Netehrlands Cdification Flashcards

1
Q

How was the dutch Republican born

A

Out of an 80 year war

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2
Q

How did the 80 year war end

A

By peace of Westphalia 1648

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3
Q

Why was there no real dutch state after the dutch republic was born

A

Because there were many rivalries between the various lands of the Netehrlands

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4
Q

Who ruled the dutch republic right after it was born

A

King of Spain Charles V

-held the title lord and duke in various lands

-northern counties recognised Charles V as their sovereign lord

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5
Q

What were the THE BURGUNDIAN KREITS

A

-Charles V issued an imperial decree re question that all his possessions in the Low Countries to be joined together under the name Burgundian Kreits and form a special administrative unit within the formal confederation of the Holy Roman Empire but at the same time enjoying de facto independence from it: that day saw the birth of the Low Countries (comprising what is now Belgium and the Netherlands).

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6
Q

Where did the term ‘Low countries’ come from

A

Of Burgundian origin, The sovereign lords of Burgundy had long been accustomed to designate their ‘Netherlandish’ possessions as ‘our lands over yonder’.

-these countries came to be called ‘Les Pays- Bas’ and Belgium.

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7
Q

What was the Homologation ordinance

A

-Charles V’s aim was to make the Low Countries independent from the Holy Roman Empire.

-strive for a degree of centralization.

-One of the areas in which the heterogenous
nature of Charles’ Empire was most striking was the law.

-1531-> Charles V issued an ordinance requiring the customary laws applying in different parts of his domains in the Low Countries to be set down in writing and set to Brussels for approval

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8
Q

How did the population fo the Low Countries see the homogulation ordinance, what caused the revolution?

A

-saw it as a threat to their own identity by the increasingly oppressive centralist in policy pursued by the governments in Brussels -> revolt

-When Charles V abdicated in favour of his son, Philip II, the latter introduced
taxes in all countries of the Netherlands, which contributed significantly to the outbreak of the insurrection.

-Philip also had tensed relationships with the religious spreading in
the countries – he wanted to maintain the catholic dominance

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9
Q

Where did Philip II derive his sovereignty

A

in the Low Countries from the fact that he united within his person the tiles of Duke of Guelders, Count of Holland and Zeeland and Lord of Utrecht and Overijssel, Friesland and Groningen.

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10
Q

What was the only thing hat countries in the Low Countries had in common

A

Therefore, those countries no longer had anything in common with each other apart from the fact that they were bound by a personal union (various titles within the same person)

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11
Q

Why as Philip II not given the title of roman emperor

A

Philip II derived his sovereignty in the Low Countries from the fact that he united within his person the tiles of Duke of Guelders, Count of Holland and Zeeland and Lord of Utrecht and Overijssel, Friesland and Groningen. Therefore, those countries no longer had anything in common with each other apart from the fact that they were bound by a personal union (various titles within the same person) – therefore, he didn’t gain the title of new Roman Emperor.

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12
Q

What was the union of Utrecht 1579

A
  • a treaty concluded in 1579 between seven of the northern netehrlands (Groningen, Friesland, Drenthe)

-It was the founding constitution of the Republic.

-The Union, however, was first and foremost a military alliance born of practical necessity

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13
Q

What was the republic of the seven united netehrlands, after the conclusion of teh union of Utrecht 1579 classify as

A

The Republic of the Seven United Netherlands was a confederation, a joining together of independent states which were autonomous within their own borders.

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14
Q

Who were stadholder

A

-Chief magistrate of the United provinces of the Netherlands

-lords designated by Philip II within the various countries of the netherlands

-lords that would govern the local territory in the name of the King.

-two stadholders: one in the North and one for the other countries

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15
Q

Whow as teh most famous stadholder

A

William of orange

-1580 William of Orange was outlawed by Philipp II

-assassinated in 1584

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16
Q

When did Charles V abdicate

A

1555

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17
Q

Why as William of orange so famous

A

-He wrote a letter, an apology and formally announced his oath of allegiance and accused Philipp II of telling lies, that he had committed bigamy etc.

-The infamous letter led the populace to formally declare through the Act of Abjuration Philipp II no longer lord of the countries.

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18
Q

What was the act of Abjuration

A

The Act of Abjuration in Dutch legal history was a declaration in 1581 by the Dutch provinces against Spanish rule. It stated that they no longer recognized Philip II of Spain as their sovereign, emphasizing their right to rebel against unjust rule. This declaration played a crucial role in the establishment of the independent Dutch Republic

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19
Q

Why was it difficult to implement a constitution in the republic

A

the Republic consisted of seven sovereign states in its external relations it acted as a single entity

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20
Q

How was the republic acting in international affairs

A

-as a unified state

-states gave up some of their sovereign powers to the states gerneral, in order for it to handle external relations and defence

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21
Q

How would the republic act in international affairs

A

-as a unified state by giving up some of their sovereign powers to the states general which would carry out external relations and defence

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22
Q

What was the states general

A

the common
popular assembly of the countries participating in the Union of Utrecht

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23
Q

Was there uniformity of law within the republic?

A

There was no uniformity of law within the country. In fact, there even tended to
be a diversity of law on a regional level. Groningen, for instance, had five different local laws within its territory (Ommelanden, Oldambt, Selwerd, Westerwolde, City)

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24
Q

What kind of law connected all these countries in teh republic

A

-common law, namely Roman law

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25
Q

When was roman law used in the republic of the seven united netehrlands

A

-used
whenever there were no local exceptions or rules.

-Universities in the
Netherlands were seen as centres for the academic study of Roman law.

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26
Q

Why was roman law and not local law studied in dutch universities

A

because the professors were paid by the students and the latter weren’t only from a certain province, many came from other parts of the country – international studies, everywhere you went you could study Roman law – therefore, Roman law gave unity to the various countries of NL.

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27
Q

When was the end of the dutch republic

A

-1795
-when French troops crossed the river Lek and occupied the territory of Holland. The river had frozen, which facilitated the invasion.

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28
Q

When was the French Revolution

A

1789

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29
Q

How did the effects of the French Revolution echo in the Netherlands

A

Democrats in the Dutch Republic wanted more freedom and asked the French for help, leading to the flight of the Dutch Republic’s leader, Prince William V.In 1798, the Batavian Republic was established in the Netherlands. Soon after, there were elections to decide if the new republic should be a loose federation or a unified nation. However, the decision took three years of discussion without any clear answers

30
Q

When did the Netherlands become a Batavian Republic

A

1798

31
Q

Where does the history of codification begin in the netehrlands

A

Coup d’etat of 1798

32
Q

What happned during the coup d’etat of 1798

A

when a military general thought he should take things in his own hands believing in a
unitary state. A commission was set up to draw the codification of the Batavian
Republic.

33
Q

Who was the most important figure in the commission for the establishment of the codification of the Batavian republic

A

professor of natural law
Hendrik Constantijn Cras. The latter was in favour of taking Hugo Grotius’ book named ‘The jurisprudence of Holland’ as a source of inspiration.

34
Q

When was the first draft of the codification of the Batavian republic drawn up

A

-1804
-based on the notion of natural law
-first time that the law of the province was described

-However, the Dutch Court did not accept such an introduction as a legal tool and a codification was then never reached.

35
Q

When did the Batavian republic seize to exist

A

1806

36
Q

Who was the first constitutional monarch of the kingdom of Holland

A

Luis Bonaparte, the younger brother of Napoleon

-because napoleon sent him in order to extend his influence

37
Q

When was the code of napoleon adapted for the kingdom of Holland

A

1809-1811

38
Q

Why was the code of napoleon adapted for the Netherlands by Louis

A

Although napoleon ordered that the civil law of Netherlands was to be the Napoleonic Code
and nothing else, Louis sought to allow the Netherlands to retain the
appearance of an independent sovereign nation – he started to think about the interests
of the Dutch

39
Q

When was the napoleonic code adapted

A

-1807

-the King appointed a committee charged with the task of adapting the
Napoleonic Code to the circumstances of the Netherlands (the name put was to deceive Napoleon).

40
Q

When was the Code Napoleon for the Kingdom of Holland adopted?

A

1809

41
Q

For how long did the Code Napoleon for the Kingdom of Holland last?

A

Two years -> so it didn’t have any legal
effect and Roman law was still applied in legal practice

42
Q

Why did Louis have to flee the Netherlands

A

-napoleon found out about his scheme about caring about the interests of the dutch and threatened to annex the Netherlands to France

-Result: Louis fled and the Netherlands seized to exist and it became a Province of the French Empire governed by Napoleon.

43
Q

When was code civil (napoleon) introduced

A

Through an imperial decree of 1811, Napoleon issued that all French law became
enforceable in the territory of the former Kingdom of Holland.

44
Q

Till when did napoleons civil code last

A

His own civil code was
introduced and it lasted until 1838.

45
Q

How was the independence of the netehrlands restored

A

1813 Napoleon was defeated in Leipzig and the Congress of Vienna started

46
Q

What was the United Kingdom of the Netherlands

A

-gained this title after napoleon was defeated and NL gained independence

-All countries of the Netherlands were annexed (Brussels, Belgium, and the southern part of the NL) and it became the United Kingdom of the Netherlands.

47
Q

How did king William I start governing the United Kingdom of the Netherlands

A

Through a coup d’etat

48
Q

What was the intention of William I with regards to codification

A

-The king’s intention was for the Netherlands to have its own national codification

-In
1814 William I appointed a Commission charged with the task of drawing up the
national codification.

49
Q

Under king William I, when was the first draft of teh codification ready

A

1816

-however it never gained legal force as it was overtaken by political events.

50
Q

Apart from the commission challenged with drawing up a codification under king William I, what was the other one that was established?

A

-comprised of three jurists
-Pierre Thomas Nicolas

51
Q

Why after many changes by the second commission that was comprised of three jurists, the codification did not go into force

A

-was supposed to be put into force in 1831 but wasnt due to political events -> BELGIAN UPRISING

52
Q

Why as the codification of 1831 stopped by the Belgian uprising and what was steh result

A

-Belgium already had a civil code and didn’t accept a new one

-the unification of the North and South part of the Netherlands was a failure
and a new civil code replaced the old one in 1838(napoleons) . The Netherlands was reduced to a small territory without Belgium.

53
Q

Until when did private law remain unchanged

A

WWII

54
Q

How did the new dutch civil code of 1992 come into existence

A

-In 1947 the Leiden Professor Meijer, who during his imprisonment in the German
concentration camp had worked on the realization of his plans for recodification of civil law

-was commissioned by the Government to develop a new Civil Code.

-After his death, a committee was established to issue the codification which was finally released
in 1992.

55
Q

What were the sources of law in the netehrlands

A

• Primary law: local customary law, ordinances etc

• Secondary law: Roman law

56
Q

Summarise the facts to the case Lieuwes v. States of Friesland 1611

A

Frisians’ troops try to block the Spanish by erecting a redoubt. However, some houses were left outside it, including Lieuwes’ properties. So, the Spanish troops set fire to the houses but because of the redoubt they were not able to surpass it. Because of this measure, Friesland was saved but Lieuwes was left with damages to his property.
➔ Since that loss had been suffered for the good of the country (pro lege, et grege
domini), Lieuwes considered that he should be paid compensation by the provincial authorities by referring to the Lex Aquilia (originated in 286 BC by a plebiscite)

57
Q

What two circumstances did the states rely on in the case of Lieuwes v the States of Friesland (1611), with regards to the violation of Lieuwes’ property rights

A
  1. of absolute necessity
    o something which is normally impermissible is regarded as permissible
    → Digest
  2. and public interest and safety
    o more may be done in the public interest than in the interests of a private individual
    → Bartolus, Digest and Accursius
58
Q

Why did the states in the Lieuwes v the States of Friesland (1611) case rely on roman law

A

Because there was no local law

59
Q

What did the court decide in the case of Lieuwes v the States of Friesland (1611)

A

-in favour of Lieuwes, the compensation should be paid

– Not on the basis of the Lex Aquilia but instead by analogy with the Lex Rhodia
de iactu (general principle):

o Namely, where goods are thrown overboard in order to lighten the ship,
everyone should contribute to compensate for what has been abandoned for the benefit of all.

▪ Owner who suffered loss brings claim against shipowner/captain
based on contract of carriage – the captain in turn brings a claim against the various passengers/cargo owners Therefore, the loss is distributed among all interested parties

-> The Court of Friesland applied here the Rhodian Sea-Law – Lieuwes got compensated through tax money.

60
Q

What debates were jurists having regarding the Lieuwes v the States of Friesland (1611) case

A

However, among jurists there were many questions to whether such law could be applied on land. Johannes Voet (1647-1716) stated it was difficult to draw the line between the concerned parties or the degree of danger on land or water. Modestinus opinion was used: when house is torn down it is possible to use an analogous action as that of the Lex Rhodia.

61
Q

What was the Decama case

A

Own fault of Decama to plant his orchards too close to the city’s defensive walls. Lieuwes, however, could not be blamed: he was confronted with the fort – his house just happened to be there.

62
Q

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

A

Systematic interpretation Teleological interpretation

63
Q

Which way of reasoning is often used if systematic interpretation and teleological interpretation is applied?

A

Reasoning by analogy

64
Q

Explain the connection between the method of interpretation that is applied in this
case and the way of interpreting the Corpus Iuris (or: school of law) that you gave as your answer to question 4.

A

The mos italicus would use a systematic interpretation of Roman law – only if you interpret the law broadly you can find solutions for legal problems
Systematic interpretation very liberal way of interpreting old laws in order o solve the problems of nowadays society. ≠ mos gallicus: grammatical interpretation and historical interpretation

65
Q

Explain why the method of interpretation of the Corpus Iuris Civilis that is applied
in this case was often the only way to get results.

Lieuwes v the States of Friesland (1611)

A

Other methods of interpretation wouldn’t easily apply, such as grammatical interpretation – impossible because different periods reflect different circumstances of the law Most logical way to interpret these texts

66
Q

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

A

Primary source: Frisian law Subsidiary source: Roman law

67
Q

Explain why the Court of Friesland could use for its decision the writings and
decisions from other European jurisdictions.

A

Because Roman law was supplementary and used all over Europe

68
Q

Summarise the case of McBoyle v United States (1930/1931)

A

Boyle stole a plane. Legal question – is an aircraft (plane) a motor vehicle in the sense of the National Motor Vehicle Theft Act?

69
Q

How did the majority of inferior judges interpret the provision under the National motor vehicle theft act in the McBoyle v. United States case

A

Believed that the definition of the airplane fell under this law.
Grammatical interpretation etc.

70
Q

How did the dissenting judge (cotteral) interpret the provision under the national motor vehicle theft act in the case MvBoyle v. United States

A

He argues that the judges should stick vehemently to the wording of the provisions, especially in penal law judges cannot use a liberal way of interpretation. He rather makes reference to the legislative history method of interpretation

71
Q

Which interpretation methods were used by justice O.W. Holmes in order to arrive
at his decision?

(McBoyle v. US case)

A

Grammatical, legislative, teleological (not should be used during criminal procedure), and systematic interpretations