The Sources of Law and the Value of Precedent: A Comparative and Empirical Study of a Civil Law State in a Common Law Nation

Abstract

This Article provides a contemporary and comparative examination of the sources of law and the value of precedent in Louisiana, a state whose judicial system resembles those of common law judicial systems of the United States, but whose private civil law is rooted in the civil law traditions of France and Spain, which were prevalent in the territory of Louisiana in the late eighteenth century and early nineteenth century. The Article examines the doctrines of "stare decisis" and "jurisprudence constante" and the value of precedent in select common law and civil law jurisdictions, then focuses on Louisiana as an example of a jurisdiction which, like many jurisdictions worldwide, has valued precedent in such a way that it is extremely influential, but not always binding on the courts. The Article refers to this practice as "systemic respect for jurisprudence" because the value of a precedent is directly related to the status in the legal system of the court deciding the prior case. An empirical study of the Louisiana judiciary on the sources of law and the value of precedent in Louisiana complements a discussion of these issues based on scholarly works on Louisiana law and Louisiana judicial opinions. The author concludes that many jurisdictions, both common law- and civil law-based, are gravitating to "systemic respect for jurisprudence" and away from strict use of the traditional stare decisis and jurisprudence constante doctrines. The Article then proposes law to codify the principle of systemic respect for jurisprudence.

Keywords: Louisiana, civil law, stare decisis, precedent, jurisprudence constante, comparative law