New Orleans — Vive la difference! That's what most Louisianans are likely to say when you ask why they insist on keeping a code of law that differs in heritage, and often in substance, from that of the other 49 states. The Louisiana Civil Code, you see, traces its lineage back through Napoleonic France all the way to the 6th-century Emperor Justinian and his renowned ``Corpus Juris,'' which codified the Roman law of the day.
It's a legal tradition far older than English common law, which governs civil disputes in Louisiana's sister states, and operates on quite different premises.
To understand this substantive difference, says Cynthia Samuel, a professor at Tulane University who specializes in Louisiana's Civil Code, one first has to remember that we're talking about the law governing relations between individuals -- ``our substantive private law.'' This embraces everything from marriage and child custody to wills and inheritance, and centers, to a large extent, on the acquisition and disposal of property.
Criminal law, governing the rights of individuals vs. the state, is another area altogether, and it is practiced here just as it is in other states, says Professor Samuel.
But when it comes to the matters that arise in civil court -- the ``law that touches most individuals on a daily basis,'' says Samuel -- that's where ``a lawyer from another state would see a difference.'' For instance, a will written in Louisiana typically provides what is called a ``legitime'' for children. This requires a ``forced share'' of property for legitimate heirs and acts as a barrier against disinheriting offspring. A spouse would normally enjoy the advantages of ``usufruct,'' the right that guarantees the use, income, and possession of all property until death or remarriage.
Out-of-state lawyers might stumble on terms like ``legitime'' and ``usufruct,'' but such concepts simply ``reflect the civil law's preference for family solidarity,'' says Samuel.
Through its history, English common law has emphasized the role of strong judges who evolve legal principles through practice. Under this system, such precedents -- legal guidelines established by rulings handed down previously -- become all-important. But in the Romanist tradition, says Samuel, written principles of law -- a formal code of law designed to remain stable -- are central.
Spinning off a little history, Samuel notes that the idea of a set code of law, available to and understandable by every citizen, reached an apex with France's Code Napol'eon of 1804. It expunged the remnants of feudalism from French civil law, reconciled the legal system to the French Revolution's ideals of liberty, equality, fraternity, and, with its ``pocket-sized'' format mandated by Napoleon himself, gave the average man a means of ``civilizing himself.'' It also provided the model for Louisiana's first territorial code, written in 1808, five years after the Louisiana Purchase.
That first code was ``recodified'' in 1825, to clear up any confusion over the continuance of Spanish colonial law (Spain ruled Louisiana during much of the 18th century). It received a slight overhaul in 1870, to erase the traces of slaveholding days, but until the 1970s, when another revision was in order, the state held closely to the 1825 code, says Samuel. Not suprising, perhaps, when you consider the fight Louisianans put up to keep their form of law after coming into Uncle Sam's domain.
In the interest of uniformity, President Thomas Jefferson instructed his first territorial governor, William C. C. Claiborne, to convert the newly acquired region to the common law. The territorial legislature, however, had different ideas and promptly passed a resolution to keep the French and Spanish civil law in effect -- a measure just as promptly vetoed by the governor. The legislature then adjourned in protest, and some of its members published an impassioned plea for ``this general and familiar jurisprudence, necessary to the conduct of the smallest affairs, which assures the tranquillity of families.'' Faced with this depth of feeling, the American authorities relented. Louisiana would keep its beloved civil law.
Professor Samuel thinks it may have been well for the rest of the country that Louisiana did. The Tulane law professor notes, for instance, that the American Law Institute (ALI), a body that promotes uniform legal procedures across the United States, has proposed amending its uniform probate code to include a concept called ``universal succession.'' Under this doctrine, an heir gains control of willed property as soon as a relative dies. When an estate is small, particularly, this can mean that a family need have no court supervision at all. In recommending its amendment, the ALI specifically credited Louisiana, where ``universal succession'' has always been in effect.
Another example: Wisconsin's recent adoption of a ``uniform marital property act,'' which borrows from the Louisiana Civil Code's provision allowing spouses to make a contract stipulating any division of property they want. Then there's the civil law concept of redhibition, which lets buyers rescind a sale and get their money back if they discover a latent defect so bad they wouldn't have bought the item in the first place. That type of consumer protection has become widely popular in recent years, notes Samuel, ``but we've had it since Roman days.''
Finally, says Samuel, there's the broadened perspective that the state's civil law tradition affords law students. ``We think our civil law students . . . come out with a rich background because they study both common law and civil law,'' she says, adding that they'll more readily understand the legal systems of crucial parts of the world like continental Europe and Latin America.