The Quest to Implant the Civilian Method in Louisiana: Tracing the Origins of Judicial Methodology

• Author: Vernon Valentine Palmer
• Position: Professor of Law
• Pages: 793-819

The Quest to Implant the Civilian Method in

Louisiana: Tracing the Origins of Judicial

Methodology

Vernon Valentine Palmer∗

It is my great honor to deliver The Tucker Lecture tonight, and

I am humbled by recalling the illustrious figures who have stood at

this lectern in the past.1 None, of course, can be considered more

illustrious than Colonel John Tucker, Jr., himself, whose memory

is so fittingly honored each year by his alma mater. The year 2012

marks the 300th anniversary of the arrival of the Coutume de Paris

in Louisiana, and it also marks the 200th anniversary of our

statehood constitution, as well as the founding of our supreme

court. I thought it would be fitting to choose a subject related to

and worthy of the civil law that John Tucker loved. He was (and I

use this word circumspectly) a jurisconsult in the true sense of the

word, a scholar in action, who founded the Louisiana Law

Institute, was virtually its only president for many years, and then

served as its “animateur” until his death. After choosing what I

thought was a fitting topic, I happened to discover that Colonel

Tucker actually taught a course at Tulane for many years entitled

“Civil Law Method and Technique.” I am therefore slightly

intimidated to think what the real master of the subject might have

done with the theme of this Lecture. I want to thank LSU for

honoring him and for allowing me to deliver this Lecture.

In 1832 when Alexis de Tocqueville came to New Orleans

during his famous journey across the United States, he was still

gathering notes for his classic work, La Démocracie en Amérique.

He tells us that he had a conversation with a “very well-known

New Orleans lawyer whose name I have forgotten.”2 The lawyer

that he met is believed to have been Etienne Mazureau, a greatly

admired intellect who spoke four languages fluently and who had

total command of the Spanish–Roman–French laws comprising the

Louisiana legal system. According to de Tocqueville’s notes,

Mazureau spoke about a fateful act of the legislature that was

passed only a few years before:

Copyright 2013, by VERNON VALENTINE PALMER.

∗ Thomas Pickles Professor of Law and Co-Director of the Eason Weinmann

Center for Comparative Law, Tulane University.

1. This Article reproduces the text of The 36th Annual Tucker Lecture,

which I delivered on November 17, 2011, at the Paul M. Hebert Law Center,

Louisiana State University.

2. ALEXIS DE TOCQUEVILLE, JOURNEY TO AMERICA 106 (J. P. Mayer ed.,

George Lawrence trans., Yale Univ. Press 1960).

794 LOUISIANA LAW REVIEW [Vol. 73

Late in 1828, at the end of a session, a bill was passed

unnoticed repealing these laws [the Spanish laws] in a body

without putting anything else in their place. Waking up the

next day the bar and the judges discovered with horror what

had been done the day before. But the thing was done.3

What was “the thing” that was done and why should the judges

and the bar have reacted with “horror”? What was the historical

significance of that moment in 1828? Some of Mazureau’s

contemporaries apparently feared that this wholesale repeal of

Spanish law was a wholesale disaster, but perhaps they were too

close to the events to grasp its meaning. And what is its relevance

to us today? Many present-day lawyers and students have not

grasped its significance either because its place in history has been

largely forgotten. Tonight, I want to place that act and a series of

other events leading up to it in perspective. I will picture them as

part of a broad quest—indeed, perhaps an unfinished quest—to

implant a truly civilian methodology in Louisiana. My subject may

be historical, but it is not antiquarian; it is ultimately modern and

relevant to understanding the legal system that we have today.

Before proceeding further, I want to explain what I mean by

implanting civilian method. There are many aspects to legal method

and legal reasoning. There are the methods of the legislator, the

methods of the scholar, and the methods of the judge—perhaps

enough to furnish material for ten Tucker lectures. But tonight, I

wish to consider a fundamental objective that I believe is the sine

qua non of all other methodological considerations. It is to ensure

that the Civil Code occupies the center of the system, that it is the

epicenter of civil law reasoning, so that all jurisprudential

development starts with and comes through the Code. This

aspiration is summarized by a famous epigram of Gény’s, as

reshaped by Saleilles: “Au delá du code, mais par le code civil.”

(That is, “Beyond the code, but through the civil code.”)4 The Civil

Code of Quebec claims this central position for itself in a very

forceful first article:

3. Thomas W. Tucker, Interpretations of the Louisiana Civil Codes, 1808–

1840: The Failure of the Preliminary Title, 19 TUL. EUR. & CIV. L.F. 57, 169

(2004) (quoting DE TOCQUEVILLE, supra note 2, at 106).

4. The phrase may be ascribed to Saleilles, who slightly modified Gény’s

approach by turning it around. Saleilles inverted Gény’s expression “par le Code

civil, mais au delà du Code civil” and thus emphasized interpretation taking the

law beyond the Code. See R. Saleilles, Préface to FRANÇOIS GÉNY, MÉTHODE

D’INTERPRÉTATION ET SOURCES EN DROIT PRIVÉ POSITIF, at xviii (1899).