The Pedagogical Code

• Author: Michael McAuley
• Position: Clarence W. Edwards Associate Professor at the Paul M. Hebert Law Center of Louisiana State University
• Pages: 1293-1304

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Michael McAuley is the Clarence W. Edwards Associate Professor at the Paul M. Hebert Law Center of Louisiana State University. The ideas set forth in this article were first articulated on May 16, 2003 as an address to a meeting of the Association Henri Capitant at the Paul M. Hebert Law Center on the occasion of the Association's Rencontres Louisianaises held to celebrate the Louisiana Bicentenary. This paper is a reworking of that address delivered under the title A Man, a Code and an Approach-Mitchell Franklin and the Pedagogical Vocation of a Civil Code. McAuley is grateful to Professors Robert A. Pascal, J.-R. Trahan, and A. N. Yiannopoulos for their careful reading of this paper and their many helpful comments.

I Introduction

Like colored chips of glass sandwiched and rotated between the disks of a kaleidoscope, the provisions of a bound civil code form patterns of juridical thought in constantly changing symmetry. The intellectual rotation, in time and in space, of a civil code changes the importance, force and spirit of its provisions. Sometimes and for some people, codal provisions appear only to command; at other times and for others, they invite, exhort, annunciate, and instruct. No citizen approaches the code in an identical manner nor does any citizen receive identical normative and non-normative messages. It has always been thus, and that it is thus is good.

It is good that the sometime Louisiana jurist Mitchell Franklin had his own way of looking at civil codes. For Franklin, a civil code had a pedagogical vocation. This article is an apology for Franklin, and an invitation to reconsider (and instill) public instruction as a principle of codification for the civil codes of all peoples and especially for the civil code of the people of Louisiana.

The Louisiana Civil Code is a stew of Romanist legal science seasoned with Anglo-American common law ideas and institutions in part beautifully written¹ and in part barbarously drafted.² The Louisiana Page 1294 Civil Code of today is not the civil code of Franklin's time but can nonetheless be said to belong to that family of civil codes inspired by the French Code civil.³ A French-styled code or code au sens européen has recently been dubbed "une codification (ou recodification) moderne à la française."⁴ According to some, such a French-styled code should not have a pedagogical vocation.⁵ Yet, the French-style Louisiana Civil Code did (and, to a certain extent, still does) have such a vocation. The pedagogy of the 1870 Revised Civil Code (and those parts of that civil code still extant today) has been noted.⁶

Codal pedagogy is not just a clutch of definitions, classifications, examples, and expositions of doctrinal controversies.⁷ It is also a method of instruction in the principles and rules established for the good governance of society and the common good of the citizenry. Franklin, like the early Louisiana jurists and redactors, was interested in the education of citizens and in convincing them of the truth and reason of a certain legal order. The method of redaction of the Louisiana Civil Code had its part to play in this education, but the true education, and thus the true pedagogical vocation, was for Franklin the very content of the code itself. The civil code had, therefore, a pedagogical externality and internality that was of interest to Franklin.

II Franklin And Louisiana Law

Some say that this legend of a man was "frequently incomprehensible."⁸ Others say . . . that "[s]cholarship, erudition, and Page 1295 excitement characterize[d] his classroom performance."⁹ There is a consensus that his classes "[were] the most vivid recollection of practically every Tulane law graduate."¹⁰ Mitchell Franklin (1902-1986), scholar, photographer, and Hegelian philosopher, held the W. R. Irby chair of law at Tulane University in New Orleans from 1930 to 1967. He wrote prolifically on constitutional law matters. His writings are tinged with notions of legal philosophy and political science. However, he had a special interest for Louisiana's legal history of those first years after the 1803 Purchase and the change of legal régimes from those of Spain and France to that of the United States. This succession of states had obvious public law consequences, but it was the private law that was of apparent concern to Franklin.

State succession, as a topic of legal science, relates not only to the immediate transferability of the law but to the ultimate transmissibility of legal knowledge. In this way, a succession of states may be considered punctual on the historical timeline but there is nothing circumstantial or transient about the effects of a succession of governing entities. The transmission of private law knowledge has a custodial functionality. As notions and ideas of law are transmitted between successive governments, the safekeeping of this knowledge grows in importance. For Franklin, this custodial function resided in the incorporation of instructional elements into the Louisiana codification endeavor. Franklin, like Edward Livingston, applauded Louisiana's peculiar expression of the private legal order-a codal expression that contained significant pedagogical material.

On the history of Louisiana law and on the succession of legal régimes, Franklin penned four important articles: "Concerning the Historic Importance of Edward Livingston,"¹¹ "The Place of Thomas Jefferson in the Expulsion of Spanish Medieval Law from Louisiana,"¹² "The Eighteenth Brumaire in Louisiana: Talleyrand Page 1296 and the Spanish Medieval Legal System of 1806,"¹³ and "Some Observations on the Influence of French Law on the Early Civil Codes of Louisiana."¹⁴ This last article (published before the first three) was a presentation to yet another meeting of the Association Henri Capitant-the Journées du droit civil français held in Montreal from August 31 to September 2, 1934.

At these Montreal Journées, Franklin discussed the choices of the four legal systems "in the consciousness of Louisiana:"¹⁵ the Anglo- American common law, the Spanish law, the customary French law, and the new codified law of post-revolution France. As it happened, the drafting models for the 1808 Digest of the Civil Laws in the Territory of Orleans, a digest largely of the Spanish law then current, were the 1800 Projet de l'An VIII and the 1804 French Code civil. Much of the style of the 1808 Digest, which would have a lasting effect on the demeanor and intellectual bearing of the 1825 and 1870 codifications, expressed a preference for the redaction of the Year VIII Project but not because the 1804 Code civil was unavailable (as Wigmore curiously reported in 1916.)¹⁶ The unsure footing of the English law and the uncertainty of the uncodified and customary Spanish law encouraged adoption of the French code models. Moreover, the content of both French and Spanish laws was "in the main the same."¹⁷ In looking to these models, Louisiana also appropriated the bourgeois and anti-feudal ideology that underscored these texts. Although "most appropriate," in Franklin's words, the ideological history of France was not quite that of Louisiana.¹⁸Finally, owing to the then "backward" nature of legal education in the United States, the scarcity of legal materials and doctrinal resources, the Louisiana code would have to have a certain self-sufficiency.¹⁹

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In this regard, Franklin said:

It can be ventured that the draught of Year VIII met the colonial demands better than the Code civil français itself because the draught of the Year VIII was more pedagogic. The Louisiana civil code to-day has 3556 articles, as against the 2281 of the Code civil. The difference in the length of the two codes was a difference, in no small way, between a code that was a code, and a code that was a code, a law-school and doctrine all at once.²⁰

Franklin believed that the more ample Louisiana codes "had closed the door to the use of poorly understood materials when unforeseen, uncodified problems presented themselves."²¹ This was Franklin's principal observation in his address to the 1934 Journées in Montreal, the city of his birth.

Franklin's pedagogical observations on the nature of the Louisiana civil codes were amply confirmed by his later scholarship²² on the dynamic of the succession of states that occurred in the very first years of the nineteenth century, and on the consequences for the transfer and future transmission of legal knowledge-savoir juridique-in this state.

Franklin emphasized the political disorder of the first years after the Purchase. The Louisiana French lived lives of multiple contradictions. They wanted the freedoms of a minority yet they wanted the freedom to enslave other minorities. They desired slavery, yet still they wanted to retain some attachment to the accomplishments of the French and American revolutions. They wanted to be democratic, yet they claimed rights to Spanish medieval law. They prevaricated. They equivocated in their vision of the law. Franklin believed that the introduction of Spanish medieval law by the slave- holding French inhabitants of Louisiana, as proposed in 1806, was "not merely snobbish, pretentious and insolent, but provocative, disruptive Page 1298 and counter-revolutionary."²³ The Digest of 1808 was, for Franklin, the triumph of "the great France over these provincial slave-holding French."²⁴

This "veering about"²⁵ of the Louisianians between different legal systems was best exemplified by the life and times of Edward Livingston himself. A supporter of the continuation of Spanish law- and, arguably, of the pedagogical vocation of the Spanish law, as is clearly present in Las Siete Partidas-Livingston nonetheless wanted to purge this law of its medievalism. In 1806, he wanted to continue the customary anti-code pro-slavery tradition of the...