The paradox of Roman-Dutch law in Holland.

Abstract

The term Roman-Dutch law was first used by the Dutch jurist Simon van Leeuwen, but was not current in his time or province. The nomenclature was revived after the annexation of Natalia by the British empire in 1845 and became associated with the South African legal system during the twentieth century. This paper explores why the terminology “Roman-Dutch” is not appropriate to the jurisprudence of the Dutch republic. This republic owed her existence to the resistance of the provinces in the Low Countries, to the new age and new republic emerging from the Middle Ages, which the Hapsburg monarchy attempted to introduce in these regions. The Dutch aristocracy, the wealthy urban bourgeoisie of Holland as well as the working classes clung to the medieval status quo in terms of which they continued to govern their prosperous towns and provinces retaining their identities. This resistance gave birth to an innovative paradigm of constitutional law, but continued the medieval legal pluralism. Both were reactions against the constitutional theories derived from Roman law by the absolute monarchies of the developing national states and the concomitant drive to legal unification on the basis of Roman law. In consequence, the jurisprudence of Holland rowed upstream against the tide of the times, which can de deduced from the academic lectures delivered at the university of Leiden by Dionysius van der Keessel on the eve of the incorporation of the Dutch state into the French empire of Napoleon. This paper attempts to establish the links and conflicts between the various forces in politics and socio-economics at the fault zones between communitarianism and individualism, parochialism and globalisation avant la lettre and unification against pluralism.