CHAPTER 10

Hybrid Jurisdictions of the Common Law and Civilian Traditions

Until this point in our discussion, the common law tradition and the civilian tradition have been treated as separate and distinct legal systems. However, there is not always an apparent distinction to be made as to which system is operative in a particular jurisdiction. On occasion, due to a unique history and exposure to multiple legal regimes, certain nations, states or territories have retained elements of both the common law and civilian traditions.1 These systems, which do not patently align with the categories of common law or civilian traditions, invite us to consider the divide between the two systems not as a binary, either-or proposition, but rather as a field of differing approaches and formulations of law. We examine in this chapter so-called “hybrid” or “mixed” jurisdictions, which display elements of both legal traditions in the manner in which their laws are arranged and applied.

The American state of Louisiana represents one such hybrid, which fuses elements of both legal traditions.2 It never received English ­Common Law unlike other American states. Rather, it has historically operated according to a legal system modeled on the French law, and still applies a codified system of law, which traces its origins to the French Civil Code of 1804.3 The mere presence or absence of a codified system of laws, however, does not definitively settle the question of whether a particular jurisdiction is common law or civilian in nature. The private law of Scotland (Scots law) incorporates many distinctively civilian concepts and even employs civilian terminology, though it is a system of statutory law (non-codified); its political and historical relationship with England has ensured that the common law and statutory law of England have influenced the development of Scots law as well.4 The practical consequences of mixed legal system and heritage are the focus of this chapter.

Hybrid Jurisdictions

Hybrid or mixed jurisdictions can be best understood as nations or political subdivisions of a nation in which the substantive law, as well as the methods of deciding cases, bear prominent features that are characteristic of two or more legal traditions. We will center our discussion on the hybrid jurisdictions of Scotland and the State of Louisiana as they are exemplary jurisdictions which blend elements of the common law and civilian traditions. Moreover, they are representative of the diversity of the larger division of hybrid jurisdictions, having incorporated common law and civilian elements in a manner quite different to one another. The phenomenon of hybrid jurisdictions owes to fact that few nations are politically inert; due to trade, changes in colonial or political allegiance, and the spread of different legal philosophies, all nations are subject to evolution within their legal system over time. What distinguishes hybrid jurisdictions is that their substantive law and means of deciding cases have never fully assimilated to a single legal tradition, such that one could comfortably classify them as being, in our case, common law or civilian.

Scotland

Before its political unification with England through the Acts of Union in 1706 and 1707, Scotland was an independent kingdom. As a result of these Acts, Scotland came to form part of the United Kingdom, though it has retained a separate identity in key respects, such that it is a defined and separate jurisdiction within the United Kingdom and has its own devolved parliament with exclusive competency to legislate in certain areas. The law practiced in courts in Scotland is known as Scots law, and is generally accepted as a mixture of Roman (civil) law elements with the common law of England.5 The prominence of these two features is due to a period of immense exposure to Roman law, as Scottish lawyers returned from continental European universities with the civilian tradition in tow, from roughly 1532 to the Napoleonic Wars (early 1800’s). After this, because of its union with England, the influence of the common law and statutory law of England has gradually increased.6

Law and Precedent in Scotland

Scotland, as a separate jurisdiction, operates a separate courts system, though its judiciary is ultimately subordinate to the Supreme Court of the United Kingdom (England, Scotland, Wales, and Northern ­Ireland). In the English system, there are two types of lawyers, barristers and solicitors. Generally, solicitors administer the legal cases of their clients and then “brief” (present the case to) a barrister, who in turn argues the case before a court on behalf of the solicitor and the client. This division within the legal profession is reproduced in Scotland, with the analogous functions of solicitors and “advocates” within its own system. Although much of the substance of Scots private law is civilian in nature and terminology, it is not codified, though codification is generally a sure sign that a jurisdiction follows the civilian tradition. Rather, Scots law is based, in the main, on statutory law and its common law. Accordingly, the doctrine of precedent is active in Scotland, which also distinguishes it from archetypal civilian jurisdictions. However, the substance of, and terminology7 employed by, Scots law, particularly private law (within this, contract law) is redolent of the civilian tradition.

The Law of Contract in Scotland: The Example of Binding Promises

As we saw in Chapter 3, in the Anglo-American tradition, the main elements of contract formation are offer, acceptance, and consideration. Indeed, to this latter point, the question of consideration looms large in a common law analysis of whether a contract has been formed. In Scotland, however, certain types of contracts (obligations, as they are known there) are enforceable, even without consideration. For example, if I attend a charity event in Scotland for a society for the blind, and, exceptionally moved by the cause, I leave a card for them that night that I write and sign stating I will make a $100,000.00 donation to the society next week, I may be held to my promise. Scotland considers such promises, signed, and evidenced in writing, as gratuitous unilateral obligations,8 which amounts to elaborate terminology for an enforceable promise. For this to happen, three elements must be present: there must be a promise made (as opposed to an offer), it must be in writing, and it must be signed. From this, it would seem that the card I left with the Scottish society for the blind, is an enforceable contract. Similar to the civilian tradition, the doctrine of consideration is not operative in Scots Law; therefore, certain promises or contracts without consideration can be enforced. In another case, Morton’s Trustees v. Aged Christian Friend Society of Scotland,9 the court held that a written promise to donate a £1,000.00 to the Society was a valid contract, capable of being enforced.

As we saw earlier, the concept of Equity operates in the English law system to ensure that injustice does not occur in the application of the law in particular cases. The act in question effectively provides and equitable remedy, called Personal Bar,10 as well for promises that are not in the valid form (signed, in writing) such that they might still be enforced. If I make promise and I know and approve of a person acting or not acting in a certain way based on that promise, such that the person is materially and adversely affected, I can still be held to my promise. Returning to our example, if I promise orally to the director of the society that I will give her £1000.00 next week in order to purchase assistive technology software for their clients, and on Monday of the next week, the Director calls me to remind me of the donation I made and says she is going out to by the software that day, and I tell her to go ahead, I cannot take back my promise on Tuesday, when she approaches me with the receipt, even if my promise lacked the proper form to be normally enforceable.11 So, in essence, Personal Bar in Scotland functions in the same way as the equitable doctrine of estoppel evidenced in English law. This synthesis of unilateral obligations theory from the civilian traditions and equitable remedies akin to English law provide a good illustration of the bearing and status of being a mixed jurisdiction may have upon the law applicable to contracts.

The State of Louisiana

From its early history as a European settlement, the territory that would one day constitute the modern-day state of Louisiana has been subjected to several legal regimes. Originally controlled by the French, the territory received the Custom of Paris (set of laws prior to the codification in 1804) and other French law until the territory was ceded to the Spanish in 1763, which saw the imposition of Spanish law. In 1803 the territory was retroceded to France, and 20 days later the United States as they existed then took possession of the territory in the Louisiana Purchase.12 The French influence on the law and people of the area remained however, and before it officially became a state in 1812, it promulgated a digest of laws in 1808, which was largely a reproduction of the French Civil Code of 1804, as the majority13 of the Louisiana code articles were taken from the French code, with a smaller number provisions and legal regimes find their antecedents in Spanish law (in the main, the Siete Partidas). The codification of laws in Louisiana, along with its theoretical and practical ties with French law and jurisprudence, is perhaps the most evident link between the two legal cultures. In fact, for its first two iterations, the code was drafted in French, and later translated to English. Despite their civilian heritage, the state courts in Louisiana procedurally are similar to the common law tradition, including civil juries, and rules of evidence and court procedure which operate similarly those of other states. Much as in the case of Scotland, Louisiana has faced increasing influence from the common law, as the only one of the 50 states not to adhere to this tradition. Yet the civilian character of the Louisiana law persists. We will see in the illustrations that follow that it remains a jurisdiction of decidedly civilian character.

Jurisprudence Constante and the Civilian Influence in Louisiana Courts

Because the Louisiana Civil Code began as essentially a reproduction of the French law, the interpretation of French code articles by French courts which are reproduced in the Louisiana code are regarded by Louisiana courts as highly instructive. The Louisiana Supreme Court once remarked that, “where a Louisiana Civil Code article has been derived from a French Civil Code article, the interpretation of the latter is highly instructive for, if not determinative of, the interpretation of the former.”14 As illustrated by this quotation, French jurisprudence has an enduring impact on court decisions in Louisiana. The Louisiana Civil Code itself retains much of the substance and structure of the French Civil Code.

Certain divisions of the code, however, are more directly influenced by the relatively brief experience of the state with Spanish rule. The influence of Spanish law on the Louisiana code is particularly evident in the laws surrounding the property of married couples, knows as the community property regime, which are shared between Louisiana and other states15 whose territory was previously under Spanish rule. That said, the law of contract in Louisiana closely follows the substance of French law. As with Scots law, there is no requirement for consideration for a contract to be enforceable. Conversely, the Louisiana code has requirements for contracts that are not present in common law jurisdictions. The Code reproduces French classifications of contracts, under the wider heading of obligations (Title III) and has the requirements of cause (§1967) and object (§1973), which were reproduced from the French code.16 Because of the civilian nature of its contract law, Louisiana adopted the UCC later than its common law peers and in a modified form to make it patent with its own law. Also, Louisiana does not have a Statute of Frauds per se, but several code articles and legislation impose requirements as to the form certain contracts such as donations or the transfer of immovables (real property), that they be evidenced by authentic act (§1833, requirements of notarial form). Accordingly, in its form and substance, Louisiana law is immanently civilian in nature.

Louisiana state courts also follow the civilian doctrine of jurisprudence constante; the state Supreme Court has affirmed on multiple occasions that the doctrine of precedent is not operative within state courts. In the case Willis-Knighton Med. Ctr. v. Caddo Shreveport Sales & Use Tax Comm’n,17 the Louisiana Supreme Court stated that the adoption of a certain interpretation of a civil code provision by a state appellate court on one occasion did not create a binding precedent in this regard, and combined with divergent interpretations in lower courts, it amounted to a “slender reed to support an argument in favour of jurisprudence constante.”18 Accordingly, a high standard is required to show that jurisprudence constante exists as to the interpretation of a legal provision.

Even if one can demonstrate that jurisprudence constante exists to support a proposed interpretation, the Court stated that it is only “considerable persuasive authority,”19 not binding precedent. The doctrine of jurisprudence constante is firmly entrenched in the legal reasoning methods of Louisiana state courts, to such an extent that any reliance on notion of common law precedent would seem unduly restrictive; as one commentator states: “[o]ur courts have always followed, and show every disposition to continue to follow, the essentially civilian judicial technique of never letting today become either the slave of yesterday or the tyrant of tomorrow.”20 Thus, the concept of jurisprudence constante fosters a sustained re-engagement with the positive law and past decisions with each new case, to determine whether a consensus has been formed within the jurisprudence of the court on a certain issue; past cases are only useful insomuch as they aid future courts to determine this consensus and evaluate its acumen:

Theoretically, then, since the statutory basis is the sole source of law, the prior decisions, being merely interpretations of it, may be disregarded whenever the present court is convinced that the precedents are erroneous, however numerous and however ancient or recent.21

The doctrine of jurisprudence constante throws into sharp relief the civilian character of Louisiana courts.

The substantive law surrounding contracts, obligations in the civilian tradition, differs as well from that of other, common law states. Courts have taken considerable care to point out the differences that exist in relation to concepts between the common law and civilian traditions and have proceeded to evaluate cases in civilian terms. For example, the common law remedy of unjust enrichment is a cause of action that allows individuals to obtain equitable relief in some circumstances, even where a valid contract was not formed. The Louisiana courts adopt a similar doctrine, under the civilian heading of actio de in rem verso, to effect the same justice. In We the People Paralegal Serv. v. Watley, the Court stated that, on previous occasions, it

addressed the distinction between the civilian concept and the common law concept of quantum meruit. Under the civilian concept, a contract exists, and the court merely supplies a price. Under the common law concept, which is analogous to actio de in rem verso or unjust enrichment, no contract exists, and the court provides a substantive basis for recovery. In the instant case, where it has been determined that no cause of action exists for enforcement of the alleged contract, We The People may still seek recovery under the alternative theory of unjust enrichment. The following five requirements must be satisfied for a showing of unjust enrichment, or actio de in rem verso: (1) there must be an enrichment, (2) there must be an impoverishment, (3) there must be a connection between the enrichment and resulting impoverishment, (4) there must be an absence of “justification” or “cause” for the enrichment and impoverishment, and (5) there must be no other remedy at law available to plaintiff.22

As illustrated by the quotation, the Louisiana courts have devoted much effort to distinguishing concepts within their own law from their common law counterparts to reach decisions which are congruous with the provisions of the civil code.