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James A. Brown, Liskow & Lewis, PLC
Bryan T. Tedford, ACE USA
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The key distinguishing feature of a Civilian Legal
System is methodological, rather than substantive.
That distinguishing feature is a commitment to the
concept of Codification.
As stated in the 1823 Report of the Commissioners
of the Louisiana Civil Code:
“. . . to furnish our follow citizens with a single
book, in which each may find an intelligible and
concise rule to ascertain his rights, direct him in his
duties, regulate his contracts, explain his civil
relations. . .”
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The judge is merely “the organ for giving
voice, and utterance, and effect, to that which
the Legislative branch has decreed. In cases
where there is no Law, according to strict
principles he can neither pronounce nor
expound, nor apply it.” 1823 Report of
Commissioners.
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“Governments under which more is required
from, or permitted to, the Magistrate are
vicious because they confound Legislative
power with Judicial duties, and permit their
exercise in the worst possible shape, by
creating the rule, after the case has arisen to
which it is applied.” 1823 Report of
Commissioners
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“This is a vice inherent in the Jurisprudence of all
nations governed wholly, or in part, as England is
by unwritten Laws, or such as can only be
collected from decisions. In such a country where
precedent cannot be found, one must be made; in
other words where the Judge can find no Law that
applies to his case he must make it; . . . . and from
the moment that he creates and applies it, the rule
acquires all the veneration due to antiquity and
becomes, under the name of a precedent, the
evidence of pre-existing Law and a guide to future
decisions.” 1823 Report of Commissioners.
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“According to civilian doctrine, legislation and
custom are authoritative or primary sources of
law. They are contrasted with persuasive or
secondary sources of law, such as
jurisprudence, doctrine, conventional usages,
and equity, that may guide the court in
reaching a decision in the absence of legislation
and custom.” 1987 Official Revision Comments
to Louisiana Civil Code Article 1.
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Louisiana’s Civilian Tradition is expressed in
Louisiana Civil Code (“Civil Code”) Articles 14.
Civil Code Article 1: “The sources of law are
legislation and custom.”
Civil Code Article 2: “Legislation is a solemn
expression of legislative will.”
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Civil Code Article 3: “Custom results from practice
repeated for a long time and generally accepted as
having acquired the force of law. Custom may not
abrogate legislation.”
Civil Code Article 4: “When no rule for a particular
situation can be derived from legislation or
custom, the court is bound to proceed according to
equity. To decide equitably, resort is made to
justice, reason, and prevailing usages.”
Hence, in Louisiana, there are no separate courts of
Chancery or Equity. The judge resorts to equity
only in the absence of legislation or custom.
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Boudreaux (“boo-dro”) and Thibodeaux (“tee-bodoe”) are baignade (“paddlin”) at each other
“rapide” (“fast”) in their pirogues (canoes/small
boats) on Bayou Petite Cailloux (“little pebble
bayou”), a non-navigable water body. Boudreaux
is heading down stream; Thibodeaux upstream.
Boudreux yells, “Hey Thibodeaux, faire attention!”
(“watch out!”); but Thibodeaux can’t hear because
he’s yellin’ “faire attention” back at Boudreaux.
They collide; Thibodeaux is knocked overboard
and drowns.
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The 32d Judicial District for the Parish of Terrebonne
(“good earth”) has twice before decided that the
upstream pirogue should give way to the downstream
pirogue because the downstream pirogue is moving
plus rapide (“faster”).
But the estate of Thibodeaux’s avocat (“lawyer”)
introduces the testimony of the 90-year-old Thibat
(“tee-bot”), who lives right on the bayou, that at that
particular spot, it is coutume (“habit, tradition”) that the
downstream pirogue stops and lets the upstream
pirogue go first so as not to disturb the alligator nest on
the upstream side of the bayou. According to Thibat,
only a real homme platt (“flat man;” idiom: nerd, fool,
idiot) would think otherwise.
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In a common law system, who would win, the
downstream Boudreaux and his marine
insurance carrier, or the upstream succession de
Thibodeaux?
In Louisiana, assuming no Civil Code article or
other statute on point, who wins?
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For many years, debate has raged over the substantive legal
sources of the Louisiana Civil Code.
Before cessation to the United States, Louisiana had undergone
periods of French, then Spanish, then French rule.
The European colonial powers were more interested in taking
possession of the territory than in governing it.
The Louisiana Creoles (descendants of the original French and
Spanish settlers) were fiercely independent and resistant to
foreign rule.
So, at the time of the cessation of Louisiana to the U.S. in 1803,
Louisiana civil law was based on a hodgepodge of Spanish,
French and Roman legal sources, including collections of codes,
texts, and treatises. The Louisiana creoles often resolved their civil
disputes on the basis of French laws, customs and usages. A.N.
Yiannopoulos, “The Civil Codes of Louisiana” (Preface, XLIXLXXII, to 2013 Louisiana Civil Code, West Publishers).
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The duel (with pistols or swords) was used to
resolve reputational disputes. Visit the
“Dueling Oaks” in New Orleans City Park!
The Creoles were strongly opposed to the
common law. They were accustomed and
wedded to the French and Spanish traditions of
their ancestors and so successfully resisted U.S.
territorial Governor W.C.C. Claiborne’s
attempts to impose the common law system on
Louisiana. Yiannopoulos, LI-LII.
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The redactors Moreau Lislet and James Brown (no relation) attempted the
first codification of Louisiana’s civil law in the 1808 “Digest of the Civil
Laws Now In Force in the Territory of Orleans.”
Their official charge was to codify the “existing” laws of Louisiana, which
were of Spanish, French and Roman origin. But in fact, they modeled the
1808 Digest largely on the French projet du gouvernement of 1800 and the
Napoleonic Code. Brown and Lislet also incorporated some concepts
from the Spanish Siete Partidas and other Spanish sources.
Yiannopoulos, “The Civil Codes of Louisiana,” LIII.
The codification movement in France following the French Revolution
was clearly the inspiration for codification in Louisiana. Yiannopoulos,
LIII. [This said with all due respect to both sides of the still raging
academic debate.]
The 1808 Digest did not expressly repeal prior law, so technically was not
a “Civil Code” in the pure Civilian sense. But many affectionately
consider it to be the first edition of the Louisiana Civil Code.
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Moreau Lislet, Edward Livingston and P.
Derbigny drafted the Civil Code of 1825, which
expressly repealed prior law.
Thus it was the first “true” Civil Code in
Louisiana. Yiannopoulos, LV.
The redactors followed the Napoleonic Code
closely, also incorporating concepts from
French and Roman doctrine and some Spanish
sources. Id.
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Code articles written in the Civilian style:
concise, naturally written general principles.
Leaving particular applications to the Judge.
It is said that one could pass the state law
sections of the Louisiana Bar Examination
merely by reading (and understanding) the
Louisiana Civil Code. And, by rumor, Frank
Abignale (“Catch Me if You Can”) did just
that—passing on his third try.
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Key Civil Code concepts are rooted in post-revolutionary
concepts of personal right and freedom.
Example—property law: Ownership intrinsic to the
individual; not an “estate” granted by the Crown. Article
477: “Ownership is the right that confers on a person direct,
immediate, and exclusive authority over the thing.”
My property is as much a part of me as my arm or leg.
The components of property ownership are usus, fructus and
abuses. “The owner of a thing may use, enjoy, and dispose of
it within the limits and under the conditions established by
law.” Article 477.
Freedom of contract: Any contract is legal unless expressly
prohibited. Need not fit into a common law construct.
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Pierre Andre Trepagnier (“tree-PA-nyee”) owns a
building with a balcony overlooking St. Charles
Avenue in New Orleans, in front of which the Rex
Parade passes every year on Mardi Gras day (“Fat
Tuesday.”)
The month and calendar day of Mardi Gras vary
from year to year tied to the Lenten/Easter
calendar. Fat Tuesday is always the day before Ash
Wednesday.
Pierre wants to sell his building to Gaspard
Truvillier (“True-vil-yeah”), but wants to preserve
in perpetuity a right of passage to and use of the
balcony on Mardi Gras day only.
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Under common law, could the seller preserve this
once-a-year right of use in perpetuity, when the date
for exercise of the right varies from year to year?
Under Louisiana Code Article 639, the seller could
establish a “personal servitude of right of use” over the
balcony.
Under Articles 641-644, the right of use can be
established in favor of a person or entity, can be
transferred, and is heritable.
It makes no difference that the law does not expressly
address this particular situation. Under Article 477, the
owner has full rights of ownership, including the
ability to “dismember” particular components of
ownership, unless expressly prohibited by law.
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Louisiana Civilian concepts often are the rough
equivalents of common law counterparts, using
French or Latin terms.
Examples:
Usufruct = life estate
Servitude = easement
Prescription = statute of limitations
Contra non valentem = equitable tolling
Stipulation pour autrui = third party beneficiary
contract
Solidary = joint and several
Keeps us Louisiana lawyers in business!
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Influenced codification around the world,
including in Argentina, Puerto Rico and Spain.
Yiannopoulos, supra, LXI.
“As a cultural document, the Civil Code has its
own merit. It is beautifully written, so carries the
best tradition of civilian aesthetics.” Mitchell
Franklin, Book Review, 7 Tul. L. Rev. 632, 633
(1933). See also Roscoe Pound, The Influence of the
Civil Law in America, 1 La. L. Rev. 1, 16 (1938).
Many Code articles read like poetry: e.g., Article
2315: “Every act whatever of man that causes
damages to another obliges him by whose fault it
happened to repair it.” This concise, artful
sentence is the foundation of all Louisiana tort law.
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Over time, the Louisiana legislature has by
statute supplemented and modified many Civil
Code concepts and principles.
Volume II of our Civil Code is known as the
“Civil Code Ancillaries”—statutory provisions
modifying the law of the Civil Code.
But the Civil Code remains the primary source
of civil law in Louisiana.
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It would be naïve to state that judicial precedent is not
important in Louisiana today.
Intermediate appellate court interpretations of Civil
Code articles are considered binding on the district
courts in their circuits; Louisiana Supreme Court
interpretations are considered binding on all lower
courts.
But the “Civilian Method” continues to structure our
methodology and practice. A brief or oral argument
begins with the applicable Civil Code articles; reference
to judicial interpretation and precedent is secondary.
A Louisiana court will admit and rule on evidence of
custom or practice in the absence of a specific code
article or statute.
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Common law incursions:
Uniform Commercial Code (convoluted, not in the
Civilian style)
Trust Code—contrary to the post-Revolutionary
prohibition of substitutions (controlling property
from the grave)
Elimination of Forced Heirship
Contractual Choice of Law
Economic/Business Issues—Are we driving away
business and corporate location/investment?
The new generation may be less interested in
Civilian Heritage.
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