August 16 Islamic Law class notes

Property regime
Verse cited:
-RATIONALE for a regime of Separation of Property
-Institution of Sakah (?) (giving of donations for charity) - one of the means for distributing property

-land code of Ottoman Empire (in Turkey?) - based on Shari'a (as opposed to other land laws of other Muslim countries which are civil law based)
Why late codification (around 1858) when Shari'a was already established long ago? Time of Ottoman, Islamic civilization was already in the decline. The late codification of laws based on Shari'a: All properties belong to God, men are only stewards of God.
Ottomans are Turks, not anymore Arabs.
-land laws of Islam are more socialist in nature...

Islamic reformist: because of the civil law influence, some Muslims want to return to the fundamental Islamic teachings from the date of the revelation to Mohammad...within the sphere of atmosphere of Mohammad's time

Why no codification of land laws: Amanat (trust) - the concept of property in Islam
-all properties are owned by God and men only hold these in trust
Trustor: God
Trustee: man
Beneficiary: mankind

Mal (property)
2 meanings of mal:
• All things capacble of being earned
• All things capable of being subject to legal relations or mal mutaqawwin
Excluded: alcohol, pigs other forbidden things (can also be property but under first classification, not under mal mutaqawwin. Cannot be subjected to legal relations. If they are transacted, the transaction is void)

Treatment of property: 2: 188
-do not consume one another's wealth unjustly
...

4: 2
Give to orphans their properties...
(protection of orphan's properties)

As to acquisition: the means of acquisition of property should be LEGAL
Land ownership: all lands are owned by God
-the heavens and the earth, God has dominion over it

Category of land
Mil - owned by God
Miri - lands that are to be distributed and are now used by the people (concept of usufruct applicable)
Communally owned lands - similar to ancestral domain (in the Code of Muslim Personal laws - mentioned as Communal property - A173)
Religious property - land for religious purposes

As compared to other laws
ROMAN LAW
-use property for legal purposes
-2 classification of property

CIVIL LAW
-Property is aggregate of rights
-classification of property: marami!
-similar to Amanat, State owns property and only taken care of by the people (recognition of a greater owner of property) - in Islamic states, the Caliph is the administrator of lands in representation of God...Steward for God
-there are also limitations to the property one can own
-Real and personal property
-Highest form of property right: ownership
-different modes of acquiring ownership
-property regimes governing marriage

Family Code
Donations by reason of Marriage
-allows donation propter nuptias of future property
X: donations made in the marriage settlements

• What about in Islamic marriages, what if the marriage push through?
If the donation, under the Muslim Code, is given to the couple as a future husband and wife, and the marriage is not pushed through, the donation can no longer be enforced
Under the Family Code, it is still considered valid, and they should go to the courts just to invalidate it!

Property Regime
Under Islamic Law: Prenuptial agreement? But in default, separation of property. If other modes of property regime, Family Code would come in suppletorily
In Family Code: Prenuptial agreement. Separation of property shall only take place after judicial order of separation of property
Only limitation to prenuptial agreement: Art 1306, Civil Code
If situation not found in FC or CMPL, custom applies

CMPL FC
Art 37. How governed Art 74
1. Contract 1. Marriage settlement before marriage
2. CMPL 2. Code
3. Custom 3. Local customs
Art 38. default property regime: complete separation of propert Art 75. Absolute community of property
Stipulations in marriage settlements Art 81. void if marriage does not take place... (sorry naguluhan, please see the provision na lang)
Art 39. Void if depend in marriage, if marriage not push through

ACP
Art 88-104, FC
-default regime in FC
-before: CPG

2 reasons for adopting ACP
1. Established customs
2. Unity of the family

-regime not waivable unless judicial separation of property
What constitutes Community property
What excluded
Charges upon and obligations of ACP

-disposition of ACP: in case of disagreement, husband's decision prevails

Causes for terminating ACP
Effects of termination of ACP
Process of liquidation of ACP

CPG
-default prior to FC, Art 105 to 133
Exclusive property

Bottomline: in FC, husband's decision over administration of property governs, but wife can assail it through court process w/n 5 years
-Effects of dissolution

Property regime of unions w/o Marriage
Art 147: unions that can be validated
-presume co-ownership
Art 148: adulterous unions

COMPLETE SEPARATION OF PROPERTY
NCC, FC CMPL
Art 143-146 Art 37-44
-may be partial or total, may include present or future property (Default regime)
Why? 4:32 and 4:17

Ante-nuptial property
Art40, CMPL
Wife shall not lose ownership
Can dispose of the same even w/o consent of husband
Can sue and be sued independently of husband with regards her own property

Art 41. EXCLUSIVE PROPERTY OF EACH SPOUSE
Husband: capital
Wife: paraphernal
-wife cannot accept gifts from outside the prohibited decrees of marriage; can accept provided it's with the consent of the husband
Note: includes (d) Dower (mahr) of the wife and nuptial gifts to each spouse
• WIFE owns the mahr exclusively!

Art 43. Household property
-definition
-presumption of ownership to the spouse who customarily uses the property

Art 44. Right to sue and be sued
Note: number 4: if litigation concerns the exclusive property of husband
-can only concern the property if the administration of the property now pertains to the wife
-property of wife would not beheld liable


So difference of separation of property under FC and CMPL:
As to family expenses.
FC: borne proportionately by both spouses
CMPL: Only husband bears expenses
As to liability of creditors
FC: solidarily liable
CMPL: only husband liable
As to right to be sued and to sue
FC: should be sued jointly
CMPL: Can be sued separately

DIVORCE
GR: not allowed in the Philippines
x: MUSLIM divorces
Foreign divorces

Art. 14, CMPL
1. Social contract between husband and wife
2. Social institution taken care of by the society, foundation of society

Divorce, art 45
-Formal dissolution of the marriage bond
-Granted only after all means of reconciliation is resorted to

-most hateful to Allah
REASONS:
-by virtue of this, the family is destroyed
-contrary to the laws of nature
-gives mortal blow to the family

But why allowed:
Recognizes the reality that certain marriages can no longer be reconciled
If keep them together, they would only grow to hate each other more
Become more uncomfortable with each other: like putting together persons as if they had committed a crime
"Marriage is meaningless if there is no spark of love between the husband and the wife" - Jainal Rasul
-only possible when it would be the better option, and after all the safeguards are resorted to:
1. Idda
Purposes:
1) Bring about reconciliation
2) To avoid confusion of issues
-idda changes dependent on the basis of divorce
2. Exhaustion of all efforts to reconciliate: helped by well-meaning relatives
Why well-meaning relatives: interest in preservation of marriage; spouses would still feel that their issues/disputes are not made public (still confidential, private)
-allow divorce only after finding of irreparable breakdown of marriage and the relatives cannot do anything about it
-sir: there is nothing to prevent the parties from inviting marriage counsellors
Vs. Art 59, FC: no legal separation unless COURT has taken steps towards reconciliation...Reconciliation via marriage counsellors!

Right to divorce generally given to men
-objective ground: financial burden...
-subjective: men are the ones who accepts the women in marriage, so he is the one who can break the bonds + he is the one who pays the dowry

Classification of divorce
• By death of husband or wife
-not really divorce! More of automatic dissolution of marriage
-when wife dies, husband may immediately marry
-but when the husband dies, iddat should first expire
• By act of parties
○ By the Husband
-Talaq (repudiation)
Conditions
• Made under normal conditions (not drunk, angry, joking or coerced)
• Woman is repudiated during tuhr or clean-non-menstrual period
WHY: because if it is done during a non-menstrual period wherein the husband can have sex with wife, it means it is really serious. Minsan after sex, bati na.
• Husband, after talaq, will not have carnal knowledge of the wife thereafter
GROUNDS: none mentioned
PROCEDURE:
1. Muslim male shall file a written notice of talaq
2. Agama Arbitration Council shall be formed
LIMITATIONS:
Only on the 3rd time will the divorce be irrevocable. The first two instances, can marry again w/n Idda (but no need for another marriage ceremony). If after the Idda, should remarry (with all the requisites of marriage) (minor talaq). If after the third repudiation (GREATER talaq), the husband should first wait for another man to marry his wife in order to marry her again! It is as if the institution of marriage is reduced by the couple as something trivial!
-Ila
...continue next meeting...
○ By the Wife

July 19 Islamic Law Lecture Notes

Mahul article - application of laws
2 concepts: boo hanapin si Mahul
 *progress of Islamic law 1. Ijtihad (comes from the word Jahada, meaning exersion of one's outmost strenght) - from which Jihad (2 forms) was derived 
-it's through Ijtihad that Islamic law was made dynamic
-unchangeable basis of Islamic law is always the Holy Qa'ran and the Sunnah   (most of the legal rules are both in the same books)
-as time goes on, reinterpretation is needed. Ijtihad now deals with interpretation (outmost exertion of one's outmost intellectual faculties)
• Ijma (consensus of the judges/juries) & Qiyas (analogy)
>e.g. Intoxication: wine is prohibited in the Qran (Khamr). It follows, by virtue of analogy (Qiyas), that whatever comes from intoxicating drinks are prohibited
>but the modern jurist classified all of these as Ijtihad (general)
Under Ijtihad (names depends on Schools of Law):
• Istihsan: Equity - juristic equity (equity on the basis of the rulings of the judges based on the Q'aran and Sunnah)
-e.g. sales of future commodities:
• Civil law: allowed, provided it would come into existence and be delivered (must be time-bound), and there must be consent, consideration and identifiable object with particularity  - has to mention the specifics of the contract
• Islamic Law: generally prohibited because it can be a cause for an inequitous relationship - cause of conflict; but if necessary, can be allowed under Istihsan (resembles contract of hire)
e.g. You want somebody to sew clothes for you. The clothes are not yet in existence but you necessarily have to compensate the tailor even if the clothes are not yet in existence for reasons of equity (deposit is allowed)
• Istislah- anchored on public welfare and interest
• Istishab - rule of continuity (presumption of continuity)
• e.g. a person is presumed innocent unless proven guilty. Status of innocence presumed to pervail unless proven otherwise
*1258: Sacking of Bahgdad by the Mongols. Bahgdad was at that time the capital of the Calippe. With Bahgdad under Mongol control, the Calippe invalid, the jurist declared the closing of the doors of Ijtihad.  Meaning, the four Orthodox schools of law (Hanifa, Malik, Shafi'I, Hanbal) which, by the way, did not start out as schools, their rulings would stay - because new jurists cannot make new rulings
2. Taqlid (imitation)
-mere copying of the doctrines enunciated by the 4 schools of law
-the mode of jurisprudence became that of imitation since the closing of the 4 schools
After 1258, while doing Taqlid and no Neo Ijtihad (2 techniques) See page 7 of Mahul Artcle:
1. Takhayyar  /Tak -ha-yur/ - selection of rules from the different schools - select which rule to follow to apply to a particular problem
e.g. Matter of consent in Marriage
There are those who say that for a woman to get married under islamic law, there should always be a guardian who should give her away for marriage (but only insofar as Malik, Shafi'I laws are concerned. Hanbal school of law [far from Medina] gives more progressive interpretation - in RP, we belong to Shafi'i). In Hanifi, it is allowed when that woman already has a prior marriage + if there are no "friendly" guardians available for that woman…
…Mixed marriages (Muslim Man, Non Muslim woman): if you stick to Shafi'I, there can never be a marriage between them - especially if the guardians/parents do not consent. But if you use Takhayyar, they can interpret that the consent of a mere sibling permits the marriage, considered the consent
2. Talfiq /Tal-fik/- combination of different elements; resolve a problem by resorting to a combination of rules from different schools of law
• Usually referred to in the codes
3. Neo Ijtihad (1800s)
-started by the neo-revivalists
-not yet confirmed by body of jurists (because there is now no single body of jurists - the most suitable Ijma should come from body of jurists + accepted by the population - usually there's just an Ijma of a particular community)
e.g. Maranao Ijma once prohibited the wearing of perfumes on women (promulgated about 10 years ago): what the Muslim women do is that they are careful . But not all follow it
Report on Civil Capacity
Hermaphrodite: depends on the dominant biological functions
Intoxication: either aggravating or justifying
But under Islamic Law, it is considered a crime - always aggravating
As to injury of child based on injury on mother...

July 5 Islamic Law Notes

Comparative law
-method of harmonizing the different legal system in the country
RASUL
Is there any specific legal system in the Country?
-People are usually mistaken into thinking that comparative law is a set of law. But in fact it is a method of analyzing law.
-what would be a better term for Comparative law? Comparative LEGAL method/ology
-the reason we compare laws is we want to compare the differences in the different legal systems
Kinds of laws
1. Common law
2. Civil Law
3. Communist-Socialists
4. Islamic Law
*BADTRIP: NATAWAG AKO AT NAWAWALA ANG READINGS KO…:(
Do you agree with the classification?
-there may be other laws:
• Customary Law
• Example: in Sulu and Maguindanao, they have their own code - Sulu Code has been formally adopted by the Government of Sulu
• LOOK FOR THE LATEST SULU CODE: FIND IN THE BOOK OF NAJIB SALIBI?
What do you now call the legal system in our country?
*Ecclectric/hybrid/mixed/pluralistic  legal system (so far as family law is concerned)
What other laws may be made to a mixed legal system?
-Banking laws
-in Islamic Banks, no interest imposed on loans but it is considered as profit: the islamic Bank is considered a partner of your business, it has active participation in the business (unlike other commercial banks which would leave you alone right after the loan has been granted: regardless if you profit or not, you have to pay the loan and the interests imposed)
-Banks which are Shari'ah compliant entice Muslim investors (mostly Saudi Arabians) because they would now they are entering a lawful banking system.
-right now, we don't have a Shari'ah compliant banking system in the Philippines because the Islamic Banks still impose interests on loans. No one supervises the Islamic accounts
MAHUL Article
(read. Eto yata ung pinaphotocopy)
-boo
-concept of property
Sir wag mo na akong tawagin. Di ako nakapagbasa nung ibang articles :(
5 kinds of Shari'ah:
1. Worship (all acts of worship)
2. Service (Articles of faith- belief in 1 God, the angels)
3. Adab - Morality - social values, norms, personal etiquette - Muslims follow what the prophet Mohammad usually does. e.g. Always start with the right, use the right. Step right foot first, use right hand)
4. Transactions (Muammalah)
5. Punishments (Uqubah) - but not part of the Islamic law in RP
What are the chances of incorporating Islamic Banking laws in the Banking Laws of the Philippines? How to operationalize it in the Philippine Banking System:
-use PARTNERSHIP provisions in the Civil Code (because the relationship of the Islamic Bank and the borrowers is as partners, not borrower-lender relationship)
-the law of partnership is not being implemented up to now.
-so not really that difficult to adopt Islamic Law on Banking because it is similar to the rules of Partnership adopted in the Civil Code of the Philippines
-the Islamic bank would be the Capitalist partner, and the borrower would be the industrial partner
Rihan: islamic for Mortgage
-in the Code of Muslim Personal law, there is a mention of Islamic Mortgage
-Art175: Customary Contracts
-the provision takes you out of customary law. WHY: all transactions which impose interests are prohibited under Muslim Laws
• Islamic legal system has provisions which take care of the interests and welfare of the people
...Back to MAHUL
Qualifications of Acts (note the Arabic terms, pronounciation…)
1. Obligatory - Fardu/Wajib (?)
e.g. Acts of Worship, 5 day obligatory prayer, Fasting during Ramadan, giving taxes

Fard  /Far-du/ - more stringent category	Wajib
If you don't do it, you not only sin but also you are considered a non-believer	Well it is obligatory, if you don't do it you sin but you are still considered a Muslim

2. Recommend - Sunnah /Mustahab
e.g. prayers not obligatory in nature, good actions (charity/donation) - different from "Hiba" which is usually given to a person who is not related to you but you care for (gift)
3. Forbidden - Haram
-Haram is really the extreme. Dapat indifferent muna
4. Reprehensible
e.g. Smoking.
2 categories
1. Makruh
2. Karahat tanrar
3. Karahat tahrim
5. Indifferent
-neutral. Not something that is obligatory but not prohibited. No moral essence.
e.g. going to school? all acts which have no moral judgment involved
System of Reward and Penalty

Qualification of acts	+	-
Fard/wajib (Obligatory)	Rewarded	Punished
Sunnah (recommendatory)	R	Neutral
Mubab (indifferent)	n	n
Makruh (reprehensible)	n	Rewarded
Haram	Punihsed	Rewarded

Marriage as OBLIGATORY
1. If you are already of the marrying age but you cannot afford to get married, marriage becomes obligatory (Wajib). Saying: "Marriage completes half of your faith. You get married twice, that is your entire faith"
2. But in case a Muslim man already have the means to get married, but can no longer contain himself sexually, getting married is Fard (because he might be involved in extra-marital affairs)
For next meeting: read
3. Malang v. Moson: pay attention to the evolution of law on Marriage and Divorce
4. Bondagjy v. Bondagjy: