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Roman-Dutch law ( Dutch: ''Rooms-Hollands recht'',
Afrikaans File:WIKITONGUES- Alaric speaking Afrikaans.webm, Alaric speaking Afrikaans. Afrikaans (, ) is a West Germanic languages, West Germanic language spoken in South Africa, Namibia and, to a lesser extent, Botswana, Zambia and Zimbabwe. It evolved ...
: ''Romeins-Hollandse reg'') is an uncodified,
scholarship A scholarship is an award of Student financial aid, financial aid for a student to further their education at a private elementary or secondary school, or a private or public post-secondary college, university, or other academic institution. Sch ...
-driven, and judge-made
legal system The contemporary national legal systems are generally based on one of four basic systems: civil law, common law, statutory law, religious law or combinations of these. However, the legal system of each country is shaped by its unique history ...
based on
Roman law Roman law is the legal system of ancient Rome In historiography, ancient Rome is Roman people, Roman civilization from the founding of the Italian city of Rome in the 8th century BC to the collapse of the Western Roman Empire in the 5th c ...
as applied in the
Netherlands The Netherlands ( nl, Nederland ), informally referred to as Holland, is a country primarily located in Western Europe and partly in the Dutch Caribbean, Caribbean. It is the largest of four Kingdom of the Netherlands#Constituent countries, cons ...

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 While Roman-Dutch law was superseded by Napoleonic codal law in the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 The Netherlands ( nl, Nederland ), informally referred to as Holland, is a country primarily located in Western Europe and partly in the Dutch Caribbean, Caribbean. It is the largest of four Kingdom of the Netherlands#Constituent countries, cons ...

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 Guyana (pronounced or ), officially the Cooperative Republic of Guyana, is a country on the northern mainland of South America and the capital city is Georgetown. Guyana is bordered by the Atlantic Ocean to the north, Brazil to the south and ...
,
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(and its neighbours
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,
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,
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,
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, and
Zimbabwe Zimbabwe (), officially the Republic of Zimbabwe, is a landlocked country located in Southern Africa, between the Zambezi and Limpopo Rivers, bordered by South Africa to the south, Botswana to the south-west, Zambia to the north, and Mozambi ...

Zimbabwe
),
Sri Lanka Sri Lanka (, ; si, ශ්‍රී ලංකා, Śrī Laṅkā, translit-std=ISO; ta, இலங்கை, Ilaṅkai, translit-std=ISO), formerly known as Ceylon, and officially the Democratic Socialist Republic of Sri Lanka, is an island ...
,
Indonesia Indonesia ( ), officially the Republic of Indonesia ( id, Republik Indonesia, links=yes ), is a country in Southeast Asia and Oceania between the Indian Ocean, Indian and Pacific Ocean, Pacific oceans. It consists of more than List of islands ...

Indonesia
, Surinam, and the formerly Indonesia-occupied East Timor. It also heavily influenced Scots law. It also had some minor impact on the laws of the American state of New York (state), New York, especially in introducing the office of Prosecutor (''schout-fiscaal'').


History

Roman law Roman law is the legal system of ancient Rome In historiography, ancient Rome is Roman people, Roman civilization from the founding of the Italian city of Rome in the 8th century BC to the collapse of the Western Roman Empire in the 5th c ...
was progressively abandoned during the early Middle Ages. The Codex Theodosianus, 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 Burgundionum, Lex Gundobada Romana'' are two of the several hybrid Romano-Germanic law codes that incorporated much Roman legal material. However, because the Decline of the Roman Empire, fall of the Western Roman Empire preceded the drafting of the Corpus Juris Civilis, 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 1070—a copy of the ''Pandects, Digest'' of Byzantine Empire, 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 Corpus Juris Civilis, 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 doctrine of reception, 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 Custom (law), 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 period in Ceylon, Dutch Ceylon. 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 South Africa. 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.


Law reform in former Dutch colonies

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 Surinam, Aruba, Sint Maarten and Indonesia.


See also

*South African law *Scots law


Notes


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, (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, (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. {{refend


External links


A very good collection of resources maintained by professor Ernest Metzger

''The Roman Law Library'' by Professor Yves Lassard and Alexandr Koptev
Legal history of the Netherlands Legal systems South African law