"Opening the Barbarians' Gate" or Watching the Barbarians from the Coliseum: A Requiem on the Nomos of the Louisiana Civil Law

• Author: Marc L. Roark
• Position: J.D. Loyola (New Orleans) Law School; L.L.M. Duke University School of Law
• Pages: 451-487

Page 451

By the advice of their protectors (the Romans), they (the Britons) now built a wall across the island from one sea to the other, which being manned with a proper force, might be a terror to the foes whom it was intended to repel, and a protection to their friends whom it covered. But this wall, being made of turf instead of stone, was of no use to that foolish people, who had no head to guide them. ¹

In their original form, they were watched by very few spectators who had to squeeze in against each other, pushing and jostling, straining and craning their necks to get a look at the bloody action being played out before them. These rough congregations, in which the spectators quickly planted themselves wherever they could find a place with a decent view, contained the seeds of the great spectacles of later years. They were primitive showcases for fighting and nothing more, and were certainly not prepared or stage managed in the manner that would later become commonplace . . . . It was not long, however, before seats were added and hired out to spectators who were thus afforded a little more comfort as they watched each pair of gladiators fight . . . . ² Page 452

Comparative law tends to focus on the differences and similarities present in different legal systems. Such analysis has led some to conclude that a third legal system has appeared in the West and in particular in Louisiana. The idea of a mixed jurisdiction, they claim, combines certain elements of civil law and common law into a hybrid system. This article challenges the supposition that a legal system's core identity can be of a mixed nature. Rather, this article suggests that the proper way a legal system should be viewed is through its normative values as depicted in the narratives the system spawns-a nomos that directs the purveyors of the system towards the sources and identity that the system enchants. Focusing primarily on Louisiana, Part I of this article describes three normative elements that narratives tell about the Louisiana civil law: its Frenchness, its distinctiveness, and its dependency on a code. Part II then tells two narratives that demonstrate how these normative elements are revealed, even when they are not completely accurate. Part III challenges the readers to inhabit the nomos.

I Institutional Identity Versus Nomos

There is a story in human history that the barbarians sitting on the verge of civilized society shaped human innovation.³ That, as uncivilized "tribes" threatened the parameters of the modern world, society had no choice but to innovate and repel the advances of chaos or themselves be infused with the chaos that the barbarians brought. The Mongols, the Huns, the Gauls, the Celts, the Turks, and the Germans each were the driving force requiring societies on the other side to develop or disorganize.

There is a similar story told in legal communities in two variations. In law (at least in the Western legal tradition) one is trained primarily as a civilian or as a common lawyer. The narrative is therefore told as either one of passive virtues (we stand at the gate and allow the other to influence our own legal tradition) or one of aggressive resistance (we stand aloof and reject the other as antiquated or barbaric given our predisposition). To be surePage 453 there is no natural affinity between the two. But it is undeniable that systems do from time to time borrow from one another, despite the perception that each remains superior to its counterpart.⁴ Such is the premise behind comparative law.⁵ The more politically friendly version tends to suggest a developing third family of legal tradition known for the combination of civilian and common law themes-that jurisdictions are becoming multi-traditional, mixed, or "bijural."⁶Page 454

The danger in creating a "new legal tradition" from the relics of traditions is that it tends to devalue the traditions that supposedly have been combined. So, when Palmer writes that "because of their double genetic makeup mixed jurisdictions must appear anomalous (and unclassified) when compared to one of their two parents,"⁷ he tells us that the two traditions cease to exist in the shadow of the third. Said another way, the "new legal system" becomes an orphan, unsure whether its institutions and enabling devices derive from one system or another. Thus in the same way that comparative law runs the risk of exaggerating the origins of differences,⁸ creating a new legal family where there really is none risks isolating legal systems to the point of losing tradition. To be sure, Louisiana has never thought of itself as alone in the sense that Palmer would suggest that it is; it has also never thought of itself as being aligned with the various other "mixed jurisdictions" that are opposed to being aligned by civilian values.⁹

Instead, like other legal systems that share legal traits between multiple systems, Louisiana has continued to consider itself characterized by a dominant persuasion-Louisiana is a civilian jurisdiction. This is not surprising; legal systems continue to retain a dominant legal tradition that is unmitigated, though phenomena appear that do not derive from the dominant tradition. Said slightly differently, there is a nomos to legal traditions in much the same way that there is a nomos to specific legal cultures-an aura that transcends the institutions that make up the tradition. ThatPage 455 nomos includes the stories we tell about ourselves-the ways we perceive our institutions interacting with others-and the insulation of our traditions from those we deem contrary or destructive to our own.

It also includes hints that recognize the corpus of the dominant tradition as being superior to the secondary tradition;¹⁰ simply put, we prefer the legal institutions with which we grow familiar. I remember my first year torts professor reminding us civilian students that the barbarians in our class (the common law students) were indeed engaging in barbarism of the common law-fighting one another in courts to determine what the law was. We needed no contest of strength to know the law; we had the law and it was held in a central Civil Code-as sacred as the Bible and as wise as the ancients. Even now, as a scholar that engages more common lawyers than I do civilians, my mind oftentimes wonders and visualizes the superior legal training I received versus the vile combat these poor fellows must engage in on a regular basis. It isPage 456 the vision of the noble savages battling for the law, as the civilized world sits smugly, watching their efforts, while holding the canon in its hands-the precious Civil Code.

But even by my description of the smugness that derives from certain preference judgments within the civilian and common law traditions, the nomos begins to be revealed. Some have suggested that the civil law suffers from a superiority belief.¹¹ In Louisiana, in recent years, that belief has come under siege. The perception that the Louisiana civil law has much to learn from its common law neighbors, at least within certain legal fields, seems to be growing in popularity. But much of this discussion has also become diluted. Instead of focusing on systems, the analysis has turned towards institutions within systems. We do not say the civil law system is superior. Rather, we now talk in terms of the superiority of civil law property systems, the sales code, or family law.¹² Let me give two examples from the recent past.

At the 2002 Tucker Lecture, my friend Kathy Lorio asked the question, "Is what remains in Louisiana of the civil law tradition, archaic or prophetic?"¹³ It seems that during the drastic changes to the Louisiana law of successions in the 1990s,¹⁴ the Reporter forPage 457 the Louisiana State Law Institute ("Law Institute") developed the obnoxious habit of referring to certain institutions as "archaic," ultimately memorializing that commentary in the official comments to the Code.¹⁵ Comments such as these annoyed the persons who saw the civil law not as archaic, but as a timeless system that defined persons, their property, and their transactions. Lorio was one of those persons and wrote passionately about civil law institutions that could be deemed as more contemporary than ancient. During that same event, Professor Patrick Martin of Louisiana State University stood up and addressed the audience and proudly proclaimed in effect, "I believe that the rest of the nation could learn from the Louisiana civil law approach to property."

Lorio's approach (and Professor Martin's on a larger scale) focused on the institutions of the civil law to show that they have a place in the dialogue of law. Their comments were to this effect: "The civil law is superior because X manifestation is better than the common law Y." This rubric seems misplaced to me, though I sympathize with their reactions. Exchanging the corpus of the tradition for the institutional preference compromises the essence of the civilian tradition itself. It says, in effect, that the institutions of the civilian tradition-instead of its inherent characteristics (thePage 458 nomos)-define the tradition. Lorio (and others) are asking what it means to be a civilian jurisdiction in tension with its common law surroundings. One answer to that question is that being civilian means looking civilian. That is, we know we are a civilian jurisdiction because we have institutions like forced heirship and community property, among other things, that can be derived from our civilian heritage; our imagination has become confined to a rubric that says "we are what we look like."

Taken as a simple statement, "we are what we look like" is a truism, correct and timeless. It forms the basis of what this article is about-we really are what we look like, or rather, we are what we imagine that we look like. I want...