This is not a synopsis of what is acknowledged to be a classic piece in Philippine ethnology and the law of primitive people. This is rather an attempt to present the fundamental principles and rules, social norms of conduct and the allocation of authority among the Ifugaos and its relevance to the development of Philippine Modern Law. Although principally based on R.F. Barton’s “Ifugao Law” which was first published in 1919, other materials were also consulted and used as secondary sources.
The contributions of the Ifugaos to the development of law in the Philippines cannot and should not be underestimated. E.A. Hobel, in his “Introduction” to Barton’s study of Kalinga, characterizes the contribution as follows:
“Ifugaos are the star examples of how far a system of private law can go. They demonstrate that anarchy is not necessarily synonymous with disorder. Their system also shows up nicely the limitations in a legal order that depends primarily upon the kinship group of persons.”
For purposes of this report, the following materials were also used as sources:
1. Bruce L. Benson, “Enforcement of Private Property Rights in Primitive Societies: Law without Government,” published in the Journal of Libertarian Studies, 1989.
2. Bruce L. Benson, “Customary Law with private means of resolving disputes and dispensing justice: A description of a modern system of law and order without State Coercion,” published in the Journal of Libertarian Studies in 1990.
Sources, Concepts and Principles of Ifugao Law
A. Sources
Bruce Benson citing Lon Fuller maintained the view that customary law is:
A branch of constitutional law, largely and properly developed outside the framework of our written constitutions. It is constitutional law in that it involves the allocation among various institutions . . . of legal power, that is, the authority to enact rules and to reach decisions that will be regarded as properly binding on those affected by them.[1]
This view is apt in describing the sources of Ifugao Law. R. F. Burton wrote that, “the Ifugaos have no form of writing: there is, consequently, no written law. They have no form of political government: there is therefore, no constitutional or statutory law. Inasmuch as they have no courts or judges, there is no law based on judicial decisions.”
There are two sources of origin of Ifugao Law, to wit:
1. Taboo - The Ifugao word for taboo is paniyu. The root which appears in varying forms are : iyu, iho, iyao and ihao. Such terms in general mean “evil” or “bad.” The prefix “pan” denotes instrumentality or manner. The word paniyu means both by derivation and use as “bad way of doing” or “evil way.” The greatest number of paniyu in Ifugao have their origin in magic.
Examples of paniyu are:
a.) Pregnant women may not wear a string of beads since the beads form a closed circle and have a magic tendency to close her body and cause difficult childbirth.
b.) It is taboo for persons of other districts to pass through a rice field when it is being harvested. It is also taboo for foreigners to enter a village when the village is observing its ceremonial idleness, tungul at the close of harvest time. Any one who breaks this taboo are subject to a fine, or if there is reasonable belief that, it could not be collected, he may be subjected to the death penalty.
Burton believes that, a small part of Ifugao taboo are arbitrary and unreasonable. But a large part of it has gone beyond this stage and is on a firm and reasonable basis of justice, e.g. adultery, theft.
2. Customs. – This pertains to property, inheritance, water rights and to a great extent, family law and procedure.
B. Concepts and Principles of Ifugao Law
Benson in his article on Property Rights in Primitive Societies[2], wrote that:
Privately produced law in primitive societies is not unique to the American Indian For example, "the great significance of the Ifugao for the study of the nature and function of primitive legal and political institutions rests in the fact that they reveal how far it is possible to elaborate a system of interfamilial law on the foundation of quite elementary social structure. They reveal how wrong are political theorists who hold that law and government are wholly indivisible.
This view of Benson is an affirmation of the following general principles of the Ifugao Legal system cited by Burton, to wit:
a. It is personal in character. Society does not punish injuries to itself. This proceeds from the fact that, there is no organized society among the Ifugaos.
b. There is a collective responsibility among the Ifugaos. Not only the individual who commits the act is punished, but also that of his kin, depending on their nearness.
c. A collective procedure is adopted. Legal procedure is by and between the families. A member of an Ifugao family assists in the punishment of offenders against any other member of his family, and resists the punishment of members of his family by other families.
Since legal procedure is between families, and never between individuals, nor between a family and an individual, crimes of brother or sister against brother or sister go unpunished. The family of the two individuals is identical. A family cannot proceed against itself.
d. Might is Right in the administration of justice. For a given crime, one family on account of superior war footing or superior diplomacy will be able to exact much more severe penalties than another.
Substantive Law of the Ifugaos
A. The Family Law
I. The Nature of Marriage
Marriage among the Ifugaos is a civil contract of undefined duration. It may last a month, a year, a decade, or until the death of one of the parties to it. It has no essential connection to tribal religion.
No promises are made by the contracting parties to each other or to anybody else. Nor do the contracting parties take any part in any religious ceremonials or in any marriage ceremonials of any kind. Marriage may be terminated at any time by mutual agreement. However, since it is considered as a contract, if either party terminate the marriage against the will of the other, the injured party has the right to assess and collect damages.
II. Eligibility to Marriage
Any person of age may marry. The consent of the parents is not necessary. But it is considered taboo for cousins within the third degree to get married.
III. Two ways how marriage is contracted
a.Contract Marriage
The contract marriage is usually arranged for, and its first ceremonies at least performed while the children are quite small. It is applied to children who will inherit a great amount of property. Its purpose is to prevent the child from committing a so-called mistake of marrying later on another person who will inherit property of lesser extent and value.
As a rule, the couple married by a contract marriage while yet children are elevated by the uyauwe feast to the category of the kadangyang (upper class).
b. Trial Marriage
The trial marriage is merely a primitive sexual mating in the dormitories of the unmarried. Generally, it requires two or more trial marriages to select a person for his more permanent mate.
IV. Marriage Ceremonials
The marriage ceremonies conducted by the Ifugaos are as follows:
a. The Mommon. – The boy’s kin sends a pig to the girl’s kin. The omen of the bile sac is consulted.
b. The Imbango. – Another pig is sent by the boy’s kin to the girl’s kin. Again, the omen of the bile sac is consulted.
c. The Mangdad. – The girl’s kin sends a pig to the boy’s kin. It’s a contingency measure on the part of the girl’s kin to prevent the boy’s kin from demanding a return of the gifts earlier sent should the marriage fail to take any effect for any reason.
d. The Hingot. – The boy’s kin sends another pig. The omen of the bile sac is again consulted.
e. The Bubun. – The kin of both parties meet at the girl’s house and a large pig given by the boy’s kin is sacrificed. The boy’s kin also during the ceremonies gives other gifts as well to the kin of the girl.
If in the course of any of the ceremonies, in case a bad omen is encountered in the bile sac is seen, the marriage does not proceed.
V. Obligations incurred by those who enter into a marriage contract.
1. To abstain from sexual relations with any other person.
2. The boy and his kin are obliged to furnish the immediate family of the girl with firewood from the time at which the first ceremony is performed until the young couple separate to live in a house by themselves.
3. The boy and his kin must keep the granaries of the family of the girl in repair, and to reroof them whenever necessary.
4. Each family must help each other in all that pertains to rice culture throughout the first year following the last marriage ceremony.
5. It is the duty of either spouse to furnish a pig to the other in the event of the sickness of the other or of any his or her lineal ascendants.
6. It is the duty of either spouse to furnish the other in the event of the death of any of the lineal ascendants of the other, a pig and a death blanket.
If the spouses are too young to attend to any of their respective obligations, it shall be the duty of their parents to attend to the discharge of their obligations. The non-fulfillment or the non-discharge of any of the above obligations is a sufficient cause for a demand for divorce on the part of the injured spouse.
The husband and wife are never united into one family. They are merely allies. The ties that bind the spouses to their respective families are much stronger than the ties that bind them together.
VI. Property Rights acquired by marriage.
Neither spouse acquires any interest in the property that the other possess at the time of the marriage. Each however has the right to veto the sale or transfer of family property of the other except where legal and sufficient reasons exist for such transfer.
The spouses have a joint right in all property acquired after marriage as a result of their joint labors.
VII. Remarriage of the widowed.
Even death itself does not terminate the marriage, nor the alliance forged between the two families. This can be terminated by a payment known as the gibu.
A remarriage may not properly be effected by the widowed until he has paid the kin of the dead spouse the gibu. Failure on the part of the widowed to make this payment would lead to a seizure of his property or a lance throwing.
It is considered an insult to the deceased and his kin for a widowed person to remarry within a year from the death of his spouse. In such an event, a larger gibu is demanded by the kin of the dead spouse.
VIII. Divorce
The following are the recognized causes for divorce:
a. ) Divorce because of necessity. - This includes the presence of a bad omen of the bile sac.
b.) Divorce for mutual benefit. – childlessness for a period of two or three years after marriage; death of an offspring
c.) Divorce as demanded by either party. – Cruelty and incompatability of the parties; desertion; adultery; unreasonable or insane jealousy.
It is only when the divorce is by mutual agreement that divorce is attended by ceremonies.
Where there are no children, each spouse takes the property that he brought to the marriage, together with any property received by inheritance or solely by virtue of his relationship to his own family.
Where there are children of the union, the woman has the right to the children. Whoever takes the children take possession of the property that belongs to the spouses. All the property of both the spouses are assigned to the children at the time of the divorce.
IX. Dependents in relation to Ifugao family law
a.) Adopted Children. - Rather rare in Ifugao society. Usually, the child adopted is related to the adopter.
b.) Illegitimate children. – Not a frequent occurrence in Ifugao society. A bastard is one whose father refuses to take the mother as his legal wife for any period of time, however short.
The father of a bastard must give his child a rice field if he has a field unassigned. He must also give the mother an oban or blanket with which to carry the child. An illegitimate child has the same rights as a legitimate child.
B. The Property Law
There are two classes of property in Ifugao society, to wit:
1. Family Property or Ma- Ibuy. – Family property consist of rice lands, forest lands and heirlooms. Their possession is more of the nature of a trust than an absolute ownership- a holding of a trust for future generations. They are often the common property of a group of kinsmen and their families. The sale of such class of property is a matter of practical concern to the entire family. The sale of such property is attended by a ceremony.
There are two kinds of transfer of family property, to wit for “consideration” or balal, and outright sale. In a “balal,” the buyer or creditor of the property holds, plants and harvests the property until the debt is paid. The property is to all purposes, his except that he cannot sell it. He can however transfer it as a “balal” again to another person, for a lesser amount.
2. Personal Property or Adi Ma-Ibuy. – Houses, valuable trees, knives, spears, dishes, camote fields, blankets, animals and articles of minor values are considered as personal property.
Personal property is transferred without formality.
Property is transferred within a family by two methods, namely:
1. Assignment and transfer of property during the lifetime of its owner.
2. Inheritance
In Ifugao Law, the law of primogeniture is applied. Under this law, a greater portion of the property is inherited by the elder child than the younger ones.
In terms of the extent of borrowing and lending practices of the Ifugaos, interest on things borrowed is exceedingly high.
C. Penal Law
The Ifugaos have two punishments for crimes, which are inflicted and executed by the offended person and his kin:
1. The death penalty; and
2. Fine
The following circumstances affect criminal responsibility:
1. Alienship - If the culprit be of a foreign village, the fact that he is a foreigner is an aggravating circumstance. If found in delicto, he shall put to death.
2. Kinship - It is a strong mitigating circumstance that often results in the exemption of a guilty person altogether from any liability.
3. Confession – Confession before steps have been taken to inflict punishment alleviates a person from any liability except in murder and adultery.
4. Relative rank of the offender and the offended – The imposition of the fine is dependent on the rank and standing of the individual in society.
Gulad or Intent is the greatest single factor in determining penal responsibility. A deed committed without intent and without carelessness is excused, e.g. wounding another without intent; accidental killing of animals.
The principal crimes in Ifugao society are either major or minor offenses. The major offenses are:
1. Sorcery
2. Adultery
3. Theft
4. Murder
5. Kidnapping
6. Manslaughter
7. Rape of a married woman
8. Arson
9. Incest
The minor offenses are, punishable by fines are:
1. Insult
2. Slander
3. False accusation
4. Rape of a girl
Notes on Penal Laws:
1. The Ifugao has no tribunals to sentence, and no government to execute.
2. The Ifugaos have one general law. That law is: A life must be paid by a life.
3. Public opinion custom, or both, justify the taking of a life in punishment for the following crimes: sorcery, murder, persistent and wilfull refusal to pay a debt when there is ability to pay, adultery discovered in flagrante, theft by one of a foreign district, refusal to pay a fine assessed or injury suffered.
4. In feuds between families of different districts, heads might or might not be taken. Usually, they are taken, if there are no ties of kinship between the districts.
PROCEDURAL LAWS OF THE IFUGAOS
Family unity and cooperation is the basic rule of procedure in Ifugao law. An Ifugao’s family is his nation. It is the executive and judicial body. The following rules and principles apply to the families and individuals in the matter of procedure:
1. The first step in any legal procedure is to consult with one’s own kin and relatives. In initiating steps to assess a fine or collect an indemnity, the next step is the selection of a monkalun.
2. The office of the monkalun is the most important one to be found in Ifugao society. The monkalun is a whole court. He is the judge, prosecutor and defending counsel at the same time. His duty and interest is for a peaceful settlement. To this end, he must exert all efforts through diplomacy. The monkalun should not be closely related to either party in a controversy. He however has no authority and his only power is to exert a settlement.
3. In proceedings before the monkalun, litigants do not confront each other. There are also no oaths or formalities in the giving of testimony.
4. In criminal cases, where the accused persistently denies his guilt, ordeals or trials are resorted, such as the hot water ordeal; hot bolo ordeal; wrestling; or a duel.
5. A truce is sometimes imposed by the monkalun in cases that peace cannot be peacefully settled. It is a cooling off period that usually lasts for 14 days.
6. Controversies settled peacefully is accompanied by a ceremony called the hidit.
The relevance of Ifugao Law to Modern Philippine Law
In his separate opinion in the case of Isagani Cruz vs. Secretary of Environment and Natural Resources[3], Justice Reynato Puno quoting Judge Richard Posner who exponded on the classic essay written in 1874 by Fredrich Nieztche entitled “On the uses and disadvantages of history, wrote:
Law is the most historically oriented, or if you like the most backward looking, the most past dependent of the professions. It venerates tradition, precedent, pedigree, archaic terminology, maturity, wisdom, seniority, ritual, custom, tradition, ancient practices, gerontocracy, and interpretation conceived of as a method of recovering history…”
This opinion is appropriate in how we view the different stages of legal development. There are said to be four (4) stages of legal development:
First, a simple rule of retaliation – “an eye for an eye, a tooth for a tooth, a life for a life.”
Second, a stage in which vengeance may be brought off “either by the individual who has inflicted the injury or by his tribe.”
Third, a stage in which the tribe or its chiefs or elders intervene to fix penalty payments and to pronounce sentence of outlawry on those who refuse to pay proper fines; and
Fourth, a stage in which offenses come to be clearly recognized as crimes against peace and welfare of the king or the state.
Ifugao Law may be said to be in the latter part of the first stage of legal development in the Philippines. Its contribution to modern Philippine law is best acknowledged by Professor Bruce Benson who wrote:
“ The great significance of the Ifugao for the study of the nature and function of primitive legal and political institutions rests in the fact that they reveal how far it is possible to elaborate a system of interfamilial law on the foundation of quite elementary social structure. They reveal how wrong are political theorists who hold that law and government are wholly indivisible."
Further, while Ifugao law may be said to be the first stage of legal development, many of the customary laws observed before are still being observed until now in modern Philippine Law, such as:
A. Family Law
· Obligation on the part of the parties to abstain from sexual relations with others.
· Obligation for support
· Neither spouse acquires any interest in the property that the other possess at the time of the marriage.
· The spouses have a joint right in all property acquired after marriage as a result of their joint labors.
· Recognition of the rights of illegitimate children
B. Property Law
· The common ownership of property and its trusteeship is an early affirmation of the principle of jura regalia. [4]
C. Penal Law
· Recognition of major and minor offenses;
· Recognition of fine as a form of penalty for an offense
D. Procedural Law
· Recognition of the importance of peaceful settlement of disputes.
Finally, while Ifugao Law may be said to be primitive law and in the first stage of legal development, it should give us a clearer understanding of privately produced law and order. And an understanding of this system will afford us a better opportunity to appreciate our own present complex systems.
[1] Citing Lon L. Fuller, “The Morality of Law,” New Haven, Yale University Press, 1964, page 128-129
[2] Bruce L. Benson, “Enforcement of Private Property Rights in Primitive Societies: Law without Government,” published in the Journal of Libertarian Studies, 1989
[3] GR no. 135385, December 6, 2000
[4] All lands and waters of the public domain are owned by the State. The doctrine was adopted and enshrined in the 1935, 1973 and 1987 Constitutions. The State is, by the Constitution, the owner of all lands belonging to the public domain, the waters, minerals, fisheries, forests and all natural resources therein.
