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

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Islamic Studies, 30:3 (1991) 3.) However, threats to property or reputation are adpiribk under seaion 3.02 (Choice of Evils). And see Commonwealth v. Reffitt, 149 Ky. 300 148 S.W. 48 (1912). recognising threats to property or reputation. Koonh v. State, 204 So. 2d. 224 (Fla. App., I%?, State v. Nodine, 198 Ore. 679,259 p. 2d. 1056 (1953); State v. Torano, 74 N.J. 421, 378 A. 2d 755, 762 (lm); y, Orchard, Defeme of Cornphion, 111-112, for the law in Newzedand. Several writers have argued that threats to strangers should be rewpnised. Wan and Scott, Hadbook, pp. 1W1061, Clark and Marshall, Treotire, W, Wave, CriminrJ Low, pp. 436-438; Donaclly. Goldstein and Schwark, Criminol Law (1983), p. 662; and Bishop. Criminal Imc: p. 207. MPC, Comment 3. However, a British case R.V. Hudron [I9711 2. Q.B. 202.2 All E.R. 244, has allowed a defence of durcss although the threatened harm was not immediate. See, note 44 above but see, State v. Toscano, 74 N.J. 421,378 A. 2d 755,762 (19?7), stating that under certain circumstances the commiseion of minor crimes should be excusable even if the threat is not one of death or serious bodily injury. Also see, Orehard, Defmce of Compulsion, p. 111, discussing cases that imply that the threat required should vary with the seriousness of the harm amunitted. K.J.M. Smith. "Duress-the Role of the Reasonably Steadfast Man," 98 L.Q. Rrv. 347. 351 (1982), argues that issues of praportionality limits should be a matter for the legislature because matters of policy such as this should not be left to juries. Newman and Weitzer, "Duress, Free Will." P. 331; also see, Williams, Criminal Law; The General Part, sec. 246 (2nd ed. 1%1). MPC, m. 209 comment 2, p. 374. Section 2.09; (1) it is an affirmative defena that Ihe actor en& in the amduct drarged to constitute an offense because he was coerced to do so by tbe urt of or a that to use unlawful force against his person or the person of another, that a person of reasonable firmness in hi situation would have been unable to resist. (2) The defena provided by the Section is unavailable if the actor recklessly placed hidlf in a situation in which it was probable that he would be subjected to duresr. Ibe defence is also unavailable if he was negligent in placing himaelf in such a situation, whenever negligence suf6ces to establish culpability for the offense charge. (3) It is not a defence that a woman acted on the command of her husband, unksc she acted under such coercion as would establish a defence under this don. presumption that a woman acting in the presence of her husband is a~rced is abolished.] (4) When the conduct of the actor would otherwire be justifiable under Sectioa 3.02, this Seaion does not preclude such defence. MPC, at comment 3, p. 375. 'Ibe reasonablenes test adopted by the MPC seems to be the majority position in the modem criminal Common law. MPC. Id., pp. 376-378. Several commentators have suppolted the reasonablener standard. See, Milgate. "Duress and the Criminal Law: Another Aboutturn by the House of Lords," 47 CMlbridge L.J.61.67 (1988); Dennis, "Duress, Murder," pp. 232-235; Sornarajah, "Commonwealth Criminal Law," pp. 665-667. MPC, Comment 3, p. 375. Seetion3.OLstata:(l)Coaductthattheactorbe~~tobe~toavoidahsrmor evil to hbdforto.notha kju&hbk, provided tIut (c) a k@ddvc puposc to exdude the jurtidiatioa chimed does aot otkwk PMY w. As note at noted 49 above, the choice of evils doctrine musually requires that that comes fmm natural causes. Ibe Model Pmd Codc rej- that position.
klamic Studies, 30:3 (1991) 345 One paaes the question: would a penon who asravinated an authoritarian leader or even a demoeratic one be entitled to claim the defena if he believes that in doing so he is saving tbe country or working for the general good? 'Ibc last segment of 3.02 (1) (a) might resobe th* mblem. Ihe defena of necessity hu been rejected in r~~litidy motivated offenses. ~ee.'~nited States v. Knmcke, 459 F. 2d Zd, mi (8th CE~.~ 19?2); speci6ca~y relyiag on . this provision of the MPC. Courts often mad in a resronabkncss requirement by atating that there must be a reasonable anticipation of a causal connection between the action taken and the hanu sought to be avoided. Courts also often rely on the rationale of the availability of other reasonable alternatives, a rationale that poses a serious problem in non-democratic nations. United States v. Cassidy, 616 F. 2d lOl,l(n (4th Cir. 1979); United States v. Kabat, 797 F. 2d 580. 591-92 (8th Cir. 1984); United States v. Seward. 687 F. 2d 1270. 1276 (10th ar. 1982); United States v. Coup, 603 F. 2d. 1347, 1352 (9th Cir. 1979); United States v. Simosoa, 460. F. 2d 515,518 (8th Cir. lW2); United States v. DomU, 758 F. 2d 427 (9th Cir. 1985). Wave and Scott note that a defena of necessity necessarily implicates the determination of the relative values at stake. If a criminal statute has made a determination of values then a wurt is pduded from sewnd pesiag the legislature. Otherwise, a court d d have to weigh the relative values involved. 'Ibis matter takes spacial prominence when abortion statutes or invohred. Wave and Scott. Handbook, p. 382; and See, Rex v. Bourne, (19391 1 K.B. 687 (the value of a mother's health ishigher than the value of an unborn fetus.) Blackstone, C-, bk. 4, p. 30. Also sce, Bishop. Criminnl Law, p. m, and Clark and Marshal, Treairc, p. 362; Edwards, Compulsion, 301, murder, "the crime being so heinous that even the strongest duress should not be a justification". LaFave and Scott. Hand600k. P. 376; But see, E.B. Amolds and N.F. Garland. "The Dcfena of Neassity in Criminal Law." 65 1. of Crim. L. & Criminology 289 n. 14 (1974); in D.P.P. for Northern Ireland v. Lynch (1975) A.C. 653, the House of Lords held that the defena of duress was available to a charge of principle in the sewnd degree (aiding and abatiog). In Abbott v. r., [19n] A.C. 755, the judicial committee of the Privy Council refused to extend the defena of duress to a charge of ruder as primapel in the 6nt degree. Recently, the House of Lords in R v. Howe and Barrister (19871 A.C. 417 held that duress can never be a defena to murder and. hena. reversing - ~ynch. - - see, - G. Fletcher, '*The Individualization of Excuting ~onditions;" 47 S. ~al. L. RN. 1269,1279 n. 33 (1974). noting that wum frequently base this rule on the impermissibility of killing innoant pemns. The rule seems entrenched in the Common law. For example, when the Supreme Court of Georgia recognid duras u a defena m murder caaes, Jones v. State, 207 Ga. 379,152 S.E. 2d. 187 (1950), the Georgia legblature intervened to revem the ruling. G.A. Code AM. sec. %906 (I!%!), cited in Fletcher, Id.. p. 1289 n. 65. Suaarajah, Commonwcrrlth Criminol hw; Milgate. Dums and Ihc Criminol Law; Dennis, "Duress, Murder." MPC (Comment 2) at p. 374. Thir essentially utilitarian argument is promoted by Jeremy Bentham. Bentham argues that in cares of duress punishment is inefiicacious. J. Bentham, Infmkhn to the Ptinciprcs of Mods and hgirlotion, sec. 3, Xii. 6 (1873). Taken to the extreme, this view would lead to excusing all acts wmmined under d m , a view not sanctioned by any legal system. 'Ibc theoretical response to Bentham'sargument ispropounded by Hart. Hart arguesthat although punishing a person acting under duress might not have a deterrent effcd on the coerced, it might deter others. H.L.A. Hart, PvnLhmmt and RwpoNibiliry (1%8), p. 19 see, the dirusdon in Wcrtheimer. C@n. p. 1489. See, Jean Hampton, "The Moral Education theory of Punishment," 13, no. 3, Phil. and Pub. Aff. 208 (1984). See. Wertheimer's Mena of the murder ruk exception on mod grout&. However, his a%lment on omd rr(pcoey (h coerad being the mod ant of the carter) - is umemmsive. . 'Ibis has the same overtones as the "ins&ent ration&' utitized by some M& jurltl. exapt Mdim jurists argued that by becoming the imtrument of the coerar, the coerced is not hue. See. Kasbi. E d , p. 179, Rnhim. f%c@lu, pp. 35157. This instrument or agency theory, if admitted, cannot be limited to the cau of murder. In other words, sina
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