Article by Alan Watson
In a recent article, The Origins and Authors of the Code Noir, my friend Vernon Palmer graciously and courteously took me to task for claiming that the law in the Code Noir was not made “on the spot” in the Antilles, but in Paris. He also said of me and of Hans Baade, “neither author appears to have investigated the actual circumstances of the Code's redaction.” I can speak only for myself, and I confess with shame that Professor Palmer is quite correct. I did not investigate the actual circumstances of the redaction of the Code Noir. And I should have. I made an assumption based on the drafting of the Code in Paris, and its dating from Paris, January, 1685.
My position was: “The French solution to the problem of slave law for the colonies was extensive royal legislation emanating from France, in which Roman law principles predominated.” Professor Palmer's conclusion is very different:
I believe that the word experience plays a very important role in the origins and the evolution of France's Code Noir. For fifty years before the Code Noir emerged, French colonists and administrators were developing new laws and customs to regulate slavery, and Colbert's concept of codification largely ensured that they would build upon these antecedents. It is a myth to think that codification succeeded in the Antilles only because the Romans prepared the path. It is a myth to think that all roads lead to Rome or that every parallel is a provenance.
In general, moreover, Professor Palmer appears to believe that when Roman law and the Code Noir do have similar rules, such a circumstance is not necessarily the result of borrowing.
Having admitted my failing, I now want to claim that my position is nonetheless closer to historical accuracy than is Professor Palmer's conclusion. My position was flawed; Professor Palmer's conclusion is deeply misleading. The issue is far more important than just the authorship and origins of the Code Noir. It involves the questions of experience for law making, the role of borrowing, and of our approach to a foreign system.
The crux of Professor Palmer's argument is his understanding of the Avant-Projet of 1683, which was prepared in the Antilles at St. Christophe, and which he helpfully reproduces, and it is convenient to start from there.
About the Author
Alan Watson. Ernest P. Rogers Professor of Law, Research Professor, University of Georgia. M.A., LL.B., LL.D. honoris causa (Glasgow); LL.D. (Edinburgh); D. Phil., D.C.L. (Oxon).
Citation
71 Tul. L. Rev. 1041 (1997)