May 28, 2009 by Lo
Mark Fernandez “From Chaos to Continuity”
This is a useful book, a clearly argued book, and a really comprehensible book. I say all these things because From Chaos to Continuity is also very much a legal history — and “useful,” “clear,” and “comprehensible” are not always words I find applicable to legal histories.
In only 117 cogent and readable pages, Fernandez makes a distinctive contribution to the major debate in Louisiana legal history: the question of the state’s supposed distinctiveness as a bastion of civil law in a common law nation. The argument is clear: for Fernandez, the distinctiveness has generally been dramatically overstated. Though he calls Louisiana a “mixed” system which includes both statutory codes and stare decisis, he takes care to point out that other U.S. states are also technically “mixed” jurisdictions in the same way; and his evidence, from the American arrival in 1803 up to the Civil War, repeatedly emphasizes the Anglo-American influence in the state’s legal system.
Previous legal scholars (especially George Dargo) have treated James Brown and Louis Moreau-Lislet’s 1808 Digest of Laws as a political victory for local Francophones, who managed to retain a civil code in the face of Thomas Jefferson and the U. S. Congress’s insistence that the Orleans Territory should adopt the common law. Fernandez shows that while this may have been the legislature’s intention, judges in practice used the Digest not as an inflexible code but as only one among several possible textual authorities — much as common law judges would use Blackstone, Coke, or Vattel, or (in Louisiana) the never-repealed French and Spanish laws. In fact in the most crucial cases, “judges disregarded the Digest in favor of Spanish sources, creating a sort of common law basis for Louisiana’s private law, a common law based on Spanish civil authorities.” (62)
The story repeated itself in the 1820s, when uber-codifer Edward Livingston wrote his famous Louisiana Code of 1825 — which was followed by an 1828 statute positively repealing “all foreign laws in force at the time of the  cession.” But no sooner had Livingston won this seeming victory than “immediately, the supreme court began to reduce the Louisiana Code to the less authoritative stance of a digest of the laws.” (81) In the case of Reynolds vs Swain et al, chief justice François-Xavier Martin ruled somewhat ingeniously that “the Spanish, French, and Roman civil laws, which the legislature repealed, are the positive, written or statute laws of those nations,” and that “the legislature did not intend to abrogate those principles of law which had been established or settled by the decisions of courts of justice.” (86) In other words, Spanish, French and Roman laws were reduced from the status of positive codes (a status they had never really held after 1803, in any case) to the status of a body of case law or scholarly authorities. This use did, of course, contravene any reasonable interpretation of the legislature’s intent in enacting the Livingston code — and the attempt to install true civil law was ultimately undone by its dependence on thoroughly Anglo-Americanized judges to carry it out.
Fernandez’ argument is convincing, to me, and useful not only on its own terms, but because it fits well with my increasingly conviction that Louisiana’s exoticism and difference has been overplayed on many levels and in many spheres, in ways that frustrate solid understandings of its history. The culture, the slave system, the racial order, the political climate, even basic geography — all these and many other aspects of Louisiana have been presented as anomalous, unique, and at worst irrelevant to the broader sweep of American history. This is only more true if one deals (as I do) not just with Louisiana but specifically with New Orleans. My view is not that there is nothing unique about New Orleans — obviously the French language is, and more broadly, the city’s standing as the only real urban center in the slave South — but that when difference starts being magnified into exoticism, and voyeuristic fascination with the region’s distinctiveness becomes the dominant mindset, we are in danger of crossing the line from historicizing to mythologizing.
Fernandez’ work does a wonderful job of pressing against the specifically legal aspect of this counterproductive Louisiana exceptionalism. Despite acknowledging in his first sentence that “[l]aw and society bond in an intricate dance,” he never really does explore the social implications of his contention that Anglo-American traditions lie at the heart of Louisiana law. And I’m too much of a neophyte in terms of understanding that “intricate dance” to make anything more than tentative guesses. Would the institution of true civil law have been as progressive as Livingston and the Jacksonian codifiers hoped? Is Fernandez’ story more proof of the conservative, elite-dominated nature of Louisiana society? From Chaos to Continuity declines delving into these and related questions — but it does constitute a wonderfully clear, thought-provoking starting point for considering them.
Mark Fernandez, From Chaos to Continuity: the Evolution of Louisiana’s Judicial System, 1712-1862 (Louisiana State University Press, 2001).