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

law of duress is in need of development and elaboration does not negate
the validity of its approach. This approach could inspire the Common law
towards a more systematic and coherent approach to duress.
NOTES AND REFERENCES
The term "duress", instead of coercion or compulsion, will be used in most pans of this
essay. Coercion in Common law refers to a special defence available to wives who commit
an illegal act in the prcscnce of their husbands. Smith and Hogan, C M Low (5th 4..
1983) p. 209; Bishop, Commmtariu on the C M Lmv, vol. 1 (7th ed., 1882). p. 224.
The justification for this rule as explained by Francis Bacon is that "the law intends [a
woman] to have no will, in regard of the subjection and obedience she owes her husband".
F. Bacon, "A Collection of Some Principal Rules and Maxims of the Common Laws of
England," in Thc Works of Francis Emon, vol. 13, ed. B. Montague, (831). pp. 161; and
see, W. Blackstone, Blacksfone's Commentaries, ed. G. Tucker (18[n), bk. N, chap. 11, p.
27, noting that the rule is at least a thousand years old. But this defence is now becoming
defunct. W. Lafave and A. Scott, Handbook on Criminal Low (1972). pp. 3W81; Perkins.
Criminal Law (2nd cd., 1969). p. 918. But see, Edwards, "Compulsion, Coercion and
Criminal Responsibility," 14 Mod. L. Rev. 297,312-13 (1951), who argues for the retention
of the special defence of coercion. Compulsion seems to apply to situations where one person
physically form a person to commit an act by the application of direct force, for example,
grabbing a person's hand and striking another with it. See H. Fingarette. "Victimization: A
Legalist Analysis of Coercion, Deception, Undue Influence and Excusable Prison Excape",
42 Wash. & Lee L. Rev. 65, 65 n. 1 (1985); 1. Dennis, "Duress, Murder and Criminal
Responsibility," % Low Q. Rev. U)8.u#1 n. 1 (1980). Also see Edwards, Id.. p. 297 for the
differences between the !ern. The Arabic term for duma b -but it will not be used
in this essay for the sake of consistency.
Blackstone, Commenfarics, p. 27. Blackstone reasons that punishment is only appropriate
for the abuse of the will given to people by God. Francis Bscon repeats the similar rhetoric:
"The law chargeth no man with default where the act is compulsory and not voluntaj, and
where there is not a consent and election; and, therefore, if either there be an impossibility
for a man to do otherwise, or so great a perturbation of the judgement and reason as in
presumption-of law man's nature cannot overcome, such necessity cameth a privilege in
itself." F. Bacon, Colkchbn, p. 160.
D. Bradley, "Duress and Arranged Marriages," 46 Mod. L. Rev. 499 (1983); L.N. Brown,
"Shotgun Marriage," 42 Tul. L. Rev. 837 (1%8); Robert Brown, "Dwess and Fraud as
Ground for Annulment of Marriage," 10 Znd. L. J. 471 (1935); H. Abrams, "Systematic
Coercion: Unconstitutional Conditions in the Criminal Law," 72 1. Crim. L. & Criminology
128 (1981); C. Brunk. "The Problem of Voluntariness and Coercion in the Negotiated Plea,"
13 L. & Soc'y Rev. 527 (1979); Gammty v. New Jew, 385, US. 493 (1967); S. Mass, '"The
Dilemma of the Intimidated Witness in Federal Organized Crime Prosecutions: Choosing
Among the Fear of Reprisals, the Contempt Powers of the Court, and the Witness protection
Programme," 50 Fordham L. Rev. 582,590410 (1982); and see, A. Wertheimer, Coercion
(1987) pp. 54144.
See, G. Alexander, "Freedom, Coercion and the Law of Servitudes," 73 Cornell L. Rev.
883 (1988); J. Haag, "Involuntary Servitude: An Eighteenth-Century Concept in Search of
Twentieth-Century Definition," 19 Pac. L.J. 873 (1988).
See for example. Note, "The Effect of Duress on the Iranian Hostage Settlement Agreement,"
14 Vand, J. Tranmnl'l L. Rev., 847 (Fall, 1981); and Comment, "Coercion, Blackmail,
and the Limits of Protected Speech," 131 (1. of PA L. Rev. 1469 (1983).