I S L A M

I. Religious History of Islam

1. Islam is the religion of Muslims a. An Arabic word which means submission to the will of God b. The acceptance of and obedience to the teachings of God which He reveled to His last prophet, Muhammad 2. Prophet Muhammad a. Born in Mecca in Saudi Arabia in 570 b. In 610, while he was meditating in a cave on a mountain, he was visited by angel Gabriel who ordered him to recite the words of Allah c. As Gods messenger, Muhammad began to preach what was revealed to him d. The Hijrah and the return to Mecca i. Muhammads popularity was a threat to the authorities in Mecca ii. Muhammad and his followers journeyed from Mecca to Medina in 622 iii. This journey is called Hijrah (migration) Important Islamic event: 622 marks the beginning of the Islamic calendar iii. Muhammad and his followers returned to Mecca and conquered it in 632 iv. From this point on, he was accepted as the true final Prophet of God e. Continued to lead the community until his death in 632 at the age of sixty-three 3. Sacred sources in Islam a. Quran i. The Muslim scripture: primary source of every Muslims faith and practice ii. Basic theme is the relationship between God and His creatures iii. Deals with all subjects concerning human beings: wisdom, doctrine, worship, transactions, law iv. Provides guidelines and detailed teachings for a just society, proper human conduct, and equitable economic system v. Exists only in Arabic in which it was revealed to Muhammad (Translations of the Quran are not considered versions of it) b. Sunnah i. What Muhammad said, did, or approved of ii. Comprised of hadeeths, reliable transmitted reports by the companions of Muhammad 4. Basic Islamic beliefs a. Belief in God i. Allah is an Arabic word which means the one and only true God who created the whole universe ii. Muslims believe in one, unique and incomparable God

iii. God alone is the Almighty, the Creator, the Sovereign, and the Sustainer of everything in the whole universe b. Belief in Angels i. Angels are honored creatures who worship God ii. Among the angels is Gabriel, who brought down the Quran to Muhammad c. Belief in Gods Revealed Books i. Quran was revealed by God to Prophet Muhammad as proof for mankind and as guidance for them d. Belief in Prophets and Messengers of God i. Prophets and messengers of God: Adam (first), Noah, Abraham, Ishmael, Isaac, Jacob, Moses, Jesus and Muhammad (last) ii. Prophets and messengers sent by God were human beings who had none of Gods divine qualities e. Belief in the Day of Judgment i. The Day of Judgment (Day of Resurrection) is when all people will be resurrected for Gods judgment according to their deeds f. Belief in Al-Qadar i. Al-Qadar is Divine Predestination ii. The belief that though God has knowledge of all that will happen, He given humans free will to choose right or wrong and be responsible for their choices 5. Five Pillars of Islam Important Muslim practices Five obligations that every Muslim must satisfy in order to live a good and responsible life a. Shahadah: reciting the Muslim testimony of faith i. Most important pillar of Islam ii. There is no true god but God (Allah), and Muhammad is the Messenger (Prophet) of God. b. Salat: ritual prayers performed five times each day i. Prayer in Islam is a direct link between the worshipper and God ii. Performed at dawn, noon, mid-afternoon, sunset and night c. Zakat: paying alms tax to benefit the poor i. Zakat means purification and growth ii. The possessions are purified by cutting back to set aside a small portion for those in need which encourages new growth d. Sawm: fasting during month of Ramadan i. Ramadan is the ninth month of the lunar Islamic calendar ii. Muslims fast from dawn until sundown and abstain from food, drink, and sexual relations iii. Regarded as method of self-purification e. Hajj: pilgrimage to Mecca once in a lifetime i. An obligation for those who are physically and financially able to perform it ii. Performed in the twelfth month of the Islamic calendar

iii. Rites include pilgrims asking God for what they wish and for His forgiveness, regarded as a preview for the Day of Judgment Two annual festivals of the Muslim calendar o Eid Al- Adha: celebrating the end of Hajj, the pilgrimage to Mecca o Eid al- Fitr: celebrating the end of Ramadan

II. (World) History of Islam

I. Post-Muhammad A. Spread from Arabia a. The Caliphate - Form of government of the Muslims - Headed by the caliph who rules the ummah or the people - Caliphs/khalifas successors of the Prophet Muhammad - Theocratic: head of state, head of religion b. The Four Righteous Caliphs i. Abu Bakr As-Sideeq - Muhammads first successor - Conquered the (rest of) Arabian Peninsula - Was convinced by his successor, Umar, to codify the Quran ii. Umar/Hadrat Umar Farooq/Umar Ibn Al Khattaab - Nominated by Abu Bakr - Defeated Persian and Byzantine Empires - Conquered Iraq, Iran, Central Asia, Punjab, Egypt, Spain Jerusalem, Damascus, Alexandria included - Further spread into Europe halted by Charles Martel (Battle of Tours, France) - The conquered people in dhimmis were free to exercise own religion and retained right over their land - Dhimmis paid jizya, a kind of tax - Initiated the consultative assemblies where state issues were openly discussed and debated on - Tough ruler - Refrained from policies that concentrated power on one individual iii. Hadrat Uthman/Uthmaan Ibn Affaan - Gentler, relative to Umar - gave the people more liberties in owning properties and emigrating - saw a steady expansion of the caliphate iv. Ali Ibn Abi Taalib - Shiites consider him as the only true caliph - Was not accepted by the Egyptians and, eventually, by some of his own followers - Was assassinated B. Three Great Muslim Empires/Caliphates

a. Ottoman - Sprawled Central and Western Asia, Southeast Europe, Northern Africa - Empowered sultans, vesting them the power of the caliph - Government officials were all Muslims - Codification of the Muslim law, Sharia - Sunni Muslims b. Safavid - Ruled the Fertile Crescent, Iranian Highlands - Rose to power after defeat of the Persians - Founded the Twelver branch of Shia Islam - Had their own version of a bureaucracy with checks and balances c. Mughal/Timuri - Ruled Northern India - Began the spread of Islam to South Asia - Aurangzeb Fatawa-e-Alamgiri codified Muslim law Sharia and the Quran was taught in schools II. Islam Today The empires disintegrated into smaller states in Asia that are still predominantly Muslim, while Some parts of Europe, while no longer officially Muslim, retained some of the influences of the Muslim empires

III. Cultural History of Islam in the Philippines

I. Pre-Spanish Area: Islam was already in the Philippines before Spaniards came. a. Islam was first introduced in the Philippines approximately mid-13th century. Muslim missionaries were spreading Islam in the Southeast Asia, and Malaya, Sumatra, Java, Mindanao became seats of the Moslem regimes. b. Most Moslem communities in the country were coastal regions based in Mindanao. These communities are already under a central government called Sultanate. For example, Maguindanao was ruled by Sultan Kudarat, while Sulu was founded in the 15th century by an Arab sharif. Islam is evident in Muslim culture: Trade was a key factor in the development of Islam in the Philippines. a. Language: Malay was the language of royalty and commerce. Tagalog words such as hukum, asal, agimat were derived from Malay-Arabic. Kayo, sila, and po were also from Islam b. Trade to Sultanate: Commercial areas such as Maguindanao, Sulu, Caraga (now Surigao del Sur and Davao Orientl), Butuan, and Dapitan, adopted a centralized form of government called Sultanate. These are achieved through conquest, peace pacts, marriages i. Magundanao previously a Chinese port of call. Sultan Kudarat, its ruler, married the daughter of a rajah in Sulu. ii. Sulu also a Chinese tribunary state trading brazilwood, black pepper, cubebs,

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tin, camphorwood, and pearls. Abu Bakr, sultanate of Sulu, married a local nobility, and his father-in-law was a prince from Sumatra. iii. Caraga slave trading war scene. iv. Butuan first established diplomatic relations with China v. Dapitan settled by refugees from Bohol who had fled to escape a Moluccan raid headed by the Portuguese c. Raids for revenge, slave seizure, alliance enforcement. i. Sea raiding or karakoa to capture slaves or valuable tradeware d. Islams hold in Luzon is light and penetration is limited to the pork-eating ban. e. Islamic law or Sharia has two purposes: as a religious tome (book/digest) for Muslim, and a source of law for those areas penetrated by Muslims III. Islam during the Spanish colonization: Revenge of the Spaniards relegated Muslims in the Southern Mindanao a. Islam suffered setbacks during the Spanish and American colonization because of Christianity, which was spread by Spaniards, and then the Americans b. Spanish colonizers remembered that Moros once overran Spain over a century ago. Upon meeting Moros (or Muslims) in Manila, the Spaniards was driven by revenge and saw to it that they would win against the Muslims. This hindered the Muslims to spread Islam in Visayas and Luzon, and was only relegated to parts of Southern Mindanao. Islam during the American colonization: Americans, in reality, wanted to subjugate Muslims, and created Moro Province. a. Americans announced that they will not interfere with the religious customs of the Moros. However, Americans revoked its treaty with Sultan of Sulu in 1905, and imposed a law disregarding Muslim customary law in 1914. b. There was a separate department for Mindanao and Sulu. Leonard Wood, first governor of said province, wrote that the governments aim is to develop individualism and be independent from the chieftain. This will abolish the sultanate form of government of the Muslims c. Americans ceased to recognize the Muslim customary laws and wanted to recognize new laws that will work for both the Moro people and also the American people. Islam in the Modern Times: Legal Dualism a. During Marcos era, Islamic law was decreed into law. This brought in legal dualism. (Presidential Decree)

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IV. The Shari'ah/ Islamic Law

I. Nature: - unlike Western law, it is not only a source of law but also a "code of life" - church and state are one (no separation of church and state) - law and religion are indivisible - the state's purpose is to enforce and spread Shari'ah - binds all Muslims into one community II. Differences:

A. Western law: - secular/ human law - derived from Roman law - a law by men for men - can be changed if circumstances required - legal system based on codes - enforced by courts, limited scope - lawyers are consulted on the law only

B. Islamic law: - religious - derived from 'divine law' - dependent on divine revelation - immutable - legal system based on a doctrine of duties - wider in scope, includes whole of human conduct - lawyers are consulted on the law, for religious and ethical evidence, and guidance to actions

III. Sources/ foundations/ roots: A. Chief sources: 1. Qur'an/ Koran - the Holy Book/ scripture of Islam - ipsissima verba of God/ word of God - revealed in fragments by the angel Gabriel during the 23 years of Muhammad's prophetic career - same text/ versions all around the world (compiled and completed under tyghe instructions of the Prophet himself and every portion is recorded in writing by his companions as soon as they are revealed) - not an adequate source for a legal system (verses lack strict legal significance) - legal prescriptions found in the Qur'an: Family law - 70 injunctions, Penal law - 70 inj., jurisdiction and procedure - 13 inj, constitutional law - 10 inj, international relations - 25 inj, economic and financial order - 10 inj. 2. Sunnah - authentic traditions/ practices of the Prophet Muhammad - from the Arabic word meaning 'method' - customs of the Prophet, comprises what the Prophet said, did, or agreed to - stems from the supreme authority of the Prophet in the interpretation of the Holy Book, be it by word or by action - filled gaps in the interpretation of the Qur'an - still could not meet all the varied requirements of daily life - further rules of law had to be devised 3. Qiyas - judgment based upon juristic analogical reasoning - rule of analogy - since juristic opinion alone was subjective they applied strict rules of analogy by which a rule contained in the Qur'an/ Sunnah could be extended to some similar, but not identical, situations 4. Ijma - consensus of opinion by scholars/ jurists - even in the application of rules of analogy an individual jurist may err - it was opined however that jurists deciding collectively could not err, therefore consensus of jurists/ scholars were regarded to be another manifestation of divine voice B. Supplementary sources: 1. Al-Istihsan

2. Al-Istislah 3. Al-'Urf IV. Basic Notions/ Laws on: A. Human principles: - unfair discrimination - equity, no barrier between man and man - moral values are sacred and must be practiced irrespective of religion - the more 'Islamic' the Muslim, the better the guarantee to non-Muslims that these moral values will be practiced B. Nationality: - administrative aspect, not cultural - determined as the necessary organization which men need for grouping as well as for the interrelations between the various groups - based on the concept of ethnological oneness of all men The Islamic State: - people of different religions live side by side as equals - non-Muslims are granted membership in the state through contracts (ahl al-dhimmah), after which they are referred to as 'dhimmis' - Dhimmis: those whose obligations are a trust upon the conscience and pledge of the state or the nation, their rights and obligations are determined according to the basic texts of the Qur'an, Sunnah, and other treaties Foundations of the Islamic State: 1. allegiance to conscience - defined by religion, determines status, rights and obligations 2. social allegiance to the society wherein one lives - defined by citizenship/ territory, adherence to common laws C. Taxation: 1. Jizyah - poll tax, paid by non-Muslim subjects only - a tax for them to maintain their faith, swearing allegiance to the state despite differences of their faith - women, children, poor and all who can't afford are exempted - bankrupt persons are exempt and given pensions from the state - amount varies depending on the financial capability of dhimmis 2. Zakat/ Al-sadaqat - purification/ alms, special tax paid by Muslims only - based on their principle of alms-giving 3. Al-kharaj (land tax) and Al-ushur (trade tax) - paid by non-Muslims depending on their ownership of land and business trade - if engaged in neither, no tax 4. other than above, there are no differentiation in taxes between Muslims and non-Muslims

D. Political rights: - the Head of State must always be a male Muslim - non-Muslims have the right to vote and participate in elections - they can hold political offices and become members of the parliament - prescribes complete social/ judicial autonomy for non-Muslims and other minorities - individual rights and freedoms are protected irrespective of religion E. Personal laws: - judicial autonomy is prescribed for non-Muslim subjects according to their respective religions (sanctions and punishments are determined by their own religion) - Islamic jurisdiction is applicable if non-Muslims so choose - Capital punishment is due for murder, retaliation is prescribed for every case of murder, irrespective of religion F. Marriage and divorce: - family law is the heart of Shari'ah 1. Marriage rights of man and woman: Woman: bound to monogamy Man: may have as many as four wives but not more - men are allowed any number of temporary marriages/ marriages of enjoyment - men have the rights of concubinage with his own female slaves - any sexual intercourse outside of such limits are considered illicit sexual relations punishable with death by stoning (if ever a lawful marriage has been consummated) or one hundred lashes (for all other situations) - men may repudiate/ divorce his wife/wives any time and at his unilateral discretion 2. Dowry: given by the groom to the bride upon marriage - a woman may, with the consent of her husband, divorce him after giving back her dowry/ dower 3. Polygamy: conditional on man's confidence that he could treat his wives impartially and on his ability to support existing dependents ans assume further responsibilities 4. Marriage: not considered as sacred but rests entirely on a contractual basis - declaration and acceptance are the only things needed to solemnize a marriage - no religious ceremony is necessary but is considered as customary - a guardian (usually father or grandfather) is allowed to contract a marriage of his minor ward without the latter's consent 5. Divorce: permitted but is stated to be the most hateful to God of all permitted things - 'Idda Period: where a divorced/ widowed woman is precluded from remarrying (avoid paternity doubts and also to give husband time to reconsider and revoke the divorce any time before 'idda ends) - divorce is limited only to two times per wife, more than that it would be final 6. Prohibitions: - men cannot marry two women at the same time - 'idda women are forbidden to marry - limited to four wives only - men may marry a Muslim/ Christian/ Jewish woman but women must marry only Muslim men

- 2 witnesses should be present in a marriage ceremony 7. Categories: a. valid - minor marriages with guardian's consent, slave marriage with master's consent, unauthorized marriage with principal party's consent b. irregular c. void *the last two have no validity under Islamic law from the beginning G. Status of Islamic Jurisprudence: - judicial autonomy led to the weakening of the autonomy of Islamic law in most Muslim states - what remains are more on family law concepts

V. Islamic Law in the Philippines

I. Historical Background a. Pre-Spanish Era i. 14th Century arrival of Islamic traders in Tawi-Tawi region ii. 15th century arrival of first Muslim missionaries iii. Islam spread through the region through trade and marriage. This soon led to the establishment of other political systems like the Sultanate of Sulu. iv. Islam penetrated parts of Luzon but failed to have significant hold and influence in these areas. b. Spanish Colonization i. Islamic communities were more civilized than those in the north, which contributed to why the Spaniards failed to gain control of Muslim Mindanao. ii. Co-existence was observed, allowing exchange of trade but autonomy of Sultanates was observed. There were instances of warfare and conquest s from either side, but neither failed to gin control of the other. c. American colonization i. United States initially adopted a policy of legal hybridity in the southern Philippines. ii. In 1905, it abrogated its treaty with the Sultan of Sulu and, in 1914, imposed a uniform law that disregarded Muslim customary law. iii. Civil courts still observed custom laws but since this was not part of the structure itself, it was only applied to the extent the courts were willing to apply. d. Hybridity in the Early State i. Some personal laws of Muslim law were still recognized (marital rights), but a lot of policies were adopted with the aim of integration, rather than recognition of their own set of customary laws. ii. The Moro National Liberation Front (MNLF) was formed, which gave way to the Tripoli agreement , providing the general principles for Muslim autonomy in the Philippine South e. Marcos Era i. President Marcos created a Presidential Task Force for the Reconstruction and Development of Mindanao, which was tasked with drafting a code of Muslim Filipino law. ii. This would later become PD 1083 (The Muslim Code of Personal Laws)

II. Sharia Law in the Philippines a. The general objectives of PD1 1083 i. Recognizes the legal system of the Muslims in the Philippines as part of the law of the land and seeks to make Islamic institutions more effective ii. Codifies Muslim personal laws iii. Provide for an effective administration and enforcement of Muslim personal laws among Muslims. b. PD 1083 was divided into 5 books that tackles six legal areas: i. 1. marriage, divorce, and parental authority ii. 2. wills and estates iii. 3. establishment and structure of sharia courts iv. 4. Muslim holidays v. 5. transfer of real and personal property vi. 6. conversion to Islam c. Created Sharia Court system, which had 51 circuit courts and five upper courts, under the supervision of the Supreme Court d. Generally, applied the principle of Adat Law. Adat means what ought to be in the law. Using the general framework that customs observed shall for part of the legal system, as long as they are not contrary to the general law.

VI. Philippine Examples/Applications

I. Holidays a. All Muslim government officials and employees in places other than those enumerated under Article 170 (Muslim provinces in Mindanao) shall also be excused from reporting to office in order that they may be able to observe Muslim holidays Marriage a. Any Muslim male at least fifteen years of age and any Muslim female of the age of puberty (presumed at age 15) or upwards b. A pre-nuptial agreement is required regarding the type of marriage regardless of ts nature (monogamy/polygamy) c. Child marriage cannot be annulled if the marriage guardian (wali) is the father or paternal grandfather. Rights and obligations of wife a. Wife cannot, without the husband's consent, acquire any property by gratuitous title, except from her relatives b. Wife shall have the right to demand the satisfaction of her mahr (customary dower) Custody and Guardianship of Children a. Care and custody of children below seven years of age whose parents are divorced shall belong to the mother or, in her absence, to the maternal grandmother, the paternal grandmother, the sister and aunts. b. An unmarried daughter who has reached the age of puberty shall stay with the father; the son, under the same circumstances, shall stay with the mother.

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Bigamy a. The provisions of the Revised Penal Code relative to the crime of bigamy shall not apply to a person married under Muslim law Divorce a. Granted only after exhaustion of all possible means of reconciliation b. Effected by: i. Talaq - Repudiation of the wife by the husband ii. Ila - Vow of continence by the husband iii. Zihar - Injurious assanilation of the wife by the husband iv. Lian - Acts of imprecation v. Khul - Redemption by the wife vi. Tafwld - Exercise by the wife of the delegated right to repudiate vii. Faskh - Judicial decree (faskh).

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VII. Shariah Law in the modern global context

- Sharia has always existed alongside other normative systems. Today, the majority of Muslim countries apply sharia selectively. Some countries adopt only a few aspects of sharia, while others apply the entire code. Many predominantly Muslim countries have not adopted hudud penalties in their criminal justice system. The harshest penalties are enforced with varying levels of consistency. The use of flogging is more common compared to punishments like amputations. NOTABLE EXCEPTION: Saudi Arabia Saudi criminal law is based totally on sharia. No codified personal status law exists, which means that judges in courts rule based on their own interpretations of sharia. Application of Shariah Law in ASEAN countries Indonesia (There is regional variation.) - Aceh : Only part of Indonesia to apply Sharia in full. : After special autonomy legislation was passed in 2001, the reach of courts extends to criminal justice (formerly just marriage, divorce, and inheritance). : Under a 2009 law, married people convicted of adultery can be sentenced to death by stoning, while unmarried people can be sentenced to 100 lashes. - Rest of Indonesia : Religious courts have jurisdiction over civil cases between Muslim spouses on matters concerning marriage, divorce, reconciliation, and alimony. : The competence of religious courts is not exclusive, and parties can apply to District Courts for adjudication on basis of Roman Dutch law or local adat. : Since 2006, a number of districts have issued local ordinances based on sharia, although many are unconstitutional. Malaysia - Muslims are bound by Sharia on personal matters like marriage and custody rights, while members of other faiths follow civil law.

- In 1988 the constitution was amended to state that civil courts cannot hear matters that fall within the jurisdiction of Sharia courts. - Muslims are required to follow Islamic law in family, property and religious matters. In 2002, the state government of Terengganu approved a bill to bring in Islamic criminal law, including death by stoning for adultery and cutting off hands and feet for theft. - Malaysian Muslims can be sentenced to caning for such offences as drinking beer, and adultery. Philippines (There is regional variation.) - Mindanao : There are sharia trial and circuit trial courts in Mindanao.haria District Courts (SDCs) and Sharia Circuit Courts (SCCs) were created in 1977 through Presidential Decree 1083, which is also known as the Code of Muslim Personal Laws.[101] - Rest of the Philippines The rest of the Philippines has a mixed legal system of civil, common, and customary law Singapore - Sharia courts may hear and determine actions in which all parties are Muslims or in which parties involved were married under Muslim law. Court has jurisdiction over cases related to marriage, divorce, betrothal, nullity of marriage, judicial separation, division of property on divorce, payment of dowry, maintenance, and muta Thailand (There is regional variation) - Yala, Narathiwat, Pattani and Songkhla provinces : Islamic law is allowed for settling family and inheritance issues under a 1946 law Brunei - Sharia courts decide personal status cases or cases relating to religious offences. Sultan Hassanal Bolkiah declared in 2011 his wish to establish Islamic criminal law as soon as possible - Illustration: Hijab headscarf for women; France banned wearing of overt religious symbols, including hijab. Other countries also ban hijabs in government offices and universities. Other middle eastern also shun it in a push for secularization (e.g. Bangladesh) - Some relevant topics in relation to Shariah Law Freedom of Speech - Insulting the Prophet Muhammad is prohibited. Such criticism is blasphemy. Slander, gossip, and backbiting, or "ghiba" is regarded as a major sin in the Sharia law. - However, the Qur'an does not command a death penalty for blasphemy. - Countries like Saudi Arabia and Egypt have blasphemy laws. LGBT rights - Homosexual sex is illegal under sharia law, though the prescribed penalties differ from one school of jurisprudence to another. : Nigeria, Saudi Arabia, and Somalia imposes death penalty for acts perceived as sodomy and homosexual activities. : But some Muslim-majority countries such as Indonesia (outside of Aceh province), Egypt,

and Iraq, same-sex sexual acts are illegal but there is no specific penalty. : In Turkey and Jordan, homosexual acts between consenting individuals are legal. Women - Women do not traditionally lead men in prayer (Imam), and usually lead other women in prayer. There are no priests or clergy needed in order to perform rites and sacraments in Islam. - Islam unequivocally allows both single and married women to own property in their own right - Islam grants women the right to inherit property from other family members, and these rights are detailed in the Quran. A woman's inheritance is different from a man's, both in quantity and attached obligations.[Quran 4:12] For instance, a daughter's inheritance is usually half that of her brother's.[Quran 4:11]

Sources:
Agabin, Pacifico. (2008). Meztizo. UP College of Law Publications. British Broadcasting Corporation 2013, BBC Religions website (http://www.bbc.co.uk/religion/religions/islam/) Jones, Lindsay. Encyclopedia of Religion. 2005. Macmillan Reference. Hodgson, Marshall G. Rethinking World History: Essays on Europe, Islam and World History. Cambridge University Press. I. A. Ibrahim, A Brief Illustrated Guide To Understanding Islam Jainal T. Rasul, Jr., Muslim Personal Law and Its Incorporation into the Philippine Legal System: A Constitutional Perspective Ramadan, Said. (1970). Islamic Law: It's Scope and Equity. Cambridge University Press. Tamir Abu As-Su ood Muhammad, Noha Kamal Ed-Din Abu Al-Yazid. Biographies of the Rightly Guided Caliphs. 2001. Dar Al Manarah. http://www.chanrobles.com/presidentialdecreeno1083.htm#.UcREuj788Vk http://www.wluml.org/node/506