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

Islamic Studies, 30:3 (1991) 329
A different approach is to ask, did the coercer have a right to threaten?
Did the threatened have right to succumb to the pressure? Does the victim
owe any obligations to others including the coercer? A third approach, I
propose, is to combine both inquiries, and to incorporate a policy, based
inquiry. This third approach would ask three essential questions: (1) Did
the duressed in fact feel forced to do what he did? (2) Assuming that prop
ortionality and committing the lesser evil are requirements of fairness, was
what the duressed did fair to society or did the duressed unfairly violate the
rights of others? (3) Are there any policy questions, including moral and
constitutional, that need to be considered? Policy questions, for instance,
could include concerns about due process guarantees against coerced confes-
sions, finality of adoptions, or the necessity of obtaining testimony even if
the witness feels intimidated and threatened.
Islamic law roughly follows this approach, it begins by asking the last
question first. Furthermore, Islamic law phrases the last question in terms
of religious policy. Hence, as a matter of religious policy if the rights of
innocent people, other than the rights of the coerced, are involved, the law
demands a higher level of perseverance and endurance. Consequently, duress
is divided into two types, compelling and non-compelling. The law excuses
the act committed depending on the type of duress inflicted. In civil acts,
in most cases, only the rights of the coerced are involved and, therefore,
both types of duress are recognised. The dichotomy between compelling
and non-compelling duress is also necessitated by the second prong. However
this dichotomy alone cannotachieve proportionality. Although compelling
duress will excuse serious crimes, it will not excuse all serious crimes whatever
the scale.
.Also, as a matter of religious policy, Muslim jurists maintain that
murder is never excused. Additionally, religious policy determines if third
party threats are recognised. As discussed, Ibn Hazm, for example, maintains
that the policy of brotherhood between Muslims necessitates recognising
threats directed at strangers.125 What is religious policy in Islam is informed
by textual sources such as the Qur'h and the Sunnuh (the Traditions of the
Prophet and his ~om~anions).'~ But, as noticed from the diversity of opinions
within Islamic law, that does not preclude the possibility of disagreement
among jurists nor does that necessarily create a well-defined set of religious
policies.
Furthermore, religious policy is not the only type of policy inquiry
permitted in Islamic jurisprudence. Of course, Muslim Jurists did not deal
with modem problems such as whether plea bargains are coerced. Nonethe-
less, policy could be based on customs or social practices as long as these
customs do not violate fundamental religious tenets.ln