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

334 Islamic Studies, 30:3 (1991)
possible religious, moral or social policy. For example, there seems to be
no rational policy behind refusing to admit duress directed at third parties
especially relatives and loved ones.'48
More importantly, Islamic law fails to comprehensively explain the
proper balance between the rights of society, religion and*individual. The
approach of saying some choices are inexcusable as a matter of law is fundamentally
correct, but the essential question is what are the limits. For example,
take a person who, threatened by rape, escapes from prison. Rape,
according to Islamic law, is a grevious bodily injury and, thus, compelling
duress. ~utcbuld society's interest in maintaining order in prisons be equated
with society's interest in the inviolability of life, and, therefore, a threat of
rape would not excuse an escape? In other words, as there is a murder
exception, could there be a prison escape exception? It seems that there is
something very immoral in saying, as a matter of law, people should withstand
rape rather than escape. Probably, most Muslim jurists would insist that
rape is compelling duress, and as long as the crime annitted is proportional
to the threatened harm there is no liability. Hence a threat of rape would
excuse prison escapes. Nonetheless, this response is unsatisfactory because
if one recognises a murder exception, other exceptions could be created.
Fundamentally, while Muslim jurists worked out an appropriate methodology,
they have failed to fully explain the value system or moral theory that
underlies this meth~dology.'~~ This lack of clarity is a product of the medieval
historical period in which Islamic law was formulated, and also a product
of the difficulties Islamic law has encountered in the modem w~rld.'~
Since the Colonial era, and to this day, most Muslim countries have
abandoned Islamic law in favour of Western legal systems, especially the
Civil law system.''' This is unfortunate not only because Islamic law has
been denied the opportunity for development, but also because Islamic law
has been largely removed from the international legal discourse. However,
incomplete legal systems can both inform and reform each other. Implicitly,
comparative studies are indispensable for this task. Frequently, the specific
rules adduced by a legal systems are not as probative and insightful as the
methodology or approach adopted. In this regard, the main contribution of
Islamic law in the field of duress is its methodology.
As Alan Watson has stressed, a comparative approach to the study
of law is not only significant for understanding the relationship of law to
society, but also for the practical value of reform through selective borrowing.'"
Beyond outright legal borrowing, comparative studies could inspire
innovative thinking that transcends the'constraining influence of precedent,
and the mental sets of a particular legal cult~re.''~ The fact that the Islamic