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

lslamic Studies, 30:3 (1991) 33 1
In these, and other fields of legal duress, there are contravening social
problems that require balancing the psychology of the duressed with the
needs of society. Therefore, the legal approach to the subjective feelings of
the coerced depends on the particular area of law under considerati~n.'~~ I
am not arguing that considerations of policy or morality should render a
subjective inquiry entirely irrelevant. But as with most issues, law has to
balance rights and such a balance renders the language of an overcome will
inappropriate. 13'
Nevertheless, from a comparative perspective, the Islamic approach
would not yield very different results from those reached by the Common
law. Both systems would not exclude most types of duress, and both would
focus on the factual question of the coerced's state of mind. Nonetheless,
Islamic law would, more consistently with its premises, be able to admit
that it is balancing the interests of the individual with that of society. 'Ihree
examples might demonstrate the similarities and differences.
Assume that a wife threatens to expose her ex-spouse's extramarital
affair unless he agrees to- certain property concessions. At Common law,
there is some evidence that this threat would not be considered coercive.136
Islamic law would probably consider such a threat coercive as a matter of
religious policy. Unproven accusations of infidelity are a criminal offense,
and the burden for proving infidelity is ins~mountable.'~' m e remaining
question, since the type of duress is recognised, is what impact did such a
threat have on the coerced's mind. This form of threat to reputation would
probably also be recognised in criminal cases, but it is not clear whether it
would be considered compelling or non-ompelling duress.13' Probably, like
threats to property, the classification would depend on the extent of expezted
damage to the coerced.
To take a different scenario, assume that A threatens to destroy B's
supply of cocaine if B, a drug dealer, does not sign a contract on a collateral
matter. Assume further that B's will was, in fact, overcome by A's threat.
Islamic law, can, consistently with its premises, refuse to recognise this type
of threat as legal duress. This is because Islamic law's approach only gets
to the coerced's mind after it decides as a matter of policy that the type of
duress inflicted is actionable. The Common law probably would also not
reoognise this type of duress. But it can only do so by referring to elements
external to the coerced's will. The threat here might be wrongful but that
does not necessarily olean it is recognisable by law.
A final example will further help contrast the approaches. In King
v. Lewis, an African-American farmer made statements before a grand jury
to the effect that the county's sheriff is stealing money and accepting bribes.