N. Stephan Kinsella*
(Version submitted to Louisiana Law Review; slightly edited version published in Vol. 54, No. 5 (May 1994)) Alone in the common-law ocean of these United States, Louisiana is an island of civil law. Louisiana’s civil law is embodied in the Louisiana Civil Code, much of the text of which was derived in part from the Code of Napoleon of1804.1 American common-law lawyers often encounter Louisiana’s civilian terms and concepts when dealing with lawsuits or transactions in Louisiana. No doubt they (and even Louisiana lawyers) are sometimes confused. How many common-law lawyers know of naked owners, usufructs, virile portions, vulgar substitutions, synallagmatic contracts, mystic testaments, antichresis, whimsical conditions, orlesion beyond moiety? Even many Louisiana-trained attorneys are unfamiliar with terms such as amicable compounder, jactitation, mutuum, and commodatum. Thus a dictionary of these and other civil law terms might come in handy to some practitioners. In the main table below, various Louisiana civilian concepts are defined, and correlated with common-law concepts where possible. The civilian terms definedin the table generally have some counterpart in common-law terminology, are interesting or unique Louisiana civilian concepts, are different uses of words than in the common law, or are simply used more often in Louisiana than in her sister states. Some of the Louisiana expressions discussed herein are used commonly in states other than Louisiana. Similarly, common-law terminology is usedincreasingly in Louisiana as a result of the influence of Louisiana’s 49 sister states, where civilian terminology should be properly used instead. For example, the common-law term stare decisis is often used, erroneously, in Louisiana instead of jurisprudence constante (see below); the civilian concept “immovable property” has been used in Texas statutes.2 Therefore, many of the civil-law and common-lawconcepts discussed herein are sometimes used in a state with the other legal system. Usage of the Tables Terms printed in SMALL CAPS are discussed in separate entries in the table. A crossreferenced term such as PROCEDURE--POSSESSORY ACTION refers to the concept “possessory action,” which is discussed under the entry “Procedure.” Terms defined are sorted alphabetically. In case of phrases, thefirst letter only of the phrase is capitalized. Where several related concepts are discussed together, they are placed alphabetically according to the spelling of the first term mentioned, and cross-references elsewhere in the table refer the reader to the appropriate location.
LL.M. (International Business Law) (1992), University of LondonCKing’s College London; J.D. (1991), Paul M. Hebert LawCenter, Louisiana State University; M.S. Electrical Engineering (1990), B.S.E.E. (1987), Louisiana State University. The author is an associate in the intellectual property section and international law practice group in the Houston office of Jackson & Walker, L.L.P., and is licensed to practice in Louisiana and Texas, and before the U.S. Patent and Trademark Office. [Updated author info as of 2002:see www.KinsellaLaw.com.] The author would like to thank J. Lanier Yeates and Professor Robert Pascal for their helpful comments on an earlier draft of the article. Of course, any remaining mistakes are those of the author alone.
Civil Law to Common Law Dictionary · Kinsella
For example, the table entry “Collateral relations, Propinquity of consanguinity” discusses both theseconcepts, and is alphabetically sorted under the first term. Additionally, the separate table entry “Propinquity of consanguinity” refers the reader back to the “Collateral relations” entry. Common-law terms are printed in bold print in the main table. A second table is provided listing significant common-law terms mentioned in the first table, and providing a correlation to the appropriate entry...