6 - Codification in the Netherlands | Quizlet

What did the Dutch Republic look like (1579-1795)?

No unified state

End of Republic:
Charles V abdication in 1555 led to revolt in 1560s.
Eighty Years War began (1568-1648) and ENDED with Peace of Westphalia in 1648

Hostilities existed between various (now) provinces and their lord: King of Spain held various titles.

All happened from Burgundy --> Duke of Burgundy collected titles and eventually coming to HABSBURGS by marriage.

Who was the Duke of Guelders?

- Was able to maintain his independence from the Duke of Burgundy as Prince of the Empire --> controlled the Low Countries.

BUT Charles V wanted this power and so in 1543 the Duke of Guelders title fell to Charles V by marrying into dukedom of Burgundy.

What needed to happen after Charles V claimed the title of Duke of Guelders?

CLARIFY LEGAL STATUS OF HIS POSSESSIONS IN THE LOW COUNTRIES

--> To do so, passed the Burgundian Kreitz (1548):
= an imperial decree that all his possessions in the Low Countries be joined under the name of 'Burgundian Kreitz' and

DE JURE = be under the formal confederation of the Holy Roman Empire
DE FACTO = enjoy independence

--> Charles V wanted to govern the Low Countries as a collective, with Brussels as his seat.

What was the significance of the Burgundian Kreitz (1548)?

Lands which were previously 'nos pays de par deca' (our lands over yonder) became 'nos pays d'en bas' (our lands down there)

= Low Countries, including Belgium.

Since 1830 --> Northern part of Low Countries called the Netherlands.

How was Charles V a 'personal union'?

One person holding various titles in various countries

= Holy Roman Emperor, Duke of Burgundy and Guelders, Count of Holland.

Charles V's Homologation Order (1531)

= Order for customary laws applying in the Low Countries to be set down in writing and sent to Brussels for approval.


--> Aim was also to change law to be more in line with reasonableness and fairness

What right did Charles V reserve in his Homologation Order (1531)?

The right to ONLY tolerate customs IF he was AWARE of them and APPROVED them --> could also CHANGE them if necessary.

How was Charles V's Homologation Order (1531) received in the Low Countries?

Seen as a THREAT to Low Countries who wanted their OWN identity --> just as in France with Charles VII's Homologation Order (Ordinance of Montilz-de-Tours) there was a procrastination of recording customs and despatching them for approval.

The Low Countries thought that Charles V had no authority to do this --> when Charles V became their lord he took an OATH to NOT interfere with the laws of the region.

Therefore, Low Countries argued the right to refuse.


NL: Caused fear
Belgium: Did not cause much trouble
Friesland: Thought it would be practical to write down laws, easier to apply in cases.

Abdication of Charles V in 1555

After Charles V was gone, there were two reasons to revolt against the son of Charles V, Philip II:

1. SPANISH INQUISITION: gave Netherlands a reason to not like the King of Spain and want freedom of religion.

2. TAXES LEVIED: Dutch did not like these taxes, revolt against the lord therefore.

What was the Union of Utrecht (1579)?

- Treaty made by 7 of the Northern Netherlands to create a ONE-STANDING ARMY and unite provinces to get rid of the lord.

Treaty concluded by all 7 Northern Netherlands now.
Southern Netherlands = occupied by Spanish and could not join.

--> Countries still independent! It was a MILITARY ALLIANCE and to make treaties together.

Who was the most famous 'stadholder'?

WILLIAM OF ORANGE

--> a 'stadholder' was a person who governed territories in behalf of the lord.

--> After Charles V's abdication in 1555, William of Orange REMAINED stadholder, even during the reign of Philip II, but there was a conflict.

Explain the conflict between stadholder William of Orange and King Philip II

In 1580, William of Orange was OUTLAWED by Philip II.

--> Philip II called him the 'chief troublemaker of our state' and 'public plague of Christendom'.

Created a bounty for assassinating William of Orange: 25,000 golden crowns and elevations of ranks of nobility or pardon of crimes.

William of Orange assassinated in 1584.

Apology of William of Orange submitted to States-General in 1580 --> formally renounces oath of allegiance to Philip II and accuses him of bigamy, incest, adultery and murder of his own son and first wife.

When was the true nature of the Republic revealed?

Act of Abjuration (1581):
= Got RID of Philip II as their lord --> declared by 7 Northern Netherlands.

Note: Wilhelmus written BEFORE act of abjuration and murder of William of Orange

After the Act of Abjuration got rid of Philip II as their lord, what did the 7 Northern Netherlands have to do now?

Create a constitution

Union of Utrecht DID NOT cover a unification of law of the Dutch republic.

--> Republic of Seven United Netherlands consisted of 7 INDEPENDENT states AUTONOMOUS within their own borders.

Union only covered military alliance, one army, and to make treaties on behalf of the Dutch republic.

Although the Republic consisted of 7 sovereign states, it could in its EXTERNAL relations act as a single entity, due to:

1. States-General:
- Common popular assembly of signatories of Union of Utrecht (1579).
- Met in Binnenhof in the Hague
- States SUBMITTED part of their sovereignty here --> handling of external relations and defence.
- Members DID NOT vote as representatives of the people, but pursuant to instructions of that specific state.

2. Council of State:
- In charge of day-to-day administration of the Union of Utrecht (1579).

As an example of the sources of law in the Netherlands:

What 5 systems of law applied in Groningen?

1. Ommenlanden --> writing of customary law in 1550 + codification in 1601
2. Oldambt
3. Selwerd
4. Westerwolde --> own law
5. City (stad) --> own laws but never published.

What was the legal significance of a body of customary law reduced to writing by order of a government authority, such as the Ommenlander Landrecht or the Coutome de Paris?

Relieves the burden of having to PROVE THE EXISTENCE of the custom before court.
--> has a highly evidentiary function

What connected the various provinces of the Netherlands?

ROMAN LAW AS A SUBSIDIARY SOURCE

In Grotius' book 'Introduction to the Jurisprudence of County Holland' --> stated that it was customary to do so.

What law applied if one of the parties from a different state?

Private international law

Roman law in Universities

11th Century in Bologna --> 14th century in Germany (Heidelberg, Vienna).


16th century in the Netherlands:
- Leiden (1575)
- Franeker in Friesland (1585)
- Groningen (1614) and Utrecht (1636)
- Harderwijk (1648)

Local law NOT studied at university --> professors were picked and paid by students and local law would limit the pool of applicable students to only locals.

Roman law could be studied by anyone = international study, more profit for professors.

Could it be said that Roman law gave somewhat of unity to Dutch provinces before 1795?

YES --> all applied as subsidiary source + studied in universities throughout the country.

French troops crossing the River Lek (1795)

French General Dichegru conquered the Republic.

Holland had previously used the tactic of settling fields around them underwater, protecting them from outside attack, but waters froze.

French troops could cross the river Lek and occupied.

--> Stadholder fled to England, Prince William V leaves dutch soil as the last stadholder --> people revolted in 1787 but then the stadholder came back and asked for French help to establish democracy in the Netherlands.

Coup d'etat of 1798

Unitarians seized power and the Netherlands became a unitary state --> became known as the Batavian Republic.

Batavians were people of antiquity who revolted against the Romans = earned the name of the Republic.

What was the question that had to be answered after the establishment of the Batavian Republic?

Would the Batavian Republic be a unified or federal state?


--> In 1798 General Daendels settled this --> Batavian republic was a unified state --> decided in Constitution of 1798 + decided on one government in the Hague and a need for ONE unified law.

Cras (1798)

Commission set up to draft a codification for the Batavian Republic --> led by Hendrik Constantijn Cras --> professor of natural law from Amsterdam.

--> fell into trap of material completeness but then had a new goal = concise legislation.

What would be the basis for the 1798 codification?

Members of 12 different provinces each argued that THEIR system of law was superior and should be the basis + sources of law: Roman, customary, natural law.

Caused delays in drawing up proceedings.

Cras was in favour of taking Grotius' 'The Jurisprudence of County Holland' as the BASIS for codification.

Grotius' 'The Jurisprudence of County Holland' (1631)

Book written by Grotius --> sentenced to life imprisonment in Castle Loevensteyn after conflict with William of Orange.

Grotius was able to flee in 1621 in a chest of books --> for the rest of his life he had to live outside the Dutch Republic --> wrote in 1625 a book in Paris on war of law and peace.


--> Good for Dutch publishing houses that Grotius was outside the Republic because then they could publish without getting sued by Grotius --> could earn a lot of money .


Grotius' book ONLY deals with the customary and roman law of COUNTY Holland and not whole country --> ultimately decided that local customs could still be used as long as they do not conflict with codification.

Draft Introductory Title (1804)

Grotius book = used as a basis for a draft introductory title --> based on notions of natural law and gave definitions.

Title was broad --> questioned, for example, the influence of drunkenness on making (in)valid contracts.
Exception = men of the sea's contracts ALWAYS valid, whether drunk or not.

Codification by Cras never came about --> Napoleon's law applied until 1806.

Kingdom of Holland created (1806)

1806 treaty granted the Netherlands its first constitutional monarch = Napoleon's brother, Louis Bonaparte.

Louis sought to allow the Netherlands to retain the appearance of independence.

Louis was instructed by Napoleon to use the Code Civil --> and follow the interests of FRANCE and NOT the Netherlands.

Louis considered the interests of the Dutch and in 1807 ordered a committee to adapt the Code Civil for Dutch circumstances.

In 1809, the Napoleonic Code adapted for the Kingdom of the Netherlands came into force.

Used material which was Dutch in origin --> abolished Roman and indigenous customary law!!

BUT in 1810 Louis abdicated and Napoleon annexed the Kingdom of Holland.

In 1811, Napoleon passed an imperial decree that declared ALL FRENCH LAWS (in Code Civil) enforceable in the Netherlands as a province of the French Empire.
--> legally speaking, the Netherlands ceased to exist and rather became province of France governed by Napoleon.

Explosion in Leiden (1807)

- Erased part of the city
- Louis helped to extinguish the flames = won popularity of the people

Code Napoleon (1811-1838) in the Netherlands

- Napoleon introduced his civil code to become the new Civil Code of the Netherlands --> logical since 1811 the Netherlands was part of the French Empire.

- When Louis was in power, he forgot to change the structure of the courts --> every province has its own supreme court --> when Louis' adapted code was introduced in 1809, it was largely ignored by courts who used own local law and Roman law as subsidiary.

--> Napoleon understood that this had to be changed --> made that APPEAL PROCESS would bring a said case to CIVIL COURT IN PARIS --> gave the possibility to decide these cases based on the civil code.

Battle of Leipzig (1813)

Allied forces, now Germany, beat Napoleonic Army --> Napoleon banished to Pisa.

--> Topic dealt with in Congress of Vienna --> what to do with Europe after Napoleon had been beaten?

Solution = put together all of the Netherlands (North and South) including Luxembourg and Belgium = create the Kingdom of the Netherlands.

King who will govern = William I (son of last stadholder)

Coup d'etat of Oranges into monarchy (1813)

In Vienna, the Kingdom was enlarged and Southern half was added.

WHY? --> Backed by English who also wanted a bigger Kingdom since Prussia laid close by and English wanted Prussia away from canal.

The Belgians had already been, since 1804, part of France and had worked with the Code Civil longer. The Belgians therefore did not feel the need for a new codification as the Northern people did.

What decision was made to solve this?

King appointed a commission made up of three Southern jurists, including Liège judge Pierre Thomas Nicolaï.

--> Reworked Code Civil, including a certain amount of North and South customary law.

Created the Old Burgelijk Wetboek (1838)

BUT Belgian revolution --> did not get force of law there.
After a few changes, OBW gained force of law in the Netherlands.

Differentiate between the OBW (1838-1992) and Code Civil (1811-1838)

OBW had similarities with Code Civil BUT drew a contrast between rights in rem and rights in personam.

Meijers' development of New Dutch Code

1947: Professor Meijers, from Leiden and of Jewish origin, worked in a concentration camp on the plan for the RECODIFICATION OF CIVIL LAW --> a move which was backed by the Lower House of Parliament.


1953: Debate in Parliament on the NEED for recodification --> problem was that applicable law was no longer foreseeable, developed too much outside OBW = new civil code needed.
Could NOT just rely on updates by case law --> ok for judge to interpret but there should be an updated codification.



1954: Meijers died and committee was made and work continued
Drafting of the code took long because of LACK OF STRONG POLITICAL WILL to back up.

1992: New code drafted

Name the Dutch codifications of private law

1. Napoleonic Code adapted for the Kingdom of the Netherlands by Louis Bonaparte (1809-1811)
2. Napoleonic Code Civil (1811-1838)
3. Old Dutch Civil Code (1838-1992)
4. New Dutch Civil Code (1992-present)

What is the connection between the Lex Rhodia de iactu and the question of law that had to be decided in the Friesland case? Mention similiarities and differences.

Similarity:
Sacrificing property for the public good
Right to compensation
State of distress


Difference:
Speaks only of the goods overboard at sea
Lex Rhodia de iactu was about maritime law was applied on sea whereas this interpretation was fitted for property sacrificed on land.

Explain the legal meaning of the maxim Quidquid non agnoscit glossa, non agnoscit curia?

This means that what the gloss does not recognise (as law), the court will also not recognise. This is evident of the influence of the gloss.

Which method of interpretation is applied by the Court in Lieuwes' case?

The Court makes use of the systematic interpretation, using the Lex Rhodia from Roman law and applying this to the case at hand.

--> The systematic method of interpretation often uses reasoning by analogy, where for example of the Lex Rhodia is applied to the case to fit the legal context of Lieuwes.

Why is it possible to speak of Roman-Frisian law in the time before the codifications were made?

In Friesland, the primary source of law was customary law.
The subsidiary source of law was Roman law.


However, there were customs that incorporated both laws and thus it was customary to use Roman law. In this way, it was Roman-Frisian law.