Roman Dutch law
Encyclopedia
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
. It also had an impact on New Netherlands.
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 role was passed on to the legal science in the Netherlands. Members of the "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.
Roman law
Roman law is the legal system of ancient Rome, and the legal developments which occurred before the 7th century AD — when the Roman–Byzantine state adopted Greek as the language of government. The development of Roman law comprises more than a thousand years of jurisprudence — from the Twelve...
as applied in the Netherlands
Netherlands
The Netherlands is a constituent country of the Kingdom of the Netherlands, located mainly in North-West Europe and with several islands in the Caribbean. Mainland Netherlands borders the North Sea to the north and west, Belgium to the south, and Germany to the east, and shares maritime borders...
in the 17th and 18th centuries. As such, it is a variety of the European continental civil law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
or ius commune. While Roman Dutch law ceased to be applied in the Netherlands
Netherlands
The Netherlands is a constituent country of the Kingdom of the Netherlands, located mainly in North-West Europe and with several islands in the Caribbean. Mainland Netherlands borders the North Sea to the north and west, Belgium to the south, and Germany to the east, and shares maritime borders...
proper as early as the beginning of the 19th century, Roman Dutch law is still applied by the courts of South Africa
South Africa
The Republic of South Africa is a country in southern Africa. Located at the southern tip of Africa, it is divided into nine provinces, with of coastline on the Atlantic and Indian oceans...
(and neighbours like Lesotho
Lesotho
Lesotho , officially the Kingdom of Lesotho, is a landlocked country and enclave, surrounded by the Republic of South Africa. It is just over in size with a population of approximately 2,067,000. Its capital and largest city is Maseru. Lesotho is a member of the Commonwealth of Nations. The name...
, Swaziland
Swaziland
Swaziland, officially the Kingdom of Swaziland , and sometimes called Ngwane or Swatini, is a landlocked country in Southern Africa, bordered to the north, south and west by South Africa, and to the east by Mozambique...
and Namibia
Namibia
Namibia, officially the Republic of Namibia , is a country in southern Africa whose western border is the Atlantic Ocean. It shares land borders with Angola and Zambia to the north, Botswana to the east and South Africa to the south and east. It gained independence from South Africa on 21 March...
), Zimbabwe
Zimbabwe
Zimbabwe is a landlocked country located in the southern part of the African continent, between the Zambezi and Limpopo rivers. It is bordered by South Africa to the south, Botswana to the southwest, Zambia and a tip of Namibia to the northwest and Mozambique to the east. Zimbabwe has three...
, Guyana
Guyana
Guyana , officially the Co-operative Republic of Guyana, previously the colony of British Guiana, is a sovereign state on the northern coast of South America that is culturally part of the Anglophone Caribbean. Guyana was a former colony of the Dutch and of the British...
, Indonesia
Indonesia
Indonesia , officially the Republic of Indonesia , is a country in Southeast Asia and Oceania. Indonesia is an archipelago comprising approximately 13,000 islands. It has 33 provinces with over 238 million people, and is the world's fourth most populous country. Indonesia is a republic, with an...
, East Timor
East Timor
The Democratic Republic of Timor-Leste, commonly known as East Timor , is a state in Southeast Asia. It comprises the eastern half of the island of Timor, the nearby islands of Atauro and Jaco, and Oecusse, an exclave on the northwestern side of the island, within Indonesian West Timor...
, and Sri Lanka
Sri Lanka
Sri Lanka, officially the Democratic Socialist Republic of Sri Lanka is a country off the southern coast of the Indian subcontinent. Known until 1972 as Ceylon , Sri Lanka is an island surrounded by the Indian Ocean, the Gulf of Mannar and the Palk Strait, and lies in the vicinity of India and the...
. It also had an impact on New Netherlands.
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
Pandects
The Digest, also known as the Pandects , is a name given to a compendium or digest of Roman law compiled by order of the emperor Justinian I in the 6th century .The Digest was one part of the Corpus Juris Civilis, the body of civil law issued under Justinian I...
of Emperor
Byzantine Empire
The Byzantine Empire was the Eastern Roman Empire during the periods of Late Antiquity and the Middle Ages, centred on the capital of Constantinople. Known simply as the Roman Empire or Romania to its inhabitants and neighbours, the Empire was the direct continuation of the Ancient Roman State...
Justinian I
Justinian I
Justinian I ; , ; 483– 13 or 14 November 565), commonly known as Justinian the Great, was Byzantine Emperor from 527 to 565. During his reign, Justinian sought to revive the Empire's greatness and reconquer the lost western half of the classical Roman Empire.One of the most important figures of...
found its way into northern Italy. Scholars in the emerging University of Bologna
University of Bologna
The Alma Mater Studiorum - University of Bologna is the oldest continually operating university in the world, the word 'universitas' being first used by this institution at its foundation. The true date of its founding is uncertain, but believed by most accounts to have been 1088...
, who had previously had access to only a limited portion of Justinian's legal code
Corpus Juris Civilis
The Corpus Juris Civilis is the modern name for a collection of fundamental works in jurisprudence, issued from 529 to 534 by order of Justinian I, Eastern Roman Emperor...
, 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
Decline of the Roman Empire
The decline of the Roman Empire refers to the gradual societal collapse of the Western Roman Empire. Many theories of causality prevail, but most concern the disintegration of political, economic, military, and other social institutions, in tandem with foreign invasions and usurpers from within the...
to the Germanic Goths
Goths
The Goths were an East Germanic tribe of Scandinavian origin whose two branches, the Visigoths and the Ostrogoths, played an important role in the fall of the Roman Empire and the emergence of Medieval Europe....
. 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 role was passed on to the legal science in the Netherlands. Members of the "school of elegant jurisprudence" included Hugo Grotius
Hugo Grotius
Hugo Grotius , also known as Huig de Groot, Hugo Grocio or Hugo de Groot, was a jurist in the Dutch Republic. With Francisco de Vitoria and Alberico Gentili he laid the foundations for international law, based on natural law...
, Johannes Voet
Johannes Voet
Johannes Voet was a Dutch jurist.-Life:Voet was the son of Paulus Voet, who was the son of famous theologian Gisbertus Voetius. He probably studied in Utrecht, after which he became a professor in Herborn. In 1673 he was made professor of law at the universiteit van Utrecht...
, Ulrich Huber
Ulrich Huber
Ulrik Huber , also known as Ulrich Huber or Ulricus Huber, was a professor of law at the University of Franeker and a political philosopher.Huber studied in Franeker, Utrecht and Heidelberg...
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
Kingdom of the Netherlands
The Kingdom of the Netherlands is a sovereign state and constitutional monarchy with territory in Western Europe and in the Caribbean. The four parts of the Kingdom—Aruba, Curaçao, the Netherlands, and Sint Maarten—are referred to as "countries", and participate on a basis of equality...
adopted the French Code civil
Napoleonic code
The Napoleonic Code — or Code Napoléon — is the French civil code, established under Napoléon I in 1804. The code forbade privileges based on birth, allowed freedom of religion, and specified that government jobs go to the most qualified...
, 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.