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

Islamic Studies, 30:3 (1991) 321
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-