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WHAT IS ROMAN-DUTCH LAW

Law based on that of the province of Holland
from the middle of the 15th through the beginning
of the 19th centuries.

R. W. Lee, An Introduction to Roman-Dutch Law, 4th ed.
(Oxford, Clarendon Press, 1946), 2.
ROMAN-DUTCH LAW
A Brief introduction to a mixed system.
EXTENT

Where is Roman-Dutch law used today?






South Africa
Zimbabwe
Namibia
Botswana
Lesotho
Swaziland

Beat Lenel, “The History of South African Law and its
Roman-Dutch Roots.” (2002.)
http://www.lenel.ch/docs/history-of-sa-law-en.pdf (February
20, 2013.) 1
SOME IMPORTANT HISTORY



Formation of the modern Netherlands with the
Union of Utrecht – 1579.
Foundation of the Dutch East-India Company –
1602
First Dutch outpost at the Cape of Good Hope in
what is today South Africa – 1652

Batavian Republic – 1795

Domination and rule by France – 1806-1815.
THREE IMPORTANT DATES IN ROMANDUTCH LEGAL HISTORY:

Roman influence over Dutch law began in Roman
times, but its official “reception” in Germany and
the Netherlands was in 1475.


Lenel, p. 4
 The
Kingdom of the Netherlands adopted a
Civil Code based on the French model in
1809.

 (2nd)
1806.

http://en.wikipedia.org/wiki/Roman_Dutch_law
British conquest of South Africa –
Lee, p. 9

Thus, the new Code Civil-based legal system of
the Netherlands was never implemented in
South Africa (or in the other Dutch possessions
which passed to British control at around the
same time.)
At the same time, it was the settled principle of
English law that newly acquired colonies
retained their old law (as long as it was not
repealed.)

Lee, p. 9
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MIXED SYSTEM

Thus, Roman-Dutch law is interesting to lawyers
from civil law systems because it is a kind of
“living fossil.”


From the English system, the Roman-Dutch
systems adopted adversarial procedure and the
doctrine of stare decisis.
A large amount of commercial and other
substantive law was also adopted from England.
Coelacanth by Alberto Fernandez Fernandez. Retrieved from
http://commons.wikimedia.org/wiki/File:Latimeria_Chalumnae_-_Coelacanth__NHMW.jpg
HOW LAWYERS TRADITIONALLY FOUND
THE LAW:

In order to find out what the law is, a lawyer first
checked to see if there was any general law of the
land or local statute on the issue. If not, then
Roman law was consulted.

Currently, in South Africa, these are the sources
of law:
Constitution
Statutes
 Precedents
 Roman-Dutch Common Law
 Roman Law



Lee, p. 6.
PRECEDENTS
STATUTES


Statutes have been part of Roman-Dutch law
since the beginning, but unlike most civil law
countries there is little codification.

The idea of precedent and stare decisis was
introduced to Roman-Dutch law by the English.
Statutes are written in areas of the law where
they are necessary. In other areas, Roman-Dutch
common law controls.
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ROMAN-DUTCH COMMON LAW

The sources of this law are law treatises written from
the 16th – 19th centuries.

Lee, p. 14

Some of the most important are:
Johannes Voet, Commentarius ad Pandectas
Hugo de Groot, Inleydinge tot de Hollandsche
Rechtsgelertheid
 Simon van Leeuwen, Het Roomsch-Hollandsch
Recht
 Johannes van der Linden, Rechtsgeleerd
Practicaal en Koopmans Handboek



ROMAN LAW

As a last resort, “South African courts still apply
-- probably as the last courts on earth -- the
Corpus Iuris Civilis and the works the Glossators
and Postglossators.”


MODERN ACADEMIC WORKS

Lenel, p. 10
CUSTOMARY LAW
And, as in other African countries, customary
and Islamic law may be applied for members of
certain communities.
Lenel, p. 10
As in common law countries like England and the
US, the works of modern legal scholars have little
legal authority.

Lenel, p. 11
APARTHEID

“was a system of racial segregation enforced
through legislation by the National Party (NP)
governments, who were the ruling party from
1948 to 1994, of South Africa, under which the
rights of the majority black inhabitants of South
Africa were curtailed and white supremacy and
Afrikaner minority rule was maintained.”

http://en.wikipedia.org/wiki/Apartheid_in_South_Africa
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THE FOLLOWING ARE A FEW OF THE MORE
IMPORTANT APARTHEID LAWS:

The Population Registration Act No 30 of 1950


This act “required people to be identified and
registered from birth as one of four distinct racial
groups: White, Coloured, Bantu (Black African), and
other. It was one of the 'pillars' of Apartheid. Race
was reflected in the individual's Identity Number.”

Immorality Act

http://www.cortland.edu/cgis/suzman/apartheid.html
“On the grounds of the Immorality Act, the police
tracked down racially mixed couples suspected of
being in relationships. Homes were invaded, and
mixed couples caught in bed were arrested.”


Group areas act

“In practice this meant that all white, black, coloured
and Asian people in South Africa would have to live
in group areas allocated to members of their groups.”

Bantu Self-Government Act of 1950

This established the bantustans (homelands) for the
black population based upon their tribal groupings.



http://www.cortland.edu/cgis/suzman/apartheid.html
http://www.cortland.edu/cgis/suzman/apartheid.html
http://www.cortland.edu/cgis/suzman/apartheid.html
The Pass Laws Act of 1952

This required black South Africans over the age of 16
to carry a pass book at all times. This book was used
by employers and authorities to control the
movements of blacks.

http://www.cortland.edu/cgis/suzman/apartheid.html
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THE

CONSTITUTION
After the end of the Apartheid regime, a new
modern Constitution was adopted (1996.)
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