Book Review

Canada and the United States

This study of conflicting legal systems in Upper Louisiana is the seventh volume in a series—the Legal History of North America—under the general editorship of Gordon Morris Bakken. Stuart Banner's book is a welcome addition to that series. Broadly considered, the study examines the connections and the transformations that occurred in one of the divisions of the French and Spanish legal order that fell outside the jurisdiction of Louisiana and its civil law system during the early nineteenth century. As such the book belongs with Morris Arnold's Unequal Laws Unto a Savage Race: European Legal Traditions in Arkansas, 1686–1836 (1985) and George Dargo's Jefferson's Louisiana: Politics and the Clash of Legal Traditions (1975). In the end, however, the work disappoints. It is at once a bold attempt to deal with interpretive theory in legal history and a modest description of some of the actual experiences of the French, Spanish, and American immigrants into the region that became the state of Missouri. It is a selective work in that the author omits serious consideration of entire areas of the legal systems that met in Missouri. For instance, there is no sustained discussion of the various efforts to adopt and use legal norms within the criminal justice system. This meant a missed opportunity to examine legal philosophies in conflict, and, in particular, the weight of Benthamism in this remnant of the French and Spanish jurisdiction. There is a very significant book that would have allowed Banner to go so much deeper than he has: Edward Livingston's A System of Penal Law for the State of Louisiana (1833). Banner's decision to focus little on the law of crime left Livingston's work (a leading example of the impact of Benthamism on American law) on the margin.

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