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

Ishmic Studies, 30:3 (1991) 333
under the threat of imminent danger, a person will panic and react on
impulse.'43 Nevertheless, to say that the reasonableness standard is unrealis-
tic is not necessarily to say it is inappropriate.
The reasonableness standard is too indefinite. What is reasonable for
a particular person will vary with his or her personal characteristi~s.'~~ The
indefinitness does not neoessarily arise from the need to individualize the
inquiry, but because reasonableness essentially involves a hindsight evaluation
of the moral appropriatness of the coerced's response to duress. To say
someone acted reasonably under the circumstances is to say no more than
that society approves or, at least, cannot condemn the coerced's rea~ti0n.l~~
As Fletcher succinctly puts it:
Indeed, the appeal of the reasonable man is precisely that he permits
one, covertly, to make the same judgement that one would make in
openly discussing the defendant's moral responsibility for his conduct.
Yet if that is the case, one wonders why common law judges bother
with the circumvention; why not simply ask whether the accused
ought to have been able to resist the pressure exerted on him?146
- Fletcher, however, argues that the law's approach to duress should
not be based on rules. Rather it should focus on an individualized approach.
However, rules are important not only for predictability, but also for affirm-
ing standards of conduct. Such standards should be based on moral and
social considerations and notions of fairness such as proportionality.
It should be stressed that Islamic law does not ignore the individual's
feelings. After all, there is something inherently moral about considering
the individual feelings of a person in a difficult predicament. But that cannot
be the sole consideration. At the same time, Islamic law does not commit
itself to upholding vague moral standards such as "reasonableness". Con-
sequently, it can limit itself to recognising only certain forms of duress in
proportion to the interest at stake. Importantly, based on moral and social
considerations, rules elucidating standards of conduct can provide an element
of predictability in the law.
But while adopting a methodology capable of providing predictability,
Islamic law lacks in im*rtant respects. Foremost, Islamic law, as it now
exists, speaks in too many voices. Hence many contradictory evaluations
and determinations of the admissible types of duress and relevant standards
of conduct can be found. Some voices, for example, have excused murder
or, at least, held that the defendant will not be punished in this life although
saving themselves at the expense of others.'" Further confusion is created
by the fact that some jurists express rules or exclusions unsupported by any