Keep Calm and Teach Gaius

AuthorNicholas Kasirer
PositionJustice of the Quebec Court of Appeal; former Dean of Law, McGill University.
Pages1109-1124
Keep Calm and Teach Gaius
Nicholas Kasirer
INTRODUCTION
Total information in the digital age gives a picture of law that is
distressingly unruly, but this is decidedly not so for the civil law taught in
the universities. For centuries, civilian categories of thought have neatly
organized the law across continents in a seemingly straight line, and none
of the vagaries of human experience seem to deflect it from a Cartesian
path. Following in those tracks would be one way to teach the civil law
while others lose their way in the darkness brought on by too much law.
Today’s students can swap their anxieties and their search engines for a
pocket civil code.1 As for faculty, they would do well to stick to the well-
trodden Professorenrecht. Keep calm and teach Gaius.
Yet while the finest teachers recognize that a focus on timeless
principles helps unclutter the mind, they are also wary of the pitfalls
associated with essentialism in the civil law. It is indeed best to
acknowledge the limits of any way of knowing the law that refuses to
deviate from the narrow path of abstract rationality.2 Despite appearances,
the civil law tradition has never walked an entirely straight line,
consistently making room for local context and even bending substantially
to accommodate one or another historical moment or curiosity.3 It has
strayed far enough to include, as well, the occasional conceptual misfit on
its otherwise rationalist way forward, including institutions and ideas that
challenge the civil law’s mythical ambition to “remain a whole with its
own cohesion, logic and requirements.”4 There are family heirlooms that
Copyright 2016, by NICHOLAS KASIRER.
* Justice of the Quebec Court of Appeal; former Dean of Law, McGill
University.
1. By presenting Louisiana’s droit commun in a format stripped of
distracting observations, case notes, and potted history, Alain A. Levasseur
embraces some of this fine pedagogical ideal. See LOUISIANA POCKET CIVIL CODE
(Alain A. Levasseur ed., 2014).
2. For an influential account of the sometimes uneasy relationship between
method and history for the civil law in the French tradition, see Alain A.
Levasseur, Code Napoleon or Code Portalis?, 43 TUL. L. REV. 762 (1969).
3. A nuanced picture of the checkered development of this “explicit
rationality in [civil] law” is found in H. PATRICK GLENN, LEGAL TRADITIONS OF
THE WORLD 146 (3d ed. 2007).
4. CHRISTIAN ATIAS, FRENCH CIV IL LAW: LE DROIT CIVIL 25 (Alain A.
Levasseur trans., 2002).
1110 LOUISIANA LAW REVIEW [Vol. 76
upset the unity of succession: the jus ad rem trans personam that can give
real trouble to a lessor, and the rarely trustworthy civilian “fiduciary
obligation.” Other such annoyances include the liberty-threatening
innominate personal servitude; the abandoned immovable (that perfect
patrimonial orphan); the cemetery plot containing, or not, the remains of
the dead; materialist ownership that somehow clings to immaterial sources
of wealth; as well as the infans conceptus and civil death that confound,
from start to finish, the law of persons.
Epistemically speaking, these problem concepts are often depicted as
exceptions that prove the very rules they might otherwise undermine or,
more despairingly, as sui generis notions to be contained in order to
preserve the rectitude of the general theory of private law.5 Only
occasionally are they championed as opportunities to understand the civil
law’s simultaneous penchant for order and tolerance of disorder. This
Essay points to the virtue of teaching in a manner that freely acknowledges
the occasionally meandering ways and means of the civil law as a modest
tribute to the career of the professor celebrated in these pages.
A striking featur e of Louisiana Law of Obligations: A Methodological
& Comparative Perspective,6 is the authors’ thought-provoking decision
to begin the book with a protracted consideration of one of these civilian
misfits, the “natural obligation.” One might have expected the atypical
natural obligation to be banished to back pages or buried footnotes because
it fails to line up with the primary definition of a civil obligation.7 Not so:
the materials on this topic begin on page 5, after a modest two-page
presentation of “Obligations: Principles.”8 The readings on natural
5. One author provides critical comments on what he characterizes as the
“Handicap of French Legal Thinking” by reason of its formalism and its ties to a
rigid theory of sources of law. See Christian Atias, American Legal Culture and
Traditional Scholarly Order, 46 LA. L. REV. 1117, 1119–21 (Alain A. Levasseur
ed., 1986).
6. ALAIN A. LEVASSEUR, RANDALL TRAHAN & SANDI VARNADO, LOUISIANA
LAW OF OBLIGATIONS: A METHODOLOGICAL & COMPARATIVE PERSPECTIVE 1–4
(2013).
7. A leading French textbook on obligations begins its account of the natural
obligation—on page 707 of an 856 page treatise—with a challenging opening
sentence that refers back to the idea of the civil obligation considered in the
preceding 706 pages: “The natural obligation is not truly obligatory; it
nevertheless produces some of the effects of the civil obligation. To understand
the notion and its rules of application, the natural obligation must be compared to
the civil obligation, to which it stands in opposition.” PHILIPPE MALAURIE,
LAURENT AYNÈS & PHILIPPE STOFFEL-MUNCK, LES OBLIG ATIONS 707 (5th ed.
2011) (Author’s translation).
8. LEVASSEUR ET AL., supra note 6, at 3–5.

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