The role of Precedents in Mixed Jurisdictions: A Comparative Analysis of louisiana and the Philippines Ryan mcgonigle Readers are reminded that this work is protected by copyright. While they are free to use the ideas expressed in it, they may not copy, distribute or publish the work or part of it, in any form, printed, electronic or othenwise, except for reasonable quoting, clearly indicating the source. Readers are permitted to make copies, electronically or printed, for personal and classroom use Abstract The modern trend of convergence between the legal systems of the civil- and common-law trad itions offers a unique opportunity for mixed legal jurisdictions such as Louisiana and the Philippines. The flexibility of mixed jurisd ictions is found in their ability to act as a doctrinal sieve, straining out the inherent weaknesses of both parent trad itions. This article aims at discovering the proper role of precedent gjudge-made law) within the mixed or hybrid legal systems of Louisiana and the philippines. By first setting out the historical and specific Jurisprudence constante or the common -law theory of stare decisis obtains n ourof legal experiences of both jurisdictions, the question of whether the civilian concept of paradigmatic examples is answered, leaving room for the mixed category sui generis. By viewing our mixed jurisdictions through a comparative lens, this paper also present: comparatists with the opportunity to bypass stumbling blocks and legal chauvinism and obtain vraI rapprochement I. Introduction The question of whether the common-law doctrine of stare decisis obtains in Louisiana has been an oft-debated theme recurring throughout the nearly two centuries of louisiana statehood. Since the beginning of the 20th century, however, a bright-line rule' on the role of precedent has been hard to draw. The problem has its roots in the interpretation of the proper role of precedent within a Code-based system' that is, at once, a progeny of the great Romanistic trad itions of France and Spain while being a part of the common-law whole that It should be noted at the onset of this d iscussion that civil codes such as the civil code of louisiana or the Civil Code of the Philippines, are books that regulate the legal relationships between individua ls. Typical subjects covered by civil codes are: persons and the family, things and ownership, successions and donations, matrimonial property, obligations and contracts, civil responsibility, sale of goods, statute of lim itations and real property. For more on the structure of the typical civil code, see Dainow, infra note 44 at 244 Code-based systems in the romanistic tradition should not be confused with codes in common-lawcountries, such as the Uniform Commercial Code(UCC)and the Civil Code of Califomia, just to name a few. See MERRYMAN, infra note 1l at 26-27. [T]he existence of something called a code is not] a distinguishing criterion. Califomia has more codes than any civil law nation, but California is not a civil law jurisdiction... If, however, one thinks of odification not as a form but as the expression of an ideology, and if one tries to understand that ide ology and why it achieves expression in code form, then one can see how it makes sense to talk about codes in comparative law. It is true that Califonia has a number of what are called codes. [but] the conception if what a code is and of the functions it should perform in the legal process [are] not the same. There is an entirely different ideology of cod ification at work in the civil law world ' Id
The Role of Precedents in Mixed Jurisdictions: A Comparative Analysis of Louisiana and the Philippines Ryan McGonigle Readers are reminded that this work is protected by copyright. While they are free to use the ideas expressed in it, they may not copy, distribute or publish the work or part of it, in any form, printed, electronic or otherwise, except for reasonable quoting, clearly indicating the source. Readers are permitted to make copies, electronically or printed, for personal and classroom use. Abstract The modern trend of convergence between the legal systems of the civil- and common-law traditions offers a unique opportunity for mixed legal jurisdictions such as Louisiana and the Philippines. The flexibility of mixed jurisdictions is found in their ability to act as a ‘doctrinal sieve,’ straining out the inherent weaknesses of both parent traditions. This article aims at discovering the proper role of precedent (judge-made law) within the mixed or hybrid legal systems of Louisiana and the Philippines. By first setting out the historical and specific legal experiences of both jurisdictions, the question of whether the civilian concept of jurisprudence constante or the common-law theory of stare decisis obtains in our paradigmatic examples is answered, leaving room for the mixed category sui generis. By viewing our mixed jurisdictions through a comparative lens, this paper also presents comparatists with the opportunity to bypass stumbling blocks and legal chauvinism and obtain vrai rapprochement. I. Introduction The question of whether the common-law doctrine of stare decisis obtains in Louisiana has been an oft-debated theme recurring throughout the nearly two centuries of Louisiana statehood. Since the beginning of the 20th century, however, a ‘bright-line rule’ on the role of precedent has been hard to draw. The problem has its roots in the interpretation of the proper role of precedent within a Code-based system1 that is, at once, a progeny of the great Romanistic traditions of France and Spain while being a part of the common-law whole that 1 It should be noted at the onset of this discussion that civil codes, such as the Civil Code of Louisiana or the Civil Code of the Philippines, are books that regulate the legal relationships between individuals. Typical subjects covered by civil codes are: persons and the family, things and ownership, successions and donations, matrimonial property, obligations and contracts, civil responsibility, sale of goods, statute of limitations and real property. For more on the structure of the typical civil code, see Dainow, infra note 44 at 244. Code -based systems in the Romanistic tradition should not be confused with codes in common-law countries, such as the Uniform Commercial Code (UCC) and the Civil Code of California, just to name a few. See MERRYMAN, infra note 11 at 26-27. ‘[T]he existence of something called a code [is not] a distinguishing criterion. California has more codes than any civil law nation, but California is not a civil law jurisdiction . . . If, however, one thinks of codification not as a form but as the expression of an ideology, and if one tries to understand that ide ology and why it achieves expression in code form, then one can see how it makes sense to talk about codes in comparative law. It is true that California has a number of what are called codes . . . [but] the conception if what a code is and of the functions it should perform in the legal process [are] not the same. There is an entirely different ideology of codification at work in the civil law world.’ Id
is the United States. Louisiana is, as one commentator figuratively expressed it, 'a civil law island in a common law sea. 2 Culturally juxtaposed between the world s two greatest lega doctrinal sieve, ' straining harsher elements inherent in both trad itions and preserving those trad itions-the civil law and the common law - Louisiana's genius lies in its ability to act as that suit its needs. This flexibility is the main characteristic of mixed or hybrid jurisdictions of which Louisiana and the Philippines form a part In the Philippines, however, the question of whether the doctrine of stare decisis obtains was not met with the same level of controversy, as had been the case in Louisiana Using comparative legal analysis as a backdrop for this paper, the role of precedent in the mixed jurisd ictions of Louisiana and the Philippines will be contrasted with the anglo- American doctrine of stare decisis. In this paper, I shall attempt to place our"mixed jurisd ictions into their proper category, seeking answers to a particularly difficult question that underlies the purpose of my thesis: Does the common-law doctrine of stare decisis obtain here or do we adhere to the civilian concept of jurisprudence? '4 The answer to this elusive question may be neither positive nor negative-leaving room for a third category mixed jurisdiction sui generis Part II traces the development of the Louisiana theory of precedents with a focus or the jurisprudence of the Supreme Court of Louisiana. The doctrine of stare decisis as it is known in Louisiana's sister states will be distinguished from the civilian theory of jurisprudence constante. In addition, the current renaissance of the civilian trad ition in Louisiana will be highlighted and what I call" cultural variables' will be brought to the forefront in order to explain why Louisiana has adhered to a stricter civilian interpretation of the role of precedent. Part III introduces the mixed jurisdiction of the Philippines. It begins by setting out the historical course that led Philippine jurists to adopt the common- law doctrine of stare de focusing on the case -law of the Philippine Supreme Court. The same cultural ariables discussed in Part II will be applied to the situation in the philip Lastly,PartⅤ concludes this paper with a general discussion on how mixed jurisdictions offer legal scholars and practitioners of both legal traditions greater room for"rapprochement. Today, the trend has been one of convergence between legal systems. Unfortunately, however, there are many SHAEL HERMAN ET AL., THE LOUISIANA CIVIL CODE: A HUMANISTIC APPRAISAL 3 (unpublished manuscript on file with Tulane Law School); see also Joachim Zekoll, The Louisiana Private-Law System: The Best of Both Worlds, 10 TUL. EUR. CIv L F. 1, 2(1995) The common-law doctrine of stare decisis should be termed more precisely: stare rationibus decidendi, which loosely translated means " let the decision stand. 'See ZANDER, infra note 45 at 179. See also Robert L. Henry, Jurisprudence Constante and Stare Decisis Contrasted, 15 A.B. A.J. 11(1929); see generally Martin Shapiro, Toward a Theory of Stare Decisis, 1 J. LEGAL STUD. 125, 125(1972)(defining stare decisis as the practice of Anglo-American courts of deciding new cases in accordance with precedents) The civilian concept of jurisprudence'differs from the Anglo-American concept of stare decisis in that the word precedent in French legal language never means a binding decision and that courts are not bound by the rationale la id down in those decisions. See Michel Troper Christophe grzegorczyk, Precedent in france, in INTERPRETING PRECEDENTS 103, 111 (D. Neil MacCorm ick Robert S Summers, eds, 1997). See F H LAWSON ET AL., AMOS AND WALTON'S INTRODUCTION TO FRENCH LAW 9-12(2d ed. 1963). There is some misunderstanding in England about the authority in France of decided cases, or, as it is ca lled, the jurisprudence of the courts. It is perfectly true that whereas in England the decisions of the superior courts not only illustrate the law, but are law, in France they are not. Id at 9. See also Yvon Loussouarn, The relative Importance of Legislation, Custom, Doctrine, and Precedent in French Law, 18 TUL. L REV. 235(1958); see generally JOHN BELL ET AL., PRINCIPLES OF FRENCH LAW 25-27(1998). In this discussion, the words jurisprudence'and geably 5 See A.G. Chloros, Principle, Reason and Policy in the Development of European Law, 17 iNT'L
is the United States. Louisiana is, as one commentator figuratively expressed it, ‘a civil law island in a common law sea.’2 Culturally juxtaposed between the world’s two greatest legal traditions - the civil law and the common law - Louisiana’s genius lies in its ability to act as a ‘doctrinal sieve,’ straining harsher elements inherent in both traditions and preserving those that suit its needs. This flexibility is the main characteristic of ‘mixed’ or ‘hybrid’ jurisdictions of which Louisiana and the Philippines form a part. In the Philippines, however, the question of whether the doctrine of stare decisis obtains was not met with the same level of controversy, as had been the case in Louisiana. Using comparative legal analysis as a backdrop for this paper, the role of precedent in the mixed jurisdictions of Louisiana and the Philippines will be contrasted with the AngloAmerican doctrine of stare decisis.3 In this paper, I shall attempt to place our ‘mixed’ jurisdictions into their proper category, seeking answers to a particularly difficult question that underlies the purpose of my thesis: ‘Does the common-law doctrine of stare decisis obtain here or do we adhere to the civilian concept of jurisprudence?’4 The answer to this elusive question may be neither positive nor negative - leaving room for a third category: ‘mixed jurisdiction sui generis.’ Part II traces the development of the Louisiana theory of precedents with a focus on the jurisprudence of the Supreme Court of Louisiana. The doctrine of stare decisis as it is known in Louisiana’s sister states will be distinguished from the civilian theory of jurisprudence constante. In addition, the current renaissance of the civilian tradition in Louisiana will be highlighted and what I call ‘cultural variables’ will be brought to the forefront in order to explain why Louisiana has adhered to a stricter civilian interpretation of the role of precedent. Part III introduces the mixed jurisdiction of the Philippines. It begins by setting out the historical course that led Philippine jurists to adopt the common-law doctrine of stare decisis, focusing on the case-law of the Philippine Supreme Court. The same cultural variables discussed in Part II will be applied to the situation in the Philippines. Lastly, Part IV concludes this paper with a general discussion on how mixed jurisdictions offer legal scholars and practitioners of both legal traditions greater room for ‘rapprochement.’ Today, the trend has been one of convergence between legal systems.5 Unfortunately, however, there are many 2 SHAEL HERMAN ET AL., THE LOUISIANA CIVIL CODE: A HUMANISTICAPPRAISAL 3 (unpublished manuscript on file with Tulane Law School); see also Joachim Zekoll, The Louisiana Private-Law System: The Best of Both Worlds, 10 TUL. EUR. & CIV. L. F. 1, 2 (1995). 3 The common-law doctrine of stare decisis should be termed more precisely: ‘stare rationibus decidendis,’ which loosely translated means ‘let the decision stand.’ See ZANDER, infra note 45 at 179. See also Robert L. Henry, Jurisprudence Constante and Stare Decisis Contrasted, 15 A.B.A.J. 11 (1929); see generally Martin Shapiro, Toward a Theory of Stare Decisis, 1 J. LEGAL STUD. 125, 125 (1972) (defining stare decisis as the practice of Anglo-American courts of deciding new cases in accordance with precedents). 4 The civilian concept of ‘jurisprudence’ differs from the Anglo-American concept of stare decisis in that the word ‘precedent’ in French legal language never means a binding decision and that courts are not bound by the rationale laid down in those decisions. See Michel Troper & Christophe Grzegorczyk, Precedent in France, in INTERPRETING PRECEDENTS 103, 111 (D. Neil MacCormick & Robert S. Summers, eds., 1997). See F.H. LAWSON ET AL., AMOS AND WALTON’S INTRODUCTION TO FRENCH LAW9-12 (2d ed. 1963). ‘There is some misunderstanding in England about the authority in France of decided cases, or, as it is ca lled, the jurisprudence of the courts. It is perfectly true that whereas in England the decisions of the superior courts not only illustrate the law, but are law, in France they are not.’ Id. at 9. See also Yvon Loussouarn, The Relative Importance of Legislation, Custom, Doctrine, and Precedent in French Law, 18 TUL. L. REV. 235 (1958); see generally JOHN BELL ET AL., PRINCIPLES OF FRENCH LAW 25-27 (1998). In this discussion, the words ‘jurisprudence’ and ‘precedent’ and ‘case law’ may be used interchangeably. 5 See A.G. Chloros, Principle, Reason and Policy in the Development of European Law, 17 INT’L &
obstacles to surmount before harmonization can be achieved -least of which is legal chauvinism that proponents of both systems seem to find first in asking: 'Whose system better? 'It is not that one system is better than the other but rather that they are merely different; the hope is that these differences will foster rapprochement. First beginning with mixed jurisdictions such as Louisiana and the philippines, and recognizing that they ar indeed "modeles vivants de droit compare, 6 perhaps obsta be removed on the road toward the harmonization of divergent legal systems IL. The historical development of Louisianas theory of precedents If we could look at a pure civilian system in a vacuum and analyze it for its parts, we would see that it was comprised of only two components -legislation?and custom. 8 According to pure civilian theory, judicial precedents are not considered to be a source of law because the "legislative function is entrusted to the legislature and the people exclusively. 9 This theory is paralleled in Article I of the Louisiana Civil Code, which declares: The sources of law are legislation and custom. 0 According to John Henry Merryman, this was so because of state positivism. In his book, The Civil Law Tradition, he writes ste tate positivism, as expressed in the dogma of the absolute extemal and intemal sovereignty of the ed to a state monopoly on lawmaking. Revolutionary emphasis on the strict separation of powers demanded that only specifically designated organs of the legislative and judicial powers of govemment were different in kind; in order to prevent abuse, they had to be very sharply separated from each other II COMP L Q849(1968); see Shael Herman, The Fate and the Future of Codification in America, 40 AM J LEGAL HIST. 407(1996), see Zekoll, supra note 2 at 2; see also Mathias Reimann, Towards a European Civil Code: Why Continental urists Should Consult Their Transatlantic Colleagues, 73 TUL. L REV. 1337(1999) LOUIS BAUDOUIN, LE DROIT CIVIL DE LA PROVINCE DE QUEBEC: MODELE VIVANT DE DROIT COMPARE (1953)(noting that mixed jurisdictions such as Quebec are living models of comparative law), see also Jean Louis Baudouin, Impact ofCommon Law in Louisiana and quebec, in THE ROLE OF JUDICIAL DECISIONS AND DOCTRINE IN CIVIL LAW AND MIXED JURISDICTIONS 3 Joseph Dainow ed, 1975) jursdi, According to Professor Yiannopoulos, legislation is superior to all other sources of law in civil-law ions. What this means is that if a solution is to be found in the enacted law, no jurisprudence, usage equity, or doctrine can prevail aga inst it. It is only in cases not covered by legislation that the lawyer or judg entitled to look elsewhere for solutions. A.N. Yiannopoulos, Introduction to LA. CIV. CODE ANN. at XXXll West 1999) Customary law is properly defined as a long series of actions constantly repeated, which have by such repetition, and by uninterrupted acquiescence, acquired the force of a tacit and common consent. Id. According to John Henry Merryman, lw] here a person acts in accordance with custom under the assumption that it represents the law, his action will be accepted as legal in many civil law jurisdictions, so long as there is no applicable statute or regulation to the contrary. MERRYMAN, infra note 1l at 23. Moreover, Merryman is ofthe opinion that[t ]o give custom the force of law would appear to violate the dogma of state positivism(only the state can make law)and the dogma of sharp separation of powers(within the state only the legislature can make A.N. YIANNOPOULOS. CIVIL LAW SYSTEM: LOUISIANA AND COMPARATIVE LAW. A COURSEBOOK TEXTS, CASES AND MATERIALS 146(2ded. 1999) LA. CIV. CODE ANN. art. I(West 2000) JOHN HENRY MERRYMAN, THE CIVIL LAW TRADITION 22 (2d ed 1994)
obstacles to surmount before harmonization can be achieved - least of which is legal chauvinism that proponents of both systems seem to find first in asking: ‘Whose system is better?’ It is not that one system is better than the other but rather that they are merely different; the hope is that these differences will foster rapprochement. First beginning with mixed jurisdictions such as Louisiana and the Philippines, and recognizing that they are indeed ‘modèles vivants de droit comparé,’6 perhaps obstacles can be removed on the road toward the harmonization of divergent legal systems. II. The historical development of Louisiana’s theory of precedents If we could look at a pure civilian system in a vacuum and analyze it for its parts, we would see that it was comprised of only two components - legislation7 and custom.8 According to pure civilian theory, judicial precedents are not considered to be a source of law because the ‘legislative function is entrusted to the legislature and the people exclusively.’9 This theory is paralleled in Article I of the Louisiana Civil Code, which declares: ‘The sources of law are legislation and custom.’10 According to John Henry Merryman, this was so because of state positivism. In his book, The Civil Law Tradition, he writes: . . . state positivism, as expressed in the dogma of the absolute external and internal sovereignty of the state, led to a state monopoly on lawmaking. Revolutionary emphasis on the strict separation of powers demanded that only specifically designated organs of the legislative and judicial powers of government were different in kind; in order to prevent abuse, they had to be very sharply separated from e ach other.11 COMP. L. Q. 849 (1968); see Shael Herman, The Fate and the Future of Codification in America, 40 AM. J. LEGAL HIST. 407 (1996); see Zekoll, supra note 2 at 2; see also Mathias Reimann, Towards a European Civil Code: Why Continental Jurists Should Consult Their Transatlantic Colleagues, 73 TUL. L. REV. 1337 (1999). 6 LOUIS BAUDOUIN, LE DROIT CIVIL DE LA PROVINCE DE QUÉBEC: MODÈLE VIVANT DE DROIT COMPARÉ (1953) (noting that mixed jurisdictions such as Québec are ‘living models of comparative law’); see also Jean - Louis Baudouin, Impact of Common Law in Louisiana and Québec, in THE ROLE OF JUDICIAL DECISIONS AND DOCTRINE IN CIVIL LAW AND MIXED JURISDICTIONS 3 (Joseph Dainow ed., 1975). 7 According to Professor Yiannopoulos, legislation is superior to all other sources of law in civil-law jurisdictions. What this means is that if a solution is to be found in the enacted law, ‘no jurisprudence, usage, equity, or doctrine can prevail against it. It is only in cases not covered by legislation that the lawyer or judge is entitled to look elsewhere for solutions.’ A.N. Yiannopoulos, Introduction to LA. CIV. CODE ANN. at XXXIII (West 1999). 8 Customary law is properly defined as ‘a long series of actions constantly repeated, which have by such repetition, and by uninterrupted acquiescence, acquired the force of a tacit and common consent.’ Id. According to John Henry Merryman, ‘[w]here a person acts in accordance with custom under the assumption that it represents the law, his action will be accepted as legal in many civil law jurisdictions, so long as there is no applicable statute or regulation to the contrary.’ MERRYMAN, infra note 11 at 23. Moreover, Merryman is of the opinion that ‘[t]o give custom the force of law would appear to violate the dogma of state positivism (only the state can make law) and the dogma of sharp separation of powers (within the state only the legislature can make law).’ Id. 9 A.N. YIANNOPOULOS, CIVIL LAWSYSTEM: LOUISIANA AND COMPARATIVE LAW, A COURSEBOOK TEXTS, CASES AND MATERIALS 146 (2d ed. 1999). 10 LA. CIV. CODE ANN. art. 1 (West 2000). 11 JOHN HENRY MERRYMAN, THE CIVIL LAWTRADITION 22 (2d ed. 1994)
Strict separation of powers was a direct reaction to the French judiciary's abuse of power in pre-Revolutionary France. During the ancien regime, the French judiciary was possessed of seemingly unfettered discretion to adjud icate cases as they saw fit. The French regional high courts, known as Les Parlements, had the authority ' not only to judge cases, but also to promulgate regulations, known as arrets de reglement, which had the force of law. 12 Hence the origin of the old French proverb: 'Dieu nous garde de requite de parlements. 3 In the words of Professor Palmer, the existence of the adage itself still communicates to us something of the suffering of the people at the hands of judges who abused the proper functioning of a court '14 Prior to the French Revolution, it was often said that the law was so confused that nobody, includ ing the judges, was able to know it with certainty, and that they were at the mercy of the courts. 15 As a result, safeguards were sought and"appeal was made very early to the idea that the law should be written, and written in clear and ordinary judge 16 The result was Article 5 of the Code Napoleon, which proscribes the use or to the language, so that everybody would know his rights and that no discretion should be left to the precedents by judges: Judges are forbidden, when giving judgment in the cases which are brought before them, to lay down general rules of conduct or decide a case by hold ing it was governed by a previous decision. "17 In other words, precedent was not considered to be a source oflaw. 8 By the time of the Mitchel de s.-O-I'E. Lasser, Judicial Self-)Portraits: Judicial Disclosure in the French Legal System, 104 YALE L J.1325,1330(1995) 3 Translated into English, the adage states: "May God protect us from the equity of parlements [courts] 14 Vernon Valentine Palmer, 'May God Protect Us from the Equity of Parlements: Comparative Reflections on English and French Equity Power, 73 TUL. L. REV. 1287, 1296(1999). For more on the Judiciary's role in pre-Revolutionary France, see generally JOHN A CAREY, JUDICIAL REFORM IN FRANCE BEFORE THE REVOLUTION OF 1789(1981) Andre Tunc, The Grand Outlines of the Code Napoleon, 29 TUL. L REV. 431, 431(1955) ld.at431-32. CODE CIVIL C. CIV. art. 5 (Fr see also THE FRENCH CIVIL CODE, art. 5 (trans., John H Crabb, 1995) [An example of how legal translations can and do differ even when dea ling with the same Article. Crabb's edition translates Article 5 as: Judges are forbidden to pronounce decisions by way of general and regulative isposition on causes which are subm itted to them. 'Article 5 of the Civil Code further guarantees this exclusive authority of the legislature by forbidding judges to issue arrets de reglement, that is to say, to indicate the constructions or interpretations of the legislation which would be followed in like future cases. Loussouarn, supra note 4 at 237. The codification of this prohibition was a direct result of the Enlightenment in Europe and the ideas of Montesquieu. Under Montesquieu's influence, two important ideas concerning the role of the judiciary arose. The first idea was that the judge was nothing more than the bouche de la loi' or the mouth of the law' and in that sense she is not empowered to add any thing to the law, [rather].. her power is lim ited to expounding what is already inside the statute. Mario Ascheri, Turning Point in the Civil-Law Tradition: Fro function was to be a refere legislatif'(legislative referee)meaning that only the legislature can resolve legal questions and when the judiciary decides a case it does so through "legislative will. Id. "Courts were denied all power 'to make regulations'(reglements)but were to address themselves to the legislature whenever they think it necessary either to interpret a law or to make a new one. JOHN P DAWSON, THE ORACLES OF THE LAW 376 (1968) Professor Loussouam, citing the famed jurist Francois Geny, states: Theoretically, the judge is entitled to ignore the decisions of other courts and even his own. From this, Geny and others have concluded that the jurisprudence, or decisions, is not a source of law. Loussouam, supra note 4 at 257. See also 2 FRANCOIS GENY METHODE D'INTERPRETATION ET SOURCES EN DROIT PRIVE POSITIF: ESSAI CRITIQUE 145(2d ed 1954)
Strict separation of powers was a direct reaction to the French judiciary’s abuse of power in pre-Revolutionary France. During the ancien régime, the French judiciary was possessed of seemingly unfettered discretion to adjudicate cases as they saw fit. The French regional high courts, known as Les Parlements, had the authority ‘not only to judge cases, but also to promulgate regulations, known as arrêts de règlement,’ which had the force of law.12 Hence the origin of the old French proverb: ‘Dieu nous garde de l’équité de parlements.’13 In the words of Professor Palmer, the existence of the adage itself ‘still communicates to us something of the suffering of the people at the hands of judges who abused the proper functioning of a court.’14 Prior to the French Revolution, it was often said that ‘the law was so confused that nobody, including the judges, was able to know it with certainty, and that they were at the mercy of the courts.’15 As a result, safeguards were sought and ‘appeal was made very early to the idea that the law should be written, and written in clear and ordinary language, so that everybody would know his rights and that no discretion should be left to the judge.’16 The result was Article 5 of the Code Napoléon, which proscribes the use of precedents by judges: ‘Judges are forbidden, when giving judgment in the cases which are brought before them, to lay down general rules of conduct or decide a case by holding it was governed by a previous decision.’17 In other words, precedent was not considered to be a source of law.18 By the time of the 12 Mitchel de S.-O.-I’E. Lasser, Judicial (Self-)Portraits: Judicial Disclosure in the French Legal System, 104 YALE L.J. 1325, 1330 (1995). 13 Translated into English, the adage states: ‘May God protect us from the equity of parlements [courts].’ 14 Vernon Valentine Palmer, ‘May God Protect Us from the Equity of Parlements’: Comparative Reflections on English and French Equity Power, 73 TUL. L. REV. 1287, 1296 (1999). For more on the Judiciary’s role in pre-Revolutionary France, see generally JOHN A. CAREY, JUDICIAL REFORM IN FRANCE BEFORE THE REVOLUTION OF 1789 (1981). 15 André Tunc, The Grand Outlines of the Code Napoleon, 29 TUL. L. REV. 431, 431 (1955). 16 Id. at 431-32. 17 CODE CIVIL [C. CIV.] art. 5 (Fr.); see also THE FRENCH CIVIL CODE, art. 5 (trans., John H. Crabb, 1995). [An example of how legal translations can and do differ even when dealing with the same Article.] Crabb’s edition translates Article 5 as: ‘Judges are forbidden to pronounce decisions by way of general and regulative disposition on causes which are submitted to them.’ ‘Article 5 of the Civil Code further guarantees this exclusive authority of the legislature by forbidding judges to issue arrêts de règlement, that is to say, to indicate the constructions or interpretations of the legislation which would be followed in like future c ases.’ Loussouarn, supra note 4 at 237. The codification of this prohibition was a direct result of the Enlightenment in Europe and the ideas of Montesquieu. Under Montesquieu’s influence, two important ideas concerning the role of the judiciary arose. The first idea was that the judge was nothing more than the ‘bouche de la loi’ or ‘the mouth of the law’ and in that sense she is not empowered to ‘add anything to the law, [rather] . . . her power is limited to expounding what is already inside the statute.’ Mario Ascheri, Turning Point in the Civil-Law Tradition: From Ius Commune to Code Napoleon, 70 TUL. L. REV. 1041, 1042 (1996). The second idea was that the judge’s function was to be a ‘référé législatif’ (legislative referee) meaning that only the legislature can resolve legal questions and when the judiciary decides a case it does so through ‘legislative will.’ Id. ‘Courts were denied all power ‘to make regulations’ (règlements) but were ‘to address themselves to the legislature whenever they think it necessary either to interpret a law or to make a new one.’‘ JOHN P. DAWSON, THE ORACLES OF THE LAW 376 (1968). 18 Professor Loussouarn, citing the famed jurist François Gény, states: ‘Theoretically, the judge is entitled to ignore the decisions of other courts and even his own. From this, Gény and others have concluded that the jurisprudence, or decisions, is not a source of law.’ Loussouarn, supra note 4 at 257. See also 2 FRANÇOIS GÉNY, MÉTHODE D’INTERPRETATION ET SOURCES EN DROIT PRIVÉPOSITIF: ESSAI CRITIQUE 145 (2d ed. 1954)
Article's enactment in 1804, Louisiana was no longer a possession of France, so the question remained whether louisiana jurisprudence would follow the revolutionary model or the Anglo-American model It was well known that the people of Louisiana were not pleased with the American ud icial system or the american immigrants in general. g The Americans viewed the french inhabitants of Louisiana with equal contempt. 20 The territory's first governor, William CC Claiborne, wrote President Jefferson that Louisianans were ignoramuses, and... childish incapable of seeing the advantages of American laws. 2I The elected representatives of Louisiana, however, saw the advantages of the laws that were in existence before the Americans assumed control. During these tumultuous times, they stood as a voice of reason The most inestimable benefit for a people is the preservation of its laws, usages, and habits It is only such preservation that can soften the sudden transition from one government to another and it is by having consideration for that natural attachment that even the heaviest yoke becomes endurable. 22 The first attempt at reason came in 1806, when the Legislature of the Territory of Orleans convened and declared that the Territory of orleans23 should be governed by roman THE LOUISIANA GOVERNORS: FROM IBERVILLE TO EDWARDS 84-85(Joseph G. Dawson Ill ed, 1990) [hereinafter LOUISIANA GoVERNORS]. Louisianas first governor under American rule, William CC. Claibome faced a formidable task. " Previous American territories had been inhabited by people who spoke the English language, who were Protestant, and who had experience in representative government. The people of Louisiana inantly French in culture; they were Catholic; and nothing in the ir history had given them the United States. The Americans they had known had been pioneers from Kentucky and Tennessee t people of "Kaintucks"to the people of New Orleans, whose most notable characteristics had been drinking, wenching, IT]he Americans recognized that Louisianas colonial experience had been different from that of the other states of the union. The existing states all had been nurtured by and eventually weaned from a common mother, English-speaking, Protestant, parliamentary Great Brita in Louisiana, on the other hand, had been reared by non-English speaking, papist nations led by absolute monarchs. The American govemment was afraid that th ilarity in experiences would cause friction and hinder national homogeneity. Therefore, anglicization of Louisiana was believed to be the best course of action. Alain A. Levasseur& roger K. Ward, 300 Years and Counting: The French Influence on the Louisiana Legal System, 46 LA. B.J. 301 21 ALFRED OLIVIER HERO, JR, LOUISIANA AND QUEBEC: BILATERAL RELATIONS AND COMPARATIVE SOCIOPOLITICAL EVOLUTION, 1673-1993 at 165(1995). Educated in a belief of the excellencies of the civ il law, the Louisianian have hitherto been unwilling to part with them, and, while we feel ourselves the force of habit and prejudice, we should not be surprised at the attachment that the old inhabitants manifest formany of their former customs and local institutions. The general introduction, therefore, into this Territory of the American laws must be the effect of time; the work of innovation must progress slowly and cautiously, or otherwise much convenience will ensue, and serious discontents will arise among a people who have the strongest claims upon the justice and the liberality of the American Govemment. 4 CHARLES GAYARRE, HISTORY OF LOUISIANA 199 (1885) Yiannopoulos, supra note 7 at XXXVI The Territory of orleans, as we would know it today, is comprised of the modern-day state of Louisiana. In 1811, the Eleventh Congress delineated the boundaries of the Territory of orleans in the Act of Feb. 20, 1811, 2 Stat 641. The Act, officially entitled "An Act to enable the people of the Territory of Orleans to form a constitution and state government, and for other purposes'reads, in the pertinent part: That the inhabitants of all that part of the territory or country ceded under the name of Louisiana, by the treaty made at Paris.. between the United States and France, conta ined within the following lim its, that is to say: beginning at the mouth of the river Sabine, thence by a line to be drawn along the m iddle of said river, including all islands to the thirty-second degree of latitude; thence due north, to the northernmost part of the thirty-third degree of north latitude; thence along the said parallel of latitude to the river Mississippi, thence down the said
Article’s enactment in 1804, Louisiana was no longer a possession of France, so the question remained whether Louisiana jurisprudence would follow the Revolutionary model or the Anglo-American model. It was well known that the people of Louisiana were not pleased with the American judicial system or the American immigrants in general.19 The Americans viewed the French inhabitants of Louisiana with equal contempt.20 The territory’s first governor, William C.C. Claiborne, wrote President Jefferson that Louisianans were ‘ignoramuses, and . . . childish . . . incapable of seeing the advantages of American laws.’21 The elected representatives of Louisiana, however, saw the advantages of the laws that were in existence before the Americans assumed control. During these tumultuous times, they stood as a voice of reason: ‘The most inestimable benefit for a people is the preservation of its laws, usages, and habits. It is only such preservation that can soften the sudden transition from one government to another and it is by having consideration for that natural attachment that even the heaviest yoke becomes endurable.’22 The first attempt at reason came in 1806, when the Legislature of the Territory of Orleans convened and declared that ‘the Territory of Orleans23 should be governed by Roman 19 THE LOUISIANA GOVERNORS: FROM IBERVILLE TO EDWARDS 84-85 (Joseph G. Dawson III ed., 1990) [hereinafter LOUISIANA GOVERNORS]. Louisiana’s first governor under American rule, William C.C. Claiborne, faced a formidable task. ‘Previous American territories had been inhabited by people who spoke the English language, who were Protestant, and who had experience in representative government. The people of Louisiana were predominantly French in culture; they were Catholic; and nothing in their history had given them experience in representative government . . . Furthermore, the people of Louisiana had no love for the people of the United States. The Americans they had known had been pioneers from Kentucky and Tennessee, “Kaintucks” to the people of New Orleans, whose most notable characteristics had been drinking, wenching, and brawling.’ Id. 20 ‘[T]he Americans recognized that Louisiana’s colonial experience had been different from that of the other states of the union. The existing states all had been nurtured by and eventually weaned from a common mother, English-speaking, Protestant, parliamentary Great Britain. Louisiana, on the other hand, had been reared by non-English speaking, papist nations led by absolute monarchs. The American government was afraid that this dissimilarity in experiences would cause friction and hinder national homogeneity. Therefore, anglicization of Louisiana was believed to be the best course of action.’ Alain A. Levasseur & Roger K. Ward, 300 Years and Counting: The French Influence on the Louisiana Legal System, 46 LA. B.J. 301. 21 ALFRED OLIVIERHERO, JR., LOUISIANA AND QUEBEC: BILATERAL RELATIONS AND COMPARATIVE SOCIOPOLITICAL EVOLUTION, 1673-1993 at 165 (1995). ‘Educated in a belief of the excellencies of the civil law, the Louisianians have hitherto been unwilling to part with them, and, while we feel ourselves the force of habit and prejudice, we should not be surprised at the attachment that the old inhabitants manifest for many of their former customs and loca l institutions. The general introduction, therefore, into this Territory of the American laws must be the effect of time; the work of innovation must progress slowly and cautiously, or otherwise much inconvenience will ensue, and serious discontents will a rise among a people who have the strongest claims upon the justice and the liberality of the American Government.’ 4 CHARLES GAYARRÉ, HISTORY OF LOUISIANA 199 (1885). 22 Yiannopoulos, supra note 7 at XXXVI. 23 The Territory of Orleans, as we would know it today, is comprised of the modern-day state of Louisiana. In 1811, the Eleventh Congress delineated the boundaries of the Territory of Orleans in the Act of Feb. 20, 1811, 2 Stat. 641. The Act, officially entitled ‘An Act to enable the people of the Territory of Orleans to form a constitution and state government, and for other purposes’ reads, in the pertinent part: ‘That the inhabitants of all that part of the territory or country ceded under the name of Louisiana, by the treaty made at Paris . . . between the United States and France, contained within the following limits, that is to say: beginning at the mouth of the river Sabine, thence by a line to be drawn along the middle of said river, including all the islands to the thirty-second degree of latitude; thence due north, to the northernmost part of the thirty-third degree of north latitude; thence along the said parallel of latitude to the river Mississippi; thence down the said