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Legal Pluralism in the Philippines

Published online by Cambridge University Press:  02 April 2024

Michael O. Mastura
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Abstract

Members of the Muslim minority in the Philippines have a distinctive legal culture whose rules and customs are grounded in Islam. To address this situation of legal pluralism, the government in 1977 enacted a Code of Muslim Personal Laws, which stands alongside the Philippines Family Code and Civil Code and officially recognizes the principle of plural legal regimes for at least one minority cultural and religious group within the general population. This article, written by a participant in the legislative process, explores the complexities of conceptualizing and drafting the Code. These complexities include the use of ethnographic descriptions of customary law within the Muslim community, the selection of rules from among the different schools of Islamic jurisprudence, and the harmonization of conflicts between the laws now applicable to Muslims and non-Muslims in the Philippines.

Type
Part I: Religion & Law
Information
Law & Society Review , Volume 28 , Issue 3: Special Issue: Law & Society in Southeast Asia , 1994 , pp. 461 - 475
Copyright
Copyright © 1997 by The Law and Society Association.

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References

1 This theory of construction provided the groundwork for my own research approach.

2 Questions reformulated here were raised originally on 22 July 1974 when the Supreme Court invited a number of Muslim lawyers including former Senator Mamintal Tamano, Michael O. Mastura, and Musib Buat to appear before the Judicial Code Committee. The meeting addressed the integration of the provisions of the Draft Code of Administration of Muslim Personal Law with the proposed Judiciary Code. Tamano had pushed for a general decree without need to provide implementing details, but the Research Staff disagreed with this approach.

3 See Bentley 1981. The review of the Draft Code by a Presidential Code Commission did not precipitate a wedge between the research staff and the Majul Review Commission. Mastura was in fact appointed sub-chairman for substantive provisions of the Presidential Code Commission. See also Majul 1980 and Bautista 1977.

4 See “Governing Principles in the Codification,” in Presidential Commission 1975.

5 Trans. by author; cf. translations by Khadduri 1961:288 and Schacht 1967:127.

6 I discuss the concept in Mastura 1986.

7 Al-Ghazali 1937:vol. 1:286 [trans. by author]; cf. Kerr 1966:93).

8 Elsewhere I have traced the chronology of personal law in four countries where Muslims are in the minority (Mastura 1984).