Roman-Dutch law
Roman Dutch law is a 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 ceased to be applied in the Netherlands proper as early as the beginning of the 19th century, Roman Dutch law is still applied by the courts of South Africa (and neighbours like Lesotho, Swaziland and Namibia), Zimbabwe, Guyana, Indonesia, East Timor, and Sri Lanka.
History
Roman Law was never forgotten during the early middle ages. Codified versions of Roman vulgar law and excerpts of the late antique promulgations were well known in the barbarian kingdoms and vital to maintaining the personality of law principle which was common place in these kingdoms. The breviary of Alaric and the Lex Gundobada Romana are some of these comprehensive accounts of vulgar Roman Law. Interest in the doctrines of sixth century Roman jurists came when —around the year 1070— a copy of the digest of Emperor Justinian I found its way into northern Italy. Scholars in the emerging university of Bologna, who had previously had access to only a limited portion of Justinian's legal code, began a revival of interest in Roman law and began to teach law based on these texts. Courts gradually started to apply Roman law —as taught in the university of Bologna (and soon elsewhere) because the judges felt that the refined legal concepts of Roman law were more apt to solve complex cases than the Germanic laws, which had been in use since the fall of the Western Roman Empire to the Germanic Goths. This process (the reception of Roman law) took place in Italy and then in the rest of continental Europe.
In 15th century, the process reached the Netherlands. While Italian jurists were the first to contribute to the new science of law based on the Roman texts, in the 16th century, French lawyers were most influential. In the 17th and 18th century, the leading rôle was passed on to the legal science in the Netherlands. Members of the so-called school of elegant jurisprudence included Hugo Grotius, Johannes Voet, Ulrich Huber and many others. These scholars managed to merge Roman law with some legal concepts taken from the traditional Germanic customary law of the Netherlands, especially of the province of Holland. The resulting mixture was predominantly Roman, but it contained some features which were characteristically Dutch. This mixture is known as Roman Dutch law. The Dutch introduced the legal system of their state to their colonies. In this way, the Dutch variety of the European ius commune came to be applied in South Africa and Sri Lanka.
In the Netherlands, the history of Roman Dutch law ended, when the Kingdom of the Netherlands adopted the French Code civil, also based on Roman law, in 1809. However, Roman Dutch law was not replaced by French law in the former Dutch colonies. In this way, Roman Dutch law has survived to this day.
References
- Robert Feenstra, Reinhard Zimmermann (Eds.): Das römisch-holländische Recht. Fortschritte des Zivilrechts im 17. und 18. Jahrhundert. Berlin 1992, ISBN 3-428-07465-3 (collection of papers, some in English).
- 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).