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Reception and Emergency of Roman Dutch Law
Reception and Emergency of Roman Dutch Law
Reference Materials
1. K Makamure, “The Historical Fate of Roman Law in Western Europe”, (Unpublished, 1999)
2. P Spiller, A Manual of Roman Law (Butterworths, Durban, 1986) Cap 8, p 245
3. WJ Hosten et al, Introduction to South African Law and Legal Theory 2nd ed (Butterworths,
Durban, 1995) pp 283 – 336
Introduction
1. The Roman Empire came to an end in the 6th century AD with the collapse of the Eastern Empire.
The Western Empire had already collapsed after AD 476 when Rome was ransacked by the barbarian
tribes of the Ostrogoths. Before its collapse the empire had experienced a major revival at least in
the East. Especially under the reign of Justinian from 527AD to 565AD.
2. By the time of its collapse, the Roman state had been in existence for over 1 300 years, including 244
years of the Monarchy, 478 years of the Republic and about 600 years of the Empire. During this
period Roman legal science developed from primitive customary law to a highly developed and
systematised body of law of great scientific merit. It had evolved from being a legal system that
regulated the relations of a small agricultural central Italian community to become the law of “the
largest commercially-based, multiracial empire known before the peak of that of Britain, declined;
and then had e quintessence of its achievement summarised and condensed by a Byzantine Emperor
of the sixth century A.D. who sought, successfully but ephemerally, to restore the glories of a half-
millennium or so earlier.” And from the 12th century AD became the “guiding spirit and inspiration of
the law and legal systems of the countries of nascent and renascent Europe so as to become a virtual
ius commune, common law, of, anyhow, occidental Europe.” [Thomas, 1976, p 3]. No wonder why it
has been commented “Thrice did Rome conquer the world; by her Arms, by her Church and by her
Law,” evoking Justinian’s declaration that the Empire is made glorious not only by her arms but by
her law as well.1
3. The key behind the undying durability of Roman law must lie with the summarisation and
codification of Roman Law by Justinian and his chief legal advisor, Tribonian, namely the Corpus Iuris
Civilis. By the time of Augustine’s rule, the state of the Roman legal system cd be described as
1
Hahlo, p 517
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follows: “In the space of ten centuries, the infinite variety of laws and legal opinions had filled many
thousand volumes which no fortune could purchase and no capacity cd digest. Books cd nt easily b
found; and judges, poor in the midst of riches, were reduced to e exercise of their illiterate
discretion.”2
a. “Justinian resolved the problem of the accumulated and diverse mass of Roman Law
and its sources by composing a comprehensive codification of the Roman laws and
legal literature. He employed a legal scholar, Tribonian, to organise the codification
of Roman law. In its final form the codification consisted of four parts, together
known as the Corpus Iuris Civilis. The four parts are:
i. The Codex: a collection of imperial legislation known as the Constitutiones
529AD...
ii. The Digests or Pandectae: contains the fragments or extracts from writings
of Roman jurists. It was divided into tiltels, eg Marriage, Sale. Extracts or
fragments from the works of various writers are grouped under appropriate
headings so as to give a complete picture of the law on that particular topic.
Justinian ordered changes to be made tot he jurists’ text where necessary so
as to reflect the law of his time. The changes are called interpolations...
Digest promulgated in 533AD...
iii. The Institutiones: promulgated in 533AD. Was an introductory Textbook for
students. The compilation of this work was based on the Institutiones of
Gaius.
iv. The Novellae (Novels): this is a collection of new laws made after
codification...
b. The significance of Justinian’s codification lies in that it offered and offers a
complete survey of Roman Law which was particularly useful when Roman law was
received into Western Europe from the 12th Century onwards. The codification has
been criticised on the basis that it was hastily compiled and is a vast and unshapely
compilation of Roman private law. However, this body of legal compilation has
historically had an impact on the development of modern legal thought. It can be
said that the history of Roman Law, ins o far as it was the law of Rome, had run its
course with Justinian’s codification; but this codification enabled Roman law and
legal science to become an independent intellectual heritage of mankind ius
communes – an intellectual force which was no longer the law of one nation or even
one empire.” [Makamure 1999]
4. The Corpus Iuris Civilis became the bedrock on which Roman law was to survive and ultimately
conquer Europe through it the world. Before we look at how this process occurred important to
analyse how one legal system influences or is received into another.
2
Mckenzie, Studies in Roman Law, p23 as quoted in Makamure K [1999]
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5. “...the mere existence of a well developed legal system does not mean that it will be
received or incorporated into another legal system merely by virtue of its work. Historical
experience demonstrates otherwise and indicates that there are certain basic laws
governing the adoption of the principles of one legal system by another. Various forms may
be observable historically, namely: Imposition; Assimilation; Infiltration; Reception and
Transplantation.
6. Imposition:
This is whereby a legal system is imposed by a conqueror over a vanquished people or
nation. Thus Roman Dutch law was imposed on this country after its conquest by the British
imperialists based in South Africa. Napoleon imposed his Napoleonic Code on the European
countries conquered by France including Holland. Under this form the foreign legal system is
imposed by the conqueror without any regard to its merits or even desirability.
7. Assimilation
Here the methods or rules of a foreign legal system are, as it were, freely borrowed by
another legal system in order to supplement gaps in the development of its own legal
techniques and methods. This is, for example when a rule or a legal technique in French or
American law is assimilated into Swedish or Italian law. Assimilation normally does not lead
to a qualitative change in the nature of the legal system and structure of the assimilating
system. It normally occurs where the two legal systemsin question share a common
ideological affinnity / same material base in relation to level of development of productive
forces and relations of production.
8. Infiltration
This is similar to assimilation but a lower scale of incorporation characterised by ad hoc,
haphazard and isolated incorporation of the principles, rules and techniques of a foreign law
system by another. The incorporation here does not result in qualitative transformation of
the receiving legal system to create a new and higher legal system.
9. Legal transplantation
This is the phenomenon whereby the statute of one country is copied and adopted from one
country to another. This occurs in two situations, namely:
a. Where two legal systems based on the same ideological system update their laws by
copying each other’s statutes in the deficient areas.
b. Where there exists a neo-colonial relationship between two countries and the neo-
colony copies the laws of its former colonial masters because it has no independent
thought or initiative, eg former colonies coping British or French laws.
10. Reception
In the narrow sense this is used to describe the unique phenomenon in Europe during the
13th, 14th and 15th centuries AD when the law of Rome was resurrected and applied as living
law, by the feudal states of Europe. Like assimilation, reception is characterised by the
voluntary incorporation of rules and principles on a fairly large scale basis from one legal
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system to another. During this Reception phenomenon in Europe the methods, the
principles and in some cases the rules of Roman law were utilised to develop existing pre-
scientific European customary legal systems. Unlike general assimilation, Reception leads to
a qualitatively new legal system as compared to the pre-existing system.
14. Thus Roman law did not disappear or go into oblivion during the Dark Ages but survived
infiltrating into the barbarian customary laws, which were predominant. But it degenerated
and declined --- we call this process the barbarisation of Roman law.
a. It was inevitable that Roman law so degenerated. There was no developed state
and institutions and trained scholars with a knowledge of Roman law to allow its
widespread assimilation in the Dark Ages. The economis of these small kingdoms
were largely subsistent with huge decline in trade and manufacturing which had
been the material basis on which Roman law had developed.
The Glossators
i. These are named after their use of e Gloss Method of studying e IurisCivilis wc involved:
a. Writing of short comments on e texts, passage by passage, in marginal glosses
b. Extraction of legal principles underlying the decisions on wc they commented by interpreting each
of e several passages by collecting parallel passages from or parts of e Corpus Iuris and by seeking to
harmonise wat appeared as contradictory statements. On e basis of e explanations reachd they thn
proceeded to do e SUMMAE, i.e a more comprehensive statement of e system or parts of it, and this
was done to e titles of e Digest or e Code. They also made “Distinctiones” where there were
explanations of legal concepts attained by analysing a general concept into its sub-categories and
then proceding to evermore subtle definitions until al e implications of e concept had been
developed.
ii. The Glossators did not treat e Corpus Iuris Civilis from a historical perspective and studied e law of
Justinian as if it was e real law of their time. Yet the real and actual law in force at the time was a
mixture of often degenerated Roman and Lombard institutions. There was also e Cannon Law, i.e.
the law of e Catholic Church wc was essentially Roman. There was also a rich new layer of statutory
law growing in many Italian cities.
iii.Despite their weaknesses, a century and a half of Glossatorial work enabled the achievement for e
first time in Western Europe of a thorough familiarity with the whole of Justnian’s codification
achievements. Their work laid e ground for a theoretical understanding of e Corpus Iuris Civilis and
for e practical assimilation of e legal ideas.
The Commentators
ii. Glossatorism or e school of Glossators lost its leading position by e middle of
e 13th century after e main achievements of e school had been stated in an
encyclopaedic compilation of e glosses by one scholar, Accursus, titled e
Gloss Ordinarie.
iii. Anor practice – oriented school took over e work of e Glossators and raised
e study of Roman law to a new level. The school of Post-Glossators or
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Commentators, relied on e methods and achievements of e Glossators bt
approached their task from a more practical point of view.
iv. Their method was to write treatises or commentaries on specific topics,
using not only the Corpus Iuris Civilis bt also sources from e Classical periods.
In doing so they combined or assimilated Roman with e Law Merchant of
Italian cities; with Canon Law; feudal or Seigneurial Law – that is the rules
regulating the relationships between feudal lords and peasants and also
incorporated win it e old customary laws; and Royal legislation – that is the
King’s laws made by e modernising monarchs of Europe at this time.
v. Through e above they managed to adapt principles of Roman law to e actual
needs of their time. They gave e contemporary law a scientific basis through
e use of theoretical concepts derived from Roman law. For example, they
are credited w having founded e science of commercial law
16. The above two conditions provided for the assimilation of Roman law into western Europe
from the 13th century AD onwards. The reception was made possible by the advanced nature
of e Roman legal system compared w e customary law. Its rules and methods easily met e
needs of e new conditions of life in Europe. The assimilation may be divided into two phases
--- Early reception, where there was a broad reception / assimilation of Roman laws and
techniques and is associated with the works of the Glossators and Reception in complex...
the wholesome assimilation of Roman law with Germanic customary laws and others to
create new legal systems, such as that resulting in the formation of Roman Dutch law.
17. Early reception. This is associated with e period of e Glossators [and Commentators???].
When foreign students from the glossatorial schools like Bologna, Pavia and Ravenna had
qualified as Doctors or Masters, they carried back to their home countries all over Europe
the new legal gospel and spread it either as judicial and administrative functionaries in the
public services of the kingdoms or in the new universities wc rapidly sprang into being in
most European nation states.
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Netherlands and resulted in a new qualitative phenomena, Roman-Dutch
law. We look at how this process occurred in greater detail below.
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a. codification of law
25. There were instructions by the Burgundian dukes for use of “written laws” i.e. Roman law
and Canon Law in some areas of the law and in areas not covered by Royal Statutes. Further
there was an order for the homologation of customary laws, i.e. an instruction that all provincial
customary laws be reduced into writing and for confirmation of this [by High Court???].
ii. The above led to two processes. Firstly the strengthening of some customary laws. Especially
in areas of intestate succession and the law of persons, where the established Germanic customs
were not easily set aside; secondly entrenchment of Roman law principles, especially in areas
like contract law, delict and property. This led to the hybrid legal system.
a. economic factors
25. From the early 16th century AD there was an acceleration of the new mode of production
that was becoming prevalent in the various Dutch provinces, merchantile capitalism. This
rapid economic growth was centred around the growing towns and international trade. This
increasingly led to a national as opposed to a localised economy: “An agrarian economy had
given way to a rapidly developing commercial one” leading to a national economy rather
than a series of local ones, with trade playing a central role.
26. Growth of national and international trade brought “new and complex legal situations to the
fore.” Local laws were no systematic or uniform or developed enough to cope with the
situation. In Germany this led to the bringing in of lawyers to deal with the problem an din
turn these relied on written law (i.e. Roman Law as glossed by the Glossators and modied
and adapted by the Commnetators) to fill in the gaps or lacunae in the laws governing trade
relationships in both the various kingdoms in Germany and the Netherlands. Thus Roman
law was assimilated at a much larger scale than in the period of the early reception.
c. Political
28. A growing national economy was reflected in the growth of a national political authority or
state by the end of the 16th century AD into the 17th century AD which greatly facilitated the
emergence of the new legal system. In 1579 was the formation of the Republic of the United
Provinces or the Dutch Republic by the seven Netherland provinces which had seceded from
the Spanish empire following an 80 years war with peace confirmed in the Peace of
Westphalia (1648).
29. Under the new Republic each province sent representatives to the States General, wc
became the highest political authority over the whole of the Republic with Holland the most
powerful or important of the provinces.
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30. The new Republic was in fact one of the first, if not first fully bourgeois nation state to
emerge in Europe in which the bourgeoise had overthrown the feudal kingdoms and
assumed ful and unrivaled political, social and economic power to become the new ruling
class. Under such enabling environment, the new hybrid legal system greatly expanded and
grew under the eye of many great jurists including: Hugo Grotius; Jon Voet etc. In the 17th
century AD this Dutch Republic fully based on the new capitalist mode of production
emerged to become the most prosperous and powerful state in Europe and the world... not
only economically but in law .. RD, art Vincent van Gogh etc
31. In its far flung colonies across the world, including the Cape of Good Hope in what is now
known as South Africa, it imposed its new legal system....
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