The rediscovery of Justinian’s compilation of Roman law by Italian jurists in the twelfth century launched a new legal scholarship in Europe. This new scholarship flourished and evolved into what was known as the ius commune, a shared legal tradition that combined Roman law and canon law into a common system of legal thought, inflected in each particular country or region
Filippo Decio, or Decius, (1454-1536/7), was the most prominent and among the most prolific of the last generation of commentators following Bartolus
The new focus of the humanist tradition would be to disentangle the Roman texts from the glosses and commentaries to find applicable rules
An important reference for future generations of legal scholars in the Netherlands and throughout Europe
Luca Everardi, President of the Supreme Court of Holland, Zeeland, and Friesland
- Loci argumentorum legales, originally published in Lyon in 1516 and reprinted in numerous European editions throughout the sixteenth and seventeenth centuries, was innovative in its systematic analysis of the different kinds of legal argument, as well as its use of Roman law to frame and delineate arguments drawn from non-Roman law
Bartolus (1313/4-57) was an Italian law professor and one of the most prominent continental jurists of the Middle Ages
He wrote exhaustive commentaries on all parts of the Corpus Iuris civilis with an eminently practical approach
- His methods were illustrative of a school known as the Commentators, whose work began in Italy and spread to France.
The Hague: Abrahamum de Hondt, 1698-1704
Voet is known for his masterful and meticulously compiled collection of commentaries on Justinian’s Digesta.
- In his commentaries, he brought together and systemized the work of earlier generations, and his seventeenth century contemporaries, into a large two-volume work.
Ulrik Huber (1636-94) was the most famous jurist of the northern province of Friesland.
A member of the Frisian court from 1679-82, Huber, along with the jurist Johannes van den Sande, came to represent a Roman-Frisian legal tradition known for its strict adherence to Roman law.
Consultatien 1645-85
Most notable are the opinions of Hugo de Grotius, which reflect the work of the early Roman-Dutch jurists to synthesize the texts of the Digest, Dutch customary law, and decisions of foreign courts into a cohesive body of legal opinion.
Reminds us of the relevance of early modern Roman-Dutch authorities to the contemporary study of South African law
This facsimile reproduction and translation by South African legal scholar M.L. Hewett is another example of the continued relevance of these works in modern legal theory and practice
Joost de Damhouder’s 1554 manual of criminal law and procedure
It was well-known throughout Europe in Latin, French, and German translations.
- The work was almost wholly plagiarized from a c.1508 work by the Flemish jurist Filips Wielant.
The Corpus Iuris civilis, or Body of Civil Law, compiled by Justinian between 529 and 34 C.E., became the foundational source for Roman law in the Western tradition.
It consisted of three parts: the Digest, (Digesta or Pandectae), the Code (Codex), and the Institutes (Institutiones).
In modern Sri Lanka, which became an independent state in 1948 after more than two centuries of Dutch and then British colonial rule, private and family law is still governed primarily by Roman-Dutch law.
English common law dominates commercial and public law, in addition to the administration of justice.
The Dutch system exported to its colonies was dominated by the Roman-Dutch tradition
It continues to be a source of law to the present day in South Africa, Indonesia, Zimbabwe, Namibia, Swaziland, and Lesotho
- The persistence in these countries of a civil law tradition based directly upon classical Roman law is a fascinating chapter in the evolution of modern law that preserves a link to the practice of law in ancient Rome.
Samuel von Pufendorf, “Elementa jurisprudentiae universalis” (1661)
A system of universal law based on the ideas of Grotius and Hobbes
- Influenced humanistic studies in the Netherlands and throughout Europe during the seventeenth and eighteenth centuries
The systematic thoroughness of Voet’s Commentarius ad Pandectas
which compiled classical and modern commentary pertaining to each title of Justinian’s Digest- have made him the Roman-Dutch jurist most highly regarded and frequently consulted by the modern South African and Sri Lankan courts.
The epicenter of early modern Dutch legal studies was at Leiden, where Everard van Bronkhorst succeeded the great French humanist Donellus in 1587
In his teachings, he emphasized the Institutes and the last title of the Digest where these principles were found.
Hugo de Groot
In On War and Peace, he argues that freedom depends on the rule of law, “the law of nations,” as developed by the collective will of sovereign states
- While Grotius based his conception of international law upon a natural law separate from the civil law, his argumentation relies heavily on civil law texts, and the natural law he outlines might be seen as an extension of Roman civil law.
The Institutes was originally created as a textbook for students of law, but was given new life by the French humanists who found that the work lent itself to their desire to recast civil law in a more systematic form.
The most influential French humanist to study the institutes was Hugues Doneau, or Donellus, (1527-1591).
Groenewegen Edition of Hugo Grotius’s Inleydinge
The original edition was disbound and rebound-ended, with blank pages for notes
- Added Johanness Voet’s Observationes, originally dictated by Voet and written down by his students, and presumably by the elder Fremery
Hugo Grotius wrote the Inleyding, or Introduction to the Jurisprudence of Holland, first published in 1631
In it, he divided Dutch law, as the Institutes did Roman law, into the legal categories of persons, things, and obligations
- This 1767 edition is annotated by Willem Schorer, who followed with the 1777 Rechtsgeleerde observation and three other volumes of commentary
Tractatus de legibus abrogatis et inusitatis
First published in 1649, this treatise was a systematic examination of the Corpus Iuris civilis to determine which laws had fallen out of use or had been abrogated by Dutch legal custom and practice.
The Roman-Dutch tradition has remained a source of law in these former Dutch colonies to present day, long after it was superseded in the Netherlands itself by the 1809 codification of Dutch law based on the French Civil Code.
Seventeenth century scholar SimonVan Leeuwen (1625/26-82) is perhaps most famous for coining the phrase “Roman-Dutch law” in his 1664 work, Het Roomsch-Hollandsch Recht. In Censura forensis, he attempted to systematize the entire civil law encompassing Roman, Dutch, and foreign law.
Antonius Matthaeus (1644-1727)
Roman-Dutch jurist of the “Elegant School” of the late seventeenth and eighteenth centuries
- Best known for his work on Roman criminal law, De criminibus
- Arguments for the distinction between criminal, or wrongful acts serious enough to require criminal rather than civil action, and delicta, which can rise to a criminal or civil action
- Navigated between the Roman law of delict which tended to emphasize the civil action as a remedy and the custom in later European law to treat wrongful acts, such as robberies and thefts, primarily as crimes
