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

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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 criminal 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
Islamic Studies, 30:3 (1991) 325 the property damage is not extensive so that the threatened harm is greater than the committed harm. The secular ruling as to criminal liability mirrors the religious ruling. Nevertheless, there is an additional issue of who should compensate the innocent party (C in our example). On the issue of compensation there is much disagreement among Muslim jurists. Some jurists10g asserted that if the duress is compelling then responsibility for compensation should lie with the mercer and coerced. So to apply this to our example, C (the i~ocent party) can seek compensation from A (the coercer) or, alternatively, from B (the coerced). Other juristsl10 argued that if the duress is compelling then only the mercer, A is liable and not the coerced, B. If, on the other hand, the duress is not compelling, the majority of jurists decided that only the victim (B in our example) would be liable to the innocent party (C in our example). Some jurists, correctly in my opinion, argued that, in this case, although the victim (B) might not be forgiven for his behaviour on the final Day of Judgement, liability should still be shared by A and B, or at least C must be able to get compensation from either A or B. In other words, Cs options for compensation must not be limited because of B's frailty."' Rape is a more serious matter. For one, it involves serious criminal sanctions, additionally, it is absolutely prohibited. There are several possible scenarios involving non-consenting intercourse. A could physically attack C (a female or male) and rape her or him. Alternatively, A (a male or female) could threaten to kill C (a male or female) if he or she does not have sexual intercourse with him or her. Or, A could coerce B (a male or female) into raping C (a female or male). The first two scenarios involve cases of traditional rape. As a general rule, the rapist is always liable and raped is never liable. The third scenario is the one more typically discussed by the law of duress, and the question is whether B could commit rape in order to save himself from harm. Most Muslim jurists held that if the duress involves serious bodily injury or death (but not extensive destruction of property) then B is excused from all liability, religious or secular. On the other hand, if the duress is nonampelling, the duressed is liable in this life and the hereafter. Some jurists, however, held that rape can never be excused, the duressed should have sacrificed himself rather than commit the grevious harm of rape."2 Finally, we deal with the case of murder. The religious rule, in Islam, is that murder is never justified. Therefore, no matter what type of duress
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LAW OF DURESS IN ISLAMIC LAW AND COMMON LAW: A ...

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