oa Fundamina : A Journal of Legal History - Maria Mouton and Roman law at the Cape of Good Hope in 1714

Volume 15, Issue 1
  • ISSN : 1021-545X
  • E-ISSN: 2411-7870



Roman law had a strong influence on the legal system that evolved in the Netherlands in the sixteenth and seventeenth centuries. The works of Grotius, Vinnius, Groenewegen van der Made, Leeuwen, Voet, Huber, and others, brought about a flexible and comprehensive system of law that was widely respected in Europe at the time. Roman law formed the principal part of the generally received and for that reason was thought to merit particular respect in disputed areas, although its use in the Netherlands was complicated by the fact that the provinces were sovereign states and therefore differed in the degree to which they made use of Roman law. Visagie describes the application of Roman law in the Netherlands as complementary to existing bodies of Dutch law and notes that Roman law fell away when it conflicted with the laws of the United Provinces. However, where Roman law was received it was used as a starting point of discussion and it was preferred to the laws of other nations when Dutch law was deficient, on account of the justice and rationality of the Roman system. The influence of Roman law was especially strong because Dutch law was often insufficient and had great gaps. Visagie identifies particular gaps in the law of contract, the laws governing inheritance and commercial law. In these areas especially, Roman law was by no means considered subordinate to Dutch law. Roman law was consequently also applied in the Dutch overseas settlements. In terms of the charter () awarded to the Vereenigde Oostindische Compagnie (VOC) by the States General of the Republic of the United Netherlands, the company was empowered to administer justice in all of its territories in the East in terms of the laws practised in the province of Holland, ordinances () passed in Batavia and at the Cape, and Roman law.

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