Chapter 3

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Civil Law v. Common Law

The legal system - an important constitutive part of national identity and central to the regulatory norms that shape patterns of behavior in state and society

What does it mean to be a civil law country?

Civil Law tradition

TraditionSystem

Set of underlying prescriptions, attitudes, mindsets, shared by civil law systems (France, Spain, Germany, Latin America, etc.)

Ownership, usufruct, contract, marriage

Different rules and solutions underlying: set of mindsets

Sprung from a common source

Civil law sprung from a common source: Roman Law

How did it come to us?

Settlers of Italy practically all of 3 main waves of the Italian peninsula

Europe was inhabited by a tribe: Indo-Europeans

2000 BC Certain tribes of Indoeuropeans (Italics) settled in the Italian peninsula.

1000 BC Etruseans (not Indo-Europeans) settled in Italy probably started in Normandy.

Greeks settled mostly south near the Tiber river

(Greeks were river people) they chose this place because of the fertile lands, and was very hilly.

Rome city of 7 hills which makes is possible/easier to defend.

Early Roman society was composed of 2 main classes

Patricians further divided into classes

Pribeans classless people

The Monarchy: Assemblies

1) Comitia Curiata

Legislative and executive functions under the king and priestly functions

Largely replaced by:

2) Comitia Centuriata

3) Comitia Tributa

Plebean committee

Fall of Monarchy and Birth of the Republic (510 BC)

Julius Brutus First Consula

Chief Executive 2 elected annually

Comitia Curiata

Cenatus Consulta Only Patricians

Plebisitia Plebeans

The 2 exeisted with dual roles.

2 consuls Patricians

tribunes plebeans

*Fiction between classes

Consoldation: Tribune terectilios and the Dimitri

Proposal: 10 Plebeans to draft common set of laws

5 patricians and 5 Plebeans: but, 10 patricians were elected.

Draft of laws: 12 bronze tablets

fundamental laws for all (Laws of the 12 tablets)

450 BC Leges duodecim Tabularum

founder of Civil Law tradition

beginning of Roman law

served as the basic law for 1000 years

Expansion of Rome: Republic to Empire to World State

3 Punic wars (Phoenicians)

264 164 BC

Hannibal 2nd war marched army of soldiers and elephants and almost conquered Rome

146 BC Rome won (Carthage)

Creation of Senate

Senex Old man

Senate assembly of old men

Triumvirate Cesar, Casus, Pompey (61 BC)

Worked under senate, administrative functions exercised

Casus was later killed by Particians.

Division of territories to administer:

Cesar West (conquered gaul, and wrote his jottings on the Gaullic war)

Pompey East (married cesars daughter)

later on, the 2 became rivals, Pompey went to senate asking Cesar not to go to Italy in arms, but Cesar crossed Rubicon and waged war on Pompey, who was defeated and later fled to Egypt (and beheaded by Ptolemy).

Cesar (fathering a child with Cleopatra) went back to Italy and forgave senate.

Senate named him Dictator for life. Named the 5th month after him: July

Dictator someone given power by the senate (during emergencies and merely temporary)

2 months later (March 15) he was assassinated by senators in senate as he was accused of destroying the republic.

Civil War Senators (Brutus and Casius) v. Cesarians (Anthony and Lepidus)

Plains of Philippe (42 BC) Anthony and Lepidus won.

2nd triumvirate: Anthony, Octavian and Lepidus

Naval battle with Cleopatra (went back to Egypt with Anthony following her)

Thus, Octavian wins. = First emperor (Augustus)

Month of august is born.

Emperato Commander in chief of battles

Senate was still said to be supreme. Retained administration of Italy, Iberria, Gaul, Egypt (Best provinces)

Augustus took the worst provinces assumed positions on bureaucracy little by little.

12 Cesars:

Julius Cesar not really the 1st emperor

Augustus 1st emperor

Tiberius

Caligula literally means little boots

Claudius

Nero

Galba

Otho

Vitelilus

Vespasian

Titus

Domitian

5 good emperors: 96 AD 180 AD

Nerva, Trajan and Antonius Pius

Marcus Aurelius Philosopher king

literally all road lead to Rome

Institution of adoption

Appointed as hi heirs not his biological son but adopted man who was a good leader.

Antonius Pius had a son who was monster, but appointed another (Comodus) as successor. This lead to the slow political decline of Rome.

In 125 years: 23 emperors 13 assasinated

Diucletian tried to reform Rome:

Tetrachy - 4 rulers

Major administrative reform 180 to 4th century (305 AD)

Constantine one of the Augusti

fought his co-emperor battle of Mulvian Bridge 312 AD

In Hoc Signo Vinces

Byzantine: Constantinopolis

Basic law was still the 12 tablets

there were edicts

commentaries of jurists (juris consuls)

The jurisprudentes: wrote numerous commentaries

Scevola, Gaius, Paponian, Ulpian, Paul, Modertinus

426 AD Valentinians law of Citations

Decree to systematize commentaries on any given point of law. 5 major commentators will prevail. If there is difference among them, major commentator will prevail. Ex. If there is difference among all, Papinian will prevail. This started the development of law through commentators.

The fall: 5th century

The Huns, via Atilla from the East, put pressure on the Germanic tribes, and overrun the empire form the East.

476 AD Fall of Rome: Romulus Augustus

Resurgence and recovery of west: Justinian, but not really successful.

Temple of Jesus in Constantinople was rebuilt, but later on turned into mosque when Turks invaded Constatinople.

Codification of Roman Law

New work of Codification: Corpus Juris Civilis (Anthology of Civil Law)

1) Digests 15 Dec. 533 AD most important consolidation of extracts from juris consults.

2) Institutiones 30 Dec. 533 AD textbook on law for students and had force and effect of law. Justinian saw the need for schools and was basically the father of the law school, and bar exams.

3) Codex 534 AD collection of edicts

4) Novellae 534-543 AD New laws

Western Europe was in the Dark Ages

Law was still tribal customs

Strand of Roman law remained subdued people, but still it was barbarized Roman law.

Period of Customary Thicket

trade later developed: Feudal system took root and monasticism evolved (tried to preserve documents: scriptures, transcribed into simple latin, epics, plays). But, still barbarized mingled with German law.

Birth of nation state: France, England, Italy and Spain, later Germany

Europe rediscovers Roman Law in the 11th Century

Revival and Reception

rise of universities

Paris humanities; teachers universities

Bologna (Italy) Center of law schools; student university.

Why law? 1050 AD full text of digests foubd in Piza, taken to library in Florence. Glositors (people educated) read the digests and made marginal comments on their meaning. Thus reviving Roman Law.

Post- Glositors Commentators

now used principles, explained and applied to contemporary situations

Reception applied throughout eastern Europe

Great Renaissance of Law

Spain Visigoths

Euric 466-489: Code of Germanic Laws compiled

Alaric II Code: for conquered people (Breviary of Alaric)

Consolidation and Stabilization: Fuero Juzgo

690 AD made applicable to all. (Most advanced piece of Germanic legislation).

Monish invasion: 1000 of them under Talic (Gibraltar)

Tarik and the Rock: Islamic triumph (711 AD)

The Reconquista: Slow piecemeal recovery of christians pushed south.

Each area conquered got its legal system (Fuero) Forum Law.

Fuero Viejo

Alfonso X Fuero Real

Libro de las Leyes

1347 Grand son gave it force and effect of law: 7 partidas/siete partidas (Alfonso)

Mid 15th Century

Kingdoms of Castille: heir was the sister of the king Isabel

Kingdom of Aragon: Heir was 17 year old Ferdinand

Valladolid Marriage of Ferdinand and Isabel

consolidated: after king appointed putative daughter, king died and fought with Isabel, the latter succeeding to Castille with Ferdinand having taken over Aragon.

Christopher Colombo rejected by Portugal, went to Isabel who had to pawn her jewels to fund his trip, bought 3 ships and the rest is history. Isabel died at 42.

Daughter Juana dela Loca basically she was crazy

Growth of Spanish Law

Las Leyes de Toro paternity and succession

Chapter V siete partidas extended to colonies

1567: La Nueva Recopilacion

1661: Recopilacion de lad Indians (most impressive)

Bourbons took over.

1805: revised recopilacion.

France

Revolution: Twilight for the Gods

Louis XVI and Marie Antoinette to Bastille Sire, Cest une revolutione

14 July 1789: all beheaded

Reign of terror

Fall of Monarchy: La Treus

15th Brumaire Napoleon Bonaparte (10 November 1799)

Edict: Code Commission

Commission of Fountainebleau and project of Codification (1800)

Portalis and Trouchet

12 March 1804: Le Code Civil (First modern Civil Code)

then, France conquers Spain.

Codification Commission Codificatora

Queen Regent executed an edict: Real Directo

6 October 1888 Ordaining publication of Codigo Civil takes effect on 24 July 1889.

extended effect to Puerto Rico, another colony and the Philippines. (effectivity: 8 December 1889; published: 17 November 1889)

Remained law despite changes in the sovereignty: non-political

1947 EO48 for Codification

1948 Draft (in April Roxas dies of a heart attack

18 June 1949 signed

30 August 1950 Civil Code takes effect

What makes us a civil law country?

There are certain shared assumption: Codes

Mighty cleavage between public law and private law remains.

The generally accepted way of dividing and classifying the law in the civil-law world is quite different from that to which common-law lawyers are accustomed.

The fundamental division in modern civil-law systems is that between public and private law.Private LawPublic Law

That area of the law in which the sole function of government was the recognition and enforcement of private rights

Now includes at least the civil and commercial codes.Fcuses on the effectuation of the public interest by state action. Now includes at least what a common-law attorney would recognize as constitutional law, administrative law, and criminal law.

Judiciary organized and divided

Several separate court systems often coexist in civil-law countries. A case falling within the jurisdiction of one court generally is immune from jurisdiction in all others.

While the typical common-law judicial system may be drawn as a pyramid with the highest court at the top, the typical civil-law judicial system would be represented as a set of two or more distinct structures with no bridge between them. Civil Procedure: Judicial Proceedings are public and controlled by parties

series of meetings, hearings, and written communications through which evidence is introduced and evaluated, testimony is taken, and motions are made and decided. conducted primarily in writing, and the concept of a highly concentrated and dramatic trial in the common-law sense is not emphasized. Cross-examination is uncommon. The judge supervises the collection of evidence and preparation of a summary of the record on which a decision will be based. lawyers in the civil-law system mainly act as law adversaries (i.e., arguing points of law), and judges more actively control the investigation and fact-finding process.Criminal Procedure: divided into three phases: the investigative phase, the examining phase, and the trial.

Investigative - a government official (generally the public prosecutor) collects evidence and decides whether it is sufficient to warrant formal charges.Examining - primarily conducted in writing, an examining judge completes and reviews the written record and decides whether the case should proceed to trial.Trial - present the case to the trial judge and, in certain cases, the jury, and to allow the lawyers to present oral argument in public. No real tradition of jury trials.

Appellate Review: Usually de novo

Often involves a de novo review of both the facts and law of the case. Generally, only questions of law are raised and decided by appellate court.

Legal actors:

Legal Scholars Do the thinking. Development of law is lodged in legal scholars (as compared to common law development through judges.)

Legislature - strives to supplement and update the codes in those areas in which the legal scholars have suggested that codes are defective or incomplete.Main source of solution of problems: Statutory law

(Common law: Precedents, stare decisis)Judges They the operators of the system designed by legal scientists and built by legislators. Since there is only one correct solution to a legal problem, according to legal science and the developed doctrine, judicial discretion or interpretation becomes largely unnecessary.Legal Education and LawyersLaw schools curriculum divided

Classification of law practice

Law v. Equity: not present in civil law

Presumption on civil law: What is legal is equitable and vice-versa.

According to Balane, we are civil law, with a little overlay of common law.

Simplified comparison: Civil v. Common Law

Civil LawCommon Law

Greatly influenced by Corpus Juris Civilis.

Courts merely apply the law.

Civil-law countries have comprehensive codes, often developed from a single drafting event. The codes cover an abundance of legal topics, sometimes treating separately private law, criminal law, and commercial law.

What is legal is equitable, and vice-versa.

Role and influence of judicial precedent, at least until more recent times, has been negligible.

Reasoning process is deductive, proceeding from stated general principles or rules of law contained in the legal codes to a specific solution.

Tradition of separate codes for separate areas of law, favor specialty court systems and specialty courts to deal with constitutional law, criminal law, administrative law, commercial law, and civil

or private law.

Single-event trial is unknown, and trials involve an extended process with a series of successive hearings and consultations for the presentation and consideration of evidence.

Trials using the inquisitorial process, the role of the judge is elevatedthe judge assumes the role of principal interrogator of witnesses, resulting in a concomitant derogation of the role of lawyers during the trial.

Judges are mere appliers of the law.

Judiciary is usually part of the civil service of the country. Non-political.

The study of law at a faculty of law follows graduation from high school, with no intermediate education in the liberal arts or other fields of learning, and with little or no exposure to subjects taught in other departments of

a university.Not much influence.

Law developed by judges.

Courts have 2 functions, apply the law, and make law.

Common-law countries have statutes in those areas, sometimes collected into codes, they have been derived more from an ad hoc process over many years. Codes of common-law countries very often reflect the rules of law enunciated in judicial decisions (i.e., they are the statutory embodiment of rules developed through the judicial decision-making process).

Existence and growth of equity: not really what is legal.

Precedent has been elevated to a position of supreme prominence

The process is the

reversejudges apply inductive reasoning, deriving general principles or rules of law from precedent or a series of specific decisions and extracting an applicable rule, which is then applied to a particular case.

Integrated court systems with courts of general jurisdiction available to adjudicate criminal and most types of civil cases, including those involving constitutional law, administrative law, and commercial law.

Single-event trial possible.

The role of the judge as the manager of the trial (and referee of the lawyers acting in an adversary role) is secondary to that of the lawyers, who are the prime players in the process, introducing evidence and interrogating witnesses.

Judges may search creatively for an answer to a question or issue among many potentially applicable judicial precedents.

Judges are generally selected as part of the political process for a specific judicial post that they hold for life or for a specified term, with no system of advancement to higher courts as a reward for service.

The study of law is almost always post-graduate. The law student is exposed to other disciplines prior to matriculation in the law school, a situation that has perhaps led to a greater social consciousness among judges and lawyers about the purposes and functions of law and its applicationand a greater openness and ability to confront new situationsthan exists among their counterparts in civil-law countries.

Indigenous Peoples Rights Acts

Traditional Conception: Government treated them as in a state of pupilage or as wards just like the way the U.S. related to the native Indians. (Rubi v. Provincial Board of Mindoro)

Valid classification under the equal protection clause, against Indegenous person. Classification was not discriminatory because it was not based on accident of birth or parentage but on the degree of civilization and culture. (People v Cayat)

Constitution and IPs

Article II, Section 22 (recognition and promotion of rights of IPs)

Article XII, Section 5 (applicability of customary laws in re: property rights or relations)

Article XIII, Section 6 (recognition of rights to ancestral lands)

Article XIV, Section 17 (consider right of IPs to culture in development national plans)

Who are IPs?

A group of people or homogenous societies identified by self-ascription and ascription by others, who have continuously lived as organized community on communally bounded and defined territory, and who have, under claims of ownership, since time immemorial, occupied, possessed and utilized such territories, sharing common bonds of language, customs, traditions and other distinctive cultural traits, or who have, through resistance to political, social and cultural inroads of colonization, non-indigenous religions and cultures, become historically differentiated from the majority of Filipinos. Likewise include peoples who are regarded as indigenous on account of their descent from the populations which inhabited the country at the time of conquest or colonization, or at the time of inroads of non-indigenous religions and cultures, or the establishment of present state boundaries, who retain some or all of their own social, economic, cultural and political institutions, but who may have been displaced from their traditional domains or who may have resettled outside their ancestral domains. (Sec. 3 (h) RA 8371)

Ancestral Domain

All areas generally belonging to ICCs/IPs comprising lands, inland waters, coastal areas, and natural resources therein, held under a claim of ownership, occupied or possessed by ICCs/IPs, by themselves or through their ancestors, communally or individually since time immemorial, continuously to the present, except when interrupted by war, force majeure or displacement by force, deceit, stealth or as a consequence of government projects or any other voluntary dealings entered into by government and private individuals/corporations, and which are necessary to ensure their economic, social and cultural welfare

including: ancestral lands, forests, pasture, residential, agricultural, and other lands individually owned whether alienable and disposable or otherwise, hunting grounds, burial grounds, worship areas, bodies of water, mineral and other natural resources, and lands which may no longer be exclusively occupied by ICCs/Ips but from which they traditionally had access to for their subsistence and traditional activities, particularly the home ranges of ICCs/Ips who are still nomadic and/or shifting cultivators.

Ancestral Lands

Those: occupied, possessed and utilized by individuals, families and clans who are members of the ICCs/Ips since time immemorialincluding but not limited to, residential lots, rice terraces or paddies, private forests, swidden farms and tree lots.

Problem of Jura Regalia

Constitution: Sec. 2. Lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State

Sec. 3. Lands of the public domain are classified into agricultural, forest or timber, mineral lands and national parks

The key to resolving the apparent conflict is the concept of native title. This was affirmed in the landmark case of Carino v. Insular Government (1909). The case involved claims of ownership of an Igorot in Bunguet, over land which had been occupied by him and his predecessor since prior to the time of Spanish conquest. Carino case recognized the concept of private land title that existed irrespective of any royal grant from the State.

Thus, in Chapter II, Section 3(l) native title has been defined as:

pre-conquest rights to lands and domains which, as far back as memory reaches, have been held under a claim of private ownership by ICCs/IPs, have never been public lands and are thus indisputably presumed to have been held that way since before the Spanish Conquest.Presumption: areas within the ancestral domains are communally held but not in the concept of co-ownership under the New Civil Code. (Chapter VIII, Section 55)

Rule on vested rights: respect for existing property rights regimes. (Chapter VIII, Section 56)

Rule on natural resources within the domains: ICCs/IPs with priority rights in the harvesting, extraction, development or exploitation(but) a non-IP may be allowed to take part in the development and utilization for a period of not exceeding 25 years renewable for another 25 years: Provided a formal and written agreement is entered into with the IPs concerned or that the community, pursuant to its own decision making process has agreed to allow such operation (Chapter VIII, Section 57)

Rule on sale or transfer:

1. Ancestral domains can never be sold. (Chapter III, Section 5)

2. Ancestral lands may be transferred only to/among members of same IPs; but may be redeemed within 15 years if transferred to non-IPs due to vitiated consent/unconscionable price. (Chapter 3, Section 8) Formal recognition of native title: Certificate of Ancestral Domain Title (Chapter III, Section 11)

Option to register ancestral lands (within 20 yrs.):

a. Commonwealth Act 141, as amended

b. Land Registration Act 496 [note: see P.D. 1529] (Chapter III, Section 12)

[Note: individually-owned ancestral lands, of agricultural character and actually used for agricultural, residential, pasture, and tree-farming purposes, including those with 18% slope are classified as alienable and disposable agricultural lands Baguio compromise?]

Tax exemption (real property tax/ special levies/other exactions): Ancestral domains except those portions actually used for commercial purpose, large-scale agriculture, residence or upon titling by private person (Chapter VIII, Section 60)

Rights related to ancestral domain (Chapter III, Section 7):

a.to claim ownership

b.to develop lands and natural resources (in re: Section 57)

c.to stay in the territories

d.to be resettled (in case of displacement)

e.to regulate entry of migrant settlers

f.to have access to integrated systems for the management of their inland waters and their air space

g.to claim parts of reservations (except: those for public welfare and service)

h.to resolve land conflicts using customary laws (before going to court) Right to Self-governance and Empowerment

Chapter IV, Sections 13-20

Applicability: IPs not included in or outside Muslim Mindanao and Cordilleras may use the form and content of their ways of life as may be compatible with the fundamental rights defined in the Constitution.

Justice System may be used within their own communities but subject to two conditions:

a. compatible with the national legal system.

b. compatible with internationally recognized human rights.

[Note: Clarify relationship with the Autonomous Regions which are given legislative powers over ancestral domain and natural resources, among others, pursuant to Article X, Section 20 of the Constitution.]

Other rights:

a. Right to participate at all levels of decision-making and development of indigenous political structures, including mandatory representation in policy-making bodies and other local legislative councils, and the right to determine their own priorities for development.

b. Right to constitute tribal barangays (in re: Local Government Code) provided they are living in contiguous areas where they are the predominant population but inside municipalities, provinces, or cities where they do not constitute the majority.

Social Justice and Human Rights

1. Equal Protection and non-discrimination: with due recognition of their distinct characteristics and identity, accord to the members of the ICCs/IPs the rights, protections and privileges enjoyed by the rest of the citizenry; same employment rights, opportunities, basic services, educational and other rights and privileges available to every member of the society. Accordingly, the State shall likewise ensure that the employment of any form of force of coersion against ICCs/IPs shall be dealt with by law.2. Rights during armed conflict: protection under international law, non-recruitment against their will/children, no force to abandon lands.

3. Freedom from discrimination and equal opportunity and treatment4. Unlawful acts re. employment: non-discrimination

equal pay for equal work

accord them with same benefits and rights/ cannot be discharge to evade providing them with such rights.

5. Equal rights and protection to women, children and youth

6. Integrated system of education: relevant to the need of the young people of the ICC/IPs.Cultural Integrity

1. The state shall respect, recognize and protect the right of the ICCs/IPs to preserve and protect their culture, traditions and institutions. It shall consider these rights in the formulation of national plans and policies.

2. Educational Systems3. Cultural diversity

4. Community Intellectual rights

5. Rights to religious, cultural sites and ceremonies

6. Indigenous Knowledge Systems and Practices and to Develop own Sciences and Technologies7. Access to Biological and Genetic Resources8. Sustainable Agro-Technical Development9. Funds for Archaeological and historical sites

National Commission on Indigenous People (NCIP)

Chapter VII, Sections 38-50 and Chapter IX, Sections 65-70

Composition: 7 Commissioners (at least 2 women and at least 2 lawyers) belonging to IPs appointed by the President representing the following ethnographic areas:

a. Region 1 and the Cordilleras

b. Region 2

c. The rest of Luzon

d. Island Groups, including Mindoro, Palawan, Romblon, Panay and the rest of the Visayas

e. Northern and Western Mindanao

f. Southern and Eastern Mindanao

g. Central MindanaoPrincipal functions:

1. Issue certificate of ancestral domain/land title (Section 44 [e])

2. Issue certification as a pre-condition to grant of permit for

utilization of any portion of ancestral domain (Section 44 [m])

Offices:

Ancestral Domains

Policy, Planning and Research

Socio-economic Services

Empowerment and Human Rights

Administrative

Legal Affairs power to conduct preliminary investigation (for violation of IP rights)

Jurisdiction: all claims and disputes involving rights of IPs

[Note: subject to principle of exhaustion of remedies under their customary law]

Appeal: from NCIP to CA by way of petition for review

Injunctions: No restraining order by inferior court in any case dispute or controversy arising from this Act.

Penalties: for violations of -

Section 10 (unlawful intrusion on domain)

Sections 21 and 24 (non-discrimination)

Section 33 (religious, cultural sites)

[Note: May proceed to punish under customary laws provided that:

1. Penalty is not cruel, degrading or inhuman

2. Death penalty shall not be imposed]

Special provision for Baguio City governed by its own Charter

Delineation Process - Chapter VIII, Sections 51-64

Process for Domains:

Petition with NCIP thru ADO

Delineation Proper

Proof testimony of elders and documentary evidence

Preparation of Maps

Report of investigation

Notice and Publication opposition may be filed w/in 15 days

ADO report on endorsement - w/in 15 days from publication

Issuance of CADT and registration

[Note: DENR Adm. Order No. 2, series of 1993 allowed claims.]

Process for Ancestral Lands:

GR allocation left to customary practice

Exception:

i. those not inside domain may seek ADO help

ii. proof required: oral and documentary evidence

iii. notice and publication

Current Debate: Codification of Customary Law

[Note:Article 11 of New Civil Code - Customs which are contrary to law, public order or public policy shall not be countenanced.

Article 12 - A custom must be proved as a fact, according to the rules of evidence.]

[Note:Badua vs. Cordillera Bodong Administration, 194 SCRA 101]In the case of Badua v. Cordillera, the main question was whether tribal court of the Cordillera Bodong Administration can render a valid and executory decision in a land dispute. The Court ruled that the tribal court in this case which rendered the decision, supposed to have been constituted under the law creating the Cordillera Autonomous Region, never came into existence, as the CAR never came into existence. The tribal court here was an ordinary tribal court existing under the customs and traditions of an indigenous cultural community. Such tribal courts are not a part of the Philippine judicial system which consists of the Supreme Court and the lower courts which have been established by law. They do not possess judicial power. Like the pangkats or conciliation panels created by P.D. No. 1508 in the barangays, they are advisory and conciliatory bodies whose principal objective is to bring together the parties to a dispute and persuade them to make peace, settle, and compromise.

An amicable settlement, compromise, and arbitration award rendered by a pangkat, if not seasonably repudiated, has the force and effect of a final judgment of a court (Sec. 11, P.D. 1508), but it can be enforced only through the local city or municipal court to which the secretary of the Lupon transmits the compromise settlement or arbitration award upon expiration of the period to annul or repudiate it (Sec. 14, P.D. 1508). Similarly, the decisions of a tribal court based on compromise or arbitration, as provided in P.D. 1508, may be enforced or set aside, in and through the regular courts today.Use of customary law in settlement of disputes among IPs and determination of property rights.

Sec. 3(f). - a body of written and/or unwritten rules, usages, customs and practices traditionally and continually recognized, accepted and observed by respective ICCs/IPs

Sec. 7(b). Right to develop lands and natural resources - the right to negotiate the terms and conditions for the exploration of natural resources in the areas for the purpose of ensuring ecological, environmental protection and the conservation measures, pursuant to national and customary law

Sec. 7(h). Right to resolve conflict - Right to resolve land conflicts in accordance with customary laws of the area where the land is located, and only in default thereof shall the complaints be submitted to amicable settlement and to the Courts of Justice whenever necessary.

Sec. 8(a). Right to transfer land/property - Such right shall include the right to transfer land or property rights to/among members of the same ICCs/IPs, subject to customary laws and traditions of the community concerned.

Sec. 15. Justice System Conflict Resolution Institutions, and Peace Building Processes. - The ICCs/IPs shall have the right to use their own commonly accepted justice systems, conflict resolution institutions, peace building processes or mechanisms and other customary laws and practices within their respective communities and as may be compatible with the national legal system and with internationally recognized human rights.

Sec. 51(d). Proof Required. - Proof of Ancestral Domain Claims shall include the testimony of elders or community under oath, and other documents directly or indirectly attesting to the possession or occupation of the area since time immemorial by such ICCs/IPs in the concept of owners which shall be any one (1) of the following authentic documents:

1.Written accounts of ICCs/IPs customs and traditions;

2. Written accounts of the ICCs/IPs political structure and institution;

3.Pictures showing long term occupation such as those of old improvements, burial grounds, sacred places and old villages;

4.Historical accounts, including pacts and agreements concerning boundaries entered into by the ICCs/IPs concerned with other ICCs/IPs;

5.Survey plans and sketch maps;

6.Anthropological data;

7.Genealogical surveys;

8.Pictures and descriptive histories of traditional communal forests and hunting grounds;

9.Pictures and descriptive histories of traditional landmarks such as mountains, rivers, creeks, ridges, hills, terraces and the like; and

10. Write-ups of names and places derived from the native dialect of the community.

Jurisdiction and Procedures for Enforcement of Rights

- Sections 65 to 66

Sec. 65. Primacy of Customary Laws and Practices. - When disputes involve ICCs/IPs, customary laws and practices shall be used to resolve the dispute.

Sec. 66. Jurisdiction of the NCIP. The NCIP, through its regional offices, shall have jurisdiction over all claims and disputes involving rights of ICCs/IPs: Provided, however, That no such dispute shall be brought to the NCIP unless the parties have exhausted all remedies provided under their customary laws. For this purpose, a certification shall be issued by the Council of Elders/Leaders who participated in the attempt to settle the dispute that the same has not been resolved, which certification shall be a condition precedent to the filing of a petition with the NCIP.

[Note: See Local Government Code Section 399 (b) and 412 (c) regarding applicability of customary law to tribal barangays.]

LGC: SEC. 399. Lupong Tagapamayapa(b) Any person actually residing or working in the barangay, not otherwise expressly disqualified by law, and possessing integrity, impartiality, independence of mind, sense of fairness, and reputation for probity, may be appointed a member of the lupon.SEC. 412. Conciliation.(c) Conciliation among members of indigenous cultural communities. - The customs and traditions of indigenous cultural communities shall be applied in settling disputes between members of the cultural communities.Cruz v. DENR (GR No. 135385)

IPRA Law vis a vis Regalian Doctrine

Cruz, a noted constitutionalist, assailed the validity of the RA 8371 or the Indigenous Peoples Rights Act on the ground that the law amount to an unlawful deprivation of the States ownership over lands of the public domain as well as minerals and other natural resources therein, in violation of the regalian doctrine embodied in Section 2, Article XII of the Constitution. The IPRA law basically enumerates the rights of the indigenous peoples over ancestral domains which may include natural resources. Cruz et al content that, by providing for an all-encompassing definition of ancestral domains and ancestral lands which might even include private lands found within said areas, Sections 3(a) and 3(b) of said law violate the rights of private landowners.

ISSUE: Whether or not the IPRA law is unconstitutional.

HELD: The SC deliberated upon the matter. After deliberation they voted and reached a 7-7 vote. They deliberated again and the same result transpired. Since there was no majority vote, Cruzs petition was dismissed and the IPRA law was sustained. Hence, ancestral domains may include natural resources somehow against the regalian doctrine.

Decisions and Opinions:

1) Substantive

(Note: Justice Vicente Mendoza voted to dismiss the petition solely on the ground that it does not raise a justiciable controversy and petitioners do not have standing to question the constitutionality of R.A. 8371.)1.Section 3(a)

3(b)

defines the extent and coverage of A.D. (3a)

defines A.L. (3b)PUNO

Carino Native Title

KAPUNAN

Cario Native title.

Jura Regalia is the natural fruit of conquest.

Cario is an exception to Jura Regalia

Distinguished ownership under native title vs. ownership by acquisitive prescription.

Cario does not apply to lands of public domain as SOLGEN argued at first.

Does not confer right of ownership over natural resources, only definitional not declarative of right.

VITUG

Effectively withdraws from public domain millions of hectares of A.D.

Undue delegation of State authority.

Cario cannot override the collective will of the people.

Congress should first make customary laws part of the stream of laws.

PANGANIBAN

Too sweeping scope

Jura Regalia consistently adopted in our Constitutions.

Cario has been modified or superseded by 1935, 1973 and 1987 Constitutions. Carios claim only limited to land ownership, not natural resources or aerial and cosmic space.

PUNO

Land is owned by IPs in limited form.

Does not include right to alienate the same.

Ownership of A.D. entitles IPs to CADT, not Torrens title.

Not the same as co-ownership in civil law.

Not the same as corporate condominium rights.

Communal rights of all generations of IPs.

New concept of ownership recognized by Civil Code as source of law.

KAPUNAN

The phrase private but community property is merely descriptive of IPs concept of ownership as distinguished from that of Civil Code.

PANGANIBAN

Dilutes state authority over natural resources.

3.Section 6 in re: 3a & 3b

defines composition of A.D. and A.L.

(No comment on this particular provision.)

4. Section 7

Enumerates rights of IP over AD

PUNO

Constitutional

Rights of ownership in 7 (a) does not cover waters, minerals, coal, petroleum and other mineral oils, all forces of potential energy, fisheries, forest, or timber, wildlife, flora and fauna and all other natural resources in Section 2, Art. 12 of Constitution.

Consistent with Jura Regalia.

Section 7 (b) of IPRA merely refers to the right to manage natural resources, not right to own (mere stewardship).KAPUNAN

Does not bestow ownership over natural resources (similar to Puno).

Only projects IPs rights and welfare in relation to natural resources.

Concept of native title to natural resources, unlike native title to land, has not been recognized in R.P.

5.Section 8

enumerates rights of IPs over A.L.

(No comment on this particular provision.)

6. Section 57

priority rights of IPs in exploitation of natural resources within A.D.

PUNO

State with primary power to develop natural resources.

Cites 4 modes of control and supervision over resources:

-Direct state action

- Joint venture

- Small-scale utilization [IPRA, Section 7 (b)]

-Large-scale utilization [consistent with pars. 1 and 4, Section 2, Art. 12 of Constitution]

No right to give the IPs right to manage and conserve natural resources.

Consistent with Jura Regalia.

4 ways of large scale utilization:

-Direct State action

-Entry into agreement with IP (Priority Rights)

-Entry into agreement with a non-IP member

-Allow non-IP to participate in agreement with IP

7.Section 58

gives IPs responsibility to conserve A.D. for critical watershed, forest, etc

(No comment on this particular provision.)2) Procedural

1. Sections 51 to 53

Process of delineation and recognition of A.D.

NCIPs sole authority to delineate A.D./A.L.

KAPUNAN

No violation of due process

2.Section 52 [i]

Termination of jurisdiction of DENR, DILG, DOJ and NDC upon NCIP certification that a particular area is A.D.

KAPUNAN

NCIP jurisdiction over A.D. extends only to lands, not natural resources.

Jurisdiction of other agencies over natural resources within A.D. is not terminated.

3. Section 63

Application of custom first with respect to property rights

KAPUNAN

No violation of due process4. Section 65

Customary law to be used to resolve disputes involving IPs

KAPUNAN

Constitutional

Use of customary law is not absolute but only primacy of use

If non-IP is involved, use of customary law is not required.5.Section 66

NCIP jurisdiction over all claims re: rights of IPs

(No comment on this particular provision.)

6. Rule VII, Part II, Section of NCIP, Adm. Order No.1, Series of 1998

Administrative relationship of NCIP to O.P. is lateral but autonomous for purposes of policy and program coordination

KAPUNAN

NCIP not removed from Presidents control and supervision.

Exercises administrative, quasi-legislative and quasi- judicial powers, therefore, it is characterized as an independent agency.

ILO 169 v. IPRA

ILO 169

The only international legal instrument for the protection of Indigenous and Tribal Peoples that is open for ratification by states. As of date, ILO 169 has been ratified by 20 countries. Not yet ratified by the Philippines.

In 1997, the Philippines, however, has enacted IPRA, which substantially adopts the principles and provisions of ILO 169 .

The Convention does not define who are indigenous and tribal peoples. It takes a practical approach and only provides criteria for describing the peoples it aims to protect. Self-identification is considered as a fundamental criterion for the identification of indigenous and tribal peoples, along with the criteria outlined below.

Elements of tribal peoples include:

Traditional life styles;

Culture and way of life different from the other segments of the national population, e.g. in their ways of making a living, language, customs, etc.; and

Own social organization and traditional customs and laws.

Elements of indigenous peoples include:

Traditional life styles;

Culture and way of life different from the other segments of the national population, e.g. in their ways of making a living, language, customs, etc.;

Own social organization and political institutions; and

Living in historical continuity in a certain area, or before others invaded or came to the area.A comparative analysis of ILO 169 and IPRA shows that these two instruments are consistent with each other.

There are, however, some provisions of ILO 169 which are not found in or are not sufficiently addressed by IPRA.

On the other hand, since IPRA specifically applies to the Philippine context, it also has provisions not embodied in ILO 169.

Issues addressed by ILO 169:

- government responsibility (Article 2, 7 and 33); - human rights and enforcement mechanism (Article 3, 11 and 12); - special measures (Article 4 and 20.1); - consultation and participation (Article 6, 7.1 and 16.2);- development (Article 7 and 2.2); - cultural integrity and customary laws (Article 8, 9, 10 and 12); - the rights of ownership and possession over the lands they traditionally occupy, or have had access to (Article 14);

the rights to natural resources including the right to participate in the use, management and conservation of such resources (Article 15 and 7.4);- displacement (Article 16);

- land alienation (Article 17);

- unauthorized intrusions (Article 17.3, and 18);

- agrarian programs (Article 19);

- recruitment and conditions of employment (Article 20);

- vocational training, handicrafts and rural industries (Articles 21 to 23);

- social security and health (Articles 24 and 25);

- education (Articles 26 to 31);

- cross-border co-operation (Article 32); and

- administration and implementation mechanism (Article 33)Guiding Principles:

IPRA adopts the general principles of ILO 169, but with more specific and stronger emphasis.

Under IPRA, the Philippines recognizes the values, practices and institutions of the IPs.

It also has the duty to take measures, with the participation of the IPs concerned, to protect their rights and guarantee respect for their cultural integrity.

Who are Tribal and Indigenous People?

IPRAILO 169

Adopts the general description of tribal and indigenous peoples under ILO 169, with slight modifications, however, as applied to IPs in the Philippine context.

Allows for self-ascription and ascription by others.

Deviates from ILO 169 by providing that the ascription may likewise be made by others.

Another deviation by IPRA is its inclusion as indigenous peoples those who are historically differentiated from the majority of Filipinos.

Does not define but gives a description of the tribal and indigenous peoples which it covers.

Self-ascription is equivalent to self-identification under ILO 169.

Government Responsibility

The provisions on state responsibility to protect and promote the rights of tribal and indigenous peoples under ILO 169 are effectively incorporated in IPRA.

IPRAILO 169

The primary government agency is the National Commission on Indigenous Cultural Communities /Indigenous Peoples (NCIP).Stat duty to ensure its implementation, with participation of the tribal and Indigenous people, through coordinated and systematic action.

May create specific agency/ies focused solely on tribal and indigenous peoples and the issues concerning them, which should be provided with the necessary resources, will coordinate and oversee all efforts affecting tribal and indigenous peoples.

Human Rights

IPRAILO 169

Affirm the human rights and fundamental freedoms of tribal and indigenous peoples on the basis of equality and non-discrimination.

Various Supreme Court decisions invoking human rights instruments, the trend has been to use the doctrines of incorporation and transformation interchangeably to apply human rights principles to specific cases.

Prohibition of the use of force and coercion against tribal and indigenous peoples and the exaction of compulsory personal services are given special emphasis

Tribal and indigenous peoples whose rights are abused should be able to seek redress through legal proceedings.

Thus, ILO 169, in so far as it already contains customary law rules on human rights as applied to indigenous peoples, could also be invoked as a source of human rights principles notwithstanding the current state of non-ratification by the Philippine Government of ILO 169.

Special Measures

IPRAILO 169

Adopts the provisions on special measures under ILO 169 for the effective protection of the persons, institutions, property, labour, cultures and environment of the tribal and indigenous peoples concerned, with special emphasis on recruitment and conditions of employment. Also provides for special measures to control, develop and protect indigenous knowledge systems and practices.

Emphasis on the basic services as objects of special measures apart from work-related and indigenous knowledge systems support measures. Measures safeguarding the environment are also found in IPRA in relation to indigenous knowledge systems and practices.

Consultation and ParticipationThese principles empower the IPs by providing them bargaining and negotiating power in the entire process before they decide whether or not to give their free and informed consent to the said measure or programme.

IPRAILO 169

Emphasize the right of IPs to be consulted and to participate at all levels of decision-making, through appropriate procedures and their authorized representatives, regarding legislative or administrative measures or programmes affecting them.

The free and prior informed consent of IPs is needed before the implementation of any action or measure which may affect the IPs.

Development

IPRA reflects the tenor of ILO 169 on economic self-determination of IPs.

The right to development of ICCs/IPs is incorporated within their right to self-governance and empowerment.

The right to development is the right of all people to change their culture or lifestyle.

2 aspects of development:

1) Right to choose - IPs are granted the right to decide for themselves if they wish to continue to live in their traditional manner or to adopt the modern norms. 2) Right to determine/control the pace of their developmentCultural Integrity and Customary Laws

IPRAILO 169

Recognize the right of tribal and indigenous peoples to their own customs and customary law.

Incorporates the twin standards of ILO 169 in the use of indigenous penal and justice systems. Unique as a special penal law in that it authorizes the imposition of punishment in accordance with the customary laws of the ICCs/IPs concerned without specifying what these penalties are.Does impose limitations as to the penalties that the IPs may impose based on their respective customary laws. (Must not be cruel, degrading or inhuman; nor may the death penalty or excessive fines be imposed.)

The offended party has the option to prosecute the offender under existing national laws in lieu of customary laws. The offender is likewise liable for civil damages arising from such unlawful acts.

Their customary laws should be considered when applying national laws.

Compatibility with the national legal system and internationally recognized human rights are effective conditions for applicability of customary laws.

Concept of LandBoth ILO 169 and IPRA recognize that land is an integral and essential aspect of the lives and cultural integrity of tribal and indigenous peoples.

Both instruments embody the individual and collective aspects of the concept of land and its ownership.

IPRAILO 169

Has concrete legal categorization of the land rights of indigenous peoples.Concept of land encompasses the total environment of the areas which either the whole community or individual members occupy and use.

Right of Ownership over land

Both ILO 169 and IPRA recognize the collective and individual aspect of the right of ownership and possession of the IPs over the lands they traditionally occupy.

Since these lands form an integral part of the lives and culture of the IPs and thus essential for their survival, the government is mandated undertake measures to protect their rights of ownership and possession over the lands.

IPRAILO 169

Provides for a process of delineation or identification of the IPs ancestral land and ancestral domains for the purpose of issuance of titles of ownership of IPs over these lands.Mandates governments to make sure that there are procedures and mechanisms in place to resolve any land disputes.

Right over Natural Resources

IPRAILO 169

IPs shall have the priority rights in the utilization of natural resources and not absolute ownership thereof.

Priority rights are not exclusive and non-indigenous peoples may also utilize natural resources within the ancestral domains upon authority granted by the proper governmental agency. Always subject to compliance by the IPs with existing laws, such as Republic Act No. 7076 (Small-Scale Mining Act of 1991) and Republic Act No. 7942 (Philippine Mining Act) since it is not they but the State, which owns these resources.

Grant of priority rights does not preclude the State from undertaking activities, or entering into co-production, joint venture or production-sharing agreements with private entities, to utilize the natural resources which may be located within the ancestral domains.The State retains ownership of mineral or sub-surface resources or rights.

The Mining Act, however, does take into account the IPs. A mining agreement is subject to the rights of the IPs to their lands.

In addition, the Mining Act prohibits the opening of the ancestral land to mining operations without prior consent of the IPs. In case consent is obtained, the law provides that royalty payments must be paid.

Displacement

Under both ILO 169 and IPRA, the right to stay in indigenous territories is not absolute.

Moreover, IPs have a right to stay in their territories and not to be removed therefrom without their free and informed consent.

IPs, however, may be removed from such areas through eminent domain upon payment of just compensation.

In addition, IPs have the right to return as soon as the grounds for relocation cease to exist.

Furthermore, whenever the right to return to traditional lands is no longer possible, there must be payment of compensation.

The government also has the duty to provide lands of quality and legal status at least equal to that of the land previously occupied by indigenous peoples for their present needs and future development.

Unauthorized Intrusion

IPRA adopts the provisions of ILO 169 with the inclusion of the right to regulate entry of migrant into the domains.

The consequences of having intruded into indigenous lands, however, may give rise to the problem of choice of applicable law whenever customary practice allows the imposition of penalties on intrusion into indigenous lands.

It is sufficient compliance with ILO 169 that IPRA has a provision on effective penalties for intrusion.

Recruitment and Conditions of Employment

Both ILO 169 and IPRA extends to IPs the same employment rights, opportunities, basic services, educational and other rights and privileges available to every member of society. It further accords the IPs the right to be free from any form of discrimination, with respect to recruitment and conditions of employment and penalizes any discriminatory acts against IPs in terms of employment.This is to ensure that IPs enjoy equal opportunities for admission to employment, medical and social assistance, safety as well as other occupationally-related benefits.

IPs must be informed of their rights under existing labor legislation and of means available to them for redress.

Vocational Training, Handicrafts and Rural Industries

IPRAILO 169

With regard to vocational training, ILO 169 is more specific and elaborate in the type of measures and programs in comparison with IPRA.

ILO 169 provides that any special training programmes shall be based on the economic environment, social and cultural conditions and practical needs of the peoples concerned.

`Since the goal is for the IPs to gradually assume responsibility over the training programme, they must be consulted and have participation in its formulation to implementation and evaluation.

The government shall promote and strengthen the traditional economies and activities of IPs with the participation of the people concerned.

Social Security and Health

IPRAILO 169

Substantially reiterates ILO 169, but with more emphasis on women. Government mandate to ensure that IPs has equal access to adequate health services and social security benefits without discrimination.

Health services shall also be community-based with the active participation of the IPs concerned.

IPs should also be given opportunity to gain training in the health profession.

Education and Means of Communication

The provisions of ILO 169 on education is substantially reiterated in IPRA with special emphasis to women, children and the youth under the latter.

IPs must be given equal opportunity to acquire education in the existing formal system.

IPs also have the right to establish their own educational system and use their indigenous language.

IPRAILO 169

Echoes this provision and in addition directs the State to take effective measures, arrived at in consultation with the ICCs/IPs, to eliminate cultural prejudice and promote tolerance and understanding.

Member States are obliged to undertake measures to educate their own nationals to eradicate prejudices against IPs.

These measures are specifically aimed at correcting text books and educational materials to provide a fair, accurate and informative portrayal of the indigenous society and cultures

These effective measures may be in the form of laws penalizing discrimination or information dissemination through media promoting tolerance.

In addition, these educational programmes and services provided by the State must incorporate indigenous histories, knowledge and technologies, value systems and further social, economic and cultural aspirations.

Administration

IPRAILO 169

National Commission on Indigenous Cultural Communities /Indigenous Peoples (NCIP) is the primary government agency responsible for the formulation and implementation of policies, plans and programs to promote and protect the rights and well-being of the ICCs/IPs and the recognition of their ancestral domain as well as their rights thereto. The general mandate of the NCIP is that it shall protect and promote the interest and well-being of the ICCs/IPs with due regard to their beliefs, customs and traditions and institutions.

The NCIP serves as the primary agency through which ICCs/IPs can seek government assistance and as the medium through which such assistance may be extended.

The NCIP is tasked to formulate and implement policies, plans, programs and projects for economic, social, political and cultural development of the ICCs/IPs and to monitor the implementation thereof.

It may review and assess the conditions of ICCs/IPs including existing laws and policies pertinent thereto and to propose relevant laws and policies to address their role in national development.

Specific Differences between the provisions of IPRA and ILO 169

IPRAILO 169

No cross-border contacts and communications provision.

Gives special emphasis on indigenous women and children and youth.

It also states that particular attention should be paid to the rights and special needs of the elderly and differently-abled indigenous persons.

IPRA also provides for IP rights during armed conflict.

IPRA also recognizes the full ownership, control and protection of the cultural and intellectual rights of ICCs/IPs, often termed as Indigenous Knowledge Systems and Practices.

IPRA provides for penalties for violation of its certain provisions.Has provision on cross-border contacts and communications. (tribal and indigenous peoples, who share the same cultural identity, have become separated by national boundaries and now live in different countries.) Governments to ensure free communication and movement.

No equivalent provisions.

Is there a need to ratify ILO 169?

While most of the provisions of ILO 169 can be found in IPRA, ratification of the said Convention is still needed in order to make the international minimum standards set therein binding on the Philippine government

The ILO 169 standards will serve as parameters in assessing the implementation of laws and policies for IPs.The ratification will also strengthen the governments commitment to its duty of respect, promotion and protection of the rights of IPs.

Thus, it is strongly recommended that the Philippine government should ratify ILO 169 in order to complement and supplement IPRA.

The ILO 169 will strengthen the promotion and protection of IP rights by addressing in greater depth and emphasis the areas which the IPRA does not sufficiently cover.

Moreover, the ratification of ILO 169 will provide for the IPs an additional forum at the international level, where resort can be made in cases of violation of their rights.After ratifying ILO 169, the government will be required to report regularly to the ILO on its implementation, indicating not only whether national laws are in conformity with the Convention in question, but also informing the ILO regarding what has been done to make sure the Convention has had an impact on a practical level.

When the government fail to fulfill its obligations and meet the ILO standards, complaints can be made to the ILO Governing Body.

Furthermore, ratification of ILO 169 will pave the way for greater dialogue and cooperation between the government and ILO.

Widespread ratification of ILO 169 will make it harder for governments all over the world to ignore tribal peoples rights and emphasize that the protection of tribal populations is a subject of international concern.

Ratification of ILO 169 would serve to guide development policy and assistance and to recognize its positive contribution to international standards for the realization of universal human rights.

Shariah Islamic Law

SHARI'AH - is an Arabic word which means

the path to be followed.

It literally means 'the way to a watering place'.

Muslims believe Shari'ah is God's law, but they differ as to what exactly it entails. Different countries, societies and cultures have varying interpretations of Shari'ah as well.

Shari'ah deals with many topics addressed by secular law, including crime, politics, and economics as well as personal matters such as hygiene, prayer, diet and fasting.

Where it has official status, Shari'ah is applied by Islamic judges (qadis).

Imam - varying responsibilities depending on the interpretation of the Shari'ah;

- is commonly used to refer to the leader of communal prayers, the imam may also be a scholar, religious leader, or political leader.

Origins

The Shari'ah, originated from the direct commandment of Allah and the traditions gathered from the life of Prophet Muhammad.

However, there is the provision or power given to human beings in order to interpret and expand the Divine commandments by means of analogical deductions and through other processes.

Pre-Islamic Arabia - bonds of common ancestry formed the basis for tribal association.

Islam - brought the tribes together under a single religion.

not just a religion, but also a complete way of life, a new common basis of law and personal behavior which constituted the Shari'ah began to take shape.

Shari'ahs fundamental changes

Reigns of Caliphs Aby Bakr (632-34) and Umar (63444) - many questions were brought to the attention of Prophet Muhammad's closest companions for consultation.

Reign of Muawiya b.Ab Sufiyan ibn Harb, ca. 662 CE, - urban transformation of islam, raising questions not originally covered by Islamic law. changes in Islamic society took place, ongoing role in developing sharia, which branches out into:

FIQH (Jurisprudence): formative period stretches to early muslim communities. Jurists concerned with pragmatic issues of authority and teaching. QANUN (rules and regulations) respectively.Muhammaad Idris ash-Shafi'i (767-820) Early Muslim jurist

- Progress in theory happened

- laid down the basic principles of Islamic jurisprudence in his book Al-Risala. Al-Risala: Details the four roots of law (Quran, Sunnah, ijma, and qiyas) while specifying that the primary Islamic texts (the Quran and the Sunnah) be understood according to objective rules of interpretation derived from careful study of the Arabic language.

A number of important legal concepts and institutions were developed by Islamic jurists during the classical period of Islam, known as the Islamic Golden Age, dated from the 7th to 13th centuries.

Categories of Human Behavior

Fiqh classifies behavior into the following types or grades where every human action belongs:

1. FARD (obligatory)

2. MUATABB (recommended)

3. MUBAH (neutral),

4. MAKRUH (discouraged)

5. HARAM (forbidden).

The recommended, neutral and discouraged categories are drawn largely from accounts of the life of the Prophet Muhammad.

PRIMARY SOURCES

QURAN- Holy Book

Main source of the Shari'ah. The scholars of the Qur'an have enumerated number of verses of legal injunctions, but the number is approximately considered to be 500.

Covers: marriage, polygamy, dower, maintenance, rights and obligation, divorce, and various modes of dissolution of marriage, the period of retreat after divorce, fosterage, contracts, loans, weights and measure, fosterage, contracts, loans, removal of injury, oaths and vows, punishments for crime, wills and inheritance

SUNNAH - Practices of the Prophet Muhammad

- recommended as an example from the life and sayings of Muhammad. These categories form the basis for proper behavior in matters such as courtesy and manners, interpersonal relations, generosity, personal habits and hygiene.

SECONDARY SOURCES

IJMA - Consensus of the Religious Scholars (Ulamah)

QIYAS - Analogical deductions from the Quran and Sunnah

In topics where the Quran and the Sunnah are silent, Muslim jurists arrive at conclusions by other means such as Ijma and Qiyas.

The conclusions arrived at with the aid of these additional tools constitute a wider array of laws that Shari'ah and is called FIQH (jurisprudence).

SUBSIDIARY SOURCES

ISTIHSAN- Juristic Preference

DHARA'I - The Means

MASLAHAH The public interest

QAWL AL-SAHABI The Opinion of a Companion

SHARI'AI' MAN QABLANA the revealed laws preceding the Shari'ah

ISTISHAB Presumption of Continuity

URF - Local Customs

*MANTIQ reasoning Logic

* AQL - Intellect

2 Major Sects of Muslims: Sunni or Shia

Within these sects, there are different schools of religious study and scholarship. The schools within each sect have common characteristics, although each differs in its details.Sunni Muslims - In addition to the Quran and Sunnah, Sunni Muslims also add the (consensus) IJMA of Prophet Muhammad's companions known as SAHABA and Islamic jurists ULAMA on certain issues.

In situations where no concrete rule exists in the sources, law scholars use QIYAS various forms of reasoning, including analogy, to derive law from the essence of divine principles and preceding rulings. Other secondary sources are also used.

Major Schools of Thought (Madhhab)

HANAFI Turkey, Central Asia, India, Iran, Afganistan, Jordan, China, Egypt

SHAFI'I Yemen, Somalia, Ethiopia, Southeast Asia, Maldives, Jordan, India, Egypt, S. Iran

MALIKI North & West Africa, Kuwait, UAE, Bahrain

HANBALI Saudi Arabia, Qatar

They share most of their rulings, but differ on particular hadiths (sayings of the Prophet) they accept as authentic and the weight they give to analogy or reason (qiyas) in deciding difficulties.

Shia Muslims - also extend the sources with FIQH (JURISPRUDENCE), and in some aspects reject analogy.

A recurring theme in Shi'a jurisprudence is LOGIC (MANTIQ), something most Shi'a believe employ and value to a higher degree than most Sunnis do. They do not view logic as a third source for laws, rather a way to see if the derived work is compatible with the Quran and Sunnah.

In Imami-Shi'i law, the sources of law (usul al-fiqh) are the Quran, anecdotes of Muhammad's practices and those of the TWELVE IMAMS and the INTELLECT ('AQL).

Most Shi'a Muslims follow the JAFARI school of thought.

JA'FARI Iran, Iraq, Azerbaijan, Lebanon, Afghanistan, Bahrain, Pakistan, India, and Saudi Arabia. It uses AQL (intellect) instead of qiyas.

MAIN BRANCHES OF SHARIAH

1. IBADAH acts of worship

2. MU'AMALAT contracts and transactions

3. ADAB morals and manners

4. I'TIQADAT beliefs

5. 'UQUBAT punishmentsLegal and Court Processes

Shari'ah judicial proceedings have significant differences with other legal traditions.

Shari'ah courts traditionally do not rely on lawyers:

- Plaitiffs and defendants represent themselves. - Trials are conducted solely by the judge, and there is no jury system.

- no pre-trial discovery process, and no cross examination of witnesses.

Shari'ah judges' verdicts do not set binding precedents under the principle of stare decisis. Shari'ah does not utilize formally codified statutes.

- relies on jurists' manuals and collections of non-binding legal opinions of ulama, particularly a mufti, or hadiths / sunnahs, these can be made binding for a particular case at the discretion of a judge.

The RULES OF EVIDENCE: distinctive custom of prioritizing oral testimony. A confession, an oath, or the oral testimony of a witness are the main evidence admissible in a hudud case, written evidence is only admissible when deemed reliable by the judge, i.e., notaries.

In some countries, sharia courts, simple rules of evidence, and absence of appeals courts, prosecutors, cross examination, complex documentary evidence and discovery proceedings, circumstantial evidence, forensics, case law, standardized codes, exclusionary rules, and most of the other infrastructure of civil and common law court systems, have as a result, comparatively informal and streamlined proceedings.

Other systems, such as those of Iran, Iraq, and Pakistan, use a civil Shari'a code, and do have defense attorneys, prosecutors, and appeals courts.

They also have a supreme court, and a definite civil law style penal code: still heavily based on the informality and simplicity of a "pure" sharia court, and trials often still take a matter of hours or sometimes days.

CATEGORIES of CRIMES

QISAS - involves personal injury

HUDUD - whose penalties were laid down by the Quran, and are considered to be "claims against God

TAZIR - all other offenses not mentioned ; claim of the state" and it receives a discretionary sentence

Economic Development and Corporate Law: no native tradition of coporate law.- Recognizes only natural persons

- No developed concept of legal persons, or corporations, i.e., a legal entity that limits and liabilities of its managers, shareholders, and employees; exists beyond the lifetimes of its founders; and that can own assets, sign contracts, and appear in court through representatives.

SPECTRUM OF MUSLIM LEGAL SYSTEMS

The legal systems in 21st century Muslim majority states can be classified as follows:

I. Shari'ah in the Secular Muslim StatesMALI, KAZAKHSTAN and TURKEY: declared secular. Religious interference in state affairs, law and politics is prohibited. In these Muslim countries, as well as the secular West, the role of Sharia is limited to personal and family matters.

The NIGERIAN legal system is based on ENGLISH COMMON LAW and the constitution guarantees freedom of religion and separation of church and State. However eleven northern states have adopted sharia law for those who practice the Muslim religion.

INDONESIA, BANGLADESH, PAKISTAN have largely secular constitutions and laws, with only a few Islamic law provisions in family law.

II. Muslim States with Blended Sources of LawMuslim countries including PAKISTAN, INDONESIA, AFGANISTAN, EGYPT, SUDAN, MOROCCO and MALAYSIA have legal systems strongly influenced by Sharia, but also cede ultimate authority to their constitutions and the rule of law. These countries conduct democratic elections, although some are also under the influence of authoritarian leaders.

In these countries, politicians and jurists make law, rather than religious scholars. Most of these countries have modernized their laws and now have legal systems with significant differences when compared to classical Sharia.

III. Muslim States Using Classical Shari'ah

SAUDI ARABIA and some of the Gulf states do not have constitutions or legislatures. Their rulers have limited authority to change laws, since they are based on sharia as it is interpreted by their religious scholars.

IRAN shares some of these characteristics, but also has a parliament that legislates in a manner consistent with sharia.

Laws derived from Shari'ah are also applied in AFGANISTAN, LIBYA and SUDAN.NON-MUSLIM STATES

INDIA, PHILIPPINES are the only countries in the world that have separate Muslim civil laws, wholly based on sharia.

In India, Muslim civil laws are framed by the Muslim Personal Law Board while, in the Philippines, it is framed by the Code of Muslim Personal Laws. However, the criminal laws in both the countries are uniform.

UNITED KINGDOM government had "quietly sanctioned" the recognition of sharia courts. This refers to situations where both sides in a legal dispute freely choose a sharia court as a binding arbitrator rather than taking a matter before the official courts.

MIDDLE EAST and NORTH AFRICA maintain a dual system of secular courts and religious courts, in which the religious courts mainly regulate marriage and inheritance.

Shari'ah law is officially recognised by the justice system in ISRAEL in matters of personal status of Muslims if they choose a sharia court, e.g., marriage, divorce, guardianship. Judges' salaries are paid by the state.

LEBANON also incorporates sharia law for Muslims in family matters.

States in Northern NIGERIA have reintroduced Shari'ah and reintroduced harsh punishments without respecting the much tougher rules of evidence and testimony.APPLICATION OF SHARIAH in the PHILIPPINES

Presidential Decree 1083

Codified Muslim Personal Laws in the Philippines

Composed of 190 articles spread over five (5) books.

The Code is not the Shari'ah but a piece of Philippine Legislation. While it is a law enacted under Philippine Legal system, it contains provisions of Islamic law on personal and family relations.

Notes on the movie, A Civil Action: (taken from http://home.comcast.net/~dkennedy56/woburn_realstory.html)

Civil reforms

William Thilly, an MIT scientist who's studying the relationship between chemical exposure and chromosomal damage, once told a Woburn citizens' group why he would never want to testify in a toxic-waste case such as the one brought by Jan Schlichtmann. "For every PhD," he quipped, "there is an equal and opposite anti-PhD."

In fact, the adversarial system of justice is ill-suited to deciding the kinds of highly complex issues in cases such as the Woburn toxic-waste suit. Each legal team -- the families', W.R. Grace's, and Beatrice's -- hired highly credentialed scientists who presented mind-bogglingly technical testimony about groundwater flow, pressure gradients, and even, for one memorably arcane afternoon, how tetrachloroethylene biodegrades into vinyl chloride. After many months of this, six ordinary men and women were herded into a little room and forced to decide whose theory was the most convincing. Thus was the fatally confused verdict virtually guaranteed.

After sitting through all but five of the 78 days of trial, I have some qualifications for observing what went wrong, and how similar trials could be made better. What follows are a few modest proposals.

He, the jury: The judge, rather than lay jurors, should be the sole arbiter of facts in a case as complex and technical as Woburn's. The only role for a jury in such a case should be to determine the level of damages. Granted, Judge Walter Jay Skinner was no more technically adept than the postal clerks and retired nurses who made up the jury. But if he had had to make the final decision himself, the families -- and, ultimately, the public -- would have been spared the travesty of the verdict against Grace having to be thrown out because the jurors didn't understand what they were doing.

Just the facts: Once a judge has ruled that a lawsuit meets some minimal standard for moving forward, the court itself, rather than the lawyers, should investigate the facts. Admittedly, this would present some problems, mainly over who would pay for an expensive, drawn-out investigation. But the benefits of a neutral, objective investigation headed by a court-appointed master would far outweigh any possible objections. The parties to the suit, of course, would be able to challenge the court's findings of fact, and the judge would be required to take those challenges into account.

Government work: Early in the Woburn trial, Schlichtmann attempted to introduce data compiled by the US Environmental Protection Agency. He was unsuccessful, because the EPA had a court-approved exemption from having to testify in private lawsuits. (Schlichtmann gets some revenge-by-proxy in the movie: the screenwriters have rewritten history by claiming that the EPA got involved only after Schlichtmann's suit lit a fire under the agency.) As EPA officials put it during the trial, take away their exemption and they would end up spending more time testifying than working. But there should be some way of balancing the concerns of government agencies with the need for unbiased, authoritative information. In fact, government agencies clearly identified Beatrice's 15-acre property as a source of contamination to Wells G and H, the very issue that Schlichtmann's hydrogeological consultant, George Pinder, botched so badly. Schlichtmann still would have had to show that the property's previous owner, the Riley tannery, was responsible for the contamination. But at least the entire case wouldn't have come undone because of one witness from hell.

Based on Balanes lecture and A Primer on the Civil Law System, available at HYPERLINK "http://www.fjc.gov/public/pdf.nsf/lookup/CivilLaw.pdf/$file/CivilLaw.pdf" http://www.fjc.gov/public/pdf.nsf/lookup/CivilLaw.pdf/$file/CivilLaw.pdf. Also based on 2 readings on Civil and Common Law.

Taken from Sir Seds Powerpoint on IPRA.

Digest taken from Howard Chan online.

Again, taken from Sir Seds Powerpoint presentation.

Taken From Shans Powerpoint presentation.

Starr Weigand 2012

Comparative Law | Balane/Candelaria/Gulapa