Louisiana Civil Code: From "Continental Law" To "Mixed Law"

The laws of the state of Louisiana is studied in this research, focusing on two outstanding characteristics of laws in mixed jurisdiction, the "Second Reception" phenomenon as well as the causations therein sampling on Louisiana’s four civil codes. Researching methods used here include historical method, comparative method, statistical analysis method and other researching methods. The article is divided into six parts.The introduction part of this article demonstrates respectively the significance of the subject, both domestic and foreign researching status, especially the current researching status abroad about the mixed legal system theory and the civil code of Louisiana. In addition, research data, the methods and ideas used in the research and the structure of the whole paper are also introduced in this part.First chapter mainly explains the basic theory of mixed legal system, and introduces generally the law of Louisiana as a typical kind of mixed law system and its position therein, its global impacts and the significance of promoting Louisiana law under the background of globalization of the civil code. First of all, the concept of mixed legal system, mixed areas of the law and characteristics from the perspective of academic history are presented. From the perspective of academic history, "mixed" means that the law is mainly composed of elements from both common law system and continental law system, and to a certain extent. It is reflected in two aspects:firstly, the most intuitive one is the dualistic legal structure, namely public law in common law system and private law in continental law system; secondly and more importantly, the development of the mixture has proceeded widely, deeply but unevenly, exhibiting different mixing levels in different areas. The second characteristic demonstrates the key scenario. Secondly, the laws of the state of Louisiana and Louisiana civil code are generally introduced in the light of the two characteristics of mixed jurisdiction. Thirdly, the impact of Louisiana civil code on the civil codes of the United States and other countries or regions has been summarized. Finally, the impacts of globalization on the development of law as well as the pattern of legal systems of the world, and the significance of promoting Louisiana law under the background of integration of the global legal systems are discussed. The laws of the state of Louisiana should be categorized into the kind of mixed jurisdiction. Louisiana civil code also plays an important role on the United States and other regions in the world.The second, third and fourth chapters focus on the laws of the state of Louisiana with regard to the two characteristics of mixed jurisdiction law. The second chapter mainly focuses on the first characteristic: the dualistic legal structure of mixed jurisdiction. First of all, based on the three sovereign changes in the area of Louisiana in the history, the paper introduces the legal history in Louisiana during the colonial period. Louisiana had been colonized by France and Spain for nearly one hundred years, rendering it a continental law system state at the time of Louisiana Purchase. Secondly, the formation of the dualistic legal structure of Louisiana and its presentation are fully discussed. At the time of Louisiana Purchase, political factors dominated the development of its political system and public law system. In order to realize federal unity, the judicial system and procedure law of Louisiana completely adopted common law tradition, while in the field of private law, culture and surpassing politics dominated. Ancient people of Louisiana transformed their cultural advantages into political advantages, and took control of the legislature at the time, thus preserving the tradition of continental law. The tradition of continental legal system was eventually established with the "Digest of 1808", and the promulgation of Louisiana Constitution of 1812 means the final establishment of Louisiana legal structural duality. At the end of this part, the actual source of the "Digest of 1808" was researched, and provisions in the fields of property law, debt law and tort law between the "Digest of 1808" and the 1804 " French Civil Code" were compared respectively for subsequent chapters about the comparison between origins of the civil code.The third and fourth chapters focused on the second legal characteristic of mixed jurisdiction. Sampling on the four civil codes of Louisiana, the rule of Second Reception of common law by Louisiana was exploited from the perspective of legal sources. Firstly, reasons for promulgating the 1825 "Louisiana Civil Code",1870 "Revised Louisiana Civil Code" and the current "Louisiana Civil Code" were analyzed. The basic reason lies in the out-of-balance of the French culture with American politics due to changes in the size of French and American population, resulting in the gradual infiltration of common law-Second Reception. Secondly, based on the description of legal sources, the paper proceeded a comparison on the Second Reception by current Louisiana Civil Code of common law respectively in fields of property law, obligation law and tort law. The four Louisiana civil codes shows that tort law deviates furthest from French law, and obligations law also deviates greatly, on the contrary, property law stays in safe.Based on the third chapter, the fourth chapter specifically discusses provisions and terms from the current "Louisiana Civil Code" in the fields of property law, debt law and tort law. Current "Louisiana Civil code" is generally introduced. The current revision of the civil code has three characteristics:the "old house, new decoration" mode, the large-scale digestion and absorption of the common law system, and the last is to insist on its French law tradition while keeping innovation. Secondly, from the aspect of specific legal mechanism, property law, debt law and tort law were introduced respectively. Property law in Louisiana still retained French law tradition, and absorbed the mechanisms in other countries of continental law system, realizing innovation; obligations law evolved more systematically while integrating into itself many regimes in common law system, emerging innovated laws endowed with characteristics of both continental law and common law; tort law absorbed the greatest impacts from common law, and many mechanisms in tort law are developed on the basis of the common law, while the French-style general terms becoming concrete gradually. Finally, comparison among the property law, debt law and tort law in the current civil code further proves the conclusion of the third chapter.Based on the conclusion of the third and fourth chapters, the fifth chapter analyzes the causation for fusion of continental law and common law in the state of Louisiana. As to the common law factors in current "Louisiana Civil Code", courts and judges, legal education, the federal system, the state law unifying movement and many other factors altogether prompt the Second Reception of common law system by Louisiana, contributing to the mixture of continental law and common law. But compared to other external factors, this paper holds that in the Second Reception process, courts and judges played a crucial role. Firstly, American legal realism, through its influence on judges and legislatures of Louisiana, had played an important role in the process of legal development in Louisiana prefecture. Secondly, causation of mixture of continental law and common law in Louisiana are analyzed from three perspectives:multiplicity of private law sources, complementary judicial methods and multiple roles of judges. Finally, analysis on reasons for different mixing degrees in fields of property law, debt law and tort law showed that judge’s discretion plays an important role therein.In the sixth chapter, conforming to the spirit in the study of comparative law, the author presented certain points to be paid attention to in the codifying process of Chinese civil code: the method of codification of civil code, the general rule to be followed in obligation law, structure of tort law in civil code structure, relationship between civil code and right of discretion, Civil code and legal transplant, localization of law, etc.