1. The golden age of the Netherlands
The term Roman-Dutch law is used, pars pro toto, to designate the law of the seven northern provinces, initially of the Burgundian, and later of the Spanish-Habsburg Netherlands, which allied themselves in the Union of Utrecht in 1579 and declared independence from the Spanish King Phillip II in the Placaet van Verlatinge of 1581. This union had a constitutional structure which, in many fundamental aspects, deviated from the trends which otherwise dominated political development in the 17th century: it was republican rather than absolutist; it was federal rather than centralized; and it was inspired by particularism rather than the emerging idea of the nation state. Apart from that, in an age of religious intolerance, it afforded particularly wide-ranging freedom to those who did not accept the politically and culturally dominant Calvinist religion.
It is a remarkable, possibly even unique achievement that the (northern) Netherlands managed to emerge as one of the leading cultural nations of Europe immediately after their foundation and in spite of 80 years of continuous military engagement with Spain. The 17th century was the time of the Dutch masters in the art of painting. But science and philosophy also experienced a flowering time. With Dutch telescopes, the rings and the moons of Saturn were observed; with Dutch microscopes protozoa, bacteria and spermatozoa were detected; and among the philosophers who lived and published in the Netherlands were René Descartes, John Locke and Baruch Spinoza.
Primarily responsible for this growth were commerce and shipping. ‘Except for Great Britain after around 1780’, writes Jonathan I Israel (Dutch Primacy in World Trade 1585–1740 (1989) 12), ‘no one power in history ever achieved so great a preponderance over the process of world trade as did the Dutch, for a century and a half, from the end of the sixteenth down to the early eighteenth century. That any one nation, or state ... should have achieved so prolonged and constantly renewed, a capacity to dominate the world economy is, in itself sufficiently amazing. But what makes it still more astounding is that at the time of its maritime and commercial greatness the Dutch Republic was the smallest of the major European states in territory, population and natural resources.’ And, indeed, it covered an area of no more than 100 square kilometres with a population (in 1650) of 1.9 million. Nevertheless the Netherlands succeeded in acquiring and administering through two trading companies a major colonial empire. Amsterdam became one of the biggest banking centres and stock exchanges in Europe. A gradual urbanization occurred: Dutch culture was, essentially, an urban culture.
Despite a system of formal equality within the Union of the seven provinces (Holland, Zeeland, Friesland, Utrecht, Gelderland, Groningen and Overijssel), in practice Holland dominated the others. It was the most densely populated province and by far the most powerful financially. For this reason, the stadhouder of Holland (the head of the House of Orange) generally also held the office of military commander in chief of the union.
2. Holland and the legal culture of the Netherlands
Roman-Dutch law was one of the manifestations of the intellectual and cultural flowering of the United Netherlands during the 17th century. The appellation itself (in Dutch: Rooms-hollands recht; in Afrikaans: Romeins-hollandse reg) bears witness that the aforementioned dominance of Holland also extended to legal matters. Strictly speaking, each province had its own legal system; and these systems did in fact differ from each other. That was due, on the one hand, to the legislative activity of the provincial estates which was, of course, restricted to the individual provinces. On the other hand, however, it also resulted from the fact that the various provinces had not received Roman law to the same extent. Thus a particular faithfulness to Roman law lay at the heart of the Frisian lawyers’ special sense of identity. Nevertheless, the similarities between the different legal systems naturally far outweighed the differences: after all, the Roman-canon ius commune formed the foundation of the law in all provinces.
One of the most important reasons for the dominance of Dutch law in the Netherlands as a whole was the prestige and particular authority of its courts. Alongside the traditional lower courts which continued to exist in all provinces, high courts, which were set up by the respective territorial rulers, and which were initially partly and later completely staffed by learned lawyers, became increasingly important in the course of the 15th and 16th centuries. The oldest of these in the northern Netherlands was the Hof van Holland, Zeeland en West Friesland; it dated from the time of Philip the Good of Burgundy. Friesland, Utrecht and Gelderland established similar high courts in 1499, 1530 and 1547 respectively. Initially appeals against judgments of these courts could be made to a supreme court also established by Philip the Good, which was referred to as the Great Council of Mechelen after 1473. As a result of the separation of the northern and southern Netherlands, such hierarchy of courts was naturally no longer appropriate. Only Holland, however, established a court of appeal (Hoge Raad) in 1581. Although the other provinces did not, as had been hoped, submit to its jurisdiction, it acquired significant authority merely by virtue of being the only higher court of appeal in the Netherlands. Important jurists practised in both courts in Holland, who continually enhanced their reputation. Some of their collected opinions and judgments became influential precedents after their publication.
The second and no less significant reason for the dominance of Holland, in the legal culture of the Netherlands, was the particular prestige of the law faculty of the University of Leiden. The unsuccessful siege of this strategically important city by the troops of the Duke of Alba in 1574 had been the turning point in the history of the Dutch revolt against the Spanish rule, and the heroic resistance of the citizens of Leiden therefore merited a particular reward: Leiden became, at the suggestion of the leader of the revolt, William ‘the Silent’ of Nassau and Orange, the seat of a university for the free Netherlands (in 1575; the most important university in the Spanish Netherlands had been Leuven (Louvain), founded in 1425). Universities also came to be founded in other provinces in the course of time: the University of Franeker in Friesland in 1585, the University of Gronigen followed in 1614, after that the University of Utrecht (1636), and finally, in 1648, a university for Gelderland was established in Harderwijk. Still, however, the University of Leiden, and particularly its law faculty, continued to set the tone: it succeeded, again and again, to attract leading scholars. Thus, already in the very first years of its existence, Hugo Donellus, one of the leading legal scholars of the humanist movement (humanism), was persuaded to join its ranks.
This concentration of legal talent as well as of court practice and of learned legal opinions in the province of Holland naturally led to the law of Holland becoming a central focus of scholarly activities. The appearance of the Inleiding tot de Hollandsche Rechtsgeleertheyd of Hugo Grotius (1583–1645) in 1631 is particularly important in this regard. The Inleiding was the first work to deal with the law, as currently practised in the Republic of Holland, in a systematic form (institutional textbooks). It was written in Dutch rather than Latin and succeeded not least because it gave an original, clear and concise account, thus providing a welcome contrast to the usual longwinded discussions of Roman legal antiquities. The Inleiding was an immediate and resounding success, going through five editions in the very year of its publication. It made Hugo Grotius, in some sense, the intellectual father of Roman-Dutch law and thus, more generally, of the usus modernus of Roman law in the Netherlands.
3. Elegance and utility
Academic writers often refer to the Dutch ‘elegant’ school when discussing legal scholarship in the Netherlands during the 17th and early 18th centuries. The term signifies an approach to law, which, in avowed contrast to the Bartolist method of the commentators, strove to rediscover the legal culture of antiquity, regarding it as an ideal model also for the present day. This approach was first established in France (mos gallicus) where it had found its focal point in the University of Bourges, founded in 1464. Textual criticism of the Roman legal sources, editing the Justinianic and pre-Justinianic legal sources, the search for interpolations (Corpus Juris Civilis), palingenetic studies, scholarship focusing on Byzantine legal sources, and the investigation also of Roman constitutional law and Roman history: these were the great research projects of the French humanists, which the Dutch jurists adopted and continued. The high period of humanist jurisprudence in the Netherlands was between 1670 and 1750.
However, the impact of legal humanism was only one aspect of (Roman-) Dutch jurisprudence of that time. For Roman-Dutch law also achieved a leading position in the early modern world as a result of constituting an usus modernus of Roman law: Roman legal scholarship was opened up to take account of contemporary legal practice, ie of the mores hodierni or consuetudines nostrae, and thus systematically to study the law currently in force. This resulted in a leap forward in legal development and a fundamental modernization of private law doctrine, which was already striving, in the 17th and 18th centuries, to go ‘beyond Roman law by means of Roman law’ (Rudolf von Jhering). This process of modernization can be seen, as far as the law of obligations is concerned, in the history of the general concept of contract, the recognition of an enforceable duty to perform a contract (specific performance) and of a contract in favour of a third party, or in the development of a general enrichment action (unjustified enrichment). Among the protagonists of this side of Dutch jurisprudence were university professors who not only had an interest, but were in fact active, in legal practice, as well as academically trained practitioners.
Hugo Grotius was a practising lawyer, a diplomat and, as a scholar, a true polymath. Known today above all for his groundbreaking contributions to natural law and public international law, he also wrote, as has already been mentioned, the first introductory textbook on Roman-Dutch law which was to become the subject of a considerable number of commentaries. Arnold Vinnius (1588–1653), Professor in Leiden, became, by virtue of his commentary on the Institutes, the author of one of the most widely disseminated and thus most influential books in the modern history of private law. Simon van Groenewegen van der Made (1613–1652), advocate and later head of the chancellery of his home town, Delft, went through the entire Corpus Juris Civilis section by section, noting which provisions were to be regarded as abrogated in contemporary law, either by virtue of statute or by disuse. Ulrich Huber (1636–1694), Professor in Franeker and for some time judge in the Hof van Friesland, was the most important Frisian jurist; in addition to private law, he also contributed to the development of constitutional legal theory and private international law. Johannes Voet (1647–1713) was the author of the Dutch school’s most detailed commentary on the Digest. In the interest of rational legal development and criticism, he aimed to discover the principles underlying the law in force and thus, essentially, used Roman law as a foil for contemporary law. Cornelis van Bynkershoek (1673–1743) presided over the highest court in Holland for almost 20 years. The Observationes Tumultuariae which he took down at night and which were only published in the 20th century, afford a unique glimpse into the practice of contemporary decision making.
Thus the two major traditions concerning the approach to be adopted towards the Roman legal sources, which may be labelled elegance and utility, or mos gallicus and mos italicus, merged in Roman-Dutch law. For even the authors who did not busy themselves with reconstructing the texts so as to reflect the law of antiquity were entirely familiar with the accomplishments of legal humanism and were thus able to realize, and make their contemporaries realize, in which respect and to what extent the mores hodierni had departed from the Roman law of antiquity.
4. Natural law
An addition, a third intellectual tradition which had a major impact on European legal development also experienced both a transformation and a renaissance in 17th- and 18th-century Dutch law: natural law. ‘And what we have said would still have great weight, even if we were to grant, what we cannot grant without wickedness that there is no God, or that he bestows no regard on human affairs’, writes Hugo Grotius (transl W Whewell) in the Prolegomena to his epochal De iure belli ac pacis and thus no longer ascribed that which naturally appears as law to a divine lex aeterna, but rather to human reason. It would be astonishing if Grotius’ Inleiding did not also show the influence of the new, secular brand of natural law thinking, and in fact the Inleiding and De iure belli ac pacis are by no means completely unrelated to each other.
This also meant that the Roman-Dutch writers had an intellectual connection with the late scholastic jurisprudence of the 16th and 17th centuries in Spain. Its main exponents, authors such as Francisco de Vitoria, Diego de Covarruvias, Domingo de Soto, Luis de Molina, and Leonardus Lessius, had analysed the Roman law, that had been received, with the tools of Aristotelian philosophy, as christianized by Thomas Aquinas, and had thus transformed it into a consistent body of doctrine. The exponents of secularized natural law, first and foremost Grotius, largely adopted and popularized the synthesis thus attained. The law of the southern Netherlands, incidentally, formed an important bridge between Spanish and Roman-Dutch law, an intellectual connection which was not severed even by the 80 years of war with Spain. In the southern (ie Spanish) Netherlands particularly the judicial activity of the Great Council of Mechelen and the University of Leuven had been instrumental in a blossoming of legal scholarship.
Roman-Dutch law was marked by its intellectual openness to all streams of ius commune legal thinking, to natural law and to native customary law. It developed in a cosmopolitan atmosphere where there was (at least limited) religious freedom. And it was animated by a distinctly European spirit. This is evident in both the education of the leading legal scholars and the policy of those responsible for appointing professors in the various universities in the Netherlands. Thus, during the 17th and the first half of the 18th centuries German academics were appointed at every faculty in the Netherlands. Professors, however, were not the only ones who came from abroad; it was primarily students who did so, in comparatively even greater numbers. Leiden was naturally the main attraction. No less than 15,000 of the 35,000 students who matriculated there in the course of the 17th century came from outside the United Netherlands, more than 50 per cent of them from Germany. Another particularly important group of foreign students were from Scotland (Scottish private law).
5. Roman-Dutch law in the Cape of Good Hope
The law of the Netherlands has been codified since 1809. The application of the Dutch version of the ius commune was thus brought to an end, at least in Europe. This is not true, however, of the Dutch colonies, at least insofar as they were taken over by the English before the Napoleonic Code, as adjusted for the Kingdom of Holland, came into force. This applies, in particular, to South Africa. In April 1652 members of the Vereenigde Geotroyeerde Oost-Indische Compagnie (VOC) had begun to create a supply station for the trade route to India, and from this supply station a permanent colony soon developed. The larger the colony became, the more important were dispute settlement and administration of justice. From 1656 a Raad van Justie sat in Cape Town, and the local courts of landdrosten en heemraden were soon established for less significant disputes. But which law was applicable? This question has never been conclusively decided. Of course, it was taken for granted that it must have been the European law with which the colonists were familiar rather than the law of the indigenous tribes. The European law was thus transplanted to the Cape of Good Hope. Now, the VOC and its overseas possessions were subject to the Estates-General, the highest common organ of the Republic of the United Netherlands. Had there been a common law of the United Netherlands, it would have been applicable, but there was no such law. The board of governors of the commercial company, the Heeren Zeventien (Seventeen Gentlemen) had therefore already provided in 1621 that in the Indian possessions (to which the Cape belonged), the law of the Province of Holland should be applicable. This ruling stood on shaky grounds from a formal point of view, since the VOC had no legislative power. In practice, however, it was indeed the law of Holland that came to be applied. Grotius, Groenwegen, Voet, and Vinnius were thus the most important authorities; legal writers from other provinces—such as Ulrich Huber—were only drawn upon with considerable caution.
Roman-Dutch law did not undergo much change or development under the rule of the VOC. This changed with the British occupation in 1806, as a result of which the legal development of the Cape was cut off from that of the motherland. Roman-Dutch law was never formally and completely replaced by English law and thus remained—in harmony with recognized principles of English constitutional law—the basis for the administration of private law in the Cape. Yet, at the same time, a creeping reception of English law occurred in many areas. Thus the Roman-Dutch law of South Africa became a mixed legal system, in which the traditions of common law and civil law not only formed an historical synthesis but continue, to this day, to develop in a ius commune fashion.
Robert Feenstra and CJ De Waal, Seventeenth-century Leyden Law Professors and their Influence on the Development of the Civil Law (1975); Reinhard Zimmermann, Das römisch-holländische Recht in Südafrika: Einführung in the Grundlagen und usus hodiernus (1983); Margreet Ahsmann and Robert Feenstra, Bibliographie van hoogleraren in de rechten aan de Leidse universiteit tot 1811 (1984); Simon Schama, The Embarrassment of Riches: An Interpretation of Dutch Culture in the Golden Age (1988); Margreet JAM Ahsmann, Collegia en colleges (1990); Robert Feenstra and Reinhard Zimmermann (eds), Das römisch-holländische Recht: Fortschritte des Zivilrechts im 17. und 18. Jahrhundert (1992); Reinhard Zimmermann, ‘Roman-Dutch Jurisprudence and its Contribution to European Private Law’ (1992) 66 Tul L Rev 1685; Jonathan Israel, The Dutch Republic: Her Rise, Greatness and Fall 1477–1806 (1995); Govaert CJJ van den Bergh, Die holländische elegante Schule: Ein Beitrag zur Geschichte von Humanismus und Rechtswissenschaft in den Niederlanden 1500–1800 (2002); Jan HA Lokin, Frits Brandsma and Corjo Jansen, Roman-Frisian Law of the 17th and 18th Century (2003).
Hugo Grotius, Inleiding tot de Hollandsche Rechtsgeleerdheydt, 1631; the most commonly used modern edition is that of F Dovring, HFWD Fischer and EM Meijers (2nd edn, 1965); Arnoldus Vinnius, In quatuor libros Institutionum imperialium commentarius academicus et forensis (1642); Simon van Groenewegen van der Made, Tractatus de legibus abrogatis et inusitatis in Hollandia vicinisque regionibus (1649); Johannes Voet, Commentarius ad Pandectas, 2 vols (1698 and 1704); Ulrich Huber, Heedendagse Rechtsgeleertheydt (1686); Ulrich Huber, Praelectiones iuris civilis (3 parts, 1678, 1689 and 1690); Cornelis van Bynkershoek, Observationes tumultuariae, vol I (1926); vol II (1934); vol III (1946), all edited by EM Meijers, AS de Blécourt and HDJ Bodenstein; vol IV (1962), edited by EM Meijers, HFWD Fischer and MS van Oosten; Translations are available of most of these works, eg Hugo Grotius, The Jurisprudence of Holland, vol I (1926) (text and translation); vol II (1936) (commentary), both by Robert Warden Lee; Percival Gane, Huber’s Jurisprudence of my Time, 2 vols (1939); Percival Gane, The Selective Voet Being the Commentary on the Pandects, 7 vols (1955–58); Simon van Groenwegen van der Made, De Legibus Abrogatis, vol I (1974); vol II (1975); vol III (1984); vol IV (1987), translation by B Beinart and ML Hewett; Arnold Vinnius, Institutionenkommentar: Schuldrecht (2005), translation by Klaus Wille; see further Reinhard Zimmermann, ‘Südafrikanische Übersetzungen gemeinrechtlicher Literatur’ (1997) 5 ZEuP 536.