Overdijk, D. A. J., De gewoonte is de beste uitleg van de wet.
VanCaenegemOverdijk20001016 Nr. 10001 ZRG 119 (2002) 48
Overdijk, D. A. J., De gewoonte is de beste uitleg van de wet. Een onderzoek naar de invloed van het Hof van Gelre en Zutphen op de rechtspleging in criminele zaken in het Kwartier van Nijmegen in de zeventiende en achttiende eeuw (= Rechtshistorische Reeks van het Gerard Noodt Instituut 43). Gerard Noodt Institut, Nijmegen 1999. XVI, 436 S., Karte.
This learned and debailed monograph, a doctoral dissertation in the University of Nijmegen, is devoted to criminal law and procedure in the District of Nijmegen in the seventeenth and eighteenth centuries under the impact of the Court of Gelderland and Zutphen (founded in 1543). Overdijk’s research is based essentially on archive material so that his book is an original contribution to the study of the repression of crime in modern times. This is a field where much research is needed, and exhaustive monographs devoted to a limited area are the indispensable tools for an understanding in a wider context. The author writes fluently and places his subject in the main lines of the European development, from the Middle Ages to the Age of the Enlightenment. All the essential procedural topics are analyzed, such as summons, inquest, evidence, rights of the defence, counsel and assistance, torture and appeal, and also, of course, substantive criminal law: imprisonment, the death penalty, mutilation and banishment. Finally the author presents the numerous conflicts of competence among the lower and higher courts involved. It would be hard to imagine a more thorough presentation and discussion of the facts and problems involved. I shall limit myself here to a few topics of particular interest. The author rightly devotes numerous pages to the remand in custody. This is a perennial problem and it is interesting to see how the authorities were trying to limit remand to a reasonable time, but could not prevent such glaring abuse as imprisonment in inhuman circumstances and for an excessive length of time (pp. 87‑93). Equally interesting are the pages devoted to another well known crux, the condemnation in absentia. The courts have always had a great problem on their hands, when they had to deal with a contumax and it was not different in Nijmegen. The situation, briefly, was as follows: contumacia was considered a delict, which meant that the contumax had to pay the costs of the case and that he was no longer allowed to present evidence against the prosecution. This did, however, not automatically mean, that the court would condemn him (one sees here the long‑term effect of the medieval canonical eremodicium) (pp. 134‑147).
We finally draw attention to the chapter on torture, which discusses the conditions for its application, the control by the higher Court, the techniques of torture, some statistical information and the description of the abolition of torture under the influence of the Enlightenment. Various jurists pleaded for „extreme circumspection“ in its use and argued, remarkably enough, that torture went against the learned law. All this meant, that after the torture of Theodore de Weert in 1773, the registers of the Court only mention one more case, from 1775, in which torture was authorized. At the time of the Batavian Revolution torture was officially abolished, because it was inhuman, contrary to natural justice and constituted „a very weak guarantee for the inner conviction of the judge“ (it is interesting, inter alia in the light of John Langbein’s research, to meet the conviction intime here as a justification) (p. 187).
The book contains a collection of documents, summaries in French and German, an extensive bibliography, an index of persons and subjects and a map of the area under study. It also contains, needless to say, introductory chapters on the courts and their officials and on the various types of sources of information.
This is, in short, a fundamental contribution to a most important subject.
Ghent/Gent Raoul C. van Caenegem