Louisiana Civil Code Part 2: Custom Is The Law

Next up in our Civil Code series is something truly fundamental. What does our state consider to be binding law? The answer may not be as obvious as you’d think. Civil Code Article 1 provides, “The sources of law are legislation and custom.” This means that technically, judicial opinions in case law books are not binding “laws” (though they are very, very often considered by judges to be persuasive, when based upon valid applications of legislation).

It probably won’t surprise you that Article 1 says that legislation—a statute in a law book—is “the law.” But interestingly, in Louisiana, custom also is “the law.” How can this be? Does that mean “red beans and rice on Mondays” has the force of law?

Not quite.

Article 3 goes on to define “custom” as a “practice repeated for a long time and generally accepted as having acquired the force of law.” Hence, we need a couple of things to exist before a Louisiana tradition becomes “the law.” First, the tradition must be of long duration, a mode of behavior we see repeated over and over again in our state. Red beans on Monday seems to fit the bill for that element. But second, the practice must be generally accepted in the community as something that creates a legal obligation. I suspect we’re not to the point of a widespread, statewide consensus that we are all legally bound to eat red beans on Mondays.

So what would satisfy this specific test for establishing a binding “custom”? In one case, an employee sued his employer to attempt a removal of irrelevant records from his personnel file. Relying on employment customs, the court said, “Nope.” It found that even without a specific statute governing the types of personnel recordkeeping at issue, “It is custom that it is the employer’s purview to decide when to remove stale or unnecessary documentation from employee records.” Doe v. Entergy Servs., Inc., 608 So. 2d 684, 687 (La. App. 4th Cir. 1992), writ denied, 613 So. 2d 978 (La. 1993), cert. denied, 510 U.S. 816 (1993).

In another case, the court made an observation that could have real significance in medical malpractice cases. The court noted that standards of care in the medical profession could rise to the level of repeated practice that is “custom,” and therefore has the force of law. Delaney v. Humana Hosp., 2001-389 (La. App. 4 Cir. 10/16/02), 830 So. 2d 1072.

Disputes among the branches of government of the City of New Orleans led to the Louisiana Supreme Court addressing political customs when the City Council attempted to sue the Mayor and others regarding lands donated to the public. The defendants claimed that the City Council was not an entity separate and distinct from the City of New Orleans proper, and therefore the City Council was unable to file suit. After first reviewing provisions of the City’s governing charter, the Supreme Court then turned to custom: “For nearly fifty years, the Council has appeared as a party to litigation both as plaintiff and defendant, at times in suits adverse to the Mayor.” City of New Orleans v. Donation, 2023-1106 (La. 3/22/24), 382 So. 3d 27, 34. This political custom among branches of government convinced the Court that as a matter of law, the City Council was more than just a branch—it was an entity in its own right that could sue the Mayor.

Under these cases, Civil Code article 1’s elevation of custom has real-world consequences. To conclude with another reference red beans reference, while the Code may not have elevated weekday culinary selections into the realm of legal authority, by defining clear and longstanding customs as binding in the governance of the affairs of Louisianans, our Code has articulated a meaningful level of respect for tradition.