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

312 Islamic Studies, 30:3 (1991)
the type of duress. Nevertheless, a major difference is that while the traditional
Common law only admitted certain types of duress no matter the
coerced act, as mentioned later, Islamic law admits most forms of duress,
but insists on proportionality between the type of duress and the type of
act. Additionally, the traditional Common law held people to an objective
standard of a braver or constant person. Islamic law, however, combines a
subjective inquiry designed to ascertain whether, in fact, the victim felt
compelled due to a present fear to oblige the coercer. Hence, Muslimjurists
stated that we should iuquire into whether the victim believed, by a preponderance
of his thought, that he was faced with a necessity that left him no
alte~native.~~ Al Sarakhsi (d. 483/1090) explains this point in the following
passages:
"[We consider] the preponderance of thought [of the victim] and
what he felt because the victim's belief takes precedence over the
reality concerning matters that we have no way of verifying indepen-
dently. . . . The conditions of people vary according to their ability
to withstand pain, therefore, we have no alternative but to wnsider
what the victim believed.""
Al-Sara argues that since we cannot know what people can withstand
or endure. We have to inquire into the specific individual case to ascertain
whether fear existed.38 Tben a14arakW argues that this approach is best
in order to "alleviate hardship from the people" (taysfr 'ulu'l-?I&). Finally,
he adds that in each individual case it will have to be left up to the judge
to decide whether the victim actually felt compelled or not.39
This necessarily means that duress could be relative according to the
circumstances of the duressed. Hence, what is not duress for a street-wise
persion could be its opposite for a timid and inexperienced persoh. Iikewise,
a single slap on the face or single lash with a whip could be oppressive for
one person but not for the other. Each case has to be decided individually
on its facts.& However, as mentioned earlier, the person's subjective feelings
cannot transform noncompelling duress into compelling duress.
On the closely associated issue of whether the threatened duress need
be impending and immediate, there is dhgreement among Muslim
Some jurists held that the duress is recognised only if the victim performed
the coerced act in the presence of the coerced." Nonetheless, the majority
of Muslim jurists disagreed, Shafi'i jurists argued that the threatened danger
has to be immediate (a'jif) leaving little opportunity to escape. The crux of
the matter, however, is the formation of fear in the victim's mind and that
the victim would think he is left with no choice. Actual physical presence
of the coercer is not necessary in order for the victim to form the belief that
he is in danger."