Intergenerational transfer of rural property in the Netherlands. Law, moral code and practice (16th-20th Centuries) - article ; n°1 ; vol.110, pg 339-355

De Haanh.J., Hoppenbrouwers Hoppenbrouwersp.C.M.

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Mélanges de l'Ecole française de Rome. Italie et Méditerranée - Année 1998 - Volume 110 - Numéro 1 - Pages 339-355
H. J. De Haan et P. C. M. Hoppenbrouwers, Intergenerational transfer of rural property in the Netherlands. Law, moral code and practice (16th-20th Centuries), p. 339-355. Nineteenth-century debates on inheritance in the Netherlands reveal more about implicit theoretical assumptions, ideological positions and political concerns than about farm families' diverse strategies in coping with economie change and intra-family conflicts. Ideas have changed about the role of the family as a factor in farm reproduction. The first part offers a survey of a wide variety of normative rules and practices that regulated the intergenerational transfer of property in the rural districts, the second part presents some aspects of the debate on inheritance that occupied 19th and 20th century observers.
17 pages
Source : Persée ; Ministère de la jeunesse, de l’éducation nationale et de la recherche, Direction de l’enseignement supérieur, Sous-direction des bibliothèques et de la documentation.

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• Publié par: MELANGES_DE_L-ECOLE_FRANCAISE_DE_ROME
• Publié le: 01 janvier 1998
• Nombre de lectures: 21
• Langue: English
• Poids de l'ouvrage: 1 Mo

Extrait

H. J. De Haan
P. C. M. Hoppenbrouwers
Intergenerational transfer of rural property in the Netherlands.
Law, moral code and practice (16th-20th Centuries)
In: Mélanges de l'Ecole française de Rome. Italie et Méditerranée T. 110, N°1. 1998. pp. 339-355.
Abstract
H. J. De Haan et P. C. M. Hoppenbrouwers, Intergenerational transfer of rural property in the Netherlands. Law, moral code and
practice (16th-20th Centuries), p. 339-355.
Nineteenth-century debates on inheritance in the Netherlands reveal more about implicit theoretical assumptions, ideological
positions and political concerns than about farm families' diverse strategies in coping with economic change and intra-family
conflicts. Ideas have changed about the role of the family as a factor in farm reproduction. The first part offers a survey of a wide
variety of normative rules and practices that regulated the intergenerational transfer of property in the rural districts, the second
part presents some aspects of the debate on inheritance that occupied 19th and 20th century observers.
Citer ce document / Cite this document :
De Haan H. J., Hoppenbrouwers P. C. M. Intergenerational transfer of rural property in the Netherlands. Law, moral code and
practice (16th-20th Centuries). In: Mélanges de l'Ecole française de Rome. Italie et Méditerranée T. 110, N°1. 1998. pp. 339-
355.
doi : 10.3406/mefr.1998.4560
http://www.persee.fr/web/revues/home/prescript/article/mefr_1123-9891_1998_num_110_1_4560H. J. DE HAAN ET P. C. M. HOPPENBROUWERS
INTERGENERATIONAL TRANSFER
OF RURAL PROPERTY IN THE NETHERLANDS.
LAW, MORAL CODE AND PRACTICE
(SIXTEENTH-TWENTIETH CENTURIES)1
Introduction
Although historians and sociologists in the Netherlands have a
longstanding interest in studying rural society and economy, they have not
been particularly interested in how peasants/farmers transferred their land
from one generation to the other. This holds as much for the period before
as after the beginning of the 19th century, which can be considered as a
watershed in Dutch legal history. The present Dutch inheritance law came
into existence after a long process of codification and unification between
1798 and 1838, when the Burgerlijk Wetboek (Civil Lawcode) was finally
enforced.
For the period before 1800, a lot of work has indeed been done by legal
historians to map the jungle of local and regional customary lawcodes. But
no special attention has until now been paid to rules of inheritance in a
rural-agrarian setting. Also fairly neglected is the tension between
customary law, moral code and daily practice, as far as it can be deduced
from instruments of voluntary jurisdiction, civil lawsuits, legal comments
on rules or cases, etcetera. Neither have attempts been made to examine
the continuity or change of practice after the introduction of unified Civil
Law, let alone to explain historical patterns of resource transfer in agrarian
communities.
Our article is divided in two parts. The first offers a concise survey of
the wide variety of normative rules and, to smaller extent, practice, that
regulated the intergenerational transfer of property in the rural districts of
the present-day Netherlands. The second part presents some aspects of the
'debate on inheritance' that occupied 19th and 20th century observers. The
1 H. J. de Haan is the author of section 2, P. C. M. Hoppenbrouwers of section 1.
MEFRIM - 110 - 1998 - 1, p. 339-355. H. J. DE HAAN ET P. C. M. HOPPENBROUWERS 340
contributors to this debate were politically and ideologically motivated, in
the sense that they comtemplated changes in inheritance law, were
concerned about its consequenses and had moral judgements. This
discourse allows us to get an impression of how inheritance and succession
to farms were viewed, and to draw some conclusions from the scanty
empirical evidence it provided.
Neither before, nor after the unification of civil law, Dutch inheritance
law has been prescriptive. Common agreement between all legitimate heirs
allows families, until this day, to proceed as they wish. Heirs have the right
to reject the share to which they are legally entitled in both intestate and
testamentary inheritance. But if one of them disagrees, he may stake his
claim according to the law and, if necessary, enforce it with legal sanctions.
Inheritance law may, therefore, be characterized as a body of
sanctioned rules to which heirs can appeal, should they wish to insist upon
legal recognition of their rights. It corresponds to the regulatory function
attributed by Glastra van Loon and Vercruijsse (1966) to Civil Law in
general. They see as the function of the law "to decide what action is to be
taken in cases where there is uncertainty and/or conflict regarding the
precepts to be followed (...). The law serves (...) to seek a solution when
interaction cannot proceed" (p. 20).
By implication, inheritance law comprises a set of formalized
normative rules that did (or does) not necessary correspond with ideas on
property and kinship among farmers. There is a comparison to be made
here with Von Benda-Beckmann's concept of legal plurality in developing
countries (1983). There is not, in his view, a single prescriptive system : "In
fact we are never dealing with a situation in which there is one law, one
system of rules, concepts or institutions. In reality there is a plurality of
law : a multitude of rules and institutions in the same field of social and
economic behavior. But with sometimes fundamental differences in
content, form and structure" (p. 36). In this multitude of rules central
(district, national) law offers only one among several alternatives for
action. As customary law was diverse and lacked the completeness and
formal precision of the Civil Law, this is certainly true for our first period.
But to some extent it applies to the second as well.
Of course there are more fundamental differences between the
situations before and after the beginning of the 19th century. In the
inheritance section of the Civil Law the nuclear family clearly has priority
over the wider kin group and no distinction is made according to age or
sex. In customary law, on the other hand, women were in many ways
blatantly discriminated against, while the interest of kin was looked after
in regulations on, for instance, the return of property into the bloodline INTERGENERATIONAL TRANSFER IN THE NETHERLANDS 341
and the preferential right to buy property from family members - although
we wouldn't want to stress this point too much.
1 - Inheritance law before the 19th century,
especially in rural districts
The late medieval and early modern lawsystem of the Netherlands
suffered from an almost proverbial diversity : each town and each rural
district had its own legal customs. Although, first, territorial princes and,
later, provincial authorities managed to harmonize customary law to some
extent, centralist tendencies, be it from the provincial or central
authorities, be it from the two universal written laws - Roman and
Canonical Law - have only very partially succeeded in affecting its
substance. For the countryside, and especially with regard to the
intergenerational transmission of peasant landed property, further
complications arise from the fact that, next to the so-called common rural
lawcodes ('gemene landrechten') enforced in the public courts of justice,
other normative rules, emanating from special bodies, such as feudal and
manorial or 'rental' courts, survived from the Middle Ages until the
beginning of the 19th century. They regulated the transmission of certain
types of non-allodial hereditary tenures, which in some regions could make
up a substantial part of (factual) peasant property.
Arrangements of property transmission
Too often, the subject of property transfer in the past has been
onesidedly approached from the angle oipost mortem inheritance. Probably
this has something to do with the sharp distinction our Civil Law creates
between inheritance law and laws regarding marriage goods. Looking at
pre-19th century law and practice, this distinction was, as we shall see, rather
blurred. Anyhow, thanks to historical anthropology, more attention has
recently been paid to intergenerational divestments inter vivos (Goody 1976;
Sabean 1976, p. 104-108; Bonfield 1986, p. 160-170). All possible transfers
together (post mortem and inter vivos) could, then, be outlined as follows :
'stage' 'modality of transfer'
marriage endowment = (?) cession (provisional or definitive)
retirement exchange of inheritance against maintenance
dead of 1st parent division of estate (provisional, conditional, partial?) of 2nd settlement of estate H. J. DE HAAN ET P. C. M. HOPPENBROUWERS 342
This seems all very simple. Reality could, however, make things very
complicated. As the average span of life was then much shorter than today,
the sequence of stages was less fixed than is suggested by the diagram.
Many parents didn't live long enough to see their children marry, while
many others would have survived all their children and could, thus,
become the heirs to their children's estate