The Louisiana Civil Law Tradition: Archaic or Prophetic in the Twenty-First Century?

• Author: Kathryn Venturatos Lorio
• Position: Leon Sarpy Professor of Law, Loyola University School of Law
• Pages: 1-25

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Leon Sarpy Professor of Law, Loyola University School of Law, New Orleans. The author gratefully acknowledges the research and editorial assistance of Marc Roark, made possible by the support of the Alfred J. Bonomo, Sr. family, and the Rosaria Sarah La Nasa Memorial Scholarship Fund, and to Professor George Bilbe, Loyola University School of Law, New Orleans for reviewing a preliminary draft of this manuscript.

Having the opportunity to deliver the John H. Tucker Lecture is indeed an honor. Although I did not know Colonel Tucker personally, I was quite aware, from the time that I was a law student, of his many contributions to the advancement of the civil law in Louisiana. When Professor Litvinoff called me to extend the invitation to be the Tucker lecturer, I wondered what I could possibly offer to such a knowledgeable and distinguished group of civil law scholars. As I sat in my office contemplating this question, one of my students came in and introduced herself as the daughter of a former student whom I had taught in 1976, my first year of teaching at Loyola Law School. It struck me that I was actually beginning to teach another generation of lawyers about the law of successions in Louisiana. I thought about what a different course it would be for the daughter than it had been for her mother twenty-five years before. I also pondered whether I would be around for another twenty-five years to teach another generation and what in the world that course would be like.

Tonight I want to share with you some of my thoughts regarding those questions and ultimately, regarding the civil law in Louisiana as we begin the twenty-first century. Rather than attempt to speak to the "system" of law in Louisiana, which Professor John Merryman defined as the "operating set of legal institutions, procedures and rules,"¹ I will more accurately address the civil law "tradition" in the state; that is, the "set of deeply rooted, historically conditioned attitudes about the nature of law, about the role of law in the society and the polity, about the proper organization and operation of a legal system, and about the way law is or should be made, applied, studied, perfected, and taught."² I suspect that some of you will disagree with some of my conclusions; my hope is that all of you will not disagree with all of them and that a portion of what is said this evening will enure to the benefit of the civil law tradition of our state. As I Page 2 consider Professor Merryman's definition of legal tradition and think about the changes in Louisiana over the last quarter century, I am sad as I recount some of the revisions that lead me to believe we have indeed lost some of that proud tradition of Roman origin that links rights with responsibilities, where "the individual is more often envisioned in a social context."³ We have amended our Louisiana Civil Code sometimes to the point where it can no longer claim to possess what Jean-Louis Baudoin notes as the essential traits of a civil code, which are "simplicity and internal coherence."⁴ Too often, we have deviated from a methodology where a problem is approached first by looking to the Code for general principles, then to doctrine for explanation of those principles, and only later to prior cases for a view as to how they were interpreted in the past.⁵ We have at times discarded an original code article and have replaced it with a more "modern" version, noting in the official comment that there is "no change in the law," only to realize later that the change in language did effect a substantive change.⁶

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Agreeing that Louisiana is truly a mixed jurisdiction,⁷ possessing qualities of both the common and civil law traditions,⁸ I address my comments this evening to the retention and enhancement of the civil law portion of that mixture, as it so directly affects the private law and lives of our citizenry.

I Archaic Or Prophetic?

Is what remains in Louisiana of the civil law tradition, archaic or prophetic? Are the concepts mutually exclusive or are there aspects of the archaic that render it classic and thus appropriate for prophesying what lies ahead? The word archaic, derived from the Greek word; (See text in Pdf File) (archaikos) is defined as "relating to, belonging to, or having characteristics of an earlier or often more primitive time;" synonyms are "old-fashioned" and "antiquated."⁹ An initial contemporary response might be that if the tradition is archaic, we should discard it since anything old-fashioned is not worth keeping. Yet, as we contemplate the state of the American family today, we may wonder if some of the older ways might be preferable to today's trends, where over one-half of marriages end in divorce¹⁰and twenty-eight percent of children under the age of eighteen live with only one parent,¹¹ usually the mother,¹² and often in poverty.¹³

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Prophetic, from the Greek (See text in Pdf File) (prophetikos) is defined as "foretelling events; tending to indicate what is going to happen."¹⁴It connotes looking into the future and perhaps offering new promise. If indeed prophetic, will our civil law tradition be our entre to yet unknown or undiscovered possibilities that lie ahead? Will it shepherd us into an international arena where our legal heritage will provide us an advantage for communicating with others around the world?

This questioning of the efficacy of our civil law tradition is not new and can be traced back to discussions following the Louisiana Purchase. Having been under both French¹⁵ and Spanish¹⁶ rule prior to this time, the new territory was deeply rooted in the civil law tradition. When Congress divided the Louisiana territory into two parts, the new Territory of Orleans essentially became the State of Louisiana.¹⁷ Subsequently, the first Legislative Council of the territory met in 1806 and proposed that the Territory of Orleans be governed by the Roman and Spanish laws in effect at the time of the Louisiana Purchase.¹⁸ The veto of this act by Governor Claiborne¹⁹marks the first official questioning of the wisdom of retaining the civil law tradition in Louisiana.²⁰ In protest to the Governor's veto, Page 5 the Legislative Council adjourned. Following the publication of a manifesto a few days later, expressing strong support for the civil law, the legislature reconvened on June 7, 1806, and authorized James Brown and Louis Moreau-Lislet to draft a civil code for the territory.²¹ The Governor acquiesced and the Digest of 1808 came into being,²² followed by the Civil Codes of 1825 and 1870.

While the civil law tradition prevailed, it was not long before its efficacy was challenged. Critics from the halls of academe and from the chambers of judges began to question the true civil law nature of the law in Louisiana in the early 1900s.²³ A major challenge came in the form of a "reappraisal" of Louisiana's civil law system which appeared in an article by Professor Gordon Ireland in the Tulane Law Review in 1937.²⁴ Alleging adoption of the common law concept of stare decisis,²⁵ citing areas of the law which had clearly adopted the common law tradition,²⁶ and lamenting the "notorious"declining use of the French language,²⁷ Professor Ireland made a case for his conclusion that "Louisiana is today a common law State."²⁸ He noted that each of the law schools of the state offered "three times as many courses on common law subjects as it offers on the Code or civil law"²⁹ and claimed that "[a]ll instruction is given by the case method."³⁰

The reaction by civil law enthusiasts to these accusations was adamant³¹ and included a collaborative effort by four giants of the Page 6 civil law, Harriet Spiller Daggett, Joseph Dainow, Paul M. Hebert, and Henry George McMahon to refute the conclusion reached by Professor Ireland.³² A number of significant points were made by these scholars, which could easily be made today to educate those who marginalize the significance of the civil law tradition in Louisiana. First, as previously noted, the parameters of the civil law are limited to areas of private law and do not extend to public law, commercial law, or penal law.³³ Second, granted that Louisiana has borrowed heavily from the common law, it has not rejected the civil law tradition.³⁴ Third, the analysis of case law in Louisiana does not equate to adoption of the common law concept of stare decisis, where a single case dictates the outcome of a later dispute, but may be perfectly consistent with the doctrine of jurisprudence constante, where a case may be used to discern a pattern that may aid in interpretation.³⁵

Despite their defense of the civil law tradition in Louisiana, the law professors acknowledged "many deficiencies of civil law education in Louisiana,"³⁶ but optimistically anticipating additional financial support, predicted a brighter future on the horizon for the civil law tradition.³⁷ The "wake-up" call provided by Professor Ireland served to galvanize other civil law advocates as well. Dean Paul M. Hebert of the Louisiana State University Law School and John H. Tucker, Jr. who wrote the enabling act for the creation of the Louisiana State Law Institute in 1938, were among the leaders of the movement to strengthen the civil law tradition in this state. The purpose of the Louisiana State Law Institute, as stated in the statute creating it, was "to promote and encourage the clarification and simplification of the law of Louisiana and its better adaptation to present social needs; to secure the better administration of justice, and to carry on scholarly legal research and scientific legal work."³⁸In 1948, the legislature charged the Institute to prepare a projet for Page 7 the revision of the Louisiana Civil Code.³⁹ In 1960, the Civil Law Section of the...