Custom as a Source of Law in Louisiana

Abstract

Custom is an ancient source of law that predates codified or written law. Once law began to be codified, custom filled the lacunae. Custom’s status as a source of law has declined in modern times, however, as to exist it requires a homogenous group of people with shared values who feel bound by custom’s unwritten rules. In 1987 Louisiana amended article 1 of its Civil Code to state that Louisiana’s sources of law are legislation and custom. The comments to the article now state that custom is a primary source of law. But Louisiana courts have not decided a case based on true custom in almost a century, and Louisiana’s size and diversity make it unlikely the populace feels bound by any unwritten law. The only possible modern source of customary law in Louisiana is jurisprudence constante — repeated decisions in a long line of cases interpreting a rule of law. Legislative history, however, reveals that jurisprudence was never intended to be a primary source of law in Louisiana. This Article briefly reviews the historical basis of consuetudinary law, examines the legislative history of the 1987 amendment to the Louisiana Civil Code, surveys Louisiana courts’ treatment of custom, and looks at custom’s present decline as authority. It concludes by suggesting that custom no longer exists as a primary source of law in Louisiana and that the Civil Code and its comments should be amended to clarify that jurisprudence constante is only a secondary, persuasive source of law.