On July 21, 2020, the FCIL-SIS hosted an online four-session civil law workshop, Demystifying Civil Legal Systems for a Common Law Audience: Historical Traditions, Modern Developments, and Practical Research & Instruction Applications. The workshop explored civil legal traditions both from a historical perspective and the present day.
This recap seeks to summarize Olivier Moréteau’s fantastic session, The Role of Civil Codes in France and Louisiana.
Professor Moréteau started his remarks by tracing Louisiana’s history. The region was named “Louisiane” by Cavelier de la Salle in 1682 and considered a French colony from 1682 to 1762. After this period, France abandoned Louisiana to Spain and the region was a Spanish colony from 1769 to 1800. France then got Louisiana back from Spain and sold the region to the United States in the 1803 Louisiana Purchase.
After the 1803 sale, France adopted its Civil Code in 1804. This timing is quite significant because a common misperception is that Louisiana has the Napoleonic Code, but this is wrong. Louisiana does have a civil law system, but is not the Napoleonic Code and the region was not under French control when France enacted this code.
Professor Moréteau started his discussion of France during the Ancien Régime, when the North followed customary law (droit coutumier) while the South followed written law (Roman law) (droit écrit). A goal of enacting the civil code was to unify the divided laws of the country.
Two key French Civil Code draftsmen came from the North, Bigot de Préameneu of Rennes and Tronchet of Paris, and two from the South, Maleville of Bordeaux and Portalis of Aix. Together, they sought a double compromise between customary and Roman law and between the Ancien Régime and revolution, ultimately creating a three book, comprehensive code, the French Civil Code or Napoleonic Code, enacted March 21, 1804.
Notably, the French Civil Code included an abrogation clause creating a complete break from the past for all matters covered in the code and requiring judges to apply the code, not older laws. The code attempted to provide simple, short provisions and avoid technicality. Articles 1382 and 1383 haven’t been revised, though they have been the subject of renumbering, and provide examples of this short, simple style:
- Article 1382: “Any act whatever of man, which causes damage to another, obliges the one by whose fault it occurred, to compensate it.”
- Article 1383: “Everyone is liable for the damage he causes not only by his intentional act, but also by his negligent conduct or by his imprudence.” (Presentation slides)
Back to Louisiana
Louisiana’s population nearly doubled from 43,000 in 1803 to 76,000 in 1810 and with this growth came conflict stemming from the mixture of cultures and legal traditions. The civil law tradition embraced more of a family and community spirit while the common law tradition was more individualistic, including in areas of marriage, family relations, succession, and property. The inhabitants of Louisiana generally resisted the common law tradition in favor of civil law.
In line with this resistance, Louisiana drafted a civil code in less than two years drawing inspiration from the French three-book model and instances where French and Spanish laws were in agreement, but not copying the French Civil Code.
Ultimately, instead of adopting this as a “code, “ however, on March 31, 1808, Louisiana adopted a “digest,” the Digest of the Civil Laws, formally recognizing civil law in Louisiana, but not to the full exclusion of common law.
This distinction between adopting a code and a digest is meaningful. The French Civil Code, including its abrogation clause, created a full break from prior law whereas Louisiana’s digest allowed for continuity of prior law where there wasn’t a conflict. The challenge with this continuity, however, is that this necessitated looking to the older texts, not just referring to the digest, which in some ways defeated the purpose of creating a digest as it’s not actually a complete listing of all applicable law, an issue discussed in Cottin v. Cottin (1817).
To remedy these issues with the digest, the Louisiana Civil Code was adopted in 1825, including abrogating prior Spanish, Roman, and French laws in Article 3521. Ongoing revisions have continued ever since, including the transition to an English language only code by 1870.
Louisiana’s current code and its history remain relevant today as a model for understanding how to balance civil and common law traditions in situations where they must coexist.
To conclude the presentation, Professor Moréteau shared some helpful resources for civil law research. The resources are available on his slides and a more extensive bibliography is available as a handout.