COMPARATIVE STUDIES
R. Borger, H. Lutzmann, W.H.P. Römer, and E. von Schüler,
Rechtsbücher, Gütersloh: Gerd Mohn, l982, Pp. 126, Price:
DM 68.00 (Texte aus der Umwelt des alten Testaments, I/1). - A highly recommended
German translation of the Sumerian, Babylonian, Assyrian, and Hittite law
books; see BL 1983, p.98f.
H. Lazarus-Yafeh, "The Attitude to Legal Sources in Islam as
Compared with Halacha" (Heb.), Proceedings of the Eighth World Congress
of Jewish Studies, Division C (Jerusalem: World Union of Jewish Studies,
1982), 47-50.
M.J. Selman, "Comparative Customs and the Patriarchal Age",
in Essays on the Patriarchal Narratives, ed. A.R. Millard
and D.J. Wiseman (Leicester: Inter-Varsity Press, 1980), 93-138. - Van Seters
and Thompson have demonstrated the weakness of many comparisons between
the patriarchal narratives and the legal texts from Nuzi. However there
still remain many valid parallels between social customs attested in Genesis
and the customary law of the ancient Near East. But extrabiblical legal
texts need more careful handling so that it is clear whether they are typical
or exceptional. The biblical chronology of the patriarchs makes it likely
that the closest parallels should be found in early second-millennium texts
from cultures nearest to that of ancient Israel. Rarely though can a parallel
custom be used to date a biblical text, because social practice usually
changed very slowly. S. concludes by listing thirteen social customs mentioned
in Genesis that are illuminated by extrabiblical legal texts, including
the granting of birthright, the status of the eldest son, laws of inheritance,
provision of dowry, prohibitions on taking second wives, and other aspects
of marriage. (G.J.W.)
E. Volterra, Diritto Romano e Diritti Orientali, Naples:
Jovene, 1983, Pp. xii, 308, Price: IL 30,000 (Collana "Antiqua",
22). - In the last year of his life, the late Professor Volterra had the
satisfaction of seeing this classic study, first published in 1937, made
generally available once again. In a Note which precedes this photographic
reprint, he tells us that some months after the original publication he
was deprived of his teaching position, and all mention of his name in scientific
writings was forbidden. During the war, the remaining copies of the book
were destroyed. Despite the late author's desire to replace it with a more
systematic and up-to-date treatment, the scholarly community will be grateful
that the original is now once more available. The three substantial chapters
are devoted to a survey of scholarship on the influence of oriental laws
on Roman law, from the 16th century to date; the originality of the oldest
Roman law and its relationship to other systems of Mediterranean law; and
the influence of oriental law on post-classical Roman law. For the early
period of Roman law, Volterra strongly affirms the juristic independence,
both historically and conceptually, of the Roman institutions, despite the
parallels which have been suggested by various scholars. As for the later
period, he stressed the importance of study of the imperial constitutions,
and of relating them to the laws of the provinces to which they were directed.
In the course of his discussion, the author compared many of the institutions
of Roman private law with their Greek as well as Oriental equivalents: notably
on such matters as patria potestas, adoption, succession,
dowry, property, manumission. Although research has necessarily advanced
since 1937, Volterra's work still retains its value, perhaps more for its
comparison of juristic forms than for its historical conclusions. (B.S.J.)
Judith R. Wegner, "Islamic and Talmudic Jurisprudence: The Four
Roots of Islamic Law and Their Talmudic Counterparts", American
Journal of Legal History XXVI (1982), 25-71. - The author takes
the Islamic doctrine of the "roots of jurisprudence", and proposes
that each of the four corresponds, both linguistically and conceptually,
with a basic source of Talmudic law. Specifically, Qur'an corresponds
to miqra, Sunna to mishnah, ijma to hakol (juristic
consensus as found in the Gemara), and qiyas to heqqesh. The
article concludes with a comparison of Shafi'i's theory of the roots of
the law with the juristic bases of talmudic law. In the light of the comparison,
the question of influence upon Shafi'i is considered. (B.S.J.)
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