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Roman-Dutch law (
Dutch Dutch commonly refers to: * Something of, from, or related to the Netherlands * Dutch people () * Dutch language () *Dutch language , spoken in Belgium (also referred as ''flemish'') Dutch may also refer to:" Castle * Dutch Castle Places * D ...
: ''Rooms-Hollands recht'',
Afrikaans Alaric speaking Afrikaans. Afrikaans (, ) is a West Germanic language spoken in South Africa, Namibia and, to a lesser extent, Botswana, Zambia and Zimbabwe. It evolved from the Dutch vernacular of Holland (Hollandic dialect) spoken by the Dut ...
: ''Romeins-Hollandse reg'') is an uncodified,
scholarship A scholarship is an award of 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. Scholarships are awarded b ...
-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 and s ...
based on
Roman law Roman law is the legal system of ancient Rome, including the legal developments spanning over a thousand years of jurisprudence, from the Twelve Tables (c. 449 BC), to the ''Corpus Juris Civilis'' (AD 529) ordered by Eastern Roman Emperor Justini ...
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 Caribbean. It is the largest of four constituent countries of the Kingdom of the Netherlands. In Europe, the ...

Netherlands
in the 17th and 18th centuries. As such, it is a variety of the European continental civil law or ''
ius commune ''Jus commune'' or ''ius commune'' is Latin for "common law" in certain jurisdictions. It is often used by civil law jurists to refer to those aspects of the civil law system's invariant legal principles, sometimes called "the law of the land" in E ...
''. While Roman-Dutch law was superseded by Napoleonic codal law in the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 Caribbean. It is the largest of four constituent countries of the Kingdom of the Netherlands. In Europe, 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 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 ...
,
South Africa South Africa, officially the Republic of South Africa (RSA), is the southernmost country in Africa. With over 59 million people, it is the world's 23rd-most populous nation and covers an area of . South Africa has three capital cities: e ...
(and its neighbours
Botswana Botswana (, also ), officially the Republic of Botswana ( tn, Lefatshe la Botswana, label=Setswana; Kalanga: ''Hango yeBotswana''), is a landlocked country in Southern Africa. Botswana is topographically flat, with up to 70 percent of its terri ...
,
Lesotho Lesotho (, ), officially the Kingdom of Lesotho ( st, Naha ea Lesotho), is an enclaved country within the border of South Africa. It is by far the largest of the world's three independent states completely surrounded by the territory of another ...
,
Namibia Namibia (, ), officially the Republic of Namibia, is a country in Southern Africa. Its western border is the Atlantic Ocean; it shares land borders with Zambia and Angola to the north, Botswana to the east and South Africa to the south and eas ...
,
Eswatini Eswatini ( ; ss, eSwatini ), officially the Kingdom of Eswatini ( ss, Umbuso weSwatini, links=no), sometimes written in English as eSwatini, and formerly and still commonly known in English as Swaziland ( ; officially renamed in 2018), is a land ...
, 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 countr ...
,
Indonesia Indonesia ( ), officially the Republic of Indonesia ( id, Republik Indonesia, links=yes ), is a country in Southeast Asia and Oceania between the Indian and Pacific oceans. It consists of more than seventeen thousand islands, including Sumatra, ...

Indonesia
, Surinam, and the formerly Indonesia-occupied
East Timor East Timor () or Timor-Leste (; tet, Timór Lorosa'e), officially the Democratic Republic of Timor-Leste ( pt, República Democrática de Timor-Leste, tet, Repúblika Demokrátika Timór-Leste), is an island country in Southeast Asia. It comp ...
. It also heavily influenced
Scots law Scots law () is the legal system of Scotland. It is a hybrid or mixed legal system containing civil law and common law elements, that traces its roots to a number of different historical sources. Together with English law and Northern Irish law ...
. It also had some minor impact on the laws of the American state of
New York New York most commonly refers to: * New York City, the most populous city in the United States, located in the state of New York * New York (state), a state in the Northeastern United States New York may also refer to: Film and television * ''Ne ...
, especially in introducing the office of Prosecutor (''
schout In Dutch-speaking areas, a ''schout'' was a local official appointed to carry out administrative, law enforcement and prosecutorial tasks. The office was abolished with the introduction of administrative reforms during the Napoleonic period. Funct ...
-fiscaal'').


History

Roman law Roman law is the legal system of ancient Rome, including the legal developments spanning over a thousand years of jurisprudence, from the Twelve Tables (c. 449 BC), to the ''Corpus Juris Civilis'' (AD 529) ordered by Eastern Roman Emperor Justini ...
was progressively abandoned during the early
Middle Ages In the history of Europe, the Middle Ages or medieval period lasted from the 5th to the late 15th century. It began with the fall of the Western Roman Empire and transitioned into the Renaissance and the Age of Discovery. The Middle Ages i ...
. The
Theodosian Code The ''Codex Theodosianus'' (Eng. Theodosian Code) was a compilation of the laws of the Roman Empire under the Christian emperors since 312. A commission was established by Emperor Theodosius II and his co-emperor Valentinian III on 26 March 429 and ...
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 The ''Breviary of Alaric'' (''Breviarium Alaricianum'' or ''Lex Romana Visigothorum'') is a collection of Roman law, compiled by unknown writers and approved by referendary Anianus on the order of Alaric II, King of the Visigoths, with the advic ...
'' 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 The fall of the Western Roman Empire (also called the fall of the Roman Empire or the fall of Rome), c. 376-476, was the process of decline in the Western Roman Empire in which the Empire failed to enforce its rule, and its vast territory was ...
preceded the drafting of the
Justinianic Code The Code of Justinian ( la, Codex Justinianus, ''Justinianeus'' or ''Justiniani'') is one part of the ''Corpus Juris Civilis'', the codification of Roman law ordered early in the 6th century AD by Justinian I, who was an Eastern Roman (Byzantine) emp ...
, early Byzantine law was never influential in Western Europe. Also, much of this early law was superseded by later feudal law. Only
canon law Canon law (from grc, κανών, , a 'straight measuring rod, ruler') is a set of ordinances and regulations made by ecclesiastical authority (Church leadership), for the government of a Christian organization or church and its members. It is the i ...
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 '' Digest'' of
Emperor An emperor (from la, imperator, via fro, empereor) is a monarch, and usually the sovereign ruler of an empire or another type of imperial realm. Empress, the female equivalent, may indicate an emperor's wife (empress consort), mother (empress ...
Justinian I Justinian I (; la, Flavius Petrus Sabbatius Iustinianus; grc-gre, Ἰουστινιανός, Ioustinianós; 11 May 48214 November 565), also known as Justinian the Great, was the Byzantine emperor from 527 to 565. His reign is marked by the ambi ...
found its way into northern Italy. Scholars in the emerging
University of Bologna The University of Bologna ( it, Alma mater studiorum - Università di Bologna, UNIBO) is a research university in Bologna, Italy. Founded in 1088 by an organised guild of students (hence ''studiorum''), it is the oldest university in continuous ope ...
, who previously had access to only a limited portion of the
Justinianic code The Code of Justinian ( la, Codex Justinianus, ''Justinianeus'' or ''Justiniani'') is one part of the ''Corpus Juris Civilis'', the codification of Roman law ordered early in the 6th century AD by Justinian I, who was an Eastern Roman (Byzantine) emp ...
, 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 law A legal custom is the established pattern of behavior that can be objectively verified within a particular social setting. A claim can be carried out in defense of "what has always been done and accepted by law". Customary law (also, consuetudina ...
s of western and central Europe. This process, referred to as
reception Reception is a noun form of ''receiving'', or ''to receive'' something, such as art, experience, information, people, products, or vehicles. It is often used in the following contexts: Astrology *Reception (astrology), in astrology, where one pl ...
, took place in the
Holy Roman Empire The Holy Roman Empire ( la, Sacrum Imperium Romanum; german: Heiliges Römisches Reich) was a multi-ethnic complex of territories in Western and Central Europe that developed during the Early Middle Ages and continued until its dissolution in 180 ...
and the Mediterranean in the 13th-14th centuries, but was much slower to come to northern Europe (e.g.,
Saxony Saxony (german: Sachsen ; hsb, Sakska), officially the Free State of Saxony (German: , Upper Sorbian: ), is a landlocked state of Germany, bordering the states of Brandenburg, Saxony-Anhalt, Thuringia, Bavaria, as well as the countries of Pola ...
, Northern
France France (), officially the French Republic (french: link=no, République française), is a country primarily located in Western Europe, consisting of metropolitan France and several overseas regions and territories. The metropolitan area of Fr ...
, the
Low Countries The term Low Countries, also known as the Low Lands ( nl, de Lage Landen, french: les Pays-Bas) and historically called the Netherlands ( nl, de Nederlanden), Flanders, or Belgica, refers to a coastal lowland region in northwestern Europe forming ...
,
Scandinavia Scandinavia, Sami: ''Skadesi-suolu''/''Skađsuâl'' ( ) is a subregion in Northern Europe, with strong historical, cultural, and linguistic ties. In English usage, ''Scandinavia'' can refer to Denmark, Norway and Sweden, sometimes more narr ...

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 Hugo Grotius (; 10 April 1583 – 28 August 1645), also known as Huig de Groot () and in Dutch as Hugo de Groot (), was a Dutch humanist, diplomat, lawyer, theologian, jurist, poet and playwright. A teenage intellectual prodigy, he was bor ...
,
Johannes Voet Johannes Voet, also known as John Voet (3 October 1647 – 11 September 1713) was a Dutch jurist whose work remains highly influential in modern Roman-Dutch law. Voet is one of the so-called "old authorities" of Roman-Dutch law, along with Hugo G ...
,
Ulrich Huber Ulrik Huber (13 March 1636 in Dokkum – 8 November 1694 in Franeker), 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. ...
, 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 A convention is a set of agreed, stipulated, or generally accepted standards, norms, social norms, or criteria, often taking the form of a custom. In a social context, a convention may retain the character of an "unwritten law" of custom (for ex ...
law, especially from the province of
Holland Holland is a geographical regionG. Geerts & H. Heestermans, 1981, ''Groot Woordenboek der Nederlandse Taal. Deel I'', Van Dale Lexicografie, Utrecht, p 1105 and former province on the western coast of the Netherlands. The name ''Holland'' is also ...
. 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 The Dutch East Indies (or Netherlands East-Indies; nl, Nederlands(ch)-Indië; ) was a Dutch colony consisting of what is now Indonesia. It was formed from the nationalised colonies of the Dutch East India Company, which came under the administr ...
,
Dutch West Indies The Dutch Caribbean (historically known as the Dutch West Indies) are the territories, colonies, and countries, former and current, of the Dutch Empire and the Kingdom of the Netherlands in the Caribbean Sea. They are in the north and south-west ...
,
Cape Colony The Cape Colony ( nl, Kaapkolonie), also known as the Cape of Good Hope, was a British colony in present-day South Africa named after the Cape of Good Hope. The British colony was preceded by an earlier Corporate colony that became a Dutch col ...
, and
Dutch Ceylon Dutch Ceylon (Sinhala: ) was a governorate established in present-day Sri Lanka by the Dutch East India Company. Although the Dutch managed to capture most of the coastal areas in Sri Lanka they were never able to control the Kandyan Kingdom loca ...
. In the Netherlands, Roman-Dutch law abruptly ended when, in 1809, the Dutch puppet state—the
Kingdom of Holland The Kingdom of Holland ( nl, Holland (contemporary), ''Koninkrijk Holland'' (modern), french: Royaume de Hollande) was set up by Napoléon Bonaparte as a puppet kingdom for his third brother, Louis Bonaparte, in order to better control the Nethe ...
—adopted the French
Napoleonic Code The Napoleonic Code (, lit. "Code Napoleon"), officially the Civil Code of the French (; simply referred to as ''Code civil'') is the French civil code established under the French Consulate in 1804 and still in force, although frequently amende ...
, 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 South Africa has a 'hybrid' or 'mixed' legal system, formed by the interweaving of a number of distinct legal traditions: a civil law system inherited from the Dutch, a common law system inherited from the British, and a customary law system inh ...
*
Scots law Scots law () is the legal system of Scotland. It is a hybrid or mixed legal system containing civil law and common law elements, that traces its roots to a number of different historical sources. Together with English law and Northern Irish 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 Legal systems are the systems of civil law, common law and religious law. Each country often develops variations on each system and incorporates many other features into the system. {{Commons category, Legal systems Conceptual systems ...
South African law