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

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