Boudewijn Sirks was educated in Law at the University of Leiden, followed by studies in Theology and Philosophy at the University of Amsterdam, where he took up his first post as a Research Assistant in Philosophy.
In 1978, he moved back to his original discipline and became Lecturer for Legal History at the Utrecht University, later Senior Lecturer for legal techniques. In parallel, he completed a PhD in Law at the University of Amsterdam, where he became Reader and acting Chair for Legal Techniques in 1989. In 1997 he moved to the Johann-Wolfgang-Goethe University in Frankfurt, where he took up a chair in History of Ancient Law, History of European Private Law and in German Private Law until his appointment, effective per 1 February 2006, as Regius Professor of Civil law, from which chair he retired on 30 September 2014.
Professor Sirks' research interests span ancient history of law, papyrology, European private law and civil law. He is an editorial member of the Journal of Legal History and of the Studia Amstelodamensia. Studies in Ancient Law and History. He spent time as Visiting Scholar at the Columbia University, New York and Visiting Professor at the University of Kansas, and recently as Visiting Professor at the Pontificia Universidad Católica de Chile (Santiago). Professor Sirks is a Corresponding Member of the Royal Netherlands Academy of Arts and Sciences, and Vice-President of the Accademia Romanistica Costantiniana.
- What concept lay behind the expression 'geschichtliche Rechtswissenschaft' when Savigny coined it? How did legal historians like Mommsen and Gradenwitz interpret it later on? What is the difference with the expression 'Rechtsgeschichte' used generally now? What is the position of legal history vis-a-vis general history on one side (where self-styled 'legal historians' have appeared) and the dogmatic legal subdisciplines in the law faculties on the other side? These are the questions this contribution deals with.The book is basically restricted to the period of 100 BC-300 AD and covers much but not all important features of either law or society. The link between these two subjects is often not exemplified, the bibliographies are occasionally biased. Notwithstanding this, what we have is an interesting collection of essays, generally worth reading, some good or very good, others not or not always on handbook level.Tontines were, in modern terms, pooled life annuity schemes, invented as is assumed by Tonti. They were introduced in the Dutch Republic in 1670 and enjoyed at once a great popularity. In the majority of cases they served private interests, but several times they were used for public purposes like the building of churches (e.g., the Round Lutheran Church in Amsterdam). Their popularity dipped after a great scandal in 1703, but recovered after 1719. In the 19th century their application dwindled and this scheme was replaced by other pension schemes.The contract of societas (partnership) appears in the exegesis of D. 17,2,52,3 to be very flexible and capable of comprising elements of other contracts, so that it was suited for what we would call nowadays 'mixed contracts'; as long as the essentials of the societas were kept.ISBN: 978-3-447-11065-5The colonate is defined by its fiscal link, i.e., the poll tax the colonus has to pay and for which his master stands security. In sources like the Breviarium this link still exists, in (later) sources like the Lex Romana Burgundionum this link has disappeared. In such a case the legal position of the colonus has changed: his dependency is no longer one of fiscal law, but one of the law of persons.In Roman Statutes the Twelve Tables Law have undergone a considerable shift: a considerable part of the delicts (iniuria, arbores furtim caesae and furtum) has been moved from Table VIII to Table II. It is argued that this shift, which breaks with the accepted arrangement, is unwarranted. Further, some observations are made on the edition of several rules in the Twelve Tables.Mühlenbruch is well known for his seminal Disputatio of 1813, in which he declared that assignment of a debt was only possible by way of a mandate and cound not confer a direct right (actio utilis) to the assignee. It succeeded at once in halting the hitherto practice of direct transfer of the claim. He repeated this in his Lehre der Cession. It seems as if Mühlenbruch was an early pandectist, but what was he really? It appears that he was a modern teacher, yet cautious in reforming his lectures as long as there had been no general change in the way Roman law was interpreted or systematised. His new theory was caused by a judicial decision in the Duchy of Mecklenburg-Schwerin in a case of insolveny, which created much unrest amongst creditors who had accepted bills of debt. Were these in their full property and so out of the insolvency, with priority, or were such bills part of the insolvency mass? Mühlenbruch's Disputatio of 1813 addressed this question of priority. His solution fitted the later into existence coming Pandectism and thus, ex post, he seems to be a pandectist.The dominant view that chirographs had in classical and later Roman law merely evidentiary value has recently been challenged by Jakab. It is sustained in this contribution that chirographs of monetary debts were in the middle of the 2nd century AD transferable with full cession of the inherent actions and that, if they were not yet already at that time actually representing obligations by writing, they were acknowledged as such by the beginning of the 3rd century.It is assum,ed that Q. Mucius Scaevola introduced a broad application of culpa, vide D. 9,2,31. However, that does not fit D. 9,2,28, where an restricted liability is formulated. The text shows incongruities. A reconstruction of the original text shows that Scaevola in delicts adhered to a restricted, grammatically interpreted liability, whereas in contracts he applied a bona fides liability.In D. 9,2, 54 the phrase 'nam creditor ipse sibi potius quam alii iniuriam fecisse videtur' poses a problem: how can the creditor, who kills the animal pledged to him, have damaged hinmself more than his debtor? An answer is sought in the connection with D. 9,2,55: the creditor had before he got into delay, no more rights than any extraneus.The meaning of the word contractus changed, it is argued, from meaning a unilateral subjective act of taking on an obligation to meaning an objective bilateral act of consensus, in which two bilateral obligations were engaged. This change reflects a shift in methodological approach.When reconstructing the sources of the Theodosian Code, it is useful to put the thesis, that local archives were used, to the test and reconstruct such a local archive on the basis of the addressee. It appears in the provided example that the letters must have been taken from the imperial copybook of outgoing letters. Further, Seeck reconstructed sometimes the place where a text was issued on basis of the itinerary of the emperor. In the example taken, it appears that Seeck was rather casual in his assumptions on the speed the emperor traveled or could have traveled and that another route, which would necessitate less emendations, is also possible. His Regesten show in this respect a critical weakness.The thesis that the causae adquirendi in D. 41,2,3,21 lead first of all to a ‘rechtmäßiger Eigenbesitz’ (justified possession) and not to ownership or acquisitive possession, as formulated by Pool, does appear not to hold upon examination of this text. The key text D. 41,4,2,1 on which his thesis that the title pro emptore implies such possession relies, does not imply more than factual possession. The causae of D. 41,2,3,21 refer, as the causa in D. 41,4,2,1 and other places, to the causa antecedens, the reason for the taking of possession.An exegesis of two Digest texts, D. 220.127.116.11 and 4. It is suggested that two ways of valuation of the damages, a positive and a negative, are behind these.ISBN: ISBN978-0-19-96773-4The nature of furtum has been subjected to various interpretations, often with the assumption that this changed between the Twelve Tables and end of the 2nd century AD. It is submitted here that the delict was originally an intrusion upon the power of the pater familias and in its most acute form (furtum manifestum) punished with a religious sanction, viz. declaring the fur sacer. The same sanction is found in the Twelve Tables for other delicts, connected with the power of the pater familias. Since manifest furtum always implied that the fur was caught red handed, desacralisation of the delict led to a reduction of this to mere being caught in the act.ISBN: ISSN 0040-7585How reliable is Mommsen's edition of the Theodosian Code? Is there any ground for a new edition, where the books 1 to 5 are restored in the way Krüger endeavoured in his edition? The conclusion is that Mommsen's edition is reliable though in need of some improvement in some places, but that a reconstruction as envisaged by Krüger is too unreliable.An analysis of Mommsen's edition of the Codex Theodosianus. It is submitted by way of a 'Gedankenexperiment' that Krueger's idea of reconstructing the Books 1 to 5 is not scholarly feasible; further, that the manuscript Parisinus 9634 deserves a re-edition.Generally it is assumed that caput in the phrase noxa caput sequitur refers to the delinquent slave or filius familias. The liability for the delict is attached to his person. It is argued, however, that caput refers to the pater familias of the deliquent. The Twelve Tables contained a rule on their direct and personal liability (with surrender to the autorities). The introduction of the edicts on furtum and the lex Aquilia, with the direct and exclusive liability of the pater familias for the wrongdoings of those, subjected to his potestas, led to a correction: the pater could now refuse to defend them and surrender them to the authorities, or engage in the process, with afterwards still the possibility to surrender, now to the plaintiff. The phrase as such refers then to the inclusion of the decemviral rule on liability of persons, subjected to patria potestas, into the formulas for the delicts.ISBN: ISSN 0040-7585ISBN: ISSN 0040-7585Die Petition des Allgemeinen Deutschen Frauenvereins, 1876 eingereicht beim Reichstag, das römische Dotalrecht in das zukünftige bürgerliche Gesetzbuch einzuführen, war keine Nostalgie oder pandektistischer Enthusiasmus, sondern eine Wahl für ein den Frauen günstiges Ehegüterrechtssystem. Theoretisch bedeutete es vollständiger Gütertrennung, und insoweit dem Ehemann eine Dos überlassen worden war, konnte die Frau diese schon bei drohender Missverwaltung zurückziehen. Dazu kam ihre privilegierte Dotalhypothek. In der Praxis war die Dos sicherlich nicht nur eine Gepflogenheit des Adels und höheren Bürgerstands, sondern auch ein Mittel für die ärmeren Schichten, im Falle eines wirtschaftlichen Zusammenbruches oder einer Insolvenz, noch etwas für sich zu retten. Das war möglich, weil und solange die Frau ihre privilegierte Dotalhypothek hatte. Dabei half auch, dass die Dosbestellung im 19. Jh. sehr aufgelockert war. Die Rechtsprechung zeigt vielfältige Anwendungsformen, wobei die Kollision mit dem sogenannten Kaufgeldhypothek oder reservatio dominii, über die Frage, welche Vorrang haben sollte, besonders hervortrat.The incorporation of the Netherlands in 1810 into the Napoleontic Empire meant the instant introduction of French law, under abolition of previous Dutch law. This was also the case for commerce, industry and agriculture. The complete subjugation to the Continental Blockade meant that for trade economic circumstances deteriorated, notwithstanding that this was partly compensated by the increased trade in specific agricultural products. To a certain extent it was the result of a decline over a much longer period. Financial activities suffered also in the end. The French law on commerce (primarily the Code of commerce, further an array of specific statutes and decretes) did only partially prove to be the modernisation needed. Particularly the Code was, compared to previous Dutch drafts and the draft of 1809, a tragic set-back, which was not made good until the new Code of commerce of 1838. However, other specific regulations proved to inspire new legislation or were maintained.The colonate must have been a public law contract which assured poor people that their poll tax would be paid, but for which they tied themselves to an estate. It was essentially already an institution in 293/4 AD.ISBN: 0393-2230Willem J. Zwalve und Boudewijn Sirks verfolgen mit ihrer Untersuchung drei Ziele: den Nachweis, wie groß trotz scheinbarer Rechtsvielfalt der Zusammenhang zwischen den unterschiedlichen westeuropäischen Rechtssystemen ist; die Gewichtung der rechtspolitischen Überlegungen, die den unterschiedlichen Kodifikationen zu Grunde liegen; und schließlich den Leser in einige Grundbegriffe des kontinentalen civil law und des englischen common law einzuführen und auf die gemeinsamen Traditionen mit dem kontinentaleuropäischen Rechtssystem zu verweisen.ISBN: 978-2-7574-0392-1ISBN: ISBN 978-82-93081-84The lex Fufia Caninia set limits to testamentary enfranchisement. It is suggested that this was done to reserve for the heir as manumitter a sizable amount of claims on inheritances of his inherited slaves.The article sets out the structure and modus operandi of the Supreme Court of Holland and Zeeland, and next, by analysing four cases from the 18th century, the substantive law applied. This was Roman law, except when there was a statute, particular local law or customary law applicableD. 9,2,51, in which a slave is slain twice and dies, and where Julian considers both assailants equally liable for killing, has been interpreted in the context of causa superveniens. In that case Julians opinion becomes contradictory. It is argued that the text should be read in the context of the Stoic theories on causality as current among the jurists in the first centuries AD. In these theories there existed no causa superveniens as of the modern causality theory. As such its application is ill at place here. Instead, in applying these Stoic theories Julians view can be explained as his attributing a causa antecedens to the first assailant, with full imputation of the effect of the subsequent causa principalis to him, and attributing a causa adiuvans to the second assailant, while valuing at the same time the latter not just as a reinforcing cause but also as a causa mortis and a full effective cause. For other jurists the latter evidently went too far.ISBN: ISSN 0040-7585Bijnkershoek wrote next to his three works on international law a series of books on Roman law and on the private law of Holland and Zeeland. Those on Roman Law deal with various aspects, mostly with textual criticism of the Corpus juris, while a part consists of essays on specific subjects. The book on private law combines analyses of certain legal problems with jurisprudence of courts. Are all these texts obsolete by now? A modest exploration of these essays suggests that is not the case as far as textual criticism is concerned; at least some of the essays in Roman law are still actual for present-day research. The essays on private law are of course of value for historical research.ISBN: ISSN 0040-7585During the preparations for the German Civil Code, the Women's Association petitioned in 1876 for the insertion of the Roman dotal system. The paper analysed the reasons for it and sets out, that this system indeed provided women the best security of their properties in case of marriage, divorce and insolvency.The suppositions and method of Seeck in his Regesten der Kaiser und Päpste (1919). In his article of 1889, Die Zeitfolge der Gesetze Constantins, on the dating of imperial constitutions, Seeck boldly assumed that the central imperial archives up till ca. 390 had been lost when the Theodosian Code was compiled and that therefore the compilers were forced to resort to provincial archives for the period 311 ca. 390. This assumption was squarely denied by Bresslau in 1912 in his Handbuch der Urkundenlehre. In the introductory chapter of his Regesten der Kaiser und Päpste of 1919, dealing with his methodology, Seeck suggests that he has corrected the errors he made. However, upon closer analysis it appears that he did not react at all to the substantial criticism of Bresslau, but kept to his original (and still unacceptable) assumption, obscuring his methodology on top of this. As a result his data in the Regesten are less precise than they should have been if a proper and rigorous methodology had been applied. As an example of the advantages of a proper methodology the case of the Gesta Senatus is cited. Here proceeding methodologically generates an interpretation of the events which might have satisfied the contemporaneous requirements for confirmation of the Theodosian Code in the West in 438 and therefore would be an acceptable explanation.ISBN: ISSN 0040-7585The clausula reservatoria in testaments allowed for later additions by way of a codicil, which would have force as if made by the testament. It caused problems, since it sometimes it counteracted dispositions of the testament. Bynkershoek was opposed to its use: only if it regulated something left open it was allowed. But the usus modernus of the Dutch Republic was very liberal and even accepted de facto revocations.ISBN: 3811439200Peira 45.11 has been interpreted as a succession pact, but it appears it is merely the application of a divisio parentis inter liberos (Nov. 18.7). This shows, as other examples, that in the 11th century Justinianic Roman law was still the standard in Byzance for judging, and did not have become, as has also been sustained, a rhetoric device amongst others. This means that the Peira, a collection of 11th century judgments, is a serious legal source.ISBN: 0378-8660The National Archive of Sri Lanka contains much from the Dutch period. Three cases from the archive of the Council of Justice are described and analysed: a commercial case, a manumission and a criminal case. They show the multicultural society of Ceylon of the 18th century and the correct administration of justice.It is commonly assumed that the litis aestimatio of the actio legis Aquiliae was a penalty which, in practice, was set at the loss suffered by the victim of the wrong and therefore functioned as compensation. This assumption is based on the nature of the action as founding in a delict and characterised by the Romans as a penal action. It also shares the elements of penal actions. But this is at odds with other texts which treat the action as directed purely at compensation. It is suggested that in order to understand this we have to distinguish between the origin of the penal actions, which is penal and which carries certain common features such as the fundamental impossibility to sue heirs or descendants of the wrongdoer, and their purpose or object. It is possible to distinguish two groups, one aiming at a penalty, the other aiming at compensation. Only in the latter group the action can be exercised against the heir of the wrongdoer and only restrictedly: it is the compensatory aim which allows for this. Further, the lex Aquilia and its chapters are examined whether a compensatory purpose is distinguishable here as well.ISBN: ISSN 0040-7585ISBN: 0075-4358In the manuscript of the Observationes tumultuariae of Cornelis van Bijnkershoek there are several leaves with notes by his hand, as well as notes on the end leaves of the volumes. Some leaves and the notes on the end leaves of the volumes IX-XIV have already been published. What is published here in an Appendix, with explanatory notes, are the leaves with Bijnkershoeks observations on President Rosenboom and his fellow judges (Directien, Quade Conduite), and the notes on the end leaves of volumes IVIII, which concern everyday matters of the Supreme Court, next to again observations on Rosenboom. On basis of these latter remarks the opening article reflects on the malpractices of Rosenboom and the way the Court functioned.ISBN: ISSN 0040-7585What was the original meaning of contractus? it is argued, on basis of linguistic and philosophical arguments, that it designated originally a unilateral subjective legal act, which during the second century was reinterpreted, by way of the conventio-concept, as a bilateral legal act.Regarding the pretended jurisdiction of bishops in Late Antiquity, it is shown that Sirmondiana 1 cannot be but falsified or a fraud.The SC Claudianum was still applied, be it in a reduced form, in the states which succeeded the Roman empire in the west, as appears from the formularies used there. Further, the title on the SC in the Theodosian Code is analysed in its entierety as a coherent compilation.