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

324 Islamic Studies, 30:3 (1991)
The law is replete with instances where regardless of the dominant social
practices, a standard is set. Thirdly, the argument lacks proportionality.
Perhaps, it would make some sense to argue that a person should kill a
stranger to save his three young children but it makes no sense to permit a
person who plants a bomb in a crowded train to claim duress.'"
Most criminal acts implicate @e rights of innocent persons. The limits
and inviolabilities (hwzlmdt) are great because, according to Muslim jurists,
one should not repel injustice by committing injustice. Since the rights of
innocent people involved, the standards are higher and the moral and policy
concerns of the law are greater. Therefore, Ibn Hazat asserts that the victim
of duress has a primary duty to resist committing acts that violate the rights
of others. A Muslim, according to Ibn Hazm, should resist injustice rather
than succumb and harm others.107 Muslim jurists,including Ibn Hazm, then
add that if a Muslim resists committing murder, rape, or destruction of
property and is injured or killed in the process, he is rewarded by ~od.'
The absence of altruistic behaviour, however, does not mean that
the victim of duress is held liable. In Islamic law in most cases, there are
two separate and independent rulings. There is a religious ruling (pertaining
to the person's liability in the hereafter) and, a secular ruling (pertaining to
the person's criminal liability in this world). The religious xuling is designed
to uphold the ideals of religion. The secular ruling accommodates human
frailties while at the same time trying to uphold certain standards of conduct
inspired by policy and religion.
We shall deal with three categories of criminal adestruction of
property, rape, and murder-+ illustrations of the effect of duress on crim-
inal liabilities in Islamic law. Generally, as mentioned earlier, in the field
of criminal liability, only compelling duress is admitted. Once it is established
that compelling duress was used, a subjective inquiq determines whether
the person was, in fact, coerced. The rejection of non-compelling duress,
in most cases, in this area, is motivated by the principle of proportionality.
A person should not commit a greater harm than that which is threatened.
The less serious case is that pertaining to the destruction of property.
A typical example of this would be when A forces B to burn C's house or,
alternatively, A forces B to burn his own house. As to the religious rules,
there is no liability on the dwessed if the criminal- act does not involve the
rights of others. However, if the rights of others are involved, a person
cannot succumb unless the duress involves compelling duress. Muslim jurists
argued, however, that even non-com~lling duress can act as an excuse if