Article by Shael Herman and David Hoskins
The subject of code revision has received a great deal of attention in Louisiana, much of it designed to urge revision of the Louisiana Civil Code of 1870. The revision is now underway; several parts of the new code have already been enacted and others, complete in projet form, await legislative action. Despite these successes, one suspects that the current status of the revision effort in Louisiana would be less than satisfactory to the civilians who first urged the undertaking. Although the revision is occurring, it has not been the ordered process its early advocates envisioned. Blueprints for revision, unveiled decades ago, stand neglected and unrealized as standards against which current progress might be measured. Yet the annual progress of piecemeal revision requires attention to issues of general structure and design.
This paper addresses an important, though neglected aspect of the revision process: whether the current three-book structure of the Louisiana Civil Code should be retained or discarded in favor of another format. Our inquiry is necessarily poised between contrary impulses—a reverence for tradition and a desire to be as up-to-date as the twenty-first century demands and the human imagination permits. While tradition may dictate retention of three books, contemporary circumstances may call for more books, different arrangements of topics within books, or an utterly different format. In the civil law tradition, no particular number of books has been sacrosanct for compilations of law or doctrinal works. Drafters in the Romanist tradition realized that any structure had both virtues and drawbacks; their trick was to be the masters of the structure, not its slaves. If, after much labor, the drafters found a particular format unsuitable for intelligent elaboration of the law, they experimented with others. On the whole, however, they showed a healthy respect for traditional structures and did not reject them cavalierly.
More than a century has passed since the last revision of the Louisiana Civil Code. According to Colonel John H. Tucker, Jr., the revision of 1870 was undertaken mainly to account for the political changes wrought by the Civil War. For all practical purposes the overall structure of the Louisiana Civil Code has been ignored since Moreau Lislet, Livingston, and Derbigny executed their mandate to remodel the Digest of 1808 and saw their code of 1825 approved and promulgated on April 12, 1824. This inattention to the Code's overall structure is perfectly understandable for several reasons. First, civil law jurisdictions of the modern mos gallicus had generally followed the French model, and nothing had happened to suggest a deviation. Second, the Prussian Allgemeines Landrecht of 1794, with its nineteen thousand-odd paragraphs, offered a warning against cumbersome structures. Third, the Austrian Allgemeines Burgerliches Gesetzbuch of 1811 followed the three-book scheme. Fourth, the five-book structure of the Pandectist tradition only began to evolve in the mid-nineteenth century—too late to influence Louisiana's revision of 1870. The first test of the Pandectist model was the Civil Code of Saxony, proposed in 1863 and enacted in 1865. Even if Louisiana's legislators knew of the Saxony Code during the period of the revision of 1870, nothing in it seems to have suggested a need for structural change in the Louisiana Civil Code. Finally, if, as Colonel Tucker suggests, the drafters of the revision of 1870 thought that they were supposed to make a code substantially like that of 1825, except for inevitable changes brought on by the Civil War, their inattention to continental developments is all the more understandable.
A popular and credible explanation of the three-book structure of the French Civil Code is that it had a Roman pedigree. The drafters adopted the tripartite division, we are told, "as a natural heritage of a juridical tradition." The structure is generally attributed to Gaius' famous maxim, "Omne autem ius quo utimur uel ad personas pertinet, uel ad res uel ad actiones" (The whole of the law observed by us relates either to persons as to things, or to actions). Justinian's Institutes followed this format, thereby endorsing it to future generations of civilians. The tripartite structure has been durable indeed. As recently as 1977, Professor A.G. Chloros wrote of the new civil code of the Seychelles that it "had not broken its links with the French Civil Code as regards its shape and structure."
According to most writers, the Civil Code was a natural outgrowth of Roman heritage. Two lawmakers of revolutionary France, Tronchet and Jaubert, thought it was natural in terms of logic and arrangement as well. For them, the Code's divisions were "born out of the nature of things" and conformed "with the natural movement of ideas." Other writers disagreed, however, pointing out that the tripartite plan of the French Civil Code was an historical accident rationalized after it had occurred by reference to Gaius' maxim. They argued convincingly that the redactors of the French Civil Code avoided serious debate on the merits of the tripartite division. Jean Ray, for example, in his Essay on the Logical Structure of the Civil Code, wrote that "the plan of the code was neither seriously examined nor absolutely willed." Ray's observation appears valid well into the 1790's: Cambaceres' projet of 1793 was divided into four books—the status of persons, things, contracts, and actions. Although Cambaeres' second and third projets followed a tripartite scheme, Jacqueminot's projet of 1799 did not, demonstrating that on the very eve of the Code's adoption there was still no consensus about its ultimate shape.
According to Jacques de Maleville, the Code's tripartite division was among the French redactors' last concerns. Discussion of the division occurred only after debate on the various provisions, and the "division . . . into three books was adopted without contradiction by the legislation regulating the classification of titles." Addressing the Conseil d'Etat, he questioned the claims of Tronchet and Jaubert:
This division might well be doubtful if only because of the enormous disproportion between the third book and the other two. The first book contains only 509 articles; the second only 195; and the third . . . 1571. If this disproportion resulted necessarily from the nature of things, it should not prevent us from following the division adopted; but not every one agrees [that there is such a naturally ordained division]; the first book concerns persons; the second things; the third [concerns] modes of acquiring. It is said that this last division is the whole purpose of the Code and of all civil legislation and that the treatises on persons and things are no more than preliminaries; that this is so true, that the first two books were given some consistency by mixing many things that could be related to the last as (they) are also modes of acquiring. Such examples, in the first book, are the absentee whose relatives profit from absence, marriage, divorce, filiation, adoption, paternal authority; and in the second book, accession, usufruct, use, habitation, and servitudes. Also, did not the judicious Domat, by putting in a preliminary book necessary ideas about persons and things, thus divide his work into two parts, contracts and successions? Despeisses, who treated all the topics of the civil law with great method and clarity, followed the same division; and these two authorities could be followed. Meanwhile the division of the Civil Code can be defended on good grounds; it is simple; each book offers quite distinct objects; it is certainly better than that of Justinian's Institutes . . . and finally it must be agreed that as the same objects can be envisaged from different aspects, every division of these grand subjects is necessarily a bit arbitrary.
Earlier we said that a fixed number of books was not sacrosanct for any compilation of laws. Maleville's observations show that even the French Civil Code should not be excepted from this generalization, if only because it is doubtful that the number of books was ever seriously debated. It is easy to assert that the tripartite structure of the French Civil Code was not sacrosanct. But the truth of the proposition can be demonstrated only by means of historical and comparative surveys of experiments that preceded and followed the enactment of the French Civil Code. Such a survey is necessary to make an informed decision on the structure of the Louisiana revision.
The remainder of this paper is divided (accidentally) into nine parts. Parts II-VI survey a panorama of structures in antiquity and the work of important systematizers of Roman and French law; parts VII and VIII concern the Pandectist heritage and a number of codes enacted after the French Civil Code. Part IX briefly examines current French revision efforts. Part X suggests general criteria for the new blueprint in light of policies associated with Louisiana's unique role as a hybrid legal system.
About the Author
Shael Herman. Associate Professor of Law, Tulane University. M.A. 1965, J.D. 1969, Tulane University.
David Hoskins. B.A. 1970, Centenary College of Louisiana; J.D. 1980, Tulane University.
Citation
54 Tul. L. Rev. 987 (1980)