Law of the Netherlands
The Netherlands is a civil law country. Its laws are written and the application of customary law is exceptional. The role of case law is small in theory, although in practice it is impossible to understand the law in many fields without also taking into account the relevant case law. The Dutch system of law is based on the French Civil Code with influences from Roman Law and traditional Dutch customary law. The new civil law books (which went into force in 1992) were heavily influenced by the German Bürgerliches Gesetzbuch.
The primary law making body is formed by the Dutch parliament in cooperation with the government. When operating jointly to create laws they are commonly referred to as the legislature (Dutch: wetgever). The power to make new laws can be delegated to lower governments or specific organs of the State, but only for a prescribed purpose. A trend in recent years has been for parliament and the government to create "framework laws" and delegate the creation of detailed rules to ministers or lower governments. (e.g. a province or municipality)
The Ministry of Security and Justice is the main institution when it comes to Dutch law.
Areas of law
The domain of Dutch law is commonly divided in the following areas:
- Administrative law
- Civil law (including family law, inheritance law, contract law and commercial law)
- Criminal law
- Constitutional law (including laws on the structure of the state)
- European law
- International law
Constitutional law involves itself with the constitution and the structure of the Netherlands. It involves the powers of democratic institutions, the organisation of elections and the divisions of powers between central and local governments. See also the article on the Constitution of the Netherlands. Following the practice of many civil law jurisdictions and in contrast to practice in nations such as the United States, the practice of Dutch constitutional law is that judges are not allowed to determine the constitutionality of laws created by the legislature (the government and parliament acting jointly).
Administrative law is the area of law that regulates the operation of the various levels of government and the way persons and legal entities can appeal decisions of the government. The basics of Dutch administrative law were overhauled completely in 1994 with the advent of the new Basic Administrative Law (Dutch: Algemene Wet Bestuursrecht)....
European law deals with the influence of laws and regulations of the European Union in the laws of the Netherlands.
International law (a.k.a. the law of nations) involves the application of international laws (mostly laid down in treaties) in the Netherlands. The Dutch constitution contains a clause that allows the direct application of most international laws in Dutch courts. The laws that regulate jurisdiction and applicable law in cases with an international aspect (e.g. because parties come from different countries) are not part of international law but form a specific branch of civil law.
From ancient times the low lands that became the Republic of the Seven United Netherlands (see also Dutch Republic) were ruled by a patchwork of customary law with a (depending on the region) more or less prevalent role for Roman law as a secondary source of law. This period of customary law ended in 1806 when the Dutch Republic ceased to exist and the Kingdom of Holland was created under French rule (King Louis Bonaparte, third brother of Napoleon Bonaparte).
With French rule came a French way of running the state: a centrally led and efficiently operating civil service and a new system of positive law: the Code Civil. After the defeat of Napoleon a new Dutch state was created comprising the Netherlands and Belgium. The Dutch did not want to go back to the days of legal diversity (local customary laws) and a project was started to create a Dutch civil law book. After the breakaway of Belgium in 1830 the new law book (which had not yet entered force) had to be overhauled again to be cleansed of "Belgian influences". The new law book gained force of law in 1838.
After the Second World War professor E. M. Meijers was commissioned to create a new civil law book. After his death in 1954 work on the new law book continued but the process was slowed down considerably. Nevertheless, his "new civil law book" entered force in various parts over a period spanning from 1970 to 1992. Book 4 (inheritance law) was overhauled in 2003.