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Roman-Dutch law (Dutch: Rooms-Hollands recht, Afrikaans: Romeins-Hollandse reg) is an uncodified, scholarship-driven, 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 While Roman-Dutch law was superseded by Napoleonic codal law in the Netherlands proper as early as the beginning of the 19th century, the legal practices and principals of the Roman-Dutch system are still applied actively and passively by the courts of former British colonies of South Africa (and its neighbours Lesotho, Swaziland, Namibia, Botswana and Zimbabwe), Guyana, Sri Lanka, former Dutch colonies of Suriname, Indonesia, and formally Indonesia-occupied East Timor. It was largely drawn upon by Scots law. It also had some minor impact on the laws of the American state of New York, 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 Also, much of this early law was superseded by later feudal law.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 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.: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, in the then-Dutch colonies, French law was never introduced during or after the Napoleonic era. 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”.
The influence nevertheless exists in the former Dutch-ruled areas in South America. Suriname is still governed under the Roman-Dutch legal system. On the other hand in Guyana, the Roman-Dutch legal principles are still applied in a restricted way for governing properties within the country despite the enforcement of Civil Law of Guyana Ordinance in 1917 that favors the English style Common law system.
Law reform in former Dutch coloniesEdit
The Netherlands participated in international seminars and training programmes organized 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 Surinam, 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.
- Memorial of Republic of Guyana Volume 1 (Arbitration under Annex VII of the United Nations Convention on the Law of the Sea, Republic of Guyana v. Republic of Suriname) (Report). Permanent Court of Arbitration. 2005-02-22. p. 7.
Suriname achieved its independence from the Netherlands in 1975, after more than 170 years of Dutch colonial rule. It, too, has a democratically-elected President and Parliament, and an independent judiciary. Its legal system is based on Roman-Dutch law, and its official language is Dutch.
- 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.
- 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, ISBN 3-428-07465-3 (collection of papers, some in English).
- 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, 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, “Römisch-holländisches Recht”, Handwörterbuch des Europäischen Privatrechts (HWP EuP 2009) (online), eds. Jürgen Basedow, Klaus J. Hopt, & Reinhard Zimmermann.