The Louisiana Civil Law Tradition: Archaic or Prophetic in the Twenty-First Century?

Summary

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I. Archaic Or Prophetic? II. Forced Heirship-A Pillar Of The Past III. Assisted Reproduction-An Issue For The Future IV. Recommitment To The Civil Law Tradition

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The Louisiana Civil Law Tradition: Archaic or Prophetic in the Twenty-First Century?

Leon Sarpy Professor of Law, Loyola University School of Law, New Orleans. The author gratefully acknowledges the research and editorial assistance of Marc Roark, made possible by the support of the Alfred J. Bonomo, Sr. family, and the Rosaria Sarah La Nasa Memorial Scholarship Fund, and to Professor George Bilbe, Loyola University School of Law, New Orleans for reviewing a preliminary draft of this manuscript.

Having the opportunity to deliver the John H. Tucker Lecture is indeed an honor. Although I did not know Colonel Tucker personally, I was quite aware, from the time that I was a law student, of his many contributions to the advancement of the civil law in Louisiana. When Professor Litvinoff called me to extend the invitation to be the Tucker lecturer, I wondered what I could possibly offer to such a knowledgeable and distinguished group of civil law scholars. As I sat in my office contemplating this question, one of my students came in and introduced herself as the daughter of a former student whom I had taught in 1976, my first year of teaching at Loyola Law School. It struck me that I was actually beginning to teach another generation of lawyers about the law of successions in Louisiana. I thought about what a different course it would be for the daughter than it had been for her mother twenty-five years before. I also pondered whether I would be around for another twenty-five years to teach another generation and what in the world that course would be like.

Tonight I want to share with you some of my thoughts regarding those questions and ultimately, regarding the civil law in Louisiana as we begin the twenty-first century. Rather than attempt to speak to the "system" of law in Louisiana, which Professor John Merryman defined as the "operating set of legal institutions, procedures and rules,"1 I will more accurately address the civil law "tradition" in the state; that is, the "set of deeply rooted, historically conditioned attitudes about the nature of law, about the role of law in the society and the polity, about the proper organization and operation of a legal system, and about the way law is or should be made, applied, studied, perfected, and taught."2 I suspect that some of you will disagree with some of my conclusions; my hope is that all of you will not disagree with all of them and that a portion of what is said this evening will enure to the benefit of the civil law tradition of our state. As I consider Professor Merryman's definition of legal tradition and think about the changes in Louisiana over the last quarter century, I am sad as I recount some of the revisions that lead me to believe we have indeed lost some of that proud tradition of Roman origin that links rights with responsibilities, where "the individual is more often envisioned in a social context."3 We have amended our Louisiana Civil Code sometimes to the point where it can no longer claim to possess what Jean-Louis Baudoin notes as the essential traits of a civil code, which are "simplicity and internal coherence."4 Too often, we have deviated from a methodology where a problem is approached first by looking to the Code for general principles, then to doctrine for explanation of those principles, and only later to prior cases for a view as to how they were interpreted in the past.5 We have at times discarded an original code article and have replaced it with a more "modern" version, noting in the official comment that there is "no change in the law," only to realize later that the change in language did effect a substantive change.6

Agreeing that Louisiana is truly a m...

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