The Sources of Law and the Value of Precedent: A Comparative and Empirical Study of a Civil Law State in a Common Law Nation

Author:Mary Garvey Algero
Position:Professor of Law, Loyola University New Orleans School of Law

I. Introduction. II. Precedent, Stare Decisis, and Jurisprudence Constante. A. Precedent in Common Law Systems. 1. England. 2. The United States, Other Than Louisiana. B. Precedent in Civil Law Systems. 1. France. 2. Italy. 3. Spain. III. Sources of Law and The Value of Precedent in Louisiana. A. Legislation. B. Custom. C. Equity. D. Judicial Decisions. IV. Survey of Louisiana Judges. V. Comments,... (see full summary)


Professor of Law, Loyola University New Orleans School of Law. The author expresses deepest gratitude to the 150 members of the Louisiana judiciary who responded to the Survey of Louisiana Judges Regarding Sources Relied on To Decide Cases, which the author distributed in 2003. The results of this survey were invaluable in the research and writing of this article. The author gratefully acknowledges the research assistance of Brandi White, Jennifer Englander, and Maggie Dierker, which was made possible by the support of the Alfred J. Bonomo, Sr. family and the Rosaria Sarah Lanasa Memorial Scholarship Fund. The author also thanks Professors Katherine Venturatos Lorio and Monica Hof Wallace for commenting on drafts of this Article.

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This Article provides a contemporary and comparative examination of the sources of law and the value of precedent in Louisiana, a state whose judicial system resembles those of common law judicial systems of the United States, but whose private civil law is rooted in the civil law traditions of France and Spain, which were prevalent in the territory of Louisiana in the late eighteenth century and early nineteenth century. The Article examines the doctrines of "stare decisis" and "jurisprudence constante" and the value of precedent in select common law and civil law jurisdictions, then focuses on Louisiana as an example of a jurisdiction which, like many jurisdictions worldwide, has valued precedent in such a way that it is extremely influential, but not always binding on the courts. The Article refers to this practice as "systemic respect for jurisprudence" because the value of a precedent is directly related to the status in the legal system of the court deciding the prior case. An empirical study of the Louisiana judiciary on the sources of law and the value of precedent in Louisiana complements a discussion of these issues based on scholarly works on Louisiana law and Louisiana judicial opinions. The author concludes that many jurisdictions, both common law-and civil law-based, are gravitating to "systemic respect for jurisprudence" and away from strict use of the traditional stare decisis and jurisprudence constante doctrines. The Article then proposes law to codify the principle of systemic respect for jurisprudence.

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The conditions of society, and men's attitude towards them, are slowly but constantly changing, and the law must do its best to keep in harmony with contemporary life and thought. 1

I Introduction

Louisiana has a rich legal history, with its law and legal tradition rooted primarily in French, Spanish, and Roman traditions.2 In 1803, the United States purchased the territory of Louisiana, which included the land that is now the State of Louisiana. Early attempts to set up a common-law-based system in the territory failed; advocates for creating a legal system based on the civil-law traditionPage 777 similar to the laws and tradition with which most of the French and Spanish residents were familiar prevailed.3 Inhabitants of Louisiana were allowed to maintain civil law for private law; however, the court system and public law were based on the American common law model.4 In France, le Code civil des francais, which later became known as the Code Napolon, was promulgated in 1804, and it provided an excellent model for those scholars in Louisiana who drafted a code to govern this new state.

Over the next two hundred years, Louisiana's legal system and legal doctrines developed and benefitted from influences from the federal and state legal systems throughout the United States, the French and Spanish legal systems, and other legal systems from around the world.5 Because of its civilian tradition, Louisiana scholars and judges often looked beyond the borders of the United States in developing and interpreting Louisiana law and shaping the methodology that would be applied in the legal system.

This article examines the sources of Louisiana law and the methodology used to interpret that law today. Empirical data, as well as a review of scholarly works on Louisiana law and judicial opinions discussing Louisiana law, indicate that Louisiana's legal system has adapted in a way that draws upon the strengths of the civil law tradition while taking advantage of the availability of accurate reports of prior judicial decisions. With its sources of law being enacted law and custom, its great respect for judicial decisions, and yet its flexible doctrine of jurisprudence constante to deal with precedent, Louisiana's legal system is well-equipped to maintain the consistency and predictability valued in a strong legal system while at the same time keeping that law from becoming stale and outdated.6

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Louisiana's legal system has struck a balance or has found a middle ground to which other civil law systems and common law systems seem to be gravitating. This middle ground works well in a society in which we cannot always predict or even contemplate the legal theories or actions that will be developed,7 but in which we can obtain recent judicial opinions from around the world with just a few keystrokes.

The Louisiana legal system is rooted in enacted law, at least a portion of which is written in general terms.8 This strong foundation of law provides a solid base from which courts work to decide cases. This foundation is enhanced by a strong respect for precedent, especially for the decisions of the Louisiana Supreme Court, but also a responsibility to independently examine the interpretation ofPage 779 enacted law and the power to reject precedent when it is erroneous.9

Articles and texts on law often indiscriminately identify the two types of legal systems or traditions as civil law and common law. Civil law systems are usually associated with Roman law traditions, while common law systems are usually associated with English tradition.10 A civil law system is considered by many to be based on law that is written down or "codified," although a written code is not required,11 while a common law system is considered to be based on law that is primarily created by the judiciary as it renders decisions in cases that come before it, although many common law jurisdictions have enacted laws.12 When enacted law exists, civilian codes tend to be written in "relatively abstract" terms such that they can be applied to many circumstances, even those that are unforeseen, while enacted law in common law jurisdictions tends to be written in more specific terms, meant to cover more particular circumstances.13 Traditionally, in civil law systems respect is paid to prior judicial decisions though they are not considered to be law under such doctrines as the doctrine of jurisprudence constante, while the doctrine of stare decisis is applicable in common law systems.14

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These generalizations about the two systems or traditions make it relatively simple to discuss the different systems in general terms; they may also make it simpler to classify legal systems or traditions. The reality is that legal systems are not so precisely and easily classified. For example, a third classification, "mixed jurisdiction" or "bijural jurisdiction" has been used to describe jurisdictions such as Louisiana, which are primarily rooted in the civil law tradition, but have several attributes that come from the common law tradition.15Further, legal systems worldwide influence each other daily as individuals and entities do business and otherwise interact across jurisdictional lines, and courts across the world are called upon to interpret each other's laws and procedures.

This article focuses on the sources of law and the value of precedent in the Louisiana legal system today, 200 years after the Louisiana Purchase and the enactment of the Napoleonic Code, which so heavily influenced the development of law in Louisiana. Louisiana seems to have followed a course similar to many jurisdictions around the world, both civil and common. While statutory law, or law written by a legislative body, takes precedent over other sources, the value of prior court decisions has increased in Louisiana. Louisiana Supreme Court decisions are considered "binding" authority to lower courts in Louisiana, despite Louisiana scholars' commentary and commentary by some courts to the contrary and despite the fact that judicial decisions are not recognized in the Louisiana Civil Code as a source of law. With regard to the decisions of intermediate appellate courts and trial courts and with regard to the Louisiana Supreme Court considering its own prior decisions, the doctrine of jurisprudence constante still applies, thatPage 781 is, a consistent line of judicial decisions on a particular issue is entitled to great weight and is considered persuasive as to what the law is.16 Further, just one decision by a court to which a lower court's decision is appealable is often given great weight and persuasive value. Other civil law jurisdictions seem to be gravitating in a similar direction, though many have not expressly recognized that judicial decisions can have any binding force.17

These findings, as well as a consideration of how other jurisdictions value precedent, have led me to the conclusion that, as to the interpretation of sources of law and the use of precedent, Louisiana is among several jurisdictions that have employed a principle referred to herein as "systemic respect for jurisprudence," which is somewhat...

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