Roman-Dutch law (Dutch: Rooms-Hollands recht, Afrikaans: Romeins-Hollandse reg) is an uncodified, scholarship-driven, and judge-madelegal system based on Roman law as applied in the Netherlands in the 17th and 18th centuries. As such, it is a variety of the European continental civil law or ius commune. While Roman-Dutch law was superseded by Napoleonic codal law in the Netherlands proper as early as the beginning of the 19th century, the legal practices and principles of the Roman-Dutch system are still applied actively and passively by the courts in countries that were part of the Dutch colonial empire, or countries which are influenced by former Dutch colonies: Guyana, South Africa (and its neighbours Botswana, Lesotho, Namibia, Eswatini (formerly Swaziland), and Zimbabwe), Sri Lanka, Indonesia, Suriname, and the formerly Indonesian-occupied East Timor. It also heavily influenced Scots law.[1] It also had some minor impact on the laws of the American state of New York,[2] especially in introducing the office of Prosecutor (schout-fiscaal).
Roman law was progressively abandoned during the early Middle Ages. The Theodosian Code and excerpts of latter-day imperial enactments (constitutiones) were well known in the successor Germanic states and vital to maintaining the commonplace principle of folk-right which applied pre-existing Roman law to Roman provincials and Germanic law to Germans. The Breviary of Alaric and the Lex Gundobada Romana are two of the several hybrid Romano-Germanic law codes that incorporated much Roman legal material. However, because the fall of the Western Roman Empire preceded the drafting of the Justinianic Code, early Byzantine law was never influential in Western Europe. Also, much of this early law was superseded by later feudal law. Only canon law successfully retained any substantial amount of Roman law to be influential.
Interest in the doctrines of Byzantine lawyers came when—around the year a.d. 1070—a copy of the Digest of EmperorJustinian I found its way into northern Italy. Scholars in the emerging University of Bologna, who previously had access to only a limited portion of the Justinianic code, sparked an intellectual rediscovery of Roman law through the teaching of law based on Byzantine law texts. Courts gradually applied Byzantine law—as taught in Bologna (and soon elsewhere)—first as law in subsidium to be applied when there was no local statute or custom in point, and later because judicial officers (judges, magistrates, assessors) felt that its refined legal concepts were more apt to solve complex cases than the customary laws of western and central Europe. This process, referred to as reception, took place in the Holy Roman Empire and the Mediterranean in the 13th-14th centuries, but was much slower to come to northern Europe (e.g., Saxony, Northern France, the Low Countries, Scandinavia).
In the 15th century, reception in complexu reached the Netherlands while it was associated with the Holy Roman Empire. While Italian lawyers (mos italicus) were the first to contribute to the new Byzantine-based jurisprudence, in the 16th century, French humanistic doctrinal scholars (mos gallicus) were most influential. In the 17th and 18th century, it was the Dutch who had the greatest influence. Members of the Hollandse Elegante School (“school of elegant jurisprudence”; 1500–1800) included Hugo Grotius, Johannes Voet, Ulrich Huber, Gerard Noodt, J. and F. van de Sande, and many others. These scholars managed to merge Roman law with legal concepts taken from traditional Dutch feudal customary law, especially from the province of Holland. The resulting mixture was predominantly Roman, but it contained some features which were characteristically Dutch: this hybrid is known as Roman-Dutch law. The Dutch applied their legal system in their colonial empire. In so doing, the distinctly Dutch branch of civil law (or ius commune) came to be applied in far-flung places, e.g., the Dutch East Indies, Dutch West Indies, Cape Colony, and Dutch Ceylon.[3]: 156–157
In the Netherlands, Roman-Dutch law abruptly ended when, in 1809, the Dutch puppet state—the Kingdom of Holland—adopted the French Napoleonic Code, a different system but nonetheless a branch of civil law. Yet, the English respected the existing Roman Dutch law in at that time Dutch colonies that became English, such as Guyana, Ceylon and the Cape Colony. As a result, Roman-Dutch law has managed to survive, usually in a hybrid form mixed with English law, otherwise known as “Anglo-Dutch law”.
Today
The influence nevertheless exists in the former Dutch-ruled areas in South America and heavily influenced former Dutch colonies like South Africa, Guyana and to a lesser extent Sri Lanka. The Roman Dutch law was not preserved in Dutch colonies which were not taken over by the English. Suriname adopted the Suriname Civil Code (Surinaams Burgerlijk Wetboek) in 1869. The Suriname Civil Code is the same as the Old Dutch Civil Code (Oud Burgerlijk Wetboek) of 1838. Suriname achieved its independence from the Netherlands in 1975. It has a democratically-elected President and Parliament, and an independent judiciary. Its legal system is based on the Suriname Civil Code and its official language is Dutch. On the other hand, in Guyana, the Roman-Dutch legal principles are still influential in the landlaw, for example the terms movable and immovable objects as opposed to personal and real property. This despite the enforcement of Civil Law of Guyana Ordinance in 1917 that favors the English style Common law system.[4]
The Netherlands participated in international seminars and training programmes organised by international partner organisations, ranging from a two-day seminar to a two-week programme for different legal professionals around the world. Programmes have been developed for Suriname, Aruba, Sint Maarten and Indonesia.
^John W. Cairns, “Importing our Lawyers from Holland: Netherlands Influences on Scots Law and Lawyers in the Eighteenth Century”, in Scotland and the Low Countries, 1124–1994, ed. G. G. Simpson (East Linton: Tuckwell, 1996), 136; reprinted in Law, Lawyers, and Humanism: Selected Essays on the History of Scots Law, vol. 1 (Edinburgh: Edinburgh University Press, 2015).
^Bielinski, Stefan (April 1979). "The Schout In Rensselaerswijck: Conflict Of Interests". Colonial Albany Social History Project. Retrieved 2011-02-25.
^Smits, J.M. (2002). The Making of European Private Law: Towards a Ius Commune Europaeum As a Mixed Legal System. Intersentia.
^J. M. Smits (2002). The Making of European Private Law: Toward a Ius Commune Europaeum as a Mixed Legal System. Intersentia nv. p. 139. ISBN978-90-5095-191-3.
References
Govaert C.J.J. van den Bergh. Die holländische elegante Schule: Ein Beitrag zur Geschichte von Humanismus und Rechtswissenschaft in den Niederlanden 1500–1800. Frankfurt: Klostermann, 2002.
Robert Feenstra & Reinhard Zimmermann, eds. Das römisch-holländische Recht: Fortschritte des Zivilrechts im 17. und 18. Jahrhundert. Berlin 1992, ISBN3-428-07465-3 (collection of papers, some in English).
Robert Warden Lee. An Introduction to Roman-Dutch Law, 5th edn. Oxford: Clarendon, 1953.
Jan H.A. Lokin, Frits Brandsma & Corjo Jansen. Roman-Frisian Law of the 17th and 18th Century. Berlin: Duncker & Humblot, 2003.
Johannes Wilhelmus Wessels & Michael H Hoeflich. History of the Roman-Dutch Law. Grahamstown, Cape Colony, South Africa: African Book Co., 1908.
Reinhard Zimmermann, The Law of Obligations. Cape Town 1990. Reprinted Muenchen, Cape Town 1992, ISBN3-406-37246-5 (a comparative overview of the law of obligations with a lot of information on the substantive rules of Roman-Dutch law).
Reinhard Zimmermann. “Römisch-holländisches Recht”, in Handwörterbuch des Europäischen Privatrechts (HWP EuP 2009) (online), eds. Jürgen Basedow, Klaus J. Hopt, & Reinhard Zimmermann.
External links
A very good collection of resources maintained by professor Ernest Metzger.
The Roman Law Library by Professor Yves Lassard and Alexandr Koptev
January 26, 2023
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Roman Dutch law Dutch Rooms Hollands recht Afrikaans Romeins Hollandse reg is an uncodified scholarship driven and judge made legal system based on Roman law as applied in the Netherlands in the 17th and 18th centuries As such it is a variety of the European continental civil law or ius commune While Roman Dutch law was superseded by Napoleonic codal law in the Netherlands proper as early as the beginning of the 19th century the legal practices and principles of the Roman Dutch system are still applied actively and passively by the courts in countries that were part of the Dutch colonial empire or countries which are influenced by former Dutch colonies Guyana South Africa and its neighbours Botswana Lesotho Namibia Eswatini formerly Swaziland and Zimbabwe Sri Lanka Indonesia Suriname and the formerly Indonesian occupied East Timor It also heavily influenced Scots law 1 It also had some minor impact on the laws of the American state of New York 2 especially in introducing the office of Prosecutor schout fiscaal Contents 1 History 2 Today 3 Law reform in former Dutch colonies 4 See also 5 Notes 6 References 7 External linksHistory EditRoman law was progressively abandoned during the early Middle Ages The Theodosian Code and excerpts of latter day imperial enactments constitutiones were well known in the successor Germanic states and vital to maintaining the commonplace principle of folk right which applied pre existing Roman law to Roman provincials and Germanic law to Germans The Breviary of Alaric and the Lex Gundobada Romana are two of the several hybrid Romano Germanic law codes that incorporated much Roman legal material However because the fall of the Western Roman Empire preceded the drafting of the Justinianic Code early Byzantine law was never influential in Western Europe Also much of this early law was superseded by later feudal law Only canon law successfully retained any substantial amount of Roman law to be influential Interest in the doctrines of Byzantine lawyers came when around the year a d 1070 a copy of the Digest of Emperor Justinian I found its way into northern Italy Scholars in the emerging University of Bologna who previously had access to only a limited portion of the Justinianic code sparked an intellectual rediscovery of Roman law through the teaching of law based on Byzantine law texts Courts gradually applied Byzantine law as taught in Bologna and soon elsewhere first as law in subsidium to be applied when there was no local statute or custom in point and later because judicial officers judges magistrates assessors felt that its refined legal concepts were more apt to solve complex cases than the customary laws of western and central Europe This process referred to as reception took place in the Holy Roman Empire and the Mediterranean in the 13th 14th centuries but was much slower to come to northern Europe e g Saxony Northern France the Low Countries Scandinavia In the 15th century reception in complexu reached the Netherlands while it was associated with the Holy Roman Empire While Italian lawyers mos italicus were the first to contribute to the new Byzantine based jurisprudence in the 16th century French humanistic doctrinal scholars mos gallicus were most influential In the 17th and 18th century it was the Dutch who had the greatest influence Members of the Hollandse Elegante School school of elegant jurisprudence 1500 1800 included Hugo Grotius Johannes Voet Ulrich Huber Gerard Noodt J and F van de Sande and many others These scholars managed to merge Roman law with legal concepts taken from traditional Dutch feudal customary law especially from the province of Holland The resulting mixture was predominantly Roman but it contained some features which were characteristically Dutch this hybrid is known as Roman Dutch law The Dutch applied their legal system in their colonial empire In so doing the distinctly Dutch branch of civil law or ius commune came to be applied in far flung places e g the Dutch East Indies Dutch West Indies Cape Colony and Dutch Ceylon 3 156 157 In the Netherlands Roman Dutch law abruptly ended when in 1809 the Dutch puppet state the Kingdom of Holland adopted the French Napoleonic Code a different system but nonetheless a branch of civil law Yet the English respected the existing Roman Dutch law in at that time Dutch colonies that became English such as Guyana Ceylon and the Cape Colony As a result Roman Dutch law has managed to survive usually in a hybrid form mixed with English law otherwise known as Anglo Dutch law Today EditThe influence nevertheless exists in the former Dutch ruled areas in South America and heavily influenced former Dutch colonies like South Africa Guyana and to a lesser extent Sri Lanka The Roman Dutch law was not preserved in Dutch colonies which were not taken over by the English Suriname adopted the Suriname Civil Code Surinaams Burgerlijk Wetboek in 1869 The Suriname Civil Code is the same as the Old Dutch Civil Code Oud Burgerlijk Wetboek of 1838 Suriname achieved its independence from the Netherlands in 1975 It has a democratically elected President and Parliament and an independent judiciary Its legal system is based on the Suriname Civil Code and its official language is Dutch On the other hand in Guyana the Roman Dutch legal principles are still influential in the landlaw for example the terms movable and immovable objects as opposed to personal and real property This despite the enforcement of Civil Law of Guyana Ordinance in 1917 that favors the English style Common law system 4 Law reform in former Dutch colonies EditThis section does not cite any sources Please help improve this section by adding citations to reliable sources Unsourced material may be challenged and removed May 2022 Learn how and when to remove this template message The Netherlands participated in international seminars and training programmes organised by international partner organisations ranging from a two day seminar to a two week programme for different legal professionals around the world Programmes have been developed for Suriname Aruba Sint Maarten and Indonesia See also EditLaw of East Timor Law of Indonesia Law of Namibia Law of South Africa Law of Sri Lanka Scots lawNotes Edit John W Cairns Importing our Lawyers from Holland Netherlands Influences on Scots Law and Lawyers in the Eighteenth Century in Scotland and the Low Countries 1124 1994 ed G G Simpson East Linton Tuckwell 1996 136 reprinted in Law Lawyers and Humanism Selected Essays on the History of Scots Law vol 1 Edinburgh Edinburgh University Press 2015 Bielinski Stefan April 1979 The Schout In Rensselaerswijck Conflict Of Interests Colonial Albany Social History Project Retrieved 2011 02 25 Smits J M 2002 The Making of European Private Law Towards a Ius Commune Europaeum As a Mixed Legal System Intersentia J M Smits 2002 The Making of European Private Law Toward a Ius Commune Europaeum as a Mixed Legal System Intersentia nv p 139 ISBN 978 90 5095 191 3 References EditGovaert C J J van den Bergh Die hollandische elegante Schule Ein Beitrag zur Geschichte von Humanismus und Rechtswissenschaft in den Niederlanden 1500 1800 Frankfurt Klostermann 2002 Robert Feenstra amp Reinhard Zimmermann eds Das romisch hollandische Recht Fortschritte des Zivilrechts im 17 und 18 Jahrhundert Berlin 1992 ISBN 3 428 07465 3 collection of papers some in English Robert Warden Lee An Introduction to Roman Dutch Law 5th edn Oxford Clarendon 1953 Jan H A Lokin Frits Brandsma amp Corjo Jansen Roman Frisian Law of the 17th and 18th Century Berlin Duncker amp Humblot 2003 Johannes Wilhelmus Wessels amp Michael H Hoeflich History of the Roman Dutch Law Grahamstown Cape Colony South Africa African Book Co 1908 Reinhard Zimmermann The Law of Obligations Cape Town 1990 Reprinted Muenchen Cape Town 1992 ISBN 3 406 37246 5 a comparative overview of the law of obligations with a lot of information on the substantive rules of Roman Dutch law Reinhard Zimmermann Romisch hollandisches Recht in Handworterbuch des Europaischen Privatrechts HWP EuP 2009 online eds Jurgen Basedow Klaus J Hopt amp Reinhard Zimmermann External links EditA very good collection of resources maintained by professor Ernest Metzger The Roman Law Library by Professor Yves Lassard and Alexandr Koptev Retrieved from https en wikipedia org w index php title Roman Dutch law amp oldid 1089950223, wikipedia, wiki, book, books, library,
