Study Unit ': o#an 3utch law /efore codification

 +n the li!ht of the doinant position of the province of olland in the >etherlands# the *utch $ast +ndia applied )oan-*utch laws in its colonies or that the adinistration of the (ape applied the law of olland" )oan-*utch law becae applicable in the (ape throu!h custo" This law which was later influenced by $n!lish law# eventually becae 7nown as the basic (oon law of South 'frica

=hat is o#an-3utch lawC

The >arrow interpretation of )oan-*utch law

 )oan-*utch law ay be understood as the law of the province of olland as it existed in the 1^th and 1A^th (

 +t consists of )oan law received in the province of olland# aended by custoary law and le!islation placaeten. of olland as they existed in the 1^th and 1A^th (

The broad interpretation of )oan- *utch law

  Gay be interpreted as includin! the law of all  *utch provinces as well as eleents pf the $uropean ius coune

The view of the South 'frican 'ppellate *ivision

 /ntil 1=AA# there was conflict of opinion- the S(' settled this old dispute in *u :lessis v Strauss by decidin! in favour of the narrow interpretation

The relevance of the ius coune and the law of the other *utch provinces

 $uropean +us coune% (anon law# )oan law# ;eranic custoary law

 +n the *u :lessis case the '* ephasi@ed the historical context of the rules of )oan *utch law-)oan *utch law is re!arded as an iportant branch of the ius coune

 The foral source of our coon law is the law of the province of olland as it existed in the 1^th and 1A^th (

 +n practice# we ust distin!uish between the search for authority for the law in !eneral and the

search for specific le!al rules" hen we loo7 at the law in !eneral ters# we note that there is unity in the law of western $urope# but when we loo7 at specific rules# we ay find inor differences in the various systes which belon! to the $uropean ius coune

 e will loo7 at the coon law of western $urope before codification when authority is sou!ht with re!ard to !eneral principles# ideas and doctrines of )oan *utch law& the law of the province of

olland when authority is sou!ht for specific rules of )oan-*utch law

 The '* does not hesitate to adapt )oan-*utch le!al rules which have fallen out of step with the needs of present day S'

 4ecause of the spirit pf universalis that has existed in $urope for the past 00 years# )oan-*utch law and the $uropean ius coune have influenced one another- as a result it is easy for S'

lawyers schooled on )oan-*utch law# to consult the le!al systes of the $uropean ius coune in his search for a solution to a new le!al proble

The Sources of o#an-3utch law

 The old writers# statuteJ le!islation# collections of court decisions# collections of opinions and custo

The old writers

 Mstudy the inforation about the wor7s of the old writers to!ether with an evaluation of their authority in present day le!al practicesM

 Facts that deterine the iportance of an old writer%

o 1hich province did the writer represent I The authoritative writers on )oan-*utch law are 1stly those who wrote on the law of the province of olland" Those who did not write on the laws of t he province of olland# in so far as they bear witness to the reception phenoenon in estern

$urope and therefore to the western $urope ius coune which was received into the

>etherlands

o The period in which the writer lived % )oan-*utch law existed as an independent le!al syste in

olland for alost 3 (- the B!olden a!e of *utch ,urisprudenceC too7 place in the 1^th ("

)oan-*utch law consists of the law of olland of the 1^th and 1A^th (- so you would first consult the writers of this period

o The type of work written by the author % (oentaries on )oan-*utch law in its entirety t he +nleidin!e of ;rotius.& (oentaries on )oan law 5ohannes Voet (oentarius ad

:andectas.& coentaries on existin! coentaries ;roenwe!en and Schorer. and treatises on aspects of )oan-*utch law *e lure 4elli as :acis by ;ortius.

o The influence of these writers on (outh )frican legal practice% 5ohannes Voet 8 the reason for his popularity is that in his (oentarius he covered a very wide field of the law and wrote

authoritatively on it" To South 'frican ,ud!es he personified the B!olden a!eC of *utch

 ,urisprudence" :ercival ;ane<s $n!lish translation of the (oentarius was copleted in the 1=0<s and incorporates extensive notes by the translator" This ensured Voets continued

popularity as a source of reference# other popular source of reference% ;rotius# Leeuwen# Van

*er essel# ;roenwe!en and 4i,n7ershoe7"

o +n soe instances# the influence a certain author has a South 'frican le!al practice was not always due to the Euality of his wor7 alone# but rather to the practical considerations# such as the availability and accessibility of his wor7

 :roinent 1^th ( writers on the law of olland

ugo 3e Groot Grotius; - 16^th N 1^th (

 ' ,urist# theolo!ian# a classicist# a historian and a poet

2 best 7nown wor7s% +nleidin!e and the *e 5ure 4elli ac :acis

+nleidin!e% written by ;rotius while he was iprisoned# with few boo7s he often had to rely on his

eory# as a result there are certain shortcoin!s in this wor7" The notes by ;roenewe!en#

followed by Schorer# reedied any of these shortcoin!s" +t was a treatise about the law of

olland and was written in *utch" ;rotius too7 )oan law as it was applied in olland& with the addition of indi!enous *utch law- ;ortius was the 1^st person to see the law of olland as an

independent syste and to describe it as such" +nleidin!e can be re!arded as the 1^st conscious description of )oan-*utch law

The influence of the +nleidin!e on the law of the >etherlands in the 1^th and 1A^th ( 8 it served as the foundation for any treatises and also as a basis for lectures

;rotius reali@ed that publishin! scholarly wor7s in *utch would not a7e uch of an ipact outside a *utch spea7in! area- 1=^th ( 5ohannes van der Linden copleted a Latin translation

*e ,ure 4elli ac :acis% appeared in :aris in 162" as the first coprehensive treatise ever

published on public international law- it deals with international law# as well as the law of nature and le!al philosophy" +t !ives us a better understandin! of the principles set out in the +nleidin!e

Si#on +an Groenewegen- 1^th (

)eceived his trainin! at the /niversity of Leyden# where he practiced as an advocate 2 iportant wor7s% >otes on ;rotiuss +nleidin!e and Tractatus de Le!ibus 'bro!atis

>otes on ;rotius<s +nleidin!e% ;rotius wrote +nleidin!e under difficult circustances# and as a result he Euoted hardly any authorities in support of his stateents- ;roenewe!en reedied this defect by supplyin! the necessary notes to the +nleidin!e

Tractatus% is an indispensable and unsurpassable authority on the )oan-*utch law of the 1^th (" it indicated where the (orpus iuris (ivilis was still applicable- he too7 the institutes# the *i!est# the (odex# the >ovellae and the Libri Feudoru and showed which propositions were still valid and which had fallen into disuse" here the existin! law differed fro )oan law# he showed precisely where the difference lay" 's authorities he Euoted writers of the iddle '!es on )oan law" 'll the existin! le!al literature of the >etherlands was carefully cited in the Tractatus" ;roenewe!en

soeties disa!reed with ;rotius# and in ost cases preference should be !iven to ;roenewe!en<s version

Si#on +an Leeuwen-1^th (

 'ttended the /niversity of Leyden# becae an advocate first at The a!ue and then at Leyden"

4ecae *eputy )e!istrar of the Supree (ourt before his death

2 ost iportant wor7s% (ensura Forensis and et )oosch-ollansche )echt

et )oosch-ollansche )echt% provides a thorou!h review of )oan-*utch law# and in con,unction with the notes by *e7er# is a useful reference wor7" 'lthou!h broad in concept# it is soeties very superficial and without *e7ers notes loses uch of its value" +ts popularity in S' can be attributed to the fact that he wrote in *utch# which ade his wor7 ore accessible" e was the first writer to refer to the existin! *utch law as )oan-*utch law

5ohannes Voet- 1^th N 1A^th (

?vershadows his father# :aulus Voet" e was a professor of civil law at Leyden /niversity 2 best 7nown wor7s% (opendiu +uris and (oentarius ad :andectas

(oentarius% (oentary on the *i!est- in his coentary on the :andects 5ustinian<s *i!est.

Voet deals with )oan law to which he adds the existin! law of his tie" Voet<s approach to )oan law was uanistic# but he incorporated the law of his tie into )oan law" e drew on any authorities& he was failiar with everythin! ever written in the >etherlands on the law of the

>etherlands" This a7es Voet<s coentary an alost infallible !uide to the le!al literature of the

>etherlands of his tie" e paid re!ard to the achieveents of the iddle '!es# since it was the elaborations and restateents of )oan law by the edieval writers that had shaped the law that was valid in practice" Voet too7 what was !ood fro the huanists and fused it with the virtues of the 4artolists

is reputation was ainly due to the fact that he provided a coprehensive review of the whole field of )oan-*utch law" is writin! is usually easy to understand# since he states his propositions clearly and is very lo!ical in his reasonin!" is influence and fae were not restricted to his hoeland but extended throu!hout $urope" The $n!lish translation with annotations. of the (oentary by Sir :ercival ;ane was published in the 1=0<s

 :roinent 1^th ( writer on the law of Friesland Ulrich u/er- 1^th (

Gost faous wor7% :raelectiones 5uris (ivilis

:raelectiones% was based on the lectures he !ave to his students on the (orpus iuris (ivilis" ?ne section of this wor7 is called the *e (onflictu Le!u and is a coentary based on the *i!est- it deals with the conflict of laws

 :roinent 1^th ( writers on the law of the /trecht Antonius ,atthaeus - 1^th (

e becae faous throu!hout $urope for his wor7 on criinal law 7nown as the *e criinibus#

which is still consulted today Translated into $n!lish in the 1=A0<s. he also wrote iportant wor7s on private law

)aulus Voet- 1^th (

Father of 5ohannes Voet# :aulus was a professor of law"

4est 7nown wor7% *e Statutis- an iportant wor7 on private international law conflict of laws. the

$n!lish translation was published in 200

 :roinent 1A^th ( writers on the law of >etherlands Voet

"ornelis +an *in7ershoe7- 1^th N 1A^th (

4i,n7ershoe7 !raduated as a doctor of 5urisprudence and established hiself as an advocate at The

a!ue" e later becae a eber of the oo!e )aad van olland en Deeland the supree

(ouncil. of which he was president until he died" is ethod was huanistic ost faous eber of the *utch uanist School# alon!side Schultin!.

2 ost iportant wor7s% Huestiones +uris :ublici and ?bservationes Tuultuarie

Huaestiones% deals with the public international law# it earned hi an international reputation"

)e!arded as one of the classics in this field# to!ether with ;rotius<s *e 5ure 4elli ac :acis

?bservationes% 4i,n7ershoe7 devoted a lot of tie to collectin! data on the prevailin! law" This collection was ade for his own use and publication was forbidden in his will" Gore than 200 years after his death# 4i,n7ershoe7 ?bservationes was published for the 1^st tie# in 9 parts between 1=26 and 1=62

 'on! his wor7 was a collection of decisions handed down by the Supree (ouncil durin! his ter

of office# the so-called ?bservationes" This wor7 is a very >4 source of law# because reason where not !iven for the ,ud!ents handed down in the courts of his day" +t was a source of hi!h authority showin! how the courts arrived at their decisions" 4ecause it was only published in the 20^th ( it had no influence on the developent of )oan- *utch law in the >etherlands" 4i,n7ershoe7<s

?bservationes was inherited by his Son-in-law# who was also a eber of the supree (ouncil" e followed 4i,n7ershoe7<s exaple# and between the their coplete ,oint collection covers over 000 decisions of the Supree (ouncil over a period of A9 years

3ionysius +an der essel 8 1A^th N 1=^th ( Gost outstandin! *utch 5urist of the late 1A^th (

Gost iportant wor7% Theses Selectae 5uris olland et

Theses Selectae% based on the +nleidin!e by ;rotius- essel attepted to provide a true picture of the law at this tie" The wor7 also contains abundant references to earlier writers and decisions" +t is of particular interest to S' because it was t he last outstandin! wor7 in the field of )oan-*utch law before S' was separated fro the >etherlands" The Theses Selectae evolved fro essel lectures on the +nleidin!e# he also dealt with those aspects of the +nleidin!e which had chan!ed since its publication# or in respect of which there was no a!reeent" 'lthou!h actual lectures on ;rotius<s +nleidin!e were never published# there are several anuscripts of the lectures at various /niversities-the collection of lectures (oprises  Volues

5ohannes +an der Linden- 1A^th N 1=^th (

e was a prolific writer# particularly on the law of procedure- of little iportance today 4est 7nown wor7 was% The )echts!eleerd# :racticaal en oopans andboe7

oopans andboe7% is no ore than an eleentary !uide- its !reatest si!nificance is that it was the last treatise on )oan-*utch law it existed in olland before the codification of t he law of

>etherlands" Van der Linden does however& deserve praise for an addition to Voet<s (oentarius"

e also translated a nuber of Treatises by the French 5urist :othier- best 7nown is that on the law of ?bli!ations

 The *utch uanist

School- 'lthou!h the ,urists fro the northern parts of the >etherlands were influenced by the huanists#

ost of the writers entioned so far devoted ost of their attention to the existin! law" hen they wrote on )oan law fro a huanist perspective# they did not fail to refer to the existin! law as well#

even if these references were erely short additions

*utch huanists who were outstandin! )oanists% Gatthaeus ++# uber# Voet and 4i,n7ershoe7

*utch uanists who were exclusive )oanists% their wor7 contains no si!nificant insi!ht into the existin! law of their tie" They were successors to the old French huanist School" >oodt and Schultin!

 *utch uanists%

 The *utch huanists wrote about )oan law in a huanistic way- they studied classical )oan law and were critical of the )oan law of the Giddle '!es- )oan law as !lossed by the !lossators and coented on by the (oentators

 The *utch huanists always referred to existin! law and too7 into consideration the law of their own tie" They too7 historical developents into account

 French uanists%

 Studied only pure )oan law and not the )oan law of the Giddle '!es" They did not discuss the law of their tie

 They did not ta7e into account the developent of )oan law over the previous 1000 year# and thus i!nored historical developent

Statute law Le!islation.

(ollections of (ourt *ecisions

 (ae fro the 3 superior courts% ;root )aad van Gechelen& of van olland# Deeland en est-Friesland and the oo!e )aad van olland en Deeland  the supree (ouncil# a court of 'ppeal for the of.

 The courts were not bound by previous decision because the principle of Stare decisis was not applied in the1th and 1A^th ( *utch courts- these decisions erely had persuasive value for subseEuent *utch courts

 $"!" 4i,n7ershoe7<s ?bservationes (ollection of ?pinions

 The collections of ?pinions of )oan-*utch ,urists were never bindin! on the courts but they en,oyed !reat persuasive authority and# as in )oan law# played an iportant part in the developent of the law

 The collections of ?pinions serve as !ood authority on the law of the tie# because they provide opinions on the law as it was actually viewed by the people who practiced it

 *urin! the 1A^th (# a re!ister appeared of the ost iportant collections of opinions and decisions 7nown as the >assau la Lec7<s )e!ister"

(usto

 +t was throu!h custo that )oan law found its way into olland- 4efore this custo had been the

ost iportant source of the native law of the >etherlands" Guch of this law reained unwritten until the custos were reduced to writin! and approved

Study Unit 8: The 3e+elo$#ent of the South African legal syste# /efore the