Legal history of the Netherlands
A uniform legal history of the Netherlands can be traced back to around the 18th century, when the various legal systems that had previously existed were increasingly standardized.
Roman-Dutch law
Until the 18th century, the legal fragmentation feature was the rights in the seventeen provinces of the Habsburg Netherlands , by the Burgundian inheritance to the Empire of Charles V included: In each province primarily was their own common law , the costumen , costuijmen and usanties , a subsidiary that rezipierte common law as Roman-Dutch law. The most important summary of this legal status can be found in Hugo Grotius ' Inleidinge tot de Hollandsche rechts-releerdheid (1631).
There were thus three different sources of law in parallel: customary law, common law and the newly developed natural law . When the question of legal standardization and codification arose in the 18th century, violent controversies arose between the camps - especially between common law and natural law - as to which of these rights came into question. Since in 1798 the Republic of the Seven United Provinces became part of the Batavian Republic , which was dependent on France , the dispute had no practical consequences.
Codification movement
According to Article 28 of the Constitution of the Batavian Republic , a civil law had to be codified until 1800. Under the direction of the natural law expert Hendrik Constantijn Cras , a commission was set up which, although its content was based on natural law, took over the systematics of Grotius' introduction . The high scientific standard meant that until 1804 only a penal code and fragments of a code had been drawn up. The criticism of the National High Court eventually led to the dissolution of the commission; Roman-Dutch law remained in force.
Shortly after the beginning of his reign, Napoleon's brother Ludwig , who had been King of the Kingdom of Holland since 1806 , gave the lawyer Joannes van der Linden the task of attempting a new civil code. Napoleon took violent action against this independence and wrote on October 31, 1806: "I wish that you order that the Code Napoléon be the law of your peoples from next January 1st ." (» Je désirerais que vous ordonnassiez qu'à dater du 1 er janvier prochain le code Napoléon sera la loi de vos peuples «). Van der Linden's work was completed in 1808. However, political pressure from France prevented its immediate implementation. Only after a revision by a commission did the Wetboek Napoleon ingerigt voor het Koningrijk Holland come into force in the same year .
Just two years later, the Kingdom of Holland was united with France and a decree of March 11, 1811 determined the validity of French laws in the former kingdom. The French laws continued to apply after William I came to power, but a commission was soon commissioned to draw up a civil code - now under the direction of Joan Melchior Kempers . At the time of the presentation of the results, however, the work of the Kemper Commission was no longer politically enforceable: As a result of the Congress of Vienna , the formerly Austrian, southern Netherlands (now Belgium) were now part of the new Kingdom of the Netherlands and did not accept the draft. A commission had to be formed again, this time chaired by the Liège judge Pierre Thomas Nicolaï . This, too, was overtaken by historical events: the southern Netherlands founded an independent state of Belgium in 1830 and politically, a Belgian-influenced civil code could not be enforced in the northern Netherlands. So they revised the Nicolaïschen draft, which finally became law in 1838 as Burgerlijk Wetboek and was to determine the history of Dutch civil law for over 150 years.
The Burgerlijk Wetboek was largely a translation of the French Civil Code. Nevertheless, it also had its own style in essential basic decisions. The transfer of ownership of movable property is characteristic of this: while the causal principle applied under French law , the Netherlands opted for the Roman-Dutch abstraction principle , which requires handover in addition to the obligation. In tort law, the famous general clause of French tort law was adopted , but it was interpreted in such a way that, similar to today's German tort law, it required the violation of an absolute law.
20th century
The criticism of the Burgerlijk Wetboek was never completely silent and intensified in the 20th century. To mark its centenary, two of the most important law teachers of the time expressed themselves differently in a commemorative book: Paul Scholten began his article with: “Ons Burgerlijk Wetboek is een rustig bezit”, Eduard Maurits Meijers advocated a separate Dutch code of law, “waarin ook een klein volk groot kan zijn ”. However, the German occupation in 1940 prevented further steps. After the end of the Second World War, Meijers was commissioned to develop a new Burgerlijk Wetboek . His draft was divided into nine books. He presented the first four in April 1954. Since he died shortly afterwards, the further work was entrusted to many different legal scholars. The individual books came into force gradually over the course of the 20th century.
The 20th century saw numerous legislative projects, especially in administrative law: in 1994 a provincial law (Provinciewet) and a municipal law (Gemeentewet) came into force. Since 1994, the General Administrative Law (Algemene wet bestuursrecht) has been gradually introduced, which, in addition to general administrative law, also includes administrative procedures and administrative procedural law.
literature
- Robert Feenstra: To the reception in the Netherlands . In: Wolfgang Kunkel et al. (Ed.): L'Europa e il diritto romano. Studi in memoria di P. Koschaker . Giuffrè, Milan 1953, pp. 243-268.
- BHD Hernesdorf: Roman Law in the Netherlands . Giuffrè, Milan 1968.
- Randall Lesaffer: A Short Legal History of the Netherlands . In: HS Taekema (Ed.): Understanding Dutch Law . Boom Juridische Uitgevers, Den Haag 2004, pp. 31-58.
- Reinhard Zimmermann, Robert Feenstra (Hrsgg.): The Roman-Dutch law. Advances in Civil Law in the 17th and 18th Centuries . Duncker & Humblot, Berlin 1992.