The Legal Fiction of "Clear Text" in Willis-Knigthon v. Caddo-Shreveport Sales and Use Tax Comission

• Author: Katie Drell Grissel
• Pages: 523-569

Page 523

"[T]here is only one term that is appropriate for characterizing the usage that the so-called doctrine of 'clear sense of texts' makes of the notion of clarity . . . legal fiction."¹

I Introduction

Louisiana is unique from the rest of the United States in that it is a mixed jurisdiction whose private law is principally rooted in the civil law tradition.² Hence, one would suppose that civilian hermeneutical methods are used by courts to interpret provisions of Louisiana's Civil Code. But are they? The recent Louisiana Supreme Court decision Willis-Knighton Medical Center v. Caddo-Shreveport Sales and Use Tax Commission,³ handed down on April 1, 2005, gives one cause to wonder. That decision constitutes a pivotal recent development in the exegesis of Louisiana Civil Code article 466, which enumerates the kinds of property considered to be "component parts" of buildings and other constructions. Justice Weimer, writing for the court, sets out what is touted as a civilian interpretation of article 466, basing his conclusion primarily on article 9 of the Civil Code: "When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature."⁴ In so doing, the court created a new interpretation of 466 that broke with the doctrinal and jurisprudential authority interpreting that article, as well as the legislative history,Page 524 specifically, the predecessor articles to 466 in the pre-revision Code.⁵

This comment examines the implications of the Willis-Knighton court's assertions and assumptions regarding proper civilian methodology. By touting its opinion as the civilian interpretation of article 466, the Willis-Knighton court implied that the other interpretations of article 466 that have been proposed, interpretations premised in legislative history and doctrinal commentary, are not civilian. This comment disproves that erroneous implication.⁶ Part II begins by delving into what is included within traditional civilian interpretive methodology, in Louisiana and globally, with a focus on the methodologies whence the Louisiana civilian interpretive tradition emerged. Part III explains the interpretive approach taken by the Louisiana Supreme Court in Willis-Knighton, an approach that might be described as "literalist" or "textualist." Part IV unravels and refutes the court's notion that a literal, textualist interpretation in the analytical process of deciding Willis-Knighton is the sole proper civilian interpretation of article 466. Lastly, Part V illustrates an equally civilian, and, in the end, superior interpretation of article 466 thatPage 525 pays due homage to legislative history and doctrinal sources as applied to the facts of Willis-Knighton.⁷

II Background on Civilian Methodology

Because Louisiana is the only state in this country with its private law firmly planted in the civilian tradition, it is an anomaly.⁸ Numerous authorities detail how the civilian tradition was funneled through the French and the Spanish legal systems to Louisiana.⁹ Though this tradition has, through the years, undergone something of a retreat, thanks to the incorporation into Louisiana law of rules and methods of Anglo-American law, the tradition is still very much alive. Further, there is a modern trend toward celebration of and emphasis on this tradition in Louisiana.¹⁰ To understand why the analytical framework inPage 526 Willis-Knighton is deficient, in particular, why the court's implications and assertions that its interpretation is the only civilian interpretation are wrong, one must first understand what the term "civilian" means and in what respects the civilian tradition is distinctive.

A What is "Civilian"?

This exploration into what is civilian begins with an understanding that "civil law" refers to the tradition of law that derives from Roman law, the jus civile.¹¹ Originally, in the so-called formative and classical periods, the civil law consisted of Roman enacted or customary law.¹² In the post-classical period, the civil law was associated with the various compilations of classical Roman law that were put together by Emperor Justinian-the Corpus Juris Civilis.¹³ In the middle ages, civil law referred to the law of the Corpus Juris Civilis as it had been interpreted, supplemented, and modified by the doctrine of the Glossators and Commentators.¹⁴ Thus, a so-called civilianPage 527 jurisdiction in modern times refers to a state or country whose methodology and terminology have been decisively shaped by one or more of these various incarnations of Roman law.¹⁵

Law that is civilian is codified. As one scholar explained, "codification has four tenets: the law should be written, the law should be arranged according to some system, the law should be drafted as a 'single fabric,' and the law should be drafted by experts."¹⁶

Acknowledging that the Louisiana Civil Code is not merely a conglomeration of assorted, specialized statutes is vital to understanding why the approaches that are appropriate for explicating it differ from those that are appropriate for explicating mere statutes.¹⁷ Interpreting civil code articles is an exercise in historical, logical, and intellectual elucidation. Compared with statutory construction in a common law jurisdiction, interpretation of a code is a much more complex inquiry.¹⁸ Because common law rules for statutory interpretation were developed for interpreting specialized statutes, such readings tend to restrict thePage 528 legislation.¹⁹ Such restriction is not appropriate for interpreting a civil code, which is, by comparison, general and abstract.²⁰

Former Louisiana Supreme Court Justice James Dennis said: "For a case based on the Civil Code to serve as a good example or precedent it must illustrate that the judge followed sound civil law methodology when he or she interpreted the Code and applied it to the case."²¹ An elaborate history both in Louisiana and internationally supplies the context for determining what methods of interpretation are properly employed within this exercise.²²

Because a number of other civilian jurisdictions either share Louisiana's civilian roots, or have as their own law codes that are the very predecessors of the Louisiana Civil Code,²³ it follows thatPage 529 looking to these civilian sources is helpful in understanding and applying civilian interpretive methodology.

B The Domain of Interpretation

The theory of interpretation is a doctrine, "an intellectual construction which prescribes the manner in which the phenomenon of legal interpretation should be conceived."²⁴ The theory of interpretation imposes upon the jurist a "correct theoretical mode."²⁵

Though civilian interpretive theorists differ somewhat among themselves in terms of the details, there is today a broad consensus among such theorists that sound interpretation requires the use of multiple methods. Two of the methods upon which most scholars and judges rely in civilian interpretation are the exegetical method (which consists of grammatical interpretation, logical interpretation, and historical interpretation) and the teleological method.²⁶ Because these particular methods are especially pertinent to the discussion of the interpretive approach of the Willis-Knighton court, an examination of these methods of interpretation follows.Page 530

1. Exegetical Method

The exegetical method looks to the text of legislation to interpret its logical meaning.²⁷ The etymology of the term "exegetical" reveals that its roots are planted in New Latin from the Greek exegesis, from exegeisthai: to explain or interpret; exposition; explanation; especially interpretation of a text.²⁸ Further, and integral to the discussion to follow, the "exegetical method," as used for interpreting the Napoleonic Codification, called for the interpreter to "discover the true thought of the legislator."²⁹ The exegetical method, though, has often been confused with the literal method.³⁰ The exegetical and literal methods differ significantly, although each adheres to the text of the law:³¹ "[W]hilst the literal approach holds that the judge should look exclusively at the words and grammar of the text of a statute in order to construe its meaning, the exegetical method looks beyond the words of the text in an attempt to determine the reasons for its enactment."³²

The exegetical method does not maintain that the text alone is decisive. The text is a starting point for interpretation, but the text is not to be read literally. This method of interpretation is premised on the notion that there is logical coherence and consistency within the system of law of which the text in question is...