Roman-Dutch law (Dutch: Rooms-Hollands recht, Afrikaans: Romeins-Hollandse reg) is an uncodified, scholarship-driven, and 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 While Roman-Dutch law was superseded by Napoleonic codal law in the Netherlands proper as early as the beginning of the 19th century, the legal practices and principles of the Roman-Dutch system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, South Africa (and its neighbours Botswana, Lesotho, Namibia, Eswatini (formerly Swaziland), and Zimbabwe), Sri Lanka, Indonesia, Suriname, and the formerly Indonesian-occupied East Timor. It also heavily influenced Scots law. [1] It also had some minor impact on the laws of the American state of New York, [2] 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 Also, much of this early law was superseded by later feudal law.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. [3] : 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, the English respected the existing Roman Dutch law in at that time Dutch colonies that became English, such as Guyana, Ceylon and the Cape Colony. 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 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. [4]
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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 Suriname, Aruba, Sint Maarten and Indonesia.
In law, common law, also known as judicial precedent, judge-made law, or case law, is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions. The defining characteristic of “common law” is that it arises as precedent. In cases where the parties disagree on what the law is, a common law court looks to past precedential decisions of relevant courts, and synthesizes the principles of those past cases as applicable to the current facts. If a similar dispute has been resolved in the past, the court is usually bound to follow the reasoning used in the prior decision. If, however, the court finds that the current dispute is fundamentally distinct from all previous cases, and legislative statutes are either silent or ambiguous on the question, judges have the authority and duty to resolve the issue. The court states an opinion that gives reasons for the decision, and those reasons agglomerate with past decisions as precedent to bind future judges and litigants. Common law, as the body of law made by judges, stands in contrast to and on equal footing with statutes which are adopted through the legislative process, and regulations which are promulgated by the executive branch. Stare decisis, the principle that cases should be decided according to consistent principled rules so that similar facts will yield similar results, lies at the heart of all common law systems.
Canon law is a set of ordinances and regulations made by ecclesiastical authority, for the government of a Christian organization or church and its members. It is the internal ecclesiastical law, or operational policy, governing the Catholic Church, the Eastern Orthodox and Oriental Orthodox churches, and the individual national churches within the Anglican Communion. The way that such church law is legislated, interpreted and at times adjudicated varies widely among these four bodies of churches. In all three traditions, a canon was originally a rule adopted by a church council; these canons formed the foundation of canon 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, to the Corpus Juris Civilis ordered by Eastern Roman emperor Justinian I. Roman law forms the basic framework for civil law, the most widely used legal system today, and the terms are sometimes used synonymously. The historical importance of Roman law is reflected by the continued use of Latin legal terminology in many legal systems influenced by it, including common law.
The Corpus JurisCivilis is the modern name for a collection of fundamental works in jurisprudence, issued from 529 to 534 by order of Justinian I, Byzantine Emperor. It is also sometimes referred to metonymically after one of its parts, the Code of Justinian.
British Guiana was a British colony, part of the mainland British West Indies, which resides on the northern coast of South America. Since 1966 it has been known as the independent nation of Guyana.
A civil code is a codification of private law relating to property, family, and obligations.
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 English law. While the ius commune was a secure point of reference in continental European legal systems, in England it was not a point of reference at all. The phrase "the common law of the civil law systems" means those underlying laws that create a distinct legal system and are common to all its elements.
Civil law is a legal system originating in mainland Europe and adopted in much of the world. The civil law system is intellectualized within the framework of Roman law, and with core principles codified into a referable system, which serves as the primary source of law. The civil law system is often contrasted with the common law system, which originated in medieval England, whose intellectual framework historically came from uncodified judge-made case law, and gives precedential authority to prior court decisions.
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 inherited from indigenous Africans. These traditions have had a complex interrelationship, with the English influence most apparent in procedural aspects of the legal system and methods of adjudication, and the Roman-Dutch influence most visible in its substantive private law. As a general rule, South Africa follows English law in both criminal and civil procedure, company law, constitutional law and the law of evidence; while Roman-Dutch common law is followed in the South African contract law, law of delict (tort), law of persons, law of things, family law, etc. With the commencement in 1994 of the interim Constitution, and in 1997 its replacement, the final Constitution, another strand has been added to this weave.
The canon law of the Catholic Church is "how the Church organizes and governs herself". It is the system of laws and ecclesiastical legal principles made and enforced by the hierarchical authorities of the Catholic Church to regulate its external organization and government and to order and direct the activities of Catholics toward the mission of the Church. It was the first modern Western legal system and is the oldest continuously functioning legal system in the West, while the unique traditions of Eastern Catholic canon law govern the 23 Eastern Catholic particular churches sui iuris.
The Burgerlijk Wetboek is the Civil Code of the Netherlands. Early versions were largely based on the Napoleonic Code. The Dutch Civil Code was substantively reformed in 1992. The Code deals with the rights of natural persons, legal persons, patrimony and succession. It also sets out the law of property, obligations and contracts, and conflict of laws. Proposed amendments will add a Book on intellectual property.
Ius or Jus in ancient Rome was a right to which a citizen (civis) was entitled by virtue of his citizenship (civitas). The iura were specified by laws, so ius sometimes meant law. As one went to the law courts to sue for one's rights, ius also meant justice and the place where justice was sought.
The history of Dutch nationality is the emergence of a sense of national identity in the territory of the Netherlands. Consciousness of national identity was manifested through shared national obligations and rights such as taxation, military service, political and social rights, but most importantly through the concept of citizenship. Dutch nationality was forged through conflict which helped the people of the Low Countries develop a unifying idea of the Netherlander.
Medieval Roman law is the continuation and development of ancient Roman law that developed in the European Late Middle Ages. Based on the ancient text of Roman law, Corpus iuris civilis, it added many new concepts, and formed the basis of the later civil law systems that prevail in the vast majority of countries.
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 is one of the three legal systems of the United Kingdom.
The history of Scots law traces the development of Scots law from its early beginnings as a number of different custom systems among Scotland's early cultures to its modern role as one of the three legal jurisdictions of the United Kingdom. The various historic sources of Scots law, including custom, feudal law, canon law, Roman law and English law have created a hybrid or mixed legal system, which shares elements with English law and Northern Irish law but also has its own unique legal institutions and sources.
Wolfgang Hermann Wernher Ernst is a German lawyer and Regius Professor of Civil Law at the University of Oxford.
Wetboek van Koophandel is a codification of Dutch commerce laws signed into law in 1838 based on the Napoleonic Code that was introduced in the Netherlands during the French conquest of the Netherlands. The law was then introduced by the Dutch to the Dutch East Indies, and has remained Indonesia's commerce law also after independence.
Lesbian, gay, bisexual, and transgender (LGBT) rights in Bonaire are very progressive by Caribbean standards. Bonaire forms part of the Caribbean Netherlands and is a special municipalitiy of the Netherlands. Both male and female same-sex sexual activity are legal in Bonaire, with same-sex marriage and adoption being legal since 2012. In addition, discrimination on the basis of "heterosexual and homosexual orientation" is outlawed.
Surinamese nationality law is regulated by the 1987 Constitution, the Allocation Agreement of 1975, and the 2014 Surinamese Nationality Law. It is highly influenced by Dutch law. These statutes determine who is, or is eligible to be, a citizen of Suriname. The legal means to acquire nationality, formal membership in a nation, differ from the relationship of rights and obligations between a national and the nation, known as citizenship. Surinamese nationality is typically obtained either under the rules of jus sanguinis, i.e. birth to at least one parent with Surinamese nationality; or on the principle of jus soli, i.e. by birth in Suriname. It can also be granted to a permanent resident who has lived in Suriname for a given period of time or by presidential decree through naturalization.