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

Islamic Studies, 30:3 (1991)
wan a yarn- rrmn he "would have givcn him hell." Id., p. 466. If belimd by the Jmy.
refuses. A angdy leavethe amtract in B's possessim and leaves. 'lh days later C telb B
that A is a violent person, and that A once broke someone's arm. B bearms tenified and
his will m although no cxpliat a implicit threats were levied rgeinst him, and he
nuhestosbtheam~.Assumetb.tBhasnoruaoatobelievethatCisA'srl&nt.Ibe
~ommon~,ifthe~ofen~will~tobetlteamianlg,~h~ld
amtractvoidable. Ihe~ofarulthreatorthe~c~of B'scwchrtshould
be irmnatcrinl. Islamic law, however, m this csse, can deny relief on the banb that the type
of duress inflicted hm is not donable because thm is no moral or social policy resson
to recognise duress ~BMOml#LOied by M explicit threat m this context.
Fa a good critical PpprPbal of the MsoaaMencaa requinmcnt in Neumcm end Wcitzr.
"Durese. Frce wffl," pp. 326328.
Smith. at p. 348.
See. Idem for the same poiat and on the indefiniteness of the reasonabkness standard.
Fletcher, "IndividualiEation," p. 1293.
Note 113 above end accompanying text.
Notes 34 and 35. end acunupM~ text.
For example, al- opposes the beating of suspeeb to obtnin evidence or confessions
but he does so on baakally utilitarian grounds. Al-Ghazdi, d-Mwta$6, vol. I, 297-299.
morally motivated rules such as the murder exception.
Most of the rules were articulated mound the nincth to fourttenth centuries.
Several voias have called for the dmlopmcnt of Islamic law but not much haa been achieved
in that regard. See, on modern attempts at reform, and on Islamic law in the modern world.
N.J. wulson. A History of lslunic Low (1978). especially pp. 149-225; M. Khaddiiri, 7he
I k i c Conaplion of Jvstice. (1984). especially pp. 192-232.
Alan Watson. Roman Lmu and Cotnparalive Low (1991), particularly pp. 97-110 and Alan
Watson. L.qd TmplMtr (1974).
See, on the subject of legal mental sets and the legal culture, Alan Watson, Failurn of tkc
Legd Imrrgindon (1988). particularly pp. 13S154.
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