Common Law and A Free Society

Written by: Norman Davis A simple definition of the Roman-Dutch common law is that law that was “borne of a union of Roman law with the customary law of Holland… a process which was well on the way by the 15th century”. This definition gives...

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Written by: Norman Davis

A simple definition of the Roman-Dutch common law is that law that was “borne of a union of Roman law with the customary law of Holland… a process which was well on the way by the 15th century”. This definition gives the impression that there were only two sources of the law but, in fact, there were many sources used and available to Roman-Dutch legal writers.

At the time (i.e. from the 15th to the 18th century) there were no national boundaries in Europe as there are today, and the cross-fertilization on philosophic and legal matters permeated throughout Europe. French and German writers, in particular, contributed to the body of law to become known as ‘Roman-Dutch law’ and in so doing, introduced French and German concepts to the law.

Historical background to the Dutch Republic and Roman-Dutch law

The Netherlands, as we know it today, came into existence at the end of the Thirty Years War by the conclusion of the Treaty of Westphalia in October 1648.

Technically speaking, Roman-Dutch law was the law of the Province of Holland. Each of the provinces of the Netherlands had its own law. However, there was a very close connection between each of these legal systems and indeed with other systems throughout Europe. Roman law had a major impact on all the Continental legal systems while English law (but not Scottish law) on the other hand went its own way and was largely influenced by ecclesiastical considerations.

What made Roman-Dutch law exceptional was that writers and scholars used the Roman law as a basis, but adapted it logically and extended it creatively, using what were known as “natural law” precepts. As Roman law was a logical and systematic law in its own right (given the environment in which it was created), the result was a system of law which was unfettered by technicalities and at the time, just. There was no need, as was the case with English law, to create a parallel but separate body of law called “equity” to lessen the harshness of the “formal” law.

The Roman law had been passed down during the ages, even through the Middle Ages, primarily by legal writers who had reproduced it in the form of “glosses” on the Roman law. These writers were known (appropriately) as the “Glossators”. They were followed by an Italian group of lawyers known as the “post-Glossators”.

Hugo de Groot

The major writer of Roman-Dutch law was Hugo de Groot (who, as was customary at that time, latinised his name to ‘Grotius’). He is recognised as one of the world’s greatest lawyers and has had a major impact not only on South African law, but other systems of law, especially American law. To this day, his works are quoted throughout the world in various matters, but especially in the field of public international law.

A child prodigy, he entered university at Leiden at the age of 11, and published his first work at the age of 15. He completed his academic training at the University of Orleans, where he obtained a doctoral degree in law at the age of 16 and was admitted as an advocate at the Hague in the same year. He held certain political posts and wrote a number of important legal books, as well as theological treatises.

Tragically, he became involved in a theological controversy which led to his being imprisoned and sentenced to life.

While in prison, from 1619 to 1621, he wrote his famous Inleiding tot de Hollandsche Rechtsgeleertheyd which is regarded as the basic work to this day in Roman-Dutch law. He escaped from prison in one of the boxes sent to him by his wife for delivery of his books to prison and fled to Paris. He was made an ambassador for France to Sweden and it was there that he completed his most famous work, De Jure Belli ac Pacis, which constitutes one of the most famous legal works in history. This work is a monument to what is known as ‘natural law’ and dealt in the main with public international law. Grotius based his writings on the “Law of Nature”. This, in effect, based the law on the “inborn reason” of man who relies on his senses as to what is rational and further what is generally regarded as just and unjust.

Grotius pointed out that the will of a ruler can be dictated by his utility or his view of convention or his own personal convenience. Obviously, this can vary from community to community. Natural law, however, is immutable and internal. He also observed that “national” law may render some promises unenforceable or may require other technical formalities. Natural law renders every serious promise binding on a subject. In this way, Grotius contributed greatly to the secularization of law.

The medieval and Roman background

Although Roman law was renowned for its logic and its protection of the rights of ownership, it must not be forgotten that Roman emperors regarded themselves as gods. In other words, they thought they had a divine right to rule and was a consequence, their authority could not be questioned or reasoned with at all.

The concept of the “Divine Right of Kings” adopted by kings in Europe during the Middle Ages followed on the deification accorded to Roman emperors.

The writers of the time, including the Roman-Dutch lawyers, divorced themselves from the concept of the “Divine Right of Kings” and started looking to reason and logic as the basis of law.

Hugo de Groot used as the basis of his reasoning the concept of the implied “social contract” between citizens combining to form a representative government. Authority, therefore, did not vest in the king but in the persons who gave up their power to a ruler who was chosen to represent the citizens of the state. This naturalist or rationalist approach stated that reason was the basis for binding men together in law and not the whim of the monarch. The law, therefore, was only used to protect the “social contract” of citizens and could not impede on matters which fell outside the scope of the social contract.

It must be mentioned that a number of English philosophers such as Locke and Blackstone had a considerable influence at the time. Locke expounded (along the same lines as Hugo de Groot) a natural rights theory in respect of ownership of property. The premise of his approach was that it was in the order of nature for man to survive. To do this, man had to utilize the means of production available to him, which obviously meant, at its most primary level, using his labour on and with land along with such other means of production, such as tools fashioned by him. Thus, once man combined his labour with land, a system of appropriation of land came into being. These propositions were stated by him thus:

“Though the earth and all inferior creatures be common to all man, yet every man has ‘property’ in his own ‘person’. This nobody has any right to but himself. The ‘labour’ of his body and the ‘work’ of his hand, we may say, are properly his. Whatsoever, then, he removes out of the state that Nature hath provided and left in it, he has mixed his labour with it, and joined to it something that is his own, and thereby makes it his property. It being by him removed from the common state Nature placed it in, it had by his this labour something annexed to it that excludes the common right of other men.”

In Locke’s view, one of the central purposes of the formation of a political society was the protection of this newly appropriated property. He believed that a violation of the social compact took place when these acquired property rights were tampered with by the State. Blackstone was even more empathic about the need to protect private property, writing as follows:

“So great moreover is the regard of the law for private property, that it would not authorise the least violation of it; no, not even the general good of the whole community;… The public good is nothing more essentially interested than in the protection of every individual’s private rights, as modelled by the municipal law.”

The protection of private property expounded by these philosophers, especially Hugo de Groot, formed an important impetus to the emerging theory that the State existed to serve the individual and that citizens were free to pursue their own interests.

Another point emphasized by the Roman-Dutch writers was a clear distinction between Church and State, something that was extremely blurred in the Dark Ages. This concept was incorporated by the founding fathers of the American Constitution, who as strong Protestants (mostly Puritans and Quakers) based this guarantee in the Constitution on their proper understanding of Scripture and the philosophical fact that positive morality should not interfere with a properly constituted body of law.

The philosophical basis of common law

The common thread which runs through all the writings of the Roman-Dutch law can be summarised as follows:

  • a. The individual stands at the centre of the law and society. Groups of persons such as nations, churches or otherwise, do not come into reckoning, except through voluntary consent as in a partnership or a company.
  • b. The individual is always under a duty to conduct himself in a prudent and reasonable manner (the so-called “diligens paterfamilias“). Should he be negligent, he is responsible for his actions or omissions. He cannot be forced to do something against his will unless he fully consents to it.
  • c. A body of law should be systematic, reasonable, equitable and logical to all its citizens. This was certainly not the case with other systems of law. As an example, one only has to look at South Africa’s tax law to see a body of law which is fragmented, illogical and has been built up inconsistently as a result of pressures brought by lobbyists.
  • d. There is a clear distinction between positive morality (which included individuals’ religious views) and the law. The law, as perceived by the Roman-Dutch writers, did not enforce positive morality but only what was known as negative morality. In other words, the law did not try to make society good, but rather to deter wrongful behaviour.
  • e. Ownership of property was central to a systematic body of law and was not diluted as in other systems.


Common law South Africa has now largely been overwritten by statute law.

The question we should consider is whether it would be viable in South Africa to entrench the common law as a whole in a Bill of Rights with a proviso that it cannot be abrogated or overridden unless this amendment improves the law in a libertarian sense. This is not as far-fetched as it first seems.

A helpful treatise in this respect is a book by a Harvard law professor, Richard Epstein (Takings: Private Property and the Power of Eminent Domain), who argues persuasively that that part of the American Fifth Amendment dealing with private property, if it had been properly adopted and applied by the Supreme Courts of America, would have led to a fully-fledged libertarian society in the United States, without any further reference to any other part of the American Constitution than the [illegible] Amendment.

The Fifth Amendment of the United States Constitution provides, inter alia, that “no person shall… be deprived of life, liberty or property without due process of law; nor shall private property be undertaken for public use without just compensation”. This provision of the Fifth Amendment was inspired and modelled on the writings of Grotius. Later, the 14th Amendment was added to the American Constitution. It provides that:

“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law, nor deny any person within its jurisdiction the equal protection of the laws.”

This amendment was enacted in 1868 following the American Civil War. It was subsequently held in 1897 by the Supreme Court that this ‘due process clause’ prohibited states from taking property unless they complied with the just compensation standard of the Fifth Amendment.

The formal and somewhat rigid enforcement of the Fifth Amendment was thereafter a subject of a wider ambit and a more equitable application when the doctrine of due process found its way into the law of expropriation in America (i.e. eminent domain).

Epstein points out that the Supreme Court has never applied the Fifth Amendment, as it is only applied in the main to immovable property. Had the Fifth Amendment been applied properly, i.e. say to taxation, the Government would have been prohibited in effect from redistributing wealth and if it wanted to, it would pay full compensation for this. The United States Supreme Court had not applied the Fifth Amendment properly outside expropriation matters per se, especially since World War II.

Thus, for instance, in Usery v Turner-Elkhorn Mining Co, even retrospective legislation imposing a levy on mining companies in respect of a disease compensation programme was upheld as constitutional, as according to the Supreme Court, it only concerned “economic issues” and the legislation was simply adjusting “the benefits and burdens” of society.

If a clause properly drafted along the lines of the Fifth Amendment could be incorporated in a future Bill of Rights in South Africa, a libertarian society would automatically ensue.

Disclaimer: This article originally appeared in The Individualist of TBD 1988 (Vol. 13 No. 1). The Individualist was last published by the Libertarian Society of South Africa.

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