A comparative analysis of the common law models in Louisiana Canada and England and Wales[1]
Arafat Reza[2] and FaranMdAaraf[3]
Louisiana and Canada are classified as mixed jurisdiction because of the presence of both common law and civil law element within their legal system. This blend has been the result of their history of being ruled by different countries with distinct legal systems at different times. England and Wales, on the other hand, is predominantly governed by common law. This Paper contains a detailed discussion on the following comparative law issues:
- The main reason for which Louisiana and Canada have adopted common law system.
- The extent to which the common law model of Louisiana and Canada resembles the common law model of England and Wales.
- Whether there are any major legal influences except for common law in Louisiana and Canada.
A thorough analysis of the above points in this paper leads to the conclusion that every legal system in the world has evolved from the experience they have gained through extensive active and passive legal borrowing since birth. Thus, the present legal system of Louisiana and Canada reveals great resemblance with the French, Spanish Civil law as well as the English Common law system when studied.
- The reason for their adoption of common law:
Louisiana:
Louisiana is presently a state of the common law country United States.[4] When Louisiana was purchased by them from France in 1803, the governor of Louisiana made the first attempt to introduce common law into his territory.[5] However, as Judge John T. Hood, Jr., stated, this attempt failed because the residents of Louisiana were unhappy with how congress had given arbitrary power to the President and his officials and they also could not trust a system whereby judicial decisions had to be regarded as law.[6] Eventually, the Louisiana Civil Code of 1825 was drafted and published in French and English (the official languages of Louisiana then).[7] In 1870, another Code was drafted which was only published in English.[8] According to Oppenheim[9], Reeves, as the influence of the French tradition started to fade, it became progressively difficult for Louisiana’s law to keep its door closed for common law.[10] At present, because of the supremacy of American federal law guaranteed by Article 6, clause 2 of the Constitution of the United States[11], Common law has displaced Civil law system in Louisiana.[12] This statement can be justified using three examples: Firstly, to become a judge in Louisiana one has to demonstrate, by passing various examinations, an intimate knowledge of Common law and Civil law.[13] Secondly, even in case of Louisiana, if a case goes to the Supreme Court, it is decided by common law judges.[14] Finally, David has argued that, much of the interpretation of Civil Code of Louisiana is done by relying upon precedents and other common law traditions.[15]
Canada:
Until France was defeated by the United Kingdom in Seven Years’ War in 1763, Canada was part of the colony named New France.[16] Upon the signing of the Treaty of Paris in 1763 following this War, New France was taken by the United Kingdom.[17] The portion of Canada within the New France territory was named Province of Quebec through the Royal Proclamation of 1763.[18] The province was later divided into Upper Canada and Lower Canada (Southern section of modern Quebec)[19], by the Constitutional Act 1791.[20] Through this Act, English Common law was also introduced for the governance of Upper Canada whereas the Lower Canada was allowed to be governed by their pre-existing system of French Civil law (except for Criminal law matters) due to the vast number of French speaking Canadians living there.[21]
- Comparison with the common law model of England and Wales:
Louisiana:
The Common law system of Louisiana resembles the Common law of England and Wales in three important aspects. Firstly, as David notes, the judges in Louisiana generally are seen to provide reasoning for their judgment which is quite common in England but rare in many civil law jurisdiction.[22] Secondly, D. Custos has argued that the practice of making explicit reference to precedents in judgment is quite common in Louisiana and England.[23] Thirdly, as Finkelman has identified, much like England and Wales, they use Jury trial for criminal matters.[24] There has been a novel development in Louisiana whereby verdicts in felony must be unanimous from January 2019.[25] This distinguishes the jury trial of Louisiana from England where a verdict can also be reached by a majority.[26]
However, the main difference between the Common Law system of Louisiana and England has been noted by the Louisiana Supreme Court. They have confirmed that the value of precedents in their jurisdiction is given via doctrine of jurisprudence constante[27] rather than Stare decisis.[28] Louisiana Courts of Appeals inRoyal v. Cook[29] have stated that “jurisprudence constante is merely a secondary source of law which is not as authoritative as stare decisis”.[30]
Canada:
The preamble to Constitution Act, 1867 provides that “the constitution of Canada will be similar in principle to that of United Kingdom”.[31] Thus, the first similarity between the Common law system of Canada and England is that both of their constitution is uncodified[32] and identical in terms of legal content[33].
Secondly, the countries have a constitutional monarchy.[34] Hence, the crown, in theory, is the head of both the state and even today has some important powers.[35] For instance, Deturbide has noted, much like England and Wales, it is not enough for a Bill to be approved by majority of the members sitting in the Senate and the House of Commons in Canada.[36] The Governor-General (Queen’s Representative) must give Royal Assent to the Bill for it to become law.[37]
Thirdly, there’s a wide application and strong acceptance of the doctrine of stare decisis among Canada’s judiciary. According to Whittle, Deturbide[38], they have originally inherited this attitude from Great Britain.[39]
However, one difference in their Common law system results from Canada being a federal nation while England is a unitary one.[40] Thereby, Lefroy has noted that the law-making power of Canada is divided between its Parliament and provincial legislatures.[41] However, at least in theory, in England, as Feldman has argued, it is only the Parliament who has the power to make or unmake any law and there’s no presence of any such authorities as provincial legislatures.[42]
Moreover, in Canada, the judiciary can challenge and strike down an Act of Parliament for being in violation of certain sections in Canadian Charter of Rights and Freedom.[43] Contrarily, Gibson has argued, in England and Wales because of the doctrine of Parliamentary Supremacy, the judges cannot invalidate an Act of Parliament.[44] In the past, the England and Wales judges have in rare situations either disapplied particular sections of an Act[45] or declared them incompatible with the ECHR[46].
- Other major legal influences:
Louisiana:
Louisiana was established by France at the end of the 17th century.[47] Then, Royal charters were used to govern the territory.[48]
In 1722, the power of governance of Louisiana shifted to New Orleans and the colony was governed by the laws and customs of Paris.[49] In 1731, France regained possession of Louisiana and continued to use the Custom of Paris as the main law of the land.[50]
In 1763, following the defeat of France in the French and Indian War, there was a cession of Louisiana by France to Spain.[51] In 1766, the Spaniards introduced by force the Spanish law within Louisiana.[52] The Spanish law was mainly comprised of Roman law[53] and Canon law.[54] In 1803, Louisiana was re-ceded to France by Spain as the offspring of Treaty of San Ildefonso.[55] Shortly afterwards, Louisiana was sold by Napoleon to the United States.[56]
After becoming the part of the United States, several attempts were made by Louisiana in the 19th century to create their own Code (e.g., the Civil Code of 1808, the Civil Code of 1825, and the Civil Code of 1870).[57] Many legal scholars including Dainow[58], Moreteau[59] believe that all of these Codes were remarkably influenced by French Code Civil of 1804.
Canada:
Following the division of Province of Quebec in 1791, a reunification of Upper Canada and Lower Canada occurred during 1841.[60] Quebec was given permission to continue the use of French legal codes for their governance whereas Upper Canada was to be governed by Common Law.[61] The basis of modern day Canada was formed in 1867 through the addition of two other British colonies with the 1841 Province of Canada.[62]Rinfret noted that, despite substantial expansion of Canadian territory in the 20th century, the position now regarding its legal influences remain to be almost similar to 1841: Quebec follows the civil law system for private law whereas remainder of Canada obeys common law in every aspect.[63]
The first Civil Code of Quebec came into force on 1866 and there’s a strong consensus among legal scholars including Deturbide[64], Fabre-Surveyer[65] and Judge John T. Hood[66] that in drafting this Code, the drafters had taken considerable inspiration from French Code Civil of 1804 and Civil Code of 1808 of Louisiana. Since 2001, both the Civil law of Louisiana and Common law are accepted as being “equally authoritative sources of law” in Canada by virtue of c. 4, s. 8 of their Interpretation Act.[67]
[1]This paper was submitted as part of Arafat Reza’s LL.B programme at BPP University (UK). Some alterations have been made by FaranMdAarafto the paper to include further details.
[2]Arafat Reza is a final year law student pursuing his LL.B from BPP University (UK) via a distance learning programme partnered by the London College of Legal Studies (South) (Bangladesh)
[3]Barrister FaranMdAaraf is a lecturer of London College of Legal Studies (South) (Bangladesh)
[4]Reeves AJ, ‘The Common Law State of Louisiana.’ (1974) 2(3) TulCiv LF [i] p. 24
[5]Tucker J, ‘Code and Common Law in Louisiana.’ (1954-1955) 29(4) Tul L Rev 739, 744
[6]Hood J, ‘History and Development of the Louisiana Civil Code.’ (1958-1959) 33(1) Tul L Rev 7, 9
[7]Herman S, ‘The Louisiana Code of Practice (1825): A Civilian Essai among Anglo-American Sources.’ (2008) 23 TulEur&Civ LF 51, 65
[8]Moreteau O, ‘The Louisiana Civil Code in French: Translation and Retranslation.’ (2016) 9(1) J Civ L Stud 223, 226
[9]Leonard Oppenheim, “Common Law and Civil Law Influences in the Private Law of Louisiana” (1964) 81:2 SALJ 163, 168
[10]Reeves AJ, ‘The Common Law State of Louisiana.’ (1974) 2(3) TulCiv LF [i] p. 3
[11] National Constitution Center, ‘Article VI: Debts, Supremacy, Oaths, Religious Tests’ (National Constitution Center) <https://constitutioncenter.org/interactive-constitution/articles/article-vi>accessed December 28, 2018
[12]Gruning D, ‘Bayou State Bijuralism: Common Law and Civil Law in Louisiana.’ (2004) 81(4) U Det Mercy L Rev 437, 456-460
[13] Geoff Pallay, ‘Judicial Selection in Louisiana’ (Ballotpedia) <https://ballotpedia.org/Judicial_selection_in_Louisiana> accessed December 28, 2018
[14]Leonard Oppenheim, “Common Law and Civil Law Influences in the Private Law of Louisiana” (1964) 81:2 SALJ 163, 168
[15]Gruning D, ‘Bayou State Bijuralism: Common Law and Civil Law in Louisiana.’ (2004) 81(4) U Det Mercy L Rev 437, 459
[16]Clement, W. H. P. History of the Dominion of Canada. Toronto, Briggs., p. 74-90
[17]O’Sullivan, D. A. Government in Canada. Toronto, Carswell& Co, p. 259-260
[18]Kingsford, William. History of Canada . Toronto, Roswell & Hutchinson; etc., p. 142
[19]KonradBongard, ‘A History of Common and Civil Law in Canada’ (Pardon Applications of Canada, June 19, 2014) <https://www.pardonapplications.ca/articles/history-common-civil-law-canada/> accessed December 26, 2018
[20]Bourinot, John George. Manual of the Constitutional History of Canada. Montreal, Dawson Bros. p. 19
[21]Hassard, Albert Richard. Canadian Constitutional History and Law. Toronto, Carswell., p.43
[22]David Hricik, Law School Basics: A Preview of Law School and Legal Reasoning(1stedn, Nova Press 2016) 27
[23]Custos D, ‘The Status of Jurisprudence in France and in Louisiana.’ (2005) 51(1) Loy L Rev 73, 75
[24]Paul Finkelman, The Encyclopedia of American Civil Liberties: A – F, Index (1st edn, Taylor & Francis 2006) 875
[25]Julia O’Donoghue, ‘Louisiana approves unanimous jury requirement, scrapping Jim Crow-era law’ (The Times-Picayune, Nov 7, 2018)<https://www.nola.com/crime/2018/11/louisiana-approves-unanimous-jury-requirement-scrapping-jim-crow-era-law.html> accessed December 28, 2018
[26]Juries Act 1974, s 17(1)
[27]Henry RL, ‘Jurisprudence Constante and Stare Decisis Contrasted.’ (1929) 15(1) ABA J 11, 11-14
[28]Willis-Knighton Med. Ctr. v. Caddo-Shreveport Sales & Use Tax Comm’n., 903 So.2d 1071, at n.17 (La. 2005). (Opinion no. 2004-C-0473)
[29]Royal v. Cook, 984 So.2d 156 (La. Ct. App. 2008)
[30] Ibid.
[31]Corbett SS, ‘Reading the Preamble to the British North America Act, 1867.’ (1998) 9(2) Const F 42, 42
[32]Albert R, ‘The Conventions of Constitutional Amendment in Canada.’ (2016) 53(2) Osgoode Hall L J 399, 401
[33]Peter H. Russell, Christian Leuprecht, Essential Readings in Canadian Constitutional Politics (1st edn, University of Toronto Press, 2011) 261
[34]John M Evans, “Current Constitutional Issues in Canada” (2013) 51:2 Duq L Rev 323, 324
[35] Ibid.
[36]Jan M. Smits, Elgar Encyclopedia of Comparative Law(1st edn, Edward Elgar Publishing Limited 2006) 117
[37] Ibid.
[38]Jan M. Smits, Elgar Encyclopedia of Comparative Law (1st edn, Edward Elgar Publishing Limited 2006) 117
[39]Janet Whittle, Canada Business: The Portable Encyclopedia for Doing Business with Canada (1st edn, World Trade Press1997) 207
[40]Michael Keating, Guy Laforest, Constitutional Politics and the Territorial Question in Canada and the United Kingdom: Federalism and Devolution Compared (1st edn, Springer2017) 3
[41]Lefroy, A. H. F. Canada’s Federal System; Being a Treatise on Canadian Constitutional Law under the British North America Act. Toronto, Carswell Co.; etc. p. 63
[42]David Feldman, English Public Law (2nd edn, Oxford University Press 2009) 128
[43]Singh v Canada (Minister of Employment and Immigration), [1985] 1 S.C.R. 177
[44]Bryan Gibson, The New Ministry of Justice: An Introduction(1st edn, Waterside Press 2007) 79
[45]R v Secretary of State for Transport, ex parte Factortame Ltd (No. 2) [1991] 1 AC 603
[46]A and others v Secretary of State for the Home Department [2004] UKHL 56
[47]Smith, William R. History of Wisconsin in Three Parts, Historical, Documentary, and Descriptive. Madison, Beriah Brown. p. 24
[48]American History Leaflets.Colonial and Constitutional. New York, A. Lovell & Co. p. 22
[49]Hart, Albert Bushnell; et al. American Nation: A History. New York, Harper & Bros. p. 81
[50]Snyder DV, ‘Possession: A Brief for Louisiana’s Rights of Succession to the Legacy of Roman Law.’ (1991-1992) 66(6) Tul L Rev 1853, 1854
[51]Daniow J, ‘Planiol Citations by Louisiana Courts: 1959-1966.’ (1967) 27(2) La L Rev 231, 231
[52] Ibid.
[53]Andrew M. Riggsby, Roman Law and the Legal World of the Romans (1stedn, Cambridge University Press 2010) 1-4
[54]Bissohop WW, ‘Modern Roman Dutch Law .’ (1908) 24(2) L Q Rev 157, 161
[55]Lyman, Theodore Jr. Diplomacy of the United States: Being an Account of the Foreign Relations of the Country, from the First Treaty with France, in 1778, to the Present Time. Boston, Wells and Lilly. p. 261
[56]Junius P. Rodriguez, The Louisiana Purchase: A Historical and Geographical Encyclopedia(1stedn, ABC-CLIO 2002) 43-45
[57]Morteau O and Parise A, ‘The Bicentenntial of the Louisiana Civil Code (1808-2008).’ (2009) 2(1) J Civ L Stud 195, 197
[58]Dainow J, ‘Civil Code and the Common Law .’ (1956-1957) 51(6) Nw U L Rev 719, 720
[59]Moreteau O, ‘The Louisiana Civil Code in French: Translation and Retranslation.’ (2016) 9(1) J Civ L Stud 223, 231
[60]Rose, J. Holland; et al., Editors.Cambridge History of the British Empire. New York, Macmillan Co. p.796
[61]KonradBongard, ‘A History of Common and Civil Law in Canada’ (Pardon Applications of Canada, June 19, 2014) <https://www.pardonapplications.ca/articles/history-common-civil-law-canada/> accessed December 28, 2018
[62]Johnson, George. Canada: Its History, Productions and Natural Resources. Ottawa, Dept. of Agriculture of Canada. p. 34
[63]Schwartz, Bernard. Code Napoleon and the Common-Law World.New York, New York University Press. p. 383
[64] Jan M. Smits, Elgar Encyclopedia of Comparative Law (1st edn, Edward Elgar Publishing Limited 2006) 116
[65] E. FABRE-SURVEYER, ‘The Civil Law in Quebec and Louisiana’ 1 La. L. Rev. (1939) 649, 649
[66]Schwartz, Bernard. Code Napoleon and the Common-Law World.New York, New York University Press. p. 347
[67]Government of Canada, ‘Interpretation Act (R.S.C., 1985, c. I-21)’ (Justice Laws Website, December 19, 2018) <https://laws-lois.justice.gc.ca/eng/acts/I-21/page-2.html?wbdisable=true> accessed December 26, 2018