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

Islamic Studies, 30:3 (1991) 347
118.
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in.
See, United States v. Wey, 22 C.M.A. 534 (1973); Neu v. McCarthy, 309 Mos. 17, 33
N.E. Y. 570 (1941); LaFave, Crimincd Law, P. 441; Bishop, C m Low, P. 212; Smith
and Hogaa, Climinol Law, p. 22. Some writers have claimed that the sEandPrd is far kss
stringent. If the order given by the superior "does not expreesly and clearly show on its faa
its illegality", the follower h entitled to rely on it. Clark aod M.rabPU. Tnoaiac, p. 36B.
MK, sec. 2.10 Comment 2. Section 2.10 provides: "It is an afknative defence that the
actor, in engaging in the conduct charged to constitute an offem, does no more then excute
an order of his superior in the armed se~ees that he does not know to be unlawiitl."
Ibo Qudhmh. d-Mughi, rol. 8. p. 36& al-Bdttiti. w, MI. 5. pp. 518-519; al-Jd.
Hddu'yd, vd. 5, p. 11; al-W-. (al-'Adawi, c~mmentator), Mukh+r hyyid KhdIl,
vd. 10; ~ba H-. d-~+&i, MI. 10, p. 511; and al-smakhsi, d-~obs*, pp. n76.
Werthekr, anmion, p. 282.
Id., but Wexrheima amtests thc of making d m claims turn on policy
d~Ptpp.~281.Kant~thattbm~c~,aswbeaarhipmcL
paroo thnnamotberoverboard to~avehimself, in whirhbehrviourisnot iaarlp.bkbut
it might deserve punitive Petion. Kant, of anuse, advoc;ltes that the &naption iItight be
annbined in both caxs. and. therefore. this difierentatkm would dhmcar. Thus, whenever
the bcimviour is m l e , it would also be punishn~e. 1mmpnue1 Kant. ~lribsofiy of
Law. W. H.slL trans. (New Jeney; Augustus Valky. 1974). p. 53.
AsDwoxtin T, a pmonmight act ~~~dercomprlrion but that -not neasssrily
nuan he was compelled to act. Although acting under caqmhion, b behaviour atight wt be e x d or justified. Dvorkin, "Cornpubion and Moral Conapts," p. 229. Although a
major issue of camtention among jurists, it is not helpful to enter into thc debate to
wI~~ther duress is an excuse or justilkation. See, on this kue Dennis. "Duws. Murder."
pp. 228-235. Thc question is whether duress judies the act amunitteal, and, thus, responsibility
omr attrhLs m the 6mt place, and the law merely mmgokd this £act. Alternatively.
if~,isan~,then~'bilityattrrhestothe~~ttealbutthelawu
the act because d the circumstanux surrouading the act. Although of obvious moral
came, this debate would take us too far alidd.
In the world of philosophy both concepts k a rather predse meaning and notable prop
onents. Zimmcrmclo, "Coercivc Wage Offers," reprerents the empirical appmach. Dworkin.
"Compllrion and Moral eoacepts." Robat N&, "Comion." ia l%ilosophy, sciaue d
M& hays in Honor of Eincn Noqd. tds. Sid~ey Mogeabacxr. Patrick ruppes and
Morton White (I-); and Jeffrie Murphy. "Consent. Coercion and Hard Choias." 67 Virg.
L. Rev. 79 (1981). represent the moralized app.oeeh. See the dircussion in WCrtpeimer,
Coercion, p. 7 and Z4U-258 on fhe two approache. Ncvcrtheksc. when I use the tern I
rm not refering to their pm+c meaning within the philaophical tradition.
Se+. note 34 above.
Frapmtry, textual ropnar will be mcondndve or at least invotve
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complex adysb. For
example, Ibn Hazm dhwes a subject of Idamic law lmoM as the "sale of the preswued"
(bay'd++g&) or oramhacts of necessity. Ibn explains that typically in thae sales
a pcmm goes through financial hardship or poverty, and in order to survive he sells his
~ . ~ ~ ~ ~ t h a t ~ t o m p p o r t t h e ~ t b a t t
dapmoninon-bhding.Ibo~~b.cl;Pad~thathcwooldhavelmed
to.cceptsuch~aadbddth.toaathefinaocial~tioaofsuchapmonimproves
he is entitled to invatidate the sale. Nevertheless, the H&, Ibn argues, are weak
or unauthentic, and cannot be relied on as a murce of legislation. Atter noting that the
Prophet himstif sold his in order to survive at times of hardship. Ibn Hazm
condu&sthatmchasakbbinding. Ibn+m,d-MI+& vd.9.pp.22-23. Seed-Khurmhi.
MuMwpr Sayyid KhalR, MI. 5, pp. %lo; al-Dusiqi. Hdrhiot d-Dtrniqi, vol. 3. p. 6; and
al-Derdir. d-pghir, MI. 3, p. 18 on the Wliki position on this matter, and al-hakhsi,
d-Mabag, p. 61 for a H d treatment.
Foruampk.~,mtc45aboveand~yingtuton~s~onth
p.Ctiarofoppressive~,andthe~omsuchpraEtia8haveforthchwofdm.