How does the Louisiana legal system differ from the rest of the nation? I've read that it is more 'code' based, differing from the more English 'case law'. Is this true? If so, how does it play out in practice?

The primary difference between Louisiana and other states is that Louisiana is a civil law state, whereas all other states in the US are common law states.

This is a very important and interesting distinction, and is a clear reflection of the French history that plays a very prominent part in the development of Louisiana and its legislative and judicial processes.

The primary difference between the two systems is that, under a civil law system, only those things that are explicitly outlined in the statutes of the state are subject to intervention by the judicial branch.  If it's not outlined by statute, you can't take someone to court for it.

This is in contrast to the processes used in common law states, where there is a body of law that exists separately from, and in support of, the statutory law.  This law is built over time by the holdings and rulings of the judiciary.  Claims that are not explicitly outlined in the statutes of the state can still be claimed in court, under the "inherent" powers of equity and law that the courts hold.

Both systems have their benefits and drawbacks; under civil law, the requirements of someone to behave in a legal manner are clear and do not change very often – if it's in the statute, that's what you follow.  In contrast, though, new situations that don't clearly fit under existing statutes are a little more difficult to manage under a civil law process.

Common law has the opposite problem, since understanding what's actually allowed or illegal is significantly more difficult, and requires extensive research in case law to know the exact boundaries of acceptable or unacceptable behavior.  However, this flexibility allows the courts to expand their authority and acceptable claims without necessarily requiring legislative action.

4 Replies to “How does the Louisiana legal system differ from the rest of the nation? I've read that it is more 'code' based, differing from the more English 'case law'. Is this true? If so, how does it play out in practice?”

  1. With all due respect to the other answers, as a licensed attorney in Louisiana, and having gone to law school here, I might be better equipped to answer this question…

    Keep in mind this distinction only applies to certain areas of the law, specifically, those areas covered under the Louisiana Civil Code; property, torts, law of persons, and other topics. Areas such as criminal law and Constitutional law are just like the rest of the states and follow a common law system.

    That said, the primary difference in those areas of law is that the law derives from a "Code" instead of from "Cases." This means that the law is created by the legislature and is written in the Louisiana Civil Code, and then precedent further develops that written code. In this manner, the “Code” is more flexible than statutes. Also, the effect of precedent is different; in Louisiana, we follow what is known as “jurisprudence constante,” meaning that there must be a long line of case decisions for binding precedent to be established. This is unlike the common law, where courts define what the law, where precedent is controlling (stare decisis), and where the further development of case law merely develops the existing precedent.

    Please understand that no attorney-client relationship has been formed by me answering this question and refer to my law firm's website for the rest of our internet policies at Wolfe, Begoun & Pick, LLC Attorneys at Law

  2. Instead of broadly examining the obvious civil and common law differences, I would rather examine distinct variances in the doctrines that guide Louisiana’s civil tradition and Common law traditions in their decisions.

    In the United States jurisprudence commonly means the philosophy of law.

    Louisiana jurisprudence is guided by the doctrine “Juris Prudence Constante” as Common law Court’s are guided by the doctrine of “Stare Decicis”. The “common law,” or judge-made law, is often considered a source of law, and courts abide by the doctrine of “stare decisis et quieta non movere,” which translates as “to stand by things decided and not disturb settled law.

    Common law demands court’s apply the law to similar circumstances as they did in one prior decision, by a court of equal or greater authority.

    In Louisiana’s civil law tradition, courts apply the doctrine of “jurisprudence constante”, which binds courts to give “great weight” to the rule of law accepted and applied in prior decisions when that rule of law, or interpretation of law, has been repeated in a long line of cases.

    Although there are fundamental differences between these doctrines of case law interpretation, United States courts that are guided by “Stare Decics” employ the flexibility of the civil law systems, such as Louisiana's. Similarly, Louisiana has moved toward valuing some aspects of the common law doctrine.

    Jurisprudence constante requires Louisiana courts to reinterpret the law with each new case, but allows the courts to give great weight to an interpretation of law set forth in a long line of consistent decisions. Valuing prior decisions means that court decisions are not the law, but are simply evidence of how the law, statute or civil code has been interpreted. Additionally, this may cause variation in the jurisprudence applied by the five Louisiana Circuit Courts of Appeal to vary. For example, the 2nd circuit may have very harsh jurisprudence that is applicable to Operating while intoxicated (OWI). Conversely the the 3rd circuit, especially in Lafayette, may be more lax and apply jurisprudence favorably to the defendant.

    Put plainly, the 2nd circuit may uphold a conviction for OWI for simply sitting in the motor vehicle with the key in the ignition, while the 3rd circuit may ask for more circumstantial evidence, such as the motor running or the lights and wipers operating, to uphold an OWI conviction.

    Consistent with jurisprudence constante, the Louisiana Supreme Court has, in some decisions, referred to judicial decisions as secondary authority. However,in other decisions, it has sternly warned appellate courts to be guided by its decisions. Reasoning lower courts are “bound to follow” the last ruling of the Louisiana Supreme Court on their interpretation of the law.

    I hope I made Athanassios Nicholas "Thanassi" Yiannopoulos, who worked for decades revising Louisiana's civil code, proud and provided an interesting answer.

  3. The legal system in Louisiana is not founded on the British common law tradition used throughout the rest of the United States. Instead, it is based on the Spanish and French civil law tradition which has its root in earlier Roman law. The differences are not thoroughly documented, but portions of the Uniform Commercial Code adopted by all the other 49 states are not held in Louisiana and lawyers who pass the bar exam in other states are not recognized in Louisiana as fit to practice their trade in Louisiana courts.

    The practical meaning of all this is that if you are going to be doing business in Louisiana or, in any way, involved with the Louisiana court system, you need to find a lawyer based in and licensed to practice law in Louisiana.

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