Hermann Moyse, Sr. Professor of Law; Director of European Studies; LSU, Paul M. Hebert Law Center; President, Louisiana Chapter Association Henri Capitant; Member, Scientific Council Foundation for Continental Law.
The Article presented here in English is based on an article by Professor Levasseur published in French, in the January 2009 issue of the Revue Internationale de Droit Comparé (R.I.D.C.). The title of the Article in the R.I.D.C. is Les maux des mots en droit comparé. Professor Levasseur felt that this Article would be of interest to Louisiana lawyers and legal scholars and he asked Mr. Feliú, because of Mr. Feliú's background in Linguistics and the Common Law, to work with him in translating and redacting the original French article for publication in English.
Assistant Director for Public Services and Associate Librarian for Foreign Comparative and International Law; LSU, Paul M. Hebert Law Center; J.D., Franklin Pierce Law Center, 2004; LL.M., Franklin Pierce Law Center, 2009; M.L.I.S., University of Washington, 2005.
The Avant-Projet of the French Law Obligations and the French Law of Prescriptions, which we will cite as the Projet- Catala,1 is a monumental undertaking to modernize Parts III and IV of Book Three of the French Civil Code, "Obligations," and to continue the work of Jean Carbonnier who demonstrated "in transfiguring the first Book" that it was possible to "rehabilitate" the Code of 1804 "without damaging its structure or form."2 "The program mobilized thirty-four persons"3 under the sponsorship of the Association Henri Capitant and was presented in the form of a "Rapport à Monsieur le Garde des Sceaux"4 in September 2005. A few months later, this draft of the Projet-Catala was sent to several foreign comparative law scholars throughout the world for the dual purpose of translating it, if possible, into their national languages and, on that occasion, to contribute their comments, observations, and remarks as they considered appropriate, especially as regards Page 716 the content of this preliminary draft of a law that could become incorporated into the French Civil Code, should it be approved by the French Parliament.
These foreign comparative law scholars were advised that, in fulfilling their tasks, the authors of the Preliminary Draft had not been motivated by any "plan . . . to oppose that which is or anything of what should be the idea of the Civil Law" and that "the modernization of the Civil Code will continue as the hub of private law, the sturdy trunk of a tree whose branches can stretch out without losing their strength" so that the modern Civil Code becomes "the natural recourse of the judge faced with the silence of statutes and conventions, the pool of our legal reason."5 The instructions received informed us that "the Projet-Catala does not propose a breaking of the Code, but an adjustment" and that "it (the Projet) is supportive of doctrine and jurisprudence."
These goals were made clear to all, among the comparativists, two sets of scholars were asked to undertake an English translation of the Projet: one set of English legal scholars trained in the Common Law of England and two Louisiana scholars6 trained both in the common law and in the civil law, both totally fluent in the French language of the projet Catala as well as in the English language of the translated version of that projet.
The focus of this Article is to express the reasons why a translation of the French Civil Law of Obligations into the English language is an undertaking that can only be assigned to those who have experienced the "civil law in English," i.e., Louisiana legal scholars. The legal system of Louisiana is one of a handful in the world in which the civil law is practiced in English as a matter of routine. The success of this experience, now 200 years old, illustrates that the Louisiana legal professions have found a way to shape the English language of the common law to fit the civil law of the State. The fundamental issue that the reader will be juggling throughout this Article is whether, on the one hand, the translation of civil law concepts into English Common Law words and Page 717 concepts can become an accurate reflection and transposition of the essence of civil law concepts or whether, on the other hand, the Louisiana Civil Law expressed in its natural English "garment" has not already created the natural and only proper legal language to accomplish the goals of the Projet Catala and of the "Instructions." In other words, can there exist two different English versions of one and the same civil law text? The conclusion we have reached, and that we hope will be convincing, is that the legal linguistic vocabulary of an English-written civil law has been in existence in Louisiana for the last 200 years and that there is no need to resort to the legal vocabulary found in the Common Law of England to express the "civil law in English." Actually, we are issuing a strong warning against any such attempt. The survival of the civil law system in the English language of the Louisiana Civil Code since 1808 is a vivid testimony that the civil law can exist in "English" as long as it is an English that has been tested and tried in a civil law environment.
A brief history of the civil law in Louisiana will help illustrate, on the one hand, the very close interrelationship that exists between a legal culture and the legal language that serves as its external manifestation and, on the other hand, the dilemma facing a translator caught between the political and legal languages of the issuing legal culture and the target legal culture.
The year 1682 marked the beginning of the official presence of France on the immense territorial expanse from the shores of the Gulf of Mexico to the Great Lakes. A royal edict of 14 September 1712, entrusted the economic exploitation of the royal colony, Louisiana, named in honor of King Louis XIV, to Antoine Crozat and placed it under the legal rule of the Coutume de Paris. By Letters Patent of December 18, 1717, a High Council for the colony was entrusted with the administration of the Coutume as well as the Civil and Criminal Ordinances of 1667 and 1670. The procedure then in effect before the courts was that of the Châtelet in Paris. In that same year, 1717, the Compagnie des Indes assumed operation of the colony. Financial difficulties forced the Compagnie to return the administration of the colony to the Page 718 crown.7 On November 3, 1762, the King of France ceded the territory of Louisiana to his cousin, the King of Spain, by means of the "secret" Treaty of Fontainebleau. The Treaty of Paris of 1763 officially confirmed the transfer of Louisiana to Spain. The news of this transfer was not very well received by the French inhabitants of Louisiana who were very apprehensive about what would become of their forms of government, their laws, and their customs. During this same period of time there was a wave of "forced" immigration of several hundred Acadians from the Canadian province of Nova Scotia or Acadia who had fled to Louisiana after being forced from their lands by British troops. The first Spanish Governor of Louisiana, Don Antonio de Ulloa, was very badly received by his French subjects and had to leave the territory in great haste after the Legislative Council voted his expulsion from Louisiana in October of 1768. The Spanish government resorted to drastic measures sending an expeditionary force to deal with the rebels. Once order was restored, the new Governor, General Alexander O'Reilly, began a thorough reform of the administrative, military, and judicial structures of the colony.8
On November 25, 1769, O'Reilly created the "cabildo for the administration of justice and to keep order" and declared that he had "thought useful and even necessary to make a summary or regulation from those Spanish laws . . . until a better knowledge of the Spanish language can help all by the reading of these laws above, to deepen their knowledge in the details . . . ."
Time [would] bring with it familiarity [with Spanish law] and before the end of the first decade, the French inhabitants and the Spanish legal system had become friends, the people found that, after all, . . . the difference (with the laws of Spain) was not so much that it could justify their first reaction of disgust to the change . . . of system.9
On October 1, 1801, by the Treaty of St. Ildephonso, Spain agreed to transfer Louisiana to Napoléon, who ceded it to the Page 719 United States in accordance with the Treaty of Paris of April 1803. The United States took possession of the territory on December 30, 1803, and installed William C. Claiborne as the first territorial Governor. On March 26, 1804, the United States Congress passed an act "for the organization of the Territory of Orleans and the District of Louisiana."10 A provision of that act stated that "the laws in effect in the said territory at the beginning of the implementation of this act and which are not incompatible with its provisions, will continue to have effect, until amended, modified or abolished by the legislature."11 In place of the words "laws...