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

More documents

Recommendations

Info

Islamic Studies, 30:3 (1991) stating that tbL imtrvction mi@t be proper in civil cmes. But the criau of perjury. Iike other felonies, reqe a threat to lik or limb. Some Watgn aebob have mpd for a rule ofpqmhdky. See. Mve & Sam, Handboo&, pp. 37Em. M. !hmaj&. "Dursu d Murder in the ClnnmonllraW CrimiaPl JAW." 30 1w. prd Canp L. Q. tXO,678 (1981). See,Ehvudr"."pppp.302md308. AtCammoalaw.~ofcvilMe~y~inthelawof"ntarity"a opposed to "duress". In neagity the force of mcrcion is natural face whik in duress the compelling fora isa human being. Modern Ameriaa c . have tended to blur the dirtinetion between durar d nearity. See United Stata v. Balky. 444 U.S. 394. 410 (1980). but ccrtaiu ampa haw praaved the dirtinction. United State v. Conteato-Padnm. 723 E 2d. 691,695 (9h Q. 1981). Islamic law das not dbthpbh bmeen the two doetriaer. On the"chdaofWMe.=Hi~."~.saDefeaain~Csres."4Va L. Rev. 519 (1917) Lafaw. CriminolIm, (1986) at pp. 433 and 441-443. Abo ace, the ~~IUOUC cane of Qucen v. Dudley & Stephens (1884) 14 Q.B.D. 273 and its dkmkm in Smith & Hopn. Criminal Low, pp. 201-209. AlSaraLM. dSiyor d-Kabi? (Hyderabad: Da'int al-Ma'arif), Irt ed. rol. 4, p. 222. Abo scc Ibn m, d-MuMld, vol. 8, p. 330. There are exaptions as will be seen in the next section. Al-Dardi. d-Saghir, vol. 2. p. 548. Ai-K&ni. Badrk". p. 181, and see al-Sarakhsi. She@ d-Siyar, pp. 131136 for the argument that even though the victim makes the wrong choice by commiting murder, the victim should not be punished if he believed in good faith that pronouncing apostasy was i#*cusable under all circumstances. It seem that al-Sarakhsi is arguing that this is a common mistake peopk make and, therefore, as a matter of policy they should be excused. Al-Sarakhsi, d-Mabsai!, p. 141 and see p. 135. Ibn 'Abibin (Commentator). Rudd, p. 140 and al-Sarakhsi, d-Mobsti!. 137. See more examples in Abdur Rahim. Ptinciplcr. p. 233. I am greatly simplifying the &&rent categorizdtion efforts by Muslim juriats. But for the purpores of this essay there is no need to go into the details. See al-Sa&h& d-Mabsti!, pp. 39-42; al-KasiM, Bodcii' p. 176; and Ibn Nujap, d-Ashbtih, vol. 3, p. 2(n. Also see, Abdur Rahim, Principles, p. 234 and 356. The Mcj& codified these categorizations in Section 1007, which states: [Duress], which is canpelling, like as it is considered in tmudom by word as above said so also it is considered in tmmactions by deed. But [durese], which is [noncompellig], is considered only in verbal tmnsa&m, in transactions by deed it is not considered. Therefore, if someone says to another, "Destroy the property of such a one. if you don't I will kill you or cut off one of your limbs", and the person, against whom the anupubion is used, dsstroys it, the compulsion is taken into coarideration, liability &I be enforad agaiuat the person u& tbe compllaion &me. -But if the says, [sic] "Destroy the pmperty of such a one, if you do not, I will strike or imprison yw," if that peMn does not destroy it, rhc compulsion is not taken into consideration, it is nwesq for the person, who destroys the thing, alone to make compensation. See abo. Ibn Hum, d-Mu+& vol. 8, p. 330. See Ibn 'Abid~~, ilPldd, p. 129: Ibn Nujap, d - a d. 3, p. p(; d-Dudir, d-+z@t, d. 2, pp. 367 d 370. For a far mom complu theoretial catc~tion from a ShWi SCC, d-Tdug, (d. 2, p. 197) dLwrcd d quoted by alS.nb~& MnpddL, 4. 2, pp. 195-196. Bacon. Cdlecnbn, p. 161. Although the dsrsic rule at common law was that no amount of durar would jurtay .cts of treason tbi abrolutist view was never followed to the latter, me. Edwards, ~vlrion, p. 298, Smitb and Hogan, Crlminol Low, p. 212 d Perldar and Bop, Crlminol LAV, p. 503. Bk+ckstone. Cmma&rh, bk., IV, chap. 11, p. 30. Blackstone displays a logic amazingly similar to Islamic analysis. Blackstone states that duress per minar excuses many crimes and
Islamic Studies, 30:3 (1991) 341 mLdcmeanoro "at least before the humsn tribunal". Hem, implying that sccularvindicaoion does not neceararily wan divine hgivewr. This rearoning has been fully expounded by Mudim jurists. See, al-Sm-. Shu+ dSiy d-Kabir, vol. 3, pp. 218-38, on treason. Al&rakk argues that if a Muslim is threatened by compelline duress to manufacture maponary fDr the enemy. he may do so only if in the preponderance of his thought such weapons will not cause the defeat of Muslim armies, and likewise if he is threatened by death to reveal the road to an WIIllic fort, he may do so ody if in the prepondtrana of his thought the enemy will not be able to conquer the fort. But if the enemy threatens him to find out where a partiarlar person is, and he believes that the enemy wishes to rape or Lill such a person, the coerced should sacrifia himself. The coed is not entirely innoant because he ads as the instrument or agent of the eoerar. Sec, Wertheimer, Coercion, pp. S281. Werthcimcr argues that murk adopt a higher stadud of duress when inooant parties are involved. This, aamrding to Werthcimer, partly accounts for the higher standard in aiminal cases. Id. p. 162. This might be correct asamattcrof commonsense but hisis not how courts justify the different standardsadopted. Cdamari aad PerriUo. Lmv of Confroc~~, p. 397; 17 C.J.S.. Conbucts, aec. 175; 25 Am. Jur. 2d, "Dunsr." sec. 512; United States v. Bethlehem. 315 U.S. 289. m301 (la); Eclrstein v. Eckstcm, 38 Md. App. 506,379 A. 2d. 757 (Ct. Spec. App., 1978); Slade v. Slade 310, 111. App. n:33 N.E. 2d. 951 (1941); Kaolan V. K;aoIan. 25 111. 2d. 181. 186, 182. N.E. 2d. 706.709 (1%2); R~t(llUMlf Second, Contrrcb, a. 175 Comment (1979); Alma S.S. Co. v. Vela, 285 F. Supp. 123,125 (D.P.R. 1%8), (duress is the pres~urc of circumstances which aornpeU the will to yield). Ratntacn, Conbacbi aec. 492 (1932). Comment uplainr; "The same threats may cause feu in one person and not in another. Tbe test of what act or threat produces the required degree of fear is not objective. The threat need not be such as would put a brave man, or even a man of ordinary firmness, in fear. Tbe question is rather, did it put one entering into the transastion in such fear as to preclude the exercise by him of free will and judgement. Age, sa, capacity, relation of the parties. attendant circumstances, muat all be conridered. Pmom of a wed or cowardly nature are the very oaes that need protation. Tbe co~lr;leaouo can usually protect thcmoelves; timid persons are generally the ones iatluend by threats, and thc unaaupulou~ are not allowed to impme upon them because they are so unforhmately conrtituted." Calamari aad Pcrrillo. Law of ConfrocLI, P. 337, Ru-, Contracts, aec. 492, comment (b) (1932); Sec. Milla v. Eisck. 168 A. 426.432 (N.J. 1933) indicating that since the plaintiff acted reasonably he can daim durcy; sad Wm v. Midtown Motors, 231 ffi. 46.42 N.W. 2d 404 (1950) defendant threatened to firt plaintiff unless he signed a release of an aaion againat a fDnier employer. In granting relief the court ituisted that the test is entirely subjective. Tbe type of threat or the response of a penon of ordinary firmness are irrelevant ddrrpdiom. However the decision of the court primarily relied on the wrongfulaess of thc thnat. aad on the fact that plaintiff had no other rearonable alternative. Id. 407-406. Econolaie duma ohea involves a threat to cause a victim financial injury unless the victim agreed to certain terms. This could involve a threat to deny esential goods or services or a threat to breach a contract. Aurtia Itmumat Inc. v. Lod Corp., 29 N.Y. 2d. 124,324 N.Y.S. 2d. 22.272 N.E. 2d. 533 (1971); Leeper v. ~eltraml, 53 a. 2d. 195.1 ~al. ~ptr 12.347 p. 2d 12 (1959); young v. Hoaghd, 212 Cal. 426,298 P. 9% (1931); London Homes Inc. v. Korn 234 Cal. App. 2d. 333, 44 Cal. rptr 262 (1965); See also Calamari and Perillo, Law of Confmcts. p. 337; Fridman, CrmodicM ad English Law, pp. 54-55; Hale, "Bargaining," pp. 2&4-286, Dawson, haa l#uough Civil Uigrrtion, op. at.. pp. 695m. Daizeil, "Duress by Ecooomic Prrssure." pp. 367-382; F v . Viaimircraion, pp. 86-91. In economic duma caas the inquiry k often p h d in terms of whether the threat is wmngful. LaBcad~ v. Beatrice Foods Co., 461 E Supp. 152,1567 (S.D. N.Y. 1978); Louiwik Tie Ins. Co. v. Surety Title and Guar Co. 60 Cal. App. 3d 781,805,132 Cal. rptr. 63.80 (1976). A court may look to the moral
Page 1 and 2: Islamic Studies (Islamabad) 30:3 (1
Page 3 and 4: Islamic Studies, 30:3 (1991) 307 ov
Page 5 and 6: Islamic Studies. 30:3 (1991) 309 At
Page 7 and 8: Islamic Studies, 30:3 (1991) 31 1 t
Page 9 and 10: Islamic Studies, 30:3 (1991) 313 Th
Page 11 and 12: Islamic Studies, 30:3 (1991) 315 ac
Page 13 and 14: Islamic Studies, 30:3 (1991) 317 If
Page 15 and 16: Islamic Studies, 30:3 (1991) 319 th
Page 17 and 18: Islamic Studies, 30:3 (1991) 321 CR
Page 19 and 20: lskmic Studies, 30:3 (1991) 323 of
Page 21 and 22: Islamic Studies, 30:3 (1991) 325 th
Page 23 and 24: lslamic Studies, 30:3 (1991) 327 ki
Page 25 and 26: Islamic Studies, 30:3 (1991) 329 A
Page 27 and 28: lslamic Studies, 30:3 (1991) 33 1 I
Page 29 and 30: Ishmic Studies, 30:3 (1991) 333 und
Page 31 and 32: law of duress is in need of develop
Page 33 and 34: Islamic Studies, 30:3 (1991) 337 sa
Page 35: Islamic Studies, 30:3 (1991) 339 Se
Page 39 and 40: Islamic Studies, 30:3 (1991) 343 Op
Page 41 and 42: klamic Studies, 30:3 (1991) 345 One
Page 43 and 44: Islamic Studies, 30:3 (1991) 347 11
Page 45 and 46: Islamic Studies, 30:3 (1991) 349 Fo

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

Create successful ePaper yourself

Delete template?

Save as template?