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Herman, The Louisiana Civil Code: A European Legacy for the United States

by on February 21, 2026

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In my libertarian and law school studies I was fascinated with law and legal history, reading books and articles touching on both topics, e.g. Bruce Benson’s The Enterprise of Law, Bruno Leoni’s Freedom and the Law, and so on. 1 As an aspiring legal scholar and lawyer, and Louisiana-educated “civilian” lawyer, I was also interested not only in the common law but the Roman and European civil law, and in law reviews in general. Even footnotes. 2 I also became interested in international law when pursuing an LL.M. in international law at King’s College London, and ended up publishing a lot in this area and melding it with my libertarian-related theorizing.

Among the many, many, publications I read concerning international law, Roman Law, and Louisiana law in particular was Herman, The Louisiana Civil Code: A European Legacy for the United States. Although my post-law school friend and correspondent, law professor Robert Pascal 3 sure wasn’t! (see Robert Pascal Correspondence, 1993–1994). As noted in “All that is not permitted is forbidden”:

Legislative supremacy is announced in the very first articles of the Louisiana Civil Code. Article 1 provides that “The sources of law are legislation and custom,” but article 3 makes it clear that legislation is dominant and supreme: “Custom may not abrogate legislation.”[155]

Yet some scholars note that the Louisiana code is not quite as “rationalistic” or legal positivistic as the French code, since it also admits custom as a source of law and, importantly, also provides: “When no rule for a particular situation can be derived from legislation or custom, the court is bound to proceed according to equity. To decide equitably, resort is made to justice, reason, and prevailing usages.”[156]

[155] See also [Shael] Herman, The Louisiana Civil Code: A European Legacy for the United States [(Louisiana Bar Foundation, 1993)], p. 17; John Henry Merryman & Rogelio Pérez-Perdomo, The Civil Law Tradition: An Introduction to the Legal Systems of Western Europe and Latin America, 4th ed. (Stanford, California: Stanford University Press, 2018), discussing legislative supremacy in the civil law. N.b.: Louisiana’s civil law is derived in large part from Spanish and Roman sources, though using the French code’s style, organization, and sometimes text as the means to codify this Spanish-Roman law. This, by the way, is a controversial and complicated issue among Louisiana legal scholars; I tend to agree with Pascal and Levasseur, and disagree with Batiza and Herman, as a legal matter, despite disagreeing normatively with Pascal’s opposition to individualism and economic liberalism and despite agreeing with Herman’s more liberal and individualist inclinations. See Robert A. Pascal, “The Louisiana Civil Code: A European Legacy for the United States. By Shael Herman,” La. L. Rev. 54, no. 3 (Jan. 1994): 827–32 [“This is a misleading booklet. That it is so is especially serious, for it seems to have been intended for wide distribution to persons, including high school students, few of whom can be expected to have knowledge sufficient to challenge its accuracy. Many of its readers, therefore, will receive a false perspective on Louisiana’s Civil Code, legal history, and legal culture.”]; and Alain A. Levasseur, “Grandeur or Mockery?”, Loy. L. Rev. 42, no. 4 (Winter 1997: 647–725 [also discussing the “tournament of scholars” between Pascal and Batiza: Dean Joseph Sweeney, “Tournament of Scholars Over the Sources of the Civil Code of 1808,” 46 Tul. L. Rev. 585 (1972); Rodolfo Batiza, “The Louisiana Civil Code of 1808: Its Actual Sources and Present Relevance,” 46 Tul. L. Rev. 4 (1971). Robert A. Pascal, “Sources of the Digest of 1808: A Reply to Professor Batiza,” 46 Tul. L. Rev. 603 (1972)].)

[156] Louisiana Civil Code, art. 4 (emphasis added). See also commentary on this issue by Yiannopoulos and Pascal: A.N. Yiannopoulos, “The Civil Codes of Louisiana,” Civil Law Commentaries 1, no. 1 (Winter 2008): 0–23 (also included in idem, Civil Law System: Louisiana and Comparative Law: A Coursebook: Texts, Cases and Materials, 3d ed. (Baton Rouge, La.: Claitor’s Publishing Division, 2000)); and Pascal’s review of Herman cited previously, both as quoted in Kinsella, “Legislative Positivism and Rationalism in the Louisiana and French Civil Codes,” StephanKinsella.com (April 4, 2023). See also idem, “Logical and Legal Positivism,” StephanKinsella.com (June 23, 2010). Re rationalism, see also note 9, above. The 1804 French Civil Code, in English, may be found at Code Napoleon: or, The French Civil Code (London: William Benning, 1827).

(On the “Tournament of Scholars,” see also references from Robert Pascal, R.I.P.:

See Pascal, Robert A. and Rodolfo Batiza, Tournament of Scholars: articles debating the actual sources of the Louisiana Civil Code of 1808–Spanish or French Law; see also Remarks at the de la Vergne Volume Celebration, in particular the remarks of Ronald Scalise; Agustín Parise, Codification of the Law in Louisiana: Early Nineteenth-Century Oscillation Between Continental European and Common Law Systems, at pp. 155 et seq; John W. Cairns, The de la Vergne Volume and the Digest of 1808; The Great Debate Over the Louisiana Civil Code’s Revision, by James Dennis, Julio Cueto-Rua, David Gruning, Shael Herman, Vernon Palmer, Cynthia Samuel, A.N. Yiannopoulos; The shrouded origins of the Louisiana Civil Code. )) Pascal was passionate about this and related topics —see the various reviews and letters he wrote in this regard, which he sent these to me as I had indicated to him interest in this issue. 4; and especially idem, “Mises and Hayek Dehomogenized,” Rev. Austrian Econ. 6, no. 2 (1993; https://mises.org/library/mises-and-hayek-dehomogenized): 113–46; and other material collected at Kinsella, “The Great Mises-Hayek Dehomogenization/Economic Calculation Debate,” StephanKinsella.com (Feb. 8, 2016).

[67] Herbener’s letter is available at Kinsella, “Legislation and the Discovery of Law in a Free Society,” StephanKinsella.com (Jan. 8, 2021).

[68] See Murray N. Rothbard, “The End of Socialism and the Calculation Debate Revisited,” Rev. Austrian Econ. 5, no. 2 (1991; https://mises.org/library/end-socialism-and-calculation-debate-revisited-0): 51–76, at 66; Jörg Guido Hülsmann, “Knowledge, Judgment, and the Use of Property,” Rev. Austrian Econ. 10, no. 1 (1997; https://mises.org/library/knowledge-judgment-and-use-property): 23–48, at 39; Salerno, “Ludwig von Mises as Social Rationalist,” at 44; Hans-Hermann Hoppe, “Socialism: A Property or Knowledge Problem?”, Rev. Austrian Econ. 9, no. 1 (1996; https://mises.org/library/socialism-property-or-knowledge-problem): 143–49, at 146. See also Kinsella, “Knowledge vs. Calculation,” Mises Economics Blog (July 11, 2006). See also related discussion in “Knowledge, Calculation, Conflict, and Law” (ch. 19), at n.34, and idem, “Second Thoughts on Leoni, Hayek, Legislation, and Economic Calculation,” The Libertarian Standard (May 9, 2014).

Kinsella to Herman, November 4, 1993, when I was a new attorney at Jackson Walker LLP in Houston.

Dear Professor Herman,

I just read your recent book, The Louisiana Civil Code:  A European Legacy for the United States.  I enjoyed it very much and found it very useful in an article I am writing, entitled “Significant and Unique Louisiana Civil Law Concepts Translated and Explained for Common Law Lawyers.”  I hope to finish it sometime in the next few months and then attempt to have it published in a Louisiana or Texas law review.  I am currently working as a patent and energy attorney in Jackson & Walker in Houston, so it sometimes takes a while to find time to write articles.  I just published one in the Louisiana Law Review, entitled “Smashing the Broken Mirror:  The Battle of the Forms, UCC 2-207, and Louisiana’s Improvements.”  I have enclosed a copy which you may find interesting.

I lived in London last year studying international law at the University of London, King’s College London.  I made several friends there, from both common- and civil law countries, and I enjoyed telling them of Louisiana’s unique position in the world, from a legal-systematic point of view.  Had I found your book then it would have been just what I would have liked to have given them to explain to them more about Louisiana’s civilian system.  I plan to get some copies of your book from the LBF to send my friends, one an Australian-reared common law lawyer in England, another a Dutch civilian, and others German civilians and Massachusetts and Minnesota common lawyers.  I’m sure they’ll enjoy it.

While reading your book, it occurred to me that you might be interested to hear of a book I read a couple of years ago.  The book is by Bruno Leoni, who was an Italian legal scholar, and is entitled Freedom and the Law.  This is the expanded third edition, published in 1991 by Liberty Fund, Indianapolis, available from Laissez Faire Books, 800/326-0996; the work was originally published in 1961.  I also cite the book in footnote 5 to my Battle of the Forms article.

What made me think of this book were the passages in your recent book discussing a basic difference of outlook behind the common law and civil law—that of belief by civilians in deduction and man’s rational ability to draw up laws ahead of time.  Leoni, despite being an Italian and thus of course familiar with Italian civil law, points out the problems inherent in making law by legislation as opposed to common law or judge-made law, or even privately-developed law.  As he stated, “there is more than an analogy between the market economy and a judiciary or lawyers’ law, just as there is much more than an analogy between a planned economy and legislation” (p. 23).  Leoni argues—and I agree—that the knowledge of legislators about the society they affect by the laws they pass is, like that of central planners, severely limited.  Because of this ignorance, all the effects of a given legislated law cannot be predicted.  In the same way that a centrally-planned economy is inefficient, centrally-planned laws (i.e. legislation) are also inefficient.

I certainly believed this is correct, and Leoni makes a convincing case for it.  I went to LSU Law Center for my J.D. (’91), and when I started to learn about civil law compared to common law, my initial reaction was that I liked civil law better, I felt it to be superior.  Partly this was because I believe strongly in the role of reason in man’s life, and the civil law, ostensibly being based on reason, and planned out ahead of time, seemed to me to epitomize this.  I spoke of this with Professor John Devlin, and he loaned me Holmes’s The Common Law.  After reading this, and several works by F.A. Hayek, who discusses the spontaneous order and the evolutionary growth of customs and human knowledge, and after having read Leoni, and others such as Sowell’s A Conflict of Visions, I’ve changed my mind somewhat on this.  I believe legislation is problematic, and there is simply an information problem there, as Leoni explains.  There is also the problem that the legislators’ interests are not the same as those they “represent,” which gets into the field of public choice economics, à la James Buchanan and Gordon Tullock.

But I am not sure that a civil code has to be quite as problematic as legislation in general.  To the extent that it is a codification and synthesis of evolved caselaw, much like the modern Restatements, it is probably the best of both worlds, because it gets the benefit of caselaw while integrating it and eliminating inconsistencies, and finding underlying principles; as long as the codifiers do not try to meddle too much by molding the law to remake society in their own image.  One thing I definitely do prefer is the civilian conception of property.  It is clean and workable, whereas the common law’s real property concepts are horribly ugly.  And then certain “legislated” codes, like the U.S. Constitution, had to break from tradition and start anew—but then, when the norms of the past are corrupt, anyone enacting new norms must walk without a safety net to some extent, I suppose.  But this excuse doesn’t extend as much to normal laws, which are more practical and less normative than a constitution.  One day, if I find time, I’d like to write an article exploring to what extent the civil code is pure legislation (and thus problematic based on Leoni’s ideas), and to what extent it is actually a codification and systematization of pre-existing judge-developed principles.

Speaking of the deductive method, I happen to favor this method too, à la Austrian economists like Ludwig von Mises, Murray N. Rothbard, and, more recently, Hans-Hermann Hoppe. Hoppe’s recent work is by far the most purely aprioristic, deductive theory I’ve ever read.  I have just written a review essay of his most recent book, which will be published in June or July 1994, in St. Mary’s Law Journal, vol. 24, No. 4.  I’ve enclosed a draft which you may find of interest as well.  Interestingly, although I favor the deductive method, at least in the Misesian sense, I come somewhat to an opposite conclusion than you do.  You link in your book a belief in reason, rationalism, and deduction to a belief in central legislation and code-drafting, and link induction and empiricism to the common-law method of making law.  However, Mises and Hoppe favor rationalism, deduction, and, indeed, extreme apriorism; but for them this yields certain principles which show the validity of certain economic, epistemological, and (for Hoppe) principles.  These principles point inevitably in the direction of capitalism, i.e. strong individual rights and limited, minimalist government.  Which of course, I would think, combining this with Leoni’s and Hayek’s insights, would mean a person favoring deduction and rationalism favoring limited government and thus favoring judge-made law over legislation.  Which is contrary to your view that deduction and rationalism and the Enlightenment confidence in human reason is linked arm-in-arm with legislation as opposed to judge-made law.

Overview

Here is a concise one-page summary of everything covered so far in this thread:

You asked for (1) a substantive summary of Shael Herman’s The Louisiana Civil Code: A European Legacy for the United States and its relevance to your own libertarian legal thought, and then (2) a draft essay synthesizing that analysis in your voice.

1. Summary of Herman’s Book

Herman presents the Louisiana Civil Code as a distinctly European transplant into American soil — rooted in Roman law, shaped by Spanish and French sources, and influenced by Enlightenment rationalism. He emphasizes:

  • Codification as a rational, systematic “blueprint” for society.
  • The Civil Code as an expression of legislative supremacy and conceptual order.
  • Louisiana as a mixed jurisdiction bridging civil law and common law.
  • The intellectual dignity of Romanist private law institutions (ownership, servitudes, obligations, community property).
  • The importance of doctrine and commentators in interpreting codes.

Herman’s broader narrative situates codification within Enlightenment confidence in reason, unity, and centralized authority, while portraying Louisiana’s Code as an enduring intellectual and cultural achievement.

2. Relevance to Your Thought

The analysis highlighted several points of intersection with your work:

a. Legislation vs. Discovery of Law
Your later critique of legislation (e.g., in Legal Foundations of a Free Society) questions whether law should be “made” by legislators or discovered through decentralized juristic reasoning. Herman’s embrace of codification raises the tension between Enlightenment rationalism and Hayek/Leoni-style skepticism of legislative constructivism.

b. Roman Law and Conceptual Structure
Herman’s emphasis on Roman conceptual architecture aligns with your admiration for Roman law’s clarity, especially in property theory. The civilian conception of unified ownership and structured real rights harmonizes with your libertarian theory of self-ownership, original appropriation, and title transfer.

c. Codification as Crystallization vs. Constructivism
A central question you raised (even in your 1993 letter to Herman) is whether a civil code is pure legislation or a systematic crystallization of evolved private law. If the latter, it may be compatible with libertarian theory; if the former, it risks constructivist rationalism.

d. Legislative Supremacy and Positivism
You remain wary of legislative supremacy (e.g., Louisiana Civil Code arts. 1–3), seeing the danger of sliding into legal positivism where law becomes will rather than reason. Herman’s narrative reflects Enlightenment confidence; your work subjects that confidence to libertarian critique.

e. Mixed Jurisdiction as Laboratory
Louisiana’s hybrid legal heritage supports your broader thesis that law can evolve pluralistically and does not require centralized legislative monopoly.

3. The Draft Essay

The essay synthesized these themes into a reflective piece in your voice, arguing:

  • Herman’s book captures the intellectual richness of Louisiana’s civilian heritage.
  • The civil law tradition, especially Roman private law, is deeply compatible with libertarian principles of property and contract.
  • The real philosophical issue is not codification itself, but whether codification systematizes discovered law or imposes legislative will.
  • The true “European legacy” is juristic reasoning about ownership and justice — not state supremacy over law.

In short, the thread explored how Herman sharpened an enduring problem in your thought: reconciling Roman-civilian conceptual structure with a libertarian theory that rejects legislative constructivism and legal positivism.

If you’d like, I can now condense this further into a short site blurb, or expand it into a more formal academic abstract.

ChatGPT Analysis/Summary:

Below is a structured synthesis of Shael Herman’s The Louisiana Civil Code: A European Legacy for the United States (1993) and its significance for your intellectual project, especially in light of your writings on legislation, codification, Roman law, and libertarian legal theory.

(Primary source: Herman, The Louisiana Civil Code: A European Legacy for the United States (1993) ; contextual materials: your 1993 letter to Herman ; Herman, “Under My Wings…” ; and Legal Foundations of a Free Society .)

I. What Herman’s Book Argues

1. The Civil Code as a European Artifact in America

Herman presents the Louisiana Civil Code as:

  • A deliberate transplantation of the continental Roman-civilian tradition into American soil.
  • A one-volume blueprint for society, inspired by Roman, Spanish, and French law rather than English common law .
  • An intellectual bridge between the United States and the broader civil-law world.

The Code embodies:

  • Romanist private law categories (ownership, servitudes, usufruct, obligations, forced heirship).
  • Enlightenment confidence in system, structure, and legislative expression.
  • A self-conscious break from purely judge-made law.

Herman emphasizes that Louisiana is not a “quirk” but a jurisdiction whose civilian inheritance shapes its conception of property, obligations, family law, and legal method.

2. Codification as an Enlightenment Project

Herman situates civil codification in the Enlightenment vision of law:

  • Law should be rational.
  • It should be organized systematically.
  • It should be accessible and knowable.
  • It should unify the polity and centralize authority.

He stresses:

  • The French Code civil’s rational architecture.
  • The role of codification in social unification and state consolidation .
  • The subordination of judges after the Revolution (a theme he later develops in “Under My Wings…” ).

Codification is presented as:

  • Both rational and political.
  • Both systematic and state-building.

3. Louisiana’s “Mixed” Character

Herman resists simplistic binaries (civil law vs. common law) and frames Louisiana as:

  • A mixed jurisdiction, shaped by Spanish, French, Roman, and American influences.
  • A laboratory for comparative law.
  • A bridge between legal cultures.

He presents the Code as durable and intellectually rich, not merely a relic.

4. Institutional Substance

Herman highlights core civilian institutions:

  • Ownership as a unified real right.
  • Clear property categories.
  • Structured obligations.
  • Community property.
  • Delictual liability grounded in general principles.

He underscores that civilian law:

  • Thinks in terms of conceptual architecture, not merely precedents.
  • Sees doctrine and commentary as integral to legal development.

II. The Pascal–Batiza–Herman Dispute

You explicitly align (as a legal-historical matter) with Pascal and Levasseur over Herman and Batiza on the sources question.

The dispute concerns:

  • Whether the 1808 Digest was primarily French in inspiration (Batiza/Herman emphasis),
  • Or whether Spanish law and Roman tradition played a deeper structural role (Pascal/Levasseur emphasis).

You disagree with Herman historically but agree with him more normatively (individualism, liberal inclinations).

That tension is important.

III. Herman and Your 1993 Letter: A Revealing Moment

Your 1993 letter to Herman is philosophically significant.

You write:

  • You initially preferred civil law because of its rational structure.
  • After reading Leoni, Hayek, Holmes, etc., you became skeptical of legislation.
  • You began distinguishing:
    • Codification as rational systematization of evolved law
    • From legislation as social engineering

You ask the crucial question:

To what extent is the civil code pure legislation, and to what extent is it a codification of pre-existing judge-developed principles?

That question foreshadows:

  • Your later work on legislation in LFFS, chapter 13 .
  • Your critique of legislative positivism.
  • Your distinction between discovered law and imposed law.

IV. Herman’s Book and Your Thought

Now we turn to the deeper relevance.

1. Legislation vs. Discovery of Law

In “Legislation and the Discovery of Law in a Free Society” (LFFS ch. 13) , you argue:

  • Law properly understood is discovered, not made.
  • Legislation is often an act of will rather than reason.
  • Codification risks becoming rationalist constructivism.

Herman’s book embodies the Enlightenment confidence in codification.

You are sympathetic to:

  • System.
  • Rational coherence.
  • Roman conceptual clarity.

But you are wary of:

  • Legislative supremacy.
  • Positivism.
  • Centralized imposition.

This is the key tension.

Herman presents codification as rational order.
You ask: is it spontaneous order crystallized — or imposed order constructed?

That is pure Hayek/Leoni applied to Louisiana.

2. Roman Law and Hypothetical Reasoning

In your essay “Roman Law and Hypothetical Cases”, you praise the Roman method:

  • Abstract reasoning.
  • Hypothetical testing.
  • Conceptual clarity.

Herman’s book supports your appreciation of:

  • Roman conceptual architecture.
  • Ownership as a unified concept.
  • Servitudes and real rights as structural categories.

This strengthens your argument that:

  • The private law tradition (Roman + common law) is more compatible with libertarianism than statutory constructivism.

Roman law is:

  • Conceptual,
  • Case-informed,
  • Yet not legislative positivism in the modern sense.

3. Codes and Commentators

In “On the Role of Commentators and Codes and the Oracles of the Law”, you explore:

  • The interplay between code text and doctrinal elaboration.
  • The importance of jurists and commentators.
  • The non-self-executing nature of codes.

Herman’s portrayal of:

  • Doctrine,
  • Commentary,
  • Scholarly elaboration,

aligns with your view that:

Law develops through juristic reasoning — not merely legislative fiat.

In fact, the civilian tradition’s reliance on doctrine arguably supports your thesis that:

Law is reasoned articulation of underlying principles, not mere command.

4. Legislative Positivism and Article 3

You have highlighted:

  • Article 1: legislation and custom.
  • Article 3: custom may not abrogate legislation.
  • Article 4: equity, justice, reason.

Herman acknowledges legislative supremacy.
You critique its positivist implications.

Your view:

  • Codes can systematize private law.
  • But legislative supremacy is a conceptual danger.
  • “All that is not permitted is forbidden” logic creeps in.

Thus, Herman gives you:

  • The historical narrative.
  • The architectural vision.

You supply:

  • The libertarian normative critique.

5. Property Theory Resonance

Herman’s civilian emphasis on:

  • Unified ownership.
  • Real rights.
  • Conceptual clarity in property categories.

Resonates strongly with your work on:

  • Self-ownership.
  • Original appropriation.
  • Title transfer theory of contract.
  • The rejection of intellectual property.

Civilian property theory is conceptually cleaner than common law estates-and-tenures complexity.

This likely reinforced your intuition (already present in your 1993 letter ):

I definitely prefer the civilian conception of property. It is clean and workable.

That conceptual clarity is consistent with your Rothbardian/Hoppean property structure.

6. Mixed Jurisdiction as Libertarian Laboratory

Louisiana’s “mixity” provides:

  • A real-world example of overlapping legal traditions.
  • Evidence that law is not identical with centralized statute.
  • A demonstration that legal systems evolve through layered influence.

This supports your broader libertarian legal thesis:

  • Law can develop without legislative monopoly.
  • Legal pluralism is historically normal.
  • State centralization is not necessary for legal coherence.

V. Points of Agreement and Tension

Where Herman and You Converge

  • Respect for Roman law.
  • Appreciation for conceptual system.
  • Defense of private law institutions.
  • Recognition of Louisiana’s intellectual distinctiveness.
  • Awareness of codification’s civilizational significance.

Where You Diverge

  • Herman: codification as Enlightenment rational project.
  • You: suspicion of constructivist rationalism.
  • Herman: legislative supremacy as structural feature.
  • You: legislative supremacy as philosophical problem.
  • Herman: emphasis on state-building function of codes.
  • You: preference for decentralized, judge-discovered law.

VI. Why Herman Matters for Your Intellectual Trajectory

Herman’s book:

  1. Confirmed your early fascination with civilian structure.
  2. Forced you to confront codification philosophically.
  3. Provided historical grounding for your later critiques.
  4. Deepened your appreciation of Roman-law categories.
  5. Highlighted the tension between rational system and spontaneous order.

In a sense:

Herman sharpened the problem that Leoni and Hayek answered for you.

VII. A Deeper Synthesis

If we integrate:

  • Herman’s civilizational narrative,
  • Pascal’s source rigor,
  • Your libertarian legal theory,
  • Leoni’s anti-legislation argument,
  • Hoppe/Rothbard’s natural rights foundation,

we get something like this:

The Roman–civilian private law tradition, when understood as juristic reason discovering principles of ownership and obligation, is deeply compatible with libertarian theory.

But codification becomes dangerous when it shifts from systematizing discovered law to imposing legislative will.

In that sense:

The best reading of the Louisiana Civil Code for you is not as an act of rationalist legislation, but as a crystallization of a long-evolved private law tradition — one that predates and transcends the modern state.

VIII. Final Assessment

Herman’s book is important for you because it:

  • Reinforced your Romanist leanings.
  • Provoked your skepticism about legislation.
  • Illuminated Louisiana’s hybrid character.
  • Helped shape your lifelong project of reconciling:
    • Civilian structure,
    • Austrian praxeology,
    • Libertarian natural rights,
    • Anti-positivist legal theory.

It sits at the intersection of:

  • Your Louisiana roots,
  • Your Roman law interest,
  • Your Austrian economic foundations,
  • Your libertarian legal theory,
  • Your critique of legislation and IP.

In short:

Herman provided the historical and institutional canvas.
You supplied the libertarian normative theory.

And the dialogue between those two is still intellectually fertile.

If you’d like, I can next:

  • Draft a short essay you could publish on your site synthesizing this,
  • Or map Herman’s themes explicitly onto specific chapters of LFFS in more technical detail.

***

Shael Herman, the Louisiana Civil Code, and the Problem of Codification

[Essay drafted for me by ChatGPT]

Here is a draft essay in your voice and style, suitable for posting on your site (with footnotes if desired).

Shael Herman, the Louisiana Civil Code, and the Problem of Codification

When I was in law school at LSU in the late 1980s and early 1990s, I was fascinated by legal systems and legal history. Unlike most American law students, I was not trained purely in the common law tradition; I was trained as a “civilian”—in Louisiana’s hybrid system shaped by Roman, Spanish, and French law. I devoured books on Roman law, comparative law, and codification. Among the works that left an impression on me was Shael Herman’s The Louisiana Civil Code: A European Legacy for the United States (1993).

I wrote to Professor Herman shortly after reading it, telling him how much I appreciated the book and how useful it was in explaining Louisiana’s civilian system to common lawyers and foreign friends alike. At the time, I was enthusiastic about the civil law tradition and its rational, systematic character. The civilian conception of property struck me as clean and conceptually elegant compared to the often convoluted and historically layered common law doctrines of estates and tenures. The Code seemed to embody clarity and reason.

But even then, I sensed a philosophical tension—one that has preoccupied me ever since.

Codification and the Enlightenment Vision

Herman presents the Louisiana Civil Code as a European artifact—an heir to Roman law, shaped by Spanish and French sources, and influenced by the Enlightenment confidence in reason and system. A civil code, in this vision, is not merely a compilation of cases. It is an organized, rational blueprint for society. It embodies legislative supremacy, conceptual coherence, and accessibility.

This is part of what makes Louisiana distinctive. The Code reflects a belief that law can be stated in general principles, organized architecturally, and promulgated in advance. It is not merely the accretion of precedents; it is a deliberate act of codification.

And that is where the tension lies.

For as I began reading Hayek, Leoni, and Mises more seriously, I came to question whether law ought to be “made” in this fashion at all.

Legislation vs. the Discovery of Law

In later years, in essays such as “Legislation and the Discovery of Law in a Free Society” (collected in Legal Foundations of a Free Society), I argued that law is best understood as something discovered rather than made. The classical private law—both Roman and common—developed through decentralized juristic reasoning, case analysis, and gradual refinement. It was not the product of centralized planning.

Bruno Leoni’s insight was decisive for me: legislation resembles economic central planning. It presumes that legislators can foresee consequences, coordinate interests, and design society from above. But knowledge is dispersed. Social reality is complex. Law evolves through practice and adjudication, not decree.

Yet Herman’s book celebrates codification—an Enlightenment project that seems, at first glance, to rest on precisely the rationalist confidence that Hayek criticized.

So how are we to understand this?

The Civil Code: Legislation or Crystallization?

The key question—one I raised even in my early correspondence with Herman—is this:

To what extent is a civil code pure legislation, and to what extent is it a codification and systematization of pre-existing, evolved legal principles?

If a code is primarily an attempt to remake society according to the will of legislators, it is suspect. But if it is instead a crystallization of long-developed private law principles—Romanist categories of ownership, obligations, servitudes, and delict—then it may represent not constructivist rationalism, but the articulation of discovered law in systematic form.

The Roman jurists did not invent law by fiat. They reasoned from principles embedded in social practice. The great civilian commentators did not treat the code as mere command; they interpreted it in light of doctrine, equity, and reason. Even the Louisiana Civil Code acknowledges custom and equity alongside legislation.

In this sense, the best way to understand the Code is not as an act of centralized planning, but as a structured restatement of a pre-existing legal order. It is closer to a Restatement than to a revolutionary manifesto.

Property, Clarity, and Libertarian Theory

One reason Herman’s book resonated with me—and still does—is its emphasis on the civilian conception of property.

The civil law treats ownership as a unified, coherent real right. It distinguishes sharply between real rights and personal rights. It organizes servitudes, usufruct, and obligations in conceptual families traceable to Roman law. There is a clarity here that harmonizes well with libertarian property theory.

In my own work on self-ownership, original appropriation, and title transfer theory of contract, I have emphasized the importance of conceptual precision. The libertarian ethic depends on clear boundaries of ownership and transfer. The Roman-civilian tradition, at its best, provides a conceptual vocabulary well suited to this task.

By contrast, modern legislation—particularly in areas like intellectual property—often abandons this clarity. It creates artificial rights in non-scarce patterns, extends ownership beyond conflict-avoidance functions, and conflates regulation with property. In this respect, the civil law tradition, properly understood, is closer to libertarian principle than contemporary statutory regimes.

Legislative Supremacy and Its Dangers

Nevertheless, I remain wary of legislative supremacy as a philosophical principle.

The Louisiana Civil Code begins by identifying legislation as a primary source of law, and it subordinates custom to statute. That structure reflects the post-Revolutionary French distrust of judges and the Enlightenment confidence in legislative rationality.

But once legislation is seen as the ultimate source of law, a danger emerges: law becomes will rather than reason. “All that is not permitted is forbidden” replaces the classical liberal presumption of liberty.

Here, the civilian tradition must be disentangled from modern legal positivism. Roman law was not positivism. It was a juristic science. The Enlightenment codifiers sometimes preserved that science; at other times, they merged it with state-building projects.

Louisiana as a Legal Laboratory

Louisiana’s mixed jurisdiction provides a unique vantage point. It demonstrates that legal systems are not monolithic. Roman, Spanish, French, and American influences overlap and interpenetrate. Law evolves through reception, adaptation, and commentary.

This historical reality supports a libertarian insight: law does not require a monopolistic legislator. It can develop pluralistically. It can be reasoned out. It can be interpreted and refined without central command.

Herman’s book, read carefully, reveals both the richness of the civilian inheritance and the complexity of its transplantation. It invites admiration—but also philosophical scrutiny.

A European Legacy—Reconsidered

I still regard Herman’s book as valuable. It captures the intellectual dignity of Louisiana’s civilian heritage. It explains why Roman law matters. It highlights the importance of doctrinal structure.

But from a libertarian perspective, the civil code must be understood not as a triumph of legislative rationalism, but as a moment in the long evolution of private law. Its legitimacy derives not from the authority of the state, but from the underlying principles of property, contract, and responsibility that it articulates.

The true European legacy is not codification per se.

It is the juristic tradition of reasoning about ownership, obligation, and justice—long before the modern state claimed supremacy over law.

That tradition, properly understood, is not the enemy of liberty.

It is one of its foundations.

If you would like, I can now:

  • Add footnotes and citations tailored to your site format,
  • Tighten it into a shorter blog version,
  • Or expand it into a more scholarly law-review-style piece engaging Pascal, Levasseur, and Batiza more directly.
  1. The Greatest Libertarian Books. [↩]
  2. All footnotes!; Webnotes. [↩]
  3. Robert Pascal, R.I.P. [↩]
  4. See: Book Review of Shael Herman, The Louisiana Civil Code: A European Legacy for the United States, 1993, reviewed by Robert A. Pascal (plus related correspondence, draft reviews and related draft manuscripts by Pascal). See also, by Pascal: Review of F.H. Lawson, Introduction to the Law of Property; Review of Merryman, Introduction to the Italian Legal System; Louisiana’s Mixed Legal System; The Sources of Civil Order According to the Louisiana Civil Code.)

    As I wrote to some libertarian legal scholar friends about the “Tournament of Scholars”:

    Yet another musing, and also touching on a weird arcane almost ontological/legal positivist issue in Louisiana about the real “source” of law in Louisiana (Spanish or French), showing that these issues cannot be solved by mere legal positivist lawyers with only surface-level takes on such essentially moral-political-philosophical issues. But modern statist legal-positivist legal theorists … well, when all you have is a hammer, everything looks like a nail…

    In any case, I asked ChatGPT to summarize Herman’s book and its relevance to my thinking. See below. I also reproduce below some of the text of my letter to Herman. Note that I subsequently changed my mind about Hayek’s knowledge problem ideas and the Leoni-Hayek analogy between legislation and central economic planning, as wrote in an introductory note to Party III.C to “Legislation and the Discovery of Law in a Free Society,” in Legal Foundations of a Free Society (Houston: Papinian Press, 2023):

    Introductory Note: In this section (Part III.C), I relied heavily on Bruno Leoni’s interpretation of Mises’s and Hayek’s views on the economic calculation problem and his related criticism of legislation by analogy to central economic planning. Subsequently, I gained a deeper understanding of the difference between Mises’s and Hayek’s approach to this issue, after Joseph Salerno initiated the “dehomogenization” debate.[66] At the time I wrote the original article, I did not appreciate this distinction and thus too-uncritically accepted Leoni’s arguments, many of which are summarized or relied on in this section, even though Austrian economist Jeffrey Herbener had sent me helpful comments on an early manuscript, pointing this out.[67] I did not at the time (1995) fully appreciate his criticisms. I now believe there are many flaws in Leoni’s reliance on Hayek to criticize legislation, when he analogizes the problems of legislation to the economic calculation problem faced by a central economic planner, because Hayek’s own approach to the calculation problem and his focus on “knowledge” is flawed. By the time I wrote the article which would become chapter 17 of this volume, in 1999, I had realized my error, and discussed the flaws with the Hayekian approach in the section “Knowledge vs. Calculation.” In sum, as several Misesian Austrians have pointed out:

    Rothbard: “the entire Hayekian emphasis on ‘knowledge’ is misplaced and misconceived”

    Hülsmann: discussing “the irrelevance of knowledge problems”

    Salerno: “[t]he price system is not–and praxeologically cannot be—a mechanism for economizing and communicating the knowledge relevant to production plans. The realized prices of history are an accessory of appraisement”

    Hoppe: “Hayek’s contribution to the socialism debate must be thrown out as false, confusing, and irrelevant.”[68]

    In this chapter I have retained the following section from the original article since it still contains some useful insights and also is a good summary of Leoni’s position on this matter.

    [66] See Joseph T. Salerno, “Postscript” [1990], in Ludwig von Mises, Economic Calculation in the Socialist Commonwealth, S. Adler, trans. (Auburn, Ala.: Mises Institute, 1990 [1920]; https://mises.org/library/economic-calculation-socialist-commonwealth); idem, “Ludwig von Mises as Social Rationalist,” Rev. Austrian Econ. 4 (1990; https://mises.org/library/ludwig-von-mises-social-rationalist): 26–64 Joseph T. Salerno, “Ludwig von Mises as Social Rationalist,” Rev. Austrian Econ. 4 (1990; https://mises.org/library/ludwig-von-mises-social-rationalist): 26–64, at 31 (also published in Jeffrey M. Herbener, ed., The Meaning of Ludwig von Mises: Contributions in Economics, Sociology, Epistemology, and Political Philosophy (Norwell, Mass.: Kluwer Academic Publishers, 1993; https://mises.org/library/meaning-ludwig-von-mises[↩]

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Kinsella 2009Stephan Kinsella is a libertarian writer and retired patent attorney in Houston, Texas. He has published widely on various areas of libertarian legal theory and on legal topics such as intellectual property law and international law. His publications include Legal Foundations of a Free Society (Papinian Press, 2023), Against Intellectual Property (Mises Institute, 2008), International Investment, Political Risk, and Dispute Resolution: A Practitioner’s Guide (Oxford, 2020), and The Universal Principles of Liberty (2025).

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