"Opening the Barbarians' Gate" or Watching the Barbarians from the Coliseum: A Requiem on the Nomos of the Louisiana Civil Law

By the advice of their protectors (the Romans), they (the Britons) now built a wall across the island from one sea to the other, which being manned with a proper force, might be a terror to the foes whom it was intended to repel, and a protection to their friends whom it covered. But this wall, being made of turf instead of stone, was of no use to that foolish people, who had no head to guide them.1

In their original form, they were watched by very few spectators who had to squeeze in against each other, pushing and jostling, straining and craning their necks to get a look at the bloody action being played out before them. These rough congregations, in which the spectators quickly planted themselves wherever they could find a place with a decent view, contained the seeds of the great spectacles of later years. They were primitive showcases for fighting and nothing more, and were certainly not prepared or stage managed in the manner that would later become commonplace . . . . It was not long, however, before seats were added and hired out to spectators who were thus afforded a little more comfort as they watched each pair of gladiators fight . . . .2

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 normative elements are revealed, even when they are not completely accurate. Part III challenges the readers to inhabit the nomos.

I. Institutional Identity Versus Nomos

There is a story in human history that the barbarians sitting on the verge of civilized society shaped human innovation.3 That, as uncivilized "tribes" threatened the parameters of the modern world, society had no choice but to innovate and repel the advances of chaos or themselves be infused with the chaos that the barbarians brought. The Mongols, the Huns, the Gauls, the Celts, the Turks, and the Germans each were the driving force requiring societies on the other side to develop or disorganize.

There is a similar story told in legal communities in two variations. In law (at least in the Western legal tradition) one is trained primarily as a civilian or as a common lawyer. The narrative is therefore told as either one of passive virtues (we stand at the gate and allow the other to influence our own legal tradition) or one of aggressive resistance (we stand aloof and reject the other as antiquated or barbaric given our predisposition). To be sure there is no natural affinity between the two. But it is undeniable that systems do from time to time borrow from one another, despite the perception that each remains superior to its counterpart.4 Such is the premise behind comparative law.5 The more politically friendly version tends to suggest a developing third family of legal tradition known for the combination of civilian and common law themes-that jurisdictions are becoming multi-traditional, mixed, or "bijural."6

The danger in creating a "new legal tradition" from the relics of traditions is that it tends to devalue the traditions that supposedly have been combined. So, when Palmer writes that "because of their double genetic makeup mixed jurisdictions must appear anomalous (and unclassified) when compared to one of their two parents,"7 he tells us that the two traditions cease to exist in the shadow of the third. Said another way, the "new legal system" becomes an orphan, unsure whether its institutions and enabling devices derive from one system or another. Thus in the same way that comparative law runs the risk of exaggerating the ori...

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