Louisiana’s Civil Law System
The states that make up the United States of America may be joined under the umbrella of the federal government, but they also maintain their distinct identities in many ways. In recognition of those differences, every state has its own official flag, motto, bird, flower, and more. The 18th state to join the Union takes those differences one step further – Louisiana is the only one whose legal system is not based on English common law.
Prior to its admission to the U.S., the area that is now Louisiana was a colony that belonged to both France and Spain. The past governance by those European powers (who themselves have Roman law roots) influenced the state’s political and legal structure, such as the use of the term “parish” instead of “county.” The biggest carryover is the use of the civil law system, which is in keeping with the majority of the world’s countries, except for those that were once held by the British Empire.
Discussions of the development of the Louisiana legal system often include the reference to the Napoleonic Code, which reorganized the hodgepodge of feudal laws into an accessible set of rules regarding four key areas: persons, property, acquisition of property, and civil procedure. While the Napoleonic Code and Louisiana Civil Code have common legal roots, the Napoleonic Code was never the law in Louisiana – in fact, it was not even enacted in France until a year after the U.S. annexed the territory through the Louisiana Purchase.
The main difference between the civil law system and the common law system has to do with the role of judges. In a common law system, the laws and statutes are interpreted by judges to establish a precedent. This legal principle is known as “stare decisis,” meaning that judges are obligated to stand by prior decisions and are influenced by other rulings. Further development of case law simply develops the existing precedent. In contrast, because civilian law is based on a code that has been passed into law by the legislature, judges are expected to interpret the intent behind those laws rather than follow judicial precedent. If there is a long line of case decisions, then Louisiana does allow for the establishment of precedent known as “jurisprudence constant.”
There are some other quirks in Louisiana’s legal system due to the civil law tradition. For example, the right to a trial by jury in civil cases is contained in the Louisiana Revised Statutes rather than the state constitution. As opposed to common law jurisdictions, the appellate courts have broad discretion to review findings of fact by juries in civil cases, and damages are apportioned differently. Louisiana law also has a few unique terms and concepts such as “forced heirship,” “usufruct,” and “redhibition.”
It’s important that an attorney who wishes to practice in the Pelican State be familiar with all these unique aspects. The Louisiana Bar Exam, which is used to determine whether a candidate is qualified to practice law here, is a challenging test that has an essay-only format and holds the distinction of being the longest bar exam in the U.S. It consists of 21.5 total hours of testing on nine topic areas and is the only one that does not include administration of the Multistate Bar Examination.
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