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Summary of the Watson Article (in up to 5 paragraphs)\n\n**1. Law as Transmission Rather than Invention.** \nWatson’s central thesis is that legal development is driven less by organic social necessity than by the *transmission* of legal rules across time and jurisdictions. Legal change, he argues, often occurs through borrowing, adaptation, and imitation rather than through internal social evolution. Legislators and jurists routinely adopt foreign solutions because they are available, intelligible, and prestigious—not because they perfectly fit local social conditions. Thus, law is relatively autonomous from society; it is not merely an expression of prevailing social forces.\n\n**2. The Role of Legal Elites and Intellectual Tradition.** \nWatson emphasizes the decisive role of jurists, commentators, and learned intermediaries in shaping legal systems. Legal doctrine spreads through scholarship, teaching, and elite networks. Codification is not a spontaneous crystallization of popular norms but the product of intellectual activity—often derivative, selective, and sometimes accidental. Lawmakers frequently operate within inherited conceptual frameworks, importing models (e.g., Roman law, French code structures) and reshaping them for new contexts.\n\n**3. Codification as Reorganization, Not Creation.** \nCodification, in Watson’s account, does not represent a complete break with the past. Codes reorganize, synthesize, and systematize pre-existing materials. Even revolutionary codes, such as the French Civil Code, depend heavily on earlier doctrinal traditions. The image of a rational legislator deducing a complete system ex nihilo is historically misleading. Instead, codifiers draw heavily on available sources—commentators, Roman texts, prior customs—often without deep concern for social “fit.”\n\n**4. The Relative Autonomy of Law.** \nWatson challenges the sociological assumption that law mirrors economic or social needs. Law can survive social transformations; it can be transplanted across radically different societies and still function. Legal rules often persist because of institutional inertia, professional conservatism, and intellectual continuity. Legal development thus has its own internal logic, mediated by juristic reasoning and doctrinal structure.\n\n**5. Legal Change as Contingent and Path-Dependent.** \nFinally, Watson stresses contingency. Which rules are adopted depends on which texts are accessible, which scholars are influential, and which traditions carry authority. Legal history is less a story of rational planning or democratic will than of intellectual bricolage. This makes codification and legislative reform deeply shaped by prior materials and inherited categories.\n\n---\n\n## II. Relevance to Your Thought\n\nWatson’s framework intersects with—and in some respects reframes—several themes in your own work.\n\n### 1. Codification and the “Discovery” of Law\n\nIn your essay *Legislation and the Discovery of Law in a Free Society*, you argue that law is not properly “made” but discovered through decentralized processes of dispute resolution, custom, and reasoning. Watson’s account helps explain why even legislative codes often *appear* to discover rather than invent law: codifiers inevitably rely on inherited doctrinal materials.\n\nThis bolsters your position against naïve legal positivism. Even when law is presented as legislation, it is frequently a structured restatement of pre-existing legal principles. In that sense, Watson provides historical ammunition for your argument that law emerges from tradition and juristic reasoning rather than sheer political will.\n\n---\n\n### 2. Commentators and the Juristic Class\n\nYour recent reflections in *Commentators & Codes* resonate strongly with Watson’s emphasis on the central role of learned jurists. Watson’s thesis that legal transmission occurs through intellectual elites dovetails with your interest in Roman jurists, glossators, and civilian commentators as the real engines of legal development.\n\nRather than treating codes as sovereign commands, Watson implicitly supports your more Romanist view: the doctrinal community shapes law through interpretation, systematization, and conceptual refinement. The code becomes a focal point for juristic elaboration—not a closed legislative artifact.\n\nThis reinforces your admiration for the Roman–civilian tradition in which legal science, not legislative omnipotence, drives coherence.\n\n---\n\n### 3. Roman Law and Hypothetical Cases\n\nIn your piece on Roman law and hypothetical cases, you highlight how Roman jurists developed law through structured reasoning about disputes. Watson’s work shows how that Roman intellectual method was transmitted through centuries into modern codes.\n\nThat transmission story explains why civilian systems retain conceptual clarity: they are not raw legislative products but layered intellectual inheritances. This perspective helps explain why you find the civilian conception of property (clean dominium, usufruct, servitudes) superior to the tangled common-law estates. The civilian system is the result of centuries of juristic refinement transmitted through doctrinal continuity.\n\n---\n\n### 4. Watson vs. Leoni/Hayek — A Productive Tension\n\nYour 1993 letter to Herman (fileciteturn0file2) shows you wrestling with Leoni’s and Hayek’s critique of legislation as central planning. Watson complicates that dichotomy.\n\nLeoni: \n- Legislation resembles central planning. \n- Judge-made law resembles market order.\n\nWatson: \n- Even legislation is largely derivative. \n- Codifiers transmit inherited law rather than inventing it. \n\nThis suggests a synthesis that fits your evolving view:\n\n- **Pure legislation (social engineering)** is problematic. \n- **Codification of evolved principles** may be less so. \n\nWatson provides historical evidence that major civil codes function more like *restatements of inherited doctrine* than like planned blueprints imposed ex nihilo. This helps reconcile your Austrian skepticism of central planning with your appreciation of civilian conceptual clarity.\n\n---\n\n### 5. Implications for Your Theory of Property and IP\n\nWatson’s idea of legal autonomy and doctrinal transmission strengthens your broader jurisprudential method:\n\n- Property norms are not arbitrary legislative constructs.\n- They evolve within juristic traditions.\n- Intellectual property, by contrast, appears historically as a legislative intervention lacking deep juristic pedigree.\n\nIn other words, Watson’s transmission theory may indirectly support your anti-IP position: robust property norms have centuries of doctrinal refinement; IP regimes do not share that same organic juristic lineage.\n\n---\n\n## III. Why You Likely Find It So Intriguing\n\nYou are drawn to:\n\n- Roman juristic method \n- Conceptual clarity of civilian property \n- Skepticism of legislative will as ultimate source of law \n- The role of commentators and doctrine \n\nWatson gives you a historical meta-theory explaining how those elements persist across centuries despite political upheaval. He provides the *transmission mechanism* that connects Roman jurists → medieval glossators → French codifiers → Louisiana civilians.\n\nThat transmission story helps explain how law can be “discovered” across generations, even when it is packaged as legislation.\n\n---\n\nIf you’d like, I can next:\n\n- Map Watson explicitly against Hayek and Leoni in a structured comparison table, or \n- Draft a short essay (3–5 pages) integrating Watson into your “discovery of law” framework.","role","assistant",{},"4f3d8117-1481-4387-9dc6-8877b34b8e12",{"_185":199,"_129":200,"_91":201},1771688898.3892388,{"_181":45,"_182":197},{"_193":15,"_194":195,"_108":109,"_110":111,"_112":105,"_113":105,"_115":196,"_117":118},"is_visually_hidden_from_conversation","command","prompt","6be5866f-063f-401e-af9d-81c4328c01d9",[198],"The file contents provided above are truncated/partial snippets. The complete content for these files IS accessible via querying.\n\nIf the user asks a question related to these files, and the provided snippets do not clearly answer it, you **MUST** use the `file_search` tool to search the full document contents before responding.\n\n## How to invoke the file_search tool\nIf the user's query isn't sufficiently answered by the provided snippets, parsed text, or images, you should invoke `file_search.msearch`.\nTo search the full content of the available files, you **must** send one message with recipient `to=file_search.msearch` in the analysis channel. Your message should be structured exactly as follows:\n```\n{\n 'queries': ['Example query 1', 'Example query 2'] // List of up to five queries to search for.\n}\n```\n\nCarefully balance the number of `file_search` calls and the quality of your response with the latency incurred by `file_search` calls.\n\nImportant guidelines for query formatting:\n- Your message must be a valid JSON object. Do not include any extraneous text, backticks, markdown formatting, or comments beyond what is shown.\n- The `queries` field must be a list of strings.\n- One of the queries **MUST** exactly match the user's original question, but stripped of any extraneous details, and with ambiguous references clearly resolved using context from the conversation. It **MUST** be a complete sentence.\n- Even if you suspect the user meant something else, one query **MUST** still be their original question.\n\n## How to handle results from file_search\nThe file search tool will respond with the relevant search results from the full files. After you receive these results:\n- Carefully evaluate each result to determine its relevance and quality.\n- Use the high-quality and relevant results to inform your answer to the user's question.\n- When possible, reuse information from prior file_search results and avoid repeating identical queries.\n\n## Tool usage instructions and ordering\nWhen the user asks a question, carefully consider whether the provided snippets sufficiently answer the query, whether you need to invoke `file_search.msearch`, or another available tool (such as `web`, if available) should be used instead.\n\nTool-ordering Guidelines:\n1. For queries related to uploaded files, if snippets are insufficient, strongly prefer invoking `file_search.msearch` over other tools.\n - Avoid using `web.run`, `python` analysis, or any other tools until you have either:\n - Confirmed with high confidence the answer is not in the files, or\n - Have high confidence `file_search_tool` queries are not sufficient to answer the query.\n2. Avoid usage of `web_search/web.run` for queries related to uploaded files\n - Carefully consider whether the user's query is better answered by web search results rather than available snippets or results from `file_search_tool`.\n - Unless the user's query is clearly unrelated to the uploaded files, prefer using `file_search.msearch`. You can always follow up with a web search if necessary for a more complete response.\n3. Avoid using `python` unless necessary or requested by user.\n - If the user's query is answerable from the parsed text and images from the uploaded files, or from `file_search_tool`, do not invoke `python`.\n\nAlways keep this instruction in mind for the rest of the conversation, as the user may reference these files or ask related questions later on.","tool","file_search",{},{"_185":199,"_129":200,"_91":208},1771688898.3890946,{"_181":45,"_182":206},{"_193":15,"_108":109,"_110":111,"_112":105,"_113":105,"_115":146,"_117":118},[207],"\nRemember you have access to rendered images of pages from the files, in addition to their parsed text content. Some files may include images, while others may not.\nThese may contain embedded text in images, infographics, complex tables, diagrams, and other visual elements not fully captured in the parsed text.\nYou can directly view these images to read text within images, interpret infographics, understand diagrams and complex tables. When applicable, combine insights from both parsed text and images to provide comprehensive and enriched answers.\n\nWhen responding to the user, actively incorporate information from embedded text, images, tables, diagrams, and other visuals in the files when applicable.\nExplicitly reference them by mentioning their location (e.g., page number) and summarizing their content. For example:\n- \"According to the *chart on page 5*, sales have increased by 20% over ...\"\n- \"The *diagram on page 3* illustrates the workflow, highlighting ...\"\n",{},{"_185":199,"_129":200,"_91":220},1771688898.3889382,{"_181":216,"_182":217},{"_194":213,"_193":15,"_214":31,"_166":148,"_108":109,"_110":111,"_112":105,"_113":105,"_115":215,"_117":118},"context_stuff","retrieval_turn_number","cf36c2e3-7c87-4c3a-8894-e7fee6f6fc2e","multimodal_text",[218,219],"Make sure to include fileciteturn0file2 in your response to cite this file, or to surface it as a link.","\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n N\n\nADVANCE \\Y 138.20 N. Stephan KinsellaPRIVATE \n\n 713/752-4360\n\nNovember 4, 1993\n\nProfessor Shael Herman\n\nTulane Law School\n\nTulane University Station\n\nNew Orleans, Louisiana 70118\n\nDear Professor Herman,\n\n\nI just read your recent book, The Louisiana Civil Code: A European Legacy for the United States. I enjoyed it very much and found it very useful in an article I am writing, entitled “Significant and Unique Louisiana Civil Law Concepts Translated and Explained for Common Law Lawyers.” I hope to finish it sometime in the next few months and then attempt to have it published in a Louisiana or Texas law review. I am currently working as a patent and energy attorney in Jackson & Walker in Houston, so it sometimes takes a while to find time to write articles. I just published one in the Louisiana Law Review, entitled “Smashing the Broken Mirror: The Battle of the Forms, UCC 2-207, and Louisiana's Improvements.” I have enclosed a copy which you may find interesting.\n\n\nI lived in London last year studying international law at the University of London, King's College London. I made several friends there, from both common- and civil law countries, and I enjoyed telling them of Louisiana's unique position in the world, from a legal-systematic point of view. Had I found your book then it would have been just what I would have liked to have given them to explain to them more about Louisiana's civilian system. I plan to get some copies of your book from the LBF to send my friends, one an Australian-reared common law lawyer in England, another a Dutch civilian, and others German civilians and Massachusetts and Minnesota common lawyers. I'm sure they'll enjoy it.\n\n\nWhile reading your book, it occurred to me that you might be interested to hear of a book I read a couple of years ago. The book is by Bruno Leoni, who was an Italian legal scholar, and is entitled Freedom and the Law. This is the expanded third edition, published in 1991 by Liberty Fund, Indianapolis, available from Laissez Faire Books, 800/326-0996; the work was originally published in 1961. I also cite the book in footnote 5 to my Battle of the Forms article.\n\n\nWhat made me think of this book were the passages in your recent book discussing a basic difference of outlook behind the common law and civil law—that of belief by civilians in deduction and man's rational ability to draw up laws ahead of time. Leoni, despite being an Italian and thus of course familiar with Italian civil law, points out the problems inherent in making law by legislation as opposed to common law or judge-made law, or even privately-developed law. As he stated, “there is more than an analogy between the market economy and a judiciary or lawyers' law, just as there is much more than an analogy between a planned economy and legislation” (p. 23). Leoni argues—and I agree—that the knowledge of legislators about the society they affect by the laws they pass is, like that of central planners, severely limited. Because of this ignorance, all the effects of a given legislated law cannot be predicted. In the same way that a centrally-planned economy is inefficient, centrally-planned laws (i.e. legislation) are also inefficient.\n\n\nI certainly believed this is correct, and Leoni makes a convincing case for it. I went to LSU Law Center for my J.D. ('91), and when I started to learn about civil law compared to common law, my initial reaction was that I liked civil law better, I felt it to be superior. Partly this was because I believe strongly in the role of reason in man's life, and the civil law, ostensibly being based on reason, and planned out ahead of time, seemed to me to epitomize this. I spoke of this with Professor John Devlin, and he loaned me Holmes's The Common Law. After reading this, and several works by F.A. Hayek, who discusses the spontaneous order and the evolutionary growth of customs and human knowledge, and after having read Leoni, and others such as Sowell's A Conflict of Visions, I've changed my mind somewhat on this. I believe legislation is problematic, and there is simply an information problem there, as Leoni explains. There is also the problem that the legislators' interests are not the same as those they “represent,” which gets into the field of public choice economics, à la James Buchanan and Gordon Tullock.\n\n\nBut I am not sure that a civil code has to be quite as problematic as legislation in general. To the extent that it is a codification and synthesis of evolved caselaw, much like the modern Restatements, it is probably the best of both worlds, because it gets the benefit of caselaw while integrating it and eliminating inconsistencies, and finding underlying principles; as long as the codifiers do not try to meddle too much by molding the law to remake society in their own image. One thing I definitely do prefer is the civilian conception of property. It is clean and workable, whereas the common law's real property concepts are horribly ugly. And then certain “legislated” codes, like the U.S. Constitution, had to break from tradition and start anew—but then, when the norms of the past are corrupt, anyone enacting new norms must walk without a safety net to some extent, I suppose. But this excuse doesn't extend as much to normal laws, which are more practical and less normative than a constitution. One day, if I find time, I'd like to write an article exploring to what extent the civil code is pure legislation (and thus problematic based on Leoni's ideas), and to what extent it is actually a codification and systematization of pre-existing judge-developed principles.\n\n\nSpeaking of the deductive method, I happen to favor this method too, à la Austrian economists like Ludwig von Mises, Murray N. Rothbard, and, more recently, Hans-Hermann Hoppe. Hoppe's recent work is by far the most purely aprioristic, deductive theory I've ever read. I have just written a review essay of his most recent book, which will be published in June or July 1994, in St. Mary's Law Journal, vol. 24, No. 4. I've enclosed a draft which you may find of interest as well. Interestingly, although I favor the deductive method, at least in the Misesian sense, I come somewhat to an opposite conclusion than you do. You link in your book a belief in reason, rationalism, and deduction to a belief in central legislation and code-drafting, and link induction and empiricism to the common-law method of making law. However, Mises and Hoppe favor rationalism, deduction, and, indeed, extreme apriorism; but for them this yields certain principles which show the validity of certain economic, epistemological, and (for Hoppe) principles. These principles point inevitably in the direction of capitalism, i.e. strong individual rights and limited, minimalist government. Which of course, I would think, combining this with Leoni's and Hayek's insights, would mean a person favoring deduction and rationalism favoring limited government and thus favoring judge-made law over legislation. Which is contrary to your view that deduction and rationalism and the Enlightenment confidence in human reason is linked arm-in-arm with legislation as opposed to judge-made law.\n\n\nOnce again, I enjoyed your book, and I hope you find my articles of interest.\n\n\n\n\n\n\n\n\n\nVery truly yours,\n\n\n\n\n\n\n\n\n\nN. Stephan Kinsella\n\nEnclosures\n\n133816 H:KINSELL 9.9300 04/16/08:10:13AM\n\n",{},{"_185":199,"_129":200,"_91":303},1771688898.3887153,{"_181":216,"_182":226},{"_194":213,"_193":15,"_214":31,"_166":90,"_108":109,"_110":111,"_112":105,"_113":105,"_115":225,"_117":118},"c596bbb6-480d-4505-9c1f-6b662b854e6e",[227,228,229,230,231,232,233,234,235,236,237,238,239,240,241,242,243,244,245,246,247,248,249,250,251,252,253,254,255,256,257,258,259,260,261,262,263,264,265,266,267,268,269,270,271,272,273],"Make sure to include fileciteturn0file1 in your response to cite this file, or to surface it as a link.","","THE LOUISIANA\r\nCIVIL CODE\r\nA European Legacy for the United States\r\nShael Herman","",{"_181":274,"_275":301,"_277":302,"_279":280,"_281":280,"_282":-5,"_91":-5},"","The Louisiana Civil Code:\r\nA European Legacy for\r\nthe United States\r\nShael Herman\r\nScholar;in;Residence,\r\nLouisiana Bar Foundation;\r\nProfessor, Tulane Law School,\r\nNew Orleans, Louisiana\r\nThis publication wasmade possible by a grantfrom the InterestOn Lawyers'\r\nTrust Accounts program oftheLouisiana BarFoundation.\r\nLOUISIANA BAR FOUNDATION","",{"_181":274,"_275":299,"_277":300,"_279":280,"_281":280,"_282":-5,"_91":-5},"","Acknowledgments\r\nAcknowledgments\r\nReaders of this book may recognize its debt to an earlier book, S.\r\nHerman, D. Combe, T. Carbonneau, The Louisiana Civil Code: A\r\nHumanistic Appraisal (1981). That book owed its inspiration to Father\r\nDavid Boileau, Loyola University, New Orleans. Father Boileau, a\r\nphilosopher by both training and inclination, correctly saw a need for\r\na non-technical book that explained the Louisiana Civil Code to educated laymen, undergraduate students and judges and lawyers\r\nunschooled in the civil law. Since the publication of A Humanistic\r\nAppraisal, the world has moved decisively in the direction of a \"global\r\nvillage.\" The United States and Canada now constitute a single trading bloc. Other great trading blocs include the European Economic\r\nCommunity, the Asian or Pacific Rim nations, and South and Central\r\nAmerica. A majority of the nations in these other trading blocs belong\r\ngenerally to the civil law family. Indeed, Quebec's Civilian heritage\r\nmakes even Canada straddle the boundary between the common law\r\nand the civil law. When the Berlin Wall fell and the Soviet Union\r\nretreated from eastern Europe, former satellites such as Hungary,\r\nPoland, Czechoslovakia, East Germany and Rumania unearthed their\r\ncivil codes and a Romanist tradition that Communism's heavy boot\r\nhad for forty-five years driven underground. These eastern satellites are\r\nnow proudly reclaiming their shared civilian heritage, and many are in\r\nthe process of modernizing their civilian institutions. In view of these\r\nchanges, the present volume focuses upon the Civil Code as ,a\r\nEuropean artifact. Avowedly European in terms of style and substance,\r\nthe Louisiana Civil Code provides a natural intellectual bridge to\r\nother parts of the world where the civil law tradition is dominant.\r\nThe present book was a team effort, and I should like to thank\r\neveryone who contributed to its publication. Endowed with a sixth\r\nsense about how to make the civilian heritage accessible to both\r\nlawyers and non-lawyers, David Combe constantly offered his counsel\r\non this book's design. I am grateful to David Combe and Thomas\r\nCarbonneau for their permission to adapt and even to suppress ideas in\r\nA Humanistic Appraisal. Amy Goldstein (Tulane Law '93) carefully pre~\r\npared the endnotes. Kevin Hourihan and Kim Koko Glorioso, both of\r\nthe Tulane Law Library, prepared the bibliography. Nick Marinello\r\ndesigned this book and supervised its publication. Larry Seil contributed the pen-and-ink drawings and the cover illustration. Over the\r\nyears Professor R.]. Rabalais, Loyola University, has used A Humanistic\r\niii","",{"_181":274,"_275":297,"_277":298,"_279":280,"_281":280,"_282":-5,"_91":-5},"","Acknowledgments\r\nAppraisal in his law courses, and he encouraged me to publish this volume. On behalf of Tulane Law School, Dean John Kramer kindly\r\nauthorized use of materials that first appeared in A Humanistic\r\nAppraisal, and my thanks are due to Dean Kramer for having enthusiastically encouraged publication of this book. This book was prepared\r\nwhile I served as scholar in residence of the Louisiana Bar Foundation.\r\nFor its generous support, I am grateful to the Louisiana Bar\r\nFoundation, and particularly its officers: James Gulotta, Marcel\r\nGarsaud, Eldon Fallon, Ledoux Provosty, and Louis Westerfield.\r\nShael Herman\r\nNew Orleans, Louisiana\r\nJune, 1993\r\nCover artworkby Larry Seildepicts (clockwise from bottom\r\nleft); WilliamC.C. Claiborne, Pierre A.C.B. Derbigny,\r\nVoltaire, Edward Livingston andNapoleon Bonaparte.\r\niv\r\n1. Vive la Difference\r\n2. European Antecedents\r\nThe Idea of a Civil Code\r\nArchitecture of the Civil Code\r\nThe Vocabulary of the Civil Code:\r\nA Clue to Roman Lineage\r\nThe Civil Code's Historical\r\nSpirit and Values\r\nCivil Codification as an Expression\r\nof the Enlightenment\r\nSocial Unification\r\nCentralization of Governmental Authority\r\nComparative Excursus:\r\nMethodological Implications\r\nof Legislative Supremacy\r\nThe Style of the Civil Code and\r\nIts Political Implications\r\n3. Louisiana's Experience with Civil Law\r\nCivil Law in Louisiana\r\nBefore Codification\r\nCivil Law Versus Common Law\r\nin the Louisiana Territory\r\nSources of Louisiana Digest of 1808\r\nFrom the Louisiana Digest of 1808\r\nto the Civil Code of 1825\r\nv\r\nContents\r\n1\r\n5\r\n8\r\n9\r\n11\r\n12\r\n16\r\n17\r\n18\r\n27\r\n28\r\n31\r\n32","",{"_181":274,"_275":295,"_277":296,"_279":280,"_281":280,"_282":-5,"_91":-5},"","Contents\r\n4. Institutions of the Civil Code\r\nIdeological Pillars of the Civil Code 37\r\nConventional Obligations 38\r\nProperty 44\r\nOwnership 47\r\nPerpetuities 48\r\nServitudes 49\r\nDelictual Liability 50\r\nThe Family 53\r\nCommunity Property 54\r\nThe Future of Codification 55\r\nAppendix A\r\nChronology of Significant Events in\r\nLouisiana's Early History 57\r\nAppendix B\r\nBiographical Sketches 58\r\nAppendix C\r\nTable of Contents of Louisiana Civil Code 61\r\nBibliography 63\r\nNotes 71\r\nvi","",{"_181":274,"_275":293,"_277":294,"_279":280,"_281":280,"_282":-5,"_91":-5},"","The Louisiana Civil Code, a one-volume blueprint for society, is among the most significant\r\nlandmarks in American legal history. Inspired by\r\nthe continental Roman tradition rather than by\r\nEnglish law, the Civil Code makes Louisiana a\r\nunique American jurisdiction. Louisiana law,\r\nbecause it bears the imprint of Roman, Spanish,\r\nand French law, forces local lawyers to conceive\r\nlegal issues differently than their counterparts\r\n1\r\nLouisiana's civilliiw\r\nheritage givesthe state\r\ndistinctive perspectives\r\non European law.","",{"_181":274,"_275":291,"_277":292,"_279":280,"_281":280,"_282":-5,"_91":-5},"","Louisiana Civil Code\r\nelsewhere in the United States. The distinctive policies underlying the\r\nLouisiana Civil Code affect business practices and estate planning.\r\nCivil juries are less common in Louisiana than in other areas of the\r\ncountry. Unlike their counterparts elsewhere in the United States,\r\nnotaries are office lawyers, not clerks.\r\nCivilians are proud of their scholarship, their intellectual cultivation, and their ability to read law in foreign languages. The Civil Code\r\nis the raison d'crre of civilian research. Civilians know French thinkers\r\nlike Descartes and Rousseau as well as English philosophers like Locke\r\nand Hobbes. The doctrinal works of Jean Domat and Robert Pothier\r\nare as important for understanding the Civil Code as James Madison's\r\nFederalist Papers are for the United States Constitution.\r\nDuring a formative period in Louisiana's history shortly after the\r\nLouisiana Purchase of 1803, local Spanish and French minorities stubbornly resisted attempts of American authorities to replace the social\r\nvision of their civil law with common law perspectives that other\r\nfledgling states were importing from England. The resistance of these\r\nlocal inhabitants permanently influenced the shape and substance of\r\nLouisiana's private law, which today remains almost as different from\r\nthe rest of American law as the metric system is from the English system of measurement.\r\nBecause there is in the United States a national drive to uniformity\r\nin law, the worth of the Louisiana Civil Code is constantly questioned;\r\nand one is naturally led to wonder if Louisiana's stubborness has a\r\npoint. While local lawyers, in defense of their code, invoke the slogan\r\n\"vive la difference,\" one may legitimately wonder if appreciating \"la\r\ndifference\" is worth all the trouble in a society where the intellectual\r\nspirit is intensely pragmatic, and law is an already complicated discipline. Partisans of the civil code believe it is. An explanation of this\r\nthinking springs from Socrates' injunction, \"know thyself.\" Self-knowledge implies comparisons. In a common law nation where culture is\r\ndistinctively Anglo-Saxon and the national language is English, the\r\nCivil Code offers distinctive perspectives on social and economic organization. Different ways of conceiving issues sharpen thinking about\r\nAmerican problems. As sole heirs in the United States to the\r\nRomanist tradition, Louisiana lawyers are suited to interpret foreign\r\nexperience to Americans and American experience to foreigners. The\r\nCivil Code, the most important American symbol of the continental\r\n2\r\nVive la Difference\r\ntradition, provides an intellectual bridge across the English Channel,\r\ndown to Latin America, and to many African and Asian states. As\r\nlawyers in a mixed jurisdiction, we share a tradition with our counterparts in jurisdictions like Quebec, Scotland, South Africa and Israe.1. 2\r\nStudents from Latin America and nations of the European Community\r\nrealize that a lawyer ignorant of the Civil Code's intellectual furniture\r\n- forced heirship, usufruct, predial servitudes and a wide range of\r\npeculiarly civilian institutions traceable ultimately to Roman law - is\r\nnot a whole lawyer.\r\nA knowledge of the Civil Code forces us to evaluate our own convictions, and pace Shakespeare, to recognize that \"there are more\r\nthings in heaven and earth than are dreamt of in our philosophy.\" As\r\nour colleagues from elsewhere enjoy pointing out, Louisiana is in legal\r\nmatters the lone holdout, the odd number. In matters of cuisine and\r\nmusic, our oddness is hardly bad. The case for our law is less obvious\r\nand therefore harder to make. But we must try. Before we praise the\r\nancient Louisianians as steadfast or condemn them as stubborn, we\r\nmust understand the social vision they sought to preserve. This book\r\nilluminates the Civil Code's role in Louisiana legal experience by reference to its historical and philosophical spirit, its social and economic\r\nperspectives, and its institutions and terminology. The book is divided\r\ninto three interrelated sections: \"European Antecedents,\" a narrative\r\nof Louisiana's debt to continental legal evolution; \"Louisiana's\r\nExperience with Civil Law,\" an account of the way that the early\r\nLouisianians imported the continental tradition and then lodged it in\r\nthe Louisiana Civil Code; and \"Institutions of the Civil Code,\" a perspective on Louisiana's private law.\r\n3\r\n7S'7Z","",{"_181":274,"_275":289,"_277":290,"_279":280,"_281":280,"_282":-5,"_91":-5},"","The French ancien\r\nregime (King Louis\r\nXIV) meets the\r\nFrench Revolution\r\n(Napoleon Bonaparte) The Idea of a Civil Code\r\nAn appreciation of the unique place of-the\r\nLouisiana Civil Code in American law calls for an\r\nexplanation of the idea of civil codification in\r\ngeneral, or more precisely, the idea of civil codification in the Romanist legal tradition. What historical forces were associated with the conception\r\nof a civil code? What were its goals and political\r\nassumptions? Answering these questions requires\r\nintellectual bifocals: our attention must alternate\r\nbetween the historical setting of the Code\r\nNapoleon of 1804 and the immediate context of\r\nthe Louisiana Civil Code, which dates from 1808,\r\nthe year in which the Louisiana legislature passed\r\nthe original Digest of the Civil Law Now in Force in\r\n5","",{"_181":274,"_275":287,"_277":288,"_279":280,"_281":280,"_282":-5,"_91":-5},"","Louisiana Civil Code\r\nthe Territory of Orleans.\r\nThe starting point for our inquiry is the term \"civil code.\" Code,\r\nfrom the Latin word codex, meant a surface used for writing. By the\r\nnineteenth century when the French Civil Code appeared, people had\r\nbeen writing codes for centuries. The Code of Hammurabi was a product of ancient Babylonian civilization; the \"Barbarian\" codes of western Europe appeared between the sixth and ninth centuries; during the\r\nfifteenth and sixteenth centuries, French jurists collected into codifications the customs of France. Modern day California has enacted a\r\n\"civil code.\" These codes, unlike the Code Napoleon and the\r\nLouisiana Civil Code, collected the law preceding codification without\r\nsubstantially changing or organizing it. By contrast, the French and\r\nLouisiana Civil Codes represented revolutionary changes in politics,\r\nsocial perspective, and legal technique) Unlike the other codes we\r\nhave mentioned, the Code Napoleon and the Louisiana Civil Code\r\nwere comprehensive, logical organizations of general principles of law\r\nto be applied by deduction and extended to new circumstances by analogy. -\r\nAs Professor Ferdinand Stone has pointed out, a preference for a\r\ncivil code reflects a particular world view; and in the United States,\r\nbecause it is dominated by common law attitudes, the civilian's world\r\nview is distinctive:\r\nOne might say that the world is divided into two manners of men: the man who says: \"I have in my pocket a\r\nblueprint plan of the universe, complete and written\r\ndown: whenever I meet a new problem or have an old\r\none I have only to consult my plan and by simple logic\r\ndeduce the appropriate answer.\" Of such men are good\r\ncivil law lawyers made: and the man who says: \"I don't\r\nhave a preconceived plan for the universe all written\r\ndown: I can't anticipate all the problems of the world:\r\nI'll meet them as they come, one by one bringing to\r\nbear upon them my experience and common sense,\r\nand I'll not lay down any general rule, but answer only\r\nthe problem before me.\" Such men make good common law lawyers. From these different positions cer~\r\ntain conclusions seem possible: First, the man who\r\n6\r\nEuropean Antecedents\r\nlives by the preconceived plan will find his stability,\r\nhis security in the written word - the code -~ the\r\nstatute -~ and will say that the general principles set\r\nforth therein survive even erroneous application,\r\nwhile the man who declares that he has no preconceived plan, but only individual solutions to particular\r\nproblems, is apt to find his stability, his ~ecurity ir: ~he\r\nindividual instances and their conscientious repetitton\r\nin experience.f\r\nThe term \"civil code\" implies social regulation by means of general\r\npropositions. \" . .\"\r\nDeriving from the Latin civitas (city), the term CIVl1 denotes that a\r\ncivil code's basic focus is the regulation of citizens' daily relations, not\r\ntheir relations with the state, which are the subject of public law.\r\nColonel John H. Tucker, Jr.'s foreword to the newest edition of ~h.e\r\nLouisiana Civil Code underscores the characterization of the CIvl1\r\nCode as a social blueprint and confirms that its regulation is from eradle to grave. Addressing the legal profession of Louisiana, Colonel\r\nJohn Tucker remarked:\r\nThe Civil Code is your most important book because\r\nit ushers you into society as a member of your parer:ts'\r\nfamily and regulates your life until you reach matunty.\r\nIt then prescribes the rules for the establishment of\r\nyour own family by marriage and having chil~ren,. and\r\nfor the disposition of your estate when you die, either\r\nby law or by testament subject to law. It tells how you\r\ncan acquire, own, use, and dispose of property .... It\r\nprovides the rules for most of the special contr~cts\r\nnecessary for the conduct of nearly all of your relations\r\nwith your fellowman ... and finally, all of the rights\r\nand obligations governing your relations with your\r\nneighbor and fellow man generally.>\r\nAn examination of the code's structure reinforces Colonel Tucker's\r\nclaim.\r\n7","",{"_181":274,"_275":285,"_277":286,"_279":280,"_281":280,"_282":-5,"_91":-5},"","Louisiana Civil Code\r\nArchitecture of the Civil Code\r\nAnyone who leafs through the Louisiana Civil Code will be irnrnediately impressed by its format. Unlike a typical American lawbook\r\nfilled from end to end with judicial decisions, the Civil Code is a collection of organically and logically interrelated articles, written in a\r\nterse, staccato style. Like the Code Napoleon of 1804 the Louisiana\r\nCivil Code consists of three main books: \"Of Persons,\" '~Of Things and\r\nGaius thejurist viewedsocial\r\ninteraction as a civildrama\r\nconsisting of persons, things\r\nand actions.\r\nthe Different Modifications of Ownership,\" and \"Of the Different\r\nModes of.Acquiring the Ownership of Things.\"6 The code's tripartite\r\nstructu~e IS ~enerally thought to have a Roman pedigree; according to\r\nsome historians, the structure is traceable to the Roman jurist Gaius's\r\nfamous maxim, omne autem ius quo utimur vel ad personas pertinet vel ad\r\nres, vel ad actiones.t (The whole of the law we observe relates ei~her to\r\npersons, things, or actions.') One of the most important compilations\r\nof Roman law, the Institutes of the Roman emperor Justinian, followed\r\nthe format suggested by Gaius's maxim, thereby endorsing it to future\r\ngenerations of civil lawyers. Gaius' divisions, because they expressed a\r\n8\r\nEuropean Antecedents\r\nview of social relationships as a civil drama that developed successively\r\nthe actors (persons), the stage set (things), and the dramatic a~tion\r\n(modes of acquiring ownership), naturally appealed to lawyers with a\r\nclassical turn of mind.\r\nA review of the table of contentsf of the Louisiana Civil Code also\r\nconfirms Colonel Tucker's claim about the generality of the Civil\r\nCode's application. Book One, \"Of Persons,\" regulates lega~ pel~s~nali~\r\nty, domicile, marriage, separation, divorce, legitimate and 11le~ltlll:ate\r\nchildren, adoption, paternal authority, tutorship, and emancipation.\r\nBecause Book One regulates matters of personal status (is one married\r\nor widowed? a major or a minor?), it implicates property questions covered in succeeding books. Book Two, \"Of Things and the Different\r\nModifications of Ownership,\" covers the general law of movable and\r\nimmovable property, predial and personal servitudes, usufruct, building\r\nrestrictions, and boundaries. Book Three, \"Of the Different Modes of\r\nAcquiring the Ownership of Things,\" is the longest of th~ .three boo~s.\r\nAs its title implies, Book Three regulates the ways that CItizens acquire\r\nand lose property, including successions, testaments, donations, delic.ts,\r\ncommunity property, and many contracts - sale, lease, partnership,\r\nloan, deposit, mortgage, mandate, suretyship, compromise, and pledge.\r\nThe Vocabulary of the Civil Code: A Clue to Its Roman Lineage\r\nAs Bernard Shaw's Pygmalion? indicated, origins affect speech patterhs. Even the partial list of topics in the preceding section besp~ks\r\nthe Civil Code's exceptional lineage. A lawyer from elsewhere in the\r\nUnited States could not expect to understand its vocabulary just\r\nbecause he had studied law. This is so because the Louisiana Civil\r\nCode, unlike any other lawbook in force in the United S~ates, employs\r\nthe terminology and conceptions of French and Spanish law, both\r\nheavily indebted to Roman law.l\" Thus the Civil Code's conception of\r\nproperty, derived from. the Roman idea of dominium, is based on three\r\nelements - usus (use), fructus (fruits), and abusus (abuse, power to\r\nsell). A visiting lawyer, after searching the code in vain for standard\r\ncommon law concepts of property law such as \"life estate\" and\r\n\"remainder,\" would have to content himself with their rough equivalents usufruct (Latin: use and fruits) and naked ownership (French: nupropriete). In the sale articles, the visitor would find that a d~~trine of\r\nlesion (Latin: laesio), nearly identical to that of the French CIvIl Code,\r\n9","",{"_181":274,"_275":283,"_277":284,"_279":280,"_281":280,"_282":-5,"_91":-5},"","European Antecedents\r\nThe Civil Code's Historical Spirit and Values\r\nAppreciating the Louisiana Civil Code's significance requires a\r\nshort account of the assumptions and goals of its ancestor, the French\r\nCivil Code. As we shall detail in later sections, Louisiana drafters, by\r\nimplanting conceptions of the civil law in Louisiana, affirmed a commitment to a French perspective on law and society. For Frenchmen at\r\nthe dawn of the nineteenth century, the first goal of civil codification\r\nwas to render the law accessible by making it clear. To accomplish this\r\ngoal, a code had to be complete in its field and had to lay down general\r\nrules in logical sequence. For France, unification through codification\r\nthe United States. As direct descendants of the Roman legal tradition,\r\nmodern civil codes make Roman law the oldest living law in the western world. Conscious of pedigree and lineage, civilians like to point\r\nout that the Roman law tradition was already older at the time of the\r\nNorman Conquest of England in 1066 than the common law tradition\r\nis today. Even if the ancestry of the Louisiana Civil Code were traced\r\nno further back than the rebirth of the study of Roman law in\r\nmedieval Italy about 1100, it would be as old as the earliest artifacts of\r\nEnglish common law. Because Roman jurists were lawyers par excellence, their solutions to common problems are often as fresh today as\r\nthey were when they were formulated. According to source studies,\r\nRoman texts supplied the actual wording and conception of some artides of the Louisiana Civil Code. 13 Many doctrines of the present\r\nLouisiana Civil Code had already appeared over five hundred years ago\r\nin works of great medieval glossators and commentators like Baldus 14,\r\nBartolus,15 and Accursius.Iv The Civil Code's links to French\r\nRomanists like Jean Domatl? and Robert Pothierlf are clearer still:\r\nProfessor Rodolfo Batiza's source studies of the -Louisiana Civil Code\r\nshow that its drafters borrowed almost verbatim directly from these\r\nwriters or indirectly from them through the Code Napoleon. Whether\r\nthe sources were direct or indirect, their relevance in Louisiana today\r\nis unquestioned: Louisiana lawyers and judges still venerate ancient\r\nRoman and civil law sources and doctrinal writers. In quest of a doctrinal-gloss on a particular code article, a Louisiana jurist delights in finding support for arguments among the ancient civilians who contributed generously to the style and substance of the present Civil\r\nCode.\r\nFrench philosopher\r\nFran~ois Marie Arouet\r\n(pen name: Voltaire)\r\nLouisiana Civil Code\r\nregulates the pr.ice in a sale. He would discover a number of other\r\n~.~~an ~a~ sur~Ivors: :he Roman actio redhibitoria, a warranty claim for\r\n1 en e ects In an Item; mandate, a Roman form of agency agreement; the partnership in commendam, a continental form of limited\r\npartnership derived from medieval commercial law; mutuum and com-\r\n;odatu7' t~~ forms of loans that were well established in classical\r\noman aw ong before French and Spanish law borrowed them· and\r\na ~oddedrnd law of c.ommunity property that descended from the Sp~nish SOGe a e gananclas.l2\r\nAs these references to Roman Spanish and F h h L \". ',renc sources suggest\r\nt l~ o~IsIan~ Civil ~ode belongs to a venerable legal tradition much\r\no er t an t e EnglIsh common law, the dominant legal tradition in\r\n10 11","",{"_181":274,"_275":276,"_277":278,"_279":280,"_281":280,"_282":-5,"_91":-5},"","Louisiana Civil Code\r\nwas a special challenge because there were over three hundred regional\r\ncustoms in force in the ancienregime. As Voltaire, the French philosophe\r\nnoted, the law in pre~revolutionary France was neither unified nor\r\nclear:\r\nIs it not an absurd and terrible thing that what is true\r\nin one village is false in another? What kind of bar\r\nbarism is it that citizens must live under different laws?\r\n... When you travel in this kingdom you change legal\r\nsystems as often as you change horses ?19\r\nAbove all else, French legal unification, because it was an expression of French nationalism, entailed territorial, political, and social\r\nunification. When unification finally occurred, it rested on an ideolog~\r\nical commitment to democracy and economic liberalism. These goals\r\ncould not have been achieved without intense faith in the power of\r\nhuman reason, unaided by traditional disciplines like theology, to\r\nmake sense of the universe. This faith in rationalism distinguished the\r\nFrench Civil Code and the Louisiana Civil Code as \"modern\" legal documents.\r\nCivil Codification as an Expression of the Enlightenment\r\nThe Louisiana Civil Code shares with the French Civil Code the\r\nspirit of the Enlightenment, a period after the Renaissance inspired by\r\noptimism and faith in the capacity of human reason to guide the\r\ncourse of human affairs. In law as in natural sciences, Enlightenment\r\nthinkers directed their minds toward discovering and ordering general\r\nideas as premises from which consequences logically could be deduced.\r\nIn short, the Enlightenment, from a philosophical perspective, was an\r\nera of rationalistic system~building.\r\nThis system-building was nurtured by an era of logic in Europe her\r\nalded by Rene Descartes' Discourse on Method.2o \"I have been very\r\nlucky,\" Descartes wrote, \"for certain paths that I have followed ever\r\nsince my youth have led me to considerations and maxims out of\r\nwhich I have formed a method; and this, I think, is a means to the\r\ngradual increase in my knowledge that will raise it little by little to the\r\nhighest point allowed by the mediocrity of my mind and the brief dura12\r\nEuropean Antecedents\r\ntion of my life.\"21 Descartes believed nature had engraved on the\r\nhuman mind elementary precepts or rules for the improvement of\r\nknowledge.\r\nThe first (rule\nThe file is too long and its contents have been 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sure to include fileciteturn0file0 in your response to cite this file, or to surface it as a link.","","DATE DOWNLOADED: Tue Jul 29 18:48:12 2025\r\nSOURCE: Content Downloaded from HeinOnline\r\nCitations:\r\nPlease note: citations are provided as a general guideline. Users should consult their preferred\r\ncitation format's style manual for proper citation formatting.\r\nBluebook 21st ed.\n\t\t\t \r\nShael Herman, Under My Wings Every Thing Prospers: Reflections upon Vernon Palmer's\r\nThe Louisiana Civilian Experience: Critiques of Codification in a Mixed Jurisdiction,\r\n80 TUL. L. REV. 1491 (March 2006). \r\nALWD 7th ed. \r\nShael Herman, Under My Wings Every Thing Prospers: Reflections upon Vernon Palmer's\r\nThe Louisiana Civilian Experience: Critiques of Codification in a Mixed Jurisdiction,\r\n80 Tul. L. Rev. 1491 (2006). \r\nAPA 7th ed. \r\nHerman, Shael. (2006). Under my wings every thing prospers: reflections upon vernon\r\npalmer's the louisiana civilian experience: critiques of codification in mixed\r\njurisdiction. Tulane Law Review, 80(4), 1491-[ii]. \r\nChicago 17th ed. \r\nShael Herman, \"Under My Wings Every Thing Prospers: Reflections upon Vernon Palmer's\r\nThe Louisiana Civilian Experience: Critiques of Codification in a Mixed\r\nJurisdiction,\" Tulane Law Review 80, no. 4 (March 2006): 1491-[ii] \r\nMcGill Guide 10th ed. \r\nShael Herman, \"Under My Wings Every Thing Prospers: Reflections upon Vernon Palmer's\r\nThe Louisiana Civilian Experience: Critiques of Codification in a Mixed Jurisdiction\"\r\n(2006) 80:4 Tul L Rev 1491. \r\nAGLC 4th ed. \r\nShael Herman, 'Under My Wings Every Thing Prospers: Reflections upon Vernon Palmer's\r\nThe Louisiana Civilian Experience: Critiques of Codification in a Mixed Jurisdiction'\r\n(2006) 80(4) Tulane Law Review 1491 \r\nMLA 9th ed. \r\nHerman, Shael. \"Under My Wings Every Thing Prospers: Reflections upon Vernon Palmer's\r\nThe Louisiana Civilian Experience: Critiques of Codification in a Mixed\r\nJurisdiction.\" Tulane Law Review, vol. 80, no. 4, March 2006, pp. 1491-[ii].\r\nHeinOnline. \r\nOSCOLA 4th ed. \r\nShael Herman, 'Under My Wings Every Thing Prospers: Reflections upon Vernon Palmer's\r\nThe Louisiana Civilian Experience: Critiques of Codification in a Mixed Jurisdiction'\r\n(2006) 80 Tul L Rev 1491 x Please note: citations are provided as a\r\ngeneral guideline. Users should consult their preferred citation format's style\r\nmanual for proper citation formatting. \r\nCite this document \r\nPinCite this document\r\n-- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and \r\n Conditions of the license agreement available at \r\nhttps://heinonline.org/HOL/License\r\n-- The search text of this PDF is generated from uncorrected OCR text.","","BOOK REVIEW\r\nUnder My Wings Every Thing Prospers:\r\nReflections upon Vernon Palmer's The\r\nLouisiana Civilian Experience-Critiques of\r\nCodification in a Mixed Jurisdiction\r\nShael Herman*\r\n1. INTRODUCTION ........................................................................... 1493\r\nII. CODIFICATION: THE CENTERPIECE OF THE INQUIRY ................. 1499\r\nA. Three Perennial Questions ............................................... 1499\r\nB. BtiefAnswers to the Questions ....................................... 1500\r\nC Two Other Questions ........................................................ 1502\r\nD. Historical Background of the French Civil Code ........... 1502\r\nE Civil Code as a Well-Tempered Insrument for\r\nSocial O rder ...................................................................... 1503\r\nE French Vision ofLawmaking Shapes Law in the\r\nNew A m eican State ......................................................... 1504\r\nG. The Pre-RevolutionaryParlements' Interference in\r\nGovernmental Machinery Prompts Subordination of\r\nJudges Afier the Revolution ............................................. 1505\r\nH. Louisiana Drafiers Inspired by French Doctrine ............ 1507\r\nI Two Puzzles and a Paradox .............................................. 1510\r\n1. Circumstances in France and Louisiana\r\nIndicate Impracticality of the R~f~r6 Ldgislatif ..... 1510\r\n2. Puzzle II: American Constitutionalism Amok\r\nUnder the Rfr6 L6gislatf .................................... 1512\r\n3. P aradox ..................................................................... 15 12\r\nJ Livingston Shared Jefferson \" Concern over the\r\nJudiciary's Invasion ofLegislative Province ................... 1514\r\nK The Civil Code a Holy Grail, Is It Beyond Our Grasp?. 1515\r\nL. Code versus Digest (A Parenthetical) ............................. 1517\r\nM Louisiana \"s Codification Experience .............................. 1517\r\n* John Minor Wisdom Professor of Civil Law (Emeritus) Tulane University School\r\nof Law; Visiting Professor, University of Pantheon Assas (Paris II); Member, Academy of\r\nEuropean Private Lawyers, Milan. J.D. 1969, Tulane University School of Law; M.A. 1965,\r\nTulane University; B.A. 1964, Tulane University. This Article is dedicated to the memories of\r\nJohn Minor Wisdom (1905-1999), Saul Stone (1906-2001), and David Stone (1939-2005).\r\n1491","",{"_181":274,"_275":373,"_277":374,"_279":280,"_281":280,"_282":-5,"_91":-5},"","TULANE LA W REVIEW\r\nN Ambiguity of \"Civil Law ............................................... 1519\r\n0 Nineteenth-CentuiyDynamism of CivilLaw: Civil\r\nLaw as a Universal or Naional Phenomenon ................. 1519\r\nP Civil Law as aParticular Natonal Law .......................... 1520\r\nQ Spanish and French Law Compared ............................... 1521\r\nR. Spanish Conservatsm versus French Revolution ........... 1522\r\nS, Napoleon Plan To Regain Louisiana Permanently ....... 1525\r\nT Politcal Stakes ................................................................. 1527\r\nU Code versus Digest .......................................................... 1529\r\nV Case Precedents andDrafters 'Comments in the\r\nCode ofPractice ............................................................... 1532\r\nW The Enduring Vitality of the OldArticles ....................... 1535\r\nX A Fondness for Cases ....................................................... 1536\r\nY Other Complications Faced by LawRefonners ............. 1540\r\nZ Dependency ofState LawmakingProjects upon the\r\nFederalFram ework ........................................................... 1540\r\nAA. Demands for Uniforiy ................................................. 1542\r\n1. Exam ple O ne ........................................................... 1542\r\n2. Exam ple Tw o ............................................................ 1543\r\n3. Exam ple Three ......................................................... 1543\r\nIH. MYSTERY, BRICOLAGE, AND THE GENESIS OF CODES ............... 1544\r\nA . B ricolage ........................................................................... 1544\r\nB. An Introduction ................................................................ 1545\r\nC Maimonides, Mystery, andLegitimacy .......................... 1547\r\nD. The French Code civil as Secular Scripture .................... 1548\r\nE Mystery andBricolage in the Louisiana Codes .............. 1549\r\nE Pascal-Batiza Debate on Sources of the Digest .............. 1550\r\nG. Pregnant Silence: I .......................................................... 1552\r\nH. Pregnant Silence: fI ......................................................... 1553\r\nI The French and Spanish Connections ............................. 1555\r\nJ Other Factois Contribute to a Perception ofSpanish\r\nLaws\" Declining Influence ............................................... 1556\r\nK R eservations ..................................................................... 1557\r\nL. Spanish Elem ents ............................................................. 1559\r\nM Ordinances andInstructions ofAlejandro O'Reilly,\r\nCaptain General ofLouisiana .......................................... 1563\r\nN Foreclosure by Executory Process ................................... 1566\r\n0 Equtyin a Mixed Jurisdiction ......................................... 1567\r\nP Injunctive Relief .............................................................. 1568\r\nQ Recepon ofPmrqgatie Wits as a Common Law s tiion. 1571\r\nIV C ONCLUSION .............................................................................. 1571\r\n1492 [Vol. 80:1491","",{"_181":274,"_275":371,"_277":372,"_279":280,"_281":280,"_282":-5,"_91":-5},"","2006] CODIFICA TION IN A MIXED JURISDICTION 1493\r\nI. INTRODUCTION\r\nThirty years ago, I brought a distinguished comparative law\r\nscholar a new book, Professor Joseph Dainow's The Role of\r\nilisprudence and Doctrine in Civil Law and Mixed Jurisdictions.'\r\n\"Mixed jurisdictions,\" he mused, \"in these parts those places are\r\nknown as bastards.\" The expletive caught me off guard. As a law\r\ngraduate from one of \"those places,\" I had long believed that training\r\nin a dual legal heritage was a professional advantage. Characterized as\r\nillegitimate, however, a dual tradition seemed a handicap. It was true\r\nthat legal training, at least for Louisiana students, had exceptional\r\ncosts: a curriculum oriented to both civil law and common law was\r\nmore complex than one oriented to a single legal tradition, but a dual\r\ncurriculum was indispensable for Louisiana lawyers who were\r\nexpected to be proficient in both the State's civil law and the dominant\r\ncommon law practiced elsewhere in the United States. Legal issues\r\noriginating from practitioners outside of Louisiana had to be explained\r\nin terms of the civilian lexicon. Recruiting teachers was complicated\r\nby the fact that the pool of potential scholars equipped to teach both\r\ncivil law and common law subjects was shallower than a national pool.\r\nMaterials suitable for civil law courses had to be prepared almost\r\nexclusively within the state because a single-state market did not\r\nappeal to national publishers such as West. But these unusual costs did\r\nnot seem to translate into illegitimacy.\r\nOn reflection, I realized that some of the essays in Professor\r\nDainow's book had hinted at a possible connection between the\r\nlegitimacy of a legal system's birth and the political behavior of its\r\ninstitutions.2 More concretely, for example, judges imbued with both\r\ncommon law and civilian ideals might differ from their counterparts\r\nelsewhere in the United States on important ideas such as stare decisis,\r\njudicial review of legislation, and separation of powers. Contributed\r\nby scholars from traditional civil law systems [for example, Germany,\r\nFrance] and mixed jurisdictions [for example, Louisiana, Quebec]\r\nProfessor Dainow's collection specifically focused upon the legitimacy\r\nof law created by unelected judges A number of the authors also\r\nquestioned the legitimacy of legal doctrine produced by academicians.!\r\nBy juxtaposing scholarly reflections on these perennial civilian\r\n1 THE ROLE OF JUDICIAL DECISIONS AND DOCTRINE IN CIVIL LAW AND IN MIXED\r\nJURISDICTIONS (Joseph Dainow ed., 1974).\r\n2. See generally id\r\n3. Id. at 1, 23,91,133.\r\n4. See geneally id.","",{"_181":274,"_275":369,"_277":370,"_279":280,"_281":280,"_282":-5,"_91":-5},"","TULANE LA W REVIEW\r\nthemes, Professor Dainow seemed keen both to legitimate the mixed\r\njurisdictions and enhance their prestige. If writers from Louisiana,\r\nQuebec, and Scotland could hold their own in debates with their\r\ncounterparts from a traditional civil law orbit, then perhaps these legal\r\nsystems constituted a third legal family deserving a place alongside\r\ntraditional civilian and common law systems.!\r\nProfessor Dainow's theme seemed to offer special advantages for\r\nLouisiana law. \"Mixity\" was a convenient term for calling a truce in\r\nthe long academic debates over the true nature of Louisiana law. In\r\nthese debates, counterposed views could often be distilled into\r\nquestions with practical implications for legal education: was\r\nLouisiana a civil law island in a common law sea? If this\r\ncharacterization was accurate, then it would be reasonable for students\r\nplanning to practice law in Louisiana to follow a double curriculum as\r\nstudents in Quebec did. Alternatively, was Louisiana a common law\r\nstate no different from others except in minor details? If so, then law\r\nstudents, instead of taking a battery of civil law courses, could take a\r\nstandard curriculum along with students from elsewhere and address\r\nthese details in a bar review course. Pragmatism seemed to counsel\r\nmoderation in answering these questions. We could say confidently only that Louisiana was a mixed jurisdiction characterized by an\r\ninterpenetration of common law and civilian influences. Future\r\nscholars would face the challenge of mapping the precise points of\r\ninterpenetration, but these points seemed to shift as unpredictably as\r\nthe bayou waters and marshes of the Louisiana coastline.'\r\n5. This is the central premise of Professor Palmer's earlier book, MIXED\r\nJURISDICTIONS WORLDWIDE: THE THIRD LEGAL FAMiLY (Vernon Valentine Palmer ed., 2001). 6. Mapping the influences upon Louisiana law continues to challenge both Louisiana scholars and those from other countries. Terms for describing the influences are elusive. For example, Professor Patrick H. Glenn of McGill University in Montreal, where a dual curriculum is followed, has noted that both Anglo-American and civilian systems were \"common laws\"--ius commune-in the sense regularly used by European lawyers. H.\r\nPatrick Glenn, The Common Laws ofEurope and Louisiana, 79 TuL. L. REV. 1041, 1053-56\r\n(2005). These common laws are suppletive resources for a legal system but not binding upon it. Id. at 1053. Evoking imagery suggestive of natural forces at work, Professor Glenn has\r\nnoted that the \"influence of common laws cannot be precisely controlled, and the confluence\r\nof common laws cannot be avoided or eliminated where history has brought them together.\" Id at 1063. In the United States today, associations between American law, English law, and\r\nthe common law are so prominent that lawyers regularly speak of Anglo-American law to\r\ncontrast it with civil law or Romano-Germanic law. But in nineteenth-century Louisiana, the\r\nterm \"common law\" was unclear. VERNON VALENTINE PALMER, THE LOUISIANA CIVILIAN\r\nEXPERIENCE: CRITIQUES OF CODIFICATION IN A MIXED JURISDICTION 12-13 (2005). For the\r\ncontinuation of Louisiana's law after the Louisiana Purchase, the State required a judicial declaration that \"common law\" meant \"civil law.\" Id. The declaration was required because the Northwest Ordinance of 1787 required \"judicial proceedings according to the course of\r\n1494 [Vol. 80:1491","",{"_181":274,"_275":367,"_277":368,"_279":280,"_281":280,"_282":-5,"_91":-5},"","2006] CODIFICA TIONJN7A MIXED JURISDICTION 1495\r\nFor some years after my visit with the comparative scholar, the\r\ndebate swirling around proper characterization of Louisiana law\r\nseemed to have subsided. Around 1990, a New York Timesjournalist\r\nbriefly reignited the debate when she sought views about Louisiana\r\nlaw from Professor A.N. Yiannopoulos, Professor Vernon Palmer, and\r\nme.7 Our upbeat assessments suggested that the state's dual tradition\r\ncould make its lawyers effective intermediaries among lawyers from\r\nthe United States and the United Kingdom, on one hand, and South\r\nAmerica and the continental states of the European Union on the\r\nother.8 With many nations in the latter regions, Louisiana shared a civil\r\ncode modelled consciously (though not entirely) upon the Code\r\nNapoleon. With England and the former British possessions generally,\r\nwe shared both a language and a public law heritage. Furthermore,\r\nLouisiana's trial procedure was based on an adversarial model, and\r\nAnglo-American courts provided the templates for Louisiana judicial\r\nfunctions. Because English was the official language of the ongoing\r\nrevision of the Louisiana Civil Code, Louisiana's experience might\r\nappeal to nations in the civilian orbit where English was known.\r\nPerhaps law reformers in countries that were then slipping out of the\r\nSoviet yoke might profit from our codification experiences, especially\r\nif they planned eventually to join the European Union.9\r\nthe common law.\" Id. at 12. Judge Prevost, a Jefferson appointee to the Louisiana court,\r\nruled that \"common law\" as used in the Ordinance meant for the territory of Orleans the\r\n\"civil law and Spanish law.\" Id. at 12-13. However, as if to confound a lawyer's quest for\r\nconsistency, the term \"common law\" in a Louisiana statute dating years before statehood\r\ncould also mean American law or English law, but not civil law. See id at 70-83; see also A\r\nRepublication of the Projet of the Code of Practice of Louisiana of 1825, in 2 LoUISIANA\r\nLEGAL ARCHIVES 131-36 (1937) [hereinafter Projet, Code ofPractice of1821.\r\n7. Lis Wiehl, Louisiana Begins To Slip Its Legal Ties to France, N.Y. TIMES, Oct. 13,\r\n1989, at B5.\r\n8. See The Napoleon Connection: Will Louisiana Benefit from Its History,\r\nNEWSWEEK, Dec. 18, 1989, at 17. According to Professor Herman, \"we Louisiana lawyers\r\nare trained to think more like European lawyers than lawyers in Florida and Texas\" Id.\r\nAccording to Professor Yiannopoulos, \"we could produce lawyers who can speak both\r\nlanguages: the language of the civil law that prevails in Europe and that of the common law\r\nthat prevails in the rest of the United States.\" Id.\r\n9. One beneficiary of Louisiana's code experience was Estonia, a Baltic state that\r\nhas recently joined the European Union. Paul Varul & Heiki Pisuke, Louisiana f Contribulion\r\nto the Estonian Civil Code, 73 TuL. L. REv. 1027, 1029 (1999). According to the authors,\r\nSoviet occupation in 1940 prevented adoption of a newly drafted civil code. Id at 1028.\r\nEven before Estonia had regained independence, the main principles underlying the socialist\r\ntheory of ownership and enterprise were being undermined and new legislation was enacted\r\nbeginning in 1989. Id. Among the \"best contemporary codifications of civil law,\" the\r\nLouisiana Civil Code was considered a helpful model for Estonia's codification program. Id.\r\nat 1028-29. The Louisiana document influenced regulation of civil relations as well as the\r\ncontent and logical structure of the Estonian project. See id. at 1029-31. For a general essay","",{"_181":274,"_275":365,"_277":366,"_279":280,"_281":280,"_282":-5,"_91":-5},"","TULANE LA W REVIEW [Vol. 80:1491\r\nAlthough the term \"mixed legal system\" suggests impurity, a trait\r\nless than venerable, I learned recently that the term has a venerable\r\nlineage. Long ago, Thomas Jefferson had dubbed Louisiana a mixed\r\nlegal system.' The phrase captured a host of social and political risks\r\nthat had dismayed Jefferson from the time of the Louisiana Purchase.\r\nA Francophile\" steeped in the great French authors of his day, he\r\nseemed nonetheless to have been influenced by Edmund Burke's\r\ndenunciation of the Revolution in his Reflections on the Revolution in\r\nFrance.'2 Jefferson expressed anguish over the bloodshed he had\r\nwitnessed as the United States minister in France during the last years\r\nof the ancien regime and the turbulent prelude of the Revolution. At\r\nhis first inauguration, he publicly expressed gratitude to Providence for\r\nhaving separated his country from the old world by placing an ocean\r\nbetween the new republic and the \"exterminating havoc of one-quarter\r\nof the globe.\"'3\r\non the potential for collaboration among Louisiana scholars and European code drafters, see Mathias Reimann, Towards a European Civil Code: Why Continental Jurists Should Consult\r\nTheir Tlansatlantic Colleagues, 73 TuL. L. REv. 1337 (1999).\r\n10. GEORGE DARGO, JEFFERSON'S LOUISIANA: POLITICS AND THE CLASH OF LEGAL\r\nTRADITIONS 107 (1975).\r\n11. At the time, the label \"Francophile\" would have been a source of concern, and perhaps a stigma. See GEOFFREY R. STONE, PERILOUS TIMES: FREE SPEECH IN WARTIME 25-\r\n32 (2004).\r\nIn the mouths of President Adams and his federalist colleagues, \"Francophile\" was a term of scorn and derision. See id The Federalists, to stir up xenophobic sentiment among the populace, portrayed Jefferson's Republicans as the \"French\" party. See id. at 27-28. They suggested that the Republicans, if elected, would deliver the country to French control.\r\nJefferson trusted Napoleon to be wily in war and treacherous in diplomatic negotiations. But\r\nthe Republicans had enough domestic enemies among the Federalists, who could be trusted\r\nto stir up dissension by French baiting. See id. at 27-29. In Congress, Federalist senators\r\naccused Republican senators of conspiring with the French to destroy the young republic. Id\r\nat 27-28. President Adams himself slyly charged that \"agents of a foreign nation [had] a party in this country, devoted to their interest.\" Id at 29. \"The Republicans,\" he said,\r\nsupported measures that \"would sink the glory of our country and prostrate her liberties at the\r\nfeet of France.\"' Id \"Alexander Hamilton wrote that Republicans had made 'unremitting efforts' to divert the affections ofAmericans 'from their own to a foreign country.\"' Id\r\n12. A professed admirer of French culture and law, Jefferson surely feared\r\ndevelopments in French politics, especially after he learned of Napoleon's plan to recover Louisiana, thereby sealing off the United States from the Mississippi valley. See text\r\naccompanying infra note 148. On Jefferson's learning in French literature, see Shael Herman, Epistle to Catalonia: Romance and Rentabilidad in an Anglophone Mixed Jurisdicon, in\r\nREGIONAL PRIVATE LAWS AND CODIFICATION IN EUROPE 221, 242 (Hector L. MacQueen et al.\r\neds., 2003).\r\n13. Thomas Jefferson, First Inaugural Address (Mar. 4, 1801), in 3 THE WRITINGS OF\r\nTHOMAS JEFFERSON 317, 320 (Andrew A. Lipscomb & Albert Ellery Bergh eds., 1903).\r\nNevertheless, the French Revolution had a corrosive impact on the American polity. Stone\r\nnoted:\r\n1496","",{"_181":274,"_275":363,"_277":364,"_279":280,"_281":280,"_282":-5,"_91":-5},"","2006] CODIFICA TION IN A MIXED JURISDICTION 1497\r\nJefferson thought the early Louisianians incapable of grasping\r\ndemocratic ideals without first passing through a socializing\r\napprenticeship.'4 His pessimistic appraisal of the Louisianians'\r\npolitical capabilities stemmed from a belief that their upbringing in the\r\npapist and monarchist cultures of France and Spain had equipped them\r\npoorly for self-government.'5 In defense of the early Louisianians,\r\nhowever, it may be argued that Jefferson and his lieutenants gave the\r\nLouisianians little chance to prove their capacity for self-government.\r\nIntegrating Louisiana challenged the young republic's own capacity for\r\ncoherent self-governance. Jefferson initially doubted his constitutional\r\nauthority to buy a foreign land.'6 Assuming that he concluded the\r\npurchase, it was unclear how it would fit into the governing structures\r\nof the republic. Should the Louisianians be treated as a \"colonized\r\npeople, a bought people, or a conquered people?\"'7 Did they have the\r\nright to any say in their own destiny? Thomas Hart Benton roundly\r\ncriticized the bill that authorized the purchase as incompatible with the\r\nConstitution, for he considered the government of Louisiana a \"mere\r\nemanation of Spanish despotism.\"'8 The purchase contemplated that\r\nthe President would replace the Spanish King and maintain control of\r\nall aspects of political life, including legislation and judicial\r\nappointments. The Louisianians then saw Jefferson's appointee,\r\nWC.C. Claiborne, who knew nothing of their society and law, abolish\r\ntheir language and establish American judges who knew only\r\nAmerican law. Meanwhile, he himself sat as a court of last resort,\r\nwithout even an attorney to advise him as to the meaning of the\r\nSpanish law he administered.'9\r\nDivision[s] between Federalists and Republicans grew increasingly acrimonious\r\nover the crisis in Europe. Republicans saw [the French Revolution] as an extension\r\nof the American promise of liberty, republicanism, and democracy. Federalists saw\r\nthe Revolution as a menacing harbinger of disorder, licentiousness, and atheism; it\r\nwas, to them, a clear and present danger to the established order.\r\n... Federalists feared that Republicans sought to plunge the nation into an\r\nAmerican reign of terror in which the unthinking masses would seize political\r\npower, confiscate private property, and corrupt religion.\r\nSTONE, supm note 11, at 25-26.\r\n14. See Warren M. Billings, From This Seed: The Constituion of 1812, in IN\r\nSEARCH OF FUNDAMENTAL LAW: LOUISIANA'S CONSTITUTIONS, 1812-1974, at 6-7 (Warren M.\r\nBillings & Edward E Haas eds., 1993).\r\n15. Id.\r\n16. GARRY WILLS, HENRY ADAMS AND THE MAKING OF AMERICA 164 (2005).\r\n17. Id.\r\n18. Idat 165.\r\n19. Id","",{"_181":274,"_275":361,"_277":362,"_279":280,"_281":280,"_282":-5,"_91":-5},"","TULANE LA W REVIEW\r\nTo compensate for Louisiana's shortcomings, Jefferson\r\nprescribed reception of the common law.2\r\n\" The reception, in his view,\r\ncould be facilitated by continuing a tutelage that put the locals under a\r\nprotective mantle of Americans who would take \"the lead in legislation\r\nand government.\"\" Jefferson's misgivings about the civil law seem to\r\nhave resulted more from a desire for efficiency than any perceived vice\r\nin the law itself.22 For easy governability of the new republic, Jefferson\r\npreferred national uniformity in both law and language.23 He feared\r\nthat the cement of the union would not harden if it contained mixed\r\nlegal systems.24 \"However [Jefferson might] admit the superiority of\r\nthe Civil Law over the Common Law code ... yet an incorporation of\r\nthe two would be like Nebuchadnezzar's image of metal and clay, a\r\nthing without cohesion of parts.\" 5\r\nCivil law partisans would be grateful to hear Jefferson's\r\nprofession of respect for their law, but Jefferson's expressions might\r\nhave been prompted more by etiquette and diplomacy than by real\r\nconviction. Ever a diplomat, Jefferson's praise of the civil law in the\r\nabstract seemed to pose a little risk to his political fortunes so long as\r\nthe support did not have to be made too concrete. His rather\r\nhighhanded supervision of Louisiana after the purchase-appointing a\r\nhandpicked governor and judges from common law jurisdictions,\r\nseeking to replace the civil law with the common law-belied praise\r\nfor the civil law.6 Jefferson perhaps thought he had little choice in the\r\nmatter. A ringing endorsement of the civil law could have enhanced\r\nFrench influence in Louisiana at a moment when the territory should\r\nbe Americanized. Furthermore, concrete support of the civil law\r\nmight deepen suspicions sowed by the Federalists that Jefferson was a\r\nsecret agent of France.\r\nRecently the theme of the mixity of Louisiana law has again\r\nresonated in the law journals, thanks largely to Professor Palmer's\r\npublications about mixed jurisdictions in general and Louisiana in\r\nparticular. His monographs and edited collections include Louisiana:\r\nMicrocosm of a Mixed Jusdictiori7 and Mixed Jurisdictions\r\n20. See DARGO, supra note 10, at 10.\r\n21. Id.\r\n22. Id.\r\n23. See id\r\n24. See PALMER, supra note 6, at 10-11.\r\n25. Id. at 14 n.42.\r\n26. See id at 10-14.\r\n27. See generally LOUISIANA: MICROCOSM OF A MIXED JURISDICTION (Vernon\r\nValentine Palmer 1999).\r\n1498 [Vol. 80:1491","",{"_181":274,"_275":359,"_277":360,"_279":280,"_281":280,"_282":-5,"_91":-5},"","2006] CODIFICA TION IN A MIXED JURISDICTION 1499\r\nWorldwide. The Third Legal Family. Professor Palmer was also\r\nresponsible for this law review consisting publishing an Issue of papers\r\ndelivered at the First Worldwide Congress of Mixed Jurisdictions,\r\nsponsored in 2003 by the Eason Weinmann Center for Comparative\r\nLaw.28 A collection of eight previously published studies, The\r\nLouisiana Civilian Expeuience. Critiques of Codification in a Mixed\r\nJuisdiction, is Professor Palmer's most recent contribution to the\r\ndebate on the nature of Louisiana law. 9 Educated at Tulane, Yale, and\r\nOxford Universities, Professor Palmer has an enviable command of\r\nboth civil law and common law heritages. The book is a vigorous\r\nengagement with perennial issues for civilians and others interested in\r\ncultural and historical aspects of mixed jurisdictions.\r\nII. CODIFICATION: THE CENTERPIECE OF THE INQUIRY\r\nThe book under review focuses upon codification, a favorite\r\nsubject among civilians. In the Romanist tradition, lawyers have made\r\ncodes compulsively as spiders weave webs, although there is\r\ndisagreement, also apparent in the book, about the precise meaning of\r\nthe word \"code.\"3 Though the Loisiana Civil Code is both the\r\nemblem and the principal ingredient in Louisiana's mixed system,\r\nthere is nonetheless intermittent reassessment of the precise proportion\r\nof other ingredients in the blend.\r\nA. Three Perennial Questions\r\nAccording to the book's jacket, the author addresses \"several\r\nperennial and persistent\" questions about the Louisiana civilian\r\nexperience:\r\nWhat were the original sources of the [Louisiana] codes and was\r\nSpanish law or French law the major influence? If the drafters had\r\ninstructions to codify Spanish law, why did they extensively use French\r\nmodels? Did these codes remain true to their original premises or were\r\nthey transformed by the pressures of the American experience into mere\r\ndigests of the civil law?3'\r\n28. Symposium, First Worldwide Congress on Mixed Jurisdictions: Salience and\r\nUnity in the Mixed Jurisdiction Experience. Tiits, Patterns, Culture, Commonalities, 78\r\nTUL. L. REV. 1-501 (2003).\r\n29. See generally PALMER, supra note 6.\r\n30. See id. at 94-95.\r\n31. Id. back cover.","",{"_181":274,"_275":357,"_277":358,"_279":280,"_281":280,"_282":-5,"_91":-5},"","TULANE LA W REVIEW\r\nB. BefAnswers to the Questons\r\nAnswers to these questions are elusive, largely because the\r\nhistorical information is patchy. The questions require us to speculate\r\non the lawmakers' motivations, and divining legislative intention is\r\nnotoriously hazardous work.\r\nA short answer to Professor Palmer's first question is that the\r\ndrafters were influenced by Roman, French, and Spanish sources. But\r\nthis answer begs the question: scholars are also concerned with the\r\nproportion of ingredients in the mix, and even the reasons for the\r\nproportions. As between French and Spanish sources, the former,\r\naccording to Professor Palmer, predominated primarily because the\r\nrelatively organized French sources, especially the Code Napoleon,\r\noffered ready templates for the Louisiana Civil Code.\" In terms of\r\nmodels for the formal organization of the Louisiana Civil Code, the\r\nCode Napoleon prevailed by default; there was no Spanish civil code\r\nuntil 1889.\" But other factors call for consideration lest we trivialize\r\nthe impact of Spanish sources. By 1800, the law in force in Louisiana\r\nwas the Spanish law applicable to Spain's other ultramarine colonies,\r\nand for many lawyers, it must have been the main law that they knew.4\r\nFrequent Spanish references in the early Louisiana jurisprudence\r\nconfirm that the lawyers were knowledgeable in Spanish law.\" The\r\nLouisiana drafters acknowledged that the Digest of 1808 neglected\r\nSpanish sources; but they tried to compensate for this deficiency in the\r\nCivil Code of 1825 by incorporating new rules of Spanish\r\nprovenance.\" After the translation of Las Siete Partidas, in 1820,\r\nhowever, a disinterest in translating Spanish law books meant that\r\nFrench and Spanish sources, at least after the first quarter of the\r\nnineteenth century, never competed on a level playing field for the\r\nattention of the bench and bar. Without Spanish authors in English\r\ntranslation, local lawyers may have assumed by default that French\r\nones provided all the learning necessary to illuminate their code.\r\nPressed for time in preparing a brief or an opinion, a lawyer would\r\nhave had no Spanish translations to rely upon. Nor would he have\r\nrealized their relevance to his work.\r\n32. See id at 52-53.\r\n33. A GENERAL SURVEY OF EVENTS, SOURCES, PERSONS AND MOVEMENTS IN\r\nCoNTINENTAL LEGAL HISTORY 696 (Augustus M. Kelley 1968) (1912) [hereinafter\r\nCONTINENTAL LEGAL HISTORY].\r\n34. See PALMER, supra note 28, at 52.\r\n35. See id\r\n36. See id. at 58.\r\n1500 [Vol. 80:1491","",{"_181":274,"_275":355,"_277":356,"_279":280,"_281":280,"_282":-5,"_91":-5},"","2006] CODIFICA TION IN A MIXED JURISDICTION 1501\r\nProfessor Palmer's second question requires an appreciation of\r\npolitical tensions between proponents of the common law and their\r\ncivil\nThe file is too long and its contents have been 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