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

322 Islamic Studies, 30:3 (1991)
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