The Philippines Is a Legal Hybrid: Does the Mix Cost Us the Rules of the Game?
By Giancarlo Angulo
Murky rules bother me more than bad rules. A bad rule you can plan around. A murky one makes every decision suspect and every outcome a coin flip. I’d like to understand why our rules are so often unclear, and what we could do about it. It starts with a history lesson.
TLDR
- The Philippines is a mixed jurisdiction: civil law (from Spain) governs most private life, and common law (from the US) shapes how our courts, constitution and procedures work.
- “Constitutional law” is not the other half of this pair. It is a field of law. The two traditions are civil law and common law. (Our Constitution itself is mostly American in style.)
- Two more layers sit on top: Islamic personal law for Filipino Muslims and customary law for indigenous peoples.
- Other countries are hybrids too: Scotland, South Africa, Quebec, Louisiana and more.
- My argument: this mix makes it harder to know the rules of the game. The concern is not that judges act for private gain. It is arbitrariness. The test case is Article 36 of the Family Code, and a companion post of case notes covers three more rulings and the court-backlog numbers.
Two ways of building a legal system
Civil law: start from the code
Civil law traces back to Roman law. The emperor Justinian had Roman law compiled in the 6th century (the Corpus Juris Civilis), and European universities, starting with Bologna in the 11th–12th centuries, revived it. The big milestone came with codification: Napoleon’s Civil Code of 1804 and, later, the German code (BGB) of 1900. These codes became models for much of continental Europe, Latin America and Spanish and Portuguese colonies, including the Philippines.
The idea: lawmakers write comprehensive codes in advance. The judge’s job is to apply the code to the facts.
Common law: start from the case
Common law grew in England after the Norman Conquest of 1066. Over the next century or so, royal judges, notably under Henry II (1154–1189), traveled the country and settled disputes using a shared body of rulings. The law became “common” to the whole realm. Judges followed earlier decisions, which turned into precedent (stare decisis, “stand by what has been decided”). The system spread through the British Empire and the United States.
The idea: law grows case by case. Statutes exist, but court decisions fill in and shape the rules.
The differences, in short
| Civil law | Common law | |
|---|---|---|
| Main source | Codes and statutes | Court decisions plus statutes |
| Judge’s role | Applies the code; case law is persuasive | Interprets and, in effect, develops the law; precedent binds |
| Court procedure | More judge-led (inquisitorial tendency) | More lawyer-led (adversarial); juries in many places |
| Legal writing | Systematic, doctrinal; scholars matter | Case reasoning; judges’ opinions matter |
| Typical countries | France, Germany, Spain, Latin America, Japan | England, US, Canada (outside Quebec), Australia, India |
In practice the two have moved toward each other: civil-law countries use court rulings more, and common-law countries pass more statutes and codes. The table shows the starting points, not strict walls.
How the Philippines ended up with both
Spanish period (1565–1898). Spanish law applied here, including the Siete Partidas and later colonial codes. The Spanish Civil Code was extended to the Philippines in 1889. A Penal Code (1887) and a Code of Commerce (1888) had been extended before it.
American period (1898–1946). After the Treaty of Paris, the US brought its own legal institutions: a constitution-style government under the Philippine Bill of 1902 and the Jones Law of 1916, a Supreme Court (Act No. 136, 1901), American-style rules of procedure and court practice, and English as the language of law. The 1935 Constitution, drafted by a Filipino convention authorized by the Tydings–McDuffie Act (1934) and approved by the US President, carried over the Bill of Rights and judicial review: the American idea that courts can strike down laws that violate the constitution.
Independence and our own codes. After 1946 we kept both layers and wrote our own versions:
- The Civil Code of the Philippines (Republic Act 386, enacted 1949, in force 1950) is built on the Spanish civil-law tradition, with some American ideas added.
- The Revised Penal Code (Act 3815, enacted 1930, in force January 1, 1932) is based on the Spanish penal code.
- The Family Code (Executive Order 209, 1987) updated family law while staying within the civil-law tradition.
The result: a split by subject
Roughly:
| Area | Mostly from | Examples |
|---|---|---|
| Persons, family, property, obligations and contracts, succession | Civil law (Spain) | Civil Code, Family Code |
| Crimes | Civil law (Spain) | Revised Penal Code |
| Constitutional law, bill of rights, judicial review | Common law / US | 1987 Constitution |
| Court procedure, evidence | Common law / US | Rules of Court |
| Corporations, securities, much of commercial regulation | US-influenced | Revised Corporation Code (RA 11232, 2019) |
And where precedent is concerned, Article 8 of the Civil Code says: “Judicial decisions applying or interpreting the laws or the Constitution shall form a part of the legal system of the Philippines.” In other words, Supreme Court rulings carry real weight, and courts are expected to follow them under the doctrine of stare decisis. The code-based civil-law system quietly adopted the common-law habit of precedent. That is the hybrid at work.
More layers than two
- Islamic personal law. The Code of Muslim Personal Laws (Presidential Decree 1083, 1977) governs marriage, divorce, inheritance and related matters for Filipino Muslims, applied by Shari’a courts. The Bangsamoro Organic Law (RA 11054, 2018) provides for Shari’a within the Bangsamoro region (BARMM), applying to Muslims.
- Customary law of indigenous peoples. The Indigenous Peoples’ Rights Act (RA 8371, 1997) recognizes customary law and ancestral domain.
- Barangay justice. The Katarungang Pambarangay, now part of the Local Government Code of 1991, requires many local disputes to go through barangay conciliation before reaching court.
- International law. The 1987 Constitution (Art. II, Sec. 2) says the Philippines “adopts the generally accepted principles of international law as part of the law of the land.”
We are not the only hybrid
Legal scholars call these mixed jurisdictions. Well-known examples:
- Scotland: civil-law roots with common-law development.
- South Africa: Roman-Dutch civil law plus English common law.
- Quebec (Canada): civil law for private matters, common law for public and criminal law.
- Louisiana (US): a civil-law tradition from France and Spain inside a common-law country.
- Puerto Rico: like us, a former Spanish colony later under US rule.
- Israel, Sri Lanka, Mauritius and Malta: other mixes of civil law, common law and local or religious traditions.
- Malaysia and Singapore: common-law systems that also recognize Islamic family law for Muslims.
The Philippines and Puerto Rico share a similar story: Spanish codes first, then American courts and constitutionalism.
Does the mix cost us? The rules of the game
Having two traditions under one roof can be a strength: the Civil Code gives us stable, written rules for family and property, and the American-style courts give us judicial review and a bill of rights with teeth. But it also means a judge or lawyer can reach for the code in one case and for precedent in another. My worry is what that does to our ability to know the rules.
I’ve talked with a few dozen people who do business here, and the complaint I hear most is not corruption. It is the arbitrariness of it. A former boss once told me about a country that has leapfrogged us. In his experience there, the rates were fixed. If another government functionary tried to take a pound of flesh, you went back to the person you originally had the deal with, and they made sure you were not charged again. I’m not defending bribery. My point is that a cost you can predict is a cost you can plan around, and a cost you can’t predict makes every decision a gamble. That is the difference between a bad rule and a murky one.
My argument
I would argue that the tension between civil law and common law is a major source of confusion in how our laws are administered. When no one can say in advance which approach a court will use, no one really knows the rules of the game, and a society that doesn’t know its rules pays for it in every contract, investment and dispute.
Here is the mechanism as I see it:
- Two rulebooks for the same question. A civil-law judge asks, “What does the code say?” A common-law judge asks, “What did the earlier cases decide?” Article 8 of the Civil Code says decisions “shall form a part of the legal system of the Philippines,” so precedent matters. But our codes are also supposed to control. When the two point different ways, no settled rule says which wins.
- Doctrines that can be reversed. If precedent binds only until a court decides otherwise, the line between “following the law” and “changing the law” gets blurry.
- Wide discretion in gap-filling. Article 9 says “No judge or court shall decline to render judgment by reason of the silence, obscurity or insufficiency of the laws,” and Article 10 says that in case of doubt it is presumed that the lawmaking body intended “right and justice to prevail.” That discretion is useful, but it is also where inconsistency can hide.
- Unclear reasoning in the biggest cases. Precedent guides only if you can tell why the Court ruled as it did. When justices reach the same result by different roads, the rule that later lawyers can rely on gets fuzzy.
I’m not alone in worrying about trust. Karl Garcia argues in “Is Justice Only for the Rich in the Philippines?” that when citizens stop trusting institutions, every legal outcome becomes suspect whatever its merit. He also notes that weak capacity, not only corruption, explains many institutional failures. That is why I frame my concern as arbitrariness and unclear rules, not bad faith.
The test case: Article 36 of the Family Code
Article 36 voids a marriage where a party “was psychologically incapacitated to comply with the essential marital obligations of marriage.” I asked my question of it: civil-law code or common-law precedent, and could anyone have predicted which? I read the Court’s 2021 decision in Tan-Andal v. Andal (G.R. No. 196359, ponente Justice Leonen), which looks back at how the rule evolved. The Court says it all itself.
- The code left a gap on purpose. The Family Code revision committee deliberately did not define the term. As the Court quotes Justice Eduardo Caguioa, a definition “straitjackets the concept,” so the meaning was left to the courts.
- Precedent filled the gap. In Santos v. Court of Appeals (1995) the Court defined the term, drawing on a canon-law scholar’s three criteria: gravity, juridical antecedence and incurability. In Republic v. Court of Appeals and Molina (1997) it added guidelines, including that the root cause be “medically or clinically identified” and proven by experts.
- Decades later, the Court said precedent had gone against the code’s intent. In 2021 it wrote that its own interpretation, beginning with Santos and Molina, “has proven to be restrictive, rigid, and intrusive.” It said the earlier rulings “went against the intent behind Article 36,” “categorically abandon[ed]” the expert-proof guideline, and held that incapacity must be incurable “in the legal sense,” not the medical one.
- Even then, the justices disagree about what changed. No justice dissented, but nine wrote separately. Justice Caguioa wrote that “clarification, rather than abandonment, is the proper course.” Justice Hernando wrote that the doctrine, as refined, “remains good jurisprudence.”
Why this fits my argument. For 24 years, from Molina in 1997 to Tan-Andal in 2021, people seeking to end a marriage had to meet guidelines the Court itself later said the Code’s drafters never intended. Article 8 of the Civil Code made those decisions part of the legal system, so they bound lower courts and litigants. The rule then changed by a Court decision, not by an amendment, and the justices still don’t agree on how much of the old guidelines survives.
What it doesn’t show. Not bad faith or private benefit. The Court had already softened Molina in Ngo Te v. Yu-Te (2009) without abandoning it, and the 2021 ruling shows the system can correct itself. But it took decades, and the correction has more than one reading.
Three more rulings. In the case notes I look at three others: Estrada v. Desierto, where the Court found that a president had resigned without a letter and leaned heavily on American law; the 2015 abandonment of the condonation doctrine, which the Court handled carefully; and the cityhood-laws cases, where the Court changed its answer three times after a 6–6 tie.
How I could be wrong
- A fellow joeam.com writer says design isn’t the problem. In “Too Many Lawyers, Too Little Justice” Karl Garcia writes that the country’s justice crisis “is not one of constitutional design” but of state capacity, incentives and elite capture. He is arguing about charter change, not legal traditions, but the logic applies to my claim too. My answer: capacity and clear rules are not rivals. Clearer rules cost little compared with new courts, so they are worth pursuing in parallel. A good example is Rule 114, Section 16 of the Revised Rules of Criminal Procedure (effective December 1, 2000). It says a person who has been in custody for a period equal to or more than the possible maximum imprisonment for the offense charged “shall be released immediately,” and that someone who has served the minimum of the principal penalty may be released on reduced bail or on their own recognizance at the court’s discretion. That rule needs no new courts, only that it be applied. Karl reports that pretrial detention routinely exceeds the maximum possible sentence. If so, the rule exists but isn’t being followed, which supports both his point and mine: rules help only when they are clear, known and applied the same way, and that takes capacity.
- Other mixed systems work. Scotland, South Africa, Quebec and Louisiana are hybrids too, and they are not known for broken courts. The mix alone can’t be the cause.
- Pure systems fail as well. Something else is likely doing most of the work: patronage politics, political dynasties, weak enforcement, court congestion, and how judges are chosen.
- Backlogs have mostly other causes. Delay in our courts is largely about caseload and capacity (numbers in the case notes), not legal tradition. Unpredictable rules and slow courts are separate problems, and I shouldn’t blur them.
- My examples are few, and famous. A handful of cases among thousands, and the Court sometimes manages change well. The condonation case in the notes is one example. I need to show that our hybrid makes disagreement more arbitrary than it would otherwise be, not just that it exists. A fair reading may be that the hybrid is “one contributing factor,” not “the heart of the problem.”
What I’d like to see
- Clear guidance on when precedent controls and when the code does.
- Published, searchable consistency reviews of Supreme Court doctrine, and transparent backlog data, which Karl Garcia also proposes.
- Rules that already exist, like Rule 114 §16 on release after serving the possible sentence, applied and tracked.
- A discussion among lawyers and legal scholars: where do you think the tension shows up in practice?
Corrections welcome. I’m a technologist, not a lawyer. If you spot an error, please comment.
Sources
- Civil Code of the Philippines (RA 386), Art. 8, 9 and 10
- Revised Penal Code (Act 3815); Family Code (EO 209), including Art. 36; Act No. 136 (1901)
- PD 1083; RA 8371; RA 11054; RA 11232
- 1987 Constitution
- Tan-Andal v. Andal, G.R. No. 196359 (May 11, 2021)
- Revised Rules of Criminal Procedure, Rule 114 (effective Dec. 1, 2000)
- Soliman M. Santos Jr., “Common Law Elements in the Philippine Mixed Legal System” (article)
- Karl Garcia on joeam.com: “Is Justice Only for the Rich in the Philippines?” and “Too Many Lawyers, Too Little Justice”
- More rulings, extra notes and sources in the case notes
Lovingly made with Claude.
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[…] notes for part 2 of my series on the Philippine legal hybrid, which I wrote for joeam.com. Part 1 explains the two traditions. Part 2 argues that mixing civil law and common law makes it harder to […]
Good Moning Gian!
Glad you are writing again.
thanks karl
“Murky rules bother me more than bad rules. A bad rule you can plan around. A murky one makes every decision suspect and every outcome a coin flip. I’d like to understand why our rules are so often unclear, and what we could do about it. It starts with a history lesson.” —Giancarlo
I was never much of a fan of law as a subject, but let me offer a couple of observations.
I am not entirely sure what qualifies as a “murky” rule—or law. In the United States, it is not unusual for Supreme Court justices to disagree with the majority’s interpretation of a law and to write dissenting opinions. Does that alone mean that the law is murky—that it reasonably admits of more than one interpretation?
If so, perhaps a certain amount of murkiness is simply the nature of the beast, whether under common law or civil law. Laws are written in general terms, but they must be applied to an endless variety of circumstances. It may be difficult, if not impossible, to write rules that anticipate every situation without creating qualifications, exceptions, and unintended consequences.
I remember taking Business Law in college. I was turned off almost immediately. A legal rule would be set out in a paragraph or two, only to be followed by several pages of exceptions. From then on, I developed an aversion to the subject and tried, as best I could, simply to avoid getting into trouble with the law.
About fifteen years later, while working in the insurance business in the United States, I took several insurance courses. One of them again involved law. By then, I thought I had perhaps matured enough to approach the subject with a more open mind.
It did not work. Once again, there was a rule or law stated in a paragraph, followed by pages and pages of exclusions, qualifications, and exceptions. Hahaha. That was a major turnoff for me all over again.
that’s why we have supreme court of the philippines, the final arbiter of law. our modern society is getting far more litigitious everyday and we are told to read the finest of print kasi, often, that is where the devil of the detail lurks, the one percent that cannot be guaranteed no matter how comprehensive the insurance is, the one we have to be most careful about. I have friends in the medical profession and they too have to study health laws and ethics. year in and year out, they have to take study leave, update what they know and take refresher courses to keep them abreast with time. and sometimes, they take me along with them, and the knowledge rub on me tuloy, unfortunately.
I wanted to study law then I self studied the laws here and now I no longer want to study law. Hehehe
law is exciting, I hope your darling daughter will study law, it is a very exciting field. you daughter kasi looks like she can talk her way into and out of trouble and would be suited to law very well. it will take time and patience to study law in its entirety, but it is worth the effort, there is nothing more satisfying than to argue your point against the point of another without losing your cool, the confidence to cite precedents and win the logic of it all even if logic has gone awol!
Some 25 years ago, when my daughter was looking at college majors, she interviewed lawyers, doctors, nurses, etc. etc. That was here in the San Francisco Bay Area. She found that a lot of lawyers were not happy with their careers. I know of two American lawyers who actually left their careers because they were not happy with being lawyers. I didn’t ask what line of law they were in….didn’t know them that well. One complained that most of his peer lawyers were “sharks” i.e. “screwed their clients.” The other was just not happy except for the income, so he had a plan to get out by age 50. I learned of him through his wife and it was after her husband had turned 50 and had quit his law career. I assume he found a way to have a good income w/o the law practice.
nah, dont need to go into law practice really like in criminal law which is very much adversarial, or in family law which is summat full of knots and twists and disgruntled families fighting among themselves. there are many off shots of law, some lawyers work in public service, in policy in the govt and do admin stuff.
Yeah, back in my college days, I had a batchmate whose father was a lawyer in Davao – corporate law. He told me that his father did not choose criminal law because most of the time the client was guilty! hahaha
That buddy of mine eventually went into corporate law. I don’t know if he was happy or not. He was a private person and did not talk about such things. I do know his marriage fell apart and that he had at least one kid, a girl. I couldn’t get him to talk about her either. He has since passed away – Cancer. RIP.
ahem, you know there are also lawyers in the other side! the dead are judged and put on the scale. if too heavy because of sins committed, they go to hell, if light as a feather because they died in the state of grace even if they were once transgressors in life, they are likely to go heaven.
“…because they died in the state of grace …” – Kasambahay
Yes…the goal then is to die in the state of grace. One may live in a state of condemnation, but better die in the state of grace, like the good thief Dimas.
I knew a Filipino here in the Bay Area who told me that he practiced law in the Philippines. He said it was too corrupt so he had to get out. He put up a Coffee Shop here with a Filipino flavor to it, including Barako.
maybe it was good, he went away. else he could have been a burden to be carried, know what I mean! had the stayed and showed his mettle, it would have been different. there were filipino lawyers who stayed, focused on the good fight, kept on the straight and narrow, and got vindicated in the end. they knew when to bend, and how not to break. it’s on the manual the subscribed to, part of their practice and professional registration.
“there were filipino lawyers who stayed, focused on the good fight, kept on the straight and narrow, and got vindicated in the end.” – Kasambahay
Yeah, they knew how to handle the “murky” laws.
they knew how to laugh too, sometimes they laughed at themselves! they even tell awful lawyer jokes.
Here is one of my drafts
Another angle to this is the RA implementation beyond the IRR amd again not all have IRRs
By Karl M. Garcia
The Philippines does not have a shortage of laws. It has laws covering nearly every major area of national life, and new legislation will continue to be necessary as the country changes.
But legislation is only one part of nation-building.
A law can establish policy, create institutions, define responsibilities and authorize government to act. Yet turning that law into results also requires budgets, competent people, infrastructure, technology, regulations, procurement, investment, local implementation and coordination.
The real chain is therefore not simply:
Problem → bill → law → solution.
It is:
Problem → diagnosis → policy → legislation where necessary → budget → institutions → people → systems → infrastructure → implementation → measurement → results.
This distinction matters because different problems require different solutions. A missing legal authority may require legislation. A shortage of resources requires funding. A shortage of skilled workers requires training and recruitment. Slow government processes may require administrative reform. Weak infrastructure requires investment. Overlapping agency responsibilities may require better coordination.
Often, the answer is a combination.
Philippine shipbuilding illustrates the point. A stronger industry needs an appropriate policy and regulatory environment, but it also needs skilled workers, investment, technology, infrastructure, financing and access to markets. Government efforts involving MARINA, TESDA and industry show that legislation and implementation can reinforce each other.
The same applies to the Blue Economy. A national policy can establish direction and safeguards, but maritime capability ultimately depends on people, vessels, ports, research facilities, marine data, enforcement, financing and functioning markets.
This is not an argument against legislation. It is an argument for completing the work that legislation begins.
Congress has its constitutional role in legislation and oversight. The Executive implements laws and manages programs. Agencies provide technical capability. Local governments deliver many services. Industry invests. Workers provide skills. Citizens participate and hold institutions accountable.
These functions should not compete. They should connect.
Even urgent legislation illustrates the point. Faster legislative action can accelerate policy decisions, but it cannot instantly create skilled personnel, functioning facilities, reliable information systems or mature supply chains. Speed in making policy and speed in producing results are related, but they are not the same thing.
The better test after a major reform is therefore simple:
What can the Philippines do better because of this law?
Can government deliver services faster? Can agencies coordinate better? Can businesses invest more predictably? Can Filipino workers gain relevant skills? Can infrastructure be built and maintained more reliably? Can government make better decisions because it has better information?
These questions do not diminish legislative achievement. They complete it.
The Philippines does not have to choose between legislation and implementation. It needs both—and, more importantly, it needs them connected.
The question should not simply be, “What law should we pass?”
It should be:
What are we trying to accomplish, what is preventing us from accomplishing it, and what combination of law, policy, resources, institutions and capability will remove that constraint?
Sometimes the answer will be a new law. Sometimes it will be better implementation of an existing one. Sometimes it will be funding, infrastructure, training, technology or coordination.
Often, it will be several at once.
A good law establishes the foundation. Good governance builds on it. State capability turns it into results.
Ultimately, reform should be measured not only by what the Philippines has legislated, but by what the country has become capable of doing.
a lot of these things are at odds with each other. this is why a people must have a way of judging what is important to it
Notes in reading, with my editorial comments thrown in:
no divorce, not yet, we are a bit slow here in philippines, but we will get there eventually.
as for justice, the most powerful judge in our country is a duterte appointee, chief justice alexander gesmundo. as well, out of the 15 sitting justices in the supreme court, 12 are duterte appointees. hence, it is no surprise that those wanting to stop sara’s impeachment recoursed to the supreme court to issue a tro. but supreme court did not oblige and the impeachment went ahead. ‘course supreme court will not make it obvious, but it will find a way to save its benefactor. that is, if I have to go on what pres bong marcos had said when he was 1st interviewed for the uniteam with sara way back 2021, the question asked of him was, what can you give us in return? I am therefore presuming the same question was asked by duterte et al before justices got appointed to the supreme court, what can you give us in return! maybe, the justices said the word duterte et al all wanted to hear.
so justice in the philippines grinds slowly and at times, goes against us, the sod! hence people sometimes deploy their own justice and nakikipag-areglohan sa kapwa without going tru the lengthy and expensive court process. justice done and served and everyone wins.
when the courts dont work then the people find another recourse to justice.
Sicily was ruled by major landlords under first the Kingdom of Aragon and then Spain when Aragon and Castile united for six centuries.. and when that ended (more or less, I write from recall, corrections welcome) the smallholders that came about had little legal protection against landgrabbing – and resorted to getting protection from what became the Cosa Nostra, and when the initially very weak Repubblica Italiana came to power, Sicilians often ignored an entity that did not even speak their regional language or respect their culture.
As for an incident I recall in the Philippines, when someone tried to steal my bike from our garage at UP Diliman, our labandera “Manang” from Cagayan shouted “magnanakaw, habulin ninyo” into the street when he ran and the istambays in front of the sari-sari store nearby chased him, caught up with him, and gave him a beating. My mother did not press charges (again this is my recall, I was a kid then) from what I remember as the police gave the man heavy beatings in front of her and he kept saying “hindi ko ginawa”. Possibly the de facto justice in many places in Philippine provinces was a mix of that kind of neighborhood enforcement plus politicians as patrons – in the 1970s the barangay system we know now was just being established, with tanods, don’t know if the report to barangay and put on blotter system already existed then, it seems like a buffer between street and state to me.
when I was reviewing for the EE Boards I was in u-belt a lot. witnessed a snatcher being beaten by most passersby. seems he was a common offender and even the one he had not victimized wanted a peace of justice
if the snatcher is savvy, he could take passersby who beat him black and blue to court, for using excessive force. else he be restrained under citizen’s arrest and held until polis arrived.
heto, in the olden days, our country had more exciting albeit brutal ways to ferret out innocence.
AI Overview
Yes, pre-colonial Philippines extensively practiced “trial by ordeal” to determine guilt or innocence, using extreme heat and fire-related elements. Guided by ancestral laws and overseen by the village chief (datu) and a council of elders, these tests were deeply rooted in the belief that the gods or nature would step in to protect the innocent and expose the guilty.
Pre-Colonial “Trial by Fire” and Heat Methods
While traditional European trials by fire often involved walking on hot coals or holding red-hot bars, the indigenous peoples of the Philippines relied on highly painful, heat-based variants:
The Disappearance of the Practice
These indigenous methods were gradually stamped out as the Spanish Empire introduced medieval European legal codes, which replaced ancestral ordeals with official court trials, heavy taxation, and state-sanctioned executions. Later, the American administration explicitly documented and banned the remaining hot-water ordeals practiced by remote tribes. In modern Philippine jurisprudence, these hazardous trials are completely obsolete.
I think the Duterte appointees have not really gone outside the bounds of good lawmaking as some US SC justices have. Personal allegiance seems to be a waning force. That’s just my sense of things, without exploring specific case decisions. Leonen is interim CJ. He is hard for me to read, his prodigious intellect seeming to sometimes escape the bounds of sense.
I am keeping watch on them, they might launch a rescue so subtle, we would not know what hit us!
thanks joe. have given up with the quick fixes. Any change must start with understanding and finding a way to progress and scale up in tune with the values of the people.
I agree with that but I sometimes think the powerful have a mental block about how to do that. For example, there are rational voters among the huge C/D class but liberal candidates persist in running against one another, thus dividing the sensible into small numbers of votes, and losing.
a part of the mental block might also be that the AB classes don’t realize some of the (different) priorities of the C/D classes. Took ME some time to realize that the theoretically excellent approaches the PNP under Mar Roxas was developing against the drug trade (sniff out the drug lords, standard modern police work) did NOT solve the neighborhood issues of those who were affected by violence caused by drug dealers and the crazier among the drug addicts, obviously NOT the issues of those living behind subdivision walls.
I did try to discuss that with the liberal X crowd which I moved in while still active there I think around 2019 or so, but it was largely ignored even if reasoned and articulate – unlike the kind of frenzied and exaggerated discourse the DDS put forward during the 2016 election, but whether people rode on that discourse because of being ignored all the time before, I can’t tell as I am not on the ground now and was not on the ground then..
Ah, that makes sense. Misconnect between the well-intended approach and what is experienced locally.
hopefully, 2028 if not going to be like the 2016 presidential election. because maybe of the impeachment proceeding being live streamed, people are now more aware of what the dutertes have nefariously done behind all our back, the secrecy that allow them to amass all that easy billions of money (from china) while the rest of us are heavily sweating our brows to ilk our daily living. sure, the dutertes can easily afford to hire a horde of trolls and disinformers by the truckloads, but it is the votes that count: one vote per person. a horde of trolls in the internet may only equal to a few votes in person, but if they are illegal chinese, they cannot vote.
I did some reading on the common law system that England eventually created, and it was also a hybrid of the Norman feudal justice system that was judge-based – as opposed to the old Anglo-Saxon “hundred and shire” justice system that was justice meted out by an assembly of free men (like all Germanic and Nordic cultures, they had free, unfree etc. categories) that met I think every month – the meld of the two led to the jury system and precedents were originally the memory of the commmunity had judged past, similar cases.
The Swiss in their https://www.admin.ch/en/federal-charter-1291 made some important rules that indicate they also had a system similar to the Anglo-Saxons (same cultural roots):
this was their refusal to accept judges assigned by the Habsburg bailiffs, insisting on people from the their communities.
this was a form of mediation, roughly their version of solving disputes via the barangay.
that probably works as long as those values are still intact somehow, because vox populi as we know can sometimes be not vox dei but vox demonyo.
I do question the values of those people who wanted to keep an obviously innocent Leila de Lima in jail, if that is representative of the values of most Filipinos, whew..
not representative of the values of all filipinos po, kasi maraming maraming sa amin worked hard to free de lima. we held masses, prayer groups, hold rallies even, and keep de lima in our thoughts, we kept of mentioning her and even rallied president marcos to give her full pardon and clemency, which de lima balked and did not partake. kasi, if given prsidential pardon, that would mean that de lima had accepted her hatol. she is innocent from the beginning and her only crime was that she went against president duterte and accused him of ejks.
now, the table has turned and the people who were most contemptuous of de lima like harry roque, bato and digong are now on the receiving end of justice. there really is a god in heaven!
The US, depending on jurisdiction, also can have elements of hybrid legal systems beyond the example of Puerto Rico highlighted in this article. The most famous US state-level example is Louisiana’s Civil Code which in addition to Roman-derived Spanish Civil Law also incorporates French Napoleonic Law. In Southwestern states (like my state of California) property law and family law are governed by Civil Law, a holdover from former Spanish laws. In US tribal jurisdictions Native American tribes are governed by their own customary legal systems within their sovereign tribal borders. The distinction in the US is that where one law system starts and another begins is made clear (1938 Erie Doctrine) and federal courts are directed by SCOTUS to apply both state substantive (independent) law and federal procedural law (“which rulebook gets applied?”).
The US also has the concept of prosecutorial and judicial discretion which comes from Common Law. Discretion is basically the principle of balancing the spirit of the law (“what is the just outcome?”) with the letter of the law (“what is the literal law?”). In the Philippines part of the feeling of arbitrariness may come from what constitutes “winning” an argument. When one immerses in the culture of Indonesia and Malaysia, one may quickly pick up elements quite similar to what Blumentritt described in 1882 as filósofo (pilosopo) in how interpersonal, civil, and criminal arguments are settled. In Indonesia and Malaysia the “winner” is usually he who can gather more supporters, the more powerful and the more public the better, regardless of actual fault or culpability. So a lot of the disconnect may in fact be rooted in how the local culture adapted and integrated (or not) external ideas.
As the article points out, arbitrariness rather than corruption is the most common complaint from those who wish to start a business in the Philippines. I had a similar experience about 2 decades ago when I thought to pursue a business idea in the Philippines and decided I did not want to put up with arbitrary application of rules. Corruption where it is a known factor can be inputted into a business planning calculus; arbitrary enforcement is another word for “unpredictability,” and it is difficult for any business, much less a citizen, to operate within an unpredictable system.
The important thing to begin to understand, IMHO, is that the Filipino elite starting with the principalía under the Spanish colonial system, to the ilustrado, to the katipunero, to the compardor, to the Commonwealth and Third Republic oligarchy, to today’s political dynasties are extremely good at something developmental economists call isomorphic mimicry. Isomorphic mimicry is the practice of copying the outward appearance, structure, and processes of a (perceived successful) external system without developing its actual internal function or capability. In other words, form over function and the emphasis on the superficial “exactness” we see in many places in the Philippines where “laws” and “rules” are applied. The isomorphic mimicry is an external façade or layer on top of the actual underlying system (in this case Philippine cultural behavior and expectation).
A bright lining is where there are rules-based enclaves in the Philippines, such as SEZs like PEZA and Freeports. In such SEZ enclaves the governing rules and laws are consistent, enabling such rules-based enclaves to become engines of the Philippines economy attracting large amounts of FDI. The resistance of rules-based enclaves by surrounding LGUs when arbitrary behavior is demarcated, most recently in the fight over New Clark and Pax Silica, may offer hints that the transformation towards better behavior is on-going.
In the last couple of months I analyzed (from an economic and governance perspective) how the underlying cultural operating system, which the similarity to Indonesian and Malaysian behavior informs, may be redirected towards a more positive direction rather than remain as something the liberal elite harangues against since they are expecting something completely different (i.e. wholesale replacement of Philippine culture and norms with a Western one).
In my No Savior analysis I emphasized in Section 3 the pre-colonial organizational framework and how the operating cultural logic may possibly redirected and mapped onto more positive contemporary applications. See the linked analysis for the mapping table:
In my Make the carrot visible analysis I emphasized in Section 7 I expanded on the redirection theory where I pointed out that Filipino relational values like utang na loob, kapwa, pakikisama, and hiya as currently expressed are not signs of masa character flaws as the liberal elite believes, but rather are cultural habits that can point in either direction. See the linked analysis for the how the Filipino cultural operating system is captured by political dynasties and ideas of how it may be positively redirected:
I hate that you write so fast. will need time to think this through. thanks Joey
No problem GC. If you have questions fire away.
I’ve been finding myself re-reading a lot of historical and sociological literature on the Philippines lately, and will be reading developmental economist Daron Acemoglu’s new book What Happened to Liberal Democracy? time permitting. A lot of Philippine writers seem to be stuck on old nationalist-centric viewpoints (even the leftist ones), which I think clouds thinking. Honestly I’m surprised that the good work of non-Filipino Philippine historians and ethnic sociologists isn’t taken more seriously in the Philippines. There is a fundamental disconnect in the thinking of Class AB(upper)C and that of Class (lower) CDE, which I often refer to as the “Two Philippines.” The latter comprises 90-93% of the population (some reports have it rising to 94% as of the last few years), so it is imperative to understand them in order to move towards a better Philippines. The same cultural operating system exists across all classes, but the upper classes have a “wrapper” (software analogy) around their understanding of it.
Still working on a good governance analysis series, which I thought would be completed soon but I decided I’ll manually pore through some related material before inputting it. Claude on max effort and custom connectors to external datasets is really great at correlating stuff from vetted inputs that would’ve taken me months to do manually during my university research days.
I have often harped on “legal certainty” as being important, even if there is a (Northern) German saying that “one is in God’s hands on the high seas and in court”.
P.S. Though I am pretty sure even without looking that Germany and the Philippines are on opposite sides of the “uncertainty avoidance” cultural metric as per Hofstede.
I read an account somewhere about the Philippines in Spanish times where IIRC a Spaniard noted how Filipinos tended to try to bring as many supporters as possible to court cases.
I have seen similar behavior in my Filipino overseas association times (including some groups fitting the result of their seemingly free-flowing discussions into the association by-laws when reporting them for official purposes to municipal registrars etc) and a lot of Filipino socmed discourse from politics to fandoms looks similar.
The 2022 campaign discourses about who faked what crowd picture with Photoshop or who took it from a more favorable perspective to make the crowd look bigger was echoed by very similar discourses in PPop fandoms this year about which crowd was bigger or more enthusiastic or more real (as opposed to just passing through) at Coachella, Lollapalooza and Summer Sonic – the point being “my barangay is bigger than yours” or at least “small but terrible” (Lapu-Lapu is nodding).
and it has to be as visible as possible, as the National Village mostly works on the principle of “seeing is believing”. It sometimes feels as if a large part of the Philippines was put on arrested development from 1571 onwards and is now waking up to a reality of smartphone videos and social media.
A stark difference I guess to Indonesia and Malaysia which had more centralized pre-colonial forms of organization. Because discussions based on community consensus presume what Manny Pacquiao calls common sense. Not everything one sees on social media is the same was what one sees with one’s eyes. There are Filipinos in Europe who believe Leila de Lima is guilty because their folks at home or in North America told them so. What the entire village/nation knows (“alam ng buong bayan”) is way too often presumed too easily.
Well, the National Village has held court in a very auditory and visual way since the televised Agrava hearings of the 1980s (with rumors, Radyo Bandido and the moskito press as well as Mr and Ms which eventually birthed the Inquirer) across the Erap impeachment trials (with frantic text communication escalating into EDSA Dos) to today’s online and social media public proceedings including the big one now that has the public judge par excellence (Tulfo) heavily involved, just saw him fleetingly in red robes on YouTube.
Accounts of such behavior come not only from the Spanish in the Philippines, but also from the Dutch in Indonesia, the British in Malaysia, and cultural historians and ethno-sociologists elsewhere. This is an area of interest to me, so I have quite a few books on the subject in my home library. I’ll share some quotes at the end of my comment…
I would say that while such behavior may appear illogical and self-defeating to a European-centric cultural worldview (including that of Philippine elites), it is actually closer to the root of the Austronesian cultural worldview and isn’t strange to the masa (or masa-equivalent in other countries).
To put it simply: in the European legal concept of a dispute, the issue is between two isolated, autonomous individuals (i.e. parties), which is incompatible with the Austronesian concept of personhood (identity), land, property, and truth as mutually constitutive and wholly collective.
European administrators often complained of something like a native “passion for litigation,” but the natives were simply expressing their own cultural worldview. Europeans expected courtrooms to be arenas where isolated individual parties contest claims using abstract facts and written affidavits, while the Austronesian expectation was that the introduced courtrooms were just another extension of the community, and so required active and visible solidarity with the claimant or defendant.
From my reading, in ancient Austronesian society, status, legitimacy, and land ownership (or usage rights) were mapped by long, sometimes exhaustive oral origin narratives. Since no single person could hold the entire origin narrative within himself, the whole kin network (extending to ally networks) had to be physically present to authenticate claims. There was also no concept of legal or moral “right and wrong” in the European sense, but rather a concept of the spiritual and social balance of harmony. Disruptions of that balance were not a private matter; restoring social equilibrium required collective, highly visible community mobilization rather than resolution by two isolated parties. Likewise, there was no concept of a claim’s validity being measured by abstract facts or physical proof (e.g. paperwork) — validity rested on the weight of social consensus. So being able to bring a large group of kin and supporters was basically the visual demonstration of “proof,” since the community validated one’s integrity and claim.
James J. Fox, an authority on Austronesian ethnography at the Australian National University, coordinated the Comparative Austronesian Project and examined how Austronesian societies order precedence and hierarchy through origin narratives and ideas of ancestry in Origins, Ancestry and Alliance (1996). A broader survey by Fox co-written with Peter Bellwood, The Austronesians: Historical and Comparative Perspectives (1995) traced how such shared social features, including collective responsibility, and kinship solidarity enabled Austronesians to survive across far-ranging ocean migrations during the Austronesian expansion.
Sometimes I feel as if the Philippine elite, in their social and economic enclaves, are culturally alienated from their ethnic countrymen, and so fundamentally misunderstand masa behavior as reflecting moral, behavioral, or logical deficits when it is simply an expression of the true culture, albeit not always a very progressive one. But this cultural operating system was arguably what allowed the Austronesian forebears to survive in hostile environments and expand across oceans. It just needs to be redirected in more positive directions…
The following are colonial accounts from select Austro-Polynesian cultures:
The Philippines (Spanish, American):
Indonesia (Dutch):
Malaysia (British):
New Zealand (British):
Samoa (German):
Fiji (British):
they are funny as they remind me of comment sections on Philippine social media – political of course but even among the very tribal PPop fandoms – though Filipino boomers and Gen X also had the Noranians and Vilmanians who were crazy in their own way.
well, EDSA Uno and EDSA Dos had ostensibly elite Filipinos – and masa – engaging in very Austronesian swarming behavior. If one uses the old analogy by Carmen Guerrero-Nakpil of “Getting to Know a Filipino is like peeling an onion” the Austronesian layer is still the core, bigger in some and smaller in others.
funny actually that Van Ybiernas, the sparring partner of Xiao Chua in public debates from 2016-2022 (both are Pantayong Pananaw shaped but Ybiernas is DDS while Xiao is dilawan) was a bit puzzled at how in the 2022 campaign “paramihan silang lahat” (all sides are going for looking like they are many) haha Prof Van, who would academically (Pantayo) and politically (DDS) theoretically meet both “canonical” definitions of “true Filipino” does have a bit of a “kanluranin” (Westernized) aspect after all..
I have also seen though that in-groups insisting on their own definition of right or wrong has caused Filipino groups to fall apart. Possibly in the past, the solution for irreconcilable differences between groups was for the group that lost to leave, either go “ilaya” (upstream, up the mountains) or “mag-laut” (go to the high seas and found a new settlement, sometimes I think the real basis for Datu Puti might have been some datus outcast somewhere further south) so is that kind of system workable in today’s Philippines?
I saw a lot of DDS on social media telling those who did not agree with Duterte to leave the Philippines in the 2016-2022 period. So does a system like that work in societies that are no longer as easily mobile as back in the days? Though one could say that Marcos, then Cory, created two sucessive “pag-laut” waves in the middle classes..
Western systems of justice evolved to avoid vendettas (Med cultures including Latin ones) and feuds (Germanic and Nordic cultures) but even that took extremely long..
thanks anyway for the sources, as I now asked Claude how the Republik Indonesia handled the tension between colonial law and customary practices – and got this:
I also asked Claude to compare the Veloso case in Indonesia to the Pacific quotes and got this (I have ommitted Claude’s doubts on the sources, as Claude is generally skeptical):
Finally I asked Claude to compare Indonesia and the Philippines in terms of working legal systems and popular trust in them:
Whether a group sees an exit today as ilaya or mag-laut may also have something to do with the elite/masa disconnect. Depending on which “Two Philippines” one is culturally part of, “leave if you don’t like it” may mean two different things. For example, EDSA II vs EDSA III: although the same cultural operating system runs across all Philippine classes, the upper classes have a Western “wrapper” around their understanding of it depending on the context, so EDSA II (like EDSA I) was paramihan while EDSA III was seen by some in the upper classes as mindless swarming.
Perhaps one would need to look at pre-Hispanic “exits” as not always being a literal exit, because pre-Hispanic mag-laut wasn’t always just the choice of losers. Rather, one may look at mag-laut as an Austronesian conflict-resolution mechanism, at least when there was “more space” to “move about” in. In Origins, Ancestry and Alliance (1996), Peter Bellwood described how exiting the community was usually a form of “founder rank enhancement” (Bellwood’s depiction): basically junior lines moving off to found new settlements and in doing so gaining standing they would not hope to gain at home, further suggesting that this ideology was what helped drive the Austronesian expansion as far as Madagascar and Polynesia. We have evidence relatively close to the Spanish conquest of the family line of datus and rajahs of major Philippine polities having been founded as junior lines of Bruneian princedoms. Something else to consider is that William Henry Scott’s reconstruction of sources from the early Spanish Period had the datu’s power partly tied to the number of followers he held rather than territory.
Only freemen (timawa and maharlika) were allowed the right to petition their chieftain, but what I think is probably more important than petitioner’s rights is that freemen had the optional right of exiting the community and aligning with a new leader — the alipin did not have either right. So like how I have been trying to see Philippine cultural habits as possibly having a positive and a negative aspect, in the cultural operating system both exit and litigation are two sides of the same coin.
The reducción and later the modern territorial state removed the exit destination, but not the system’s “routine” (aka cultural habit). The cultural operating system still offers the same options when differences are irreconcilable: go along to get along (i.e. pakikisama), re-ally with another patron, or leave. The educated elite, with their additional Western “wrapper” treats rights as attached to the individual, so “leave if you disagree” sounds like an expulsion from state citizenship (which may explain why many feel estranged). For the masa whose standing is still conferred by the group, and for the faction that has lose the group’s protection, leaving was always an ordinary move, perhaps even an prestigious one (e.g. when a masa and their politicians switch political allegiance). Sometimes the “Two Philippines” are simply talking past one another.
I would probably make a distinction between the Marcos Sr., then later post-EDSA mag-laut of the middle class with today’s OFW phenomenon. The first two appear to be following more of what Bellwood and Scott described — those out of power performing an exit, voyage across the seas (literally), then resettling in far-flung lands in order to maintain and enhance their standing (although undoubtedly there were economic and safety concerns as well). The middle class exits were akin to political verdicts (“I don’t agree with you, therefore I’m leaving”). With the OFW it’s a lot different — they are exiting for income, not exiting from the group, since the kin unit stays the unit, the money earned and obligations still flow back to the kin unit and immediate community (that way it is more like a pre-historic barangay raid). Which is probably no coincidence that Cory attempted to re-brand OFWs as bagong bayani.
Peter Bellwood had an interesting observational caveat which was that founder rank enhancement required real distance between barangays. Basically a datu’s standing was demonstrated by how many literally walked with him, and was able to walk to him. If nobody could walk (e.g. due to impractical distances), standing was demonstrated by bringing the numbers which could possibly explain the phenomenon of crowd-photo wars, the fandom paramihan, and the kin packing the courtroom. In other words, the cultural operating system sometimes substitutes numbers for distance where distance creates a problem.
So where the literal exit no longer works, but its “routine” of allegiance contingent on visible performance remains, such “routines” (i.e. cultural habits) can still be redirected. Rules-based enclaves like PEZA and freeports are effectively “exit-in-place” for both capital and labor, while visible LGU scorecards like DILG’s SLGC can bring the “better datu” to a constituent who can no longer literally walk to him.
P.S. On the Indonesian legal system: Unlike the Philippines, Indonesia gave a legitimate channel to the Indonesian variant of the “cultural operating system” where both the customary legal system and Civil Law system run side-by-side.
P.P.S. On the Malaysia legal system: On the other hand, Malaysia took a different approach by giving the Malaysian variant of the “cultural operating system” a Common Law “wrapper” with the customary legal system exists as a protected jurisdiction alongside for special cases.
P.P.P.S. On the Philippine legal system: Whereas the Philippine legal system treats custom as a fact to be proved, aside from the recent development of carving out BARMM as a protected jurisdiction.
This is very useful. If this was our cultural programming this explains a lot how we use and bow to the whims of social media.
I will probably think about this a lot moving forward. How does one translate this to how our government should work given the culture and where we want to go.
No problem GC. I have been trying to move my thinking along these lines also, though I have been thinking about it in bits and pieces since about 25 years ago. Sometimes my problem is I have so many ideas and lack of time to organize them. Claude has been a great help in this regard. I’m still continuing some deep research on this cultural operating system theory… will share the details with you when I’m done.
Claude / Codex has been a great unlock. I can just delegate the research now. Just had to train myself to compartmentalize while the research phase is ongoing it took a few months but it was such a great unlock for me.
Most people use AI as a sort of Super Google, though credulous acceptance of outputs is a concern. Worse is use as a confirmation bias generator…
When used correctly, Claude is immensely powerful. Usually before I embark on a research project, I develop a research framework. My own usage is typically quite tightly defined and I constantly challenge outputs with sourced factual data even if the output is marginally wrong.
Are you using connectors with Claude and Codex? I have a custom connector to a private dataset on my machine learning rackmount server which runs multiple nVidia GPUs on an AMD EPYC platform. I’m currently using nVidia Blackwell-based GPUs but have been using consumer GPUs all the way back to nVidia GTX 200 series back in 2008, though I’ve been doing machine learning long before that to my uni days. Mac Minis turned out to be super powerful as well and I’ve been tinkering with one for lighter LLMs connected back to Claude.
P.S. I read something interesting from OpenRouter (AI token usage aggregator):
Turning gunpowder into fireworks repeats itself.
I use connectors extensively with Claude and Codex. both for connectors and MCP servers.
My workflow is tedious if not a bit more manual.
I mostly deal with smallish data mostly corporate data (SEC), health data (ConnectMD, QCG), financial data (CIC).
The workflow is do everything locally. Airgap anything sent to Claude/Codex.
Generate anonymizer or randomizer scripts .
Put those randomized/anonymized data in the cloud for claude to do the script builds.
use the scripts locally.
The big unlock for me is the finding references and cross referencing, and verifying sources and doing the math to make sure what I feel is actually reality based and not just feels. The UHC series has been in my mind since 2024 but the effort to check and cross check was just too much for me to put it out. The basic sentiment has been verified by the data which soothes me as it means the original instinct was correct.
Connectors are the real skill unlock when it comes to Claude.
I think tedious and manual is the right way to go — a lot of people expect AI to automatically do everything for them. For me AI is sort of like a super Excel or super database to organize large amounts of data efficiently. Something like that would’ve taken me longer to do manual transforms on back then to get the data ready for ingestion. AI is basically a sophisticated pattern recognition machine.
Perhaps the correct way to use AI effectively is as an “orchestrator” who arranges the sheet music then conducts the symphony of agents.
On my current good governance side research, I’ve probably read through 100+ documents and studies. Then I set up the project in a programmatic, defined way. My main goals are to find correlations I may have missed due to sheer amount of data even though I’ve personally read them all.