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

Islamic Studies, 30:3 (1991) 337
same conservatism. For example, at Roman law, "'Mchrc (duress) consisted in threats of
pbykal hum, death, emlavement, accusation on a capital charge or of an attack upon the
chastity of the prty so threatened or of a member of his family; threats of merely economic
damage would not suflia." Thomas. Tatbook of Romon law (Amsterdam: North-Holland
Publishing Co., 1976). p. 227. Jwrimimf Digest, however, states that fear of infamy is not
amred by the mthh edict. See Juuinian's Digest, Book 4. Title 2, section 7 Watson
bum. 7%~ Digw of Jy1rinion (Philadelphia: Univ. of Pem Ress, 1985) vol. 1 at p. 114.
Rubenstein v. Rubenstein, 20 N.J. 359,120 A. 2d. 11,15 (1996); Ensign v. Home for Jewish
Aged, 274 S. W. 2d. 5U2 (Mo. App. 1955); Orchard, Defence of compulsion, 11 1; G. Fridman,
"Duress in the Canadian and English Law of Restitution: A Comparison," 11 no. 1 Ddho11sie
L.J. 47. XL52 (Sept. 1987); 17 C.J.S. Controctr, sec 175, p. 959-%0.
See, 17 C.J.S. Contracts, sec. 172, 954-956, sec. 175 at %2 and sec. 177, 966-%7; 25 Am.
Jur. 2d. "Duress," sec. 18. Hochman v. Zigler's Incorporated, 50 A. 2d. 97, 100 (N.J. Ch.
1946); Miller v. Elsele. 168 A. 426,430 (N.J. 1933); Uniform Corrrmcnicrl Code, sec. 2-3U2
(1%2) (Pqmses). "The act or heat upon which a claim of coercion is predicated must
only be wrongful in a moral sense, not necessarily a legal one." Justice Holmes earlier on
held that whether the threat is unlawful or not is not determinative. Sallsbee v. Webber.
171 Maos, 378, 50 N.E. 555 (1898). However, some modem courts continued to state that
it is never duress to threaten to do what one has a legal right to do, for example, Fidelity
& Casuality Co. of N.Y. v. United States, 490 F. 2d. %0, !766 (Ct. CI. 1974). But see,
Rubenstein v. Rubenstein, 20 N.J. 359, 120 A. 2d. 11, 15 (1956).
See, Fingarette, Vidimizcrtin, p. 109, Fridman, Canadian and English law, pp. 51-52 (expressing
the view that British law is unclear on this point); Hale, Bargaining, 613-615; N. Rafferty,
'The Element of Wrongful Resure in A Finding of Duress," 18, no. 3 Alkm L. Rev. 431
(I=); Sutton, "Duress by Threatened Breach of Contract," 20 McGill L.J. 544 (1974);
Dalzell, "Duress by Economic Pressure," 20 N.C.L. Rev. 341 (1942); J. Dawson, "Duress
Through Civil Litigation". 45 Mich. L. Rev. 571 (1947).
Wer(beimervthst m dl - m a twopronedysisisat work. One, what the
lntbor alb a "cboia pmq" ia which tbe coart iaqr6ra rhetber the coenrr's "jmqod
rruta a cboia aihution for [the merad] such thst [the d] has no alternative but to
do I". lko, a "pupad prone" m which the mutt inquirts "whether it i wrong for [the
anrar] to make such a prcqxmal to [the menad]". Wertheimer argues thst courts adopt a
~.admonlrppo;rhm~bdh~.Butwhikthepmposslprmg:'does
matdtheaat"meivil~,thecboiapronemmmdm~tiveincriminalcsrres.
(Wertheimer. Canion, pp. 17273; 274-75). Only a selective reading d the came law csn
support thir adysk. But even if this is, m fact. the underlying philosophical reasoning
behind the cauq this h not the law. The case law does not reflect such a coherent and
It is difficult to make a uniform presentation of Islamic law since, not unlike the Common
law, there is no single authoritative source of law. Islamic law is represented in the writings
of several medieval Muslim jurists. mere are five major Sunni schools of law, ShWi, Hanafi,
MPi, Wbali and w, as well as, at least, two Shi'ite schools. When I use the term
:slatkc law, I mean the opinion of the majority of the jurists on a particular point. If there
is no majority view. I point that out in the endnotes. Additionally, in prrwnting Islamic law
I have sometimes used the consensus of modem Muslim jurists studying the subject.
This division is often ascribed only to the Hanaii school of thought in Islamic law. See M.
Hamid, "Duress and its Effect on Contracts in Islamic law," Sudon L.J. and Reports 334.
334-335 (1971); A. El-Hasan, "The Doctrine of Duress (ikd) in Sharia, Sudan and English
Law," I. Arab. L. Q. 231, 231 (1986). However, this is largely inaccurate. Other Islamic
schools did have a general conaption of two types of duressone so compelling as to negate
liability in grave offenses and the other not so compelling. The Shafi'i jurists used the term
ruinous duress (ikr& dlik) while the MBliki jurists used the term total duress (ikrcih
mu!laq) for what the I+I%S called ikr& m4i. See al-Jamal. Hlirhiyat al-JaMI (Cairo:
al-Wktabah al-Tij*yyah al-Kubra, n.d.), vol. 5, p. 9; and al-Dusuqi. Hlirhiyaf d-Dusuqi