“The relationship between Islamic Laws and Roman Laws”

“Application of Islamic Laws in the Philippines”

“Conflict of Laws”
The Relationship between Islamic Laws and Roman Laws

According to some experts, the Islamic Laws were influenced by the Roman Laws

but for Islamic Jurist, there is no basis for such influence. In fact, they argued that early

Islamic Scholars have not read any Roman Laws nor did an effort to translate such laws

into their own language. The fundamental difference between Roman law and Islamic

Law was pointed out by Mahmassani in seven significant points. First, Roman women

were under perpetual tutelage. They were not empowered throughout their lives to deal

with their property without the permission of their guardians. The Sharia, on the other

hand, recognizes in principle the complete capacity of women to perform all kinds of lawful

transactions.

Second, the dowry in Roman law was payment of the wife, or one of the family of

the wife, to her husband. While is Muslim Law, the dowry is the payment of the husband

towards the bride or the family of the bride. Third, unlike the Roman law, adoption is not

recognized in the Muslim Law. Fourth, formalism and compilation were evident in Roman

contracts and in Roman rules of procedure while contrary is the case in Sharia. In the

latter, it is a maxim that effect is given to intention and meaning and not to words and

forms.

Fifth, the transfer of debt was illegal in Roman law, while in Islamic Law it is

sanctioned by all schools of jurisprudence without exception. Sixth, there are distinct

differences between the two systems in questions of inheritance and wills. In the Sharia,
for example, a bequest to an heir is unlawful, while in Roman law wills were originally

instituted for the purpose of appointing the heirs. Lastly, the rules of pre-emption and

family endowments have no parallel in Roman law.

Application of Islamic Laws in the Philippines

The special law that governs Muslim personal laws in the Philippines is covered

under Presidential Decree No. 1083 or otherwise known as the Code of Muslim Personal

Laws of the Philippines. This code was enacted by the late President Ferdinand E.

Marcos. This code acts as a guideline on how to enforce Islamic Laws in the Philippines

pursuant to the interest of promoting the advancement and effective participation of the

National Cultural Communities in the building of New Society by considering, recognizing

and respecting Islamic customs, traditions, beliefs, and interest in the formulation and

implementation of its policies.

This law provides an essential basis for the fuller development of Islamic

communities in relation to the search of harmonious relations of all segments of Filipino

nation to enhance national unity and to attain a more ordered life among them because it

is in the strongest desire of this New Society to strengthen all the ethno-linguistic

communities in the country within the context of their respective ways of life in order to

bring about a cumulative result satisfying the requirement of national solidarity and social

justice.

On early history, the code mentioned above is the result of the Islamic influence

that was first introduced in Sulu by early Muslim missionaries. The period was believed

to be from 710. A.H. (After Hijra) or 1310 A.D. on the basis of the inscriptions in Arabic
alphabet found in the tomb of Tuan Magbalu Rajah Saginda at Bud (Mount) Datu, a place

some kilometers from Jolo, the capital town of Sulu. This is as far as the available

historical artifact data is concerned, although earlier before that, a certain “Tuan Mushaika

came and it is believed that at that time the inhabitants of Sulu islands were not yet

Muslims. It is not also certain if wether Tuan Mashaika was a Muslim, though his childrens

name are reported to be Tuan Hajim and Aisha. Thus, he must had been a Muslim.

Thereafter, another Arabian missionary named Karum-ul-Makidum arrived in Sumawil,

Sulu. It is said that he built a mosque and people from different parts of the islands flocked

to him. Then he was followed by Sayyid Abu Bakr who came all the way from Arabia

passing through Sumatra, Malacca, then to Sulu. His mission, according to sources, was

ignited by an enthusiasm to preach the doctrine of Abu Ishaq which were embodied in a

book called “Daru-ul-Mazlum” (the House of the Oppressed).

The influence of Islam and the Islamic Laws in Sulu spread to other islands in the

archipelago, that more than two centuries later in 1570, when the Spaniards colonizers

under Miguel Lopez de Legazpi arrived in this country when they found a noticeable

influence of the religion of Islam among the natives, a religion practiced by the Moors of

Spain as Spain herself was under Muslim Moors for over seven hundred years and

consequently the Spanish historian Legaspi called the natives of the islands Moro after

the Arab Moors of Mauritania, Morocco and Spain.

Conflict of Laws
 Historically, Islamic laws may have proved to be much earlier than Philippine laws.

It can also be argued that Islamic laws were first enacted than the Philippine constitution

itself. Although the Philippines recognizes and promulgated laws which shall guarantee

the right of Muslim men, due to its historical background, there might really be instances

where Islamic laws may be in conflict with General Laws of the Philippines. Thus, Article

III of PD 1083 provides guidelines on how to handle situations where there will be conflict

of laws. As it stands, this code refers to 3 situations of Conflicts which are the conflict

between any provision of the Muslim Code and Laws of General Application and Conflict

between the Muslim Code and Another Special Law of preferential application.

The first situation is a conflict between any provision of the Muslim Code and laws

of general application. By laws of general application or general laws are those which

apply to and operate uniformly upon all members of any class of persons, places or things

requiring legislation peculiar to themselves in matter covered by the laws. Special laws

are those the principal, direct and immediate purpose is to regulate a particular subject,

object or for a special purpose that applies to all persons within the state or community,

it deals with the affairs of a specific or particular group or class or interest of a people

within the state or community.

The second situation contemplates of two rules. The first is conflict between the

provision of the Muslim Code and laws of local application. By law of local application are

lose laws which refers to persons or things or particular persons or things of a class or

which operates on or over a portion of a class instead of all class in certain jurisdiction. In

case of conflict between the provision of the Muslim Code and a special law the latter

shall be liberally construed in order to carry out the former. By liberal construction mean
not that the words should be forced out of their natural meaning but simply should receive

a fair and reasonable interpretation with respect to the objects and purposes of the

instrument. For example, Presidential Decree 794 recognizes divorce among Filipino

Muslims in accordance with their customs and practices. Whereas the provision of the

Muslim Code in Article 45 to 52 among Muslim Filipino. In case of conflict between the

provisions of the former law and the provisions of the latter law, the former shall be

liberally construed in favor of the provision of the Muslim Code. The same rule is true

regarding conflict between the provision of the Muslim Code and the provision of a law of

local application.