• James A. Brown, Liskow & Lewis, PLC

• Bryan T. Tedford, ACE USA

• The key distinguishing feature of a Civilian Legal System is methodological, rather than substantive.

• That distinguishing feature is a commitment to the concept of Codification.

• As stated in the 1823 Report of the Commissioners of the Louisiana Civil Code:

“. . . to furnish our follow citizens with a single book, in which each may find an intelligible and concise rule to ascertain his rights, direct him in his duties, regulate his contracts, explain his civil relations. . .”

• The judge is merely “the organ for giving voice, and utterance, and effect, to that which the Legislative branch has decreed. In cases where there is no Law, according to strict principles he can neither pronounce nor expound, nor apply it.” 1823 Report of Commissioners.

• “Governments under which more is required from, or permitted to, the Magistrate are vicious because they confound Legislative power with Judicial duties, and permit their exercise in the worst possible shape, by creating the rule, after the case has arisen to which it is applied.” 1823 Report of Commissioners

• “This is a vice inherent in the Jurisprudence of all nations governed wholly, or in part, as England is by unwritten Laws, or such as can only be collected from decisions. In such a country where precedent cannot be found, one must be made; in other words where the Judge can find no Law that applies to his case he must make it; . . . . and from the moment that he creates and applies it, the rule acquires all the veneration due to antiquity and becomes, under the name of a precedent, the evidence of pre-existing Law and a guide to future decisions.” 1823 Report of Commissioners.

• “According to civilian doctrine, legislation and custom are authoritative or primary sources of law. They are contrasted with persuasive or secondary sources of law, such as jurisprudence, doctrine, conventional usages, and equity, that may guide the court in reaching a decision in the absence of legislation and custom.” 1987 Official Revision Comments to Louisiana Civil Code Article 1.

• Louisiana’s Civilian Tradition is expressed in Louisiana Civil Code (“Civil Code”) Articles 1-4.

• Civil Code Article 1: “The sources of law are legislation and custom.”

• Civil Code Article 2: “Legislation is a solemn expression of legislative will.”

• Civil Code Article 3: “Custom results from practice repeated for a long time and generally accepted as having acquired the force of law. Custom may not abrogate legislation.”

• Civil Code Article 4: “When no rule for a particular situation can be derived from legislation or custom, the court is bound to proceed according to equity. To decide equitably, resort is made to justice, reason, and prevailing usages.”

• Hence, in Louisiana, there are no separate courts of Chancery or Equity. The judge resorts to equity only in the absence of legislation or custom.

• Boudreaux (“boo-dro”) and Thibodeaux (“tee-bo-doe”) are baignade (“paddlin”) at each other “rapide” (“fast”) in their pirogues (canoes/small boats) on Bayou Petite Cailloux (“little pebble bayou”), a non-navigable water body. Boudreaux is heading down stream; Thibodeaux upstream.

• Boudreux yells, “Hey Thibodeaux, faire attention!” (“watch out!”); but Thibodeaux can’t hear because he’s yellin’ “faire attention” back at Boudreaux.

• They collide; Thibodeaux is knocked overboard and drowns.

• The 32d Judicial District for the Parish of Terrebonne (“good earth”) has twice before decided that the upstream pirogue should give way to the downstream pirogue because the downstream pirogue is moving plus rapide (“faster”).

• But the estate of Thibodeaux’s avocat (“lawyer”) introduces the testimony of the 90-year-old Thibat (“tee-bot”), who lives right on the bayou, that at that particular spot, it is coutume (“habit, tradition”) that the downstream pirogue stops and lets the upstream pirogue go first so as not to disturb the alligator nest on the upstream side of the bayou. According to Thibat, only a real homme platt (“flat man;” idiom: nerd, fool, idiot) would think otherwise.

• In a common law system, who would win, the downstream Boudreaux and his marine insurance carrier, or the upstream succession de Thibodeaux?

• In Louisiana, assuming no Civil Code article or other statute on point, who wins?

• For many years, debate has raged over the substantive legal sources of the Louisiana Civil Code.

• Before cessation to the United States, Louisiana had undergone periods of French, then Spanish, then French rule.

• The European colonial powers were more interested in taking possession of the territory than in governing it.

• The Louisiana Creoles (descendants of the original French and Spanish settlers) were fiercely independent and resistant to foreign rule.

• So, at the time of the cessation of Louisiana to the U.S. in 1803, Louisiana civil law was based on a hodgepodge of Spanish, French and Roman legal sources, including collections of codes, texts, and treatises. The Louisiana creoles often resolved their civil disputes on the basis of French laws, customs and usages. A.N. Yiannopoulos, “The Civil Codes of Louisiana” (Preface, XLIX-LXXII, to 2013 Louisiana Civil Code, West Publishers).

• The duel (with pistols or swords) was used to resolve reputational disputes. Visit the “Dueling Oaks” in New Orleans City Park!

• The Creoles were strongly opposed to the common law. They were accustomed and wedded to the French and Spanish traditions of their ancestors and so successfully resisted U.S. territorial Governor W.C.C. Claiborne’s attempts to impose the common law system on Louisiana. Yiannopoulos, LI-LII.

• The redactors Moreau Lislet and James Brown (no relation) attempted the first codification of Louisiana’s civil law in the 1808 “Digest of the Civil Laws Now In Force in the Territory of Orleans.”

• Their official charge was to codify the “existing” laws of Louisiana, which were of Spanish, French and Roman origin. But in fact, they modeled the 1808 Digest largely on the French projet du gouvernement of 1800 and the Napoleonic Code. Brown and Lislet also incorporated some concepts from the Spanish Siete Partidas and other Spanish sources. Yiannopoulos, “The Civil Codes of Louisiana,” LIII.

• The codification movement in France following the French Revolution was clearly the inspiration for codification in Louisiana. Yiannopoulos, LIII. [This said with all due respect to both sides of the still raging academic debate.]

• The 1808 Digest did not expressly repeal prior law, so technically was not a “Civil Code” in the pure Civilian sense. But many affectionately consider it to be the first edition of the Louisiana Civil Code.

• Moreau Lislet, Edward Livingston and P. Derbigny drafted the Civil Code of 1825, which expressly repealed prior law.

• Thus it was the first “true” Civil Code in Louisiana. Yiannopoulos, LV.

• The redactors followed the Napoleonic Code closely, also incorporating concepts from French and Roman doctrine and some Spanish sources. Id.

• Code articles written in the Civilian style: concise, naturally written general principles.

• Leaving particular applications to the Judge.

• It is said that one could pass the state law sections of the Louisiana Bar Examination merely by reading (and understanding) the Louisiana Civil Code. And, by rumor, Frank Abignale (“Catch Me if You Can”) did just that—passing on his third try.

• Key Civil Code concepts are rooted in post-revolutionary concepts of personal right and freedom.

• Example—property law: Ownership intrinsic to the individual; not an “estate” granted by the Crown. Article 477: “Ownership is the right that confers on a person direct, immediate, and exclusive authority over the thing.”

• My property is as much a part of me as my arm or leg. • The components of property ownership are usus, fructus and

abuses. “The owner of a thing may use, enjoy, and dispose of it within the limits and under the conditions established by law.” Article 477.

• Freedom of contract: Any contract is legal unless expressly prohibited. Need not fit into a common law construct.

• Pierre Andre Trepagnier (“tree-PA-nyee”) owns a building with a balcony overlooking St. Charles Avenue in New Orleans, in front of which the Rex Parade passes every year on Mardi Gras day (“Fat Tuesday.”)

• The month and calendar day of Mardi Gras vary from year to year tied to the Lenten/Easter calendar. Fat Tuesday is always the day before Ash Wednesday.

• Pierre wants to sell his building to Gaspard Truvillier (“True-vil-yeah”), but wants to preserve in perpetuity a right of passage to and use of the balcony on Mardi Gras day only.

• Under common law, could the seller preserve this once-a-year right of use in perpetuity, when the date for exercise of the right varies from year to year?

• Under Louisiana Code Article 639, the seller could establish a “personal servitude of right of use” over the balcony.

• Under Articles 641-644, the right of use can be established in favor of a person or entity, can be transferred, and is heritable.

• It makes no difference that the law does not expressly address this particular situation. Under Article 477, the owner has full rights of ownership, including the ability to “dismember” particular components of ownership, unless expressly prohibited by law.

• Louisiana Civilian concepts often are the rough equivalents of common law counterparts, using French or Latin terms.

• Examples: • Usufruct = life estate • Servitude = easement • Prescription = statute of limitations • Contra non valentem = equitable tolling • Stipulation pour autrui = third party beneficiary

contract • Solidary = joint and several • Keeps us Louisiana lawyers in business!

• Influenced codification around the world, including in Argentina, Puerto Rico and Spain. Yiannopoulos, supra, LXI.

• “As a cultural document, the Civil Code has its own merit. It is beautifully written, so carries the best tradition of civilian aesthetics.” Mitchell Franklin, Book Review, 7 Tul. L. Rev. 632, 633 (1933). See also Roscoe Pound, The Influence of the Civil Law in America, 1 La. L. Rev. 1, 16 (1938).

• Many Code articles read like poetry: e.g., Article 2315: “Every act whatever of man that causes damages to another obliges him by whose fault it happened to repair it.” This concise, artful sentence is the foundation of all Louisiana tort law.

• Over time, the Louisiana legislature has by statute supplemented and modified many Civil Code concepts and principles.

• Volume II of our Civil Code is known as the “Civil Code Ancillaries”—statutory provisions modifying the law of the Civil Code.

• But the Civil Code remains the primary source of civil law in Louisiana.

• It would be naïve to state that judicial precedent is not important in Louisiana today.

• Intermediate appellate court interpretations of Civil Code articles are considered binding on the district courts in their circuits; Louisiana Supreme Court interpretations are considered binding on all lower courts.

• But the “Civilian Method” continues to structure our methodology and practice. A brief or oral argument begins with the applicable Civil Code articles; reference to judicial interpretation and precedent is secondary.

• A Louisiana court will admit and rule on evidence of custom or practice in the absence of a specific code article or statute.

• Common law incursions: • Uniform Commercial Code (convoluted, not in the

Civilian style) • Trust Code—contrary to the post-Revolutionary

prohibition of substitutions (controlling property from the grave)

• Elimination of Forced Heirship • Contractual Choice of Law • Economic/Business Issues—Are we driving away

business and corporate location/investment? • The new generation may be less interested in

Civilian Heritage.

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