Louisiana Civil Code Part 3: A Gumbo of Legal Traditions

Since at least the early twentieth century, the USA has been described as a “melting pot.”  Ours is a country where many rich traditions have combined, mixing our collective, diverse cultural experiences into a singular nation.  In this respect, the State of Louisiana is a microcosm.  Much like the onions, bell pepper, celery, and chicken and sausage (or shrimp, crab, and crawfish for seafood lovers) blended into a pot of gumbo, since Louisiana’s founding, Acadian, French, Spanish, Native American, Creole, African, and other cultural influences have stirred into our collective pot of traditions.

If Louisiana is a metaphorical pot of gumbo, what traditions have entered the roux of our law?  It’s oft asserted Louisiana has “the Napoleonic Code,” and French influences are foremost on many minds.  But are French legal traditions dominant?  Were any Spanish concepts brought to bear?  Did the English legal traditions of our neighboring states find entrance?  And were more ancient precepts bubbling up from beneath—harking even to Rome? 

It turns out all those countries and cultures have influenced the development of the Louisiana Civil Code.

We can trace Louisiana’s legal history back to the 1700s.  That century and the early nineteenth century saw significant cultural fluidity, with back-to-back transfers of power between nations.  Taking possession of the territory, and naming it for King Louis XIV, France imposed Parisian law in Louisiana in 1712.  French legal traditions would settle in for the next several decades.  Then, in 1762, France relinquished Louisiana to Spain in the aftermath of the Seven Years War.  In 1769, the Spanish governor formally introduced the complex system of Spanish laws into Louisiana.  Even under Spanish rule, however, French immigrants often settled legal disputes amongst themselves by reference to French laws and customs.  Thus, in the late eighteenth century, French and Spanish legal traditions coexisted in Louisiana.  Here, it bears noting that the French and Spanish legal systems were substantially similar to Roman law traditions.  In turn, Louisiana’s own pot of traditions was stirring.

The early 1800s would continue this intermingling of legal traditions.  Spain retroceded Louisiana to France in 1800.  In short order, the English legal system would enter the scene.  In 1803, the United States made the Louisiana Purchase.  With France’s sale of the Louisiana territory to the United States, the English common law system was introduced.  As the newest entrant into the young American neighborhood, how would Louisiana determine its legal future?  And how long would it take for the first Louisiana civil code to be formulated?

Initial efforts by the fledging government of Louisiana to clarify the laws then in force were shaky.  When the first Louisiana legislature passed a law providing for the incorporation of Roman and Spanish law, Governor W.C.C. Claiborne vetoed it.  With over 20,000 individual Spanish laws, it would have been quite difficult to determine which Spanish laws were then in effect in Louisiana.  Additionally, some Spanish traditions did not sit well with American sensibilities: the allowance of torture to extract testimony from criminal defendants and capital punishment by decapitation, to identify the most shocking examples.  With the veto of the new governor’s pen, Louisiana would have to try again.

Louisiana’s second attempt to solidify its civil law succeeded.  The legislature resolved that James Brown and Louis Moreau-Lislet should prepare a new civil code codifying the laws then in force.  With this plan, Governor Claiborne agreed.  After less than two years of studious work, in 1808, the Louisiana Digest of Civil Laws was born.  This first Louisianan civil “code” was mostly French inspired—about 70% of its provisions were based upon the Napoleonic Code.  Still, the rest was from other sources, about 15% from other French laws and doctrine, with most of the remaining 15% taken directly from Spanish legal traditions.

The perceived problem with the 1808 Digest was that it was not a true “code.”  In 1812, the same year Louisiana acquired statehood, the Louisiana Supreme Court held that the 1808 Digest was “but a digest of the civil law, which regulated the country under the French and Spanish monarchs.”  Hayes v. Berwick, 2 Mart. (O.S.) 138, 140 (La. 1812).  A “digest” is a compilation, or a summary.  Louisiana wanted, and apparently needed, more than just a summary of the French, Spanish, and Roman legal influences that had been stirred into the pot of gumbo over many decades (or even centuries).  While we would always retain the influences of those European traditions, Louisianans hungered for a new dish, a law that drew from prior traditions but would stand on its own as Louisiana’s own code.

The result was the Louisiana Civil Code of 1825, which would later be revised in 1870.  Those two codes followed the French Civil Code closely, simultaneously considering Spanish influences, but ultimately becoming our own recipe—Louisiana law standing on its own.  Even with this technical break from Spanish and French influences, old traditions find a way.  An ambiguity persisted: two translations of the Civil Code of 1825 had been prepared, one in French and one in English.  There were conflicts between the two texts, and judges would come to view the French text as controlling.  As a result, continuing to this day, the French text (and French legal treatises) are cited in Louisiana courts to resolve important legal questions, which are obscure to many but important to the parties before the court.

What of English/American influences?  Louisiana had become one of the United States, so how would this American state retain French and Spanish legal concepts?  It would do so, but with inevitable English common law influence, particularly after the Civil War.  Our Louisiana Civil Code has come to differ from the Code Napoleon in important respects.  For example, the Louisiana code, unlike its French counterpart, has elevated custom to be a source of law.  (See our “Louisiana Civil Code Part 2” post for the discussion on custom as law.)

Louisiana remains in the USA melting pot, and as the gumbo simmers, other influences will be brought to bear.  Despite that fluidity, the structure of the Louisiana Civil Code, particularly its division into a well-organized body of laws in outline form (see our “Louisiana Civil Code Part 1” post), has stood the test of time.  Like a good roux, our foundation is solid.  Ça c’est bon.

- Most facts in this post are recounted in “The Civil Codes of Louisiana,” Professor A.N. Yiannopoulos (available in West’s Louisiana Civil Code—2024 Ed., Vol. I).