Sunday, February 7, 2010

Louisiana's Legal System and Heritage

A little bit of trivia has been bothering me. I finally got around to looking it up. I was looking at legal software that stated that it was good for use in 49 out of 50 states. The one exception was Louisiana. The reason is that Louisiana uses the Napoleonic Code. What is the Napoleonic Code?

I went to a site that gives the history of Louisiana's legal code that finally laid out the difference between Louisiana and the rest of the country in plain language. The rest of the country bases its law on English common law. Under this system, a body of legal precedent determines how new cases are decided. Contradictory situations can be appealed to a higher court which resolves the legal ambiguities in a given case.

Unlike other states, Louisiana's legal code is based on Napoleonic law, which is a uniform and clear code passed by the legislature and applied by judges. The judge refers not to precedent but to the law at hand. Such a system is simpler and less voluminous than the casebooks and precedents of the other states.

The Napoleonic Code was actually mentioned in "A Streetcar Named Desire" when Stanley (played by Marlon Brando) explained Napoleonic law to Stella as follows.

"Now listen. Did you ever hear of the Napoleonic code, Stella?...Now just let me enlighten you on a point or two...Now we got here in the state of Louisiana what's known as the Napoleonic code. You see, now according to that, what belongs to the wife belongs to the husband also, and vice versa...It looks to me like you've been swindled baby. And when you get swindled under Napoleonic code, I get swindled too and I don't like to get swindled..."

French civil law was in effect from 1712 until 1762, when Louisiana was ceded to Spain. France resumed its control of Louisiana in 1803. It abolished Spanish law but instituted no substitute. This legal limbo was inherited by the Americans a mere 20 days later when they assumed control over Louisiana with the Louisiana purchase. The people of Louisiana were outraged at attempts to extend English common law to Louisiana. They were accustomed to a mix of Spanish and French laws seasoned with local traditions. Acceding to popular demand, the new U.S. governor of Louisiana, William Claiborne directed the legislature to draft up an acceptable legal code.

Accordingly, the legislature came up with Louisiana's first civil code, which was enacted in 1808. It drew heavily from the Napoleonic Code. It was written in French, a feature that remained when the code was replaced in 1825 with a code that was more detailed and comprehensive.

The Louisiana law with which we are familiar today was written in 1870. It clarified and simplified earlier legal codes in Louisiana. It was also written in English, a change that signaled a trend towards cultural homogenisation.

In practice, Louisiana is a hybrid legal system explains as follows how a New Orleans court would operate differently from its Parisian counterpart.

"Although Louisiana is generally called a civil law state, its code is imbued with some common-law features, making it a hybrid of the two traditions. The state's constitution, administrative and criminal law, civil and CRIMINAL PROCEDURE, and RULES OF EVIDENCE all contain elements derived from common-law principles. As a result, Louisiana judges operate under administrative rules that differ from those found in other civil law jurisdictions. For example, whereas European judges actively elicit the facts in a controversy and seldom use a jury, Louisiana judges operate more like their common-law colleagues, assuming the role of neutral and passive fact finder or arbiter, and leaving the final decision to a jury. Oral argument is generally absent in a pure civil law proceeding, whereas Louisiana's procedural and evidentiary rules allow oral presentations, resulting in trials that are closer to those found in a common-law court. Finally, European courts allow almost unlimited discovery by the accused in a lawsuit, whereas Louisiana's procedural and evidentiary rules place certain restrictions on such discovery."

Amazingly enough, a Louisiana appeals court does not only question the interpretation of the law rendered by the lower court. It can also declare that the facts established in a lower court were in error and issue its revised findings of fact. This is of significant advantage to someone who is appealing a verdict if they can transfer a case to Louisiana's jurisdiction.

Is Louisiana law better than the rest of the country? I don't know. Common sense tells me that anyone who wants to distort the law will find a means to do so, whether he is in Louisiana or elsewhere. It is interesting that America's concept of a federation of states allows for such significant diversity. It must be interesting for scholars of the French language to look at Louisiana's old law books.

The fading out of French in Louisiana is a sad feature of modern times. For a long time in the earlier twentieth century, use of French was discouraged in Louisiana. Children who were heard speaking it at school were often severely punished. It should be noted that Louisiana French is Acadian French, which is very close to Quebec French. At its roots, the differences in Acadian (Cajun) French stem not from adulteration with English but in dialectal differences in France it self. Any efforts to coordinate a revival of Louisiana French would probably be better coordinated with Quebec, which has a proud record of having revitalised its own Francophone culture.

I consider America's linguistic diversity to be a national treasure. I wish Louisiana success in preserving its language , law and culture. If they succeed, we will all be the richer for it.


The following is a beautiful Cajun song from the 1982 movie "Southern Comfort" Those who are troubled by the slaughter of animals for food might well want to minus out the video and focus on the beautiful music and the manner in which it showcases Louisiana French

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