WESTERN LEGAL TRADITIONS

LAW 5015 (SECTION 3)

COURSE SYLLABUS
PROFESSOR OLIVIER MORÉTEAU

Fall 2022

1. Learning Objectives

The main objective of this course is to give you an overall view of the civil law and
common law traditions and of Louisiana’s unique position as a mix of these traditions; to
develop an understanding of legal sources and reasoning in these two traditions and the
Louisiana legal system; and to learn how to think as a civil law lawyer (civilian?), a
common law lawyers (common lawyer?) or a Louisiana lawyer trading with both the civil
law and the common law.

This is an exciting course, inviting you to visit different conceptions of what the law
is or can be, a unique opportunity to reflect on the meaning of our profession in a variety
of perspectives. It is also a complex course, combining theory and practice, culture and
history, with texts written at different times in diverse contexts, sometimes translated
from foreign languages. The learning experience is meant to interfere with who you are,
where you come from, what your personal and cultural identity is. For this reason, we
will try to break the learning experience in two sets of objectives.

Learning Objective #1: This course will enable you to think and operate in the
civil law, the common law, or any mix or hybrid thereof such as Louisiana law.

Lawyering in the civil law is not the same as lawyering in a common law jurisdiction.
You need to know the fundamentals of each system, and they are deeply anchored in
history, influencing what we do in a dynamic way. For instance,
- when you argue a case in a civil law setting, you want to project your
understanding that the law to be applied is part of a larger system, and that you
have an overall awareness of the system and how it operates;
- when you argue a case in a common law setting, you want to show that you fully
master the facts and know how to connect them to the details of applicable cases
and statutory provisions that match those facts;
- in Louisiana, you may move from one approach to the other, depending whether
the applicable law originates in the civil law or common law tradition, and based
on what you know of the judge’s training and approach.
The central topic in this class, the one you want to master, is interpretation (i.e.
making sense of constitutional and legislative texts). I have discussed the matter with
Supreme Court judges in different systems, and all tend to say that what matters most in
their view is interpretation!

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 A difficulty with the course is that you cannot start with a big picture. We have to
build it together; it is like assembling pieces in a jigsaw puzzle. As we move towards the
end of the semester, you will start seeing the big picture. It may take even longer for it to
be clear: there will be sunny and foggy days, clear and dark patches. Law is dynamic and
so is the perception we have of it, regardless of whether we are beginners or seasoned
lawyers.

While studying Western Legal Traditions, you should keep addressing fundamental
questions: Why does law matter and what is the purpose of the law? Maintaining a social
order? Promoting justice? Solving disputes in a fair way? Satisfying selfish needs and
aspirations? The answer might be “all of the above,” but there are different ways of doing
things.

You will discover that the civil law favors a general approach of what law is and tries
to reconcile community and individual interests without losing sight of the common
good. You will discover that the common law is more pragmatic and case oriented. The
common law is also more driven by the search of individual remedies, preferring
empiricism to dogmatic approaches, questioning the need of developing a principled
system. Yet, the civil law can also be pragmatic, and the common law proves to be
dogmatic at times: it much depends on the people engineering the law, and particularly
judges.

You may prefer an approach to the other and change views overtime. This is perfectly
acceptable. This leads me to the other learning objective. You will over the course of the
semester, of your three years at the law school, and maybe lifelong career as a lawyer,
keep building an identity. We all have stereotype images of what we believe to be a
good lawyer and aspire at matching this identity.

And yet at times you will think: “they are stealing my brain and force me to think in
ways that are not natural to me.” All along the semester (and law school, and life), I want
you to remember who you are, even when you are asked to think like a lawyer.
Becoming a good lawyer is not adopting a mechanical and soulless standard profile.
Good lawyers master techniques (Learning Objective #1) and also project who they are,
not forgetting that we are human beings (Learning Objective #2). Do your best to connect
your own identity, social and cultural experience, with your higher aspirations. Yes, you
need to understand the fundamental logic of the legal traditions and systems we will visit
and master their techniques (Learning Objective #1). But you can do this without denying
where you come from and who you are. Do not burry your creativity, your urge for
justice, and remember that cultural competence is essential as we are all cultural beings.
Law permeates with culture and impacts human lives. Try also to identify your cultural
prejudices and blind spots. Be aware that you are looking for your own voice, and that it
will take some time before you find it in the realm of the law. Be patient but be yourself,
and do not give up on your higher aspirations.

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 Learning Objective #2: This course will help you to develop your own voice and
build your identity when juggling with methods and techniques that you are called
to master.

Remember: lawyering is not just about arguing and having the most acute view of
facts, which is a purely technical perspective. Of course, this is important, and we will
pay great attention to it. But law has also to do with social engineering, which requires
vision and awareness of a multidimensional context that includes social, cultural and
economic perspectives, to name but a few. If you add to this a sense of principles and
values, understanding that the aim of the law may not just be to serve selfish interests but
to help human beings to develop and flourish in a livable community and environment,
you are probably on your way to become a good or a better lawyer. Our plan is to make
you good at it, mastering techniques (Learning Objective #1) while projecting who you
are as a human being, hopefully in view of self and social improvement (Learning
Objective #2).

2. Diversity Statement

The LSU Law Center recognizes that our individual differences can deepen our
understanding of one another and the world around us, rather than divide us. In this class,
people of all ethnicities, genders or gender identities, religions, ages, sexual orientations,
disabilities, socioeconomic backgrounds, regions, and nationalities are strongly
encouraged to share their perspectives and experiences.

If you feel your differences may in some way isolate you from our community, or if
you have a need of any special accommodation, please talk to me early in the semester.
We will work at finding a way to help you become an active and engaged member of our
class, while meeting your special learning requirements.

Please respect your fellow students’ opinions and refrain from personal attacks or
demeaning comments of any kind, in the classroom and outside. Be considerate and
tolerant. Toleration does not mean approval, and disputes are best settled by means of an
open and fair dialogue.

3. Learning Method & Assignments

References are to the Course Supplement (CS) and reading assignments are given
between brackets [CS 122-148]. 2022 CS is identical to the 2019 CS. You can buy it at
the PUB or from students who attended in 2019 or 2020 (I did not teach the course last
year).

“S1-Definitions” refers to Slideshow #1 “Definitions” to be found in Section 3

(Slideshows) on Moodle. Slides are made available on Moodle before class but are
sometimes modified after class, in which case I update them on Moodle. Some slides

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have audio, indicated by a speaker’s symbol at the bottom right. It reads automatically
when you activate the slideshow.
I will assign viewing a few recorded videos before class, to minimize the lecturing
time and enhance active class discussion. It is essential that you vision these videos
before class, as you will otherwise be lost. It goes just like the reading: come to class
prepared.

4. Class Attendance

I will pass the roll at the beginning of each class. Do remind me in case I forget. If
you forget to sign the roll, do visit as soon as possible so that I can mark you present, or
send an email. Any issue with the roll must be referred to me. Remember that back
signing is a violation of the code of student conduct.

Remember that class attendance is mandatory and that you must come to class
prepared, just like you would to an appointment or court appearance. It is just because we
do not want to dedicate resources to verify excuses that we have a generous absence
policy. Absences are not a right, they happen to be tolerated because one may fall sick,
have to take care of a sick child or parent, or have an emergency.

5. Quizzes and Assessments

Quizzes are self-assessed exercises, giving you automated feedback. I ask you to
make note of anything that may look odd or wrong, also noting the Quiz number for
easier reference. You may email or visit during office hours to discuss these. Other
assessments require minimal writing and you will be given individual and/or collective
feedback.

Unless otherwise indicated, quizzes and assessments do not count towards the final
grade. They are tools to help you measure your understanding and progress.

Some quizzes and assessments will be milestones with a grade, which will consist in
30 to 40% of the final grade, though never more than 10% at a time. I want to avoid the
freezing effect of mid-terms (there will be no mid-term) and favor the fluidity of the
learning experience. Milestones will be announced in advance and will have clear
deadlines.

6. Office Hours and Contact

I hold office hours Monday and Wednesday, immediately after class 3:00 to 4:30
p.m. I will be in my office W326C and do not mind walks-in as long or starting the
meeting immediately after class walking along to my office.

Email contact moreteau@lsu.edu is always welcome, as is a friendly reminder if I do

not react in a timely manner. Be professional in your emails and every communication
and let’s be always courteous😊.

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 All LinkedIn invitations will be accepted. Facebook invitations are premature and
will only be accepted once you graduate: be patient!

7. Tutors

Megan Broussard and Mark Ackal will be our tutors this semester. They will attend
classes (they did not have a chance to attend Legal Traditions with me) and I will
introduce them the first day. They have full access to the Moodle page and will
communicate on availability. Whether you visit them or me is totally up to you, but you
will realize that I like interaction with my students. It is important that you engage and
visit at least once in the semester.

COURSE CONTENT

The following course content is based on fall 2019, the last year when I taught the course
in person. There will be some adjustments along the way and the Syllabus will be revised
to reflect possible changes. This is due to the fact that I will include videos that I
developed during COVID days when the course was taught remotely.

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 PART ONE

INTRODUCTION

Topic 1 - Meaning of Law: What Law Is or Ought to Be

[CS 7-10] + S1-The Meanings of Law

GUIDELINE

At all times and in all communities, someone has been in charge of sorting out disputes,
in order to decide who is right or wrong, or to restore harmony amongst community
members. It may have been a magician, a priest, or a chief in earlier days, and it tends to
be a judge and sometimes a mediator in modern days. Things have always been more
complex when disputes oppose members of different communities or those communities
themselves.
Let’s have fun and venture in some detective work in order to answer some basic
questions, in order to understand what lawyering is and why legal traditions and systems
matter in a practical world:
1. Is the judge entirely free to decide who is right or wrong, who controls what, who
has to compensate whom, or what must be done to restore social harmony?
2. Are judges under outside restraint, or do they exert self-control? Is there a
struggle for power in the law-making business, just like in politics?
3. Is making judgment about allocation of purely selfish interests, or the promotion
of the common good?
4. Do judges apply preexisting rules, and if this is the case, who creates those rules?
God (revelation)? Society at large (custom or usages)? Previous judges
(precedents)? Legislators (codes and statutes)?
a) When the law is revealed, is the judgment a divine decision or an act of
man?
b) When the judge acknowledges that the rule is customary, does he control
or shape custom?
c) When the rule is a precedent, who decides what the rule is? The judge in
the old case referred to as a precedent, or the judge deciding the new case?
d) When the rule is legislative, is the judge in a position to shape, adjust, or
change the rule by way of interpretation? Is the answer any different if the
rule is found in a comprehensive code or in a specific statute?
5. Are some rules more fundamental than others (think of bills of rights,
constitutions), and if so, who in the end makes them more fundamental?
6. Can the social group take the initiative to contradict or impeach judges and who
will have the last word?
7. Do judges use everyday language or technical legal language? Do they use
categories? If so, who produces and who controls the legal language and
categories?

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The last and basic question is: “why should I care?” Do I need to understand all this to
become an effective lawyer in a civil law or common law system or any mix of them?
In every class, your challenge will be to identify the following: “what is it that I learn
today, that may inform my future practice of the law and make me a better lawyer?”

Topic 2 – Of Legal Traditions, Systems and Cultures

[CS 15-26] + S2-Legal Traditions, Systems, and Culture

1. Legal traditions, legal systems, legal culture

2. What about justice in history?

Topic 3 – Legal Traditions and Legal Education

[CS 27-40]

Legal traditions and legal education: what methodology reveals, why it matters
You will read an article by the late Professor Robert A. Pascal (1915-2018) on
Legal Education. It is thought provoking and you may perceive it as controversial.
You may or may not agree with what you read, and I hope the text will trigger a
rich and lively class discussion on what the law is and what it takes to educate a
good lawyer.
Our class discussion may be conducted in open discussion or debate format.

These first classes invite to think about what law is or ought to be; they are also meant to
remind you that law is not pure technique and purely instrumental. It is based on
principles and reflects some values. Lawyers cannot escape the big debate: are such
principles universal or relative? What is the common good and should we care?
Philosophy, religious beliefs, and political choice may be behind the curtain, but they
control or influence the legal scene! The same can be said of the social and cultural
experience of particular groups.
The kite metaphor is presented as a powerful instrument to observe and comprehend law
in action: it takes to balance a number of forces that may pull the kite in various
directions.

PART TWO

METHODOLOGY, CONTENT AND CULTURE OF THE CIVIL LAW

Chapter 1 – Towards Codification and the Meaning of Civil Codes

Topic 4 – The Development of Roman Law

[CS 43-57] + S3-Roman Law (slides 1-19)

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NOTE: The text is difficult to read but gives essential information regarding the
development of the civil law; do your best to identify the following, knowing that this
may reside in different parts of the text.
1. Roman law
a. List parts of the law that are of Roman origins
b. List parts of the law that are not of Roman origins
c. What was the Law of the Twelve Table?
d. Did Roman law apply to non-Roman citizens and was there a special law
applied to those?
e. What are jus scriptum (written law) and jus non scriptum (unwritten law)?
f. Who was the Praetor?
g. What was the importance of opinions of jurists and who were the classical
jurists?
h. The importance of Emperor Constantine
i. The importance of Emperor Justinian

Topic 5 – Corpus Juris Civilis, Jus Commune, Ratio Scripta

[CS 58-65] + S3-Roman Law (slides 20-42)

2. The Corpus Juris Civilis

a. The division of the Empire
b. An Emperor named Justinian
c. Compiling the CJC
d. Applying the CJC
e. The fall of the Roman Empire
3. Roman law as a jus commune
a. The rediscovery of Roman law
b. The medieval university
c. The Bologna model
d. The development of State administration
e. A jus commune in a pluralistic world
4. Canon law [no reading on this]
5. Commercial law [no reading on this]

We cover a large span of time in just a few classes. The amount of information and
historical data may look overwhelming to anyone who did not major in history.
However, you are not expected to memorize historical details, dates, and names.
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When revisiting this part of the material before the exam, focus on this:
- What does it teach me on the contemporary legal systems?
Topic 6 – The Path to French Codification
[CS 66-70, 79-89] + S4-Codification in France
6. The French Civil Code
a. French law in the Ancien Regime
b. The French Revolution
c. The drafting of the Civil Code
i. The Projet of 1801
ii. The discussion of the Projet

Topic 7 – The Concept of Code

[CS 71-78, 89-95] + S4-Codification in France
7. Portalis and the Preliminary Discourse
i. Drafting techniques
ii. Code interpretation
iii. Natural law and positive law

Topic 8 – The Destiny of the French Civil Code

[CS 79-95 review] + S5-Destiny of the French Civil Code
8. The destiny of the French Civil Code
a. The Code in the 19th c. (contrast with the Preliminary Discourse by
Portalis)
b. The Code in the 20th c. (beyond the Code but through the Code)
c. The Civil Code outside France
d. The future of civil codes in Europe

Topic 9 – Administration of Justice in France

[CS 96-107] + S6-The French Court System
9. Administration of justice: The French Court System
a. The division between ordinary and administrative courts
b. Administrative courts
c. Ordinary courts (civil and criminal)
d. Solving jurisdiction issues
e. Appeals in the ordinary courts

Topic 10 – Judicial Review in Civil Law Jurisdictions

[CS 108-114; read also point no. 6 pp. 134-135; feel welcome to read 114-135 as
background reading]
10. Judicial review
a. The French way (the Conseil constitutionnel)
b. The German way (the Bundesverfassungsgericht)
Judicial review will be covered through the reading of the French and German abortion
cases. The German decision of 1975 is very long and you are not expected to read it,
though the reading is worthwhile.
Try to contrast the French and the German approach of a similar problem and look at
the way both “courts” (the word court may not be appropriate to describe the French
Constitutional Council) phrase their arguments (a quick look at pp. 96-115 should be

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enough for a first impression). Point no. 6 at pp. 116-117 informs you on the second
German decision, made after the German Reunification, in 1993.

Description of the Court system in France: you are not expected to memorize the detail.
Try to understand the impact the courts may have on the development of the law, in a
typical civil law system. It is important to understand how things work in a typical civil
law jurisdiction.

Topic 11 – Codification in Germany and Switzerland

[CS 137-162] + S7-Germany & Switzerland
11. Codification in Germany and Switzerland
a. The German Civil Code (BGB) [read that part carefully, with a focus on
the structure of the code]
i. The drafting of the BGB
ii. The structure of the Code
iii. Content and evolution
iv. Influence outside Germany
b. The Swiss Code as a compromise between the French and German model

After these classes, you understand the following points:

Chapter 2 – Sources and
- Codification is a Method:
powerful The
tool Primacy of Legislation
for the unification of the law and sometimes
coincides with political unification;
Topic- 12Civil
– TheCodes
Sources
aimofatthe Law a comprehensive organization of rules dealing
providing
[CS 163-177] + S8-Sources
with main aspects ofinprivate
Civil Law
law Jurisdictions
(persons, property and obligations);
1.- The ‘primary’ or ‘true’ sources of the Civil Law
Codes are meant to be readable by ordinary citizens (French and Swiss model)
a. Legislation defined
or by trained lawyers only (German model);
- Civil Codes i. Different
sometimes categories
contain of texts
a general part to avoid repetition (German
model) ii. Imperative and suppletive legislation
You should also have some views as to drafting techniques, evolution of the codes and
relevance of codification in the present world. This does matter a lot, of course in civil
08/08/2022 10
law jurisdictions, but also in the context of national and international harmonization of
the law, encompassing civil law, common law, and mixed jurisdictions.
 b. Custom defined
i. Obligatory force
ii. Constitutive elements
iii. Custom secundum legem, praeter legem, contrat legem
c. Are custom and legislation different in essence?
d. May legislation be abrogated by desuetude?

Topic 13 – Filling the Gaps or Lacunae

[CS 178-192] + S9-Gaps & Lacunae
2. Gaps or lacunae in the civil law
a. Traditional approach
b. Contemporary approach
3. Doctrine as a source
a. Historical outlook (opinio communis doctorum)
b. Characteristics of doctrine
c. The role of doctrine

Topic 14 – The Importance of Jurisprudence

[CS 193-198]
4. Jurisprudence as a source
b. The traditional view: not a source but authority
c. Critique of the traditional view (François Gény)
d. The interaction of sources

Sources of the civil law are a complex and controversial topic, because of theoretical
Topic 15 – Code
and practical Interpretation
implications. The materials reflect the way civilians view the theory of
[CS
sources. Views vary: Civil Code art. 9-13] + S10-Code Interpretation
213-226; Louisiana
5.- Code
Someinterpretation
insist, in a dogmatic way, that legislation and custom (primacy of the
will of the people) are the only sources,
- Others admit, in a pragmatic way, that jurisprudence and doctrine strongly
08/08/2022
interact with legislation in the creation of the law (recognition of the input of11
judges and jurists), while custom tends to be marginal in the contemporary
world.
 d. Traditional methods
e. Modern methods

Topic 16 – Case Study and Practice

[CS 199-206]
f. Case study: discussion of 2015 exam question 1(A) and (B) [CS 199-206]

Interpretation of the law connects with sources and their interaction:

#17 – Review - Session
Existence of traditional and modern methods;
- Sticking to legislative intent or judicial activism;
#18 – Code Interpretation: Modern
- Tension between Methodsand
conservative in Louisiana
progressive approaches;
[CS 501-514]- How law-making techniques and interpretative techniques do connect.
Code Interpretation in Louisiana: Modern Methods
a. Loyacano v. Loyacano, Supreme Court of Louisiana, 1978

PART THREE
METHODOLOGY, CONTENT AND CULTURE OF THE COMMON LAW

Topic 19 – Common Law

[CS 227-236 (end of para II) + S12-Common Law Tradition
1. Common law courts
a. The Norman Conquest
b. The creation and development of the royal courts
c. The writ system
2. The importance of forms of action
a. How they developed
b. How they shaped the legal mind

Topic 20 – Equity
[CS 236-246 (end of para IV)] + S12-Common Law Tradition
3. Equity and justice (search for definitions of equity)
4. How equity appeared
a. The king “fountain of justice”
b. The Chancellor as “keeper of the king’s conscience”
5. The development of equity
a. Remedies in equity
b. Example 1: performance of contracts

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 c. Example 2: the law of use and trust

Topic 21 – Common Law in America; A Structure in Layers

[CS 254-269; This includes William Walsh, A History of Anglo-American Law, and
Moréteau/Vanderlinden, La structure des systèmes juridiques] + S12-Common Law
Tradition
6. The reception of the common law in America
a. English law in the American colonies
b. The development of the common law in the United States
7. The merger of law and equity
a. Not a full merger
b. Why the distinction still matters
8. The structure of the common law system
a. Remedies matter more than rights
b. Legal, equitable and statutory remedies
c. The example of assignment of debt
d. A structure not in arborescence but in layers

Regard this historical outline as essential for understanding the following points:
(1) Why and how does the common law focus on the search of court remedies
rather than the identification of protected rights?
(2) How did case law develop as the paradigm rather than legislation?
(3) Why is statute law perceived as a gap-filler, developing on the background
of a judge-made common law?
(4) Why do common-law lawyers think in terms of actions?
(5) How did they come to develop and sometimes superpose legal, equitable and
statutory remedies?
(6) How did this way of thinking and developing the law make its way to North
America and shape the law of the United States, outside Louisiana?

Topic 22 – Precedent or Stare Decisis

[CS 270-277; this includes BODENHEIMER ET ALII, STATUTES, CASE LAW…; MORÉTEAU,
DROIT ANGLAIS DES AFFAIRES (translated from the French)]
9. How statute and precedent differ
10. The doctrine of stare decisis
a. Why precedents matter in a practical world
b. Should precedents be authoritative or persuasive?
11. Overruling precedents: does it mean correcting mistakes or changing the law?
a. Do judges declare or create the law?
b. Why is overruling retroactive?
12. Distinction and the path to evolution
a. How distinctions are made
b. How distinctions keep the system flexible

Topic 23 – Overruling and Interaction with Statute

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[CS 278-282] Baldwin v. State of Vermont; Whitney v. Fisher
13. Statutory law and case law: a case study [loss of consortium cases]
a. How they interact
b. How courts may cope with retroactivity

Topic 24 – Researching the Holding of a Case (Ratio Decidendi)

[CS 283-298] + S13-Ratio Decidendi (literally, the reason why this was decided)
GUIDELINE: You are asked to read a line of cases; try to get the facts right and identify
the following:
(1) Why is it impossible to sue in contract, leaving tort as the only option?
(2) What is the solution to the case?
(3) Is the answer the same as in the previous case or is there something new to it?
(4) Try to track distinctions made by the judge, if any.
14. The ratio decidendi (holding) of a case
a. Ratio decidendi (holding) and obiter dictum (dicta): what is the
difference?
b. Who makes precedents? The judge deciding the old case or the one
deciding the new one?
c. Law making and relevant facts
d. The example of product liability

Topic 25 – Making Sense of Statutes

[CS 299-318]
15. Statutory interpretation: problems and solutions
a. The limits of human language
b. Paradigm cases: the example of a regulation prohibiting the taking of
motor-vehicles into the public park
c. The common law approach
16. Statutory interpretation: contemporary approaches
a. Case study
b. Textualism v. Purposive approach

Topic 26 – Case Studies

[CS 200-210]
17. Logic and policy in legal reasoning
a. Formalism and fiction
b. Common sense and experience
These points will be discussed in the context of a hypothetical. We will discuss Question
1 (C) and (D) of the 2015 Exam [200-210].

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 Topics 22 to 26 invite you to understand three things:
(1) Law can develop on a case-by-case basis rather than on a pre-organized
comprehensive scheme like a code. Having studied codes, you can understand what
difference it makes:
- to search for a practical solution (a remedy) referring to what has been decided
in the past in somehow similar situations, with no general guideline to be found
in a code (common law approach);
- to refer to general written rules and figuring out, also looking at cases, how
courts interpret them and how they may fit the facts of the case (civil law
approach).
(2) What matters most is the case-by-case approach:
- in the common law, the rule found in a precedent is not just an abstract and
general principle, it must be connected to relevant facts;
- in the civil law, the rule is abstract and general, it is what you read in the code,
or in the broad statement made by a highest court interpreting the code; factual
details to be found in the case is of course important for practical purposes but
it is not part of the rule.
(3) The binding force of precedents is not the key distinctive factor between
common law and civil law:
- in common law jurisdictions, courts know how to distinguish precedents and
overrulings are not always possible;
- in civil law jurisdictions, cases are not easily distinguishable (focus on general
rule rather than on facts); rulings by supreme courts are routinely followed and
rulings by constitutional courts are binding binding just like U.S. Supreme
Court rulings on constitutional issues.
(4) Statutory interpretation is haphazard:
- though the U.S. Constitution offers some sort of framework comparable to a
code, the system is open when one descends to ordinary statutes, which are
specialized and overdetailed;
- the only law that can serve as a background to a statute is the common law;
statutes are therefore interpreted as making exception (derogating) to the
common law, and judges for that reason tend to interpret them restrictively,
though some try to extrapolate and enlarge the scope of the statute, making
policy arguments. We have identified similar tensions in the civil law, but the
common law does not offer the solid framework of a code wherefrom one can
infer a spirit and get guidance.

#27 – Reserved

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 PART FOUR

THE LOUISIANA EXPERIENCE

This section of the course serves a dual purpose:

(1) Giving you a general introduction to the Law of Louisiana, a system combining civil
law and common law elements and method;
(2) Revisiting or studying some of the basic tools of the civil law tradition such as
categories and interpretation. Those tend to be neglected by:
(a) Lawyers trained in the common law (out of ignorance), or
(b) Lawyers trained in the civil law who do not dare to apply civil law methodology
(lack of courage or self-confidence when operating in a predominantly common law
culture).

Topic 28 – Historical Perspective

[CS 328-347; 379-383] + S14-Louisiana Law as Gumbo
1. English, French, and Spanish influences in North America
2. History of Louisiana Law
a. French period (1699-1762)
b. Spanish period (1769-1800)
c. Transitional period (1803)
d. The Digest of 1808

Topic 29 – From the Digest to the Civil Code

[CS 384-402]
3. The Digest of 1808
a. The preliminary title: sources of the law
b. The Batiza-Pascal controversy: what it reveals on Louisiana law and the
doctrinal perception of sources
c. A code or a compilation?
4. Judicial response to the Digest of 1808
a. Cottin v. Cottin
b. Post-Cottin jurisprudence
5. The need for a revision
a. The Civil Code of 1825
b. Abrogation of Spanish, Roman and French laws
c. Abrogation: techniques and effects

Topic 30 – Codification and Revision

[CS 402-414]
6. The Code of 1825: a new Code or a modification?
a. Flower v. Griffith: amendments of three kinds
b. Reynolds v. Swain: a common law or natural law approach?
7. The Code of 1870: a revision of the 1825 Code

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 8. Louisiana Law in the 20th century
a. Shelp v. National Surety Corp.
b. Federal law and state law
c. The revision of the Code

Topic 31 – Codification, What Next?

[CS 333-368; read carefully after p. 347, para. B]
9. Codification, decodification, recodification, revision
a. Overview
b. The Louisiana experience
10. The influence of Louisiana Law in Latin America and in the world
11. The Louisiana Civil Code Translation Project

Topic 32 – Retroactivity
[Planiol on Retroactivity, available in Moodle, Section 1]
Read Planiol, and reflect on the two following hypotheticals. You may want to revisit
Fabre-Magnan in CS 177-178.

Topics 28 to 32 give background knowledge, essential to the understanding of the present

Louisiana legal system and culture, whilst explaining its mixed or hybrid character.
Though unique to this part of the world, this experience echoes what happens elsewhere
in the world, wherever two distinct legal traditions are to meet (mixed jurisdictions).
International law also recombines civil law and common law elements and methods.

In addition, the concept of codification is revisited there:

(1) Whereas the French saw the Civil Code as a break with the past (clear
abrogation clause), Louisianans used it as a tool to ensure continuity (lose abrogation
clause in the Digest). Do we have a code or a digest?
(2) The French have a more positivist attitude and do not mind abrupt legislative
change (law is primarily legislation), Louisiana may be less attached to legislation and
cares for continuity. The Civil Code remains a sort of digest.
(3) Judicial resistance to abrogation reveals:
- Conservative attitude
- Anti-positivist attitude (what is not legislative cannot be abrogated:
Reynold v. Swain)
- An open door to common law methodology?

Topic 33 – Persons
[Read Louisiana Civil Code, art. 24 to 31; 415-418 (§ 52); you may also want to read CS
425-440 (§ 51 (431-433) to be left out) as background reading] + S15-Categories in the
Civil Law, S16-Natural and Juridical Persons
12. The subjects of Law: Persons
a. Subjects of rights and duties
b. Natural and juridical persons
c. Commencement and termination of natural personality

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 d. Legal status of slaves in the Digest of 1808, Book I, Title VI
(http://digestof1808.law.lsu.edu/?uid=15&tid=11&ver=en#15)
e. Patrimony (§ 52)

Topics 34 – The Legal Status of Human Embryo

[La Civil Code, art. 24-30; CS 483-484]
Try to resolve the following hypothetical (from S16, slide 7) and list all points you need
to check or questions you may want to ask:
In 2010, H and W, then married, had several embryos conceived in vitro, now
under the custody of E-Hospital in Baton Rouge, LA.
Successive attempts of implantation failed and the couple divorced in 2014, W
relocating in Texas.
In 2017, the state decides to defund and shutdown E-Hospital.
H and W never responded to letters or messages sent by E-Hospital.

Topic 35 – Rights
[CS 459-466] + S17-Classification of Rights
13. Rights
a. Notion and classification of rights (§ 73)
b. Patrimonial and extra-patrimonial rights (§ 74)
c. Real and personal rights (§ 75)
d. Acquisition and loss of rights (§ 76)
Exam practice, short questions

These classes deal with categories used in the Civil Code and civil law of Louisiana.
Topic 36 – Codeand
Classifications Interpretation in Louisiana:
categories (scholars Traditional
also talk Methods
about taxonomy) play an important
[CS 485-497; 528-531]
role in all legal systems, yet an essential one in the civil law: everything in the
14. Code
universe, theInterpretation in Louisiana:
unlimited diversity Traditional
of factual Methods
situations, is expected to fit into one or
several of these often simplistic categories, allowing a limited number of rules well
organized in a Code system to grasp the least expected situations.
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Expect exam questions testing your understanding of legal categories. In most
instances, you will be able to give a clear-cut and simple answer. In a limited number
 b. Holland v. Buckley: Supreme Court of Louisiana, 1974

Topic 37 – Code Interpretation in Louisiana: The Code as a System

[CS 515-520]
15. Interpretation: Code Provisions as Parts of a Living Body
a. Succession of Henican: dealing with conflicting Code provisions
b. Succession of Lichtentag: using the Code as a system

Topic 38 – Jurisprudence in Louisiana

[CS 521-527; 531-543]
16. The Classical Theory of Sources and the Louisiana Experience
a. The hierarchy of norms: US Constitution, LA Constitution, LA Civil
Code, LA ordinary legislation
b. Jurisprudence in Louisiana
c. Jurisprudence constante v. Stare decisis: the example of Doerr v. Mobil
Oil Corp.

Topic 39 – What Future for the Civil Law in Louisiana?

[CS 321-327] + S18-Fixing Some Anomalies
This class will invite for a debate.

(1) The final classes bring us back to the fundamental topic of interpretation:
- Traditional and modern methods;
- Researching original legislative intent or acting as a legislator;
- Different ways of doing things, in a conservative or progressive manner;
- Combining these different interpretative/law-making techniques.
(2) What makes the big difference between the common law and the civil law is not
so much the methods of interpretation, since they are largely system-neutral. The big
difference is in the context:
- Interpretation on the background of case law in the common law (leads to restrictive
interpretation of statutes when one prefers case law, or broader interpretation when
the statute is inadequate);
- Interpretation on the background of the code in the civil law, combining articles and
taking into account their location in the code (tension between strict interpretation to
keep the integrity of the code and broad interpretation to keep the code apace of
social evolution).
(3) Judicial Activism v. Judicial Conservatism: this tension exists everywhere, this is
why a good attorney must be familiar with all methods and have a strong common
sense!

#40 – Review Session

Discussion of the 2020 Exam; Questions & Answers.

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