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

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 grevi-
ous, 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