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

Islamic Studies, 30:3 (1991) 307
overall approach or theory of duress. Nor will this essay address all forms
of duress. The goal is to contrast Islamic law with the Common law, and to
argue that the methodology adopted by Islamic law presents a useful addition
to the field.
A DEFTNITION OF DURESS
There is no uniform legal definition of duress. Because of the amorph-
ousness of the concept, duress can only be defined in the most indefinite
sense. Generally, duress is a wrongful pressure placed upon the person of
another forcing such a person to commit or not to commit a certain act.9
Article 948 of the Mejelle defines duress as "[Duress] is without right to
compel a person to do a thing without his consent by fear."1° These defin-
itions have the virtue of simplicity but, of course, they do not say much,
some would add to this definition that the threatened harm must be present
and imminent." While others might add that the threatened harm must
overcome or overbear a persons' will and deprive him or her of the freedom
of choice.12 Still, in the articulation of some sources, the threat must produce
a reasonable fear of harm or produce a fear which a person of reasonable
firmness would be unable to resist.13
Regardless of the definition, at essence there is an everexisting tension
between the desire to accommodate the actual feelings and practical limita-
tions of the victims of duress, and the need for society to impose standards
of conduct. Thus, should the law of duress accommodate the especially timid
and weak, or should it require all persons to live up to a standard of social
conduct irrespective of their particular circumstances? Should one hold de-
terminative the subjective feelings and fears of the threatened person or
should the type of threatened harm be held determinative Or, should the
proportionality between the threatened harm, and the crime committed be
determinative? If one decides that the subjective feelings of the victim are
determinative, does it make a difference whether the victim's response to
the threat is very unusual and generally unreasonable? Even then, does it
matter that the victim's uncommon response is the result of his selfish and
self-centred personality rather than a faint hearted and feeble character?
Even more, are there situations in which society will decide that
certain choices are inexcusable or unjustifiable as a matter of law? For
example, assume that a scholar who adores her books murders an innocent
person to escape a threat to destroy her library. Should society provide, as
a matter of law, that human life is more valuable than books? What if the
scholar's library consists of very rare and irreplaceable manuscripts, does
that make a difference? What if in the course of trying to save a library
from the hands of an oppressive government, a scholar commits a murder
or, perhaps, seriously injures a person: does that make a difference?