Article by Fred Zengel
In 1933, early in his teaching career, Professor Mitchell Franklin wrote that the "Civil Code of Louisiana is the most important contribution of Louisiana to an American culture," and "possibly is the most important accomplishment in the history of American law in the sense of the relation it bears to the future direction of American law." He predicted that other states ultimately will be forced to resort to codification in order to retrieve their faltering legal machinery from "the frightful chaos of the common law" and that the traditional civilian juridical method embodied in articles 13 through 21 of the Louisiana Civil Code will be the "most permanent and definitive" contribution of Louisiana to the codification movement.
Professor Franklin recognized that, because the Code was an early nineteenth-century document, it had become obsolete in some respects and needed revision. He cautioned against haste and, inferentially, against piecemeal revision. "The demand," he stated, "is for a new code that will be based on Romanist juridical method, Romanist balance between conceptualism and individualization, American needs and mid-XX century ideals to the end of law."
These words were written at the outset of a timely revival of interest in the civil law in Louisiana. Law schools were expanding their curricula and their faculties to provide more detailed and more profound instruction in the theory and content of the civil law. Law reviews were being established to provide for publication of doctrinal materials. In 1938, the Legislature chartered the Louisiana State Law Institute as the law research and reform agency of the state, with the duty "to provide by studies and other doctrinal writings, materials for the better understanding of the civil law of Louisiana and the philosophy upon which it is based."
Other scholars joined Professor Franklin in the call for a comprehensive revision of the Civil Code. In an important address delivered in 1949 at a meeting of the Law Institute, Professor Clarence J. Morrow advocated a complete and systematic revision, in brief, clear, and concise language, in which the civilian tradition and method of the Code would be preserved. He envisaged a project that would take close to a decade to complete, during which the form and substance of the Code would be examined minutely and revised, perhaps extensively, in some areas.
Recognizing the need for revision, the Legislature in 1948, instructed the Louisiana State Law Institute "to prepare comprehensive projects for the revision of the Civil Code of Louisiana and for the revision of the Code of Practice of Louisiana." Because of the prodigious amount of work involved in each project, the Law Institute elected to undertake initially only the revision of the Code of Practice. That the mandate of the Legislature called for unified rather than fragmented revision was apparently never doubted.
The procedure used in revising the Code of Practice first required preparation of an outline of the new code by three reporters, one of whom served as coordinator. The outline was then distributed to the legal profession for suggestions and criticism. Once the format was determined, the reporters drafted articles for submission to appropriate committees and to the Council of the Institute. As the project progressed, lawyers and others who expressed interest were kept informed through public meetings held in various parts of the state and through the distribution of written materials relating to the revision.
After some ten years of effort the new Code of Civil Procedure was adopted in 1960. It is a comprehensive, coordinated document which reflects the fact that it was conceived, drafted, and enacted as a unit. Although participation of the legal profession in the revision process undoubtedly slowed the progress of drafting, it afforded valuable counsel and guidance from those who would be most profoundly concerned with the final result.
It was expected that, upon completion of the revision of the Code of Civil Procedure, the Law Institute would soon turn its attention to the Civil Code. The legislative instructions were clear and the need for the revision had been obvious for decades. Moreover, in excess of 300 articles of the Civil Code had been repealed or amended when the Code of Civil Procedure was adopted, and numerous other articles had been affected by earlier legislation. But other major projects were to be completed first. For example, the Code of Criminal Procedure was being revised, a new Trust Code was being drafted, and the project to restate Louisiana mineral law, which began with a preliminary study in 1950, required attention. In addition, recommendations for a new State Constitution were being prepared. Hence, it was not until 1968 that the Law Institute could report to the Legislature that work had begun on the revision of the Civil Code.
About the Author
Fred Zengel. A.B., 1936, LL.B., 1938, Tulane University.
Citation
54 Tul. L. Rev. 942 (1980)