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The Relationship Between Islamic Laws and Roman Laws
The Relationship Between Islamic Laws and Roman Laws
The Relationship Between Islamic Laws and Roman Laws
“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
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
and respecting Islamic customs, traditions, beliefs, and interest in the formulation and
This law provides an essential basis for the fuller development of Islamic
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.
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
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
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
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.