From Chaos to Continuity: The Evolution of Louisiana's Judicial System, 1712-1862

Abstract

From Chaos to Continuity: The Evolution of Louisiana's Judicial System, 1712-1862. By Mark F. Fernandez. (Baton Rouge: Louisiana State University Press, 2001. Pp. xviii, 135. Appendix, bibliography, index. Cloth, $29.95.) Louisiana has always been the odd state out in American law. The other forty-nine are squarely in the English common law tradition, but Louisiana is the only state with a legal system based in part on civil law, the Romanderived legal tradition of continental Europe. The standard explanation for Louisiana's unique status is that New Orleans, before the Louisiana Purchase, was the only city in the French or Spanish parts of what would eventually be the United States big enough to a significant number of lawyers trained in civil law. After all the other French and Spanish territories were acquired by the United States, American lawyers trained in the common law moved in, and they had no competition. But in New Orleans, American common lawyers encountered a bloc of civil lawyers, mostly trained in France, with a stake in holding on to the legal system they knew. And so, the conventional story goes, Louisiana's early nineteenthcentury legal system became a mixture of the common law and the civil law, reflecting a political compromise between the old French lawyers and the new Anglo-American lawyers. And so things remained ever since. One consequence, as Mark Fernandez points out in the introduction to his new study of Louisiana's legal system, From Chaos to Continuity, is that mainstream American lawyers and legal historians pay little attention to Louisiana. The state has its local academic lawyers, who, as Fernandez notes, publish specialized studies of the fine points of civil law in legal publications (xiv). Louisiana also has its local historians, who, Fernandez again comments, time perhaps a bit uncharitably, have reveled in the minutiae of its uniqueness (xii). But most American lawyers and legal historians treat Louisiana almost as a foreign country, a jurisdiction requiring arcane expertise to understand, and in any event a state not offering anything to the main story of American legal development. The thesis of From Chaos to Continuity is that mainstream view is a mistake. The legal system of early nineteenth-century Louisiana, Fernandez contends, was not really so different from that of any other state at the time. In comparison to other southern states of the period, he argues, this investigation of Louisiana shows it to be a representative model of an Anglo-American common law jurisdiction sharing remarkably similar experiences with its neighbors (xiii). This is a provocative thesis, and one that is likely to generate some controversy among Louisiana historians. Fernandez allows himself a short space to prove his thesis-only a bit more than one hundred pages. Chapter one is a perfunctory discussion of the period before the Louisiana Purchase based entirely on a few secondary sources, with little connection to the rest of the book. Readers primarily interested in French and Spanish colonization will be disappointed and may think the subtitle's promise of 1712-1862 something of a bait and switch, as the rest of the book only covers the last third of that span. …