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

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