June 19, 2006
Roark's Requiem on the Nomos of the Louisiana Civil Law
Close readers of propertyprof will recall that Ben (and I in the comments) wrote a little bit about Marc Roark's The Constitution as Idea: Defining Describing Deciding in Kelo in April. Roark's latest, Opening the Barbarian's Gate or Watching Barbarians from the Coliseum: A Requiem on the Nomos of the Louisiana Civil Law, is now up on bepress.
Roark has some great titles, for sure. Here's his abstract:
Comparative Law tends to focus on the differences and similarities present in different legal systems. Such analysis has led some to conclude that a third legal system has appeared in the West and in particular in Louisiana. The idea of a mixed jurisdiction, they claim, combines certain elements of Civil law and Common law into a hybrid system. This article challenges the supposition that a legal system’s core identity can be of a mixed nature. Rather, this article suggests that the proper way a legal system should be viewed is through its normative values as depicted in the narratives the system spawns – a Nomos that directs the purveyors of the system towards the sources and identity that the system enchants. Focusing primarily on Louisiana, Part I of this article describes three normative elements that narratives tell about the Louisiana civil law: its frenchness, its distinctiveness, and its dependency on a Code. Part II then tells two narratives that demonstrate how these narratives are revealed, even when they are not completely accurate. Part III challenges the readers to inhabit the nomos.
Roark's interested in how legal traditions evolve and uses the laboratory of Louisiana to test how the civil and common law influence each other. (The barbarians in the title is a reference to the way that "barbarians" influence societies they come in contact with--and how they cause those other societies to, in Roark's words, "get better or disorganize." There are some narratives about the Louisiana system--the prevalence of a Code, its connections to French law, and its distinctiveness from other legal traditions. Lot to think about here--and a lot of it is beyond the usual scope of propertyprof. But I want to focus on one part of his paper: his discussion of Louisiana's slave law. Roark uses those key elements to ask about the origins of Louisiana's slave law. Basically, as I understand it, does the Code Noir fit with the narratives about Louisiana law more generally? He finds even though the source of slave law was often the Spanish legal system, that they were applied in the Louisiana system using characteristically Louisiana principles, like considerations of humanity. There's a lot to think about in this paper. I always enjoy reading about legal traditions and thinking about how those traditions evolve.
Endnote: The photo of the Louisiana Civil Code is from our friends at Neal Auction (the Code was in lot 757).
Alfred L. Brophy
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