Abstracts

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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