The Uniqueness of Louisiana's Legal Heritage: a Historical Perspective
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THE UNIQUENESS OF LOUISIANA'S LEGAL HERITAGE: A Historical Perspective By Ilijana Todorovic On Behalf of the New Orleans Bar Association ow many times have you heard Louisianians say, “Our law is different. It’s the Napoleonic Code.” While it is true that the “civil” law in our state differs from the common law in other sister states, it would be inaccu- rate to refer to it as “the Napoleonic Code” or as the law Hderived (solely) therefrom.1 Even numerous attorneys today errone- ously believe that civil law is simply the law embodied in civil codes, originating in Europe on the eve of the 19th century. In fact, civil law had already been highly developed throughout most of Europe before the enactment of the renowned Napoleonic Code, or any civil code for that matter. Indeed, civil law can be traced all the way back to the middle of the 5th century B.C. and “The Twelve Tables,”2 the first-ever written expression of law in Roman tradition. As such, civil law has been shaped over a period of almost 1,000 years, beginning with the rediscovery of the Justinian’s Digest in 1076. In order to fully understand the uniqueness of Louisiana’s legal heritage, it is pivotal to offer an insight into the evolution of Louisiana law from the rise of the codification movement to most recent years. What better moment to do it than for New Orleans’ Tricentennial! 378 April / May 2018 The International Trend of The Codification Movement Codification in Louisiana The intellectual freedom put in mo- The French Civil Code was drafted in tion by humanists3 coupled with the the spirit of the French Revolution, fol- industrial and technological break- lowing bloody military and political tur- throughs, such as printing, led to an moil. Despite the fact that the break from exponential sophistication and self- the past in the eyes of the law was more consciousness. For the first time, people of a line in the sand than a radical shift, across the world had access to books, the Code was presented to the world as became educated, and began to apply a “new beginning.”9 However, while the their logical analysis and reasoning French fought hard for, inter alia, a le- to everything that surrounded them. gal transformation, the recently colonial Of course, one of the first subjects of Louisiana was not looking for a change; people’s skepticism and mistrust was rather, the goal was simply to maintain the the legal system. People at the time status quo.10 viewed law as a complex and mystical The first point in understanding phenomenon and did not understand it.4 Louisiana’s legal system is to recall how They believed that legal scholars had no Louisiana, alone among the 50 states, incentive to simplify such law because came to even have a civil code modeled their expertise was desirable and in high on a European civil code. A 2004 article Code Civil Français (also known as the “Napole- onic Code”), 1804. Provided by the Law Library of demand. Even the judges, in people’s published by Loyola University College Louisiana. eyes, exploited the intricate nature of of Law Professor David W. Gruning pro- law because they could use it to jus- vides a perfect synopsis of this complicat- by the American flag by the end of tify any decision they wanted to reach. ed and fascinating story: the year. Louisiana had become an Thus, people demanded a plain and American territory. Now a part of laymen-friendly compilation of the laws French explorers arrived on the the United States, Louisiana (then that they could understand because they American coast of the Gulf of the Territory of Orleans) faced the wanted to shield themselves from the Mexico in 1682. In 1712, the question of what law would be abuse of judicial discretion. This is why, Crown decreed that the Custom of applicable.11 led by the French in 1804, the codifica- Parish would govern the colony, tion movement was born.5 and placed the colony effectively in As evidenced by the discussion below, After illegally ceasing power through the hands both of private interests this question perplexed the Louisiana le- coup d’état in 1799, Napoleon pro- and of a Superior Council. After gal community in the years to come. claimed the French Republic and named failure of the private interests, the Louisiana’s first code, “A Digest of the himself an emperor. Immediately there- Crown assumed full control in Laws in Force in the Territory of Orleans,” after, Napoleon appointed a commit- 1731. In 1762, France transferred was enacted in 1808.12 The 1808 Digest tee of four lawyers and tasked them Louisiana to Spain. The latter, stylistically resembled the French Civil with drafting a civil code.6 In only four however, did not achieve effective Code, but it incorporated certain Roman months, these four lawyers finalized control until 1769. Thereafter Spain law provisions that could not be found in the first draft of the French Civil Code administered Louisiana, perhaps the French Code but were considered rel- from scratch.7 However, contrary to more effectively than had France. evant for Louisiana, such as the rules of what the French population expected Spain established its own system public rights on the river banks (Articles and hoped for, the codification replaced of government, replacing the 452 and 456), the sale of a hope (Article one extreme with another and did not Superior Council with a Cabildo or 2451), and the action for things thrown resolve the issue of unfettered judicial city council, and applying Spanish onto the street (Article 177).13 The 1808 discretion. That is, the superabundance colonial law. Later, in 1800, Digest remained in effect when Louisiana of legal sources that initially led to Napoleon engineered the return became a state in 1812.14 complex laws gave way to oversimpli- of Louisiana to France, but his In 1817, the Louisiana Supreme Court fication and generalization which, once intentions in the Caribbean having restricted the Digest’s applicability by again, required wide judicial discretion. been frustrated, he sold Louisiana to holding that prior Spanish, Roman and Therefore, following the codification, the United States in April 1803. The French law which was not in conflict with both judges and jurists happily resumed French flag went up over Louisiana the Digest was still valid and in force.15 the roles they enjoyed during the pre- for a few weeks in the fall of that This caused great confusion in Louisiana codification period.8 year, being replaced definitively and had to be changed. But, there was no Louisiana Bar Journal Vol. 65, No. 6 379 one to effectuate the change because at- lingual because the Code, unlike its torneys in 19th century Louisiana were predecessors, was published in English dedicated to drafting legislation and could only — without any French text whatso- not devote their time to supervise the ap- ever.24 As English became the primary plication of the law and keep it on track.16 language, French was slowly dying Hence, due to the lack of sufficient legal out and, with it, the French legal doc- expertise, the confusion of legal sources trines.25 This change was also reflected created by the 1808 Digest was only par- in the educational system where lectures tially remedied by the Civil Code of 1825. were now conducted solely in English.26 The 1825 Civil Code “expressly re- Naturally, for the non-French-speaking pealed the Spanish, Roman, and French lawyers and judges, English legal au- laws in force at the time of the Louisiana thorities were more appealing and, in- Purchase.”17 However, the Code only re- stead of looking to the Napoleonic Civil pealed those laws that were specifically Code for guidance, they consulted their enumerated therein, meaning that a sub- colleagues in sister states.27 The prob- stantial part of the old law still survived.18 lem, however, was that sister states used A novelty that came with the 1825 Code legal techniques that derived from the was that its articles included explanation English common law. This is how the and reasoning.19 Notwithstanding this common law principles of equity and change, the Code was written in a techni- estoppel and the doctrine of stare de- cal fashion and was not meant to be used cisis became introduced to Louisiana Las Siete Partidas (The Seven Parts of the Law), 1767. by ordinary citizens.20 lawyers.28 Provided by the Law Library of Louisiana. Recodification of Louisiana’s Louisiana: A Civil Law, Civil Code Common Law or Mixed of jurisdiction is regarded as a “mixed 33 Jurisdiction? jurisdiction.” Louisiana is not the only As cleverly illustrated by Professor one. Some of the others are Quebec, Puerto Rico, the Philippines, South Africa, Gruning in his 2004 article, because the The cumulative impact of the infiltra- Scotland and Israel.34 With the exception rules of a society change, a civil code tion of the common law concepts into of the latter two, all these countries fol- that attempts to represent these rules Louisiana’s jurisdiction led one professor lowed the same developmental pattern and must follow and adapt so as to remain in 1937 to assert that “Louisiana had be- have readily apparent historical similarities connected to the changes and properly come a common law state.”29 This observa- 21 with Louisiana reflected in their struggle reflect them. Unlike France, Quebec or tion was not received well by Louisiana’s for autonomy — their civil law nature Haiti which re-codified their civil codes legal community which has, ever since, was established during the initial period pragmatically and deliberately, with one engaged in a concerted effort to defend of colonial rule by a continental European piece of legislation, Louisiana decided and preserve Louisiana’s civil law roots.