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

Islamic Studies, 30:3 (1991) 315
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