Brostoff on The Encyclopedist Code: Ancien Droit Legal Encyclopedias and Their Verbatim Influence on the Louisiana Digest of 1808 @LSULawCenter

Seth Brostoff, Louisiana State University Law Center, is publishing The Encyclopedist Code: Ancien Droit Legal Encyclopedias and Their Verbatim Influence on the Louisiana Digest of 1808 in volume 13 of the Journal of Civil Law Studies. Here is the abstract.

This Article identifies nearly one hundred articles and provisions in Louisiana’s first civil code, the Digest of 1808, which were copied verbatim or almost verbatim (that is, literally or almost literally) from three French legal encyclopedias popular during the Ancien Régime: M. Lerasle’s Encyclopédie méthodique: Jurisprudence (8 vols., 1782-89), Jean-Baptiste Denisart’s Collection de décisions nouvelles (1st ed., 6 vols., 1754), and Joseph-Nicolas Guyot’s Répertoire de jurisprudence (2d ed., 17 vols., 1784-85). As the Appendix indicates, verbatim and almost verbatim extracts from Lerasle, Denisart, and Guyot constitute at least 4-5% of the Digest’s source material. This Article therefore serves as a supplement (and partial corrective) to Rodolfo Batiza’s 1971 and 1974 studies of the Digest’s “actual sources”. The present study argues that the Digest’s primary redactor, Louis Moreau Lislet, borrowed language from French legal encyclopedia entries largely for pedagogical purposes, including introducing into Louisiana’s new civil code civilian definitions and other material that would be useful for lawyers and judges trained in the common law. As a result, Louisiana’s first civil code possesses a didactic quality that is absent from its Napoleonic prototype. Equally important, this study suggests that earlier scholars’ assumptions that the Digest’s source material reflects Louisiana’s mixed Spanish-French legal history should be revisited: while discovery of a significant presence of French legal encyclopedic sources certainly reveals the drafter’s preference for, and familiarity with, ancien droit legal literature, it further undermines previous assumptions about the widespread indirect influence of Roman and Spanish-Castilian sources.

Download the article from SSRN at the link.