Article by Reinhard Zimmermann
By the summer of 1574, the Duke of Alba had nearly managed to crush the rebellion of the Netherlands against the Spanish oppression, which had broken out six years earlier. Only parts of Holland and Zeeland were still in the hands of the rebels under the leadership of William “the Silent” of Nassau and Orange. Naarden and Haarlem had already been conquered, and the key issue now was whether the strategically important town of Leyden would also fall. The siege began in May 1574 and lasted for months. By the end of September the situation within the town had become desperate, but the inhabitants of Leyden managed to hold the town until they were rescued by water. Their compatriots had cut through the dykes of Maas and Ijsel, and a stiff north easterly wind in combination with a spring tide managed to put the land under water. During the night of October 3, the Spanish army was forced to lift the siege.
Such heroic resistance, of course, deserved to be rewarded, and William of Orange determined that this reward should consist of the creation of a university, the first one in the Northern Netherlands. The proposal was submitted to the Provincial States at the end of December 1574 and met with an enthusiastic response. Thus, by February 8, 1575, the new university was ready to be opened. An allegorical procession provided the highlight of the celebration. Justitia was prominently featured, for she rode immediately behind a carriage containing the Sacra Scriptura; and she was followed, characteristically, by some of the greatest Roman lawyers: Salvius Julianus, Papinian, Ulpian, and Tribonian.
The founding of the University of Leyden was an event of cardinal importance in the history of Roman-Dutch law and thus, at least indirectly, for the European ius commune. It marked the beginning of the Golden Age of (Roman-) Dutch jurisprudence in the course of which writers and practitioners such as Grotius, Van Bynkershoek, Vinnius, Voet, and Ulrich Huber were destined to take the torch of European legal science first lit in Italy and later handed over to the French humanists. This Article is an attempt to assess the contribution of seventeenth and eighteenth century Dutch legal science to the European ius commune. To what extent, if any, did the proponents of this school break new ground in the exposition of the Roman-Canon common law? How much did they contribute to the reformulation of old doctrines and to the shaping of new ones? What role did they assign to the Roman law library? What other sources did they use, which authors did they quote, and to which influences were they thus exposed? These are some of the questions that this Article considers. The scope of this investigation is confined to one specific area of the substantive private law; a field, however, that can be regarded as especially significant to our Western legal tradition: the law of contract and quasi-contract. In the words of J.C. Smith:
Primitive and archaic law is a law of empirically known, psychologically sensed wrongs rather than theoretically conceived rights and duties . . . . These legal systems were therefore static and past oriented, since they dealt basically with wrongs and compensation, that is, the restitution as far as possible of a previously existing situation which had been wrongfully disturbed. Classical Roman and modern law, on the other hand, is future oriented and a law of movement concerned with the creation, transfer, and extinction of legal relations and prediction of its future movement.
It was largely the law of contract that gave the civilian legal tradition its peculiarly dynamic character.
About the Author
Reinhard Zimmermann. Reinhard Zimmermann, Dr. iur. (Hamburg), LL.D. (Capetown), Professor of Private Law, Roman Law, and Comparative Legal History, Faculty of Law, University of Regensburg, Germany.
Citation
66 Tul. L. Rev. 1685 (1992)