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

332 klamic Studies, 30:3 (1991)
Upon hearing these statements the sheriff vigorously expressed his displeasure.
Fearing harm, the h e r and his brothers went to meet the sheriff.
The sheriff made statements to the effect that the farmer had slandered him,
and, again expressed his anger. 'Ihe sheriff advised the farmer to go meet
the sheriff's attorney to settle the matter. Upon visiting the sheriff's attorney,
the attorney stated that it was good thing the farmer came to see him because
he was getting ready to attach everything the farmer owned for a 3000 dollar
slander suit. After protestations of poverty, the farmer agreed to a 5000
dollar settlement. The farmer later sued claiming that the settlement was
obtained under duress. A jury found in favour of plaintiff, and defendant's
motion for a new trial was denied. 'Ihe Supreme Court of Georgia reversed
finding no evidence of duress. 'Ihe Court stated: "With an appreciation of
the veneration and sometimes fear in which the 'high sherifP is held, especially
by some members of the coloured citizens in this southern country,
we can well understand how plaintiff, when he began to hear rumblings of
the sheriff's wrath could have become frightened and fearful of the comequences
to himself'. Nonetheless, the Court held that even if this fear resulted
in his signing the contract that, "does not measure up to the legal definition
of duress". The duress exerted upon plaintiff, according to the Court, came
from within and not from with0~t.l~~
If a standard to overcome will is accepted, the Court's holding is of
doubtful validity.14' 'Ihe existence of an explicit threat from the sheriff
should be irrelevant. If the plainti£f's will was overcome by the coercive
situation, it would seem there is no reason to deny relief.
As to Islamic law, we have already encountered Sarakhsi's analysis
as to commands or requests by superiors known for their injustice or oppres-
sion.14' Islamic law would deal first with the question of whether the practices
of officials in a society call for recognition for this type of duress. The
practices of the particular official are largely immaterial; the essential fact
is whether the social circumstance call for added protection to a segment of
society or all of society.142 Subsequently, the subjective feelings of plaintiff
would be examined to determine if he was, in fact, coerced. The merit of
this approach is that it would force a court to explicitly state its policy analysis.
'Ihe standard of reasonableness pursued by the Common law in the
criminal context seems to partly solve this problem. In explaining why a
certain behaviour is reasonable, a court necessarily has to articulate the
social and moral standards relied on. But the relevance of "reasonableness"
to the law of duress is not readily apparent. It is not clear why is it important
that a coerced person act reasonably, or even if it is possible. Realistically,
it is entirely unreasonable to expect people panicking under the threat of
an impending serious injury to act reasonably. In all likelihood, if placed