Louisiana's Civil Law Jurisdiction
Created | Updated Jul 8, 2004
Afloat in a Common Sea
Much like Québec in Canada, Louisiana is an island in a sea of Common Law jurisdictions. In the United States, Louisiana is the only state which is a Civil Law jurisdiction. Its foundations are based in Roman Law and the texts of Justinian. Though isolated in the United States, Louisiana finds company in the global community, as two-thirds of the world's nations practice Civil Law.
The Civil Code
The most prominent feature of any Civil Law jurisdiction is the Civil Code itself, and Louisiana is no exception. True, other American States have "Civil Codes," but they are of a Common-Law character in that they exhaustive list and state every possible scenario under the law. A true Civil Code, rather, consists of general principles which guide lawyers and judges in application of the law.
One of the most prominent features of the Civil Code is that it is in fact not a body of laws, but rather one single statute with thousands of articles. Including those reserved by the Legislature, the Civil Code currently has 3,556 articles.
Under the Civil Code, the sources of law in Louisiana are legislation and custom. The courts use these sources to formulate the rules in cases before them. When no rule for a given situation exists or can be derived from legislation and custom, the court must resort to equity.
Civil Law and Louisiana's Version
One of the key differences in Louisiana from other Civil Law jurisdictions is the temporal application of the laws. Generally, in a Civil Law jurisdiction, laws can only apply prospectively, they can not apply retroactively. In Common Law jurisdictions, jurisprudence regularly applies retroactively, especially in case law. The problem is exacerbated by the fact that Civil Law judges can not create law; they can only enforce it. The Civil Law resolves this problem by enacting what are called "interpretative" laws. Interpretative laws of the Civil Code apply both prospectively and retroactively. By way of contrast, in Louisiana, a Legislative exception is made where the Legislature can state whether the law is to apply prospectively or retroactively only.
As one would expect from a legal system in which the principal feature is an over-arching general statute, in resolving a controversy before the court, judges look first to the Civil Code or relevant statutes. In Louisiana, judges look to both the Civil Code and the Revised Statutes. Revised Statutes, however, are only ancillary to the Civil Code and must be read in light of it. Unlike the Common Law where judges look to case precedents first, in the Civil Law, case precedents are considered to be unimportant as the Civil Code governs. If anything, case precedents are merely persuasive. In Louisiana, case law is still somewhat important, but the Code is what ultimately matters.
Also, unlike their Common Law brethren who are bound by the doctrine of stare decisis to uphold case precedents, Civil Law judges are bound to no such doctrine. They can ignore case law as they please. One exception exists however to such judicial freedom: jurisprudence constante. When no one specific or general law governs, but a series of cases have been decided a specific way over and over again over time, then those cases create jurisprudence constante and the judge should take notice of that law. Of course, by the time this occurs, the Legislature takes care of the problem by amending the Civil Code. In Louisiana, in theory, a judge and attorney can freely ignore case law in favor of the statutes and Civil Code. In practice, however, precedent is considered as valid law, subordinate to the Civil Code.
This brings up an interesting question: what happens when no law exists to govern a controversy? When no law exists, and the Civil Law judge has exhausted all remedies available to him, including but not limited to interpretation, Civil Code, jurisprudence constante, statutes, custom, and persuasive secondary authority such as a treatise, then and only then can the judge create a law. This is extremely rare, and in Civil Law countries like Spain, France, and Germany, it is tantamount to political and career suicide. The consequences are dire if the judge is incorrect, and could lead to impeachment. In Louisiana, this is less of a Damocles' sword hanging over the judge's head, but it is a consideration nonetheless, as ultimately the judge is challenging legislative authority.
One of the reasons creating a law is such a dangerous career move for a Civil Law judge is the structure of the court system. Typically, Civil Law judges are appointed civil servants of the state. They begin in the lowest courts and as they age and grow in their careers, the judges are promoted. Thus, if one is a judge in a lower court wanting to move up to a higher court, it is not advisable to decide cases in such a way as to alienate one's supervisory colleagues.
Federalism and Court Structure
Louisiana has a different problem, namely, federalism. In the federal system, two different court tiers exist--one on the federal level and one on the state level. Sometimes the jurisdiction of the courts overlap; sometimes the jurisdiction of the courts is exclusive. Under the federal system, the United States Supreme Court reigns supreme over thirteen separate appellate courts (Circuit Courts of Appeal, located in Boston, Massachusetts; Philadelphia, Pennsylvania; Richmond, Virginia; Atlanta, Georgia; New Orleans, Louisiana; Denver, Colorado; San Francisco, California; Chicago, Illinois; Cincinnati, Ohio; St. Louis, Missouri; New York, New York; and two in Washington, DC.), which in turn reign over a couple of hundred district courts. In Louisiana, the State Supreme court reigns over five separate appellate courts and 100 lower courts.
What makes the system complicated to understand is overlap and what law governs the case. State law governs the state. Federal law governs the subject areas controlled by the federal government. Although the jurisdiction of the courts may overlap on the subject matter, the judicial court systems do not overlap. Thus, depending on certain circumstances like venue, subject matter jurisdiction and in personam jurisdiction, a federal court may decide a matter governed by state law, and a state court may decide a matter governed by federal law. The only connection between the two judicial systems is at the Supreme Court level. The U.S. Supreme Court may hear a case involving federal law that has gone through the state judicial system, including the State Supreme Court, even if that State Supreme Court declined to hear the case. As a matter of law, the U.S. Supreme Court is the highest court of the land and can overrule a State Supreme Court, but only as to matters of federal law, including the Constitution.
A Louisiana Civil Law judge has to balance the demands of federalism with the limits of the Civil Code. The judge must follow federal law, period, including judicial precedent. On the State level, the judge has a bit more freedom. In the Civil Law, as judicial precedent is not important, judges are free to disregard the opinions of appellate courts superior to them or courts on their same level, with the exception of course of the Supreme Court. In Louisiana, in theory, this is also true. In practice, however, the attorney and the judge would do well to pay attention to precedent. Judges regularly challenge precedent and legislative authority, especially those located in rural parishes with small electorates.
Role of Judges and Attorneys
Finally, in the Civil Law, the roles of judges and attorneys are not the same as Common Law. In Common Law, attorneys are the active party, asking questions to witnesses, and so forth. Judges take a more passive role. In Civil Law, the roles are reversed. The Civil Law judge is more inquisitive than his Common Law counterpart and takes an active role in the litigation and in witness testimony. The attorney, though not necessarily passive, pays deference to the judge in this matter and does not challenge his authority.
Much like Québec in Canada, Louisiana is an island in a sea of Common Law jurisdictions. In the United States, Louisiana is the only state which is a Civil Law jurisdiction. Its foundations are based in Roman Law and the texts of Justinian. Though isolated in the United States, Louisiana finds company in the global community, as two-thirds of the world's nations practice Civil Law.
The Civil Code
The most prominent feature of any Civil Law jurisdiction is the Civil Code itself, and Louisiana is no exception. True, other American States have "Civil Codes," but they are of a Common-Law character in that they exhaustive list and state every possible scenario under the law. A true Civil Code, rather, consists of general principles which guide lawyers and judges in application of the law.
One of the most prominent features of the Civil Code is that it is in fact not a body of laws, but rather one single statute with thousands of articles. Including those reserved by the Legislature, the Civil Code currently has 3,556 articles.
Under the Civil Code, the sources of law in Louisiana are legislation and custom. The courts use these sources to formulate the rules in cases before them. When no rule for a given situation exists or can be derived from legislation and custom, the court must resort to equity.
Civil Law and Louisiana's Version
One of the key differences in Louisiana from other Civil Law jurisdictions is the temporal application of the laws. Generally, in a Civil Law jurisdiction, laws can only apply prospectively, they can not apply retroactively. In Common Law jurisdictions, jurisprudence regularly applies retroactively, especially in case law. The problem is exacerbated by the fact that Civil Law judges can not create law; they can only enforce it. The Civil Law resolves this problem by enacting what are called "interpretative" laws. Interpretative laws of the Civil Code apply both prospectively and retroactively. By way of contrast, in Louisiana, a Legislative exception is made where the Legislature can state whether the law is to apply prospectively or retroactively only.
As one would expect from a legal system in which the principal feature is an over-arching general statute, in resolving a controversy before the court, judges look first to the Civil Code or relevant statutes. In Louisiana, judges look to both the Civil Code and the Revised Statutes. Revised Statutes, however, are only ancillary to the Civil Code and must be read in light of it. Unlike the Common Law where judges look to case precedents first, in the Civil Law, case precedents are considered to be unimportant as the Civil Code governs. If anything, case precedents are merely persuasive. In Louisiana, case law is still somewhat important, but the Code is what ultimately matters.
Also, unlike their Common Law brethren who are bound by the doctrine of stare decisis to uphold case precedents, Civil Law judges are bound to no such doctrine. They can ignore case law as they please. One exception exists however to such judicial freedom: jurisprudence constante. When no one specific or general law governs, but a series of cases have been decided a specific way over and over again over time, then those cases create jurisprudence constante and the judge should take notice of that law. Of course, by the time this occurs, the Legislature takes care of the problem by amending the Civil Code. In Louisiana, in theory, a judge and attorney can freely ignore case law in favor of the statutes and Civil Code. In practice, however, precedent is considered as valid law, subordinate to the Civil Code.
This brings up an interesting question: what happens when no law exists to govern a controversy? When no law exists, and the Civil Law judge has exhausted all remedies available to him, including but not limited to interpretation, Civil Code, jurisprudence constante, statutes, custom, and persuasive secondary authority such as a treatise, then and only then can the judge create a law. This is extremely rare, and in Civil Law countries like Spain, France, and Germany, it is tantamount to political and career suicide. The consequences are dire if the judge is incorrect, and could lead to impeachment. In Louisiana, this is less of a Damocles' sword hanging over the judge's head, but it is a consideration nonetheless, as ultimately the judge is challenging legislative authority.
One of the reasons creating a law is such a dangerous career move for a Civil Law judge is the structure of the court system. Typically, Civil Law judges are appointed civil servants of the state. They begin in the lowest courts and as they age and grow in their careers, the judges are promoted. Thus, if one is a judge in a lower court wanting to move up to a higher court, it is not advisable to decide cases in such a way as to alienate one's supervisory colleagues.
Federalism and Court Structure
Louisiana has a different problem, namely, federalism. In the federal system, two different court tiers exist--one on the federal level and one on the state level. Sometimes the jurisdiction of the courts overlap; sometimes the jurisdiction of the courts is exclusive. Under the federal system, the United States Supreme Court reigns supreme over thirteen separate appellate courts (Circuit Courts of Appeal, located in Boston, Massachusetts; Philadelphia, Pennsylvania; Richmond, Virginia; Atlanta, Georgia; New Orleans, Louisiana; Denver, Colorado; San Francisco, California; Chicago, Illinois; Cincinnati, Ohio; St. Louis, Missouri; New York, New York; and two in Washington, DC.), which in turn reign over a couple of hundred district courts. In Louisiana, the State Supreme court reigns over five separate appellate courts and 100 lower courts.
What makes the system complicated to understand is overlap and what law governs the case. State law governs the state. Federal law governs the subject areas controlled by the federal government. Although the jurisdiction of the courts may overlap on the subject matter, the judicial court systems do not overlap. Thus, depending on certain circumstances like venue, subject matter jurisdiction and in personam jurisdiction, a federal court may decide a matter governed by state law, and a state court may decide a matter governed by federal law. The only connection between the two judicial systems is at the Supreme Court level. The U.S. Supreme Court may hear a case involving federal law that has gone through the state judicial system, including the State Supreme Court, even if that State Supreme Court declined to hear the case. As a matter of law, the U.S. Supreme Court is the highest court of the land and can overrule a State Supreme Court, but only as to matters of federal law, including the Constitution.
A Louisiana Civil Law judge has to balance the demands of federalism with the limits of the Civil Code. The judge must follow federal law, period, including judicial precedent. On the State level, the judge has a bit more freedom. In the Civil Law, as judicial precedent is not important, judges are free to disregard the opinions of appellate courts superior to them or courts on their same level, with the exception of course of the Supreme Court. In Louisiana, in theory, this is also true. In practice, however, the attorney and the judge would do well to pay attention to precedent. Judges regularly challenge precedent and legislative authority, especially those located in rural parishes with small electorates.
Role of Judges and Attorneys
Finally, in the Civil Law, the roles of judges and attorneys are not the same as Common Law. In Common Law, attorneys are the active party, asking questions to witnesses, and so forth. Judges take a more passive role. In Civil Law, the roles are reversed. The Civil Law judge is more inquisitive than his Common Law counterpart and takes an active role in the litigation and in witness testimony. The attorney, though not necessarily passive, pays deference to the judge in this matter and does not challenge his authority.
