This new legal humanism culminated in the Dutch jurists of the seventeenth and eighteenth centuries, who brought new perspectives into the study of Roman sources while developing innovative approaches to the study and synthesis of local customary law within a classical Roman framework. The flourishing of Dutch scholarship and its importance in European legal culture went hand in hand with the expansion of Dutch economic and political power in Europe and abroad as it developed trade in the colonial territories of Africa and South Asia. Modern South African law is a mixture of Romano-Dutch and English law. Constitutional law and administrative law have developed on the English model. Procedural and evidence law is almost entirely English, as are most laws relating to trade associations and areas such as patents, trademarks, copyrights, insurance and marine operations. On the other hand, criminal law is a combination of elements from Romano-Dutch and English common law sources. In inheritance law, the rules for drafting wills are English, while the substantive law of testamentary and legal succession is largely Romano-Dutch. Personal law and property law are almost purely Romano-Dutch, and the principles of contract law and tort law are Romano-Dutch, with little influence by common law. Reception of English law in the Romano-Dutch colonies; The reader who can use this book or one of the older textbooks mentioned in the previous pages as an introduction to his study of modern law in either Romano-Dutch colony should bear in mind that Romano-Dutch law was a complex system that came from a variety of sources. Thus, the law of each of these colonies, of Romano-Dutch origin, was influenced in almost all departments by the pervasive influences of English law. the result of (a) express decrees; This was the result partly of an express decree, partly of judicial decisions, partly of tacit acceptance.
The rediscovery of Justinian`s compilation of Roman law by Italian jurists in the twelfth century inaugurated a new jurisprudence in Europe. This new scholarship flourished and evolved into what was known as ius commune, a common legal tradition that combined Roman and canon law into a common system of legal thought, influenced by local law and custom in each country or region. The Italians, who introduced Justinian`s Digest, Code and Institutes in the sixth century to Europe as the Corpus iuris civilis, were the leading scholars of Roman law until the Frenchman assumed this role in the sixteenth century, when legal humanism emphasized the original sources and context of classical Roman law. Sources of Modern Law. These are therefore the sources of Roman-Dutch law, or they were its sources when it was still flowing in an undivided current. To this day, they remain the sources of law for the various Romano-Dutch colonies, supplemented by decrees of local legislators, decisions of local courts, and authoritative local customs. The treatises and opinions of modern jurists do not make the law, although they often help the questioner discover what law is. unequal in the different provinces.
The reception of Roman law was far from complete in all the provinces of the Dutch Netherlands. [13] It was in Friesland that it had the largest scale, less so in Overijssel and Drenthe. The other provinces were located at different points between these extremes. As a result, the laws of two provinces were not exactly the same. There is no reason why, if we wanted to, we should not include all these systems under the name of `Romano-Dutch law`. In practice, however, the expression is generally applied in particular to the law of the province of Holland. This is partly explained by the constant hegemony that Holland exercised over the other provinces throughout the existence of the Republic, and partly by the fact that the most important authors on Romanized law of the Dutch Netherlands belonged to this province. Die Quellen des römisch-niederländisch Rechts. The last part of this introduction refers to the authentic sources of Roman-Dutch law, which are also the main sources of our knowledge of this system. While Roman-Dutch law treated Roman law as it applied specifically to Holland and not to the entire Dutch Republic, Holland was not the only Dutch province where Roman jurisprudence flourished in the early modern period. Ulrik Huber (1636-94) was the most famous jurist in the northern province of Friesland.
A member of the Frisian court from 1679-82, Huber and the jurist Johannes van den Sande represented a Romano-Frisian legal tradition half a century before him, known for its strict adherence to Roman law. “We adhere to the rule that, insofar as the situation is clearly different under Frisian law, it remains as prescribed by the laws of Rome,” Huber wrote in Heedensdaegse. Influenced by Grotius` Inleydinghe, Heedensdaegse offered a detailed overview of Frisian law and its social context. Huber`s other major work, Prælectionum juris civilis, used Roman sources to introduce the modern discipline of conflict of laws. After having spoken so much about Romano-Dutch law in general, we will then speak in more detail about its history in the Romano-Dutch colonies,[26] for by this name we can conveniently refer to the British possessions in which this system consists. Next, we will talk about the sources from which our knowledge of Romano-Dutch law comes. Although it is not very difficult to state the essence of Roman-Dutch law in general, it is not so easy to define precisely its temporal or spatial scope. Its origin, derived from the two sources of Germanic customary law and Roman law, it can be said that Romano-Dutch law existed as soon as the first of the second contained elements.
Undoubtedly, such a process was at work very early. Long before Justinian`s Corpus Juris was “received” in Germany, the Codex Theodosianus (438 AD). A.D.) had left its mark on the tribal customs of the country, which were now within the borders of the kingdoms of Holland and Belgium. [3] and development. Later, the various influences of the Frankish monarchy and canon and canon law[4] established new links between Rome and Germany. The general reception of Roman law in Germany and Holland in the fifteenth and sixteenth centuries completed a process that had been at work in various ways and through different channels for more than a thousand years. [5] The extent of the reception is disputed. If we ask to what extent Roman law has been received in the Netherlands in general and in the province of Holland in particular, we run the risk of taking sides in a controversy between rival schools. [14] There are those who regard Grotius, Van Leeuwen, Voet and the other Romanists as traitors to the law of their country, which, it is concluded, enslaves them to a foreign system. Since the question is purely historical, the present author does not give an opinion. For the lawyer, the question is not what the law was when these lawyers wrote, but what it was when they wrote.
In the history of institutions, it is sometimes more important to know what was believed to be true than to know what was really true. In any case, no one disputes the fact of the reception of Roman law. What is questioned is the degree of reception. For our part, we are content to accept Van der Linden`s saying: “To answer the question of what is the law in this or that case, we must first ask ourselves whether a general law of the country or a local regulation (plaatselijke keur) having the force of law or an established custom can be found that concerns it.