The Unusual Legal Framework of Louisiana
The legal system in Louisiana stands apart from the rest of the United States due to its unique origins. In 1804, Louisiana adopted the Napoleonic Code, which traces its roots back to the French code of 1800. This made Louisiana’s legal system one of the first non-English common law based systems in the United States.
The Louisiana State Legislature has been working on revising the Civil Code since 1978. In fact, the changes have continued to this day, with most revisions passed by the Legislature in June of 2005.
While the laws of Louisiana continue to be revised , the differences between Louisiana law and common law of other states is still evident. The fundamental civil law concept in Louisiana is that it is a code-based law state. Louisiana follows codal provisions that are interpreted by a series of Louisiana Supreme Court, Circuit Court of Appeals, District Court, and lower court cases. In addition, Louisiana law lacks a uniform common law precedent system that would apply to all courts. This means that generally, a legal concept or disposition recognized by a Louisiana court may not be followed by that court, or other Louisiana courts, depending on the facts and circumstances of each case. Louisiana is the only U.S. state that does not follow the common law system.
Common and Civil Law in Louisiana
One of the more well-known features of the state of Louisiana’s legal system is that, unlike every other state in the country, we don’t follow the common law legal system. Why? Louisiana was once a French colony, then a Spanish colony, and both France and Spain are civil law countries. When they left, they left behind the legal systems they imposed on the territory, which is why today Louisiana is a hybrid common law/civil law state (although even that is a debatable point). Louisiana’s legal system is still closer to the civil law model than to the common law model.
The civil law system differs fundamentally from the common law system in the way that the law is constructed and applied in different situations. The civil law has a set of rules that evolve over time but are, in the end, codified. They are written statutes and rules and regulations that are applied broadly to as many situations as possible, but that only apply once the situation has occurred-it is a purely reactive system, whereas common law systems are both reactive and proactive, or sometimes, in common parlance, "retroactive." That it is a highly codified system means that when a judge hears a case, for the most part the decision involves looking to the code, not to prior cases that have interpreted the code.
In the common law system, most of the law arises from judicial opinions. Very few statutes are enacted by the legislative bodies; instead, lawmakers draft some general principles and then let the courts interpret those principles. Because most laws are created through court opinions, there is a stronger emphasis on precedent – the idea that if the court has already ruled upon a particular issue under a particular circumstance, there is a high likelihood that the court will rule the same way the next time that they hear the issue. Again, the Louisiana system, because it was originally based on the civil law system and codified in the books, does not have quite the same reliance on precedent. In other words, just because the Louisiana Supreme Court ruled that a law means one thing in one case, doesn’t mean that they will rule the same way when that the same law comes up again in another case. Precedent carries less weight in Louisiana cases than it does in many other state jurisdictions.
The distinction between civil law and common law systems is worth keeping in mind when thinking about filing a lawsuit in Louisiana. It is a different system, with different priorities and focuses than most other states.
Louisiana’s Legal History
In contrast to other states, Louisiana’s legal system owes a lot of its classification to the French and Spanish influences that shaped it. While the United States acquired Louisiana two hundred years ago, both France and Spain were the forces attempting to govern the growth of the region and its people. They had a significant impact on its systems of justice and law. For a period of time, Spanish and French laws and customs were integrated into their administration of justice, which continued to maintain close ties with their European origins instead of establishing new foundations of law based on English or common law traditions.
For instance, Louisiana’s commercial and maritime laws were derived from the systems used in France and Spain, such as the Spanish Ordinance of 1784, which was revised by the French in 1809 and again in 1825. Furthermore, Louisiana’s Notarial Acts and Protocol Laws were influenced by the civil law codecs of Spain and France. Despite France losing control over the Louisiana Territory in 1763 and 1803 (with slight returns in 1800 in which the territory was reacquired with the Treaty of San Ildefonso and then recovered in 1803 with the Louisiana Purchase), the influences of Spanish and French legal traditions continued through into the 1900s.
The Civil Code is now the basis for Louisiana’s civil jurisprudence and its laws because of this unusual evolution involving both the Spanish and French influences. These influences would eventually result in the enactment of the Napoleonic Code, but the state’s legislators were greatly influenced by these other countries in their incorporation of civil legal traditions into the state’s body of laws. It is important to note here that these Spanish and French influences did, in fact, have some origins in the practice of English common law as well.
Important Characteristics of Louisiana Law
Louisiana’s legal system is distinct from its American counterparts, having its origins in the French and Spanish legal systems rather than the English common law system. Although significantly modified over the years, it still maintains many of the aspects of the Code Napoléon, particularly in areas like contract and tort law.
The basis of Louisiana law is written law. Therefore, any gap in the jurisprudence in Louisiana may be filled by refer to another source of written law. These primary sources of law are:
Written law is the main source of Louisiana law. The Louisiana Constitution (currently the 1974 version) is a high point in the hierarchy of legal authority. The second highest level of authority is the Civil Code, which sets forth the basic principles regarding private law , spanning areas such as property, obligations, sales, contracts, leases, family and successions. Other codes address various areas relating to public law. All of these codes are revised each year through the legislative process. Decisions by Louisiana appellate courts (both the Supreme Court and the Courts of Appeal) are binding precedent in Louisiana courts, as are decisions by the federal appeals courts within whose district Louisiana sits.
Given that Louisiana’s law is a codified form of written law, Louisiana emphasizes the importance of preventing changes in the law through court decisions. This is in contrast to common law jurisdictions such as Mississippi, which views judicial decisions as an important source of law and regularly relies upon interpretative decisions issued by the courts.
Practical Consequences for People and Lawyers
The implications of Louisiana’s unique legal system extend significantly to both resi dents and legal practitioners. In practice, attorneys in Louisiana often encounter difficulties with work product or motions that utilize terminology common in the other 49 states. For example, attorneys routinely ask for a "civil force majeure" under Louisiana law, thinking that "force majeure" is the equivalent of a "force majeure event." But, "the term ‘force majeure’ in a Louisiana contract refers to prohibited government action, not an act of God." The Louisiana State Bar Association has noted that if a summary judgment motion clears its list of local rules and then proceeds to e-filing, it is flagged as an automatic rejection; the attorneys involved must then reformat it. Further, confusion can arise when the rule guides direct practitioners to look at the "corresponding" rule in the federal rules. From experience with the regular rules, it was generally good advice to look directly at the federal rules to see if a Louisiana court actually did have a variant on it. Now, instead of looking at the local rules of the courts and other documents referenced by the federal rules, it’s potentially easier for attorneys to overlook the state-specific rules.
Recent Changes and Reforms
Recent reforms and developments in the law have continued to expand the role of common law principles in Louisiana’s civil code and jurisprudence. For example, recent legislation has blurred the line between civil and common law in cases that arise from a violation of state and federal statutes governing unfair and deceptive trade practices. The Courts of Appeal increasingly look to the common law and to statutes outside the Louisiana Civil Code to fill in gaps. These trends allow Louisiana courts to apply the most appropriate remedy in a given case, but they come at the cost of predictability. Still, rare instances of convergence between Louisiana’s civil and common law systems may be the key to minimizing uncertainty.
It has not always been this way. A staunch civil law tradition held sway in Louisiana until the middle of the last century, when external forces influenced the evolution of Louisiana’s civil law system. A revamped criminal code in the 1970s established a more common law-like system of criminal liability and evidence. Another major reform occurred in the late 1980s and early 90s, when jurists, academics, and legislators focused on the development of a coherent body of state ethics laws. Those efforts complemented and bolstered the civil law provisions addressing civil service matters, election laws, and campaign finance laws.
In the past two decades, however, a rising tide of statutory enactments and judicial decisions have pressed Louisiana "in the common law direction." Now , common law principles are evident throughout the Civil Code and its jurisprudential interpretation, even if those principles frequently flow from Louisiana’s own jurisprudence rather than the common law of other U.S. jurisdictions.
Some parallel developments exist abroad. Of note, civil law nations in Europe have borrowed from the common law, primarily to acknowledge and remedy the shortcomings of a strictly codified, civil law approach. In China – an archetype of civil law – one could argue that the country’s shift toward a hybrid legal system is the product of a common law influence. By contrast, common law countries like the United States have adopted many civil law principles to counteract the threats posed by Common Law Constituions.
An essential question is whether this so-called "common law process" will obliterate the distinction between the two legal systems. If so, recent jurisprudence – like the Court of Appeals’ decision in Picerne v. J & K Props, Inc., a case that cited the common law definition of "factual cause" from the Restatement (Second) of Torts to determine liability for workplace death – might be perceived as paving the way for a pure hybrid system, "throwing aside any remnants of dual persona." As one commentator observed, "it may be that the future of the civil law tradition in Louisiana is as part of a hybrid legal system, but the civil law tradition will remain central to Louisiana’s hybrid system."