THEORY AND PRACTICE IN THE NETHERLANDS

The Low Countries in the fifteenth century formed part of the domin­ions of the dukes of Burgundy and in the sixteenth century fell to Charles V, who was duke of Burgundy and king of Spain, as well as emperor.

Even before formal independence, the first university of the northern provinces was set up in 1575 at Leyden in Holland, to offer a Protestant counterweight to Louvain in the Catholic southern Netherlands. There, as in Spain itself, the Inquisition had increasingly repressed the dissemi­nation of any ideas which seemed to threaten the traditional order of things. From the beginning the faculty of law at Leyden was given an important place in the university. At the formal opening procession, the Holy Scripture and Four Evangelists were followed by four Roman jurists: Julian, Papinian, Ulpian and Tribonian.

The main provinces other than Holland, were not to be outdone and universities with law faculties were founded at Franeker in Friesland in 1585, Groningen in 1614, Utrecht in 1636 and Hardewijk in Gelderland in 1648. The law of the United Provinces was largely created by the Dutch professors, particularly those of Leyden, and by the judges of the High Courts of the provinces, particularly the Hooge Raad of Holland. Through their synthesis of legal science and legal practice, the Netherlands led the rest of Europe in the seventeenth century in the way that France had set the pace in the sixteenth.

In its early years Leyden was able to attract the French Protestant humanist Hugo Donellus, after his flight from France. He taught there from 1579 to 1587 and was succeeded by Everard Bronchorst, who had received his training in German universities. He set the tone which was to characterise the law of the Dutch universities. This was a combina­tion of what became known as the ‘elegant' and the ‘forensic' approaches to law, in effect a moderate amalgam of the mosgallicus with the mos italicus. Students were to be prepared for court practice but they should first be inducted into the principles of all law.

Bronchorst stressed the importance for the student of law, at the beginning of his studies, to learn the basic principles of law which were to be found in the last title of the Digest and in the Institutes. For him the regulae of Digest 50.17 were the first principles of law, equivalent to the maxims of the dialecticians, the problemata of geometricians and the aphorisms of medical men. ‘They cover in a brief compendium all the matters which are discussed at length in the vast ocean of the law and provide a general index of universal law.' Court advocacy was taught through disputationes, in which students could refer to the commentators of the Bartolist tradition.

The greatest product of the Leyden law faculty was Hugo Grotius (1583-1645), a child prodigy who entered the faculty at the age of eleven. Although not taught directly by Donellus, he was certainly influenced by his teaching. He completed his studies at Orleans, where he took his doc­torate. As a result of his involvement in a theological dispute with polit­ical implications, he was imprisoned and used his enforced leisure to write, in Dutch, an Introduction to the jurisprudence of Holland (Inleidinge tot de Hollandsche rechtsgeleerdheit), finally published in 1631. In this work Grotius treated the law of Holland as a system of its own. It was no longer just an appendix of the civil law but an amalgam of Germanic custom and Roman law and subject to legislation, which was not to be accorded the narrow interpretation of a local statutum.

In 1625 he published in Paris his most famous work, De iure belli ac pacis. In this treatise, Grotius, following ideas adumbrated by Suarez and Gentili, based international law firmly on a natural law, derived from the nature of man, which claimed to be independent of the civil law. The basic principles of this law were axiomatic and self-evident. Grotius said that, in developing his ideas on law, he had abstracted his mind from every particular fact, in the same way that mathematicians consider their figures abstracted from bodies (prolegomena, 58). The rules of natural law could be worked out in two ways, a priori, by logical deduction from the basic principles, or a posteriori, by observation of rules which were in practice common to the laws of all civilised peoples. For if a rule was everywhere accepted as law, that was good evidence of its origin in the natural reason that was shared by all mankind. Grotius preferred the latter method and illustrated the precepts of natural law with a wealth of examples. What natural reason prescribed often turned out to be what was set out or what could be inferred from Justinian's texts.

Grotius's treatise bristles with references to civil law texts, adduced to support propositions which claimed to be natural law. Grotius stressed that this law was not dictated by God, for, as he put it, it would exist even if we were to accept that there is no God or that human affairs were of no concern to Him (prolegomena. 11 and 1.1.10.5.). Thus Roman notions of occupation of things belonging to no one were adapted to the con­quest of new territories and Roman contract law to international trea­ties.

Grotius's contemporary Arnold Vinnius studied at Leyden and remained there as professor. It was he who established Dutch legal science as a mixture of Roman, customary and natural law elements. Vinnius made his name with his comprehensive commentary on Justinian's Institutes, which claimed to be both academic and forensic. In this work, which appeared in 1642, he wove together the ideas of the leading French humanists, such as Cujacius and Hotman, with those of the glossators and Bartolists and the more recent exponents of German court practice, such as Mynsinger. Furthermore, although his work pur­ported to be devoted to an exposition of Justinian's Institutes, it referred to Dutch legal practice, cited from the collection of decisions of the Grand Council of Malines (in the southern Netherlands). Vinnius also made use both of Grotius's Inleidinge and his De iure belli ac pacis. The encyclopedic nature of Vinnius's book, cast in the familiar institutional scheme, made it a work of reference until the end of the eighteenth century. Vinnius also published a shorter version, or Notae, intended exclusively for students, that aimed to explain the Institutes, according to the best humanist ideas, but with little reference to practice. A hundred years later the short Notes were recommended by Lord Mansfield in England as the best introduction to Roman law for a gen­tleman and were read by John Adams, later the second President of the United States, when a student at Harvard College.

Vinnius was an eclectic writer, who sought to present Roman civil law as a source of the basic notions of universal law derived from nature, on the one hand, and of legal practice, on the other hand. Other writers concentrated their attention more specifically on the law of the United Provinces and marked the extent to which it differed from the pure civil law.

So far as private law was concerned, the work of the seventeenth­century Dutch school was synthesised in magisterial fashion byJohannes Voet, another Leyden professor, in his Commentarius ad Pandectas, pub­lished in two folio volumes in 1698 and 1704. Although he follows the order of the Digest titles, Voet arranged the material within each title quite differently. First the Roman law is explained and then the modern law, with full citation of the relevant authorities. Natural law, largely taken from Grotius, is mentioned but has only a modest place.

Perhaps the most innovative of the Roman-Dutch jurists was Ulrich Huber, who belonged not to Holland but to Friesland, where Roman civil law was received more than in other provinces. In his De iure civita­tis lib. III, published in 1672, he built up, largely from Roman 1 ncilc-rials. a law of the state, which he called the ‘new discipline of a universal public law'. In his Praelecliones iuris civilis, published between 1678 and 1690, he created, again out of Roman materials, the modern discipline of conflicts of laws, for dealing with cases involving different private laws. In his Heedendaegse Rechtsgeleertheyd, of 1698, building on Grotius's Inleidinge, but with reference to Frisian practice, he gave an account of current law and with a wealth of detail set the law firmly in its social setting.

The widespread respect shown throughout Europe for the Dutch masters is attested by the large numbers of foreign editions of their main works in the later seventeenth and eighteenth centuries.

By the end of the seventeenth century Roman civil law had per­meated the Protestant culture of northern Europe as much as it had pre­viously formed part of Catholic Europe. This is shown by the proliferation of short summaries designed to popularise the essential aspects of the subject, especially the Institutes, and to help students to memorise them; some were expressed in aphorisms and even in verse. The immensity of the Digest demanded a different approach and efforts were made to harness the power of pictorial images to spread a knowl­edge of the range of matters covered in it. Johannes Buno's Memoriale iuris civilis romani, published in Hamburg in 1673, is the most ambitious and illustrates with detailed engravings the subjects of all the books of the Digest. The following year Buno supplemented it with a similar volume for the Code, Novels and Librifeudorum. In Friesland, where there was a tradition of pictorial tile making, Sybrant Feytema produced in the 1680s a series of tiles illustrating various Digest titles, each tile prom­inently marked with the number of the relevant title. As with Bruno's engravings, the tiles make no effort to portray the legal material in its original Roman setting but place it squarely in the familiar world of the late seventeenth century, the clothes of the participants, their weapons and their houses being obviously from northern Europe.

FURTHER READING

Works cited at the end of chapter 3; A. Watson, The Matting of the Civil daw, Cambridge, Mass. 1981; H. Coing, Europäisches Privatrecht, 1500-1800, Munich ⁱ9⁸5.

4.1. Bartolo da Sassoferrato, Studi e documenti per il VI Centenario, Milan 1962; P. Stein, ‘Bartolus, the Conflict of Laws and the Roman law’, in Multum non Multa: Festschrift K. Lipstein, ed. P Feuerstein and C. Parry, Heidelberg 1980 (=Character 83); G. Vismara, ‘La revoca del testamento giurato nella dottrina da Guglielmo Durante a Bartolo da Sassoferrato’, in Etudes du droit canonique dediees a G. LeBras, Paris 1965,11.1007.

4.2. D. Maffei, Gli inizi dell’umanesimo giuridico, Milan 1956.

4.3. P Stein, ‘Legal humanism and legal science’, TvR, 54 (1986), 297 (= Character, 91); D. Osler, ‘Budaeus and Roman law’, lus Commune 13 (1985), 195; S. Rowan, Ulrich fasius. A Jurist in the German Renaissance, lus Commune Sonderhefte 31, Frankfurt 1987; J.-L. Ferrary, ‘Aymar Du Rivail et ses “Historiae iuris civilis et pontificii libri quinque” ’, Bulletin de la Societe Nationale des Antiquaires de France (1992), 116; D. R. Kelley, Foundations of Modern Historical Scholarship: Language, Law and History in the French Renaissance, New York 1970; D. R. Kelley, Francois Hotman, Princeton, NJ. 1972.

4.4. J. P Dawson, ‘The codification of the French customs’, Michigan Law Review, 38 (1940), 78o;J. Q Whitman, ‘The Seigneurs descend to the rank of creditors’, TaleJorrnul of fna andGe Humamtia, 6 (1994), 249.

4.5. P Stein, ‘Donellus and the origins of the modern civil law’, in Melauges F Wubbe, Fribourg 1993, 439; D. van der Merwe, ‘Ramus, mental habits and legal science’, in Essays on Ge HicHy of Low, ed. D. P Visser, Cape Town 1989, 32.

4.6. D. Panizza, Alberico Gentili, giurista ideologo nell’ Inghilterra elisabettiana, Padua i9⁸i.

4.7. P. Stein, ‘The influence of Roman law on the law of Scotland’, Juridical Review (1963), 205 (=Character, 319); The Civilian Tradition and Scots Law, ed. D. L. Carey Millar and R. Zimmermann, Berlin 1997; R. Zimmermann, ‘Der europäische Character des englischen Rechts’, Zeitschrift fur Europäisches Privatrecht, i (1993), 4; R. H. Helmholz, Roman Canon Law in Reformation Eugraud. Cambridge i990.

4.8. J. P Dawson, The Oracear of the LaL, ch. 3, Ann Arbor, Mich. 1968; Mi Kunkel, ‘The Reception of Roman law in Germany: an interpretation’, in Pre­Reformation Germany, ed. G. Strauss, London 1972; G. Strauss, Law, Resistance and the State: The Opposition to Roman Law in Reformatim Germany, Princeton 1986.

4.9. Judicial Reeaocls, Llw Reporte and Ae GiowG of Caso Hm, cd. J. H. Baker, Berlin 1989; P Stein, ‘Civil Law Reports and the case of San Marino’, in Rlomisches Recht in der europäischen Tradition: Symposion F Wieacker, ed. O. Behrends, M. Diesselhorst and Mi E. Voss, Ebelsbach 1985, 323 (= Character, 115).

4.10. La seconda Scolastica nella formazione deldCrCttrprivato moderno, ed. P Grossi (Per la storia del pensiero giuridico moderno), Florence 1973; A. P D’Entreves, Natural Law: An Introduction to Legal Philosophy, 2nd edn, London 1970.

4.11. K.-H. Ziegler, Volkerrechtsgeschichte, Munich 1994.

4.12. Das romische-hollandische Recht: Fortschritte des Civilrechts im 17. und 18. Jahrhundert, ed. R. Feenstra and R. Zimmermann, Berlin 1992; R. Feenstra and C. J. D. Waal, Seventeenth-century Leiden Law Professors, Amsterdam 1975; G. C. J. J. Van den Bergh, The Life and Work of Gerard Noodt (1647-1725): Dutch Legal Scholarship between Humanism and Enlightenment, Oxford, 1988; J. E. Spruit, Le droit romain, sujet d'une decoration murale du 7 siecle, Arnhem 1989.