Vol. 15 No.6 (June 2005), pp.504-506

THE LOUISIANA CIVILIAN EXPERIENCE:  CRITIQUES OF CODIFICATION IN A MIXED JURISDICTION, by Vernon Valentine Palmer.  Durham, NC: Carolina Academic Press, 2005.  304pp. Paper. $35.00. ISBN: 1-59460-060-0.

Reviewed by Rick A. Swanson, Department of Political Science, University of Louisiana at Lafayette.  Email: ras2777@louisiana.edu .

THE LOUISIANA CIVILIAN EXPERIENCE is a series of loosely-connected, previously published, yet slightly revised “historical and comparative critiques of the Louisiana Codes,” which present Vernon Palmer’s views on “the origins and antecedents” of the codes as well as their subsequent development (p.ix).  Palmer states the “general theme of this book” is as follows: “Plant French-Style codes in an utterly different soil.  Subject them to all the pressures and vicissitudes of the mixed jurisdiction experience. After 200 years, assess the results and assemble the academics for a veritable tournament of scholars” (p.x).  Since Palmer is the sole contributing author of the book, however, his text is a tournament of one.

Palmer’s introduction notes that in the year of the Louisiana Purchase (1803), Louisiana was nearly an equal mixture of free whites, black slaves, and Native Americans, but “the prevailing stamp of life and culture” (including politics) was French, even when formerly under Spanish rule.  Thus, although the Territorial Legislature recognized that public law must be uniform with the American federal system, it decided private civil law would be based on codification rather than common law. Accordingly, the legislature enacted a Civil Code named the “Digest,” which was later bolstered by the 1812 Louisiana Constitution. This combination of federal public law with a state private civil code resulted in a “mixed legal system” (p.11).

Palmer’s first essay attempts to resolve the “famous Pascal/Batiza debate” (p.19)—i.e. whether the Digest was predominately based on the then-in-effect Spanish-based code of the Louisiana Territory, or whether it looked more to French civil codes for guidance.  Palmer concludes, based on extensive notes made by the author of the Digest, that the Digest was “a significant step toward a general reception of French law in Louisiana (p.36).  The next essay offers additional evidence to bolster this thesis.  Indeed, by 1828, “eight-five percent of the content of these new codes consisted of French-derived articles” (p.52).  Palmer explains that the Pascal-Batiza debate matters, because it tells “a story about a dominant culture’s attachment to its laws, the effects of substituting alien laws, and the spontaneous reassertion of that attachment when the political opportunity arose” and thus is a story about “the link between law and society.”  He then summarizes the effect of extensive revisions of the Digest between 1828 and the present day.  He concludes by noting although the Digest still has a lasting and significant impact on Louisiana law, “in a number of respects, however, the legacy of the Code Napoléon is nearly extinct” (p.99).  [*505]

Palmer’s next essay discusses the development of France’s Code Noir which regulated slavery in the French colonies of the Caribbean and Louisiana.  Palmer disagrees with previous authors who have argued that the Code Noir was largely based on ancient Roman slave law.  Detailing the differences, he asserts “The grounding of the code is fifty years of France’s own experience with slavery in the New World, not its reliance on the ancient law of Rome” (p.106).

Turning discussion back to the broader, general civil code in Louisiana, Palmer notes how substantial statutory revisions and critical judicial decisions over the last two centuries have caused “the death of a code and the birth of a digest”(p.163). He details what he sees as the serious flaws of the most recent ongoing Revision, so that it has “become more complex and more uncertain” (p.174).  He laments “even if the Revision well reflects the system we want, it is an unavowed abandonment of the system to which we aspired” (p.165).

In the next brief chapter, Palmer first notes there is an ongoing “frenzy of codification” of “feverish intensity” (p.177) as forty-seven nations have enacted codifications since the Second World War.  Both Quebec and Louisiana, for example, are undergoing recodification efforts.  Palmer explains that the need for such recodification is based on three objectives:  “certainty, justice, and modernity” (p.181).   However, recodification is a lengthy and laborious process, and “policy groping rather than policy planning” has bogged down the process in both Quebec and Louisiana.

The penultimate essay, “The Collapse of the General Clause” details how common law tort principles have encroached into Louisiana’s civil code.  The original 1825 “general clause” stated “Every act whatever of man that causes damage to another obliges him by whose fault it occurred to repair it.”  Palmer notes how the “abstractness and brevity” of the clause invited common law clarification and expansion by judges.  The legislature repeatedly responded by codifying specific tort principles, especially in the area of wrongful death, so that the general clause now contains more than 1000 words.  Despite the legislature’s efforts, however, common law principles have been “assimilated” into the jurisprudence of Louisiana tort law:  “The Louisiana mind has become culturally conditioned by Anglo-American thought” (p.221).

Similarly, and in his final essay, Palmer explains how the doctrine of equity in Louisiana has also incorporated jurisprudential elements of the common law.  The 1870 Louisiana Constitution required judges to state the specific statutory basis for their ruling.   The Code itself, however, in a “Directory Provision,” required judges to apply “equity” as a “return to natural law” in the absence of specific positive law.  Moreover, in judicial decisions over the decades, Louisiana courts gave themselves some other limited, yet inherent, equitable powers.  Examining how several specific principles of equity have evolved in Louisiana, Palmer demonstrates that the power of Louisiana courts has extended far beyond what the original drafters of the civil code intended, although it is still significantly short of the power of common law courts. [*506]

The main strength of Palmer’s book is that he has succeeded in the (at least implicit, if not explicit) goal of having his essays serve as a window into a particular legal jurisdiction’s historical struggles with a civil code, especially in the context of a mixed legal system.  All his points are thoroughly supported and documented.  The book certainly has educational value for Louisiana historians, as well as judges and practicing civil code lawyers within Louisiana.  Less obviously, comparative lawyers from civil code jurisdictions around the world should be able to glean various lessons from Louisiana’s experience in their own jurisdictions’ ongoing efforts to create, perpetuate, and re-invigorate civil codes.

That being said, the biggest weakness of the book is the lack of any coherent, central theme that would clarify any helpful lessons it provides.  The fact that the book is simply a collection of previously-published essays is obvious by their piecemeal diversity.  Moreover, it is unclear who his target audience is.  If it is Louisiana legal historians, then all the chapters should be highly useful.  If it is Louisiana legal practitioners, then the chapters are hit-and-miss, as several of the chapters are of historical interest only.  If the target audience is comparative legal scholars or practitioners hoping to learn lessons from Louisiana’s civil code experience, then the lack of essays discussing such fundamental judicial concepts as principles of statutory construction or the power of judicial review (if any) within Louisiana’s civil code experience will leave readers sorely wanting.  Finally, had there been additional essays written specifically for the book, or especially a concluding chapter distilling important themes, the organizational and substantive strength of the book would have been significantly enhanced, regardless of intended audience.

The lack of new or synthesizing essays for the book is especially surprising given that Palmer appears to be an unabashed supporter of civil codes, and his own Louisiana code in particular.  For example, his essay “The Death of a Code—The Birth of a Digest” has almost an angry tone to it.  For example, he concludes that essay by positing numerous unanswered questions about why and how the Louisiana code died, to which he finally states “To bury the Code without examining such questions would cast dishonor upon the law and ourselves” (p.176).  Despite such hyperbole, he leaves out any over-arching framework for the book or additional essays that would enhance his defense of civil codes.  As such, the book should be of interest yet limited use to practicing lawyers, law students, or history students seeking to study Louisiana’s civil code experience.  

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© Copyright 2005 by the author, Rick A. Swanson.