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

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308 Islamic Studies, 30:3 (1991) Furthermore, are there certain types of threats that are presumptively coercive; for example, a threat of death or serious bodily injury, while others are presumptively ineffective, such as threats to destroy property? In a sense, the tension is always between over-legislating to insure that certain social values and choices are upheld, or under-legislating to maintain a flexible standard able to accommodate individual feelings and exceptional cir- cumstances. The Common law, mainly in Britain and the United States but also in Australia and New Zealand, adopted different and often inconsistent solutions to these problems. W e maintaining a considerable degree of flexibility, the Common law remains unsystematic in its underlying rationale, Islamic law created dichotomy between types of acts, and types of duress. In criminal acts, Islamic law opted for a restrictive alternative, only admitting certain types of duress while adopting a much more flexible approach in civil acts. In either case, while accommodating the subjective feelings of the individual, Islamic law imposes overriding social standards of conduct such as committing the lesser evil. First, we consider the legal developments within the Common law and then we shall turn to Islamic law. THE COMMON LAW OF DURESS The original Common law held a rather una~~~mmodating view of duress. In order to constitute duress, the coercion had to be sufficient to overcome the will of a constant or brave man.14 Even though this standard was eventually relaxed to that of a man of ordinary firmness, it did not significantly alter the law because it was assumed that only a threat of death or serious bodily injury would be sufficient to overcome the will of such a person. Hence threats of destruction of property or minor injury were not recognised as duress.'' Additionally, threats directed at third parties or persons other than the duressed were inadmissible." The threat had to be immediate and imminent leaving no opportunity for escape.'' The focus at Common law was on the type of coercion, and not so much on the psychological condition of the coerced person. Certain types of threats, like death, mayhem or maiming, by definition, were considered coercive. Significantly, the same test applied regardless of the type of act a person was coerced to commit. Therefore, whether the threat was designed to force a person to sign a contract or commit a crime, the same test applied. Additionally, there was no inquiry as to the proportionality between the harm threatened and the act committed. Rather, the inquiry was largely focussed on the kn;er's misconduct in lieu of other factors.'' Common law courts approached the defence of duress with caution and conservatism. Therefore, the approach was rather categorical, designed to set limits that eliminate the potential for abuse inherent in defence.19
Islamic Studies. 30:3 (1991) 309 At the present time, the Common law, particularly in the area of civil law, has undergone a major shift in the emphasis. For the most part, the type of duress became of secondary importance, and the impact of duress on the victim ascended to primary importance. Tbus, the focus became the state of mind induced by duress in the victim.m Consistent with this approach, Common law rules as to third party duress were liberalized, particularly in civil transactions. Likewise, the rules as to the immediacy of the harm became somewhat relaxed. We shall review the rules on these topics in some detail in later sections on criminal and civil acts. Tbe Common law retained the requirement that the duress be wrongful. Although, the traditional Common law held that "it is not duress to threaten to do what one has a legal right to do", this has been substantially modified. The threatened duress need not be unlawful in the legal sense, but need only be wrongful in the moral sense.21 Tbus; threatening to use a legal right in an abusive or oppressive fashion is considered sufficient duress." Tbe wrongfulness of the threat is at issue particularly in economic duress cases. Beyond cases of economic duress, the crux of the matter, especially in civil cases, is whether the victim felt oppressed and overwhelmed by the threat, and not necessarily whether the threat could be legally classified as impermissible." Despite the fact that the Common law has de-emphasised the type of duress, it has not been able to resolve whether if any attention whatsoever should be placed on the type of coerced act. Tberefore, even if we accept that only wrongful threats can overcome a person's will, must we con- sequently excuse any act the coerced commits regardless of its nature? This is fundamentally a question of policy and morality. But the failure of the Common law to realize that the whole defence of duress is founded on such considerations has created- inconsistencies and confusion. This will be explained in more detail later. For now, we turn to Islamic law and its approach. DURESS AT ISLAMIC LAW^^ Islamic law has a multifaceted approach to duress. Motivated by a need to protect the sanctity of particular human and divine rights, Islamic law is in certain respects rigid. But motivated by a similar need to protect the rights of the duressed, it is in other respects flexible. Tbe whole Islamic jurisprudential discourse on the subject is phrased in terms of balancing the rights of God and society against the rights of the coerced individual. Hence Islamic law in certain areas emphasie the type of duress and the dature of the injured rights while simultaneously accommodating the subjective feelings of the coerced.
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