Today is Constitution Day and I had the opportunity to speak to several classes of 8th Grade students at Live Oak Middle School. I have been fortunate enough to so this before and I always find it interesting. Some of the questions they come up with are quite interesting. I always get some form of “isn’t Louisiana law based on Napoleonic law?” I always give a very lawyer like answer that goes something like “Yes and no.” But mostly no.
I enjoy the intricacies of the law and I love history. So when I get the chance to talk about history and law at the same time, I am as happy as a hog in a mud hole. So, I shared with them this little missive I put together for my website a couple of years ago about where Louisiana’s unique civil law system comes from. I hope you all enjoy it and I would appreciate your thoughts.
The bicentennial of Louisiana statehood seems an appropriate time to celebrate Louisiana’s unique civilian legal tradition. Most people are somewhat aware that Louisiana law is “different” and many mistakenly think that it is based on “Napoleonic” law. The answer is not that simple. Louisiana’s legal tradition is more a “gumbo” of Roman traditions, Spanish law and French language sources, which have been simmered over three centuries to result in today’s Louisiana Civil Code.
French law was never reestablished in Louisiana. In fact, France did not take possession of the colony until 1803, shortly before it was ceded to the United States as part of the Louisiana Purchase. From 1800 to 1803, the colony, although owned by France, remained under Spanish governance, including the legal system. When French officials showed up, just in time to hand Louisiana over to the United States, an edict was issued providing that all laws in the colony would remain in effect. This was, of course, Spanish civil law.
When Louisiana became part of the United States in 1803, the territorial governor, William C. C. Claiborne was appointed by the President. Claiborne was a Virginia trained lawyer who expressed a desire to convert Louisiana to a common law system. However, the inhabitants of New Orleans, mostly French and French speaking, insisted that the civil law tradition be maintained. As a result, in 1805, Congress passed Acts providing that, insofar as they were not in conflict with federal laws, the civil laws in force in the Territory of Orleans would remain in force, until “altered, modified or repealed by the legislature.” In 1806, the legislature passed a resolution that a Civil Code be prepared and that “the civil law by which this territory is now governed” be the basis for the code. There was no doubt among the legislature and the leading jurist of the time that that law was Spanish civil law.
At that time, French was still the official language of the territory and the code was to be drafted in French. The two lawyers charged with drafting the code, James Brown and Louis Moreu-Lislet, had a daunting task of gathering thousands of legal rules into a single volume. The Spanish and French civil law were very similar and they had available a French language model which contained most of the substantive provisions, the Projet (draft) of the French Civil Code. The Projet became the Code civil des Francais of 1804, later more commonly known as the Code Napoleon. The Projet and the Napoleonic Code contained most of the substantive provisions of the Spanish civil law, and when the two were consistent, the French language version of the Spanish rule was utilized in the Digest of 1808. However, when the two differed, the Spanish articles where translated into French and inserted. Brown and Moureau-Lislet also organized their work based on the structure of the French Civil Code, which remains the structure of all subsequent Louisiana Civil Codes.
Following the enactment of the 1808 Digest, Louisiana courts consistently l recognized that the codification did not represent a substantive shift from Spanish to French source law. Decisions routinely looked to Spanish laws to provide details on the generalities of the Digest and stated that Spanish law was not abolished, except where clearly repealed by the Digest. Also, distinctive provisions of the Spanish law, which were very different from the French model, were incorporated into the Digest, including provisions on marriage, community property, alimony and successions.
The 1808 Digest was replaced by the enactment of a new Civil Code in 1825. Again, the official version was written in French and translated into English. The English version has widely been recognized as a very poor translation and, until the latest revisions in the 1980’s, any difference between the two versions was decided in favor of the original French text.
The Civil Code was revised and reenacted in 1870, following the Civil War.
The official version was, for the first time, in English. The primary substantive changes were to remove references to slavery following abolition. Other than that, it was substantively similar to the 1825 Code. In the 1980’s the Code was again revised, under the supervision of the Louisiana State Law Institute. The current Civil Code retains much of the Spanish system, with the revisions updating the language and removing mostly anachronistic references, such as the redhibitory vices of horses and mules. Substantive changes were made to reflect modern realities, but the structure and system remains uniquely civilian in nature. Today, the Louisiana Civil Code can accurately be described as one of the most modern civil codes in the world.
Louisiana’s civilian legal system has been described by LSU law professor Robert Pascal as “a Spanish girl in a French dress.” What makes Louisiana law unique, much like Louisiana itself, is the mix of influence from many different cultures. As Professor Olivier Moreteua recently pointed out in an article in the Louisiana State Bar Journal:
“What makes Louisiana unique is its combination of cultures from at least three different continents. New Orleans is an American city with a Spanish downtown called the French Quarter and something of an African and Caribbean way of life. In Louisiana, much of people’s daily lives, regardless of their origins, continue to be shaped by laws combining Roman, French, Spanish and Anglo-American heritage. The French elegance given to it some 200 years ago should not hide the pluralism of its sources. It keeps bringing major contributions to the legal gumbo cooked by the Louisiana jurist, where ingredients of various origins remain visible but combine to a unique flavor. “