A Bit of Legal History II: Why Does the US Have a Mixed Legal System?

“At that time, most Louisianians were of French descent, most spoke only French, and most thought of themselves as French Creoles, not as Americans. Though the law then in force was Spanish, not French, Louisianians did not find it utterly alien. It came from a culture similar to their own and, more important, was but a variant of the same body of law of which French law was a variant—the Romanist ius commune. The common law, on the other hand, seemed altogether alien to them. It came from an entirely different culture, one with different customs and institutions, was written in an entirely different language, and reflected a legal tradition altogether different from those of France and Spain.”

--J.-R. Trahan

There are arguably five types of legal systems scattered across the globe: civil law, common law, Islamic law, customary law, and mixed. The US, although typically thought of as a common law jurisdiction, is actually mixed. A map of North America represented by legal system type shows just a tiny enclave in the US where common law and civil law systems mix—the state of Louisiana. How did this happen?

Common law, which English settlers brought to Commonwealth countries (US, Australia, Canada, India, etc.), is based on the principle of stare decisis—"let the decision stand.” In common law systems, case law, as opposed to legislation, is pre-eminent as the ordinary means of expression of general law. The civil law tradition emerged in continental Europe, and Europeans transplanted it to Latin America and several other jurisdictions. Civil law systems are based on Roman law and are largely based on systematic codifications of various areas of law. Louisiana’s Civil Code still governs private law in the state—a clear representation of the civil law tradition.

The history of Louisiana’s civil law heritage dates back to European colonization (and ownership) of the territory that now encompasses Louisiana. In the context of European settlement, the territory was first claimed by France, then Spain, then France again, and then eventually the US via the Louisiana Purchase in 1803. Interestingly, Spanish law governed when the US purchased the Louisiana territory from France.

Louisiana’s first federally assigned governor after the Louisiana Purchase (William Claiborne) planned to institute the common law system in Louisiana to align it with the system used nationally and in the other US states.  However, local lawyers vehemently rejected this attempt, and by 1808, Louisiana had its first civil code, Digest of the Civil Laws now in Force in the Territory of Orleans, with Alterations and Amendments Adapted to its Present System of Government, which was originally written in French.[1] Although the 1808 Digest had its flaws, it was significant because it “constituted the formal recognition and establishment of the civil law, and not the common law, for the [t]erritory.”[2] An 1825 update renamed the civil code the Civil Code of the State of Louisiana, which was also written in French. Scholars have often debated whether the early codes’ dominant influence was French (e.g., the Code Napoléon) or Spanish (e.g., the Siete Partidas), but this question has never been settled conclusively.[3] Louisiana’s Civil Code has been amended numerous times since its early versions, but its current iteration remains in force and is the only such code in the US.

[1] See J.-R. Trahan, The Continuing Influence of le Droit Civil and el Derecho Civil in the Private Law of Louisiana, 63 La. L. Rev. 1019, 1024–25 (Summer 2003).

[2] John T. Hood Jr., The History and Development of the Louisiana Civil Code, 19 La. L. Rev. 18, 28 (1958–1959).

[3] Vincenc Filiu, Dennis Kim-Prieto & Teresa Miguel, A Closer Look: A Symposium among Legal Historians and Law Librarians to Uncover the Spanish Roots of Louisiana Civil Law, 38 Int. J. Legal Info. 295, 296 (2010).