Introduction
This essay examines the contentious issue of whether duress should be accepted as a defence to murder, arguing in favour of its recognition under specific circumstances. Drawing on two key academic articles—Kenneth J Arenson’s ‘The Paradox of Disallowing Duress as a Defence to Murder’ (2014) and Amy Elkington’s ‘The Historical Development of Duress and the Unfounded Result of Denying Duress as a Defence to Murder’ (2023)—this analysis explores the moral, legal, and historical dimensions of the debate. The discussion will focus on the paradox of denying duress as a defence, the historical rationale behind its exclusion, and the ethical imperative for reform, ultimately advocating for a nuanced acceptance of this defence in murder cases.
The Paradox of Denial
Arenson (2014) compellingly articulates the inherent contradiction in denying duress as a defence to murder while allowing it for lesser offences. He argues that the law’s current stance—rooted in the sanctity of life principle—fails to account for the extreme pressure faced by individuals under duress. For instance, a person coerced into committing murder under a credible threat of death to themselves or a loved one faces a moral dilemma that the legal system largely ignores. Arenson suggests that this denial creates a paradox: the law punishes individuals for actions they had little genuine choice in, undermining the principle of moral culpability central to criminal justice. This perspective highlights a significant limitation in current legal reasoning, questioning whether rigid adherence to precedent truly serves justice.
Historical Context and Its Shortcomings
Turning to Elkington (2023), the historical development of duress as a defence reveals a deeply entrenched but arguably outdated rationale for its exclusion in murder cases. Elkington traces this principle to early common law, where the protection of life was paramount, and any compromise was deemed unconscionable. However, she critiques this as an unfounded stance in modern contexts, where psychological coercion and complex social dynamics are better understood. Indeed, Elkington argues that historical justifications fail to address contemporary realities, such as cases involving domestic abuse or organised crime, where victims may kill under severe duress. This historical rigidity, while grounded in principle, appears increasingly disconnected from the nuanced understanding of human behaviour today.
Ethical Imperative for Reform
Both Arenson (2014) and Elkington (2023) underline an ethical necessity for reform. Allowing duress as a defence, at least in mitigated forms, would enable courts to consider individual circumstances and reduce unjust convictions. Furthermore, recognising duress could encourage a more compassionate legal framework, balancing the sanctity of life with the reality of human frailty under extreme pressure. Admittedly, safeguards would be essential to prevent abuse of the defence, but such complexities should not preclude reform altogether.
Conclusion
In conclusion, the arguments presented by Arenson (2014) and Elkington (2023) provide a robust case for recognising duress as a defence to murder. The paradox of its denial, the outdated historical rationale, and the ethical need for reform collectively underscore the limitations of the current legal position. While challenges in implementation remain, adopting this defence could foster a more equitable justice system. This debate, therefore, warrants further consideration to ensure the law reflects both moral principles and contemporary realities.
References
- Arenson, K.J. (2014) ‘The Paradox of Disallowing Duress as a Defence to Murder’. Journal of Criminal Law, 78, pp. 65-79.
- Elkington, A. (2023) ‘The Historical Development of Duress and the Unfounded Result of Denying Duress as a Defence to Murder’. Journal of Criminal Law, 87, pp. 207-220.
