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

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310 Islamic Studies, 30:3 (1991) Muslim jurists divided duress into two main categories. The first compelling or constraining (mulji), and the second, not as compelling or constraining (ghyr mulji) . 25 The first type (compelling duress) nullifies consent and vitiates free choice. The second type (non-oompelling duress) nullifies consent but does not vitiate free choice. In other words, there are two types of duress: one that is so compelling that the victim not only cannot freely consent but is not really left with a choice at all. The second type of duress is not as overwhelming and, therefore, practically speaking, the victim is left with a choice.26 Hanafi jurists argued that consent, as in being content or pleased with ones decisions, often lacks even without duress or with minimal duress. Often a person agrees to something that is not entirely satisfactory, pleasing or even in her best possible interest. An example given by Hanafi jurists is that of a person who divorces his beautiful bride might not be happy with his decision, but he does it anyway because it might be neces~ary.~ On the other hand, choice always exists even if duress is present. One can always choose to die whether one is happy with the decision or not. But, if the duress is powerful enough then the choice, although not lacking, is vitiated or spoiled. Therefore, any amount of duress is liable to negate consent. But only serious or compelling duress will also spoil choice. Al-Kasiini (d. 587/1189) explains the two categories: Duress is of two types. One type creates necessity and leaves no recourse by its very nature like (a threat) of death or maiming or ti beating that endangers the life or limb (that is) wheth;er the beating is excessive or light. And some have said that such beating must be about the amount of lashes required in a &add [a set punishment that ranges from 40 to 100 lashes], however, such an opinion is incorrect because what is important here is that necessity is created and if [necessity] exists then there is no reason to require a certain amount of lashes. And this [ht] type is called fdm (complete). The second type does not create a necessity and does leave some recourse and that is like imprisonment or bondage or beating that does not threaten to cause grave injury. And bere again] there is no specific amount of duress required but that it [the duress] causes agony. . . and this type is called ikrcsh -4 (incomplete comp~lsion).~~ As quoted above, al-Kasani cites imprisonment as an instance of non-compelling duress. Actually, the threat of imprisonment can never be compelling.29 While others have held that long imprisonment, contrary to a one-day detention, could be compelling duress." While still others implied that this depends on the condition of the prison; if it is in a bad condition
Islamic Studies, 30:3 (1991) 31 1 then imprisonment is compelling duress.31 It would seem that the viey holding that long imprisonment in bad condition could be compelling duress is more consistent with the overall approach of Islamic law. The relevant point, according to Islamic law, is that duress is divided into two general categories. Threats of grevious harm, in whatever form, could excuse serious offenses. All other forms of duress would only excuse less serious offenses. The law defines what is a grevious harm, but the threat has to be subjectively felt and believed by the coerced. Therefore, there is a threshold question of whether the law recognises the form of duress and if it does, what category it falls under. Once the threshold question is trans- cended, there remains a question of the subjective feelings of the coerced. Consequently, if the law considers a threat of one day imprisonment to be non-compelling, regardless of the hypersensitivities of a timid person it will only excuse less serious offenses. Generally, only threats of death or serious bodily injury constitute compelling duress. There is some disagreement among Muslim jurists as to whether certain types of threats should be considered duress at all. For example, most jurists held that an act of public humiliation like a single slap on the face could be duress while a minority (particularly from the Hanbali School) disagreed." However, since a slap on the face cannot cause grevious bodily injury it is not compelling duress. According to the majority of Muslim jurists a threat of damage to property could constitute duress, and if the damage is substantial and grevious, the threat could constitute compelling duress. Some jurists contended that whether the damage to property is substantial or not must be relative to the wealth of the victim.= A threat of destruction to ones home could be compelIing duress to a poor person while only constituting noncompelling duress to a person owning the means to easily replace his lost home. Most Muslim jurists also recognised threats of harm to third parties as duress. But they disagreed over who may the third party be. Some only recognised threats directed at parents or offsprings, and a few recognised even threats directed at strangers.% Nevertheless, particularly Hana6 and HanbaIi jurists insisted that whatever the type of threat, it only constitutes nowcompelling duress if directed at third parties.% Although the matter is not free from doubt, it seems that, as to the otber schooIs, whether a threat to a third party is compelling duress depends on the type of harm threatened. So, if a third party is threatened with death or grevious bodily injury then that is considered compelling duress. Notably, the Islamic approach to duress resembles. somewhat the traditional common law in its adoption of an objective inquiry focussing on
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