This article is intended to be a type of "structuralist" commentary upon selected provisions in Book I of the Louisiana Civil Code. Its sole purpose is to illustrate, both for pedagogical and doctrinal reasons, some of the analytical difficulties to which these code provisions might give rise when they are read in a close textual fashion. It should be emphasized that this study is a textual commentary and not a historical assessment of the sources or origins of the code texts – the latter analysis is outside the purview of the present endeavor.
Accordingly, this article consists of a critical textual evaluation of the relevant code provisions of Book I of the Louisiana Civil Code, emphasizing internal inconsistencies, ambiguities, and inequities which point to a need for legislative reconsideration and redrafting. For example, it is difficult from a reading of Book I to identify the actual impediments to marriage. In addition, the provisions relating to putative marriage appear to lead, in certain circumstances, to an easily resolvable injustice to children born of such unions. Moreover, the first book of the Code contains outmoded provisions, such as article 120, which no longer reflect contemporary conceptions about the role of men and women in marriage.
Articles 138, 141, and 160 establish the primacy of fault in regulating marital breakdowns and their financial consequences; it is submitted that, upon a close examination of the code provisions and the applicable case law, the role of fault not only is ill-defined but also needs to be reevaluated in light of the evolution of mores and the emergence of trends in other civilian jurisdictions. Finally, the issue of legitimacy and the presumption of paternity in article 184 are analyzed for their possible gender-based discriminatory effect.
The gravamen of this article is not to advocate a particular view of marriage or of the role of a fault analysis in the breakdown of marriage, but rather to begin an inquiry into the structural and substantive cohesion of Book I of the Code. The language of article 138 makes the dissolution of marriage a reality; the question remains, however, whether the state, in the exercise of its legitimate regulatory power in this area, has articulated a set of norms which continue to be viable in contemporary society. While moral, religious, and psychological perceptions of marriage may conflict, it is incumbent upon the legislature to arrive at a workable reconciliation of these values by elaborating a set of coherent guiding principles.
Thomas E. Carbonneau, Analytical and Comparative Variations on Selected Provisions of Book One of the Louisiana Civil Code with Special Consideration of the Role of Fault in the Determination of Marital Disputes, 27 Loy. L. Rev. 999 (1981).