Codification, Transplants and History

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xlv, 559 pp. When Louisiana enacted its Digest of the Civil Laws in 1808 and Quebec its Civil Code of Lower Canada in 1866, both jurisdictions were in a period of transition-economic, social and political. In both, the laws had originally been transplanted from European nations whose societies were in many ways different from theirs. This book offers the first systematic and detailed exploration of the two new codes in light of social and legal change. Cairns examines the rich, complex, and varying legal cultures-French, Spanish, Civilian and Anglo-American-on which the two sets of redactors drew in drafting their codes. He places this examination in the context surrounding each codification, and the legal history of both societies. Cairns offers a detailed analysis of family law and employment in the two codes, showing how their respective redactors selected from a defined range of sources and materials to construct their codes. He shows that they acted relatively freely, attempting to inscribe into law rules reflecting what they understood to be the needs of their society from an essentially intuitive and elite perspective. While not propounding a universal theory of legal development, Cairns nonetheless shows the types of factors likely to influence legal change more generally. "The addition of Dr. Cairns' comparative work Codification, Transplants and History greatly enriches the scholarship of Louisiana legal history and can serve as a fruitful starting point for newcomers. His excellent introduction is required reading for anyone interested in Louisiana legal history."-- GEORGIA CHADWICK, Law Library of Louisiana "John Cairns' Codification, Transplants and History may be the most important book about the origins of the Louisiana Civil Code ever published. Originally written in the late 1970s as his Ph.D. thesis for the University of Edinburgh under the tutelage of Alan Watson, Cairns' study provides a detailed analysis of the methods and sources used by the first codifiers of Louisiana and Quebec Civil Law and the legal, political and social context in which they worked. In particular, Cairns' analysis of the drafting of the 1808 Digest of the Territory of Orleans resolves, to a greater extent than any work published to date, the famous debate between Robert Pascal and Rodolfo Batiza over the sources, purposes and meaning of Louisiana's first attempt at codification. Moreover, with its insightful, newly drafted historiographic introduction, Cairns' book explains why resolution of that debate cannot be marginalized as an obsession of scholars enthralled by Louisiana exceptionalism but rather remains central to any complete understanding of Louisiana legal history. Cairns' comparative account of codification in Louisiana and Quebec will also be the starting point of all other comparative studies of these two important North American mixed jurisdictions for years to come."-- JOHN A. LOVETT, Loyola University New Orleans College of Law "Completed in the era of fountain pen, typewriters and snail-mail, this book is a major contribution to legal history and to legal theory. Cairns argues that a variety of factors explained innovation or stasis, such as legal or conservative ideologies, political considerations and socio-economic changes. Therefore, he considers lawmakers to be essentially social actors, instead of skilled technicians." --MICHEL MORIN, University of Montreal JOHN W. CAIRNS is a graduate of the University of Edinburgh, where he now occupies the Chair of Civil Law. He has taught at the Queen's University Belfast (1980-1984) and served as a Visiting Professor at Southern Methodist University, Dallas, and the University of Miami, Florida. He was elected a Fellow of the Royal Society of Edinburgh in 2007. His research has focused on the history of Scots law, slavery and the law and the legal history of Louisiana and Quebec.