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SHARIAH LAW I

Research Paper

Presented to

Atty. Faisal Pacalna Cali

As a partial fulfillment

Of the

Requirements

By

Erwin Yrrem J. Ubagan

Shariah law and Roman law, Comparison, application and conflict of laws in the
Philippine setting.
I. Introduction

This paper is going to tackle about the two branches of law, namely Roman
law and Shariah Law. The principle of these laws would be compared, and will try to
find out the similarities and differences of the said laws. The application of the laws
particularly in the Philippines will also be covered, as well as the conflicts in the
application.

Since time memorial, these set rules have been the main guiding principles on
individual practices, hence helping to shape societal, economic, and political
orientations of different communities. This is because depending on a specific
society’s treasured values and living patterns, there exists extensive variations in laws
that mange their practices and activities.

In this regard, it is important to note that, laws vary according to areas of


implementation or use, which sometimes depend on societies’ religious beliefs. Laws
are generally a set of policies, which authorities use to manage or govern its citizens.
They are main determinants of the nature of relationships that exist not only between
individuals and organizations, but also between different communities within an area.

I. Body

1. What is Roman Law and Shariah Law?

A. Roman Law

The term Roman law today often refers to more than the laws
of Roman society. The legal institutions evolved by the Romans had
influence on the laws of other peoples in times long after the
disappearance of the Roman Empire and in countries that were never
subject to Roman rule. To take the most striking example, in a large
part of Germany, until the adoption of a common code for the whole
empire in 1900, the Roman law was in force as “subsidiary law”; that
is, it was applied unless excluded by contrary local provisions. This
law, however, which was in force in parts of Europe long after the fall
of the Roman Empire, was not the Roman law in its original form.
Although its basis was indeed the Corpus Juris Civilis—the codifying
legislation of the emperor Justinian I—this legislation had been
interpreted, developed, and adapted to later conditions by generations
of jurists from the 11th century onward and had received additions
from non-Roman sources. (Millner, M. Roman Law. Retrieved from
https://www.britannica.com/topic/Roman-law)

B. Shariah Law.

Sharia, Sharia law or Islamic law is a set of religious


principles which form part of the Islamic culture. The Arabic
word sharīʿah (Arabic: ‫ )شريعة‬refers to the revealed law of God and
originally meant "way" or "path".

Classical sharia deals with many aspects of public and private life,
including religious rituals, family life, business, crimes, and warfare. In
former times, sharia was interpreted by independent jurists, who based
their legal opinions on Qur'an, Hadith and centuries of debate,
interpretation and precedent. Some parts of sharia can be described as
"law" in the usual sense of that word, while other parts are better
understood as rules for living life in accordance with God's will.

Modern countries in the Muslim world all have their own laws. In most
of them only a small part of the legal system is based on classical
sharia. Muslims disagree on how sharia should be applied in the
modern world. (https://simple.wikipedia.org/wiki/Sharia)

2. Comparison Between Roman Law and Shariah Law


Although these two forms of laws fight to ensure judicial systems are
just and fair, hence provision of solutions to many existing human
problems, they have some differences in form of application and their
provisions.

2.1 Differences.

a. Sharia law follows Islamic doctrines where as Roman law has no


connections to any religious belief.

b. Sharia bases most of its legal principles on Prophet Mohammed’s


teachings in the Quran and Sunnah, whereby roman law’s
provisions use concepts related to peaceful human existence;
ethical principles that are universally accepted and formulated.

c. Islamic law is a system which follows codes including primary


and secondary sources. Analogy is one of the most significant
source of law. Analogy is utilized similar to precedent in common
law system.
In a nutshell, Common law system gives primary importance to
case law or precedents and civil law systems gives primary
importance to codes and legislation. In contrast, Islamic law does
not have a rigid form to resemble or qualify to become one of the
mentioned branches. It has features of both these systems. The
code or the substantive law cannot be overridden but to decide for a
new preposition of law every precedent is considered as analogy
before establishing a new rule.

3. Application Of Islamic Law in the Philippines.


The application of the Islamic law here in the Philippines is already
provided by the government for its people through Presidential Decree No.
1083, which is “A DECREE TO ORDAIN AND PROMULGATE A CODE
RECOGNIZING THE SYSTEM OF FILIPINO MUSLIM LAWS,
CODIFYING MUSLIM PERSONAL LAWS, AND PROVIDING FOR ITS
ADMINISTRATION AND FOR OTHER PURPOSES.” Whereas Filipino
muslims can practice shariah law as long as it does not conflict with the
constitution.

4. Conflict of law.

Conflict of law means contradiction or opposition between the laws of


different countries regarding a certain subject matter that has to be
decided. When dispute arises between countries with different laws the most
important thing to decide on first is what law should be applied and whose
court laws shall deal with the resolution of legal disputes that might arise in
the future.

The Conflict between the shariah law and civil law in the Philippines
has been dealt with the promulgation of the P.D. No. 1083, whereas muslim
Filipinos follows legal tradition of the Islamic jurisprudence as long as it is in
line with the provisions that are provided in the Philippine constitution.

II. Conclusion.

In conclusion the main principles of the laws is to set rules on


individual practices, hence helping to shape societal, economic, and political
orientations of different communities, whereas In the Philippines PD No. 1083
was enacted to promote the advancement and effective participation of the
National Cultural Communities in the building of the New Society, the State
shall consider their customs, traditions, beliefs and interests in the formulation
and implementation of its policies. In comparison of the laws , the differences
of these laws is solely in the religious aspect of shariah law. although many
variations in terms of provisions in these two forms of laws vary, it is
necessary for practitioners in the field of law to always ensure they are fair in
passing judgments. In addition, regardless of one’s religious affiliation, there
is need for establishment of a common law that will serve all individuals with
due respect.
Sources:

https://www.britannica.com/topic/conflict-of-laws

http://www.chanrobles.com/presidentialdecreeno1083.htm#.XBM59vkzbIU

https://simple.wikipedia.org/wiki/Sharia

https://www.jstor.org/stable/pdf/1272666.pdf

http://lawunderlaw.com/difference-islamic-law-shariah-common-law/

https://onlinelaw.wustl.edu/blog/common-law-vs-civil-law/

https://www.lawteacher.net/free-law-essays/international-law/regionalisation-is-evident-
in-the-philippines-in-different-manners-international-law-essay.php

http://www.muslimmindanao.ph/pd_1083.pdf