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

Islamic Studies, 30:3 (1991) 313
The Malikis affirmed this argument; but they added that since the
real issue is the formation of fear in the victim's mind, there is no need to
require that the threatened harm be immediate. Consequently, even if the
threatened violence would occur after a whole month and the victim was
terrified by this, and he could not seek help, then there is duress.44 Al-
Sarakhd, although a Hanafi, went much further in arguing that in certain
situations even an explicit threat is not required. One such situation arises
when A,ia person of authority, orders B to kill another, but A does not
explicitly threaten to kill B if he does not comply. If from the context of
the situation B believes that if he fails to comply, he will be killed then there
is duress. Al-Sarakbsi justified this rule by arguing that, "it is the habit of
oppressors, because of their haughtiness, not to explicitly threaten to kill
people. But [in reality] they issue orden, and then if they are not obeyed,
they always punish by death those who disobey them. And, therefore, if
this is the common practice, then a simple order might be considered an
explicit threat of death . . . that fulfills the requirements of
Hence, the majority, and the better supported, view is that immediacy
is only a factor to be considered as to the ultimate question of whether the
coerced felt compelled.46 This is consistent with the Islamic emphasis on the
preponderance of the victim's mind. As mentioned earlier, however, one
should carefully note that the Islamic approach is not entirely subjective.
For example, a single slap on the face or minor destruction to property,
except perhaps to an indigent person, will never constitute compelling duress
regardless of the particular idiayncrasies of the victim. Consequently, certain
types of duress cannot excuse certain grave offenses although a particularly
timid victim might feel completely overwhelmed by a relatively minor form
of duress. The subjective inquiry is only designed to ascertain whether the
victim in fact felt threatened. But the categorization of the duress, and what
acts it can excuse is determined according to legal standards.
The Islamic approach seems to be premised on the idea that although
it is appropriate to consider the subjective feelings of the coerced, whether
the duress should be recognised or not is essentially a policy and moral
decision. Even in the existence of duress a person's will is really never
overcome. Similarly, duress does not really negate consent nor the power
of choice. Whatever the amount of physical or mental violence, a person
still has the choice between endurance and submission. After all, a choice
between two evils is still a choice. If a person is threatened by death to sign
a contract, he could make a rational decision to sign the contract rather
than die. The person might not be happy with the result, but he makes his
choice based on the best possible scenarios available to him at the time. If
the circumstances were different, the perion might have chosen a different
course of action, but the circumstances being what they are, a person consents