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

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326 isiamic Studies, 30:3 (1991) is brought to bear upon a person she may not commit murder, and if she does, she will be liable on the Day of judgement. The religious rule affirms the moral principle that people should not prefer their own lives over others, and that only God should decide when a person should die. As to the secular ruling, there are two main schools. The first school holds that if the duress is compelling, only the coercer is held liable, and the duressed, for the most part, is excused. The justification propounded by this school was that by the utilization of compelling duress the coerced has become the instrument of the coercer, and, therefore, it is as if the duressed has not acted at all. Nonetheless, this justification cannot be taken seriously since the proponents of this school insisted that the duressed should receive some light punishment as well as be responsible for the blood money. The second school, that includes the majority, and the most plausible in my view, decided that both the coercer and the coerced should be punished. The coercer is punished for being the primary motivator of murder, and the coerced is punished for prefering his life to the life of others.'" The hypothetical example frequently cited by Muslim jurists is that of a boat in danger of capsizing. In order to save themselves, the passengers may throw overboard property such as goods and animals. But they may not lighten the load by throwing human beings overboard even if it means throwing over- .board a single passenger to save the rest. As a matter of religious and moral policy, the law should not appear to be granting preference to the life of some over others."' The second school's view is justified particularly when a coerced person kills one or several innocent individuals to save himself. There is no reason to condone a person who saves himself at the expense of others. The more di£6cult situation is, as above, when fewer people are killed W save a larger n ~ber of lives. For example, if A threatens to kill B's three children unless B kills C. Here the rules of proportionality, and the principle of committing the lesser evil would not support holding B liable for murder. But the hypothetical example mentioned above, and the unequivocal language used by Muslim jurists in not excusing murder under duress suggest a contrary result. As noted eariier, Islamic law seems to premise its position on a belief that a human being should not prefer a life or, even a number of lives, over others. People should not be in the business of drawing preferences quantitatively or qualitatively between lives. As such, Islamic law does noi seem concerned with wrximizing social utility by sacrificing the least number of lives. Rather it upholds a principle founded on religious basis, as a goal in itself. All life is equally inviolable, and the law should not get involved in dangerous task of preferential selection. However, Muslim jurists dealt with the most straightforward situation, i.e. when A coerces B to murder C, or when A and B faced with starvation
lslamic Studies, 30:3 (1991) 327 kill and consume C. Muslim jurists did not deal with the more difficult examples that might arise under 'a form of duress or necessity, and that might pose a serious challenge to the Islamic response to the problem. For instance, assume Ali and Ibrahim wete climbing a mountain while being roped together for protection. Ibrahim slips and fells, but Ali grip a mountain edge and Ibrahim dangles down supported only by Ali. Ibrahim is unconscious, and Ali cannot pull him up. Either Ali cuts the rope, kills Ibrahim but saves himself, or he will be overcome by exhaustion, and both Ali and Ibrahim will plunge to their death."' Ali cuts the rope, Ibrahim dies and Ali is saved. For another difficult hypothetical position let us assume Ali, an en- gineer, works on a dam. 'helve men are busily working on a farm below, Ali suddently notices serious over-floading. Either he opens the dam gates, drowning the twelve men and saving himself or he does not open the gates and drowns himself and a town lying behind the dam. There is no time to warn the twelve farmers below. Ali opens the gates, saves himself and the town but kills the twelve men.l16 The question in both hypothetical positions is: Can Ali be held responsible for murder? Ones moral intuition is to say no. More importantly, Islamic law does not offer a definitive answer."' One suspects that a serious answer will only emerge when a real case with similar facts arises in a court applying Islamic law. Another point of comparison between the Common and Islamic laws of duress is the area of superior orden. The legal doctrine of "superior order$' was much debated in the West after the Second World War. Basi- cally, as a criminal law concept, it is a defence raised by those accused of obeying illegal d en of superion (for example, a superior orden a soldier to execute a prisoner of war). The majority opinion in Common law jurispru- dence is that a superior order is a defence only if the follower reasonably and honestly believed that it was legal at the time he obeyed it. The Model Penal Code goes further in holding that members of the armed forces are insdated from liability in civil courts unless they had actual knowledge that the superior order was illegal. The fact that a person of o&ary intelligence would have known that the order was illegal is insu£ficient, acmrding to the Model Penal Code. Rather, the person must have actual knowledge and belief that the order was, in fact, illegal.11g Muslim jurists discussed a similar doctrine usually under the heading of amr al-sul* (the order of the ruler). The discussion centred on the legal consequences of an illegal order by a superior to one of his agents. Muslim
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