The Supreme Court, Justinian, and Antonin Scalia: Twenty Years in Retrospect

• Author: Paul R. Baier
• Position: George M. Armstrong, Jr., Professor of Law, Paul M. Hebert Law Center, Louisiana State University
• Pages: 489-521

Page 489

I Columbus Day, 1986, Address to the American Justinian Society of Jurists

Judge Durante, Justice Calogero, Judge Marullo, Your Honors, Ladies and Gentlemen:

Years ago my quest for treasure among used books turned up Piero Calamandrei's Eulogy of Judges. You may know Calamandrei was an Italian lawyer and a teacher of civil procedure. His Eulogy of Judges is a psalm book of uncommon legal prayer, from which I should like to read two verses. Take these words as my heartfelt greeting to the judges of the American Justinian Society of Jurists. You honor New Orleans and Louisiana by your presence.

Calamandrei's words, of course, were directed to his native Italian judges; I borrow them in welcoming this country's Italian-American jurists to Louisiana:Page 490

I cannot meet abstract law on the path I take as a man among men in society . . . but many times do I find you, O Judge, the corporeal evidence of the law, on whom depends the fate of my worldly goods . . . . When I meet you on the road and bow to you with reverence, there is a sweetness of fraternal gratitude in my greeting. I know you are the keeper and guardian of those things I hold most dear; in you I greet the peace of my hearth, my honor, and my liberty.

Now to my topic: "The Supreme Court, Justinian, and Antonin Scalia."

It struck me that Your Honors might be curious about our civil law in Louisiana, about its origins in the recesses of Roman law, and about your Society's namesake Justinian. I know the Supreme Court well enough to venture a few words about it in public. As for Antonin Scalia, he has been on all our minds of late.

First, a few words about Bowers v. Hardwick, the recent Supreme Court opinion sustaining Georgia's sodomy statute.

Those of you who follow the Court know that last July, the month in which America celebrated the centennial of the Statue of Liberty, the Supreme Court affirmed the constitutionality of Georgia's sodomy law. The vote was close, 5 to 4, much closer, I suspect, than most prognosticators would have guessed.

Chief Justice Burger's special concurring opinion in the Georgia sodomy case cites the Digest of Justinian and Code of the Emperor Theodosius in support of Georgia's sodomy law. The Digest, you will recall, was the centerpiece of Justinian's temple of the law, the Corpus Jurus Civilis, which was completed well over a thousand years ago, through the labor of Tribonian and a battalion of jurists, in 534 anno domini.

Citing the Digest is a rare thing for a Supreme Court opinion, although not unprecedented. One may naturally wonder whether Justinian is a proper source of contemporary American constitutional law.

I tell you these things by way of an introduction to my remarks. I want to talk to you about two subjects that fascinate me as a law teacher in Louisiana. One is the law of the Corpus Jurus Civilis, represented by the figure of Justinian. The other is the law of the American Constitution, represented by the figure of Antonin Scalia.

These two figures came face to face one week ago today, in the Supreme Court building, when Justice Scalia took his judicial oath of office. Doubtless it was a silent encounter. Some of you may know that Justinian is one of the great law-givers frozen in marblePage 491 on the north wall of the courtroom. I am sure Justinian never entered Justice Scalia's mind, which was probably focused on his new responsibilities, the highest that can weigh on an American judge.

My speech is divided into two parts. First, I want to take you on a horse and buggy tour of the Roman Quarter of Louisiana's legal system. Second, I will assess two of Antonin Scalia's judicial opinions, written on the District of Columbia Circuit, against Senator Pastore's measure of expected performance from Italian American judges. Said the Senator: "The Italian American judge to be considered equal must be twice as good as the next judge." Justice Scalia, you will hear me affirm, will prove a surpassing Supreme Court Justice. The marks are already there, in the federal reports. Along the way, I hope to show that the law of the Corpus Juris and the law of the American Constitution are at once both strikingly different and remarkably the same.

I

Now, I assume you know we have a Civil Code; Louisiana is what we call a "civilian jurisdiction." This much about us was circulated pretty widely by Stanley Kowalski in Tennessee Williams's A Streetcar Named Desire. You may remember Stanley exclaiming to Blanche: "There is such a thing in this State of Louisiana as the Napoleonic Code, according to which whatever belongs to my wife is also mine, and vice versa." Blanche responded: "My, but you have an impressive judicial air!"

But beyond Stanley Kowalski, Louisiana law is a mystery to most outsiders, who are scared off by it. Consider, if you will, one of my favorite civilian noises, the "antichresis." Now here is a word that sounds frightening enough. Rest assured, however, that the antichresis is only a pledge of real property-"immovables" we say here-to secure a loan. I won't bother you with the details, which you can find in our Code. But I will ask you to smile at the plight of Edward Livingston's lawyer, in the old case of Livingston v. Story, which required the lawyer to unravel Louisiana's law at the Bar of the Supreme Court of the United States. The Court at that time was headed by Chief Justice Taney, from Maryland, whom I suspect knew nothing about the antichresis, which was the focal point of the case. This was 1837, and Livingston's lawyer started out by telling the Justices that, "The code of law prevailing in Louisiana, is difficult to be understood."

But the lawyer continued on, made his point, and won his case. His synopsis of early Louisiana law is worth quoting to Your Honors; it is our first stop on our tour of Louisiana's legalPage 492 landscape: "The code of law prevailing in Louisiana," explained the lawyer,

has grown up since the first establishment of the province. Originally it was adopted by a proclamation of Governor O'Riley [sic], in 1768; and was afterwards confirmed by the King of Spain. This was the "Corpus Juris Civilis," and the "Partidas," and the "Recopilacion de Leyes de las Indias." The French inhabitants of the province became dissatisfied, and "Les Coutumes de Paris" were declared to furnish the rules of practice; the principles of the established laws to remain in full force.

This was the state of things, when the United States acquired the territory, and great embarrassments arose on the introduction of the provisions of the laws of the United States, and the forms of proceedings under the same. A code was prepared by authority of the Legislature of the State, which is called the civil code [of 1825], and is in most of its provisions the Code Napoleon; and allows the Spanish laws to prevail in all cases to which they will apply.

That, in a lawyer's nutshell, is the story of our early Louisiana law as recorded in the United States Reports.

The Civil Code of 1870 followed. It has been the private law of this state ever since, although there have been plenty of amendments and a large body of statutory law has swelled up outside the Code.

If you will allow me a personal note, may I say I knew nothing of Louisiana's civil law when I arrived at LSU some fifteen years ago. I can tell you from painful experience that passing the Louisiana bar examination is a trying affair for a common law lawyer, such as I was. I regard my membership in the Bar of Louisiana as one of my proudest boasts. I owe my learning to my civilian colleagues, including Dean Paul M. Hebert, who let me teach the Louisiana Civil Law System course; to Athanassios Yiannopoulos, whose Greek spirit is lineal to Papinius, Ulpian, and Paulus-Roman jurists of exquisite learning; to Sal Litvinoff, whose genius is exceeded only by his wit; and to Robert Pascal, who in the style of Gaius molded his students into priests of the law.

Next, let me take you back two thousand years to Rome, to the Forum, for a quick glance at the bronze tablets of the Twelve Tables; thence to the Golden Age of classical jurists, whose memory this Society honors by its name and by its membership.Page 493

Now, I will only bother you with the first of the Twelve Tables. We are far back in the recesses of time. This is 450 B.C. I have no earthly idea what a walk in the street was like, but it does seem to me remarkable that the first recorded Roman law pertains not to, say, the rights of the father as pater familias, but to-of all things-"concerning the summons to court." I quote the Scott translation: "When anyone summons another before the tribunal of a judge, the latter must, without hesitation, immediately appear." As I recall my civil procedure, this is good law today, with the exception that under the federal rules we allow a defendant twenty days to answer the summons and complaint.

S.P. Scott says that the proverbial "law's delay" was not known to the ancient Romans. When the case came to trial, always in the morning, the parties themselves argued it, and the judge was compelled to render a decision before sunset of the same day, in accordance with Law X of the First Table, to wit: "The setting of the sun shall be the extreme limit of time within which a judge must render his decision."

The genius of the Romans was eminently practical. Therefore, procedural rules precede substance in the bronze expression of Roman law. The first talk is of the summons and of the tribunal of the judge. Remedies define rights. You see the same thing in the development of the forms of action at common law.

The Twelve Tables, let me add, sparked the idea that the law should be written down where people can read it, thus enabling every citizen to become acquainted with the laws of his country and to apply to judicial...