CIVIL LAW
A body of rules that delineate private rights and remedies, and govern disputes between individuals in such areas as contracts, property, and FAMILY LAW; distinct from criminal or public law. Civil law systems, which trace their roots to ancient Rome, are governed by doctrines developed and compiled by legal scholars. Legislators and administrators in civil law countries use these doctrines to fashion a code by which all legal controversies are decided.
The civil law system is derived from the
Roman Corpus Juris Civilus of Emperor JUSTIN-
IAN I; it differs from a common-law system,
which relies on prior decisions to determine the
outcome of a lawsuit.Most European and South
American countries have a civil law system. Eng-
land and most of the countries it dominated or
colonized, including Canada and the United
States, have a common-law system. However,
within these countries, Louisiana, Quebec, and
Puerto Rico exhibit the influence of French and
Spanish settlers in their use of civil law systems.
In the United States, the term civil law has
two meanings.One meaning of civil law refers to
a legal system prevalent in Europe that is based
on written codes. Civil law in this sense is con-
trasted with the common-law system used in
England and most of the United States, which
relies on prior case law to resolve disputes rather
than written codes. The second meaning of civil
law refers to the body of laws governing disputes
between individuals, as opposed to those governing offenses that are public and relate to the government—that is, civil law as opposed to
CRIMINAL LAW.
In France, the civil law is set forth in the
comprehensive French Civil Code of 1804, also
known as the Code Napoléon. France exported this legal system to the New World when it settled Louisiana in 1712. When the French ceded
Louisiana to Spain in 1762, the new Spanish
governor replaced French civil law with Spanish
civil law. France regained control of the territory
in 1803 and the United States purchased it a
mere 20 days later. During that brief period of
French rule, the French prefect abolished all
Spanish courts but did not reintroduce French
law. Hence, the new U.S. governor of Louisiana,
William Claiborne, took control of a territory
that lacked a legal system.
Determined to Americanize Louisiana, Claiborne
attempted to impose COMMON LAW but
met fierce resistance from Louisianans who had
grown accustomed to their mixture of French
and Spanish laws and culture. Realizing that he
would not be able to mandate a common law
system, he directed the state’s legislature to draft
a civil code based on existing law. Louisiana’s
first civil code, enacted in 1808, drew heavily
from the Code Napoléon and was even written
in French. It was replaced in 1825 by a more
comprehensive and detailed code. Finally, the
Louisiana Civil Code, enacted in 1870 and still
largely in force, clarifies and simplifies the earlier
laws. The 1870 code is written in English,
signaling a shift toward a partial Americanization
of Louisiana’s legal culture. To this day,
Louisiana enjoys the distinction of being the
only state in the United States to have a civil law
system rather than a common-law system.
The first article of the Louisiana Civil Code
reads: “The sources of law are legislation and
custom” (LA C.C. Art. 1). This means that
judges in Louisiana are obligated to look first to
written laws for guidance in reaching their decisions.
If no statute directly governs the dispute,
judges may base their decisions on established
custom. Article 3 defines custom as a “practice
repeated for a long time and generally accepted
as having acquired the force of law.” However,
Article 3 makes it clear that custom may not
abrogate or conflict with legislation. Hence,
Louisiana judges do not make law with their
decisions; rather, the code charges them with
interpreting, as closely as possible, what has
been written and passed by the legislature or
long established by custom.
Louisiana judges, unlike their common-law
counterparts, are not bound by judicial precedent.
Common-law judges adhere to the doctrine
of STARE DECISIS, which mandates that the
outcome of a lawsuit be governed by previous decisions in similar cases. Louisiana’s civil code does not recognize the binding force of precedent.
However, under the civil law doctrine of
jurisprudence constante, or settled JURISPRUDENCE,
judges are expected to follow a series of
decisions that agree on the interpretation of a
code provision.
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.
Civil law systems differ from common-law
systems in another important way: in a common-
law jurisdiction, appellate courts, in most
instances, may review only findings of law.However,
civil law appellate courts may review findings
of fact as well as findings of law. This allows
a Louisiana appellate court to declare a jury’s
decision erroneous, impose its own findings of
fact, and possibly even reduce a damage award.
This is a significant consideration for a plaintiff
who has a choice of whether to file suit in
Louisiana or in another state (to bring suit in a
particular state, a plaintiff must demonstrate
some relationship between that state and the
lawsuit). Since a jury award could be overturned
on appeal, the plaintiff with a strong case may
wish to file in a common-law state. On the other
hand, if the plaintiff is uncertain of success at
the trial level, the possibility of broader review
on appeal may make Louisiana the better choice.
As a practical matter, such dilemmas arise infrequently,
and most often involve complex multistate
litigation concerning corporations.
FURTHER READINGS
Rogowski, Ralf. 1996. Civil Law. New York: New York Univ.
Press.
CROSS-REFERENCES
Napoleonic Code; Roman Law.
