Assistant Professor of Law, Loyola University New Orleans School of Law. The author would like to thank Professors Kathryn V. Lorio and James E. Viator of Loyola University New Orleans School of Law for their helpful suggestions and encouragement on this article and Nona Beisenhurz, Foreign and International Law Librarian, and Brian Huddleston, Coordinator of Reference Services, both of Loyola University New Orleans School of Law Library, for their diligent assistance in locating materials used for this article.
It will surprise no one to suggest that the promotion of legal certainty has always been one of the most important purported goals of the civil law tradition in Louisiana. What exactly, however, is this perennially important legal principle? When judges, lawyers, law professors, and others interested in the law refer to the value of legal certainty, or to the dangers of uncertainty in the law, they are often first thinking, on a functional level, of the perceived advantages of clearly defined legal rules that enable people to "know the nature of their rights and obligations and be able to plan their actions with some confidence about the legal consequences."1 This practical need for predictability in legal results is often regarded as particularly important in areas of the law where stability is highly valued, like property law and the law related to land titles.2 Thinking a little more abstractly about this same phenomenon, Professor Carol Rose explains that this drive for predictability is particularly strong in areas of law that define legal relationships with strangers, those with whom Page 1398 we are not engaged in an ongoing business, family, religious or other kind of long-term social relationship.3
At the same time, the value of legal certainty is often understood from a specific philosophical and political orientation-grounded in the theories of separation of powers and legal positivism-that seeks to limit a judge's discretionary power to render decisions based on sources and considerations other than the rules expressly stated in the positive law. In other words, it reflects a desire to make the law, as John Merryman puts it, essentially "judge-proof."4 The basic idea behind this objective to limit judicial discretion is that "if judges are not carefully controlled in the way they interpret legislation, the law will be made more uncertain;" that is, "to give discretionary power to the judge threatens the certainty of the law."5 This desire to restrict the sources of judges' ex-post decision making and law- finding activities to codified or statutory sources of law found one important early American expression in the codification movement of the 1820s to 1850s,6 inspired by foreign born reformers like Jeremy Bentham7 and William Sampson.8 It also found early and Page 1399 concrete expression in Louisiana law as well, for example, in the Constitution of 1812s requirement that judges refer to the statutory sources of their judgments.9 As this article will show, the quest for legal certainty was undoubtedly a pressing concern from the very inception of Louisiana's civil law tradition in the early nineteenth century.
Perhaps more surprising to this article's readers, however, will be the suggestion that goals often considered to be in competition with legal certainty-flexibility and equity-have also consistently been crucial values in Louisiana's legal culture. By the use of terms like "flexibility" and "equity" in contrast with "legal certainty," judges and scholars of the civil law (or of the common law for that matter) usually mean the ability or practice of judges to bend or adapt the requirements of fixed legal rules to respond to changing social circumstances, unprecedented facts, or unique demands for fairness presented by an individual case.10 As Vernon Palmer puts it, the term "equity," for instance, though capable of a variety of meanings, has generally come to mean in Louisiana simply "the [judicial] exercise of discretion in the pursuit of greater fairness."11 Thus, although certainty is often seen to be a preeminent goal in any legal system, quite often we are content, in the language of Carol Rose, to "substitute fuzzy, ambiguous rules of decision for what seem to be perfectly clear, open and shut, demarcations of entitlements."12 In other words, "crystalline rules" tend to be "muddied repeatedly by Page 1400 exceptions and equitable second-guessing, to the point that the various claimants . . . don't know quite what their rights and obligations are."13
The purpose of this article, which has been inspired by the efforts of scholars and jurists from Louisiana, Quebec, France, and Spain to celebrate the 200th anniversary of the Louisiana Purchase,14 is to begin to trace through the development of Louisiana law the relationship between these supposedly competing goals of legal certainty on one hand, and flexibility, equity, and perhaps even uncertainty on the other. The article focuses first on the debate that took place in the first years after the Louisiana Purchase over what kind of private legal system Louisiana would create and recalls how the principle of legal certainty was initially linked with both legislative and judicial efforts to preserve the "ancient laws" of precession Louisiana. It then examines how the principle of legal certainty became inextricably intertwined in often contradictory ways in the struggle over whether and to what extent Louisiana would secure an essentially codified system of private law, culminating in the adoption of the 1825 Civil Code and the Great Repealing Act of 1828. It concludes with a brief reconsideration of one recent, late twentieth century legal dispute that reveals the continuing relevance of this tension between certainty on one hand and equity and flexibility on the other.
Between 1803 and 1812, the period between the Louisiana Purchase and statehood, concerns about legal certainty were closely interwoven with the question of what kind of private law system Louisiana would adopt and what the authorized sources of law in that system would be. Quite frequently this period has been characterized as a "clash of legal cultures," a clash between the common law culture of newly arrived Americans and American governmental officials and the civil law culture of Louisiana's ancient inhabitants.15 Page 1401 Occasionally, however, this traditional historiography of the period has been questioned.
In the 1940s, for instance, Mitchell Franklin claimed that the era was dominated by a clash, not between civil and common law, but between two kinds of civil law: "emancipatory," revolutionary, Jeffersonian republicanism and its ideological cousin revolutionary French civil law versus "counter-revolutionary," "medieval," "feudal," Spanish civil law.16 Decades later, the academic debate Page 1402 between Professors Rodolfo Batiza and Robert Pascal over the actual sources of the Digest of 1808 also reflected, at least at some level, an understanding that there was a battle for dominance between two kinds of civil law, largely post-revolutionary French-Roman law and pre-revolutionary Spanish-Roman law.17 Most recently, legal historians Richard Kilbourne, Mark Fernandez and Judith Schafer have rejected the Kulterkampf interpretation of this period. Kilbourne and Schafer suggest that economic factors motivated the local inhabitants' resistance to common law intrusion as much as any cultural allegiance to Spanish or French civil law.18 Kilbourne and Fernandez also argue that jurisprudential and structural developments occurring in Louisiana legal culture at that time were remarkably similar to developments occurring elsewhere in the antebellum South and the United States, particularly to the extent common law methodology was employed by Louisiana courts in both the territorial period and in the first several decades after statehood.19 The purpose of revisiting this period, however, is not to reexamine these historiographical claims about the nature and depth of any local Page 1403 attachment to the civil law or any particular variant of the civil law tradition, but to gauge what role the concept of legal certainty played in the contemporary debates over the newly emerging legal system.
One episode from the territorial period that merits particular examination for the purpose of understanding the role of legal certainty in these debates emerges from the territorial legislature's attempt in 1806 to establish Spanish civil law as the reigning substantive private law of the territory and the intense reaction provoked by rejection of this legislative initiative. In early 1806, perhaps sensing that something had to be done to secure civil law as the substantive law of the territory,20 the general assembly of both the Legislative Council and the House of Representatives of the Territory of Orleans attempted to enact what Rodolfo Batiza calls "a rather curious legal system predominantly based on Roman, Spanish and other civil law sources"21 then in force in the territory, including the Laws of Toro, French commentators like Domat, the Commentaries of Valin, and the Ordinance of Bilbao.22 In fact, there is a...