HARMONIZATION OF ADAT LAW VIS--VIS

WESTERN LAW WITHIN A SINGLE POLITY: THE

PHILIPPINE EXPERIENCE

Introduction
Law = Adat is a limited sense
Adat right action, right procedure
Adat law <---> Custom law
Adat as Statements of Law
Adat law
- what ought to be law
Western law
- what the law is
Conflict of Law Situation (Legal Pluralism)
Dutch in Indonesia
- Equalization of levels = Western
+ Adat law
- Pragmatic approach
British in Malaya
- Trichotomy rules of decision
- Used by British in civil cases
only
Custom
Religious civil laws
Laws of general
application
Philippines had least experience in
dealing with legal pluralism

Codification or digest
Adat cuts across the modern
classification of Western laws
Consensus that to codify adaty next to
circumscribing it as digests of law.
Adat, as concept, is resolved according
to circumstances of each case.
Comparative law studies
Diwain of Sulu & Luwaran of
Maguindanao
o More adat temenggon than
adat perpateh
o Patrilinear characteristics
Adat compilation
o Customary law forms are
characteristically family law
o Religion (ritual) and customary
law appear complementary in
establishing jural relationship
o Similarity of range of meaning
of terms adat or customs

CHAPTER TWO: ADVENT OF ISLAM (MEZTIZO)

From the Barangay to Centralized Government
Muslims arrived 13
th
century onwards
- Malaya, Sumatra, Java &
Mindanao became seats of
Muslim regime
Sultan Kudarat
- Ruled Maguindanao & Pacific
coast
- Trade with Dutch, alliance with
Ternate
- Sultanate founded from a
prince of Johore whose father is
Arab Sharif
Maguindanao
- Chinese port of call in 4
th

century
- With diplomatic/ trade
relations with one of its districts
Sulu
- Chinese tributary state
- Founded by an Arab sharif
- Traded brazilwood, black
pepper, cubebs, tin,
camphorwood & pearl.
Other trading centers of Mindanao
- Caraga (Surigao del Sur and
Davao Oriental)
- Butuan first to establish
diplomatic relations with China
- Dapitan
Mindoro
- Dependency of Brunei
Luzon
- Dependency of Brunei
subsequently
Penetration of Islamic Law
1. Malay was language of royalty and
commerce
2. Muslims introduced centralized form of
government
- Where chieftains were heads
- Primus inter pares, paramount
chief in the chiefdom.
- Codification of laws
Luwaran codes from
Arabic sources which
stood next to Koran
3. Active engagement in raids
- Sea raiding was most
celebrated form of warfare
- To capture slaves and
tradeware
- Karakoa sleek, double-ended
cruiser
Used by raiders
4. Superficial penetration only
- Limited to not eating pork only
- Conducted only by merchants
and itinerant Sufi holy men
5. Islamic law as source of law in areas
fully penetrated by Muslims
Nature of Sharia, or Islamic Law
Sharia
- Code of life, not just source of
law
Church and State is one in Muslim
countries
- Civil society and the faithfuls
are CO-TERMINOUS
- Precepts of Muhammad
intended to be code of civil law
Historical Background (Periods of Muslim Law)
1
st
Period
- Mohammad still alive until
Haditha were compiled
2
nd
Period
- Abu Bakr led Muslims
- Caliphs were guided by reasons
- Unification of Arabia

3
rd
Period
- Learned men spread to the
various parts of the empire
- Founding ancient schools of law
in Iraq, Arabia, Syria
4
th
Period
- Development led by great
jurists of Sunni school
- Ulemas, akin to Catholic
bishops, developed Sharia into
coherent body of laws
5
th
Period
- Jurists followed the view of the
original founders Age of
Commentators

Sharia and Customary Law
Four Foundations of Islamic Law
- Koran
- Holy Scripture of
Muslims
- Sunnah
- Actual practices of the
Prophet Muhammad
- Ijma
- The consensus of
scholars
- Qiyas
- Also called analogical
reasoning
Sharia incorporated with customary
laws Adat
- With the expansion of Islam
Adat
- Custom law of Muslim on
persons and family relations
- Sometimes Koranic verses
involved in Adat judgment
Agama Court
- Religious tribunal presided in
theory by Sultan but in practice
convoked by deputy, the kazi
Few Codes attributed to Islam
- Luwaran of Lanao
- Code of Sultan Kudarat in
Cotabato
Phony codes
- Code of Kalantiaw
- Maragtas Code
Grounds for absolute divorce
- Incompatability
- Infidelity
- Impotence
- Forcing wife into prostitution
- Habitual disorder
Boletas worn by men
- Pins worn through their penis

The Tortuous Path of Sharia
Muslim Law did not receive warm
welcome during Spanish & American
colonizers
Only during Marcos presidency when
Sharia was given credence into law