Roman Dutch Law - History

History

Roman law was not abandoned during the early Middle Ages. Codified versions of Roman law (e.g. Theodosian Code) and excerpts of latter-day imperial enactments (constitutiones) were well known in the successor Germanic kingdoms and vital to maintaining the commonplace principle of folk-right which applied pre-existing Roman law to Romans and Germanic law to Germans. The Breviary of Alaric and the Lex Gundobada Romana are two of the several mixed Roman-Germanic law codes that incorporated much Roman legal material. However, because the fall of Rome preceded the drafting of Justinian's Code, early Byzantine law was never influential in Western Europe.

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 Justinian's 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 Bologna (and soon elsewhere) — because the judges felt that the refined legal concepts of Roman law were more apt to solve complex cases than customary law which had been in use since the fall of the Western Roman Empire throughout western and central Europe. This process, referred to as the reception of Roman law, took place in the Holy Roman Empire and the Mediterranean, but was much slower to come to northern Europe (e.g., Saxony, Northern France, the Low Countries, Scandinavia).

In the 15th century, the process reached the Netherlands. While Italian lawyers were the first to contribute to the new jurisprudence based on the Roman texts, in the 16th century, French doctrinal scholars were most influential. In the 17th and 18th century, it was the Dutch who were the most influential. 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 legal concepts taken from the traditional Dutch customary law, 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 applied their legal system in their colonies. In this way, the Dutch variety of the European civil law (or ius commune) came to be applied in South Africa and Sri Lanka.

In the Netherlands, the history of Roman-Dutch law ended when, in 1809, the puppet state Kingdom of Holland adopted the French Code civil, a different system but also ultimately based on Roman law. However in the then Dutch colonies, French law was never introduced during or after the Napoleonic era. As a result, the Roman-Dutch law managed to survive to this day.