What the dealio with Louisiana’s weird “civil law” system, how does it work, and how is it different from the “common law” system used in the other 49 states and the federal gummint?
I certainly don’t know its ins and outs, but it derives from French law of Napoleon’s era, as opposed to the English common law that the rest of the states’ legal systems evolved from.
Same thing in Quebec. On the federal level and in the rest of the provinces, the law is based on the British common law system, but for local and provincial matters in Quebec its based on the French civil law system.
Oh wait, this has turned out a tangent, not an explination. Oh well.
“In the state of Louisiana we have the Napoleonic code according to which what belongs to the wife belongs to the husband and vice versa.”
All states but Louisiana use what is called the common law, derived from the legal system of merrye olde England. Common law is judge made law; it was the body of law created and administered by the king’s courts. There is no code in which the common law is found. It is represented by decisions made by judges in the past.
Civil law, which in Louisiana is a remnant of the French, is the descendant of the legal system of the ancient Romans. Where common law is decision based, civil law is code based. A common law court will look at past decisions and the justifications behind them in analyzing the law, while a civil law court looks to the civil code (also called the Napoleonic or Continental code) in ascertaining and applying the law.
Civil law doesn’t have to be code based, although that is the current pattern in most civil law jurisdictions.
For example, Quebec has always been a civil law jurisdiction, except for an 11 year hiatus between the Royal Proclamation of 1763 and the Quebec Act of 1774. (During this period English common law governed.) Even though it’s a civil law jurisdiction, Quebec did not have a code until the Civil Code of Lower Canada was enacted in 1866. Before then, the source of the civil law for Quebec was the coutume de Paris, a series of treatises and judicial decisions based on the law used in the area of Paris.
Similarly, Scotland’s law is based originally on the civil law, but Scotland has never had a code. (It also now has a great deal of common law influences, as a result of the Union, but that’s another story.)
I’m not familiar with the Louisiana system, but I assume it too is ultimately based on the coutume de Paris, since Louisiana was also a French colony. However, I would speculate that it now has a great deal of influences from the common law, since it’s surrounded by common law jurisdictions.
The civil law and common law systems often reach very similar results on similar facts, but the manner in which one gets to the result varies. I would say that the civil law is more deductive in its approach: one starts with the big principles and then works out how they should apply to a particular set of facts. However, that decision is not binding for the future; it’s the big principles of the law that are key, not the particular decisions.
Common law is more inductive. One starts with the particular case and reaches a result. That decision in turn may be cited by other courts on similar facts. Eventually, with time, principles emerge that become well-entrenched, and binding on the courts short of legislative change or a decision of a higher court, modifying or overturning the principle.
Piper, LL.B. (common law), LL.B. (droit civil)