De Wetenschap Van Het Oudvaderlands Privaatrecht En Het Tijdschrift Voor Rechtsgeschiedenis
Authors: Jansen C.J.H. , Zwalve W.J. 
Published: April 2008

The history of Dutch private law, or - as it was called - 'ancient national law' ('oud vaderlands recht'), which was taught at Dutch universities since the days of S.J. Fockema Andreae sr (1844-1921), suffered from at least three serious disadvantages, viz. the absence of anything like a "Dutch nation" before the creation of the modern centralized state in 1798, the absence of anything like a "national law", least of all private law, before the enactment of the first Dutch civil code of 1809 and the inability to come to terms with the reception of Roman law, which was regarded as a cataclysmic event brought about by the "unhistoric" attitude of sixteenth-century Dutch lawyers (S.J. Fockema Andreae jr in 1950). Hence the emphasis on pre-reception medieval law and public rather than private law. On the other hand, the Dutch civilians were interested in "classical" Roman law rather than the history of private law after the reception of Roman law in the Netherlands. To most of them Roman law had become distorted and disfigured in the process. So the study of the history of substantive private law of the era between the reception of Roman law and the enactment of the first civil code was rather unattractive to both groups of legal historians. To the "germanists" national law was tainted with Roman law, whereas to the civilians, the "romanists", Roman law had become contaminated by the mould of ancient customary and statutory law and the expediency of legal practitioners. So, in spite of the fact that the very same era is commonly regarded as the heyday of Dutch legal science (Voetius, Grotius, Vinnius), no comprehensive introduction to what is also commonly regarded as a most important Dutch contribution to European legal culture, viz. "Roman-Dutch" law, was ever written in the Netherlands. Students had to be referred to R.W. Lee's Introduction to Roman-Dutch Law, an English textbook! The volumes of the Tijdschrift voor Rechtsgeschiedenis bear witness to this sorry state of affairs. There are many learned and solid articles on subjects of classical Roman law and French customary law, but relatively very few on subjects of substantive Dutch private law and even less on subjects of "Roman-Dutch" law. There is, of course, an explanation for this. The "germanists" had (and have) their own magazine, the "Verslagen en Mededeelingen" ("Reports and Proceedings"), published by de "Vereniging tot uitgaaf der bronnen van het oud-vaderlands recht" (the "Society for the edition of the sources of ancient national law"), founded in 1879, whereas there is also, as far as "Roman-Dutch" law is concerned, the "Tydskrif vir Hedendaagse Romeins-Hollandse Reg", published in South Africa. There is another consideration to be taken into account too: much of what has been written on the history of substantive Dutch private law in the last 75 years was not, or at least not primarily, written with a public consisting of legal historians in mind, but in view of practical questions of and developments in modern Dutch private law intended to be read by legal practitioners, rather than the professional historians. That is why so much which would have been of interest to professional historians at large, was published in Dutch and in Dutch legal journals. So, in the final analysis, it is the international profile and the emphasis on history that have prevented the publication of more articles on the history of substantive Dutch private law in the volumes of the Tijdschrift voor Rechtsgeschiedenis.