The Making, Meaning and Application of Civil Codes in the Netherlands

Abstract

The early Dutch codifications must be considered as a means to achieve unification. At the beginning of the unitary State, the latter claimed a monopoly on law making, and its laws became the only formal source of law. The next codification, the Dutch Civil Code of 1838, which was the product of the beliefs of the bourgeoisie class, led to a formalistic attitude of the courts and legal doctrine. Only in the early twentieth century did the primacy of law formation slowly shift from the legislature to the courts. Then, it became clear that the Dutch civil law codification was not unique and complete. However, law making by judges led to a lack of uniformity and legal certainty. A drafting process that started in 1947 led to a new Civil Code in 1992, which codified previous case law and solved the remaining lacunae and technical ambiguities. This code did not, however, have a constitutional, unifying role, nor did it lead to a fundamental change in practice. Due to its corrective mechanisms, such as open norms, future developments can be more easily dealt with, and courts are given free leeway in law making. Although this Civil Code is still the cornerstone of private law, actual law making, at least in tort law, is largely performed by the courts. The Code lacks the element of exclusiveness or completeness. In the long run, it is a question whether a national codification is the best way forward.