Louisiana is arguably the most unique state in the Union. From its Cajun culture to its use of parishes rather than counties, there are many things that are exclusive to the state separating it from the rest of the country. None of these differences, however, are as notable as Louisiana’s use of civil law. Whereas the remaining 49 states have traditionally operated under common law, Louisiana has practiced civil law since its infant years of settlement. Due to the overwhelming influence of Europe over the fledgling state of Louisiana, civil law has consistently been woven into the legal system of the 18th state of the nation, almost without exception. The Louisiana Civil Code is a product of French and Spanish laws that is considered one of the most revered civil codes in modern times.
What are the differences between civil law and common law?
The central difference between civil law and common law is that civil law rests upon written codes, while common law is established by precedent set by previous court decisions. In a civil law legal system, central principles are codified into a referable system that operates as the central source of law. These codes and statutes are constructed to potentially envelop all legal circumstances. This system restricts judges to perform more of an inquisitive role where they must apply the law of written statute to the facts presented in the case. Previous decisions made by courts are merely untethered guidelines for judges. Civil law depends more on a direct interpretation of the codified law; therefore, an individual judge’s interpretation predominates a historical understanding of the law. Common law on the other hand is distinguished by case law, wherein judges formulate the law by rendering judgements in courts. These judgements are then referred to by other and future judges as legal precedent. This precedent acts as the primary source of law allowing judges to contribute to the rule of law.
Both legal frameworks find application across nations globally, with a rich and ancient history. The first establishment of civil law is agreed to be around 600 A.D. by the compilation of coded laws under Roman Emperor Justinian. Numerous countries since then have found legal authority in this initial set of laws and have continued to develop and spread to other nations into the modern civil law we see today. Countries such as China, Japan, all of South America with the exception of Guyana, and the vast majority of Europe follow civil law. Common law originates in England around the time of the Norman conquest (1066 A.D.,) when the different regions of the country initially began to unite. Most countries that employ common law were once English colonies including, India, Australia, Canada, The United States apart from Louisiana, and of course, England itself. Although these countries have varying judiciary systems, the main principles of common law remain throughout them all.
Why does Louisiana use civil law?
Civil government finds its beginning in Louisiana when it first became a French colony in 1712. The laws of France ruled the colony until 1769 when Alejandro O’Reilly officially established Spanish rule after the colony was ceded to Spain in 1762. Spanish law in Louisiana, while different from its French counterpart, was still inherently a civil system comprised of 11 different codes. Spain would retain possession and control of the colony until 1803, following the Louisiana Purchase where the United States acquired the territory. Prior to this acquisition, France had assumed authority of the colony for an interval of only 20 days. During this period there was no effort made to repeal any standing Spanish laws.
As one of the commissioners appointed by Thomas Jefferson – president at the time – William Claiborne’s first formal action in 1803 was to temporarily preserve the laws of Spain in Louisiana with the intention of replacing them with common law. These Spanish laws that were contained in the previously mentioned 11 different codes numbered more than 20,000. This enormous collection of laws was teeming with conflicting clauses, resulting in an urgent need to resolve these conflicts and establish substantive law in the territory. Although these laws caused issues due to their conflicting provisions, residents of Louisiana had become familiar with them. The population of Louisiana was predominantly French, while the remainder was substantially Spanish. Whatever differences these residences disagreed upon, they were united under opposing the establishment of common law. These inhabitants feared having to rely on precedent set by English courts and preferred to remain under the rule of Spanish Law, and they were not alone.
When the United States acquired Louisiana, Americans flocked to the city of New Orleans determined on amassing wealth. One of these Americans came to be the leading advocate for the purpose of retaining civil law in Louisiana. Edward Livingston was a lawyer from New York who emigrated to New Orleans in 1803. Although accustomed to common law practice, Livingston had studied civil law and grew fond of it. Livingston and Claiborne quickly became political adversaries over their opposing legal views. When Congress decided to divide the area known as Louisiana in 1804, the portion that is now considered the State of Louisiana was named the Territory of Orleans. Congress determined that the Territory of Orleans would be governed by a legislative council of 13 men appointed by the president. Claiborne became governor of the territory and was eager to convene the legislative council to implement common law. Livingston feared this council and urged Congress to grant the Territory of Orleans statehood immediately so that it may be governed by elected officials.
The legislature convened and formed a committee of three of its own members to construct a civil and criminal code, as well as employ two other lawyers to aid in drafting these codes. Among the two lawyers chosen was Edward Livingston. Claiborne was opposed to Livingston’s appointment, and in effect caused the committee to produce nothing. Congress then determined that the territory would be governed by a legislature composed of a house of elected representatives and an appointed legislative council. The first legislature of the Territory of Orleans convened in 1806 and adopted an act the enforced the then currently standing Spanish laws. Governor Claiborne immediately vetoed this act, which caused numerous members of the legislature to produce a manifesto that contained the following excerpt, “We certainly do not attempt to draw any parallel between the civil law and the common law; but, in show, the wisdom of the civil law is recognized by all Europe; and this law is the one which nineteen-twentieths of the population of Louisiana know and are accustomed to from childhood, of which law they would not see themselves deprived without falling into despair.” Governor Claiborne now realizing the opinion of the majority, approved a resolution that appointed James Brown and Louis Moreau Lislet to construct a civil code based on the Spanish laws that currently governed the territory.
Brown and Moreau Lislet were familiar with the French and Spanish languages and supported the adoption of a civil code for the Territory of Orleans. On March 31, 1808, their code was officially adopted by Claiborne, just two years after their work began. However, this code was not based on Spanish law as the two had been instructed to do so, and instead was modeled upon the new Code Napoleon. There are various theories on why Brown and Moreau Lislet made this decision, and some that claim their code was not based on the final Code Napoleon, but rather just a draft of the code. Regardless of the source of the code, there are many similarities as well as differences between the Napoleonic Code and the Louisiana Civil Code. There are articles in the Louisiana Code that were in the draft of the Code Napoleon, but not in the final version. Conversely there are articles in the Louisiana Code that were present in the final Code Napoleon, but not in the draft. Most notable is the addition of certain Spanish laws in the Louisiana Code that are not present in neither the draft nor final Code Napoleon.
Rooted in Roman law, fashioned after the influential Napoleonic Code, enriched with the wisdom accumulated over a span of fifteen centuries, and influenced by American principles and customs, the Louisiana Civil Code stands as a dynamic and enduring tribute to its creators. Even after 200 years of application, the Louisiana Civil Code continues to command respect, serving as a robust body of substantive law that caters to the current legal landscape and has the capacity to evolve to address future demands. Much like the composition of the state it governs, the Louisiana Civil Code is a melting pot of different cultures and philosophies and is one of the many aspects that make this state so unique.
By Austin R. Vidal
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