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Ikrāh (coercion) is forcing a person to do something that they would not have done if not for the fear of harm resulting from the coercer's threat. Ikrah is well-known as a jurisprudential maxim among jurists, and rulings and consequences such as the lifting of obligation and criminal responsibility from the coerced person, and liability and punishment for the coercer—except in the case of murder—are based on it. Most jurists have discussed the limits and conditions of its realization under the topic of coerced divorce.

Ikrah has similarities and differences with "ijbar" (compulsion) and "idtirar" (necessity). Jurists and legal scholars have enumerated some of their distinguishing features.

Jurists and Usuliyyun have relied on the Four Evidences: the Qur'an, narrations, consensus (ijma'), and reason ('aql), to examine the authoritativeness of the maxim of Ikrah.

Conceptual Analysis

Ikrah in jurisprudential terminology means forcing a person to do something that they would not have done if not for the fear of material, spiritual, or physical harm resulting from the coercer's threat.[1]

Some jurists, such as the author of Jawahir, because the word "ikrah" lacks a shari'a coinage (wad' shar'i), have left the identification of its concept and limits to lexicographers and 'urf (custom).[2] Ikrah is from the root "k-r-h," the opposite of "hubb" (love),[3] and means forcing a person to do something they abhor.[4]

Ikrah is well-known as a jurisprudential maxim among jurists, and rulings such as the lifting of obligation and criminal responsibility are based on it.[5]

Difference between Ikrah and Ijbar

Although in the words of jurists these two terms are sometimes used interchangeably,[6] there are differences between them, which are:

  • In ikrah, the mukrah (the person forced to do something), although displeased with the coerced act, performs it with will and intent; meaning, to ward off harm, they undertake the coerced act, even though choice, in the sense of satisfaction with the act, has been taken away from them. However, in ijbar, the will and intent are also taken away from the compelled person, such as pouring wine down someone's throat or submerging a fasting person's head in water by force and domination.[7]
  • The realization of ikrah depends on threat and the occurrence of fear, unlike ijbar.[8]

Difference between Ikrah and Idtirar

Jurists and legal scholars have enumerated differences between idtirar and ikrah, some of which are:

  • Ikrah is realized if it is from the side of another; meaning for ikrah to be realized, there must be a coercer, and the coerced must be aware of it;[9] but the occurrence of idtirar does not depend on the interference of another person.[10]
  • Unjust ikrah removes the prohibition and invalidates the contract (aqd) or unilateral contract (iqa'); whereas idtirar, although it removes the prohibition, does not invalidate the contract or unilateral contract.[11]
  • The motive and incentive in ikrah is to remove a harm that the coerced directly faces, while in idtirar, it is to remove a necessity in which the distressed person finds themselves.[12]

Place of Discussion

The discussion of "ikrah" and its specific rulings has been raised in some way in all jurisprudential chapters such as: acts of worship ('ibadat), contracts, unilateral contracts (iqa'at), and rulings.[13] Al-Shahid al-Thani in the book Masalik al-ifham says: "The custom of jurists is to discuss the nature of ikrah and the conditions for its realization in the chapter of unilateral contracts and under the title of 'coerced divorce,' whereas it is fitting to discuss it before unilateral contracts; that is, in contracts and other than that."[14]

Ikrah is defined in Article 202 of the Civil Code of Iran, and the conditions for its realization are examined from Articles 203 to 209.[15] Also, Article 151 of the Islamic Penal Code relates to the exemption of the coerced from criminal responsibility—in crimes subject to ta'zir—and the punishment of the coercer.[16]

Conditions for the Realization of Ikrah

Ikrah is realized with the existence of the following conditions:

  • The command or demand of the mukrih (coercer) must be accompanied by a threat.[17]
  • The mukrih must have dominance and power over the mukrah (coerced).[18]
  • The threat of the mukrih must be directed at the property, life, or honor of the mukrah or their relatives.[19]
  • The ability of the mukrih to carry out their threat.[20]
  • The onset of fear upon the mukrah from the side of the mukrih.[21]
  • The mukrih threatens the mukrah with a harm such as: murder, injury, assault and battery,[22] and imprisonment, insult, and taking of property.[23] Ikrah is not realized with a small and insignificant harm.[24] Sayyid Yazdi in his gloss on al-Makasib regarding the realization of ikrah through harm, says: "There is no difference whether the harm is worldly or otherworldly, so if the mukrih threatens the mukrah, in case of not doing the requested act, with drinking wine or preventing them from the obligatory prayer, in this case too, ikrah is realized."[25]
  • The non-existence of a way of escaping from it, even by fleeing or seeking help from another.[26]
  • The mukrah must know or suppose that if they do not comply with the mukrih's demand, the threat will be carried out.[27]

Types of Ikrah

Ikrah can be divided from various aspects. Some of the most important classifications of ikrah are:

From the Aspect of the Ikrah Being Legitimate or Illegitimate

  • Rightful Ikrah: This is mostly referred to as ijbar.[28] This type of ikrah is legitimate; rather, its nature from the perspective of shari'a does not revert to ikrah, because the effect of ikrah is not applied to it.[29] Therefore, if a shari'a judge (hakim al-shar') forces a person to divorce his wife, the divorce occurs correctly.[30]
  • Wrongful Ikrah: Wrongful ikrah is ikrah out of oppression. Most cases of the application of ikrah in fiqh refer to this type, which is haram and illegitimate.[31]

From the Aspect of the Object of Ikrah

  • Material Ikrah: Forcing someone to do an act or abandon a duty through physical pressure and inflicting bodily and physical harm on them.[32]
  • Spiritual Ikrah: Forcing someone to do an act or abandon a duty through threat to property, defamation, honor, reputation, and the sanctity of the coerced.[33]

From the Aspect of the Intensity and Weakness of the Threat and Harm

  • Complete Ikrah: This type of ikrah causes the cessation of consent and the limitation of choice and freedom of will, and in it, there is a fear of loss of life or limb. Also, the threat to inflict a blow leading to death or imprisonment for a long period causes the occurrence of this type of ikrah.[34]
  • Incomplete Ikrah: It only causes the cessation of consent and does not create a limitation in the will and freedom of choice, and occurs when there is no fear of loss of life or severance of a limb or inflicting a blow leading to death or long-term imprisonment.[35]

Effects of Ikrah

Unjust ikrah has effects concerning each of the mukrih (coercer) and the mukrah (coerced).[36]

Concerning the Mukrih

If a mukrih forces a person to destroy another's property or commit a crime—other than murder—they are guarantor (liable).[37] According to the famous view (mashhur), in the case of ikrah to kill a respected soul, the mukrih is imprisoned until they die.[38]

The Iranian legislator, in accordance with Article 375 of the Islamic Penal Code of 2013-14, has stipulated life imprisonment for the coercer to murder.[39]

Concerning the Mukrah

Choice as opposed to ikrah is a general condition for all obligations (takalif). Therefore, in shari'a, no effect applies to the statement and action issued by the mukrah—except in murder—[40] because ikrah is among the secondary rulings which, if it applies to a statement or action, causes the removal of its primary ruling and the establishment of a secondary ruling.[41] Like ikrah to drink wine, which causes the removal of the primary ruling, i.e., prohibition, and the establishment of the secondary ruling, i.e., permissibility. As a result, the effects of the primary ruling, such as the execution of the hadd on the drinker of wine, do not apply.[42]

Ikrah in a contract (aqd) and unilateral contract (iqa') also causes the removal of its situational ruling (hukm wad'i), i.e., validity, the result of which will be the invalidity of the contract or unilateral contract.[43]

According to the consensus (ijma') of jurists, only in ikrah to murder, if the mukrah commits murder, they are subject to qisas (retaliation).[44] Jurists have identified the reason for this ruling as Verse 151 of Sura al-An'am,[45] the narration of Zurara[46] from Imam al-Baqir (a)[47] and the direct involvement of the mukrah in the murder, and also the application of the term 'murderer' to them linguistically and customarily.[48]

Ayatollah al-Khoei has opposed the qisas of the mukrah in coerced murder; because where the mukrih threatens the mukrah and forces them to kill another person, here committing murder (haram) and abandoning the preservation of life (obligatory) conflict with each other, and since neither has preference over the other, so the mukrah has the choice to either commit murder or get themselves killed; but if they commit murder, they must pay diya (blood money); because the blood of a Muslim is not worthless.[49]

Jurisprudential Evidences and Proofs of Ikrah

Jurists, to examine the authoritativeness of the rule of ikrah, have relied on evidences which are:

The Qur'an

One of the verses that jurists and usuliyyun have relied upon to remove responsibility from the mukrah in penal matters is Verse 106 of Sura al-Nahl.[50]

Some exegetes say: This verse was revealed regarding 'Ammar b. Yasir after he uttered blasphemous words due to the severity of torture and harassment by the polytheists.[51] During this time, a rumor spread among the people that 'Ammar had become an unbeliever (kafir) until the Prophet (s) said in describing him: "'Ammar is full of faith from head to toe, and faith is mixed with his blood and flesh."[52]

Jurists in relying on this verse say: Since uttering blasphemous phrases and revering manifestations of polytheism (shirk), as a result of ikrah, is considered permissible, then by a fortiori analogy (qiyas al-awlawiyya), the Holy Lawgiver has removed responsibility from the mukrah regarding other matters.[53]

Narrations

Main article: Hadith of Raf'

The most famous narration that Imami jurists have relied upon in the discussion of ikrah is the Hadith of Raf'[54] according to which, actions performed in conjunction with one of the nine attributes mentioned in the narration—including ikrah—will not entail reprimand and punishment.[55] Some Usuliyyun have considered the meaning of "lifting" (raf') in this hadith to be the lifting of reprimand and punishment[56] and some consider it the lifting of obligation-related (taklifi) or situational (wad'i) effects, the lifting of which is considered a grace for the Umma of the Prophet.[57]

Consensus

Imami jurists agree that there is no obligation upon the coerced person in what they are coerced into.[58] Al-Shaykh al-Tusi in al-Khilaf has claimed consensus on the invalidity of divorce, manumission ('itq), and other contracts of the mukrah—which they have been forced to perform.[59] The author of Jawahir not only considers this issue—the removal of the primary ruling from coerced matters—to be consensual; but he has counted it among the necessities of the religion (daruriyyat al-madhhab).[60]

Reason

Apart from shari'a criteria and transmitted evidences that have been relied upon in Islamic fiqh to justify the removal of responsibility from the mukrah, in cases where a person, as a result of ikrah and in order to escape a danger that threatens them from the coercer, undertakes to perform an act that under normal circumstances is considered a violation of religious or legal regulations, one can also judge the non-realization of responsibility and the prohibition of reprimand and punishment by relying on rational reasoning.[61]

Notes

  1. ↑ Muʾassasat Dāʾirat al-Maʿārif al-Fiqh al-Islāmī, Farhang-i fiqh-i Fārsī, 1387 Sh, vol. 1, p. 660.
  2. ↑ Najafī, Jawāhir al-kalām, 1362 Sh, vol. 32, p. 11.
  3. ↑ ʿAbd al-Munʿim, Muʿjam al-muṣṭalaḥāt wa l-alfāẓ al-fiqhiyya, Dār al-Faḍīla, vol. 3, p. 145.
  4. ↑ Rāghib al-Iṣfahānī, al-Mufradāt fī gharīb al-Qurʾān, 1412 AH, vol. 1, p. 708.
  5. ↑ Muḥaqqiq Dāmād, Qawāʿid-i fiqh, 1406 AH, vol. 4, p. 91.
  6. ↑ Muʾassasat Dāʾirat al-Maʿārif al-Fiqh al-Islāmī, Farhang-i fiqh-i Fārsī, 1387 Sh, vol. 1, p. 660.
  7. ↑ Muʾassasat Dāʾirat al-Maʿārif al-Fiqh al-Islāmī, Farhang-i fiqh-i Fārsī, 1387 Sh, vol. 1, p. 660; ʿAbd Allāhī, "Qāʿida-yi ikrāh", p. 64.
  8. ↑ Muʾassasat Dāʾirat al-Maʿārif al-Fiqh al-Islāmī, Farhang-i fiqh-i Fārsī, 1387 Sh, vol. 1, p. 660.
  9. ↑ Khūʾī, Miṣbāḥ al-faqāha, 1417 AH, vol. 3, p. 296.
  10. ↑ Muḥaqqiq Dāmād, Qawāʿid-i fiqh, 1406 AH, vol. 4, p. 96.
  11. ↑ ʿAbd Allāhī, "Qāʿida-yi ikrāh", pp. 64-65.
  12. ↑ Muḥaqqiq Dāmād, Qawāʿid-i fiqh, 1406 AH, vol. 4, p. 96.
  13. ↑ Muʾassasat Dāʾirat al-Maʿārif al-Fiqh al-Islāmī, Farhang-i fiqh-i Fārsī, 1387 Sh, vol. 1, p. 661.
  14. ↑ Shahīd al-Thānī, Masālik al-ifhām, 1423 AH, vol. 9, p. 18.
  15. ↑ "Qānūn-i Madanī-yi Īrān", Ekhtebar News Base Website.
  16. ↑ "Qānūn-i Mujāzāt-i Islāmī", Ekhtebar News Base Website.
  17. ↑ Narāqī, Mustanad al-Shīʿa, 1415 AH, vol. 14, p. 267.
  18. ↑ Shaykh al-Ṭūsī, al-Mabsūṭ, 1387 AH, vol. 5, p. 51.
  19. ↑ Muḥaqqiq Ḥillī, Sharāʾiʿ al-Islām, 1408 AH, vol. 3, p. 4.
  20. ↑ Muḥaqqiq Ḥillī, Sharāʾiʿ al-Islām, 1408 AH, vol. 3, p. 4.
  21. ↑ Ṭabāṭabāʾī Yazdī, Ḥāshiyat al-Makāsib, 1370 Sh, vol. 1, p. 122.
  22. ↑ Muḥaqqiq Ḥillī, Sharāʾiʿ al-Islām, 1408 AH, vol. 3, p. 4.
  23. ↑ Shahīd al-Thānī, Masālik al-ifhām, 1423 AH, vol. 9, p. 18.
  24. ↑ Muḥaqqiq Ḥillī, Sharāʾiʿ al-Islām, 1408 AH, vol. 3, p. 4.
  25. ↑ Ṭabāṭabāʾī Yazdī, Ḥāshiyat al-Makāsib, 1370 Sh, vol. 1, p. 122.
  26. ↑ Shahīd al-Thānī, Masālik al-ifhām, 1423 AH, vol. 9, p. 18.
  27. ↑ Baḥrānī, al-Ḥadāʾiq al-nāḍira, Muʾassasat al-Nashr al-Islāmī, vol. 25, p. 159.
  28. ↑ Muʾassasat Dāʾirat al-Maʿārif al-Fiqh al-Islāmī, Farhang-i fiqh-i Fārsī, 1387 Sh, vol. 1, p. 661; Najafī, Jawāhir al-kalām, 1362 Sh, vol. 32, p. 13.
  29. ↑ Muʾassasat Dāʾirat al-Maʿārif al-Fiqh al-Islāmī, Farhang-i fiqh-i Fārsī, 1387 Sh, vol. 1, p. 661.
  30. ↑ Najafī, Jawāhir al-kalām, 1362 Sh, vol. 32, p. 12.
  31. ↑ Muʾassasat Dāʾirat al-Maʿārif al-Fiqh al-Islāmī, Farhang-i fiqh-i Fārsī, 1387 Sh, vol. 1, p. 661.
  32. ↑ Ghulāmī, "Iḍṭirār, ijbār wa ikrāh; az tarāduf tā tafāwut", p. 61.
  33. ↑ Ghulāmī, "Iḍṭirār, ijbār wa ikrāh; az tarāduf tā tafāwut", p. 62.
  34. ↑ Muḥaqqiq Dāmād, Qawāʿid-i fiqh, 1406 AH, vol. 4, p. 102.
  35. ↑ Muḥaqqiq Dāmād, Qawāʿid-i fiqh, 1406 AH, vol. 4, p. 103.
  36. ↑ Muʾassasat Dāʾirat al-Maʿārif al-Fiqh al-Islāmī, Farhang-i fiqh-i Fārsī, 1387 Sh, vol. 1, p. 661.
  37. ↑ Najafī, Jawāhir al-kalām, 1362 Sh, vol. 37, p. 57.
  38. ↑ Najafī, Jawāhir al-kalām, 1362 Sh, vol. 42, p. 48.
  39. ↑ "Qānūn-i Mujāzāt-i Islāmī", Ekhtebar News Base Website.
  40. ↑ Ḥusaynī, al-ʿAnāwīn al-fiqhiyya, 1417 AH, vol. 2, p. 704.
  41. ↑ Ākhūnd Khurāsānī, Kifāyat al-uṣūl, 1409 AH, vol. 1, p. 341; Muʾassasat Dāʾirat al-Maʿārif al-Fiqh al-Islāmī, Farhang-i fiqh-i Fārsī, 1387 Sh, vol. 1, p. 661.
  42. ↑ Najafī, Jawāhir al-kalām, 1362 Sh, vol. 22, p. 265.
  43. ↑ Muʾassasat Dāʾirat al-Maʿārif al-Fiqh al-Islāmī, Farhang-i fiqh-i Fārsī, 1387 Sh, vol. 1, p. 662.
  44. ↑ Najafī, Jawāhir al-kalām, 1362 Sh, vol. 42, p. 47.
  45. ↑ “And do not kill the soul which Allah has made sacred except by right. This has He instructed you that you may use reason.” (Quran 6:151)
  46. ↑ Ḥurr al-ʿĀmilī, Wasāʾil al-Shīʿa, 1416 AH, vol. 19, p. 32.
  47. ↑ Muhammad b. Ya'qub, from Muhammad b. Yahya, from Ahmad b. Muhammad, and from a number of our companions, from Sahl b. Ziyad all together, from Ibn Mahbub, from Ibn Ri'ab, from Zurara from Abu Ja'far (a) regarding a man who ordered a man to kill a man [and he killed him]. He said: "The one who killed him is killed for it, and the one who ordered his killing is imprisoned in jail until he dies." (Hurr al-'Amili, Wasa'il al-Shi'a, 1416 AH, vol. 19, p. 32.)
  48. ↑ Najafī, Jawāhir al-kalām, 1362 Sh, vol. 42, p. 47.
  49. ↑ Khūʾī, Mabānī takmilat al-minhāj, 1428 AH, vol. 2, p. 13.
  50. ↑ Muḥaqqiq Dāmād, Qawāʿid-i fiqh, 1406 AH, vol. 4, p. 97.
  51. ↑ Ṭabāṭabāʾī, al-Mīzān, 1393 AH, vol. 3, p. 240.
  52. ↑ Ṭabarsī, Majmaʿ al-bayān, 1415 AH, vol. 6, p. 597.
  53. ↑ Muḥaqqiq Dāmād, Qawāʿid-i fiqh, 1406 AH, vol. 4, p. 97.
  54. ↑ A hadith has been narrated from the Prophet (s) which is known as the Hadith of Raf': "Nine things have been lifted from my Ummah: mistake, forgetfulness, what they are coerced into, what they do not know, what they cannot bear, what they are forced to do, jealousy, evil omen, and obsessive thinking about creation, as long as it is not spoken." (Hurr al-'Amili, Wasa'il al-Shi'a, 1416 AH, vol. 11, p. 295.)
  55. ↑ Muḥaqqiq Dāmād, Qawāʿid-i fiqh, 1406 AH, vol. 4, p. 99.
  56. ↑ Shaykh al-Anṣārī, Farāʾid al-uṣūl, 1419 AH, vol. 2, p. 38; Ḥusaynī, al-ʿAnāwīn al-fiqhiyya, 1417 AH, vol. 2, p. 707.
  57. ↑ Ākhūnd Khurāsānī, Kifāyat al-uṣūl, 1409 AH, vol. 1, p. 339.
  58. ↑ Ḥusaynī, al-ʿAnāwīn al-fiqhiyya, 1417 AH, vol. 2, p. 704.
  59. ↑ Shaykh al-Ṭūsī, al-Khilāf, 1407 AH, vol. 4, p. 479.
  60. ↑ Najafī, Jawāhir al-kalām, 1362 Sh, vol. 22, p. 265.
  61. ↑ Muḥaqqiq Dāmād, Qawāʿid-i fiqh, 1406 AH, vol. 4, p. 101.

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