The role of Precedents in Mixed Jurisdictions: A Comparative Analysis of louisiana and the Philippines Ryan mcgonigle Readers are reminded that this work is protected by copyright. While they are free to use the ideas expressed in it, they may not copy, distribute or publish the work or part of it, in any form, printed, electronic or othenwise, except for reasonable quoting, clearly indicating the source. Readers are permitted to make copies, electronically or printed, for personal and classroom use Abstract The modern trend of convergence between the legal systems of the civil- and common-law trad itions offers a unique opportunity for mixed legal jurisdictions such as Louisiana and the Philippines. The flexibility of mixed jurisd ictions is found in their ability to act as a doctrinal sieve, straining out the inherent weaknesses of both parent trad itions. This article aims at discovering the proper role of precedent gjudge-made law) within the mixed or hybrid legal systems of Louisiana and the philippines. By first setting out the historical and specific Jurisprudence constante or the common -law theory of stare decisis obtains n ourof legal experiences of both jurisdictions, the question of whether the civilian concept of paradigmatic examples is answered, leaving room for the mixed category sui generis. By viewing our mixed jurisdictions through a comparative lens, this paper also present: comparatists with the opportunity to bypass stumbling blocks and legal chauvinism and obtain vraI rapprochement I. Introduction The question of whether the common-law doctrine of stare decisis obtains in Louisiana has been an oft-debated theme recurring throughout the nearly two centuries of louisiana statehood. Since the beginning of the 20th century, however, a bright-line rule' on the role of precedent has been hard to draw. The problem has its roots in the interpretation of the proper role of precedent within a Code-based system' that is, at once, a progeny of the great Romanistic trad itions of France and Spain while being a part of the common-law whole that It should be noted at the onset of this d iscussion that civil codes such as the civil code of louisiana or the Civil Code of the Philippines, are books that regulate the legal relationships between individua ls. Typical subjects covered by civil codes are: persons and the family, things and ownership, successions and donations, matrimonial property, obligations and contracts, civil responsibility, sale of goods, statute of lim itations and real property. For more on the structure of the typical civil code, see Dainow, infra note 44 at 244 Code-based systems in the romanistic tradition should not be confused with codes in common-lawcountries, such as the Uniform Commercial Code(UCC)and the Civil Code of Califomia, just to name a few. See MERRYMAN, infra note 1l at 26-27. [T]he existence of something called a code is not] a distinguishing criterion. Califomia has more codes than any civil law nation, but California is not a civil law jurisdiction... If, however, one thinks of odification not as a form but as the expression of an ideology, and if one tries to understand that ide ology and why it achieves expression in code form, then one can see how it makes sense to talk about codes in comparative law. It is true that Califonia has a number of what are called codes. [but] the conception if what a code is and of the functions it should perform in the legal process [are] not the same. There is an entirely different ideology of cod ification at work in the civil law world ' Id
The Role of Precedents in Mixed Jurisdictions: A Comparative Analysis of Louisiana and the Philippines Ryan McGonigle Readers are reminded that this work is protected by copyright. While they are free to use the ideas expressed in it, they may not copy, distribute or publish the work or part of it, in any form, printed, electronic or otherwise, except for reasonable quoting, clearly indicating the source. Readers are permitted to make copies, electronically or printed, for personal and classroom use. Abstract The modern trend of convergence between the legal systems of the civil- and common-law traditions offers a unique opportunity for mixed legal jurisdictions such as Louisiana and the Philippines. The flexibility of mixed jurisdictions is found in their ability to act as a ‘doctrinal sieve,’ straining out the inherent weaknesses of both parent traditions. This article aims at discovering the proper role of precedent (judge-made law) within the mixed or hybrid legal systems of Louisiana and the Philippines. By first setting out the historical and specific legal experiences of both jurisdictions, the question of whether the civilian concept of jurisprudence constante or the common-law theory of stare decisis obtains in our paradigmatic examples is answered, leaving room for the mixed category sui generis. By viewing our mixed jurisdictions through a comparative lens, this paper also presents comparatists with the opportunity to bypass stumbling blocks and legal chauvinism and obtain vrai rapprochement. I. Introduction The question of whether the common-law doctrine of stare decisis obtains in Louisiana has been an oft-debated theme recurring throughout the nearly two centuries of Louisiana statehood. Since the beginning of the 20th century, however, a ‘bright-line rule’ on the role of precedent has been hard to draw. The problem has its roots in the interpretation of the proper role of precedent within a Code-based system1 that is, at once, a progeny of the great Romanistic traditions of France and Spain while being a part of the common-law whole that 1 It should be noted at the onset of this discussion that civil codes, such as the Civil Code of Louisiana or the Civil Code of the Philippines, are books that regulate the legal relationships between individuals. Typical subjects covered by civil codes are: persons and the family, things and ownership, successions and donations, matrimonial property, obligations and contracts, civil responsibility, sale of goods, statute of limitations and real property. For more on the structure of the typical civil code, see Dainow, infra note 44 at 244. Code -based systems in the Romanistic tradition should not be confused with codes in common-law countries, such as the Uniform Commercial Code (UCC) and the Civil Code of California, just to name a few. See MERRYMAN, infra note 11 at 26-27. ‘[T]he existence of something called a code [is not] a distinguishing criterion. California has more codes than any civil law nation, but California is not a civil law jurisdiction . . . If, however, one thinks of codification not as a form but as the expression of an ideology, and if one tries to understand that ide ology and why it achieves expression in code form, then one can see how it makes sense to talk about codes in comparative law. It is true that California has a number of what are called codes . . . [but] the conception if what a code is and of the functions it should perform in the legal process [are] not the same. There is an entirely different ideology of codification at work in the civil law world.’ Id
is the United States. Louisiana is, as one commentator figuratively expressed it, 'a civil law island in a common law sea. 2 Culturally juxtaposed between the world s two greatest lega doctrinal sieve, ' straining harsher elements inherent in both trad itions and preserving those trad itions-the civil law and the common law - Louisiana's genius lies in its ability to act as that suit its needs. This flexibility is the main characteristic of mixed or hybrid jurisdictions of which Louisiana and the Philippines form a part In the Philippines, however, the question of whether the doctrine of stare decisis obtains was not met with the same level of controversy, as had been the case in Louisiana Using comparative legal analysis as a backdrop for this paper, the role of precedent in the mixed jurisd ictions of Louisiana and the Philippines will be contrasted with the anglo- American doctrine of stare decisis. In this paper, I shall attempt to place our"mixed jurisd ictions into their proper category, seeking answers to a particularly difficult question that underlies the purpose of my thesis: Does the common-law doctrine of stare decisis obtain here or do we adhere to the civilian concept of jurisprudence? '4 The answer to this elusive question may be neither positive nor negative-leaving room for a third category mixed jurisdiction sui generis Part II traces the development of the Louisiana theory of precedents with a focus or the jurisprudence of the Supreme Court of Louisiana. The doctrine of stare decisis as it is known in Louisiana's sister states will be distinguished from the civilian theory of jurisprudence constante. In addition, the current renaissance of the civilian trad ition in Louisiana will be highlighted and what I call" cultural variables' will be brought to the forefront in order to explain why Louisiana has adhered to a stricter civilian interpretation of the role of precedent. Part III introduces the mixed jurisdiction of the Philippines. It begins by setting out the historical course that led Philippine jurists to adopt the common- law doctrine of stare de focusing on the case -law of the Philippine Supreme Court. The same cultural ariables discussed in Part II will be applied to the situation in the philip Lastly,PartⅤ concludes this paper with a general discussion on how mixed jurisdictions offer legal scholars and practitioners of both legal traditions greater room for"rapprochement. Today, the trend has been one of convergence between legal systems. Unfortunately, however, there are many SHAEL HERMAN ET AL., THE LOUISIANA CIVIL CODE: A HUMANISTIC APPRAISAL 3 (unpublished manuscript on file with Tulane Law School); see also Joachim Zekoll, The Louisiana Private-Law System: The Best of Both Worlds, 10 TUL. EUR. CIv L F. 1, 2(1995) The common-law doctrine of stare decisis should be termed more precisely: stare rationibus decidendi, which loosely translated means " let the decision stand. 'See ZANDER, infra note 45 at 179. See also Robert L. Henry, Jurisprudence Constante and Stare Decisis Contrasted, 15 A.B. A.J. 11(1929); see generally Martin Shapiro, Toward a Theory of Stare Decisis, 1 J. LEGAL STUD. 125, 125(1972)(defining stare decisis as the practice of Anglo-American courts of deciding new cases in accordance with precedents) The civilian concept of jurisprudence'differs from the Anglo-American concept of stare decisis in that the word precedent in French legal language never means a binding decision and that courts are not bound by the rationale la id down in those decisions. See Michel Troper Christophe grzegorczyk, Precedent in france, in INTERPRETING PRECEDENTS 103, 111 (D. Neil MacCorm ick Robert S Summers, eds, 1997). See F H LAWSON ET AL., AMOS AND WALTON'S INTRODUCTION TO FRENCH LAW 9-12(2d ed. 1963). There is some misunderstanding in England about the authority in France of decided cases, or, as it is ca lled, the jurisprudence of the courts. It is perfectly true that whereas in England the decisions of the superior courts not only illustrate the law, but are law, in France they are not. Id at 9. See also Yvon Loussouarn, The relative Importance of Legislation, Custom, Doctrine, and Precedent in French Law, 18 TUL. L REV. 235(1958); see generally JOHN BELL ET AL., PRINCIPLES OF FRENCH LAW 25-27(1998). In this discussion, the words jurisprudence'and geably 5 See A.G. Chloros, Principle, Reason and Policy in the Development of European Law, 17 iNT'L
is the United States. Louisiana is, as one commentator figuratively expressed it, ‘a civil law island in a common law sea.’2 Culturally juxtaposed between the world’s two greatest legal traditions - the civil law and the common law - Louisiana’s genius lies in its ability to act as a ‘doctrinal sieve,’ straining harsher elements inherent in both traditions and preserving those that suit its needs. This flexibility is the main characteristic of ‘mixed’ or ‘hybrid’ jurisdictions of which Louisiana and the Philippines form a part. In the Philippines, however, the question of whether the doctrine of stare decisis obtains was not met with the same level of controversy, as had been the case in Louisiana. Using comparative legal analysis as a backdrop for this paper, the role of precedent in the mixed jurisdictions of Louisiana and the Philippines will be contrasted with the AngloAmerican doctrine of stare decisis.3 In this paper, I shall attempt to place our ‘mixed’ jurisdictions into their proper category, seeking answers to a particularly difficult question that underlies the purpose of my thesis: ‘Does the common-law doctrine of stare decisis obtain here or do we adhere to the civilian concept of jurisprudence?’4 The answer to this elusive question may be neither positive nor negative - leaving room for a third category: ‘mixed jurisdiction sui generis.’ Part II traces the development of the Louisiana theory of precedents with a focus on the jurisprudence of the Supreme Court of Louisiana. The doctrine of stare decisis as it is known in Louisiana’s sister states will be distinguished from the civilian theory of jurisprudence constante. In addition, the current renaissance of the civilian tradition in Louisiana will be highlighted and what I call ‘cultural variables’ will be brought to the forefront in order to explain why Louisiana has adhered to a stricter civilian interpretation of the role of precedent. Part III introduces the mixed jurisdiction of the Philippines. It begins by setting out the historical course that led Philippine jurists to adopt the common-law doctrine of stare decisis, focusing on the case-law of the Philippine Supreme Court. The same cultural variables discussed in Part II will be applied to the situation in the Philippines. Lastly, Part IV concludes this paper with a general discussion on how mixed jurisdictions offer legal scholars and practitioners of both legal traditions greater room for ‘rapprochement.’ Today, the trend has been one of convergence between legal systems.5 Unfortunately, however, there are many 2 SHAEL HERMAN ET AL., THE LOUISIANA CIVIL CODE: A HUMANISTICAPPRAISAL 3 (unpublished manuscript on file with Tulane Law School); see also Joachim Zekoll, The Louisiana Private-Law System: The Best of Both Worlds, 10 TUL. EUR. & CIV. L. F. 1, 2 (1995). 3 The common-law doctrine of stare decisis should be termed more precisely: ‘stare rationibus decidendis,’ which loosely translated means ‘let the decision stand.’ See ZANDER, infra note 45 at 179. See also Robert L. Henry, Jurisprudence Constante and Stare Decisis Contrasted, 15 A.B.A.J. 11 (1929); see generally Martin Shapiro, Toward a Theory of Stare Decisis, 1 J. LEGAL STUD. 125, 125 (1972) (defining stare decisis as the practice of Anglo-American courts of deciding new cases in accordance with precedents). 4 The civilian concept of ‘jurisprudence’ differs from the Anglo-American concept of stare decisis in that the word ‘precedent’ in French legal language never means a binding decision and that courts are not bound by the rationale laid down in those decisions. See Michel Troper & Christophe Grzegorczyk, Precedent in France, in INTERPRETING PRECEDENTS 103, 111 (D. Neil MacCormick & Robert S. Summers, eds., 1997). See F.H. LAWSON ET AL., AMOS AND WALTON’S INTRODUCTION TO FRENCH LAW9-12 (2d ed. 1963). ‘There is some misunderstanding in England about the authority in France of decided cases, or, as it is ca lled, the jurisprudence of the courts. It is perfectly true that whereas in England the decisions of the superior courts not only illustrate the law, but are law, in France they are not.’ Id. at 9. See also Yvon Loussouarn, The Relative Importance of Legislation, Custom, Doctrine, and Precedent in French Law, 18 TUL. L. REV. 235 (1958); see generally JOHN BELL ET AL., PRINCIPLES OF FRENCH LAW 25-27 (1998). In this discussion, the words ‘jurisprudence’ and ‘precedent’ and ‘case law’ may be used interchangeably. 5 See A.G. Chloros, Principle, Reason and Policy in the Development of European Law, 17 INT’L &
obstacles to surmount before harmonization can be achieved -least of which is legal chauvinism that proponents of both systems seem to find first in asking: 'Whose system better? 'It is not that one system is better than the other but rather that they are merely different; the hope is that these differences will foster rapprochement. First beginning with mixed jurisdictions such as Louisiana and the philippines, and recognizing that they ar indeed "modeles vivants de droit compare, 6 perhaps obsta be removed on the road toward the harmonization of divergent legal systems IL. The historical development of Louisianas theory of precedents If we could look at a pure civilian system in a vacuum and analyze it for its parts, we would see that it was comprised of only two components -legislation?and custom. 8 According to pure civilian theory, judicial precedents are not considered to be a source of law because the "legislative function is entrusted to the legislature and the people exclusively. 9 This theory is paralleled in Article I of the Louisiana Civil Code, which declares: The sources of law are legislation and custom. 0 According to John Henry Merryman, this was so because of state positivism. In his book, The Civil Law Tradition, he writes ste tate positivism, as expressed in the dogma of the absolute extemal and intemal sovereignty of the ed to a state monopoly on lawmaking. Revolutionary emphasis on the strict separation of powers demanded that only specifically designated organs of the legislative and judicial powers of govemment were different in kind; in order to prevent abuse, they had to be very sharply separated from each other II COMP L Q849(1968); see Shael Herman, The Fate and the Future of Codification in America, 40 AM J LEGAL HIST. 407(1996), see Zekoll, supra note 2 at 2; see also Mathias Reimann, Towards a European Civil Code: Why Continental urists Should Consult Their Transatlantic Colleagues, 73 TUL. L REV. 1337(1999) LOUIS BAUDOUIN, LE DROIT CIVIL DE LA PROVINCE DE QUEBEC: MODELE VIVANT DE DROIT COMPARE (1953)(noting that mixed jurisdictions such as Quebec are living models of comparative law), see also Jean Louis Baudouin, Impact ofCommon Law in Louisiana and quebec, in THE ROLE OF JUDICIAL DECISIONS AND DOCTRINE IN CIVIL LAW AND MIXED JURISDICTIONS 3 Joseph Dainow ed, 1975) jursdi, According to Professor Yiannopoulos, legislation is superior to all other sources of law in civil-law ions. What this means is that if a solution is to be found in the enacted law, no jurisprudence, usage equity, or doctrine can prevail aga inst it. It is only in cases not covered by legislation that the lawyer or judg entitled to look elsewhere for solutions. A.N. Yiannopoulos, Introduction to LA. CIV. CODE ANN. at XXXll West 1999) Customary law is properly defined as a long series of actions constantly repeated, which have by such repetition, and by uninterrupted acquiescence, acquired the force of a tacit and common consent. Id. According to John Henry Merryman, lw] here a person acts in accordance with custom under the assumption that it represents the law, his action will be accepted as legal in many civil law jurisdictions, so long as there is no applicable statute or regulation to the contrary. MERRYMAN, infra note 1l at 23. Moreover, Merryman is ofthe opinion that[t ]o give custom the force of law would appear to violate the dogma of state positivism(only the state can make law)and the dogma of sharp separation of powers(within the state only the legislature can make A.N. YIANNOPOULOS. CIVIL LAW SYSTEM: LOUISIANA AND COMPARATIVE LAW. A COURSEBOOK TEXTS, CASES AND MATERIALS 146(2ded. 1999) LA. CIV. CODE ANN. art. I(West 2000) JOHN HENRY MERRYMAN, THE CIVIL LAW TRADITION 22 (2d ed 1994)
obstacles to surmount before harmonization can be achieved - least of which is legal chauvinism that proponents of both systems seem to find first in asking: ‘Whose system is better?’ It is not that one system is better than the other but rather that they are merely different; the hope is that these differences will foster rapprochement. First beginning with mixed jurisdictions such as Louisiana and the Philippines, and recognizing that they are indeed ‘modèles vivants de droit comparé,’6 perhaps obstacles can be removed on the road toward the harmonization of divergent legal systems. II. The historical development of Louisiana’s theory of precedents If we could look at a pure civilian system in a vacuum and analyze it for its parts, we would see that it was comprised of only two components - legislation7 and custom.8 According to pure civilian theory, judicial precedents are not considered to be a source of law because the ‘legislative function is entrusted to the legislature and the people exclusively.’9 This theory is paralleled in Article I of the Louisiana Civil Code, which declares: ‘The sources of law are legislation and custom.’10 According to John Henry Merryman, this was so because of state positivism. In his book, The Civil Law Tradition, he writes: . . . state positivism, as expressed in the dogma of the absolute external and internal sovereignty of the state, led to a state monopoly on lawmaking. Revolutionary emphasis on the strict separation of powers demanded that only specifically designated organs of the legislative and judicial powers of government were different in kind; in order to prevent abuse, they had to be very sharply separated from e ach other.11 COMP. L. Q. 849 (1968); see Shael Herman, The Fate and the Future of Codification in America, 40 AM. J. LEGAL HIST. 407 (1996); see Zekoll, supra note 2 at 2; see also Mathias Reimann, Towards a European Civil Code: Why Continental Jurists Should Consult Their Transatlantic Colleagues, 73 TUL. L. REV. 1337 (1999). 6 LOUIS BAUDOUIN, LE DROIT CIVIL DE LA PROVINCE DE QUÉBEC: MODÈLE VIVANT DE DROIT COMPARÉ (1953) (noting that mixed jurisdictions such as Québec are ‘living models of comparative law’); see also Jean - Louis Baudouin, Impact of Common Law in Louisiana and Québec, in THE ROLE OF JUDICIAL DECISIONS AND DOCTRINE IN CIVIL LAW AND MIXED JURISDICTIONS 3 (Joseph Dainow ed., 1975). 7 According to Professor Yiannopoulos, legislation is superior to all other sources of law in civil-law jurisdictions. What this means is that if a solution is to be found in the enacted law, ‘no jurisprudence, usage, equity, or doctrine can prevail against it. It is only in cases not covered by legislation that the lawyer or judge is entitled to look elsewhere for solutions.’ A.N. Yiannopoulos, Introduction to LA. CIV. CODE ANN. at XXXIII (West 1999). 8 Customary law is properly defined as ‘a long series of actions constantly repeated, which have by such repetition, and by uninterrupted acquiescence, acquired the force of a tacit and common consent.’ Id. According to John Henry Merryman, ‘[w]here a person acts in accordance with custom under the assumption that it represents the law, his action will be accepted as legal in many civil law jurisdictions, so long as there is no applicable statute or regulation to the contrary.’ MERRYMAN, infra note 11 at 23. Moreover, Merryman is of the opinion that ‘[t]o give custom the force of law would appear to violate the dogma of state positivism (only the state can make law) and the dogma of sharp separation of powers (within the state only the legislature can make law).’ Id. 9 A.N. YIANNOPOULOS, CIVIL LAWSYSTEM: LOUISIANA AND COMPARATIVE LAW, A COURSEBOOK TEXTS, CASES AND MATERIALS 146 (2d ed. 1999). 10 LA. CIV. CODE ANN. art. 1 (West 2000). 11 JOHN HENRY MERRYMAN, THE CIVIL LAWTRADITION 22 (2d ed. 1994)
Strict separation of powers was a direct reaction to the French judiciary's abuse of power in pre-Revolutionary France. During the ancien regime, the French judiciary was possessed of seemingly unfettered discretion to adjud icate cases as they saw fit. The French regional high courts, known as Les Parlements, had the authority ' not only to judge cases, but also to promulgate regulations, known as arrets de reglement, which had the force of law. 12 Hence the origin of the old French proverb: 'Dieu nous garde de requite de parlements. 3 In the words of Professor Palmer, the existence of the adage itself still communicates to us something of the suffering of the people at the hands of judges who abused the proper functioning of a court '14 Prior to the French Revolution, it was often said that the law was so confused that nobody, includ ing the judges, was able to know it with certainty, and that they were at the mercy of the courts. 15 As a result, safeguards were sought and"appeal was made very early to the idea that the law should be written, and written in clear and ordinary judge 16 The result was Article 5 of the Code Napoleon, which proscribes the use or to the language, so that everybody would know his rights and that no discretion should be left to the precedents by judges: Judges are forbidden, when giving judgment in the cases which are brought before them, to lay down general rules of conduct or decide a case by hold ing it was governed by a previous decision. "17 In other words, precedent was not considered to be a source oflaw. 8 By the time of the Mitchel de s.-O-I'E. Lasser, Judicial Self-)Portraits: Judicial Disclosure in the French Legal System, 104 YALE L J.1325,1330(1995) 3 Translated into English, the adage states: "May God protect us from the equity of parlements [courts] 14 Vernon Valentine Palmer, 'May God Protect Us from the Equity of Parlements: Comparative Reflections on English and French Equity Power, 73 TUL. L. REV. 1287, 1296(1999). For more on the Judiciary's role in pre-Revolutionary France, see generally JOHN A CAREY, JUDICIAL REFORM IN FRANCE BEFORE THE REVOLUTION OF 1789(1981) Andre Tunc, The Grand Outlines of the Code Napoleon, 29 TUL. L REV. 431, 431(1955) ld.at431-32. CODE CIVIL C. CIV. art. 5 (Fr see also THE FRENCH CIVIL CODE, art. 5 (trans., John H Crabb, 1995) [An example of how legal translations can and do differ even when dea ling with the same Article. Crabb's edition translates Article 5 as: Judges are forbidden to pronounce decisions by way of general and regulative isposition on causes which are subm itted to them. 'Article 5 of the Civil Code further guarantees this exclusive authority of the legislature by forbidding judges to issue arrets de reglement, that is to say, to indicate the constructions or interpretations of the legislation which would be followed in like future cases. Loussouarn, supra note 4 at 237. The codification of this prohibition was a direct result of the Enlightenment in Europe and the ideas of Montesquieu. Under Montesquieu's influence, two important ideas concerning the role of the judiciary arose. The first idea was that the judge was nothing more than the bouche de la loi' or the mouth of the law' and in that sense she is not empowered to add any thing to the law, [rather].. her power is lim ited to expounding what is already inside the statute. Mario Ascheri, Turning Point in the Civil-Law Tradition: Fro function was to be a refere legislatif'(legislative referee)meaning that only the legislature can resolve legal questions and when the judiciary decides a case it does so through "legislative will. Id. "Courts were denied all power 'to make regulations'(reglements)but were to address themselves to the legislature whenever they think it necessary either to interpret a law or to make a new one. JOHN P DAWSON, THE ORACLES OF THE LAW 376 (1968) Professor Loussouam, citing the famed jurist Francois Geny, states: Theoretically, the judge is entitled to ignore the decisions of other courts and even his own. From this, Geny and others have concluded that the jurisprudence, or decisions, is not a source of law. Loussouam, supra note 4 at 257. See also 2 FRANCOIS GENY METHODE D'INTERPRETATION ET SOURCES EN DROIT PRIVE POSITIF: ESSAI CRITIQUE 145(2d ed 1954)
Strict separation of powers was a direct reaction to the French judiciary’s abuse of power in pre-Revolutionary France. During the ancien régime, the French judiciary was possessed of seemingly unfettered discretion to adjudicate cases as they saw fit. The French regional high courts, known as Les Parlements, had the authority ‘not only to judge cases, but also to promulgate regulations, known as arrêts de règlement,’ which had the force of law.12 Hence the origin of the old French proverb: ‘Dieu nous garde de l’équité de parlements.’13 In the words of Professor Palmer, the existence of the adage itself ‘still communicates to us something of the suffering of the people at the hands of judges who abused the proper functioning of a court.’14 Prior to the French Revolution, it was often said that ‘the law was so confused that nobody, including the judges, was able to know it with certainty, and that they were at the mercy of the courts.’15 As a result, safeguards were sought and ‘appeal was made very early to the idea that the law should be written, and written in clear and ordinary language, so that everybody would know his rights and that no discretion should be left to the judge.’16 The result was Article 5 of the Code Napoléon, which proscribes the use of precedents by judges: ‘Judges are forbidden, when giving judgment in the cases which are brought before them, to lay down general rules of conduct or decide a case by holding it was governed by a previous decision.’17 In other words, precedent was not considered to be a source of law.18 By the time of the 12 Mitchel de S.-O.-I’E. Lasser, Judicial (Self-)Portraits: Judicial Disclosure in the French Legal System, 104 YALE L.J. 1325, 1330 (1995). 13 Translated into English, the adage states: ‘May God protect us from the equity of parlements [courts].’ 14 Vernon Valentine Palmer, ‘May God Protect Us from the Equity of Parlements’: Comparative Reflections on English and French Equity Power, 73 TUL. L. REV. 1287, 1296 (1999). For more on the Judiciary’s role in pre-Revolutionary France, see generally JOHN A. CAREY, JUDICIAL REFORM IN FRANCE BEFORE THE REVOLUTION OF 1789 (1981). 15 André Tunc, The Grand Outlines of the Code Napoleon, 29 TUL. L. REV. 431, 431 (1955). 16 Id. at 431-32. 17 CODE CIVIL [C. CIV.] art. 5 (Fr.); see also THE FRENCH CIVIL CODE, art. 5 (trans., John H. Crabb, 1995). [An example of how legal translations can and do differ even when dealing with the same Article.] Crabb’s edition translates Article 5 as: ‘Judges are forbidden to pronounce decisions by way of general and regulative disposition on causes which are submitted to them.’ ‘Article 5 of the Civil Code further guarantees this exclusive authority of the legislature by forbidding judges to issue arrêts de règlement, that is to say, to indicate the constructions or interpretations of the legislation which would be followed in like future c ases.’ Loussouarn, supra note 4 at 237. The codification of this prohibition was a direct result of the Enlightenment in Europe and the ideas of Montesquieu. Under Montesquieu’s influence, two important ideas concerning the role of the judiciary arose. The first idea was that the judge was nothing more than the ‘bouche de la loi’ or ‘the mouth of the law’ and in that sense she is not empowered to ‘add anything to the law, [rather] . . . her power is limited to expounding what is already inside the statute.’ Mario Ascheri, Turning Point in the Civil-Law Tradition: From Ius Commune to Code Napoleon, 70 TUL. L. REV. 1041, 1042 (1996). The second idea was that the judge’s function was to be a ‘référé législatif’ (legislative referee) meaning that only the legislature can resolve legal questions and when the judiciary decides a case it does so through ‘legislative will.’ Id. ‘Courts were denied all power ‘to make regulations’ (règlements) but were ‘to address themselves to the legislature whenever they think it necessary either to interpret a law or to make a new one.’‘ JOHN P. DAWSON, THE ORACLES OF THE LAW 376 (1968). 18 Professor Loussouarn, citing the famed jurist François Gény, states: ‘Theoretically, the judge is entitled to ignore the decisions of other courts and even his own. From this, Gény and others have concluded that the jurisprudence, or decisions, is not a source of law.’ Loussouarn, supra note 4 at 257. See also 2 FRANÇOIS GÉNY, MÉTHODE D’INTERPRETATION ET SOURCES EN DROIT PRIVÉPOSITIF: ESSAI CRITIQUE 145 (2d ed. 1954)
Article's enactment in 1804, Louisiana was no longer a possession of France, so the question remained whether louisiana jurisprudence would follow the revolutionary model or the Anglo-American model It was well known that the people of Louisiana were not pleased with the American ud icial system or the american immigrants in general. g The Americans viewed the french inhabitants of Louisiana with equal contempt. 20 The territory's first governor, William CC Claiborne, wrote President Jefferson that Louisianans were ignoramuses, and... childish incapable of seeing the advantages of American laws. 2I The elected representatives of Louisiana, however, saw the advantages of the laws that were in existence before the Americans assumed control. During these tumultuous times, they stood as a voice of reason The most inestimable benefit for a people is the preservation of its laws, usages, and habits It is only such preservation that can soften the sudden transition from one government to another and it is by having consideration for that natural attachment that even the heaviest yoke becomes endurable. 22 The first attempt at reason came in 1806, when the Legislature of the Territory of Orleans convened and declared that the Territory of orleans23 should be governed by roman THE LOUISIANA GOVERNORS: FROM IBERVILLE TO EDWARDS 84-85(Joseph G. Dawson Ill ed, 1990) [hereinafter LOUISIANA GoVERNORS]. Louisianas first governor under American rule, William CC. Claibome faced a formidable task. " Previous American territories had been inhabited by people who spoke the English language, who were Protestant, and who had experience in representative government. The people of Louisiana inantly French in culture; they were Catholic; and nothing in the ir history had given them the United States. The Americans they had known had been pioneers from Kentucky and Tennessee t people of "Kaintucks"to the people of New Orleans, whose most notable characteristics had been drinking, wenching, IT]he Americans recognized that Louisianas colonial experience had been different from that of the other states of the union. The existing states all had been nurtured by and eventually weaned from a common mother, English-speaking, Protestant, parliamentary Great Brita in Louisiana, on the other hand, had been reared by non-English speaking, papist nations led by absolute monarchs. The American govemment was afraid that th ilarity in experiences would cause friction and hinder national homogeneity. Therefore, anglicization of Louisiana was believed to be the best course of action. Alain A. Levasseur& roger K. Ward, 300 Years and Counting: The French Influence on the Louisiana Legal System, 46 LA. B.J. 301 21 ALFRED OLIVIER HERO, JR, LOUISIANA AND QUEBEC: BILATERAL RELATIONS AND COMPARATIVE SOCIOPOLITICAL EVOLUTION, 1673-1993 at 165(1995). Educated in a belief of the excellencies of the civ il law, the Louisianian have hitherto been unwilling to part with them, and, while we feel ourselves the force of habit and prejudice, we should not be surprised at the attachment that the old inhabitants manifest formany of their former customs and local institutions. The general introduction, therefore, into this Territory of the American laws must be the effect of time; the work of innovation must progress slowly and cautiously, or otherwise much convenience will ensue, and serious discontents will arise among a people who have the strongest claims upon the justice and the liberality of the American Govemment. 4 CHARLES GAYARRE, HISTORY OF LOUISIANA 199 (1885) Yiannopoulos, supra note 7 at XXXVI The Territory of orleans, as we would know it today, is comprised of the modern-day state of Louisiana. In 1811, the Eleventh Congress delineated the boundaries of the Territory of orleans in the Act of Feb. 20, 1811, 2 Stat 641. The Act, officially entitled "An Act to enable the people of the Territory of Orleans to form a constitution and state government, and for other purposes'reads, in the pertinent part: That the inhabitants of all that part of the territory or country ceded under the name of Louisiana, by the treaty made at Paris.. between the United States and France, conta ined within the following lim its, that is to say: beginning at the mouth of the river Sabine, thence by a line to be drawn along the m iddle of said river, including all islands to the thirty-second degree of latitude; thence due north, to the northernmost part of the thirty-third degree of north latitude; thence along the said parallel of latitude to the river Mississippi, thence down the said
Article’s enactment in 1804, Louisiana was no longer a possession of France, so the question remained whether Louisiana jurisprudence would follow the Revolutionary model or the Anglo-American model. It was well known that the people of Louisiana were not pleased with the American judicial system or the American immigrants in general.19 The Americans viewed the French inhabitants of Louisiana with equal contempt.20 The territory’s first governor, William C.C. Claiborne, wrote President Jefferson that Louisianans were ‘ignoramuses, and . . . childish . . . incapable of seeing the advantages of American laws.’21 The elected representatives of Louisiana, however, saw the advantages of the laws that were in existence before the Americans assumed control. During these tumultuous times, they stood as a voice of reason: ‘The most inestimable benefit for a people is the preservation of its laws, usages, and habits. It is only such preservation that can soften the sudden transition from one government to another and it is by having consideration for that natural attachment that even the heaviest yoke becomes endurable.’22 The first attempt at reason came in 1806, when the Legislature of the Territory of Orleans convened and declared that ‘the Territory of Orleans23 should be governed by Roman 19 THE LOUISIANA GOVERNORS: FROM IBERVILLE TO EDWARDS 84-85 (Joseph G. Dawson III ed., 1990) [hereinafter LOUISIANA GOVERNORS]. Louisiana’s first governor under American rule, William C.C. Claiborne, faced a formidable task. ‘Previous American territories had been inhabited by people who spoke the English language, who were Protestant, and who had experience in representative government. The people of Louisiana were predominantly French in culture; they were Catholic; and nothing in their history had given them experience in representative government . . . Furthermore, the people of Louisiana had no love for the people of the United States. The Americans they had known had been pioneers from Kentucky and Tennessee, “Kaintucks” to the people of New Orleans, whose most notable characteristics had been drinking, wenching, and brawling.’ Id. 20 ‘[T]he Americans recognized that Louisiana’s colonial experience had been different from that of the other states of the union. The existing states all had been nurtured by and eventually weaned from a common mother, English-speaking, Protestant, parliamentary Great Britain. Louisiana, on the other hand, had been reared by non-English speaking, papist nations led by absolute monarchs. The American government was afraid that this dissimilarity in experiences would cause friction and hinder national homogeneity. Therefore, anglicization of Louisiana was believed to be the best course of action.’ Alain A. Levasseur & Roger K. Ward, 300 Years and Counting: The French Influence on the Louisiana Legal System, 46 LA. B.J. 301. 21 ALFRED OLIVIERHERO, JR., LOUISIANA AND QUEBEC: BILATERAL RELATIONS AND COMPARATIVE SOCIOPOLITICAL EVOLUTION, 1673-1993 at 165 (1995). ‘Educated in a belief of the excellencies of the civil law, the Louisianians have hitherto been unwilling to part with them, and, while we feel ourselves the force of habit and prejudice, we should not be surprised at the attachment that the old inhabitants manifest for many of their former customs and loca l institutions. The general introduction, therefore, into this Territory of the American laws must be the effect of time; the work of innovation must progress slowly and cautiously, or otherwise much inconvenience will ensue, and serious discontents will a rise among a people who have the strongest claims upon the justice and the liberality of the American Government.’ 4 CHARLES GAYARRÉ, HISTORY OF LOUISIANA 199 (1885). 22 Yiannopoulos, supra note 7 at XXXVI. 23 The Territory of Orleans, as we would know it today, is comprised of the modern-day state of Louisiana. In 1811, the Eleventh Congress delineated the boundaries of the Territory of Orleans in the Act of Feb. 20, 1811, 2 Stat. 641. The Act, officially entitled ‘An Act to enable the people of the Territory of Orleans to form a constitution and state government, and for other purposes’ reads, in the pertinent part: ‘That the inhabitants of all that part of the territory or country ceded under the name of Louisiana, by the treaty made at Paris . . . between the United States and France, contained within the following limits, that is to say: beginning at the mouth of the river Sabine, thence by a line to be drawn along the middle of said river, including all the islands to the thirty-second degree of latitude; thence due north, to the northernmost part of the thirty-third degree of north latitude; thence along the said parallel of latitude to the river Mississippi; thence down the said
and Spanish civil law and by the ordinances and decrees that previously applied in Louisiana. 24 Initially, Governor Claiborne vetoed this legislation and this sparked protests within and without the legislature notwithstand ing the veto the move was seen as pragmatic because of the confused, uncod ified state of Spanish law that had been in force Louisiana at the time of the Purchase. 2 >In particular, there were ' six different compilations of Spanish laws, . and it was unclear which of over 20,000 individual laws of Spain applied in the territory. 26 This state of confusion prompted both sides to seek greater compromise which had culminated in the adoption, on March 31, 1808, of a work entitled'A Digest of the Civil Laws now in Force in the Territory of Orleans, with Alterations and Amendment Adapted to its Present form of Government. 27 This Digest, 8 known as the Louisiana Civil Code of 1808, was inspired largely by the French projet du gouvernement of 1800, better known as the Code Napoleon. 9 In particular, approximately seventy percent of the Codes river to the river Iberville; and from thence along the middle of sa id river and lakes Maurepas and Ponchartrain leagues of the coast, be, and they are hereby authorized to form for themselves a constitution and state government, and to assume such name as they may deem proper .. Id YIANNOPOULOS, supra note 9 at 63 It should be noted that Louisiana was ceded to Spain in 1762 by the Treaty of Fontainebleau. French laws, however, continued to be applied until 1769 when Spanish Govemor Don Alejandro O Reilly, an Irishman in the service of Spain, issued an ordinance designed to organize an efficient govemment and administration of justice in accordance with the Spanish laws ' Yiannopoulos, supra note 7 at XVI. The ordinance, which became nown as"OReilly's Code, had the effect of transforming Louisiana into a" Spanish ultramarine province, governed by the same la ws as the other Spanish possessions in America and subject to the same system of udicial administration. Id at XVll. Nevertheless, Louisiana was receded to France by the Treaty of San Idelfonso in 1800, yet France reassumed sovereignty on November 30, 1803, for only twenty days before ce the territory to the United States. As a result, the bulk of the pre-existing laws [Spanish] remained in force the United States took possession of the territory on December 20, 1803. Id 26 William Tetley, Mixed Jurisdictions: Common Law v Civil Law(Codified and Uncodified/), 60LAL REV.677, 697-98(2000); see John T. Hood, Jr, The History and Development ofthe Louisiana Civil Code, 19 LA. L REV. 18, 19(1958)(noting that even in Spain there was no consensus over which laws would apply in case of a conflict); see also ALAIN A LEVASSEUR, LOUIS MOREAU-LISLET: FOSTER FATHER OF LOUISIANA CIVIL LAW(1996), see also Rodolfo Batiza, The Louisiana Civil Code of 1808: Its Actual Sources and Present Relevance, 46 TUL. L REV. 4(1971); but cf. Robert A Pascal, Sources of the Digest of1808: A Reply to Professor Batiza, 46 TUL. L REV. 604(1972) Yiannopoulos, supra note 7 at XIX (West 2000 ), see also Roger K. Ward, The French language in Louisiana Law and Legal Education: A Requiem, 57 LA. L REV. 1283. Discussing the state of Louisiana jurisprudence before codification, Roger Ward argued that Louisiana's decision to adopt a civil code was based on necessity. Because of its motley colonial past, Louisianas legal system was actually an interesting amalgamation of Spanish and French law. The Spanish law in effect at the time of the transferof the territory to the United States was com posed of eleven different codes, conta ining more than 20,000 laws, with many conflicting provisions. Relatively few Spanish legal treatises were available to help Louisianians understand and REv. 29, 33(1958)(arguing that the redactors of the Digest of 1808 were influenced by Spanish law, i TUL. L interpret these laws. Id at 1302; but cf Rodolfo Batiza, The Influence of spanish Law in Louisiana, 33 particular the fifth book of Las Siete Partidas relating to contracts and sales of goods) According to Professor Yiannopoulos, a digest codeis aclarification and system ization of existing law without significant alterations. It secures orderly arrangement of legal provisions, convenience of a compilation rather than a true codification 'YIANNOPOULOS, supra note gat4 y the Justinian legislation,is ascertaining, and accessibility of the law. This type of code, which is exemplified For more on the sources of the la w in Louisiana, see id, at 65. See also Henry Plauche Dart, The Sources ofthe Civil Code oflouisiana, in SAUNDERS, LECTURES ON THE CIVIL CODE OF LOUISIANA(1925). In
and Spanish civil law and by the ordinances and decrees that previously applied in Louisiana.’24 Initially, Governor Claiborne vetoed this legislation and this sparked protests within and without the Legislature. Notwithstanding the veto, the move was seen as pragmatic because of the confused, uncodified state of Spanish law that had been in force in Louisiana at the time of the Purchase.25 In particular, there were ‘six different compilations of Spanish laws . . . and it was unclear which of over 20,000 individual laws of Spain applied in the territory.’26 This state of confusion prompted both sides to seek greater compromise, which had culminated in the adoption, on March 31, 1808, of a work entitled ‘A Digest of the Civil Laws now in Force in the Territory of Orleans, with Alterations and Amendments Adapted to its Present form of Government.’27 This Digest,28 known as the Louisiana Civil Code of 1808, was inspired largely by the French projet du gouvernement of 1800, better known as the Code Napoléon. 29 In particular, approximately seventy percent of the Code’s river to the river Iberville; and from thence along the middle of said river and lakes Maurepas and Ponchartrain, to the gulf of Mexico; thence bounded by said gulf to the place of beginning: including all islands within three leagues of the coast, be, and they are hereby authorized to form for themselves a constitution and state government, and to assume such name as they may deem proper . . .’ Id. 24 YIANNOPOULOS, supra note 9 at 63. 25 It should be noted that Louisiana was ceded to Spain in 1762 by the Treaty of Fontainebleau. French laws, however, continued to be applied until 1769 when Spanish Governor Don Alejandro O’Reilly, an Irishman in the service of Spain, issued an ordinance ‘designed to organize an efficient government and administration of justice in accordance with the Spanish laws.’ Yiannopoulos, supra note 7 at XVI. The ordinance, which became known as ‘O’Reilly’s Code,’ had the effect of transforming Louisiana into a ‘Spanish ultramarine province, governed by the same laws as the other Spanish possessions in America and subject to the same system of judicial administration.’ Id. at XVII. Nevertheless, Louisiana was receded to France by the Treaty of San Idelfonso in 1800, yet France reassumed sovereignty on November 30, 1803, for only twenty days before ceding the territory to the United States. As a result, ‘the bulk of the pre-existing laws [Spanish] remained in force until the United States took possession of the territory on December 20, 1803.’ Id. 26 William Tetley, Mixed Jurisdictions: Common Law v. Civil Law (Codified and Uncodified), 60 LA. L. REV. 677, 697-98 (2000); see John T. Hood, Jr., The History and Development of the Louisiana Civil Code, 19 LA. L. REV. 18, 19 (1958) (noting that even in Spain there was no consensus over which laws would apply in case of a conflict); see also ALAIN A. LEVASSEUR, LOUIS MOREAU-LISLET: FOSTERFATHER OF LOUISIANA CIVIL LAW (1996); see also Rodolfo Batiza, The Louisiana Civil Code of 1808: Its Actual Sources and Present Relevance, 46 TUL. L. REV. 4 (1971); but cf. Robert A. Pascal, Sources of the Digest of 1808: A Reply to Professor Batiza, 46 TUL. L. REV. 604 (1972). 27 Yiannopoulos, supra note 7 at XIX (West 2000); see also Roger K. Ward, The French Language in Louisiana Law and Legal Education: A Requiem, 57 LA. L. REV. 1283. Discussing the state of Louisiana jurisprudence before codification, Roger Ward argued that ‘Louisiana’s decision to adopt a civil code was based on necessity. Because of its motley colonial past, Louisiana’s legal system was actually an interesting amalgamation of Spanish and French law. The Spanish law in effect at the time of the transfer of the territory to the United States was composed of eleven different codes, containing more than 20,000 laws, with many conflicting provisions. Relatively few Spanish legal treatises were available to help Louisianians understand and interpret these laws.’ Id. at 1302; but cf. Rodolfo Batiza, The Influence of Spanish Law in Louisiana, 33 TUL. L. REV. 29, 33 (1958) (arguing that the redactors of the Digest of 1808 were influenced by Spanish law, in particular the fifth book of Las Siete Partidasrelating to contracts and sales of goods). 28 According to Professor Yiannopoulos, a ‘digest code’ is a ‘clarification and systemization of existing law without significant alterations. It secures orderly arrangement of legal provisions, convenience of ascertaining, and accessibility of the law. This type of code, which is exemplified by the Justinian legislation, is a compilation rather than a true codification.’ YIANNOPOULOS, supra note 9 at 43. 29 For more on the sources of the law in Louisiana, see id., at 65. See also Henry Plauche Dart, The Sources of the Civil Code of Louisiana, in SAUNDERS, LECTURES ON THE CIVIL CODE OF LOUISIANA (1925). ‘In
2, 160 Articles, or 1,516 articles, was based upon the French Code. 30 This being said, it is surprising to note that Louisiana never enacted a codal provision correspond ing to Article 5 of the Code Napoleon relating to the prohibition of judge-made law(precedent). 31 Considering that the French Civil Code was adopted and promulgated four years prior to the Louisiana Civil Code of 1808, and in light of the 'close ties then existing with the old country, there must have been ample opportunity for [the Code] to have found its way to Louisiana. 332 The absence of a provision prohibitive of judge-made law, however, should not be nterpreted as an attempt by the redactors of the Code to adopt the Anglo-American common- law doctrine of stare decisis. On March 24, 1822, Messieurs Edward Livingston, lOuis Moreau- Lislet, 4 and Pierre Derbigny 35 were commissioned by the Louisiana Legislature "revise the civil code by amend ing the same in such a manner as they will deem advisable A year later, in a report to the Louisiana Senate, these esteemed jurisconsults wrote about the proper role of judges and, in doing so, showed their contempt for precedent as a source of law They wrote preparing the Digest of 1808 there is no doubt that Moreau-Lislet and Brown followed the first projet of the Napoleonic Code. There are very many articles identical with articles of the Napoleonic Code, from which the legend gathered strength, until it is customary now to say that the Digest of 1808 was a mere transcript of the first projet of the Napoleon Code ' Id at XXXV. For more on the Napoleonic Code'stermitorial expansion'by conquest, direct persuasion and inspiration, see, e.g., Jean Limpens, Territorial Expansion ofthe Code, in THE CODE NAPOLEON AND THE COMMON LAW WORLD 93-99(Bernard Schwartzed, Greenwood Press 1975) (1956). The dynamic influence of the Code did not stop at the borders of Europe. America, with its boundless territories, was to furnish new areas for expansion. Strangely enough, it was in North America on the soil of the United States that the Code found its first foothold. Louisiana. a French esta blishment from 1682 to 1762.a Spanish possession from 1762 to 1800, a part of the United States from 1804, was first and foremost a land of French culture. The first code of 1808 amply demonstrated its heritage. Although it is not known if the drafters of the code were in possession of the definitive text of the Code Napoleon, it is interesting to note that the divergences from it were not great. ' Id at 98-99 YIANNOPOULOS, supra note 9 31 C Girard Davidson, Stare Decisis in Louisiana, 7 TUL. L REV. 100, 100(1932) Id at 101 in assuring the survival of the civil law in his adopted state. According to Judge Hood, []here /was/teental Edward Livingston was a New York la wyer who emigrated to Louisiana in 1803 and was fundamental question but that the common law system would have been established here shortly after the United States assumed sovereignty, and that Louisiana would be a common law state today, were it not for the fact that Livingston.. emerged as a leader in opposing this action, and as a champion for the ca use of retaining a civil law system in the territory, Hood, supra note 26 at 20 ouis Moreau-Lislet was born in Saint-Domingue(modem-day Santo Domingo )on the Isle of Hispaniola when it was a French dependency. He received his legal tra ining in France and immigrated shortly after the Louisiana purchase. Moreau-Lislet has perhaps contributed more to the legal literature of this state than has any other person. During his busy career, he participated in more than 200 cases before the State Supreme Court, and also served at various times as a mem ber of the State House of Representatives, a State Senator, as a Parish Judge, as Attorney General, and as a representative in Congress. Id at 24 Pierre Derbigny was a French nobleman who was forced to flee during the revolution. He settled in Louisiana and joined Edward Livingston's efforts to oppose Govenor Claiborme's plan to install the common- law system in the territory. Derbigny is perhaps best remem bered for his service as a Justice of the Louisiana Supreme Court and for his tenure as Governor. Id at 29; see generally LOUISIANA GOVERNORS, supra note 19 1822 La. Acts. 108
2,160 Articles, or 1,516 articles, was based upon the French Code.30 This being said, it is surprising to note that Louisiana never enacted a codal provision corresponding to Article 5 of the Code Napoléon relating to the prohibition of judge-made law (precedent).31 Considering that the French Civil Code was adopted and promulgated four years prior to the Louisiana Civil Code of 1808, and in light of the ‘close ties then existing with the old country,’ there must have been ‘ample opportunity for [the Code] to have found its way to Louisiana.’32 The absence of a provision prohibitive of judge-made law, however, should not be interpreted as an attempt by the redactors of the Code to adopt the Anglo-American commonlaw doctrine of stare decisis. On March 24, 1822, Messieurs Edward Livingston,33 Louis Moreau-Lislet,34 and Pierre Derbigny35 were commissioned by the Louisiana Legislature to ‘revise the civil code by amending the same in such a manner as they will deem advisable.’36 A year later, in a report to the Louisiana Senate, these esteemed jurisconsults wrote about the proper role of judges and, in doing so, showed their contempt for precedent as a source of law. They wrote: preparing the Digest of 1808 there is no doubt that Moreau-Lislet and Brown followed the first projet of the Napoleonic Code. There are very many articles identical with articles of the Napoleonic Code, from which the legend gathered strength, until it is customary now to say that the Digest of 1808 was a mere transcript of the first projet of the Napoleon Code.’ Id. at XXXV. For more on the Napoleonic Code’s ‘territorial expansion’ by conquest, direct persuasion and inspiration, see, e.g., Jean Limpens, Territorial Expansion of the Code, in THE CODE NAPOLEON AND THE COMMON LAWWORLD 93-99 (Bernard Schwartz ed., Greenwood Press 1975) (1956). ‘The dynamic influence of the Code did not stop at the borders of Europe. America, with its boundless territories, was to furnish new areas for expansion. Strangely enough, it was in North America on the soil of the United States that the Code found its first foothold. Louisiana, a French establishment from 1682 to 1762, a Spanish possession from 1762 to 1800, a part of the United States from 1804, was first and foremost a land of French culture. The first code of 1808 amply demonstrated its heritage. Although it is not known if the drafters of the code were in possession of the definitive text of the Code Napoleon, it is interesting to note that the divergences from it were not great.’ Id. at 98-99. 30 YIANNOPOULOS, supra note 9. 31 C. Girard Davidson, Stare Decisis in Louisiana, 7 TUL. L. REV. 100, 100 (1932). 32 Id. at 101. 33 Edward Livingston was a New York lawyer who emigrated to Louisiana in 1803 and was fundamental in assuring the survival of the civil law in his adopted state. According to Judge Hood, ‘[t]here [was] little question but that the common law system would have been established here shortly after the United States assumed sovereignty, and that Louisiana would be a common law state today, were it not for the fact that . . . Livingston . . . emerged as a leader in opposing this action, and as a champion for the cause of retaining a civil law system in the territory.’ Hood, supra note 26 at 20. 34 Louis Moreau-Lislet was born in Saint-Domingue (modern-day Santo Domingo) on the Isle of Hispaniola when it was a French dependency. He received his legal training in France and immigrated shortly after the Louisiana purchase. Moreau-Lislet has ‘perhaps contributed more to the legal literature of this sta te than has any other person. During his busy career, he participated in more than 200 cases before the State Supreme Court, and also served at various times as a member of the State House of Representatives, a State Senator, as a Parish Judge, as Attorney General, and as a representative in Congress.’ Id. at 24. 35 Pierre Derbigny was a French nobleman who was forced to flee during the Revolution. He settled in Louisiana and joined Edward Livingston’s efforts to oppose Governor Claiborne’s plan to install t he commonlaw system in the territory. Derbigny is perhaps best remembered for his service as a Justice of the Louisiana Supreme Court and for his tenure as Governor. Id. at 29; see generally LOUISIANA GOVERNORS, supra note 19. 36 1822 La. Acts. 108
[WHat is the true meaning of the law when it is doubtful; to decide how it applies to facts when they are legally ascertained is the proper office of the Judge-The exercise of his discretion is confined to these which are called CASES OF CONSTRUCTION: in all other he has none. he is but 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 Governments under which more is required from, or permitted to, the Magistrate are vicious because they confound Legislative powerwithJudicial duties, and permit theirexercise in the worst possible ape, by creating the rule, after the case has arisen to which it is applied. This is a vice inherent in the Jurisprudence ofall nations governed wholly, or in part, as England is by unwritten Laws, or such as can only be collected from decisions. 37 The Louisiana Civil Code of 1825 was printed in French and English, and the redactors of the Code drew inspiration from the Code Napoleon as well as French doctrine and jurisprudence. 39 The French version of Article I of the Code of 1825 put the matter to rest when it declared that []a loi est une declaration solennelle de la volonte legislative. 40 Thus without expressly declaring that precedent is not law along the lines of Article 5 of the Code Napoleon, the redactors of the Louisiana Civil Code came back within the ambit of the French revolutionary model 4I That is to say, although it may seem that the judge must decide the case. the decision itself is not to be considered law. 42 The opposite is true of the common law. To the student of the common law, the law is created and molded by judges, and legislation is viewed as serving a kind of function. 43 Consequently, it can be said that the common law has its fundamental basis on the idea of precedent or stare decisis. The rationale for this rule is consistency 44 According to LIVINGSTON MOREAU-LISLET DERBIGNy REPORT ON THE REVISION OF THE CIVIL CODE 8-10 (1823)(emphasis added) The Civil Code of 1825 was drafted originally in French and was translated into English. Both versions, however, were official, but since the English translation was known to contain errors, the French text became controlling. See Tetley, supra note 26 at 698-99. The English translation proved to be spectacularly bad. Recognizing the deficiencies in translation, the Louisiana Supreme Court ruled that, in the event of a conflict between the two texts, the French would prevail. This French preference rule has been applied constantly by Louisiana courts. Levasseur& Ward, supra note 20 at 304. See generally Dunford v. Clark's Estate, 3 La. 199 (La, 1831); Phelps v Reinach, 38 La. Ann. 547 (La, 1886), Straus v City of New Orleans, 166 La. 1035, 118 So.125(a,1928) Sample. Whitaker,172La.722,135S0.38(La,1931) YIANNOPOULOS, supra note 9 at 69 LA. CIV. CODE ANN., art. I(1825). The English version of the same text reads: "Law is a solemn expression of legislative will. According to Professor de vries, in the civilian tradition, " loi, or legislation, is the most fundamental source of law. hENRY P DEVRIES. CIVIL LAW AND THE ANGLO-AMERICAN LAWYER 248 (1975) 41 Nevertheless, the [Louisiana ] Code does contain a provision which is not found in the Code, that might be said to indicate an intention on the part of the codifiers to reach the French Article [of the Louisiana Civil Code of 1870] provides that"Law is a solemn expression of legislative Davidson supra note 31 at 102 MERRYMAN, supra note 1 I at 34 Professor Dainow states that the common-law theory of precedents developed during England's formative years when there was no strong legislative power. He writes: When a court decided a particular case its decision was not only the law for the parties, but had to be followed in future cases of the same sort, thereby becoming a part of the general or common law. Thus, the common law, as a body of law, consisted of all the
[W]hat is the true meaning of the Law when it is doubtful; to decide how it applies to facts when they are legally ascertained is the proper office of the Judge - The exercise of his discretion is confined to these, which are called CASES OF CONSTRUCTION: in all other he has none, he is but 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. 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. 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.37 The Louisiana Civil Code of 1825 was printed in French38 and English, and the redactors of the Code drew inspiration from the Code Napoléon as well as French doctrine and jurisprudence.39 The French version of Article I of the Code of 1825 put the matter to rest when it declared that ‘[l]a loi est une declaration solemnelle de la volonté législative.’40 Thus, without expressly declaring that precedent is not law along the lines of Article 5 of the Code Napoléon, the redactors of the Louisiana Civil Code came back within the ambit of the French revolutionary model.41 That is to say, although it may seem that the judge must decide the case, the decision itself is not to be considered law.42 The opposite is true of the common law. To the student of the common law, the law is created and molded by judges, and legislation is viewed as ‘serving a kind of supplementary function.’43 Consequently, it can be said that the common law has its fundamental basis on the idea of precedent or stare decisis. The rationale for this rule is consistency.44 According to 37 LIVINGSTON, MOREAU-LISLET, & DERBIGNY, REPORT ON THE REVISION OF THE CIVIL CODE 8-10 (1823) (emphasis added). 38 The Civil Code of 1825 was drafted originally in French and was translated into English. Both versions, however, were official, but since the English translation was known to contain errors, the French text became controlling. See Tetley, supra note 26 at 698-99. ‘The English translation proved to be spectacularly bad. Recognizing the deficiencies in translation, the Louisiana Supreme Court ruled that, in the event of a conflict between the two texts, the French would prevail. This French preference rule has been applied constantly by Louisiana courts.’ Levasseur & Ward, supra note 20 at 304. See generally Dunford v. Clark’s Estate, 3 La. 199 (La., 1831); Phelps v. Reinach, 38 La. Ann. 547 (La., 1886); Straus v. City of New Orleans, 166 La. 1035, 118 So. 125 (La., 1928); Sample v. Whitaker, 172 La. 722, 135 So. 38 (La., 1931). 39 YIANNOPOULOS, supra note 9 at 69. 40 LA. CIV. CODE ANN., art. I (1825). The English version of the same text reads: ‘Law is a solemn expression of legislative will.’ According to Professor deVries, in the civilian tradition, ‘loi,’ or legislation, is the most fundamental source of law. HENRY P. DEVRIES, CIVIL LAW AND THE ANGLO-AMERICAN LAWYER 248 (1975). 41 ‘Nevertheless, the [Louisiana] Code does contain a provision which is not found in the French Civil Code, that might be said to indicate an intention on the part of the codifiers to reach the French result. Article 1 [of the Louisiana Civil Code of 1870] provides that “Law is a solemn expression of legislative will.”’ Davidson, supra note 31 at 102. 42 Id. 43 MERRYMAN, supra note 11 at 34. 44 Professor Dainow states that the common-law theory of precedents developed during England’s formative years when there was no strong legislative power. He writes: ‘When a court decided a particular case, its decision was not only the law for the parties, but had to be followed in future cases of the same sort, thereby becoming a part of the general or common law. Thus, the common law, as a body of law, consisted of all the
Zander, one of the fund amental characteristics of law is the objective that like cases should e treated alike. 45 It is therefore rational that, all things being equal, one court should follow the decision of another where the facts appear to be similar. 46 The greatest mind of the common law, Sir Edward Coke in his Institutes of the Laws of England, opined Nihil quod est contra rationem est licitem; for reason is the life of the law, nay the common law itselfe is nothing else but reason; which is understood of an artificiall perfection of reason, gotten by long study, observation, and experience, and not of every mans naturall reason; for, Nemo nasciturartifex his legall reason est summa ratio. And therefore if all the reason that is dispersed into so many severall [sic] heads, were united into one, yet could he not make such a law as the law in England is47 Moving several hundred years to the present, reason still requires that, as one commentator put it, ' similar cases be understood and dealt with similarity. Otherwise nothing makes sense In order to understand one another and reason accurately we must be consistent. So if law to be a rational(rather than irrational and arbitrary process, judicial decisions must be consistent with one another. The pragmatic ground for the rule of precedent is predictability Lawyers and citizens want to be able to assess their future behavior in terms of current decisions of the courts. 48 Civilian lawyers and citizens also want predictability but they have felt the need [for it] less keenly because of the background of rules provided first by roman in a pure civilian system, however, can be achieved by the use of precedents. Accord to 5 law and cod ified custom, and later by the codes of the Napoleonic era. 49 Predictability, eve Justice Barham of the Louisiana Supreme Court, jurisprudence is a major source of law in Louisiana he writes. Under our Code an through the historical civ ilian tradition, jurisprudence is not a major source of law, yet it has been and it remains such in reality. possibly the belief in jurisprudence as a primary source of w is so strongly em bedded in the minds of many of the judiciary and the practicing bar of louisiana because our civil law system coexists in a nation with states which beca use of their common law herta ge so regard jurisprudence. Even if our barreally believes that legislation is the primary source of law, it practices under the principle that jurisprudence is a major source of law. Lawyers often only perfunctorily exam ine legislative expression before they tum for final authority to the jurisprudence to resolve the legal question posed by their clients'cases. When the court asks the lawyer in argument to give the authority fora point which he advocates, the court probably expects a case citation even when there is positive codalor statutory authority. As a result of the pressure under which we perform our rules that could be generalized out ofjudicial decisions. New problems brought new cases, and these enriched the rules of the common law. Joseph Dainow, The Civil La and the Common Law: Some Points of Comparison, 15 AM J COMP L 419, 424-25(1967) MICHAEL ZANDER, THE LAW-MAKING PROCESS 179(3d ed, 1989) EDWARD COKE, INSTITUTES ON THE LAWS OF ENGLAND*$138(emphasis in original); but cf, for an attack on Cokes assertion that the common law is grounded in reason alone, THOMAS HOBBES, A DIALOGUE BETWEEN A PHILOSOPHER AND A STUDENT OF THE COMMON LAW 54-55( Cropsey, ed 1971). The use of reason as a basis for the common law, according to Hobbes, threatens the foundation of the legal system as a whole because"any Man, of any Law whatsoever may say it is aga inst Reason, and thereupon make a pretence of his disobedience. Id. See also Gerald J Postema, Some Roots ofOur Notion of Precedent, in PRECEDENTIN LAW 11 (Laurence Goldstein ed, 1988)(noting that equating reason with law, in Hobbes's view, was a dangerous undertaking) PATRICIA SMITH THE NATURE AND PROCESS OF LAW: AN INTRODUCTION TO LEGAL PHILOSOPHY 141 (Patricia Smith ed, 1993) ZANDER, supra note 45 at 219
Zander, one of the ‘fundamental characteristics of law is the objective that like cases should be treated alike.’45 It is therefore rational that, all things being equal, ‘one court should follow the decision of another where the facts appear to be similar.’46 The greatest mind of the common law, Sir Edward Coke in his Institutes of the Laws of England, opined: Nihil quod est contra rationem est licitem; for reason is the life of the law, nay the common law itselfe is nothing else but reason; which is understood of an artificiall perfection of reason, gotten by long study, observation, and experience, and not of every man’s naturall reason; for, Nemo nascitur artifex. This legall reason est summa ratio. And therefore if all the reason that is dispersed into so many severall [sic] heads, were united into one, yet could he not make such a law as the law in England is.47 Moving several hundred years to the present, reason still requires that, as one commentator put it, ‘similar cases be understood and dealt with similarity. Otherwise nothing makes sense. In order to understand one another and reason accurately we must be consistent. So if law is to be a rational (rather than irrational and arbitrary) process, judicial decisions must be consistent with one another. The pragmatic ground for the rule of precedent is predictability: Lawyers and citizens want to be able to assess their future behavior in terms of current decisions of the courts.’48 Civilian lawyers and citizens also want predictability but they have ‘felt the need [for it] less keenly because of the background of rules provided first by Roman law and codified custom, and later by the codes of the Napoleonic era.’49 Predictability, even in a pure civilian system, however, can be achieved by the use of precedents. According to Justice Barham of the Louisiana Supreme Court, jurisprudence is a major source of law in Louisiana. He writes: Under our Code an through the historical civilian tradition, jurisprudence is not a major source of law, yet it has been and it remains such in reality. Possibly the belief in jurisprudence as a primary source of law is so strongly embedded in the minds of many of the judiciary and the practicing bar of Louisiana because our civil law system coexists in a nation with states which because of their common law heritage so regard jurisprudence. Even if our bar really believes that legislation is the primary source of law, it practices under the principle that jurisprudence is a major source of law. Lawyers often only perfunctorily examine legislative expression before they turn for final authority to the jurisprudence to resolve the legal question posed by their clients’ cases. When the court asks the lawyer in argument to give the authority for a point which he advocates, the court probably expects a case citation even when there is positive codal or statutory authority. As a result of the pressure under which we perform our rules that could be generalized out of judicial decisions. New problems brought new cases, and these enriched the rules of the common law.’ Joseph Dainow, The Civil Law and the Common Law: Some Points of Comparison, 15 AM. J. COMP. L. 419, 424-25 (1967). 45 MICHAEL ZANDER, THE LAW-MAKING PROCESS 179 (3d ed., 1989). 46 Id. 47 1 EDWARD COKE, INSTITUTES ON THE LAWS OF ENGLAND* §138 (emphasis in original); but cf., for an attack on Coke’s assertion that the common law is grounded in reason alone, THOMAS HOBBES, A DIALOGUE BETWEEN A PHILOSOPHER AND A STUDENT OF THE COMMON LAW54-55 (J. Cropsey, ed. 1971). The use of reason as a basis for the common law, according to Hobbes, threatens the foundation of the legal system as a whole because ‘any Man, of any Law whatsoever may say it is against Reason, and thereupon make a pretence of his disobedience.’ Id. See also Gerald J. Postema, Some Roots of Our Notion of Precedent, in PRECEDENT IN LAW 11 (Laurence Goldstein ed., 1988) (noting that equating reason with law, in Hobbes’s view, was a dangerous undertaking). 48 PATRICIA SMITH, THE NATURE AND PROCESS OF LAW: AN INTRODUCTION TO LEGAL PHILOSOPHY 141 (Patricia Smith ed., 1993). 49 ZANDER, supra note 45 at 219
arious roles in our legal system there has been a tendency to stray from strict civilian metho ds and Even if the tendency has been 'to stray from strict civilian methodsas Justice Barham put it the common-law doctrine of stare decisis has no place in the jurisprudence of Louisiana. 5I Scholars familiar with both trad itions, however, have not always agreed upon this statement. In 1937. Professor gordon Ireland authored a controversial article entitled Louisiana's Legal System Reappraised, which broadly declared that Louisiana is today common law State, based in part on a misconception of the doctrine of stare decisis.53At first glance, the doctrines of stare decisis and jurisprudence constante appear quite similar, but the difference between them is one of the chief things which distinguishes the two great systems of law. 54 According to Professors Daggett, Dainow, Hebert, and McMahon, who wrote the famed response to Professor Ireland entitled A Reappraisal Appraised. A Brief for the Civil Law of louisiana, 55 there are two fundamental differences between the legal doctrines The two most important differences.. between the doctrine of jurisprudence constante and the rule of stare decisis, are: (1)a single case affords a sufficient foundation forthe latter, while a series of djudicated cases all in accord forms the predicate of the former, and (2) case law in civilian jurisdictions is merely law defacto, while under the common law technique it is law de jure. 56 In Quaker Realty Company v. Labasse, 7 the Louisiana Supreme Court held that only seldom can a single decision serve as a basis for stare decisis. . never where opposed to previous decisions, and especially where such previous decisions are overruled without being referred to, as if having escaped altogether the attention of the court. 58 The use of the words stare decisis, as noted above has caused much uncertainty in the state of the law. 59 To resolve Mack E. Barham, A Renaissance of the Civilian Tradition in Louisiana, 33 TUL. L REV. 357, 359 51 See Hamiet Spiller Daggett, Joseph Dainow, Paul M. Hebert, Henry George McMahon, A d: A Brieffor the Civil Law oflo 12 TUL. L REV. 12(1937) see also John H. Tucker, Jr, The Code and the Common Law in Louisiana, 29 TUL. L REV. 739(1955); but cf. Ireland, infra note 52 at 585 Gordon Ireland, Louisiana's Legal System Reappraised, 1I TUL. L REV. 585(1937) 53 Id. at 596 Henry, supra note 3 at 11 Daggett et al, supra note 51 Id. at17 131La.996,60S0.661(La,1912) Id.at1008.60So.at665 According to Professors Daggett, Dainow, Hebert and McMahon, Professor Gordon Ireland was misled by this erroneous label. ' Anyone makinga superficial examination of louisiana jurisprudence is quite apt to reach entirely erroneous conclusions because of the loose manner in which common la wterm inology is employed as being synonymous with accepted civilian nomenclature. Thus the repeated use of the terms"fee simple title"and"deed"might induce the rea der to conclude that Louisiana has adopted the common lawofrea
various roles in our legal system, there has been a tendency to stray from strict civilian metho ds and concepts.50 Even if the tendency has been ‘to stray from strict civilian methods’ as Justice Barham put it, the common-law doctrine of stare decisis has no place in the jurisprudence of Louisiana.51 Scholars familiar with both traditions, however, have not always agreed upon this statement. In 1937, Professor Gordon Ireland authored a controversial Article entitled Louisiana’s Legal System Reappraised, 52 which broadly declared that ‘Louisiana is today a common law State,’ based in part on a misconception of the doctrine of stare decisis.53 At first glance, the doctrines of stare decisis and jurisprudence constante appear quite similar, but ‘the difference between them is one of the chief things which distinguishes the two great systems of law.’54 According to Professors Daggett, Dainow, Hébert, and McMahon, who wrote the famed response to Professor Ireland entitled A Reappraisal Appraised: A Brief for the Civil Law of Louisiana, 55 there are two fundamental differences between the legal doctrines: The two most important differences . . . between the doctrine of jurisprudence constante and the rule of stare decisis, are: (1) a single case affords a sufficient foundation for the latter, while a series of adjudicated cases all in accord forms the predicate of the former; and (2) case law in civilian jurisdictions is merely law de facto, while under the common law technique it is law de jure. 56 In Quaker Realty Company v. Labasse, 57 the Louisiana Supreme Court held that ‘only seldom can a single decision serve as a basis for stare decisis . . . never where opposed to previous decisions, and especially where such previous decisions are overruled without being referred to, as if having escaped altogether the attention of the court.’58 The use of the words stare decisis, as noted above, has caused much uncertainty in the state of the law.59 To resolve 50 Mack E. Barham, A Renaissance of the Civilian Tradition in Louisiana, 33 TUL. L. REV. 357, 359 (1973). 51 See Harriet Spiller Daggett, Joseph Dainow, Paul M. Hébert, & Henry George McMahon, A Reappraisal Appraised: A Brief for the Civil Law of Louisiana, 12 TUL. L. REV. 12 (1937); see also John H. Tucker, Jr., The Code and the Common Law in Louisiana, 29 TUL. L. REV. 739 (1955); but cf. Ireland, infra note 52 at 585. 52 Gordon Ireland, Louisiana’s Legal System Reappraised, 11 TUL. L. REV. 585 (1937). 53 Id. at 596. 54 Henry, supra note 3 at 11. 55 Daggett et al., supra note 51. 56 Id. at 17. 57 131 La. 996, 60 So. 661 (La., 1912). 58 Id. at 1008, 60 So. at 665. 59 According to Professors Daggett, Dainow, Hébert and McMahon, Professor Gordon Ireland was misled by this erroneous label. ‘Anyone making a superficial examination of Louisiana jurisprudence is quite apt to reach entirely erroneous conclusions because of the loose manner in which common law terminology is employed as being synonymous with accepted civilian nomenclature. Thus the repeated use of the terms “fee simple title” and “deed” might induce the reader to conclude that Louisiana has adopted the common law of real