Les Grands Axes d’une Réforme Judiciare Dans Un Pays Démocratique
By, Dr. Winston W. Riddick Attorney and Professor of Law Southern University Law Center Baton Rouge, Louisiana, U.S.A.
Palais de Justice de Port-au-Prince, Haiti – 20 Mai 2003
Three great revolutions almost two hundred years ago-American, French and Haitian-began the world’s movement toward goals of democracy, self-determination, recognition of fundamental rights of man, the rule of law, and justice for minorities and the disadvantaged. The first two republics of modern times-the U.S. and Haiti-were truly turning points in world history. Ironically, this struggle for the attainment of these goals continues in the United States, Haiti, Iraq, Afghanistan-and every other nation throughout this world. Substantial progress has been made; but these idealistic goals have still not been fully achieved in much of the world.
I am honored to be here with you at this particular time in History as Louisiana and America celebrate the Louisiana Purchase of 1803 and you begin celebration of the Haitian Revolution. It is most appropriate that we should celebrate together, because: we share idealistic goals and values growing out of our revolutions and your ancestors played a major role in the creation of Louisiana.
Without your uprising and revolt against the French and the destruction of the French Army occupying Haiti, Napoleon would not have sold the Louisiana Territory to the United States. At eight cents per acre and $15 million, it was one of the best real estate deals ever transacted by two nations. The acquisition of the Louisiana Territory was the beginning of the establishment of the U.S. as a major world power.
In addition to your country’s revolutionary contributions and assistance in the Louisiana Purchase, your country’s first major out-migration of Haitians was to New Orleans. When you are in Louisiana, please observe our architecture, food, music, our surnames, our faces-and you will see the substantial contribution Haitians have made to our state and nation.
Today I would like to share with you my thoughts on judicial reform in a democratic society. There are three areas that need to be addressed. First, legal systems must change and be flexible to achieve reform in democratic societies. Secondly, most democratic societies have similar goals and values. Thirdly, establishing acceptance and implementation of the goals, ideals and values of our revolutionary forefathers is our most important and difficult task.
Changing Legal Systems
Western democratic societies have existed with civil law systems and common law systems for centuries. The rule of law, judicial independence and competence, fundamental rights and freedoms and economic progress have been achieved in both civil and common law systems. In the 21st century, increased travel, communication, trade, international capital markets and investments will all lead to standardization and globalization of legal standards.
The 20th century witnessed the use of “mixed jurisdictions”, legal systems, which hopefully combine the best of both civil, and common law systems. The countries where legal systems remained “pure”, either civil or common law, tend to be those that made the least progress in development of democratic institutions and economic growth. This is even true within the United States.
Let me use Louisiana’s evolving legal system to illustrate the rise of “mixed jurisdictions.”
In 1803, when the U.S. purchased Louisiana, the United States faced its first great democratic challenge with pluralism and a different legal system. The United States was English, Protestant and a common law system. Louisiana was French-Spanish, Catholic and a civil law system.
For many years, from 1812 after Louisiana became a state, until the 20th century, Louisiana continued as a bilingual Catholic society with our laws written, printed and implemented in both French and English. Our civil codes and those of France, Haiti and other nations with civilian traditions were remarkably similar, if not identical.
Following the U.S. Civil War, the Louisiana uniqueness as a civil law system began a slow but steady decline. Introduction of common law terminology and legal administration during and after reconstruction was most widespread and most apparent in court procedures.
To illustrate this change from a civilian system to a mixed jurisdiction (which Louisiana now has), we need to understand the social, economic and cultural changes Louisiana experienced in the 20th century. Louisiana is now an urban state-having experienced a migration from rural areas to the cities because of economic dislocations and opportunities. Simply put, people who couldn’t make a living on the “farm” moved to the cities to find jobs.
Universal education-in English-was mandated for every person under 16 years of age. Since children were educated in English, they were unfortunately discouraged in school and frequently in their homes from speaking French. This policy resulted in the decline of French in our society. For example, in 1940, estimates are that over 1 1/2 million of the 2 1/2 million of Louisianans spoke some French. Many read and wrote French in their work and personal lives. In the 2000 Census, only 250,000 Louisianans out of 4,250,000 citizens still had French speaking capabilities.
The decline of French language ability is symptomatic of a broader underlying change-those who spoke French often lived isolate and insular lives from the overall majority English/American culture. Improved transportation, communication and an influx of “Anglos” to explore for oil and gas provided new language and social integration of the French into “oil field” jobs and different life styles. World War II sent French-speaking Louisianans worldwide and changed their views of life.
The consequence of these economic and social changes was a continuous battle over whether Louisiana should be a pure civilian jurisdiction or become “a mixed jurisdiction”.
Economic necessity caused a change to a mixed jurisdiction. Oil and gas explorers came to Louisiana and were not familiar with our laws of immovable property-ownership, possession, and usufruct, personal and predial servitudes. The resulting clash of legal systems and economic opportunities-ultimately resulted in a patchwork of “common laws” adopted by the Louisiana Legislature which did not follow civilian property concepts. Eventually, these conflicts were resolved by the adoption of a Mineral Code-adopting “new” civilian concepts and terminologies that essentially implemented many common law terms and concepts from other states. For example, we now have prescription of mineral rights and a “mineral servitude”-which is a predial servitude.
Many attorneys from common law states like Louisiana’s Mineral Code better than common law because our Mineral Code provides in a civilian way, a logical, coherent, systematic establishment of general rules and principles of law. The petroleum industry flourished because investors wanted clarity and specificity in the law, so they would know the “rules” of the investment game.
Does Haiti have a problem attracting foreign investments because of lack of clarity and specificity in the law? Do you (like Louisiana did and still does) need to change some of your laws to attract outside investors and investments or can you improve the economic opportunities of your citizens without outside investors?
These changes in Louisiana’s civil system could not be limited to one area of the law. Once change began-other areas came under pressure to change.
Many more non-civilian concepts have been adopted in Louisiana. Most notable are:
- A Trust Code;
- The Uniform Commercial Code (UCC)-adopted in 49 states and now
replacing the Louisiana negotiable instruments law; and
- Property law concepts such as bond for deeds (conditional sales), and building restrictions.
Also we have seen substantial diminution of civil law concepts designed to reinforce and preserve the family unit. Examples are:
- No fault divorce, and
- The doctrine of forced heirship has been severely limited and, as a practical matter, repealed.
Many, including me, who believe that Louisiana’s civil legal system should be changed slowly, if at all, resisted these changes and others.
The changes, however, were necessary if Louisiana was to participate in the mainstream of U.S. economic growth and development. Our resistance to change, in addition to other factors, has resulted in Louisiana ranking 49th out of 50 states in per capita income. During the 20th Century, Louisiana led the nation in poverty, illiteracy, corruption, lack of job opportunities and almost every other “bad” factor designating failure.
Was this all caused by our civil law system or our French-speaking population? Of course not! But our legal system and our language lead to an insular nature for our state-we were in many ways treated as “a separate country” within a country.
The result was a vast migration out of Louisiana to other states-a Louisiana Diaspora. Although our young, educated and productive citizens loved Louisiana, they moved to other states to find jobs and better educational opportunities for their children.
When I met with Monsieur Leslie Voltaire, Haitian Minister of Diaspora, in September 2002, he described his work and it reminded me of the Louisiana Diaspora.
Could we have changed our legal system faster and avoided the Louisiana Diaspora? No, because many other factors encourages the Diaspora. But, I am convinced that our failure to change and modify the legal system contributed to the Diaspora. A flexible approach to legal systems and legal concepts that recognizes the need to adapt to a changing world are important.
Louisianans “voted with their feet” when they chose “to walk away” from our state. Most citizens do not know or care what the legal system is-as long as it encourages economic growth, stability and personal opportunities.
Democratic Societies: Common Values and Goals
Three great revolutions-American, French and Haitian-were uprisings by the “common” man against their oppressors. The Rights of Man and the Declaration of Independence were both profoundly influenced by Voltaire, Rousseau, Montesquieu, and Locke. They recognized:
- The natural and legal rights of man;
- The need for limited and representative government;
- The necessity of checks and balances in legal systems to prevent tyrannical rule;
- The rule of the majority in democratic societies, but with protection of the rights of minorities; and
- Economic security and freedom.
Many countries adopted constitutions and systems of laws to achieve the goals-Haiti and Louisiana share the sources of our civil laws-the Napoleonic Code, The Siete Partidas, the Justinian Code, and others. We share legal methodologies, concepts and general principles of law.
The problem is not in the sources of our laws, the specificity of our civil codes and constitutions or the procedure by which we implement these legal precepts. All of these are important in establishing an independent judiciary, the rule of law and democratic institutions. But sometimes we believe reform is drafting a new constitution or law.
My belief is that change and reform must come from citizens. If citizens do not participate in the political process, especially in selecting those who govern, then they probably will not support those democratic institutions.
If you start with the premise that social, economic, political, religious and cultural values of citizens must be taken into account in building an independent judiciary, the rule of law or any democratic institutions, then you must begin the process with determining what are the shared goals, values and expectations of the citizens.
There are times when these shared goals, values and expectations are difficult to determine. Leadership sometimes identifies them and at other times must provide the development and acceptance of ideas by citizens. Permanent change has the best chance at success when there is widespread acceptance and support of a plan for an independent judiciary, the rule of law or democratic institutions.
Establishment and Implementation of Goals and Values
A. Development of Acceptable Goals and Values
Goals, values and expectations of citizens are determined by many variables-e.g, a country’s political history and culture; the strength and independence of historical institutions, citizen expectations of governments and the political process. Development of a consensus among government officials, political, civic and religious leaders, and ordinary, citizens about the proper role of a judiciary in a democratic society is important. If we can’t define and agree on the meaning of an independent judiciary and the rule of law, how then can we develop the necessary support for these concepts and institutions?
B. Selection of Judges: Appointment vs. Election
The U.S. solution to this problem was to have both elected and appointed judges. Many elected judges handle only minor disputes and are elected by constituents who litigate in their courts. The need for national uniformity especially on commercial matters lead to lifetime appointment of federal judges, whose salaries can not be reduced during their lifetime of service and may only be removed by impeachment by the U.S. Senate. Ironically, the U.S. federal judiciary is the most undemocratic U.S. institution.
Appointive judges are insulated from electoral politics, but become participants in the politics of appointment-recruiting supporters among bar associations, interest groups and governmental officials. In some appointive systems, the judge is initially appointed, for a first term, then sits for election for additional terms of office. Elective judges need to raise money to campaign for office and need to stay in touch with voters in order to get elected and then continuously re-elected.
Neither selection and retention process is perfect, but I would urge you to look at the selection process in terms of building support for an independent judiciary.
C. Compensation of Judges
Building a competent, independent judiciary requires adequate
salaries and benefits. In fact, in most political systems, the easiest way to reduce the role and independence of judges is to keep judicial salaries far below the income of the average attorney. A dedicated tax or fees to provide funding for judges’ salaries are possibilities for adequate salaries and an independent judiciary.
D. Competence: Adequate Legal Training and Continuing Legal Education
Clearly, the most important preparation for judges begins in their law school education. Most law school curricula prepare one to be an attorney, not a judge. Therefore, a special judicial college or institute should be implemented to prepare attorneys for the special skills they will need in a judicial role. Their same judicial colleges can provide continuing education for judges. When judicial colleges started in the U.S., they were modest operations-staffed by voluntary, non-compensated judges and law professors. Now, they are staffed by full time, highly compensated retired judges, law professors and part-time by successful practicing attorneys.
E. Adequate Support Staff and Facilities
Judges who have adequate clerical and research staffs as well as proper facilities convey to the general public a more positive image of the impartiality and competence of the judiciary. Public acceptance and support of judicial rulings are more likely when the public views the judge as an important public official.
Courtroom decorum and the professional management of busy court dockets are vital components of public acceptance and support. The Louisiana Supreme Court recently removed from office a judge who could not maintain courtroom decorum or professional docket management. In this extreme and unusual case of mismanagement, lost records resulted in miscarriages of justice and loss of public respect, forcing the higher courts to dismiss serious criminal convictions.
F. The Role of Law Schools and Community Support
Using mock court trials, law day celebrations, legal clinics to
represent those unable to afford an attorney and similar methods, many U.S. Law schools aid the judiciary in helping to promote the rule of law and the reputation and independence of the court system. Many of these activities are performed by volunteer students, attorneys and professors. These “outreach” activities strengthen legal education, the reputation of the legal profession and the role of courts in a democratic society. I urge you to consider similar activities.
G. Financing an Independent Judiciary
Judicial independence also requires financial support, which cannot be lessened by political intervention. Unless the courts have such guaranteed financial support, they always become unduly pressured by political forces that seek to undermine the rule of law to achieve political objectives.
After numerous discussions with Haitians, I have concluded that the rule of law and an independent Haitian judiciary have substantial and significant support from a large and varied number of people. I believe you have developed substantial support and leadership from the Dean and professors of your national law school, judges, bar association leaders, business leaders and other professionals,
Hopefully, reforms will come out of your combined efforts to
improve the judiciary and strengthen the rule of law.
As an American, I am proud that my government is funding and working with IFES (International Foundation for Electoral Systems) and other groups, like the Haitian Resource Development Foundation (HRDF) to help you with these reforms. In April of this year, a twenty-five (25) person delegation from Haiti, including the Chief Justice of your Supreme Court, the Dean of your law school and the President of your bar association, was welcomed by Louisiana Governor Mike Foster, a part-time law student at Southern University Law Center, and received in the Governor’s Mansion for a reception honoring them and their visit to Louisiana.
We tried to exchange ideas and experiences through meetings with bar association leaders, judges, public officials, economic development specialists, professors and others. The Louisiana Francophone Section of the Louisiana Bar Association even conducted a “mock trial” in French. Three Louisiana law schools-Tulane, Loyola and Southern Universities-welcomed your delegation with forums and opportunities for sharing experiences, ideas and courtroom visits. Your delegates will confirm that we extended to them our best “Southern hospitality” to make their visit with us a productive and enjoyable experience.
I sincerely wish the people of Haiti, the Judges, the Haitian law school and bar association, all related law center entities and members of the Haitian bar my best wishes and support for their continued efforts to advance the beliefs and principles that our common ancestors advanced through their revolutionary efforts. On this yearlong 200th anniversary of the Louisiana Purchase, I hope you will have the opportunity to visit Louisiana and share with us the many celebrations of the event in Louisiana. Our courts, law schools and hearts are open to you. You are always welcome and will find a lot in common with our state.