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

Islamic Studies, 30:3 (1991) 339
See. al-Ramli, Nih@ah, vol. 6, p. 447; al-Jamal. Hbrhiyah, vol. 4, p. 325; al-Buhuti,
M-hid KhM, ~ l 5, . p. 236, lbn QudBmah, MU@, VOI. 7, p. U)4, lbn Mm, d-~uhk, vd. 7, p. 256 (duma varies with thc conditions of people); al-Kh- (al-'Adawi,
commnt.tor) MuUirafm Sayyid Khdil, vol. 4, p. 34, al-M, d+agW, vol. 2, p. 546,
al-. Hdpkiya d-Lhdqi vol. 2, p. 368, and a& ibn al-Humh (ad-Babarti, commenmar).
Shm?, d-F+ d-Qadir, p. 295, for the same approach m thc Hanafi school. Also a&
E& d--, 'Urn, p. 267; and al-Dar~pi, d - T d , pp. 367-368.
This dhgree~nt has been noted by the commentator to Ibn 'AbiQn's work, Radd, vol.
6, p. 129.
lEia h pdomiaatly thc opinion of some Hanrfi Jurists. The Mjdlc relyiug on this opinion
date in Article 1005:
If the person ampelled, do [sic) what he is compelled to do, m thc presence of
the person, who u~ts compubion, or his agent, the compulsion is wnsided.
But, if he do [sic] it m the absence of the person who u~ts c~mpukion, and m the
absence of his agent, the compulsion h not dded, by reason of his ha*
acted with willing auhissh afier thc removal of thc comprlsion.
Some HanbaG jurists went even further in requiring that some physical harm would befall
the victim before he submits to pressure; therefore, a mere threat unaccompanied by some
actual physical harm will not suiia. Ibn M*, d-Mubdr', vol. 7, p. 256; and Ibn Qudhah,
al-Mughni, vol. 7, p. 383. But see al-Buhuti, Kmhdf. vol. 5,236, from the HanbaG school,
for a contrary opinion.
AI-Jamal. Hddiyah, vol. 4, p. 323; and al-Ramli. NWyah, vol. 4, p. 447. Also see lbn
al-. S w Fu@ d-(?ad&, p. 293, fmm thc +di school for thc same appmach.
Al-Khurashi, M-ar Sayyid Khalil, vol. 4, p. 34; and al-Dusiiqi, Hahiyal al-D~~~liqi,
wl. 2, p. 368.
Al-Sarakhsi, al-Mabse, pp. 76-77. AISaraLhsi, later argues, somewhat i~lconsistantly. that
if a person 01 authority orders another to grab people's money, the ordered person cannot
comply if he is far away fmm the oppressor. Thea al-- adds that those who assist
opprcssor~ always claim that they were compelled to do so but m reality they had no excuse
unless the opressor was standing over them at all times. Otherwise, they really never know
whether the oppressor will in fact s u d in hurting them and, therefore, they cannot assist
oppressors. See al-Sarakhsi, al-Mobslit, pp. 77-78. me only way we can read the two abovedrscussed
passages consistently is to rend al-SarM as saying that if a person has an opporhlaity
to escspe he will not be excused unless he is cornered mto compliance. Also see Ibn
'Abidin, R d , p. 132; and lbn al-Nujaym, d-Ashbrih. vol. 3, p. 203; Ibn Qayyim al-Jawziyyah,
A ' h d-Muqa'in (Beirut: Dar al-Jtel, n.d.) vol. 4, pp. 53-54.
See. D&-. M M d-Re, pp. 427; Blgr al-'UItim 'Uyyrsb, p. 269; al-Daray-, d-Tmdii
pp. 371-372; al-Sanhm-. Ma+ d-Haqq fi? Fqh d-I- (Beirut: al-Mujama al-by,
n.d.), vol. 2. pp. 1W52.
Al-Saralrhsi, al-Mobsri!, p. 135; Ibn Qud%mah, d-Mughni, vol. 7, p. 384; al-Kashi, Ba&ii',
p. 181.
Atcomm~ah."[t]he~to~thedcgreeofcDmpulsionmtcrmsofgravity~f
thc o&aa ~ lI- r overlooked". (Pertins and Boyce, Criminal Lmv, p. 1061). Regde=
of uime, thc test of that ef death or serious personal miury, was thc same. State v. Toscano
J18A. 2d. at 762; R.v. Hudson & Tavloc. [I9711 2 Q.B. 202. Whatever the offense, the
threat of a serious physical mjwy is required. (Orchard, '"I'k Defence of Compulgion,"
111; Ncumau & Wdkcr. "Duress," p. 330). However, an 1887 a&ms to hart reeogrised
& of- dcgree of pmportionelity etating: "It m~gt be obvious to thc dctiberate
judlFment of cvq reflecting mind that much less freedom of will is requisite to render a
pcm responrdbk for wimc thau to bind him by a sale or other contrsct. To overcome the
will, so far rr to render it iacapable of contrecting a avil obligation, is a mere trifle compared
with~ittoth.tdcgecofal.veyand~~bmirsionwbichwillexamp~punishmcnt."
McCoy v. State. 78 Ga. 490, 3 S.E. 768. 769 (1887). In McCoy. a judge ch- thc jury
thrt,"Ihuwaanmintsmthabofbodilyorothcrhsrm,orOthermtans.. .amo~ntillgto
or tending to ooera thc will of another. . . ." The Supreme Court of Georgia reversed