

choice dtuatiom are only involuntary m the abtract. Aristotle. Eahico N i c d , 1110a. 

(W.D. Ross trans. 1925). ci&d in Flacber. "Individualization." p. 1277. See. Fittc, 

Vidimizaton, pp. 78-79 diacussion of free choice and duress. and P. 104 N. 157 citing cases 

that strecs the difference betweea legal duress and d v e life situations. 

131. Atiyah. sypm mte 125 p. 2112. 

132. Brady v. United States, 390 U.S. 570 (1%8); ace. Note, '%e Udtutiondity of Plea 

Bnrgrining." 83 Haw. L. Rev. 1387. 13%-1403 (1910); pointing to the iaeOairtency in tbc 

Supreme Court's wlition adysis. The Supreme Court held that a kar of king 6rcd is 

mcrcivc cnougb to reodes ones self incriminating testimony in vduntary. Gmity v. New 

Jersey, 385 U.S. 493. 497-498 (1%7). In SpeneL v. Klein. 385 U.S. 511-515 (1%7), the 

Supreme Caurt held that a feu of dihnnmt rndtrs d-' ' ' ltiag testimony mvoluntary. 

This secmr inanrfrtent with maiataiaing tb.t fur of the death ptnalty is noncocrcive 

d u e one is conaidering other than the dcfcodant's psychology. 

133. State v. Grccn. 470 S.W. Y. 565 (Mo. 1971). M. Denicd. 405 U.S. 1U73 (197L). lhc trt 

is objadve; thsrr mut lm an .caul belief and a mammabk belief, Pbopk v. Coadkv, 69 

Cal. App. 3d. 1008. 101@1011. 138 Cal. Rptr. 515. 521-522, Cert. Denied. 434 U.S. 988 

(1977). Courts frequently ltresr policy masons for denying a claim or necessity, and the 

importame of maintaining prison order. People v. Richards. 269 CI1. App. 2d768,778,75 

Cal. Rplr. 597,6041 (I-); State v. Pahner. 45 Del. 308.310. RA. 2d 442.444 (0. Gea. 

~er., 1950); ~sople V. NOW 18 m. ~pp. MD, im N.W. Y. 916,918 (I-). see, 

dirurion and cases cited m Fletcbcr. "IadividualiPtion." pp. 124S1286. Conrcquently. 

Chrla E.ilor solution that -tes the prisoner's predicament and sodety's interest 

in not having prbmm escape. People v. Lover Camp, 43 Cal. App. 3d. 823,831-32.118 

Cal. Rpa. 110. 115 (1947); United Statcs v. Boomer. 571 F. 2d. 543, 545 (Cir.), Cert. 

DM, 436, U.S. 1911 (1976); United Statu v. Bailey, 444 US. 394,41243 (1980) and 

United SUtg v. Mer, 598. S.W. Y. 540 (Mo. App. 1930) (w a mon hdividurlizad 

rpporrb).Thm~~t~theCourtsmarhetherprimoucapeaorspdca 

of the ddena of aeadty or durcs. United Srates v. MicheIron. 559 F. 2d 567 (9th Cir. 

19n), (dunar); Pmple v. Luther, 394 Mich. 619,232, N.W. 2d. 184 (1975). (durcs); State 

v. Baker, ibid. (nearrity); People v. Lover Camp, idem. (nemrity); Pwpk v. Uoger. 66. 

III. 2d. 333 5 III Du. 848.362 N.E. 2d. 319 (1977), (nummity); People V. Ricbudr, idem. 

(noceaity). See gcnwdly. Note, "Prism Esgpe and Dchces bad on Ckditbm: A 

cboory of Social Prehmcc." 67 Caf. L. RN. 1183 (1979); Note "Intokmble,*' Coaditim 

m a Defence to Risoa Escape," 26 U.C.L.A. 11% (1979) and Note, "Duress and the Rioon 

@acapc: A New me for an old Dcfena," 45 S. Cd. L. Rev. 1062 (1972).


For example, conarning tbe Wbility of involuntary coofedom, the Supreme Court 

baa~aniadividualizcdrpproeehbsredonthetotrlityd~.(3ulombev. 

Canoectieut, 367 US., 3%. 602 (1961); Fikes v. Alabama, 352 U.S. 191,197 (1957), Paync 

v. Artuua. 356. U.S. 560. 567 (1958); Haley v. Ohio. 332. U.S. 596. 599 (1948). Sec, 

Mdloy v. Hogan, 378 U.S. 1.7. (1964); Haynts v. W-, 373 U.S. 503 (1963) Minay 

v. Arinnu, 437 U.S. 385 (1978). In Cukms6e. while atstiq that dmtahcu h the utiinatc 

test of the ntidity of umfcdsions, the Supreme Court recognLsd that this h not &ly a 

quation of pychololly but nrlee of law applied to psychological facts. In Stein v. New York. 

346 U.S 156.182-186 (1952) m'd on other grounds. Jsctson v. Denno. 378 U.S. 368 (1964). 

the Cwrt uaerted that sina physical violence serves no lawful pqm& it is inhenntly 

d. Intamgation docs serve a axial value and, tbmfore, it i not inbcrently coercive. 

Sec.Pletcber. "Individualiution",pp. 1m-1mand Fiagamte. VicZindElllion, pp. SlW. 

ThcImpedofdmoresisevidentinthe~ofanradmarri.ges.Se~notiom 

concerning women's honour played a larger rde than they at present do. Sac. Memdith v. 

Meredith. 79 Mo. App. 636 (1899). (Threatending to kill the man who dishonoured a 

daugbtm is not dureaa); Shepberd v. Shepherd. 192 S.W. 658. 661-63 (1917). (threats that 

raulthaman~the~he~tedandpomiaedto~inotdurrrv 

bealeethmisastrongprerrumptiOnthattbemarrisgewasentmdhtoinMmntof 

moral obligations); Sec also, L.N. Bmwn. 'The Shotgun marriage," 42 Tul. L. Rev. 837 

(1968). D. Bradky. "Duress and Arranged Marriages," 46. Modem L. Rev. 499 (1983); 

Wertheimer, C h , pp. 71-n. 

A eue miming from outside the field of dues dmomtrata, that even juries can believe 

that there i h a p a choice. In Maddl v. Rraoe. 511 S.W. 2d 225 (Ts. 1974). Marshall 

was held priooner in his how by his neighbow's vidous boar. The boar had charged Marahdl 

ten or twelve timcs. MarsbaU had pmioudy disarssed the Hog's viaoumea with defendant. 

Eventually, the boar managed to in@ Marshall as be attempted to kave hio home. The 

jury found that MarsbaU was conbibutody negligent for fading to build a face around hio 

~,andbe*~therisLofinjurywhen,despiteofhiob~ofthe 

v i h propearities of boar. Madd faikd to aboot the boar. Thc Court of Appcd affhncd. 

Thc Supreme Court of Texan held that contributory ne-a is not a dsfoaa in stria 

lirbility cases. Importantly, the Court held that Marshall did not anumc the risk because 

he did not have a free and voluntary choice. The plaintiff's choice3 of riaking injury arc 

remaining a Ppironer at home mere not as a mattcr of law the vduntary choices to which 

the law mtiW him. Additionally. the daughter ofthe aoimal was not areaonable al-tive 

sina be d d have faad pnxca,tion for ouch an act. Idcm, at 2#%1. Evidently, tbe 

Covrtwasforcedbythe jurie8uns~emlyvadicttoa~prrtcnrionrofaviYmenx,me. 

'h Cow? had to rely on legal standards, and on the I@ jargon of "as a mattcr of law" 

which in reality betray idea of appmpriate social bebaviow. and balancing of rights and 

entiUemmts. ilia arc is d*arsred h Wcrtheimer, Cocrdan p. 61. 

Kaph v. K.plan. la. N.E. 2d. M6.710 (1962). (the threat of personal embamsmmt 

wuwt~asnttorendcrpl.intitibmnofqdtyofd~ti.lformaLingacon~); 

ace. Wertheimer. Corrdon, p. 12. 

Inordertopmvedterytheaccuoerha~topmvidefourwi~whobdtheseNd 

ret including penetration without apying. Sec, on Qcrdhf (the crime of ururing mucone of 

sdultery or fornication). Ibn Rushd. Biddym d-MyW, (Cairo Mumtapha Halabi. 1981), 

VOI. n, pp. 44043. 

'he MPC, docs not ~~4)gniSe threats to reputation in criminal carcs. Sac note W above 

and acannpanying W. 

WV. Lewis, 4 S.E. 2d. 464,468 (Cia. 1939). lbis case is d i d in Wertheimcr, Coercion, 

P. 38. 

Ibe Court in m, hoveva, atated that, 'lbc thnat. . . must be suf6cicnt to ovmanc 

the mind and will of a penon of onbary hem." Id.. p. 467. 'hk might uplrin the 

court's duision. Oae ferL the Court WM motivated by mutated policy (or otherwbe) 

conaidemtiom cspeeidly in Light of the fad that the purportbdly ~d that a -tiff


wan a yarn- rrmn he "would have givcn him hell." Id., p. 466. If belimd by the Jmy. 

refuses. A angdy leavethe amtract in B's possessim and leaves. 'lh days later C telb B 

that A is a violent person, and that A once broke someone's arm. B bearms tenified and 

his will m although no cxpliat a implicit threats were levied rgeinst him, and he 

nuhestosbtheam~.Assumetb.tBhasnoruaoatobelievethatCisA'srl&nt.Ibe 

~ommon~,ifthe~ofen~will~tobetlteamianlg,~h~ld 

amtractvoidable. Ihe~ofarulthreatorthe~c~of B'scwchrtshould 

be irmnatcrinl. Islamic law, however, m this csse, can deny relief on the banb that the type 

of duress inflicted hm is not donable because thm is no moral or social policy resson 

to recognise duress ~BMOml#LOied by M explicit threat m this context. 

Fa a good critical PpprPbal of the MsoaaMencaa requinmcnt in Neumcm end Wcitzr. 

"Durese. Frce wffl," pp. 326328. 

Smith. at p. 348. 

See. Idem for the same poiat and on the indefiniteness of the reasonabkness standard. 

Fletcher, "IndividualiEation," p. 1293. 

Note 113 above end accompanying text. 

Notes 34 and 35. end acunupM~ text. 

For example, al- opposes the beating of suspeeb to obtnin evidence or confessions 

but he does so on baakally utilitarian grounds. Al-Ghazdi, d-Mwta$6, vol. I, 297-299. 

morally motivated rules such as the murder exception. 

Most of the rules were articulated mound the nincth to fourttenth centuries. 

Several voias have called for the dmlopmcnt of Islamic law but not much haa been achieved 

in that regard. See, on modern attempts at reform, and on Islamic law in the modern world. 

N.J. wulson. A History of lslunic Low (1978). especially pp. 149-225; M. Khaddiiri, 7he 

I k i c Conaplion of Jvstice. (1984). especially pp. 192-232. 

Alan Watson. Roman Lmu and Cotnparalive Low (1991), particularly pp. 97-110 and Alan 

Watson. L.qd TmplMtr (1974). 

See, on the subject of legal mental sets and the legal culture, Alan Watson, Failurn of tkc 

Legd Imrrgindon (1988). particularly pp. 13S154. 

AAA

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