Article by Rodolfo Batiza
In a recent article published in the pages of this Review, Professor Hans W. Baade of the University of Texas propounded the theory that the marriage contract provisions of Louisiana's 1808 Civil Code originated in the "living law" that had developed in this state prior to that initial codification, and concluded that the model adopted by the redactors of that Code was the French "contractual" prototype rather than the Castilian "statutory" one.
It is the purpose of this article to respond to that theory. The thesis is easily stated: prior research conducted by this writer has conclusively demonstrated that neither of the extreme positions taken respectively by Professor Robert Pascal, and by Professor Baade in refuting Professor Pascal, is correct.
In large measure, Professor Baade has sought—by describing the "living law" embodied in nineteenth-century Louisiana notarial practice in the area of marriage contracts—to contribute to the resolution of a long-standing controversy among Louisiana scholars over the identification of the sources of the 1808 Code. In adopting that purpose, Professor Baade has adopted as well an active role in the wider debate in which this writer has long been a contestant. It is from that context that this reply is made.
Although Professor Baade's theory is the immediate impetus of these remarks, there are other motivations as well. As Professor Baade has recognized, the sources of the provisions of the 1808 Code must remain a subject of interest in Louisiana despite the recent major revisions of the Civil Code articles dealing with matrimonial regimes. This is so not merely because some of the original provisions have survived that revision, but also—and more significantly—because those sources will continue to affect and to aid in the interpretation of whatever provisions remain in force. Beyond that, both the methodology employed in the tracing of those sources, as well as the scholarly perspective which inspired the undertaking at the outset, are important aspects of the civil law tradition that deserve further elaboration in modern Louisiana.
It is hoped that, in responding to Professor Baade's theory, these remarks will help to clarify the textual methodology this writer has employed in tracing the sources of the 1808 Code and will present to the readership of this Review the foundation of solid research upon which the ultimate resolution of the wider controversy must finally rest.
About the Author
Rodolfo Batiza. Professor of Latin American Legal Studies, Tulane University School of Law. Bachiller en Ciencias Sociales 1935, Licenciado en Derecho 1941, Universidad Nacional Autonoma de Mexico.
Citation
54 Tul. L. Rev. 77 (1979)