Book Review by Shael Herman
Thirty years ago, I brought a distinguished comparative law scholar a new book, Professor Joseph Dainow's The Role of Jurisprudence and Doctrine in Civil Law and Mixed Jurisdictions. “Mixed jurisdictions,” he mused, “in these parts those places are known as bastards.” The expletive caught me off guard. As a law graduate from one of “those places,” I had long believed that training in a dual legal heritage was a professional advantage. Characterized as illegitimate, however, a dual tradition seemed a handicap. It was true that legal training, at least for Louisiana students, had exceptional costs: a curriculum oriented to both civil law and common law was more complex than one oriented to a single legal tradition, but a dual curriculum was indispensable for Louisiana lawyers who were expected to be proficient in both the State's civil law and the dominant common law practiced elsewhere in the United States. Legal issues originating from practitioners outside of Louisiana had to be explained in terms of the civilian lexicon. Recruiting teachers was complicated by the fact that the pool of potential scholars equipped to teach both civil law and common law subjects was shallower than a national pool. Materials suitable for civil law courses had to be prepared almost exclusively within the state because a single-state market did not appeal to national publishers such as West. But these unusual costs did not seem to translate into illegitimacy.
On reflection, I realized that some of the essays in Professor Dainow's book had hinted at a possible connection between the legitimacy of a legal system's birth and the political behavior of its institutions. More concretely, for example, judges imbued with both common law and civilian ideals might differ from their counterparts elsewhere in the United States on important ideas such as stare decisis, judicial review of legislation, and separation of powers. Contributed by scholars from traditional civil law systems [for example, Germany, France] and mixed jurisdictions [for example, Louisiana, Quebec] Professor Dainow's collection specifically focused upon the legitimacy of law created by unelected judges. A number of the authors also questioned the legitimacy of legal doctrine produced by academicians. By juxtaposing scholarly reflections on these perennial civilian themes, Professor Dainow seemed keen both to legitimate the mixed jurisdictions and enhance their prestige. If writers from Louisiana, Quebec, and Scotland could hold their own in debates with their counterparts from a traditional civil law orbit, then perhaps these legal systems constituted a third legal family deserving a place alongside traditional civilian and common law systems.
Professor Dainow's theme seemed to offer special advantages for Louisiana law. “Mixity” was a convenient term for calling a truce in the long academic debates over the true nature of Louisiana law. In these debates, counterposed views could often be distilled into questions with practical implications for legal education: was Louisiana a civil law island in a common law sea? If this characterization was accurate, then it would be reasonable for students planning to practice law in Louisiana to follow a double curriculum as students in Quebec did. Alternatively, was Louisiana a common law state no different from others except in minor details? If so, then law students, instead of taking a battery of civil law courses, could take a standard curriculum along with students from elsewhere and address these details in a bar review course. Pragmatism seemed to counsel moderation in answering these questions. We could say confidently only that Louisiana was a mixed jurisdiction characterized by an interpenetration of common law and civilian influences. Future scholars would face the challenge of mapping the precise points of interpenetration, but these points seemed to shift as unpredictably as the bayou waters and marshes of the Louisiana coastline.
For some years after my visit with the comparative scholar, the debate swirling around proper characterization of Louisiana law seemed to have subsided. Around 1990, a New York Times journalist briefly reignited the debate when she sought views about Louisiana law from Professor A.N. Yiannopoulos, Professor Vernon Palmer, and me. Our upbeat assessments suggested that the state's dual tradition could make its lawyers effective intermediaries among lawyers from the United States and the United Kingdom, on one hand, and South America and the continental states of the European Union on the other. With many nations in the latter regions, Louisiana shared a civil code modelled consciously (though not entirely) upon the Code Napoleon. With England and the former British possessions generally, we shared both a language and a public law heritage. Furthermore, Louisiana's trial procedure was based on an adversarial model, and Anglo-American courts provided the templates for Louisiana judicial functions. Because English was the official language of the ongoing revision of the Louisiana Civil Code, Louisiana's experience might appeal to nations in the civilian orbit where English was known. Perhaps law reformers in countries that were then slipping out of the Soviet yoke might profit from our codification experiences, especially if they planned eventually to join the European Union.
Although the term “mixed legal system” suggests impurity, a trait less than venerable, I learned recently that the term has a venerable lineage. Long ago, Thomas Jefferson had dubbed Louisiana a mixed legal system. The phrase captured a host of social and political risks that had dismayed Jefferson from the time of the Louisiana Purchase. A Francophile steeped in the great French authors of his day, he seemed nonetheless to have been influenced by Edmund Burke's denunciation of the Revolution in his Reflections on the Revolution in France. Jefferson expressed anguish over the bloodshed he had witnessed as the United States minister in France during the last years of the ancien regime and the turbulent prelude of the Revolution. At his first inauguration, he publicly expressed gratitude to Providence for having separated his country from the old world by placing an ocean between the new republic and the “exterminating havoc of one-quarter of the globe.”
Jefferson thought the early Louisianians incapable of grasping democratic ideals without first passing through a socializing apprenticeship. His pessimistic appraisal of the Louisianians' political capabilities stemmed from a belief that their upbringing in the papist and monarchist cultures of France and Spain had equipped them poorly for self-government. In defense of the early Louisianians, however, it may be argued that Jefferson and his lieutenants gave the Louisianians little chance to prove their capacity for self-government. Integrating Louisiana challenged the young republic's own capacity for coherent self-governance. Jefferson initially doubted his constitutional authority to buy a foreign land. Assuming that he concluded the purchase, it was unclear how it would fit into the governing structures of the republic. Should the Louisianians be treated as a “colonized people, a bought people, or a conquered people?” Did they have the right to any say in their own destiny? Thomas Hart Benton roundly criticized the bill that authorized the purchase as incompatible with the Constitution, for he considered the government of Louisiana a “mere emanation of Spanish despotism.” The purchase contemplated that the President would replace the Spanish King and maintain control of all aspects of political life, including legislation and judicial appointments. The Louisianians then saw Jefferson's appointee, W.C.C. Claiborne, who knew nothing of their society and law, abolish their language and establish American judges who knew only American law. Meanwhile, he himself sat as a court of last resort, without even an attorney to advise him as to the meaning of the Spanish law he administered.
To compensate for Louisiana's shortcomings, Jefferson prescribed reception of the common law. The reception, in his view, could be facilitated by continuing a tutelage that put the locals under a protective mantle of Americans who would take “the lead in legislation and government.” Jefferson's misgivings about the civil law seem to have resulted more from a desire for efficiency than any perceived vice in the law itself. For easy governability of the new republic, Jefferson preferred national uniformity in both law and language. He feared that the cement of the union would not harden if it contained mixed legal systems. “However [Jefferson might] admit the superiority of the Civil Law over the Common Law code . . . yet an incorporation of the two would be like Nebuchadnezzar's image of metal and clay, a thing without cohesion of parts.”
Civil law partisans would be grateful to hear Jefferson's profession of respect for their law, but Jefferson's expressions might have been prompted more by etiquette and diplomacy than by real conviction. Ever a diplomat, Jefferson's praise of the civil law in the abstract seemed to pose a little risk to his political fortunes so long as the support did not have to be made too concrete. His rather highhanded supervision of Louisiana after the purchase—appointing a handpicked governor and judges from common law jurisdictions, seeking to replace the civil law with the common law—belied praise for the civil law. Jefferson perhaps thought he had little choice in the matter. A ringing endorsement of the civil law could have enhanced French influence in Louisiana at a moment when the territory should be Americanized. Furthermore, concrete support of the civil law might deepen suspicions sowed by the Federalists that Jefferson was a secret agent of France.
Recently the theme of the mixity of Louisiana law has again resonated in the law journals, thanks largely to Professor Palmer's publications about mixed jurisdictions in general and Louisiana in particular. His monographs and edited collections include Louisiana: Microcosm of a Mixed Jurisdiction and Mixed Jurisdictions Worldwide: The Third Legal Family. Professor Palmer was also responsible for this law review consisting publishing an Issue of papers delivered at the First Worldwide Congress of Mixed Jurisdictions, sponsored in 2003 by the Eason Weinmann Center for Comparative Law. A collection of eight previously published studies, The Louisiana Civilian Experience: Critiques of Codification in a Mixed Jurisdiction, is Professor Palmer's most recent contribution to the debate on the nature of Louisiana law. Educated at Tulane, Yale, and Oxford Universities, Professor Palmer has an enviable command of both civil law and common law heritages. The book is a vigorous engagement with perennial issues for civilians and others interested in cultural and historical aspects of mixed jurisdictions.
About the Author
Shael Herman. John Minor Wisdom Professor of Civil Law (Emeritus) Tulane University School of Law; Visiting Professor, University of Panthéon Assas (Paris II); Member, Academy of European Private Lawyers, Milan. J.D. 1969, Tulane University School of Law; M.A. 1965, Tulane University; B.A. 1964, Tulane University.
Citation
80 Tul. L. Rev. 1491 (2006)