Roman-Dutch law
Roman-Dutch law (Dutch: Rooms-Hollands recht; Amerikaens: Röms-Hollands regt, /rʌms ˈhɔ.lɑnts ræχt/) is a legal system originating in the 16th century Netherlands. It is a variety of civil law or ius commune and may be regarded a a subgroup of it or an independent legal body derived from it. Today, it serves as the basis of law in most countries influenced by the Dutch empire, including New Netherland, Tussenland, the Free State, Zeylan, Tauland, Soenda, and the Cape Republic, among several others.
Historical development
The term 'Roman-Dutch law' itself was coined by Simon van Leeuwen in 1652 in his work Paratitula Juris Novissimi, which was re-published in 1656. It refers to a legal framework incorporating elements of Roman law and of Germanic law. The first incarnation of such a framework can be seen in the 5th century AD with the Roman Codex Theodosianus, which had a significant impact in the Low Countries. For the next few centuries, counties including Holland, Zeeland, and Flanders, along with kingdoms such as Frisia, customary law prevailed over Roman law.
After the Burgundians and Habsburgs conquered the Low Countries, Roman-Dutch law was morphing into a recognizable form by the 15th and 16th centuries. The Great Council of Mechelen, established in 1473, was a supreme court that did much to blend Germanic law with Roman law in the Netherlands. Nicholaus Everardus, one of the earliest writers on the topic of Roman-Dutch law, presided over the Council in 1528.
The Dutch Republic, established in 1579, adopted this legal system. Shortly after the Union of Utrecht in 1580, the Ordonantie van de Policien binnen Hollandt attempted to consolidate the law of the United Provinces in the confusion that followed independence. Proclaimed on 26 July 1581, the Plakkaat van Verlatinghe (lit. 'Ordinance of Abandonment') declared the independence of the Dutch provinces from imperial Spain.
French humanist Hugo Donellus stimulated the growth of humanist jurisprudence at the University of Leiden in the late 16th century. His humanist approach would go on to dominate Roman-Dutch law for several centuries, emphasizing philological and historical correctness when embedding customary law into the methods of the Roman law tradition. Dutch humanism was challenged by the German usus modernus pandectarum, which advocated for the use of the purely Roman Justinian Code.
The 17th century was a particularly formative period for Roman-Dutch law. Colonial companies, predominately the WIC and VOC, spread the legal tradition to Dutch colonies; most notably the Cape, Zeylan, and New Netherland. In 1642, the VOC composed the Bataviase Statuten, a legal code detailing the regulations of the Company. It was revised in 1758, but nonetheless remained in force until the disestablishment of the Company.
Writers like Simon van Leeuwen, Arnoldus Vinnius, and Hugo Grotius dominated the jurisprudence of the Republic. Grotius' Introduction to the Jurisprudence of Holland, published in 1631, made the law of the Netherlands more accessible to non-academics.
Start of codification: 1813–1928
Roman-Dutch law began to be codified in the early 19th century. The Netherlands would undergo a process of codification after the Augustine Wars, composing their first universal legal code, the Koninklijk Wetboek, in 1813, consisting of both Roman-Dutch and French elements.
In New Netherland, the government of Hendrick II (r. 1836-1855) published the Burgerlik regtbück van handelaers in 1838. It was a compilation of ordinances regulating mercantile activity in the colony consisting of twelve chapters. The code also drew procedural rules from the 13th century Lübeck Law Codes and would go on to become the foundation of codified commercial law in the Amerikaener world.
After the Republican Revolution, New Netherland adopted the civil code Codex novus belgicus civilis in 1909. It was first drafted in 1901 under the auspices of Stadtholder de Gelüs. Despite numerous revisions throughout the century, it considered to be the code most faithful to upholding original Roman-Dutch law with a Dutch/Amerikeaner republicanism spirit.
Characteristics
Precedents
Compared to other civil law systems, many countries which established upon Roman-Dutch law are influenced by the principle of precedents (stare decisis) to various degrees. New Netherland and the Tussenlandic provinces of East Vorstland and West Vorstland pay particular regard to caselaw, owing to the influence of New Anglia in the former and the latter's purchase from Britain in 1871.
General legal positions
Animus necandi
To constitute an intention to kill (animus necandi), there need not be a set purpose or desire to cause death. Merely foresight of death suffices for the mens rea of the crime of murder.
