A virtual conference sponsored by Canopy Forum of the Center for the Study of Law and Religion at Emory (CSLR) featuring scholars, experts and practitioners on the topic of religious arbitration. View the full video and browse all essays here.
“Limiting Oppression: Duress and Unconscionability in Islamic Law”
“Indeed, God orders justice and beauty and giving to relatives and forbids immorality and abomination and oppression.” – The Quran 16:90
Within religious communities, there are vulnerable parties, such as recent immigrants and women, who would be better served if they had a clear understanding of the protections available to them under their religious legal tradition and American law. In doing so, they would understand their religious rights vis-à-vis their community and their civil rights vis-à-vis the American legal system. Advocates concerned about the impingement of vulnerable parties’ rights, due to communal pressures to use religious arbitration, typically only advocate for educating vulnerable parties regarding their civil rights. However, vulnerable parties may be further empowered through education on their rights within their religious tradition, as religious authorities within the community may be more likely to respect and protect those rights. Furthermore, there may be instances where the religious legal tradition, via arbitration, provides more protections than the American legal system via civil courts.
As religious minorities living in a secular context, Muslims navigate overlapping and distinct legal norms regarding their respective religious legal traditions and the larger American legal system. Islamic law has long recognized the need to limit the ability of more powerful parties to take advantage of vulnerable parties, especially in the realm of wealth disparity. Historically, Islamic law prioritized a subjective inquiry into the oppression a vulnerable party may have faced when entering a contract. Rather than holding a “reasonableness standard,” as in the common law, Islamic law looked to the particular realities of an oppressed individual. This essay details the protective mechanisms in Islamic law against oppression and exploitation available to parties resolving disputes in forums including religious arbitration.
While a doctrine of unconscionability does not exist in Islamic law per se, there are certain corollary principles in Islamic law derived from verses of the Quran. Based on these verses, an arbitral body may “invalidate or alter a contract in the interest of justice” if oppression is somehow present within a contract. Muslim legal scholars grounded their reasoning in Quranic verses including the following:
- “Oh you who believe, fulfill your contracts/covenants” (5:1).
- “Oh you who believe, do not consume each other’s wealth/property between yourselves illegitimately, unless you undertake trading with mutual consent between you” (2:188).
- “Do not devour one another’s possessions wrongfully – but rather trade based on mutual agreement – and do not destroy one another” (4:29).
Given these Quranic verses, Muslim legal scholars have generally condemned bargains they deem “oppressive and unfair.” To achieve such ends, certain principles exist within Islamic law to “help society guard against unjust practices.” These principles include: “the doctrines of unjust enrichment (fadl mal bil ‘iwad), unfair dealing (ghabn fahish), contracts of necessity (bay’ al-mudtar or bay’ al madghut), and excessive speculation (gharar).”
The concept of riba, commonly translated to mean “interest” but literally meaning “increase” became “an umbrella doctrine for all… [of the above] concepts and served as a general prohibition on “contracts in which one party received an undeserved profit.” Within the modern context, riba is often discussed in terms of Islamic finance and the methods Islamic finance scholars have developed to technically avoid riba. However, riba historically has had a much broader application in Islamic law. Scholars differentiated between two types of riba: “riba al-fadl, in which a contracting party acquired an unlawful excess profit, or riba al-nasi’a, in which a party used contract terms to gain an unlawful advantage by speculating on uncontrollable risks.”
This prohibition of taking advantage of another party is also central to Islamic law’s prohibition of duress/coercion. Fundamental to the doctrines of both duress and unconscionability in Islamic law is a dynamic of oppression or exploitation between a vulnerable party and a party with some degree of power leveraged over the vulnerable party. While the concept of duress overlaps into the moral, ethical, and social norms, the doctrine of duress is concerned with the legalist approach “to coercion (and ultimately to Victimization).” Islamic law, like the common law, addresses the legal ramification of coercion in a wide array of circumstances, ranging from commercial transactions to criminal acts to divorce.
The concept of duress in both Islamic and common law demonstrates an aim “to set a standard of conduct by which people are expected to live.” The two legal systems share a host of similarities regarding duress. Both systems differentiate between civil and criminal law, requiring a higher “standard of conduct in criminal cases.” The differentiating factor of Islamic law is that it offers a “methodologically more coherent and systematic approach to duress,” especially regarding the consideration of the “subjective feelings of the coerced.” Islamic law also provides “limiting guidelines” in the form of legal principles that help create a more predictable doctrine of duress.
One of the central questions to the application of the doctrine of duress is how much particularization should the law account for regarding an individual victim of duress. For instance, should the law hold that the “subjective feelings and fears of the threatened person” are determinative? Furthermore, should the reasons for those subjective fears, i.e., the person comes from a vulnerable class of person, be taken into consideration? Islamic law answers these questions with a “multifaceted approach to duress.” Unlike the common law, Islamic law takes into account certain divine rights, and is unyielding in regards to the protection of these rights. In regards to duress, Islamic law balances the “rights of God and society against the rights of the coerced individual.” While the rights of God and society must be upheld, Islamic law is concerned with the particular, subjective feelings of the coerced individual.
The Hanafi scholar Al-Sarakhsi (d. 483/1090) described the importance of taking the subjective feelings of a victim of duress as follows:
[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 independently… The condition of people vary according to their ability to withstand pain therefore we have no alternative but to consider what the victim believed.
The subjective belief of the victim, however, is not the end of the inquiry for Islamic law jurists. In order for a judge to find duress, the basic formulation of duress under Islamic jurisprudence requires meeting both a physical and moral criterion. The physical criterion requires that the victim believes they are in danger, although “[a]ctual physical presence of the coercer is not necessary in order for the victim to believe that he is in danger.” The determination is based on whether the victim actually believed they had no choice. Jurists disagree as to whether the threat needs to be imminent. For example, the Malikis agreed with the above determination but “added that since the real issue is the formation of the fear in the victim’s mind, there is no need to require that the threatened harm be immediate.” Thus, if the threatened event would occur a month later (provided that the victim was actually terrified by this prospect and had no recourse to seek aid), then a court would find duress.
Parties in an American Muslim Arbitration can find greater protection against oppression and exploitation through the application of these Islamic law doctrines than parties would have available applying the common law in civil court. While the “One Law for All” and “anti-Shariah” movements tend to assume that Islamic law will de facto provide inferior protections to vulnerable parties (or no protection at all), Islamic law in fact often provides stronger protections, especially as Islamic law prioritizes the subjective experience of a coerced party and strictly limits financial exploitation. ♦
Rabea Benhalim is an Associate Professor at the University of Colorado Law School. She teaches a variety of law courses including Contracts, Secured Transactions, and Islamic Law. Her research focuses on two areas of inquiry: (1) The development of Jewish and Islamic law in the modern era and (2) the application of Islamic law in arbitral contexts. .
Benhalim, Rabea. “Limiting Oppression: Duress and Unconscionability in Islamic Law.” Canopy Forum, April 7, 2022. https://canopyforum.org/2022/04/07/limiting-oppression-duress-and-unconscionability-in-islamic-law/.