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

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?