Classifying the Legal System of the Philippines:

A Preliminary Analysis with Reference to Labor Law*

Petra Mahy** and Jonathan P. Sale***

Abstract

In some recent international literature on comparative law

and economics, the Philippines has been misclassi�ied as a
civil law family country. This paper provides a corrective to
this view by tracing the foreign in�luences on the Philippine
legal system as a whole, and on the development of labor
law speci�ically, to demonstrate that American common
law in�luence has far outweighed that of the Spanish
civil law heritage. However, this is only part of the story,
as in the post-colonial era, the law of the Philippines
has progressively re�lected local political and economic
conditions and in many instances has developed without
any direct reference to external models. Hence, this paper

*
The authors thank Richard Mitchell and the anonymous reviewer for their comments on
earlier drafts of this paper. Any remaining errors of fact or analysis are the responsibility
of the authors.
**
Dr. Petra Mahy is currently a postdoctoral research fellow at the Centre for Socio-Legal
Studies, University of Oxford. During July-August 2013 she was a Visiting Professor to the
School of Labor and Industrial Relations (SoLAIR) at the University of the Philippines.
This paper is also related to her previous employment as a Research Fellow at Monash
University working on the Australian Research Council Discovery Project titled ‘Legal
Origins: The Impact of Different Legal Systems on the Regulation of the Business Enterprise
in the Asia-Paci�ic’ (DP1095060).
***
Dr. Jonathan P. Sale is Dean and Associate Professor of the School of Labor and Industrial
Relations (SoLAIR) at the University of the Philippines. He is a member of the Philippine
Bar

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Mahy and Sale

argues that the Philippines is more rightly classi�ied as a

hybrid legal system dominated by common law traditions,
but that such a classi�ication will still not adequately
describe the nature of the current system.

There is in the Philippine Islands a unique legal system, in

which the two great streams of the law − the civil, the legacy
of Rome to Spain, coming from the west, and the common,
the inheritance of the United States from Great Britain,
ampli�ied by American written law, coming from the east
−have met and blended -
(Justice George A. Malcolm, cited in Gamboa, 1946, pp. 97-98).

Introduction

In recent years there has been increased interest among

scholars of comparative law and economics in the classi�ication of legal
systems. In particular, the ‘Legal Origins’ theory, �irst proposed by La
Porta et al. (1997, 1998, 2008), was based on the division often made
in comparative law scholarship between civil law and common law
system families. La Porta et al. argued that countries tend to be locked
into a particular style of business regulation according to which legal
family they belonged to, and that this resulted in different economic
development outcomes. Speci�ically they argued that common law
countries tended to have stronger investor protection and more
effective �inancial systems than civil law countries. The original
“Legal Origins” scholarship was concerned with corporation law
and the strength of shareholder protection, but the theory has since
been extended to consideration of other areas of business regulation,
including labor law and the protections extended to workers (e.g.
Botero, 2004; Deakin et al., 2007; Mitchell et al., 2010; Anderson et
al., 2011; Cooney et al., 2011).
The “Legal Origins” theory has been in�luential and has
underpinned some of the recent law and development policies of
international institutions.1 It has also, however, been very controversial
and has come under critique from a number of different angles. One
of the major critiques of the theory is that it overlooks the existence
of hybrid or mixed legal systems; that is, systems which substantially
combine elements of both civil and common law models. According
to Kim (2009), the complexities presented by this group of countries

2 Philippine Journal of Labor and Industrial Rela�ons

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abstract=2436786
 Classifying the Legal System of the Philippines

was perhaps purposefully ignored in order to make them �it neatly

into the rigid common law and civil law division favored by the Legal
Origins theorists. Determining just which countries should be included
in the “hybrid” or “mixed” category is, of course, a matter of debate,
particularly given that most systems have adopted some elements of
law associated with other legal families at some point in time. Many of
the jurisdictions often classi�ied as hybrids in the wider comparative
law literature were earlier occupied by a civil law country followed
later by the British or Americans. These include South Africa, Israel,
Sri Lanka and the territories of Scotland, Quebec and Louisiana.
The Philippines, too, is usually categorized as having a hybrid
legal system. Although there are relatively few detailed studies of
Philippine legal history, the dual Spanish civil law and American
common law in�luences on the development of its laws and institutions
is well accepted in the existing literature (Gamboa 1939, ch. 8; Agabin,
2011, 2012). However, as was the case with many other mixed
jurisdictions, in the work of La Porta et al. (1997) on corporation
law and in the related study by Botero et al. (2004) on labor law, the
Philippines was classi�ied as having French civil law origins (due to the
Spanish Codes having been based on the French Napoleonic Codes).
Even the work of Berkowitz et al. (2003, p. 178), which highlights
the importance of understanding the “transplant effect” in relation to
the Legal Origins theorists’ claims and thus pays closer attention to
the non-Western world, contains the following short explanation for
coding the Philippines as a civil law country:

Spanish law is the main source. Spanish colony since

1565. Codi�ications in the late 1900s are based on
Spanish codes of 1829. Amendments and introduction
of new procedural rules when sovereignty over the
Philippines is transferred to the US in 1898, but character
of legal system remains unchanged [our emphasis].

As we will show in this paper, these studies are clearly incorrect

in their classi�ication of the Philippines in the civil law family. There
were not only procedural rules introduced by the United States (US)
following its takeover of the Philippines, but a whole host of public and
commercial laws together with general common law system traditions.
Consequently, we argue, the Philippines is not best characterized as

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Mahy and Sale

a civil law country, but rather as a hybrid legal system dominated by

common law in�luence.
In hybrid legal systems, different areas of law display varying
degrees of civil versus common law in�luence, and it has been noted
that such countries often display signi�icant borrowing of Anglo-
American commercial laws (Palmer, 2012, pp. 91-92). In this article,
we �irst describe the development of the Philippine legal and political
system as a whole. We then focus on the sources and development of
labor legislation, and subsequently analyze three additional factors
that have been involved in the evolution of labor regulation in the
Philippines; judge-made law, Department of Labor and Employment
issuances, and the role of the International Labor Organization (ILO).
With respect to labor regulation in the Philippines, we �ind, in this
preliminary analysis, that the ongoing in�luence of vestigial Spanish
laws has been minimal, and that the labor law system owes the vast
majority of its formative laws and style of regulation to the American
common law model. We also demonstrate that the external in�luences
on the historical development of labor law have mostly re�lected the
in�luences on the development of the legal system as a whole, but with
some differences at particular points in time.
However, a classi�ication as to the dominant legal origin family
is still unlikely to capture adequately the nature of Philippine legal
system as a whole or its labor regulation system more speci�ically.
Legal origins theory has little to say about the possibility of law
developing endogenously subsequent to the introduction of Western
legal models. That is, it assumes path dependence and that the original
transplanted law and style of regulation will continue to exert its
dominance through time. By way of contrast, in a recent paper, Cooney
et al. (2014) have demonstrated in the case of India, Indonesia and
China that transplanted Western models of labor law appear to have
had limited in�luence through time on the development of the labor
regulation systems in those countries. Similarly, as we will explain
here, as time has passed, the tendency to follow US models has
decreased, and the current Philippine labor law system owes as much
to domestic developments triggered by the local political and economic
context as it does to its US foundations. The evidence provided in this
paper also supports Harding’s (2002) view that the classi�ication of
Southeast Asian legal systems according to Eurocentric legal family
categories provides only a very general understanding of legal style
and method.

4 Philippine Journal of Labor and Industrial Rela�ons

 Classifying the Legal System of the Philippines

The Philippine Legal System and its “Hybridity”

The Philippines has a unique colonial history in the Southeast

Asian context: it was colonized �irst by Spain up until 1898 and then
(following a brief period of Philippine revolutionary government) by
the US. It gained full independence in 1946 following liberation from
the Japanese occupation. Since then, the Philippines has undergone
a number of radical political regime changes which have also had
profound effects on law-making and the sources of models for new
laws. Unfortunately, there are few long-run legislative histories of the
Philippines that trace the links between politics and law, particularly
in the post-Independence era. This may be due to the fact that the idea
of law as a concrete manifestation of policy-making tends to be weak
in transitional states, especially those with strong patrimonial features
like the Philippines (Hutchcroft, 1998, pp. 17-18). This probably
explains why the academic literature on the Philippines is much more
focused on political development rather than on legal evolution. Thus,
this section provides a necessarily brief and broad-brush history of
the different periods in the history of the Philippines and outlines
their legacies for the development of its political and legal system. The
subsequent section will speci�ically focus on the development of labor
law.
Spain was the colonizing power in the Philippines from the
mid-16th century through to 1898. Spain, during the 19th century,
experienced a law codi�ication movement which resulted in a series of
codes which were then extended almost wholesale to the Philippines.
These included the Spanish Code of Commerce of 1885, the Spanish
Civil Code of 1889, and the Penal Code of 1886 along with Codes of Civil
and Criminal Procedure and a number of other more minor legislation.
Spanish jurisprudence and legal commentaries were also imported to
the Philippines, and these were persuasive on the interpretation of the
law. There was also a body of Canon law introduced by the Catholic
Church which was closely identi�ied with the colonial state. While it is
true that Article 6 of the Spanish Civil Code explicitly recognized that
the “customs of the place shall be observed,” it is generally accepted that
indigenous regulation was largely displaced by the Spanish regime, and
only vestiges of it remained in rural areas (Feliciano et al., 2001; Lynch,
1983).2 The main exception was the continued existence of Islamic law
in the southern islands, as these areas were never fully subjugated by
the Spanish. One of the most important legacies of the Spanish era was

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Mahy and Sale

its system of concentrated agricultural land ownership which was to

become the power base for Philippine political and economic elites
long after the Spanish departed (Anderson, 1988).
Following the Spanish-American war, in 1898 Spain ceded the
Philippines to the US. The Treaty of Paris that transferred sovereignty
over the archipelago guaranteed the protection of existing property
rights. During the early American era when the Philippine Commission
was in full command (1901–1916), the US, motivated by an uneasy
combination of colonial zeal and the desire to exploit economic
opportunities in the new colony, American democratic ideology, and
a determination to civilize the Filipino people, aimed to reconstitute
the legal system (Castañeda, 2009). Although the Americans were
initially interested in rediscovering Philippine indigenous law, this
was quickly abandoned, and they set about grafting US common law
concepts and norms onto the existing Spanish civil law system (Lynch
1983, p. 460). The various Spanish Codes suffered different fates
during this era. The Civil Code was slightly amended while the Code
of Civil Procedure was completely replaced. The Spanish Penal Code
was radically amended, and the Code of Commerce was reduced to a
skeleton by the enactment of various new commercial laws. Indeed,
it was in the area of commercial law that the American attempt to
recreate the Philippines in its own image was most evident (Agabin
2011, p. 213).
Further, all public law was completely replaced by laws
written by American lawyers trained in common law who largely
drew on American models (Gilmore, 1931, p. 471). The court system
was reorganized and adversarial procedures largely replaced the
earlier inquisitorial system, although one outstanding difference was
the omission of the right to trial by jury. The Supreme Court of the
Philippines began to use common law concepts to assert colonial
authority including the concept of stare decisis or binding precedent
(Agabin, 2011, p. 19). While the judicial decisions of Spanish
courts were no longer considered binding, they were still referred
to for interpretation of the remaining codes. Hence, a Philippine
jurisprudence resulting from both civil law and common law sources
resulted, but as Gilmore noted in 1931, the features of the common law
[would] greatly predominate” ( p. 477). Indeed, the Supreme Court has
continued to perform a law-making role largely within the tradition
of the common law.

6 Philippine Journal of Labor and Industrial Rela�ons

 Classifying the Legal System of the Philippines

Throughout the gradual process of relinquishing American

power to the Filipinos up to the creation of the self-governing
Commonwealth government in 1935, American in�luence on legislation
continued to be paramount (Gilmore, 1931, p. 471). The Constitution
of 1935 was also based on ideas of American constitutionalism and
included a Bill of Rights similar to, but not an exact copy of, that of the
US (Smith, 1945). During the transitional Commonwealth period which
lasted from 1935 to 1941, local Filipino politicians had greater political
power than ever before but there was still limited franchise. Ironically,
the decolonization process created a system where the executive,
President Quezon, exercised uncontested political power. Quezon was
able to enact his policies into law without undue opposition from any
quarter, and he relied chie�ly on the American model as a basis for
his “Social Justice” policies (Hutchcroft & Rocamora, 2003; Gopinath,
1987). As will be discussed in the section below, the introduction of
compulsory arbitration of labor disputes occurred under Quezon’s
leadership.
The Japanese occupation of 1941 to 1945 left no lasting legal
legacy in the Philippines. Thus, at the time of full Independence in 1946,
the Philippines had a legal system that combined remnants of Spanish
in�luence with the much more pervasive overlay of American law and
practice, especially in the areas of public and commercial law. As with
many other post-colonial nations, the Philippines soon embarked on
efforts to make the system accord with nationalist ideals re�lecting
indigenous culture within the content of the law. A Code Commission
consisting of a small group of law academics was appointed in 1947
to revise the existing codes. Although the Commission intended to
rework all the codes, its main achievement was the Civil Code of 1950.
According to its principal drafter, this Code was 57% old and 43%
new (Rivera, 1978, p. 34). Based on the structure and content of the
Spanish Civil Code of 1889, the new provisions were adapted from the
laws of a range of jurisdictions including France, Argentina, Mexico and
Louisiana, as well as from Philippine custom and doctrines laid down
by the Philippine Supreme Court. The new Civil Code also con�irmed
the common law principle of stare decisis (Art. 8). Anglo-American
principles of equity and tort law and rules on sales and partnerships
were also adopted into the new Code. As will be discussed below, the
major labor regulation development of the 1950s, the Industrial Peace
Act of 1953 and its introduction of a collective bargaining system, was

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Mahy and Sale

much more overtly in�luenced by American models than the more

eclectic approach taken in the revised Civil Code.
Throughout the subsequent decades (the pre-martial law era),
the role of President was somewhat weaker, and there was a two-party
political system, but there were few ideological differences between the
two parties. There was increasing franchise of Philippine citizens, but
new forms of patronage and elitism emerged (Hutchcroft & Rocamora,
2003, pp. 271-2). One constant, however, was that the US still exercised
neocolonial power in the Philippines, as economic and military aid was
exchanged for priority access of US investment (Shalom, 1981). All the
Presidents prior to Corazon Aquino, who took power in 1986, had the
support of the US; that is, no candidate for President opposed by the
US ever won (Hidalgo, 2002, p. 269). One example of this in�luence
is that US advisors helped to draft the (ultimately ineffective) land
reform legislation of the mid-1950s and were involved again in the
Land Reform Code of 1963 (Shalom, 1981, p. 119). Writing in 1960,
Perfecto Fernandez, one of the Philippines’ leading law academics of
the time, noted that there had been a steady and unabated accretion of
American rules into the Philippine legal system, both of a substantive
and procedural nature. This was especially true, he wrote, of laws
on labor relations, social insurance, taxation, banking and currency.
Fernandez also noted that Philippine courts exhibited the same
patterns of behavior as their American counterparts, and treated
American case law as though it were binding in the Philippines.
In 1972, President Marcos declared martial law in order
to bypass the limit of two Presidential terms, and then through
dominance of the military essentially set himself up as dictator. The
idea of “martial law” itself was an American import into the Philippine
system – the Jones Organic Act of 1916 gave the Governor General the
power to declare martial law (Muego, 1988, p. 28). What Marcos did
with his martial law powers, however, was done in “Filipino style”
(Agabin, 2011, p. 249). He put aside the American-style public law
system and the doctrine of separation of powers. Marcos undermined
the “rule of law” and threatened his opponents that their property
could be removed at the stroke of a pen (Anderson, 1988, p. 214). He
retained a “�ig leaf of legality” (Agabin, 2011, p. 252) by creating a
new Constitution and installing a rubber stamp parliamentary body
(Batasang Pambansa), which was packed with his own allies. Supported
by a team of academics and technocrats from the University of the
Philippines, Marcos promulgated thousands of Presidential Decrees

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 Classifying the Legal System of the Philippines

(PDs) aimed primarily at attracting foreign investment and supporting

his regime.3 He continued to use Presidential Decrees throughout his
Presidential term despite the existence of the legislative body (De Dios
1999, p. 133). These Decrees included the formal adoption of the Code
of Muslim Personal Laws in 1977, the Civil Service Decree in 1975 and,
as we will discuss below, the Labor Code of 1974. A series of PDs on
banking reform were drafted by an IMF-Central Bank of the Philippines
Committee. Not all the laws of the era were PDs; the Corporation Code,
for instance, was enacted by the Batasang Pambansa in 1980.
Despite some initial economic success following the declaration
of martial law, by the early 1980s, the Philippine economy, which was
riddled with patronage ties and corruption, was in a slump and had
become known as the “sick man of Asia.” Marcos accepted structural
adjustment loans from the World Bank and IMF and in return was
forced to make a number of legal changes related to tariffs, import/
export licensing, duties and taxes, government expenditure and
international �inancial investments. The changes were made quickly
without consultation and were generally unsuccessful in their aims due
to domestic political conditions and the onset of the world recession
(Edwards, 2007; Bello, 2005, p. 13). The worsening economic situation,
followed by the “People Power” uprising, led to Marcos’ downfall and
replacement by Corazon Aquino in 1986.
In the post-martial law era, the Philippines has returned to
constitutionalism and the doctrine of separation of powers, although
patronage politics re-emerged in both old and new patterns and again
the political system has been characterized by unstable parties and
coalitions without clear ideological positions. The new Constitution
of 1987 essentially remodeled the 1935 Constitution by providing
for greater executive accountability and limiting the power to declare
martial law. The Philippine Supreme Court was given wider judicial
review powers. The Constitution also provided that “generally accepted
principles of international law shall form part of the law of the land”
(Article II [2]). This provision has since been a mechanism for the
frequent invocation of principles of international law in Philippine
courts (Desierto, 2009). The general consensus among commentators
is that the 1987 Constitution can no longer be characterized as just
being an American transplant but rather is a re�lection of more recent
Philippine political history (Villanueva, 1990, p. 56; Feliciano, 1990).
The Aquino government (1986–1992) began with a strong
popular mandate for social reform. It passed legislation facilitating

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Mahy and Sale

work among urban poor, giving rights to indigenous people and

women, and promoting local governance. However, implementation
of these was largely frustrated by political realities. Social reform
was arguably sacri�iced to reassure domestic and foreign investors
and further dissipated in the confusion of frequent coup attempts
(Rocamora, 2012; De Dios & Hutchcroft, 2003; Hill, 2013). The Aquino
government was controversially forced by the World Bank and IMF to
honor all Marcos-era debts, even those that had involved fraud. It did
introduce a comprehensive agrarian reform package in 1988, but there
were many loopholes and political dif�iculties with implementation. It
also made some modest trade liberalization reforms by dismantling
import control and monopolies in agriculture (De Dios & Hutchcroft,
2003).
Fidel Ramos was elected as President in 1992. The Ramos
government (1992–1998) is generally regarded as having been an
economic reformist administration. Shaped within the doctrine of the
Washington Consensus and embedded in successive IMF and World
Bank adjustment loans, the Ramos government’s polices sought to
continue with trade liberalization and to achieve macroeconomic
stability. In the face of business opposition, it dismantled monopolies,
especially in telecommunications, and deregulated and privatized
industries such as oil, transport and water (Bernardo & Tang, 2008).
Many of the policy implementers during this period were bureaucrats,
and academic economists also played important policy-making roles
(Hill, 2013).
During the following three years under President Joseph
Estrada (1998–2001), liberalization measures continued under
international in�luence. For example, the USAID-funded AGILE
project of the late 1990s and early 2000s “help[ed] to produce a
lot of legislation” to implement a wide-ranging economic reform
agenda, including bank liberalization, trade liberalization, bankruptcy
and securities regulations (USAID, 2000, p. 2). Estrada was extra-
constitutionally removed by a public uprising in the middle of
impeachment proceedings, and his Vice-President Gloria Macapagal
Arroyo saw out the rest of his term before being elected in her own
right. The comparatively long-lived Arroyo administration (2001–
2010) faced the dif�icult task of normalizing political and economic
conditions after the excesses and inadequacies of the previous
administration. However, it was crisis-prone and endured various
uprisings, impeachment attempts and bribery scandals, and there

10 Philippine Journal of Labor and Industrial Rela�ons

 Classifying the Legal System of the Philippines

was an increase in politics-related incidents and killings, leading

commentators to conclude that Philippine democratic structures were
weak and lacking legitimacy (Hutchcroft, 2008).
The current President, Benigno Aquino III (2010–present),
was pushed to run for President following the death of his mother,
Corazon Aquino. He was able to transform the nation’s grief for her
into support for change and his campaign win was reminiscent of
earlier “people power” movements. The twin-pillars of his government
are anti-corruption and anti-poverty and a broad range of political
and economic reforms are being undertaken (Rocamora, 2012, p.
204). It is likely, however, that his term will also be remembered
as the period during which the Philippine Supreme Court declared
as unconstitutional and therefore illegal, the Priority Development
Assistance Fund (PDAF) or “Pork Barrel” system in Congress,4 and as
partly unconstitutional and illegal, the Disbursement Acceleration
Program (DAP) and related issuances of the Executive.5
The Philippines, thus, has a legal system founded on Spanish
civil law, which still contributes to the form and content of the Civil
Code and to some other features of the system. However, American
in�luence has been pervasive in the Philippines, particularly in
public and commercial law and in court procedures and principles.
In more recent decades, local Philippine political developments
have led to greater self-con�idence and use of original legislation to
pursue political goals. American in�luence is now not so direct, but
globalization pressures have had particularly noticeable effects in
economic legal reforms. Despite this greater self-con�idence, unstable
democratic processes and elite-dominated patronage politics have
continued to characterize the legislative process in the Philippines.
Having described the development of the Philippines legal system as a
whole, in the following section, we give an account of the development
of one speci�ic area of law – labor law.

Overview of the Development and Sources of Labor Legislation

in the Philippines

Much of the history of the development of Philippine labor

law, and the outcomes of these laws, has been described in more detail
elsewhere than will be included here.6 What we are interested in
identifying here are the major external and domestic in�luences on the

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Mahy and Sale

form and content of Philippine labor law over time, in order to illustrate
the relationship between this area of law and the classi�ication of
the Philippine legal system more generally. To that end, we brie�ly
describe here the major developments in Philippine labor law during
the Spanish, American and post-colonial eras. This material should, of
course, be understood within the larger context of the development
of the legal and political system of the Philippines as outlined in the
previous section of this article.
There were no speci�ic industrial relations policies during
the Spanish era in the Philippines (Jimenez, 1993). The Spanish Civil
Code provided only the basic foundations of contracting, and the
provisions of the employment contract were left entirely up to the
parties. The Spanish Commercial Code required one month notice for
termination of an employment contract by either party or a mesada
payment equivalent to one month salary in lieu of notice. Industrial
action was effectively banned under the Penal Code. Unlike in many of
the other colonies in the region which passed speci�ic laws to ensure
labor supply and discipline for colonial enterprises, particularly for
plantations,7 the Spanish colonial regime in the Philippines did not
pass any labor speci�ic legislation. Instead, the Spanish used a semi-
feudal system of production (the Hacienda/Encomienda system)
where labor control on plantations (sugar, tobacco, coconut) was
secured through the paternalistic power of planters, who were often
part of the newly created indigenous elite (McCoy, 1994). There were
also sharecropping systems in place where labor was contracted on a
share-tenancy basis or cash advances were used to secure the services
of laborers in areas with labor shortages (Aguilar, 1994). In the Spanish
era there was only a small amount of industrialization in the Manila
area (mainly cigar and cigarette factories and sugar processing), and
the wage system had hardly begun to exist (Carroll, 1968). Thus, the
direct legacy of the Spanish era on labor legislation was minimal. It
should also be noted that in Spain itself, the idea that the state should
take an interventionist role in labor regulation did not develop until
the early decades of the 20th century, that is, after it lost sovereignty
over the Philippines (Domenech, 2011).
Under the American administration, the Spanish laissez-faire
approach was slowly replaced with legislative attempts both to control
and protect workers. Initially there was great concern over the issue
of slavery, due to American ideological discom�it with its colonial role
and own rejection of slavery at home, and a series of laws were passed

12 Philippine Journal of Labor and Industrial Rela�ons

 Classifying the Legal System of the Philippines

to prohibit it (Salmon, 2001). Then, as American economic policies

encouraged the proliferation of factories in Manila which produced
commodities dependent on American markets, the rising cost of living
and job insecurity soon resulted in factory strikes. The American
administration responded by using Spanish conspiracy laws against
strikers. The Bureau of Labor, established in 1908, was tasked with the
administration of certain labor laws, directly copied from American
labor legislation (Villegas, 1988, p. 72). These included an injury
compensation law in 1908, a law on fraudulent use of wage advances
in 1912, and a law in 1916 prohibiting truck (the payment of wages in
goods). A 1923 law introduced restrictions on employing children and
women at night, and introduced maternity leave provisions. Maternity
leave was subsequently challenged by capital owners in the Supreme
Court which chose to annul the provision following the lead of US court
decisions which gave primacy to the freedom of contract.8 Act 4055,
enacted in 1933, provided for voluntary mediation of disputes between
landlords and tenants and between employers and employees.
Dramatic change to labor policy in the Philippines occurred
during the Commonwealth era in response to widespread labor unrest
in the early 1930s. Under President Quezon’s “Social Justice” policy,
compulsory arbitration was introduced through the establishment
of the Court of Industrial Relations (CIR) in 1936. The CIR, modelled
on the Kansas Industrial Court Act of 1920, bore a resemblance to
the US National Labor Relations Board of the 1935 Wagner Act and
had the power to �ix minimum wages for workers and compulsorily
arbitrate disputes in �irms employing more than 30 workers. This
was a conscious choice made in preference to the US Federal New
Deal system of collective bargaining as compulsory arbitration
gave Quezon and his supporters a weapon against the political Left
(Woodiwiss, 1998, p. 128). Other laws which were developed during
this era included the gradual introduction of minimum wages and an
8-hour working day law which by 1939 was applied to the private and
public sectors. The 8-hour day law was modelled on the law of the US
(Villegas, 1988, p. 32).
The pattern during the Commonwealth era was for the
domestic context to trigger legal change, but the actual laws passed
looked to US formats. An exception to this trend was that, in response
to the land and production systems inherited from the Spanish era,
and due to the intertwining of these related issues in Quezon’s social
justice program, tenancy laws tended to be passed in concert with

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Mahy and Sale

labor laws. The CIR additionally had the power to �ix maximum rents
for tenants and to arbitrate disputes with landlords.
Following independence, work regulations concerning house-
helpers were introduced in the Philippine Civil Code of 1950. The
Code Commission reported: “The domestic servants in the Philippines
have not as a general rule been fairly treated. Social justice is to be
measured by the manner in which the humblest servant is dealt with,
for no social system can rise above its lowliest class any more than a
chain is stronger than its weakest link.” Under the Civil Code, house-
helpers were not required to work more than 10 hours per day, and
were allowed four days’ vacation each month with pay (Art. 1695). It
appears that these provisions were locally driven rather than based
on any outside model.
With the passing of the Industrial Peace Act of 1953,
compulsory arbitration was replaced with an American style collective
bargaining system. It was passed under strong US in�luence triggered
by its fear of communist power among Philippine trade unions and
the need to protect American investments (Villegas, 1988, p. 72). The
Industrial Peace Act borrowed many of its provisions, some almost
word for word, from the US Wagner and Taft-Hartley Acts (Wurfel,
1959, p. 583), and indeed it appears that it was directly drafted by
US advisors. One notable difference between the Industrial Peace
Act and the US equivalents was that the Philippines version referred
to “legitimate labor organizations” while the US legislation was
concerned only with “labor organizations”. This was deliberately aimed
at excluding company unions and those under communist in�luence
(Woodiwiss, 1998, p. 131). The 1950s also saw the enactment of
the Blue Sunday Law (1953), which prohibited all businesses from
operating on Sundays, and the Social Security Law (1954), which
was an initial, but ultimately unsuccessful, attempt at establishing an
employee social security scheme (Hartendorp, 1958, p. 508)
The next major development was the Labor Code of 1974
(Presidential Decree no. 442), passed two years after Martial Law
was declared. Essentially the Code brought together some 25 existing
pieces of disparate labor legislation – hence most of the earlier
American-in�luenced laws as they pertained to individual labor
relations lived on in a new form. With regards to collective labor
relations, however, it was intended that the Code would “energize a
new climate of development” and export-oriented industrialization,
and hence it banned strikes in “vital industries.” Although this ban

14 Philippine Journal of Labor and Industrial Rela�ons

 Classifying the Legal System of the Philippines

was modi�ied slightly in subsequent years, essentially it remained in

place throughout the Marcos era. There was also a revival of certain
powers of compulsory arbitration, and large groups of workers were
excluded from joining unions and collective bargaining. Under the
cover of tripartism there was strong state control of minimum wages
(Bacungan & Ofreneo, 2002, p. 102).
In the martial law era there was a clear departure from looking
to external labor law models to follow, and law was matched more
closely with local policy objectives (even when in the view of outsiders
this resulted in injustice for workers). However, a question about a
continuing adherence to a “civil law style of regulation” can also be
asked about the Labor Code itself. The civil law tradition prefers
coherence, structure and inclusion of all laws on one subject matter
in one piece of legislation. The Philippines Labor Code gathered
together existing American in�luenced legislation into one locus and
was certainly an effort to codify into a single piece of legislation all
the rules on a single topic. It is dif�icult, however, to draw a direct link
to civil law system thinking in relation to the Labor Code given the
passage of time since the Spanish era, and so we leave this as an open
question for the time being.
There have since been many amendments made to the Labor
Code, the most signi�icant of which occurred in the context of the
restoration of democracy in 1986 and the rati�ication of the present
Constitution in 1987. The Constitution itself expressed the policy of
preference for voluntary modes in settling labor disputes, including
conciliation. Then, among the amendatory laws to the Labor Code were
Republic Act 6715 of 1989 (also known as the Herrera-Veloso Law)
which, among other matters, strengthened rights to self-organization
and collective bargaining and gave voluntary arbitrators, upon
agreement of the parties, jurisdiction to hear and decide all other labor
disputes. In the same year, Republic Act 6727 of 1989 or the Wage
Rationalization Act, expanded the jurisdiction of voluntary arbitrators
to include unresolved wage distortion disputes (Labor Code, Art.
124). This amendment also decentralized and regionalized minimum
wage �ixing. Another major amendatory law was Republic Act 9481
of 2007. Among its major features are the relaxation of requirements
on charter registration of union locals or chapters, the eligibility of
rank and �ile workers and supervisors in an establishment to join the
same national union or federation, and contraction of grounds for
union deregistration. Recent amendments have included the Republic

Vol. XXXII Nos. 1 & 2 2012 15

Mahy and Sale

Act 10396 of 2013 which subjected all issues arising from labor and
employment to mandatory conciliation-mediation, thus undermining
the previous US-based system of collective bargaining.
A prime example of the trend towards local innovation in
labor regulation in the Philippines was the expansion of protection
to Overseas Filipino Workers (OFWs). There is a long history of
international labor migration among Filipinos. Abuse of migrant
workers had been a growing concern, but came to a head in 1995
during the Ramos administration. Republic Act (RA) 8042 or the
Migrant Workers Act of 1995 was triggered by the case of Flor
Contemplacion, a Filipina domestic worker hanged in Singapore in
1995. She was hanged for the murder of a fellow Filipina domestic
worker and the child she cared for. Protests swelled to global
proportions as Filipino migrants and their advocates took to the streets
of Manila and in their countries of employment outside Philippine and
Singaporean embassies. Many believed that Contemplacion had been
sentenced to death for a crime she did not commit, and that she should
have at least received more Philippine consular support. Protesters
demanded that the Philippine state intervene to prevent the hanging,
and they demanded that the Singaporean state reopen the case. The
protests threatened to undermine the labor export of Filipinos. Two
months after the Contemplacion case, the government passed RA 8042
(Rodriguez, 2005). The Act protects the “dignity and fundamental
human rights” of OFWs, and at the same time sought to ensure the
continued participation of recruitment agencies and encouragement
of labor migration. This law was very clearly drafted in response to
public demand while also protecting an important source of national
income and was unique in its scope and aims.9
Returning here to the issue of Spanish in�luence, there is no
remaining black letter labor law in the Philippines that can be attributed
to the Spanish, however, it is still possible to trace the vestiges of a
style of labor regulation back to the Spanish era. In particular, the
concept of “management function” or “management prerogative”
remains in the Philippines (as in many other jurisdictions) as the
vestigial power of business owners that has not (yet) been affected
by labor legislation. The laissez-faire approach to labor regulation
characterized the Spanish era, that is, business owners had the power
to contract freely with workers and to solely manage their business as
they saw �it without interference. This right was tied to the institution
of property rights (Disini, 1992, p. 57). Over time, particularly under

16 Philippine Journal of Labor and Industrial Rela�ons

 Classifying the Legal System of the Philippines

the American and Commonwealth administrations, the laissez-faire

doctrine was progressively diminished as various pieces of legislation
(many of which had common law assumptions embedded within them)
encroached on management rights in the name of “social justice” (Sale,
2011a; 2011b). Management rights have not, however, been completely
undermined, and also �ind constitutional protection under the right
of free-enterprise (Bacungan & Ofreneo, 2002, p. 116). Hence, the
link between Spanish concepts of property (which are still part of the
rewritten Civil Code) and vestigial management prerogatives remains
to the present day.
Based on the foregoing account, while there are some vestiges
of civil law in�luence in labor regulation in the Philippines, these
are relatively minor. Most of the original American laws (relating to
individual protections) have remained in the law albeit in new forms.
Collective labor regulation has been much more subject to change,
and it is there where we most clearly see domestic priorities driving
legal change without clear recourse to foreign models. We have also
demonstrated that there have been novel legal responses in the
Philippines to issues such as the protection of domestic workers and
the protection of OFWs and regulation of their work conditions. The
in�luences on the development of labor regulation in the Philippines
has largely mirrored that of the in�luences on the legal system as a
whole, with just the occasional divergence such as the early 1950s era
when the Civil Code revisions drew on an eclectic mix of foreign models
while the Industrial Peace Act was clearly American-in�luenced.

Other Sources of Philippine Labor Regulation

We turn now to brief consideration of three other sources of

in�luence on the development of labor regulation in the Philippines;
courts and case law, issuances by the Department of Labor and
Employment and the in�luence of the International Labor Organization
(ILO).

Role of the courts and case law. One of the major distinctions
often drawn between civil and common law legal systems is the
emphasis placed on the role of judges in the evolution of the law, with
civil law systems said to prefer statutory law over judge-made law
while common law systems allow judges to make law through the

Vol. XXXII Nos. 1 & 2 2012 17

Mahy and Sale

doctrine of stare decisis or precedent.10 In the Philippines, courts

have occasionally played a signi�icant law-making function in the
development of labor regulation. To take two major examples from
different eras, the Supreme Court was pivotal in the transition from the
laissez-faire approach (which it af�irmed in People v. Pomar (1924)),11
through to recognition of the state’s right to legislate with the aim of
ensuring “social justice” (see The International Hardwood and Veneer
Company v. The Pañgil Federation of Labor (1940),12 Calalang v.
Williams (1940),13 and Leyte Land Transportation Co. v. Leyte Farmers’
and Laborers’ Union (1948)).14 These later decisions relied on US
case law but were also based on interpretations of local rules and
conditions.
During the last decade, the role of judge-made law can again
be clearly seen in jurisprudence on the termination of employment. A
series of cases, beginning with Serrano v. NLRC and Isetann Department
Store (2000)15 which reexamined the previous Wenphil doctrine,16
have gradually developed the law regarding dismissal procedures
and the consequences for failing to follow due process.17 The Court
made reference to the Spanish Code of Commerce in Serrano. On the
other hand, the Court referred to US case law in Agabon and Perez.
But the decisions also relied on local rules and jurisprudence on
management rights/prerogatives and workers’ right to security of
tenure. The existence of pivotal case law is another piece of evidence
for the strong common law stylistic in�luence on the labor regulation in
the Philippines, but at the same time it is also evidence of endogenous
law-making as judges have not necessarily and exclusively looked to
outside models for the basis of their decisions.

Administrative rule-making by the Department of

Labor and Employment. Technically, the Department of Labor and
Employment (DoLE) can only issue administrative rules within the
limits established by the Labor Code. Nonetheless, the volume and
frequency of administrative rule-making about labor and employment
have been quite high in the last decade or so, and DoLE rules have
sometimes been just as important sources of legal change as the
legislation itself. For instance, a series of DoLE Departmental Orders
(DO) have pertained to the issue of labor-only contracting and
subcontracting.18 They have introduced novel processes regarding
trade union mergers or consolidations, multi-employer bargaining,

18 Philippine Journal of Labor and Industrial Rela�ons

 Classifying the Legal System of the Philippines

collective bargaining agreement deregistration and interpleader/

intervention.19
In other cases DoLE rules have arguably failed to fully
implement legislative changes. For instance, pursuant to Republic Act
9481 Articles 234 and 245 of the Labor Code have been amended. The
effects of these amendments are the relaxation of the requirements
on charter registration by national unions or labor federations of
local unions or chapters, because now national unions or labor
federations acquire legal personality and shall be entitled to the rights
and privileges granted by law to legitimate labor organizations upon
issuance of their certi�icate of registration based on requirements in
Article 234, and the eligibility of the unions of rank and �ile employees
and supervisors in an establishment to join one and the same national
union or federation. The amended rule, DO No. 40-F-03, Series of
2008, does not address these important changes.
DoLE rule-making regarding labor enforcement mechanisms
have also been very in�luential. In 2004, the Labor Standards
Enforcement Framework (LSEF)20 was established by DoLE. This was a
self-enforcement mechanism based on cooperation among employers
and their employees. Self-assessment was undertaken by employers
of establishments employing at least 200 workers and unionized
establishments with certi�ied collective bargaining agreements.
Inspection was done in workplaces with 10 to 199 workers. Advisory
services were offered to workplaces with less than 10 workers and
to those registered as Barangay Micro-Business Enterprises. In July
2013, the LSEF was replaced by the Labor Laws Compliance System
(LLCS) under DoLE DO 131-13, Series of 2013. Now, the modes
of implementation under the LLCS are Joint Assessment (for all
private establishments except those with valid Tripartite Certi�icate
of Compliance with Labor Standards), Compliance Visits (for those
subject of a referral or a complaint) and Occupational Safety and
Health Standards (OSHS), and Inspection (for those with imminent
danger, dangerous occurrences, accidents resulting in disabling injury,
or OSHS violations in plain view).
These examples of DoLE actions demonstrate two main points:
�irstly, many regulatory developments in labor law have been occurring
outside the formal legislative process in the Philippines, and, secondly,
these developments have been largely matters of domestic policy
without any clear reference to any one particular foreign model.

Vol. XXXII Nos. 1 & 2 2012 19

Mahy and Sale

ILO in�luence. The ILO is another major source of “Western”

in�luence on the labor laws of countries around the world, however, the
case of the Philippines demonstrates ILO ideals are often selectively
applied in accordance with domestic priorities. The in�luence of
the ILO on Philippine labor law can be seen as early as 1923, with
the introduction of Act No. 3071 on Regulating the Employment of
Women and Children which reproduced the content of the series of
ILO Conventions of 1919 on employing women at night, children in
hazardous conditions, and providing maternity leave (although, as
noted above, the right to maternity leave was cancelled by the Supreme
Court in People v. Pomar in 1924). The Philippines became a member of
the ILO in 1948 and it has since rati�ied more than 30 ILO Conventions,
including the eight fundamental conventions. The substance of the
Conventions is also re�lected in the 1987 Philippine Constitution and
the Labor Code as amended. But ILO in�luence on Philippine labor
law may be seen as selective and contradictory at times. For instance,
according to Bacungan (1993), there was contributory in�luence of
ILO Conventions 87 and 98 on the Industrial Peace Act of 1953, and
indeed these conventions were both rati�ied by the Philippines in 1953.
However, it was also the case that the Industrial Peace Act was largely
created by the US to prevent the spread of communist in�luence in the
Philippines. The collective labour rights contained in ILO Conventions
87 and 98 were also later suspended during the martial law period.
Two recent laws mainly affecting women workers further
highlight the Philippines’ sometimes contradictory relationship with
ILO Conventions. In 2011, Republic Act 10151 repealed the night work
prohibition for women which had been part of the law since 1923.
The law ostensibly catches up with ILO Convention developments
on overturning earlier restrictions on night work for women, but
parliamentary records show that the amendment was just as much
driven by the burgeoning call center and Business Processing
Outsourcing (BPO) industry in the Philippines and its need for night
shift workers. In 2013, the Philippines passed Republic Act 10361 or
the Domestic Workers Act (Batas Kasambahay), which gave effect to
ILO Convention no. 189 of 2011 on decent work for domestic labor.
In this case, the Philippines had played a key leadership role in the
development of the Convention, and had chaired the relevant ILO
Committee, and thus it was not just a passive recipient of this new
international instrument.

20 Philippine Journal of Labor and Industrial Rela�ons

 Classifying the Legal System of the Philippines

Conclusion

This article was inspired by the misclassi�ication of the

Philippines as a French civil law system in the “Legal Origins” literature.
With respect to both the wider legal system, and to labor regulation
more speci�ically, the article has demonstrated that the Philippines is
rightly grouped with hybrid civil law-common law origin systems. This
taxonomy, however, must come with the proviso that it is recognized
that American legal in�luence has far outweighed that of the Spanish
in commercial regulation generally, and in labor regulation speci�ically,
in the Philippines. It is also clear that subsequent to the introduction
of Western models, the law has since evolved endogenously in many
ways; as a response to local political change and popular protest over
particular issues and cases, via judge-made law, administrative rule-
making and occasionally the selective application of ILO Conventions.
This article on the Philippines thus provides support for Harding’s
(2002, p. 49) assertion that the classi�ication of Southeast Asian
countries into Eurocentric legal family categories provides little
advantage towards understanding such systems. It also contributes to
the growing academic literature that demonstrates that a reliance on
broad classi�ications of legal systems for theory building, particularly
where legal hybridity exists, is likely to be misleading.

Endnotes
1
See, in particular, the World Bank’s Doing Business country rankings, available
at http://www.doingbusiness.org/
2
This may be sharply contrasted with the situation in the Netherlands Indies
(present day Indonesia) where customary law (adat) was expressly preserved
within the Dutch colonial legal system.
3
For a list of PDs and other Presidential issuances by topic passed during the early
1970s, see Feliciano (1975).
4
Belgica et al. v. Honorable Executive Secretary et al., G.R. No. 208566, Alcantara
v. Drilon et al., G.R. No. 208493, Nepomuceno v. Aquino III et al., G.R. No. 209251,
November 19, 2013.
5
Araullo et al. v. Aquino III et al., G.R. No. 209287, Syjuco, Jr. v. Abad et al., G.R. No.
209135, Luna v. Abad et al., G.R. No. 209136, Villegas v. Ochoa, Jr. et al., G.R. No.
209155, PHILCONSA v. DBM, G.R. No. 209164, Integrated Bar of the Philippines
v. Abad et al. G.R. No. 209260, Belgica et al. v. Aquino III et al., G.R. No. 209442,
COURAGE et al. v. Aquino III et al., G.R. No. 209517, VACC v. Ochoa et al., G.R. No.
209569, July 1, 2014.

Vol. XXXII Nos. 1 & 2 2012 21

Mahy and Sale

6
See, for example, Bacungan & Ofreneo (2002), Calderon (1956); Estacio (1998),
Jimenez (1993), Jimenez (2002); Quintos (2003); Villegas (1988) and Woodiwiss
(1998).
7
For discussion of labor regulation in plantations in the Dutch East Indies see
Houben & Lindblad (1999) and for discussion of British Malaya see Parmer
(1960).
8
People v. Pomar, 46 Phil. 440 (1924).
9
Note that RA 8042 has since been amended by RA 9422 (2006) and RA 10022
(2009).
10
Although note that some commentators have questioned whether the existence
of judge-made law has been exaggerated as a point of difference between civil and
common law countries. See, for example, the discussion in Garoupa and Morriss
(2012) and in Deakin (2009, p. 41).
11
People v. Pomar, 46 Phil 440 (1924).
12
G.R. No. l-47178, November 25, 1940.
13
70 Phil. 726.
14
80 Phil. 842.
15
G.R. No. 117040, January 27, 2000.
16
Wenphil Corp. v. National Labor Relations Commission and Mallare, G.R. No.
80587, February 8, 1989.
17
Agabon, et al. v. National Labor Relations Commission, et al., G.R. No. 158693,
November 17, 2004; King of Kings Transport, Inc., et al. v. Mamac, G.R. No. 166208,
June 29, 2007; Perez v. Philippine Telegraph and Telephone Company, G.R. No.
152048, April 7, 2009 and Esguerra v. Valle Verde Country Club, Inc. and Villaluna,
G.R. No. 173012, June 13, 2012.
18
Department Order no. 10 series of 1997; DO no 3 series of 2001; DO no. 18-02
series of 2002; DO 18-A series of 2011.
19
DoLE DO No. 40-03, Series of 2003. DO No. 40-03 has been amended by DO No.
40-C-05, DO No. 40-E-05 and DO No. 40-F-03, among others.
20
See Department of Labor and Employment, Manual on Labor Standards 2004,
issued pursuant to DoLE Administrative Order No. 296, series of 2003 and
Department Order No. 57 – 2004.

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