From Dharma to Law

Author(s): Bernard S. Jackson

Source: The American Journal of Comparative Law , Summer, 1975, Vol. 23, No. 3
(Summer, 1975), pp. 490-512
Published by: Oxford University Press

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 Comments

FROM DHARMA TO LAW

Bernard S. Jackson*

A reviewer offered the opportunity to comment upon Robert Lin-

gat's The Classical Law of India' from the standpoint of comparative
legal history faces a daunting task. Nothing short of a modern coun-
terpart to the first two chapters of Maine's Ancient Law would consti-
tute an adequate response, and the subject-matter of Maine's first two
chapters would today fill at least two monographs. The few pages
that follow seek merely to highlight what the comparatist may regard
as the most significant aspects of Lingat's theory and draw attention
to related discussion in other areas of legal history. Though the pres-
ent writer is strongly disposed to favour Lingat's approach and its
equivalents elsewhere, the arguments here presented are intended pri-
marily to raise questions rather than provide answers. For it is indeed
the function of the comparative approach to ask questions and suggest
hypotheses; answers and proof can only be provided by internal evi-
dence.
From Lingat's account many parallels with other ancient systems
of law might be noted2 but by far the most important are those which

* Lecturer, Dept. of Civil Law, University of Edinburgh.

Abbreviations: AHDO-Archives d'Histoire du Droit Oriental; ANET-J.B.
Pritchard, ed., Ancient Near Eastern Texts Relating to the Old Testament
(1969); CRAI-Comptes Rendues de l'Academie des Inscriptions et Belles-
Lettres; Enc. Jud.-Encyclopedia Judaica (1973); HUCA-Hebrew Union Col-
lege Annual; Isr. L.R.-Israel Law Review; JAOS-Journal of the American
Oriental Society; JCS-Journal of Cuneiform Studies; JJS-Journal of Jewish
Studies; JNES-Journal of Near Eastern Studies; JRS-Journal of Roman
Studies; LE-Laws of Eshnunna; LH-Laws of Hammurabi; RIDA-Revue In-
ternationale des Droits de l'Antiquite; TvR-Tijdschrift voor Rechtsgeschiede-
nis.
1. The original French edition appeared in 1967 under the title Les
Sources du Droit dans le Systeme Traditionel de l'Inde. The present edition,
published by the University of California Press in 1973, has been significantly
enhanced by the translator, Professor J.D.M. Derrett, who has revised the bib-
liography and provided his own preface, appendix, and numerous notes, as
well as Lingat's curriculum vitae and a list of his publications. Derrett has
himself contributed to the study of the classical Indian sources along similar
lines, most recently in Dharmasastra and Juridical Literature (1973) (from
Gonda, ed., A History of Indian Literature, vol. IV), and History of Indian Law
(1973) (from Spuler, ed., Handbuch der Orientalistik, 2 Abt., III Bd., 1).
2. Manu's minute regulation of everyday conduct, such as diet (Lingat 80;
cf. rabbinic and Islamic law); the development of the Brahmins from priests

490

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 COMMENTS 491

relate to the principal theme of the book, the development of the clas-
sical texts "from dharrna to law."3
Study of the history of the sources of law has been affected far
more than is usually realized by the commoner models of modern legal
systems. Awareness of the outstanding features of the common law
and civil law traditions as they have developed predisposes us to look
for three principal types of legal source: statute, precedent, and doc-
trine. Ancient phenomena corresponding to these modern institutions
are certainly to be found. But once discovered they are all too readily
invested with the particular attributes of their modern counterparts.
Moreover, such identifications sometimes suggest inappropriate lines
for further investigation. Much effort has been misapplied in seeking
to determine such questions as whether ancient "codes" are restate-
ments of custom or reform4 (i.e. consolidating or reforming statutes);
whether they are comprehensive or merely collections of "difficult
cases"5 (i.e. codes or miscellaneous provisions acts); whether they are

and spiritual preceptors to jurists (Lingat 65; cf. the early juristic role attrib-
uted to the Roman pontifices, a comparison suggested by Lingat himself at 143
n.1); the relatively late development of the attribution of texts to the deity
(Lingat 25; cf., probably, the process leading to the canonization of the Penta-
teuch); the interpretation of Vedic, narrative texts (Lingat 8f.; cf. rabbinic ex-
egesis of Genesis); "The succession to property is a corollary of succession to
sacra, or the religious obligations of the family" (Lingat 58, hinting, by the use
of this terminology, at the parallel with Roman succession under the ius civ-
ile); the use of rules relating to succession at death to meet the absence of a
law governing succession to the throne (Lingat 213; cf. the mediaeval succes-
sion struggles described by Maine, Dissertations on Early Law and Custom ch.
5 (1901); the notions of ksatra and svamin, in which ownership and power
are not differentiated (Lingat 212; cf. the Roman dominium, etc.); the grada-
tions of expulsion from caste (Lingat 53; cf. the rules of the Qumran sect);
the apparent development of penance from punishment, rather than vice-versa
(Lingat 63 ff.; cf. the development within Biblical law); the administrative
system, envisaging central appointment of officers responsible for units of 10
(20), 100, and 1000 (Lingat 81; cf. Exodus 18:21, 25); the theory of kingship
(Lingat 207; cf. some biblical traditions).
A number of linguistic parallels may also be noted: The idea that knowl-
edge and inspiration derive from sight underlies both the sanskrit veda, which
has the same root as the Latin video (Lingat 7 n.11), and the Biblical use of
ro'eh for a prophet; the term for "Good Custom" is acara, "the way of life"
(Lingat 198, cf. the Hebrew dherekh and halakhah and the Islamic tariqah and
shari'ah. Indeed, it is not inconceivable that dharma, dherekh, and tariqah
may all ultimately descend from an original biliteral root dh-r); humanity,
manava, takes its name from its progenitor, Manu (Lingat 87, cf. the Biblical
"name"' given to the progenitor of mankind, which is simply the normal word
for man, 'adam).
In listing these parallels, I imply no judgment regarding either the exacti-
tude of the similarities or the significance, if any, to be attached to them.
3. The phrase is used as the title to Part Two.
4. E.g. Pollock in Note A to Maine's Ancient Law 19 (1906), against
Maine; Seagle, The History of Law 106-7 (1946). Cf. Kraus, "Ein zentrales
Problem des altmesopotamischen Rechtes: Was ist der Codex Hammu-rabi?",
8 Genava 289-90 (1960).
5. Much discussed and with differing results in the context of the various
ancient Near Eastern collections. See, e.g., Cardascia, Les lois assyriennes 37-
8 (1969); in general, Diamond, Primitive Law, Past and Present 46 (1971).

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492 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 23

"official" or "private" (i.e. statute or doctrine).8

An extreme case of erroneous identification with a modern model
was committed by the British judiciary in India. Confronted by the
immense variety of Indian local custom they seized upon the famous
dharmasastras (such as the "Code" of Manu), which had developed
a recognizably juridical style,7 and transformed them into statutes.
Lacking a customary law which conformed to the unity of the common
law they adopted the principal English alternative, statute. The error
did not go unnoticed. As Sir Henry Maine wrote in 1861 "Their (viz.
"the religious oligarchies of Asia") complete monopoly of legal knowl-
edge appears to have enabled them to put off on the world collections,
not so much of the rules actually observed as of the rules which the
priestly order considered proper to be observed. The Hindoo Code,
called the Laws of Manu, which is certainly a Brahmin compilation,
undoubtedly enshrines many genuine observances of the Hindoo race,
but the opinion of the best contemporary orientalists is that it does
not, as a whole, represent a set of rules ever actually administered
in Hindostan. It is, in great part, an ideal picture of that which, in
the view of the Brahmins, ought to be the law."8 This view is deci-
sively reaffirmed by Lingat.
The history of research into the legal collections of the ancient
Near East, and especially the Laws of Hammurabi, has followed a sim-
ilar course. In this case the laws are known to have been issued by
royal authority and their influence is dramatically illustrated by the
discovery of copies which were written as long as a millenium after
the original promulgation. In modern systems virtually the only
norms issued by sovereign authority and widely copied are statutes
or subordinate legislation;9 hence the identification of the LH as such
was not unnatural.
A modern statute is authoritative both in substance and in form;
not only its rules but also its particular verbal formulation of those
rules are binding. The practice documents of ancient Babylonia do in-
dicate a degree of conformity to the rules laid down in the Laws and
from this the substantive authority of the document is often inferred.
But in no court record yet discovered is there any clear citation or
quotation of the Laws.'0 Of course these records do not preserve a

6. Also much discussed in the literature on the ancient Near Eastern col-
lections.
7. It may be noted that Lingat places considerable weight upon compari-
son of the phenomena of legal science for the purpose of relative dating. See
especially the argument at 92-6, and cf., earlier, Maine, Lectures on the Early
History of Institutions 14-15 (1875); id., Dissertations on Early Law and Cus-
tom 9-11 (1901).
8. Ancient Law 15 (Pollock ed. 1906); cf. his Village Communities in the
East and West 219 (4 ed. 1881), on the caste regulations.
9. An exception: the publication under royal commission of ancient, re-
pealed or superseded laws, such as the Ancient Laws of Ireland (1865).
10. Driver and Miles, The Babylonian Laws i.53, 401 (1952). See further
Kraus, supra n. 4; Klima, "La Perspective historique des lois hammourabien-
nes," CRAI 308 (1972).

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 1975] COMMENTS 493

complete account of the proceedings. Though the arguments of the

parties are often briefly recorded the tablets are not verbatim tran-
scripts. Nevertheless, Driver and Miles correctly conclude "
nothing like the English verbal interpretation of statute law was prac-
ticed by the Babylonian judges . . . neither judges nor private persons
in their documents seem to have regarded it as verbally binding on
them.""" It may well be significant that the one apparent quotation
from LH now extant reproduces not one or more of the laws but
rather some of the epilogue's curse-formulae, and does so in the con-
text of an international treaty, not a private dispute.12
Even the substantive authority of the ancient Near Eastern col-
lections has in recent years been thrown into doubt despite the fea-
tures which these documents share with modern statutes. In articles
which appeared in 1960 and 1961, two of the leading scholars in the
field, F.R. Kraus and J.J. Finkelstein, reached similar conclusions:13
the Laws of Hammurabi were the product of scribal circles closely
in touch with Babylonian wisdom literature and the monument was
intended as a glorification of the king and a dedication to the sun-
god, Shamash. Many of its provisions were ideal and in form it dif-
fered from royal documents which were known to have been intended
for legal practice, notably the mesharum-act or edict. This view has
not yet received universal acceptance14 and a synthesis has recently
been offered by Klima, to whom the laws fulfill both legislative and
literary functions.15 Lingat's analysis of the Indian material suggests
a possible resolution of this difficulty.
Similar issues arise in the study of Biblical law. Traditionally,
in both Jewish and Christian circles the laws of the Pentateuch have
been regarded as exactly what they purported to be, lex Dei, a view
which appeared to derive considerable support from the anti-monar-
chical passages of the Biblical historical books which depicted the king
as in breach of the law. The fundamentalism of the attitude provoked
an equally extreme reaction: the laws really did represent the stat-
utes of the Israelite state though not always in their original form.
Indeed Yaron has argued that one particular biblical and ancient Near
Eastern formula represents a conscious attempt to avoid a possible
difficulty of statutory interpretation.'6 But there are already signs

11. 1 The Babylonian Laws 53 (1952). The interpretative function for

which Szlechter, "L'Interpretation des lois babyloniennes," 17 RIDA 107ff.
(1970), contends falls far short of the verbal interpretation denied by Driver
and Miles.
12. See Borger, "Marduk-zakir-sumi I und der Kodex Hammurapi," 34 Ori-
entalia 168-9 (1965).
13. For Kraus see n. 4, supra; Finkelstein, "Ammisaduqa's Edict and the
Babylonian 'Law Codes' ", 15 JCS 100-104 (1961). See also Paul, Studies in
the Book of the Covenant in the light of Biblical and Cuneiform Law 24-5
(1970), and literature there cited.
14. Preiser, "Zur rechtlichen Natur der altorientalischen 'Gesetze"', Fest-
schrift fur Karl Engisch 17-36 (1969).
15. Supra n. 10 at 312.
16. "The Middle Assyrian Laws and the Bible," 51 Biblica 553 (1970); dis-

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494 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 23

that the pendulum is beginning to swing back; the laws of the Bible,
if not divine, are at least ideal.'7 The Book of Deuteronomy in par-
ticular is primarily the product of the Israelite Wisdom tradition.'8
Here too a modus vivendi is suggested by the Indian material.
Scholars have arrived at these views of the Mesopotamian and
Biblical legal sources unaware of the parallels with ancient India.
What Lingat has provided is an overall framework and explanation
of the relationship of the various phenomena which may render the
results already obtained in Mesopotamian and Biblical law more read-
ily comprehensible. In particular his understanding of the nature of
dharma and its relationship to custom and royal ordinance appears
to me to be capable of extension to, insofar as it is not already implied
by, our present knowledge of these other systems.
Dharma is explained by Lingat as the duty to conform to what
Hindus regard as the natural order of things.'9 The books of dharma
are instructional writings designed to train men to observe that duty.
Dharma has, per se, no constraining power except that of its own
moral authority.20 In theory its content corresponds fundamentally
with that of custom, being based in the traditions and aspirations of
the Hindu world, but in practice it frequently diverges. Custom is
changeable and varies according to the locale but dharma, as revealed
by the sages, is eternal, unitary (based on the dogma of consensus)
and unifying.21 It is through the instrumentality of custom and royal
ordinance that dharma may become legally binding. Thus custom
may constitute a source, an instrument and a product of dharma. The
ideal and the actual are not, as critics of academe may care to note,
unmeeting opposites; they enjoy an intimate and complex relation-
ship. But this relationship is not inevitable. Dharma-enforcing cus-
tom may change, thereby retracting the legality and, according to
some views the authority, of the dharmic precept concerned by a proc-
ess akin to desuetude.22
The relationship between dharma and royal ordinance is also
close. The early dharmasutras reflect the Brahmins' earliest efforts
to provide rules for the chiefs' justice and to integrate it within their

puted by Loewenstamm, "The Phrase X (or) X plus one in Biblical and Old
Oriental Laws," 53 Biblica 543 (1972); and see further Jackson, Essays in Jew-
ish and Comparative Legal History ch. VI (1975).
17. E.g., Greenberg, "Some Postulates of Biblical Criminal Law," Yehezkel
Kaufmann Jubilee Volume 18 n. 25 (19,60); Finkelstein, "The Goring Ox: Some
Historical Perspectives on Deodands, Forfeitures, Wrongful Death and the
Western Notion of Sovereignty," 46 Temple L.Q. 258 n. 276, 270 n. 312 (1973).
18. Weinfeld, Deuteronomy and the Deuteronomic School (1972).
19. Indeed dharma is applied to the physical laws of the universe as well
as the norms of society. In Kelsen's terms, it combines the principles of caus-
ality and imputation.
20. See especially xii-xiii, 257ff., and note Rhadakrishnan's definition at 258
n. 3.
21. At 176f., 180ff., 259.
22. Pt. 2, ch. 2.

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 1975] COMMENTS 495

already learned system for the expiation of sins.23 The king comes
to be regarded as having a dharma peculiar to his office, a religious
duty to protect his subjects and guarantee their security;24 his func-
tion is to support dharma, but dharma cannot prosper in disorder, so
that in some circumstances the ruler may prefer to sustain custom
which is contrary to it.25 The kings frequently did patronise the
dharmic scholars; it was often in their interest so to do since dharma
possessed a unity which was administratively more convenient than
diffuse custom. Indeed royal patronage assured the works of some
of the commentators and digest-writers a measure of official status
and consequently an enhanced legal authority.26 A healthy symbiosis
developed between the court and the dharmic scholar, one which may
have fostered the later confusion of their respective roles but which
in its day implied no blurring of the distinction between what we now
call natural and positive law.
The progression "from dharma to law" is first and foremost a lit-
erary phenomenon. The juridical content and technique of the sacred
texts increases from the dharmasutras to the dharmasastras. Yet
even at this latter stage the norms convey advice not binding law.27
The transformation of dharmic into legal precepts is a continuing as-
pect of the relationship between dharma on one hand, and custom and
royal ordinance on the other; but it is neither an inevitable nor a sys-
tematic process. The use of the dharmasastras as codifications is at-
tributable largely to the British judiciary. Yet even today the moral
authority of the dharmic texts remains independent of their actual
enforcement; the concept of dharma has not been superseded by that
of positive law.

As long ago as 1882 Sir Frederick Pollock pointed out the simi-
larity between the role originally played by the Hindu texts and that
of Roman law in mediaeval Europe: 28
. . . The Roman law was said to be the common law of the
Empire, but its effect was always taken as modified by the
custom law of the country or city. Stadtrecht bricht Land-
recht, Landrecht bricht Gemeinrecht. Thus the main object
of study was not a system of actually enforced rules, but a
type assumed by actual systems as their exemplar without
corresponding in detail to any of them. Under such condi-
tions it was inevitable that positive authority should be de-
preciated, and the method of reasoning, even for practical
purposes, from an ideal fitness of things should be exalted,

23. At 68.
24. At 207-8.
25. At 225-6.
26. At 229-30.
27. At 71-2.
28. Oxford Lectures and Other Discourses 30-33 (1890), comparing
relationship of English common law to the laws of the American st
also Lingat, 204.

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496 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 23

so that the distinction between laws actually administered

and rules elaborated by the learned as in accordance with
their assumed principles was almost lost sight of.
In light of more recent discoveries it may be suggested that the
similarity between the Hindu dharma and its counterparts in the an-
cient Near East is closer still, since it extends beyond the function
of the norms within the context of legal systems to the very nature
of the conception. The ancient Egyptians, we are told, had no word
for law in general:
The all-embracing term which applied to legal procedure and
the spirit in which legal procedure was undertaken was
ma'at, which in different contexts may mean: 'order, right,
right-dealing, rightfulness, righteousness, truth, justice.'
There was no distinction between 'truth' and 'justice'; both
were covered by the term ma'at. Thus ma'at as 'truth' in-
volved right relations to 'facts' as they were understood in
a sacred society, and ma'at as 'justice' involved right relations
between the governor and those who were governed as this
was understood in a sacred society. The concept of ma'at def-
initely belonged to the religious order; it was the substance
upon which gods fed; it was the daily offering of the king
to the gods. It was thus a spirit which properly pervaded
the civil carrying out of government and justice for the ends
of religion.29

Likewise in Old Babylonia no technical term for law existed.30 Ham-

murabi proclaims in the prologue his desire to establish kittum u
mesharum, of which the latter refers either to equity in general or, as
some take it, to the process by which equity is secured by the king.31
The former denoted the sum of the eternal and immutable truths upon
which the cosmos was founded and which the laws strove to safe-
guard.32 Yet the king was not himself regarded as the creator of kit-
tum; rather he was divinely commissioned to formulate rules designed
to implement it.33 Indeed even Shamash himself received kittum
from a superior source, a source recently described as "a metadivine

29. Wilson, "Authority and Law in Ancient Egypt," Suppl. 17 JAOS 6-7
(1954).
30. Paul, supra n. 13 at 5.
31. Speiser, "Authority and Law in Mesopotamia," Suppl. 17 JAOS 13
(1954), stressing the distinction between the two terms. This view seems p
erable to that of Driver and Miles, supra n. 10 at 23, who virtually take the
phrase as a hendiadys and suggest that it corresponds to "something like law
and order".
32. Speiser, ibid. See further Landsberger, "Die babylonischen Termini fur
Gesetz und Recht," Symbolae ad iura orientis antiqui pertinentes Paulo Kos-
chaker dedicatae 219-34 (1939); Greenberg, "Some Postulates of Biblical Crim-
inal Law," Yehezkel Kaufmann Jubilee Volume 9 (1960).
33. Prologue to LH, col. va lines 14-24. The rules themselves, to which the
term mesharum is applied, are also said to be commanded by Shamash, col.
xxivb lines 84-8. For the interpretation of the relief on the stele as an investi-
ture of the king by Shamash, see Paul, supra n. 13 at 7-8.

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 1975] COMMENTS 497

realm . . . a transcendent primordial force upon which the gods de-

pend," and one to which the powers of nature, fate, time and magic,
together with kittum, belong.34
The role of the king in mediating kittum, and the distinction be-
tween its nature and authority and that of the positive law actually
administered, is aptly expressed by Greenberg: "While the ideal is cos-
mic and impersonal, and the gods manifest great concern for the es-
tablishment and enforcement of justice, the immediate sanction of the
laws is by the authority of the king. Their formulation is his, and
his too . . . is the final decision as to their applicability."35' It is thus
part of the king's function to translate kittum into law but this does
not mean that all kittum will inevitably be translated into law nor
that everything the king does serves this purpose. The actual
origin of the truths identified with kittum has been located by Kraus
in the Babylonian wisdom tradition. Hammurabi is described as
emqum, a wise man, as well as sar meshar1um, a king of justice. The
appellation emqum is that typically used of the scribe rather than the
judge. The wisdom circles which were responsible for the drafting
of the Laws projected the king in their own image in recognition of
the authority which the king was giving to the wisdom-laws contained
in the monument.36

In the Bible the relationship between God and torah is differently

conceived.37 God is the author, not merely the commissioner of torah;
it is his creation, the product of the divine not the metadivine. The
change is closely related to the Biblical rejection of polytheism (which
receives strong expression in Hammurabi's prologue and epilogue).
Nevertheless the moral, non-legal nature of the authority of torah,
comparable to that of dharma (and, one may conclude, to that of kit-
tum too), is indicated by the very etymology of the word itself; for
the primary meaning of the noun torah is "instruction, teaching"38
rather than nomos, law. The wisdom orientation of torah in content
and origin is particularly clear in Deuteronomy,39 and the relationship

34. Paul, supra n. 13 at 6.

35. Ibid. at 10.
36. Kraus, supra n. 4, esp. at 290; Paul, supra n. 13 at 24 n. 1; Weinfeld,
supra n. 18 at 151 n. 1.
37. Greenberg, supra n. 17 at 11, though other aspects of the differences be
tween Biblical and mesopotamian concepts there proposed are more conten-
tious (see Jackson, "Reflections on Biblical Criminal Law," 24 JJS 8-38
(1973), esp. at 26-9). There are however some interesting parallels between
the Biblical and Babylonian idioms for justice. Deuteronomy 6:18 hatov weh-
ayashar is sometimes regarded as an equivalent to LH's kittum u mesharum,
yashar and mesharum deriving from a common root. Weinfeld, supra n. 18 at
150f., now suggests that Deuteronomy 4:8 mishpatim tsedokim is an (hostile)
allusion to LH's dinat misharim.
38. From the root yarah. At Exodus 24:12 God bids Moses receive "the
tablets of stone . . . which I have written for their instruction."
39. Weinfeld, passim, eso. at 3 approving Klostermann, Der Pentateuch 344
(1907), 151 n. 1, 298-306; Falk, "On the Study of Jewish Law," 4 Dine Israel
v-vi (1973).

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 498 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 23

of scribes and king recently laid bare by Weinfeld is strikingly similar

to that manifest in the first Babylonian dynasty described above.
In India custom appears to have been both a source of dharma
and an instrument in its implementation as law. But the content of
dharma did not always conform to existing custom (local customs,
moreover, frequently conflicted) nor did custom always fall into line
with dharma. In the ancient Near East the role of custom is more
difficult to ascertain, and from some of the literature one might con-
clude that it played no role at all. For example Yaron concludes from
a formal analysis of the Laws of Eshnunna that "quite generally
speaking, one may assume that the rules of behavior embodied in the
Laws will have their origin either (i) in the activities-in various
spheres-of the ruler, or (ii) in litigation (judge-made-law) . . . all
sections not using shumma iawilum reflect one form or another of
"statute" law; most of the sections using shumma awilum, but not all
of them, reflect litigation and precedents ("common law"). "40 The in-
fluence of modern models of legal systems is virtually acknowledged
in this formulation and in a number of respects it provides an incom-
plete picture. First, it deals only with what in a modern system are
regarded as "direct" sources. Even if all the provisions introduced by
shumma awilum originated in actual litigation where a point of law
was raised, there would still be a great deal of noncontentious law
presupposed. Thus for example LE 22 cannot have originated in litiga-
tion designed to set a precedent for the case in which a man distrained
upon another's slave-girl despite the absence of (or, more likely, the
repayment of) a debt unless the legality of such distraint where there
was an outstanding debt was presupposed. In all probability this lat-
ter rule was customary in origin. By including LE 22 the draftsman
necessarily approved not only the contentious point which may have
been litigated but also the presuppositions which underlay that case.41
Second, Yaron's argument comes close to confusing the origin of par-
ticular laws with that of the form in which they are expressed. There
are indeed good reasons to conclude that the casuistic form42 originates
in the law-court.43 But once in circulation it is readily adapted to

40. The Laws of Eshnunna 69 (1969).

41. For biblical law, the classical example is Deut. 24:1-4, where the insti-
tution of divorce by delivery of a written document is presupposed. This ex-
ample is all the more striking if one accepts the view that sources such as Hos.
2:4 reflect an earlier procedure, by uttering solemnia verba. On the Deuter-
onomic provision, see most recently Toeg, "Does Deuteronomy XXIV, 1-4 In-
corporate a General Law on Divorce?", 2 Dine Israel v-xxiv (1970).
42. I.e. a conditional protasis [introduced by shumma (Akk.), ki (Heb.), si
(Lat.)] in which the issue is set forth, followed by an apodosis containing the
legal solution.
43. A good illustration of the promulgation of a casuistic law as a result
of a decided case is Numbers 27:1-11, which combines the following compo-
nents: (a) The daughters of Zelafhad, whose father has died without leaving
a son, complain that according to the law as it then stood they would be ex-
cluded from the inheritance, vv. 1-4; (b) Moses seeks an oracular decision on
their claim. Judgment is given for the daughters of Zelafhad, vv. 6-7; (c)
Moses is thereupon instructed to proclaim the law to the Israelites as a prece-

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 1975] COMMENTS 499

other uses. Thus for example it is used in Babylonian omen litera-

ture44 and later by the Roman jurists.45 There is no reason why the
author of LE may not have used the form to express customary, un-
litigated rules.
The argument against customary law in the ancient Near East
has been expressed more directly by Haase,46 who poses two extreme
alternatives: the one of the Justinianic (but not, following the pre-
dominant view, classical) Roman conception of customary law, which
has found its way into modern legal systems and in German is denoted
Gewohnheitsrecht; the other that of an original social order, a Sitten-
recht, unchangeable, unwritten, undifferentiating between legal and
other obligation, a minimal social order designed only to hold a rudi-
mentary society together. Finding neither the former expressed in
the sources nor the type of society presupposed by the latter, he allows
only that there may have been a "non-technical" use of custom and
takes most of the extant collections as predominantly reforming docu-
ments, the one exception being the Middle Assyrian Laws which he
regards as a collection of customs.
Haase thus argues on the one hand from modern, Western and
on the other from "primitive," anthropological models. No stricture
is hereby intended, for the historian can do no more than proceed from
the known to the unknown. Unlike Roman law the mesopotamian
collections do not classify their sources of law; indeed "sources of law"
(with its positivist implications) may have been a foreign concept to
them. It is therefore quite legitimate to use outside models of the
role of custom in constructing hypotheses. But Roman and Roman-
derived models of statutes and precedents are not the only alterna-
tives.
The Indian model has a number of advantages. It does not require
us to regard codification and reform as non-combinable elements.
Statements of dharma embodied existing custom only insofar as exist-
ing custom conformed to current notions of dharma. Similarly, we
may suppose, the scribes of Babylonia adopted customary rules only
insofar as the latter conformed to their notions of the laws which wis-

dent. The terms of the law so to be declared are expressed in one of the nor-
mal, casuistic forms ('ish ki. . .; we'im. . .; we'im. . . Cf. Leviticus 27:1-8;
Numbers 5: 5-8, 11-28; 30:2-16). In fact the passage may well not be unitary:
for in (a) and (b) the daughters only claim, and are only granted, a share
in the estate along with their father's brothers, while in (c) the right of broth-
ers is (as in Roman law) deferred; moreover, (a) and (b) are concerned only
with succession in the absence of sons, while (c) sets forth a complete system
of intestate succession. Nevertheless, the literary construction itself suggests
an awareness that decided cases could give rise to proclamations of generally
applicable law couched in casuistic form.
44. See Kraus, supra n. 4 at 288.
45. Here, it is typically found subordinated to a more general form, e.g. Ga-
ius, Inst. 1.28-9; 3.139-40. Cf., earlier, Plato, Laws IX.915D; XI.923C; Demosth.
in Macart. 57.
46. "Gewohnheitsrecht," 3/5 Reallexikon der Assyriologie und vorderasia-
tischen Archdologie, Ebeling, Meissner, Weidner, eds., 322-3 (1968).

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500 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 23

dom dictated. To suppose that the ideal was so totally removed from
the actual as to preclude any overlap is to imply that the scribes were
guided by values so different from those of the population at large
as to make them a society apart. The real question is not "codifica-
tion or reform" (i.e. restatement or amendment of customary law) but
"How much does the ideal conform to the actual, and how much does
it diverge?" Some answers are available but they point, predictably,
in both directions.47 Nor is the situation helped by the existence of
a genre of "literary legal decisions," literary presentations of (ideal?)
cases.48 The degree of conformity may well differ from document to
document but conclusions about such differences would be premature.
Dharma operated also as a unifying force in the face of the multi-
plicity of local custom. Political circumstances in both the first Baby-
lonian dynasty and the original Israelite monarchy were such as to
create a similar need: in the former the incorporation of both Sumer
and Akkad; in the latter the unification of both northern and southern
elements of the former tribal amphyctiony. In the prologue to the
Laws of Hammurabi there may be a reference to linguistic unifica-
tion;49 at any rate we know that the draftsman made use of both Su-
merian and Akkadian models.50 In the Bible the unification of the
tribes on the basis of a single Torah is a pervasive theme.
The classical Indian texts contain a number of notions which
amount to a theory of desuetude significantly different from our
own.51 Since dharma is not, per se, legally binding the existence or
emergence of a local custom contrary to a dharmic precept creates
no problem of legality; to say that custom here abrogates a religious
duty is merely to misstate the fact that dharma and custom operate
in spheres which possess no necessary relation to each other. The real
problem of desuetude in the texts is whether the custom abrogates
or suspends the religious duty (and the consequent penance for its

47. See the conclusion of Driver and Miles, supra n. 10 at i.24, that the
practice documents "exhibit neither close correspondence nor striking differ-
ences" to the Laws. For a frequently cited example of divergence in the theft
laws, see Jackson, "Principles and Cases: The Theft Laws of Hammurabi," 7
The Irish Jurist 161-70 (1972). For ancient Israel there is virtually no docu-
mentary evidence independent of the Bible itself [On the Elephantine Papyri,
see Yaron, Introduction to the Law of the Aramaic Papyri 115f. (1961)]. The
fourfold penalty for theft and slaughter of a lamb (Exodus 21:37) is reflected
in 2 Samuel 12:6 [see Jackson, Theft in Early Jewish Law 144-8 (1972)]; on
execution against the person of the debtor or a member of his household, see
2 Kings 4:1; Job 24:9; Elon, Herut haperat bedarkhei geviyat hov bamishpat
ha'ivri 1-9 (1964).
48. Greengus, "A Textbook Case of Adultery in Ancient Mesopotamia," 40-
41 HUCA 43 (1969-70), and literature there cited.
49. The common translation, which has Hammurabi assert that he has es-
tablished kittum and mesharum "in the language of the land" (Col. va, line 22)
is not universally adopted. See Jackson, supra n. 37 at 10-11 n. 21.
50. On the relationship of (the Sumerian) Lipit-Ishtar 10 to LH 59, see
Driver and Miles, supra n. 10 at i.161-2 n. 4; Jackson, supra n. 16 at 162; on
that of (the Akkadian) LE 53-5 to LH 250-52, Yaron, "The Goring Ox in Near
Eastern Laws," 1 Isr. L.R. 396-406 (1966).
51. Lingat, 195-206. See also 189-195.

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 1975] COMMENTS 501

breach). The problem receives less prominent statement in the Sem-

itic societies. In the talmudic period we do find the maxim "custom
annuls halakhah." Traditional Jewish interpretation gives this rule
a very restricted scope of application but it has been suggested that,
in some circles at least, its importance may originally have been
greater.52 Of course the concepts of torah and halakhah had by tal-
mudic times acquired the force of legality; a minimalist notion of des-
uetude comparable to that in modern systems of law (despite differ-
ences in the theories they proclaim)53 is therefore to be expected. As
for the earlier period, the possibility suggested by the Indian material
that a general notion of law-annulling custom (as later expressed)
merely reflects the non-legal authority of the Torah (as originally con-
ceived) may merit investigation.
In considering possible equivalents to the relationship between
dharma and royal ordinance we find ourselves on firmer ground. The
royal duty to patronise the learned, described by Lingat,54 was amply
fulfilled in Old Babylonia and 7th century Israel, as shown by Kraus55
and Weinfeld56 respectively. But in Babylonia we find clear evidence
of the king's role vis-a-vis (positive law) ordinance as well as (natural
law) dharma. It was common practice for the king at or near the
beginning of his reign to issue a "mesharum-act" (often referred to as
an "edict") which was principally concerned to remit certain debts
and effect certain reversions of land.57 Formally, these edicts are

52. Falk, Introduction to Jewish Law of the Second Commonwealth 16-17

(1972). For the traditional restrictions, see Elon, "The Sources and Nature of
Jewish Law and Its Application in the State of Israel," 2 Isr. L.R. 547-8 (1967);
id., 2 Jewish Law (Heb.) 732-7 (1973).
53. For a criticism of the traditional common law denial of desuetude, see
Harari, "Desuetude," 25 JJS 112-13 (1974) (Studies in Jewish Legal History
in honour of David Daube, Jackson ed.).
54. E.g. at 83.
55. Supra n. 4.
56. Supra n. 18, passim, esp. at 5, 164, 170-71. Cf., earlier, Mendelsohn,
"Authority and Law in Canaan-Israel," Suppl. 17 JAOS 31 (1954). Weinfeld's
identification of the immediate source of much of Deuteronomy as the court
scribe has attracted some criticism from McCarthy in his review at 54 Biblica
451-2 (1973), but the latter's suggestion that "the educated man or group in
Judah who knew the political situation in his country might have produced
a work which showed knowledge of the treaties and the wisdom themes" begs
the questions (a) whether there were such men outside the court; and (b)
whether such circles, if they existed, are as likely as the court scribe to have
enjoyed the kind of authority which the historical books suggest the king gave
to Deuteronomy. One may note that the importance of circles akin to those
posited by Weinfeld is not peculiar to early antiquity. Fischel, Rabbinic Liter-
ature and Greco-Roman Philosophy 34 (1973) observes the existence of an
"academic tradition of scholar-bureaucracies which resembled each other to a
certain degree and were in contact with each other in the classical, Christian,
and Jewish worlds in the first two to three centuries of Roman Imperial
times." We may add that the development of Sanskrit studies in the West in
the nineteenth century was itself, in large measure, the work of a comparable
6lite.
57. Kraus, Ein Edikt des K6nigs Ammisaduqa von Babylon (1958); Finkel-
stein, supra n. 13 at 91-104 and in ANET, 526. The principal text derives

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502 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 23

quite distinct from the so-called "law codes" in that they lack prologue
and epilogue and are for the most part couched in a form more dis-
tinctly legislative than that of the (predominantly casuistic) "codes."58
The reality of the economic measures contained in them is attested
by contemporary documents. But in addition to the main body of
the regulations, which were of temporary effect, there were also
some reforms of a permanent nature, some of which it is thought
were ideal or at least unenforceable.
The literary relationship of the mesharum-act to the "law code"
in the context of any single reign was the converse of that suggested
by Lingat for dharma and royal ordinance. In ancient Mesopotamia
proclamation of a mesharum-act earlier in his reign was one of the
achievements of which the king proudly boasted in the prologue to
his "law-code," and it was the mesharum-act which provided some (in
fact a relatively small proportion) of the code's substantive provisions.
Surprisingly, some of the more ideal-sounding provisions fall into this
category; price and wage regulations59 and reversions of land. In the
case of redemption ex lege of the person of a debtor or a member
of his family upon whom the creditor has foreclosed we find that the
temporary alleviation contained in Ammisaduqa's edict60 is institu-
tionalized in (the earlier) LE 117 which provides for automatic release
after three years of service. If the argument here presented is correct
the provision in LH may be viewed as a wisdom-law, a statement of
what the law ought to be. But at the same time we may not overlook
its close relationship to royal ordinance. Both are expressions of the
same value, freedom of the debtor's person, and both derive from the
same, royal source; but one represents the extent to which the court
sought to implement the ideal while the other constitutes a statement
of the ideal unaffected by considerations of practicality. Although
in any one reign the mesharum-act precedes the "law code" (where
both are found) it should not be concluded that kittum in old Baby-
lonia was merely an idealization of positive law. The relationship be-
tween the two, as shown by the prologues and epilogues to the codes,
was conceived much as that between dharma and royal ordinance in
India: the king's mesharum-act was itself an implementation of kit-
tum.61
It is the mixture of ideal and positive law together with the very

from a later king of Hammurabi's dynasty, but the genre is attested also by
other fragments and references in contemporary documents.
58. Esp. the use of the passive, e.g. "The arrears . . . are herewith re-
mitted" (2). For some correspondences between the proclamations in LE and
the edict, see Yaron, supra n. 40 at 68, 69.
59. Cf. Finkelstein, supra n. 13 at 103.
60. ? 20, in ANET, 528.
61. In the light of this the frequent ancient Near Eastern and Biblical
theme of the king's duty to protect the widow, orphan, and poor may well be
considered more than a pious hope. See Mendelsohn, supra n. 56 at 26, on the
Canaanite Keret and Aqhat legends; Fensham, "Widow, Orphan and the Poor
in Ancient Near Eastern Legal and Wisdom Literature," 21 JNES 129-39
(1962).

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 1975] COMMENTS 503

incomplete correlation of the "codes" with practice documents that

leads Klima to conclude that the Laws of Hammurabi are both legis-
lative and literary.62 It is form-criticism which leads Yaron to iden-
tify different sources in the Laws of Eshnunna.63 But in both cases
modern models have distorted part of the picture through the assump-
tions, in the one case, that official promulgations of norms deriving
from a supreme authority are ipso facto intended to be binding, and in
the other, that certain drafting techniques are peculiar to the parlia-
mentary draftsman seeking to avoid possible difficulties which may
arise in the course of verbal interpretation.04
The role of the Biblical kings in implementing torah and the rela-
tionship between torah and royal ordinance in Biblical times is impos-
sible to verify by evidence independent of the Bible itself; care must
therefore be taken to guard against the possibility that the king's role
has not been portrayed in terms of the ideal rather than the actual.05
Nevertheless, some reliable evidence appears to be available, its plaus-
ibility reinforced by its closeness to the ancient Near Eastern prac-
tices already described. Weinfeld views 2 Samuel 8:15 as a reflection
of David's mesharum-act;66 more strikingly, J. Lewy has identified a
Biblical act of emancipation, deror,67 which parallels the Edict of Am-
misaduqa's automatic redemption of debt-slaves.68 Here too, we may
note, the value of freedom of the debtor's person receives institutional
recognition in the torah itself. Exodus 21:2 provides for emancipation
ex lege after six years and it has recently been pointed out that this
is conceived in Deuteronomy 15:18 as double the normal period of

62. CRAI 312-3 (1972).

63. Supra n. 40 at 59-71. The variety of forms in LE leads Finkelstein to
distinguish this collection from the "law-codes" and assign it to a category in-
termediate between them and the edict (the latter being itself considered an
expostfacto literary presentation rather than an original, authoritative text of
the edict actually proclaimed). See 15 JCS 102 (1961).
64. I refer here not to the grammatical forms by which Yaron and others
distinguish various Sitzen im Leben but to the minutiae of drafting within the
forms, by which he seeks further to identify the origins of particular laws in
statute or precedent. At 70 he observes: "The combination of equivalents in-
dicates the 'statutory' origin of a provision, or at least reformulation by the
compiler," and cites the unnecessary cumulation of masculine and feminine as
an example. The formula "X or (X + 1)" (on which see literature cited supra,
n.16) falls into the same category. In this latter case the Biblical occurrences
of the formula outside the Pentateuch occur chiefly in sources associated with
wisdom and its identification as a wisdom trait seems more likely than the
conclusion that it derives from an ancient parliamentary draftsman. A sys-
tematic examination of wisdom language along these lines is clearly needed.
For the moment, see Roth, Numerical Sayings in the Old Testament 88 ff., 99
(1965); Whybray, The Intellectual Tradition in the Old Testament 73 (1974),
and literature there cited.
65. As, most likely, in the account of the Josianic reformation.
66. Supra n. 18 at 153-4, 385.
67. Lewy, "The Biblical Institution of deror in the light of Akkadian Docu-
ments," 5 Eretz Israel 21-31 (1958), on Jeremiah 34 (in which the temporary
nature of the effects of Zedekiah's measure is central). See also Finkelstein,
supra n. 13 at 104; Weinfeld, supra n. 18 at 153 n. 1.
68. Supra n. 60.

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504 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 23

service, in apparent allusion to LH 117 or some rule related thereto.69

Emancipation of debt-slaves is a fundamental aspect of the ancient
Near Eastern mesharum-act as may be seen from the fact that in some
circles the terms andurarum (to which the Biblical deror is related)
and mesharum were interchangeable.70
A particularly interesting aspect of the interaction of local rules,
royal ordinance and wisdom-law is illustrated in the Hittite provisions
concerning capital offences. A set of instructions to garrison-com-
manders contains the following:
As in the various countries the control of capital offences has
been exercised in the past-in whatever city they used to ex-
ecute him, they shall execute him, but in whatever city they
used to banish him they shall banish him.71
From this, Gurney correctly concludes that the law varied in different
parts of the land, and we may further note that such local variation
receives royal endorsement. Royal ordinance is here at one with posi-
tive law. Giuterbock however suggests that this provision contradicts
the homicide rules of the Hittite Laws (?? 1-4), where no death penalty
is to be found, and concludes that we have here evidence that the Laws
were not enforced uniformly throughout the empire.72 In fact the
instruction quoted by Gurney contains no reference to homicide at
all. The general law on the subject is to be found in the Proclama-
tion of Telepinus which leaves the "master of the blood" (a kinsman
of the deceased) with discretion to seek blood-vengeance or not;73
while the Laws, manifestly an academic document (as may be seen
from their frequent references to what the law was "formerly") govern
only the case of unpremeditated homicide.74 There is no contradic-
tion between the royal ordinances and the Laws in this instance: in
substance they complement each other. But it is significant that it is
the Laws which, like many of their counterparts in the ancient Near
East, deal with the more interesting case. Here too we may be dealing
with wisdom-laws.75

The progression from dharma to law described by Lingat is a

literary phenomenon; throughout the history of Indian law dharma
and piositive law coexisted but increasingly texts originally written as
dharma came to be viewed, often by foreign conquerors, as legally
binding. Thus stated the progression has no parallel in the ancient

69. Zakovitch, "Some Remnants of Ancient Laws in the Deuteronomic

Code," 9 Isr. L.R. 349-51 (1974), citing also Isaiah 16:14 (MT) and 21:16
(Qumran MS).
70. Finkelstein, supra n. 13 at 104 n. 19.
71. Gurney, The Hittites 89 (1952).
72. Giuterbock, "Authority and Law in the Hittite Kingdom," Suppl. 17
JAOS 23 (1954).
73. Neufeld, The Hittite Laws 153 (1951).
74. Jackson, supra n. 16 at 154-55.
75. For discussion of the nature of the Hittite Laws, see Neufeld, supra n.
73 at 107ff; Imparati, Le leggi ittite 3-4 (1964), and literature there cited.

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 1975] COMMENTS 505

Near East.76 In Jewish law however it recurs with great clarity once
one accepts that our present torah was not originally composed or
compiled as a lawbook. That is not to say that every component part
of the torah was intended as a collection of wisdom-laws. Though
this may well have been so in the case of Deuteronomy it is less
obvious in the case of the earliest legal collection, the Mishpatim or
Covenant Code of Exodus 21-22, which may originally have been in-
tended as a statement of positive law if not a statute of which the
wording was verbally binding. But we have seen already that in
India, Old Babylonia and the Bible itself positive law may represent
one source of dharma or wisdom-law.
The progression from dharma to law probably commenced within
the Biblical period. It is suggested by the account of the Josianic ref-
ormation77 and later in the constitution of the post-exilic commu-
nity.78 But we may be confident that the wisdom-laws given legal
authority at those times were not identical to the Torah in its present
form; if form-criticism can tell us anything it must make irresistible
the conclusion that the final editors of the torah did not themselves
conceive of the five books as legally binding. Nevertheless, later gen-
erations completed the process. The Hellenistic equation of torah and
nomos is often regarded as a significant factor in this regard.79 From
the tannaitic period, commencing with the destruction of the second
temple in A.D. 70, the evidence is clear. Verbal interpretation, the ab-
sence of which was noted by Driver and Miles in the case of the Laws
of Hammurabi, occurs on every page of the early rabbinic commen-
taries on the Torah and is prominent also in the Mishnah and Tosefta
even though not written in the form of commentaries. Indeed this
history was to be repeated in mediaeval, rabbinic law. The code of
Maimonides (the Mishneh Torah) was the work of a private jurist
which did not receive acceptance as binding halakhah until well after
its author's death.80 Though the issue is less clear the same has been
suggested for both the Mishnah and the Talmud.8'
We may safely conclude that the Indian model, as described by
Lingat, has significant parallels in both the ancient Near East and
Jewish law; moreover, the phenomena under consideration are suffi-
ciently clear to have attracted the attention of scholars working inde-
pendently in these two culture areas. It is possible (I put it no higher)

76. Despite the view of the history of the Hittite Laws expressed by Neu-
feld, supra n. 73 at 109; Gaudemet, Institutions de I'Antiquite 86 (1967). The
popularity of the text does not necessarily indicate its legally binding nature,
as the history of the LH shows.
77. 2 Kings 22:8-23:25. But even here there is no indication that the text
of the rediscovered book was given to the judiciary.
78. Ezra 7:10, though the emphasis on teaching is still very prominent.
Falk, supra n. 52 at 5.
79. E.g. Falk, ibid at 6.
80. Silver, Maimonidean Criticism and the Maimonidean Controversy 1186-
1240 (1965); 5 Enc. Jud. 638ff.
81. For the Mishnah, see Neusner, ed., The Modern Study of the Mishnah
(1973); for the Babylonian Talmud, see e.g. 15 Enc. Jud. 764.

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506 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 23

that a similar model may also aid our understanding of aspects of early
Roman legal history. The problem is immense and only the briefest
consideration can here be given to it.
The effect of the comparative material may best be put in negative
form: certain assumptions of modern historians are proved thereby
not to be universally valid. Thus the writing down of a collection
of norms does not necessarily mean that all or even most of those
norms were intended to be enforced; the attribution of such a collec-
tion to royal authority, even if correct, does not necessarily mean that
such a collection was intended for statutory interpretation in the mod-
ern sense; even drafting comparable to modern statutory drafting
need not necessarily have been intended for such interpretation; the
concept of law represented by modern positivism (described by Lingat
as the notion of legality, as opposed to that of authority) is not nec-
essarily the concept of law dominant in ancient societies; the later
application of the notion of legality to a particular text does not nec-
essarily mean that such a notion was originally applied to it; publica-
tion of a collection of norms does not necessarily imply that those
norms have a single origin; an altered conception of the significance
of a particular collection (or indeed a change in the very concept of
law) need not necessarily result from spontaneous, purely internal
factors; custom, royal ordinance and wisdom-laws need not necessarily
operate on unconnecting planes: their relationship on the contrary
may be intimate and complex; collections of wisdom-laws do not nec-
essarily confine themselves to cases where the ideal deviates from the
actual; provisions which appear to us ideal do not necessarily lack real
attempts at implementation. Many of these conclusions may appear
no more than statements of common sense, containing warnings
against anachronisms of which the cautious scholar needs no re-
minder. Yet all too often such considerations go unheeded.
Our understanding of early Roman legal history is strongly influ-
enced by modern models of legal systems-not surprisingly, since our
modern models stem largely from Rome, and the Roman historians
themselves already thought in such modern terms when they wrote
their accounts of legal development in the early centuries of the city.
Nevertheless, elements of ancient tradition sometimes difficult to rec-
oncile with the mainstream of our information have survived and may,
with the help of comparative analysis, be given a real significance.
The kings of Rome are said to have proposed "laws," leges;82 Dio-
nysius and Plutarch both use the standard Greek term for law-giving,
nomothetein, in describing the activities of Romulus.83 Nevertheless,
scholars have been sceptical, and rightly so, about the notion of real
legislation at this period of the city's constitutional development. Re-
cently however Watson has advanced arguments in support of the tra-
dition.84 In fact the opposing views are capable of reconciliation if

82. Pomponius in Dig. 1.2.2.2.

83. Dionysius, Roman Antiquities 2.9.1; Plutarch, Romulus 22.3.
84. "Roman Private Law and the Leges Regiae," JRS 100-105 (1972).

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 1975] COMMENTS 507

we consider the model of the mesharum-act of Old Babylonia. It is

far from clear that the leges regiae were permanent in their effect.
In some respects they appear to contradict the Twelve Tables85 yet
the latter are said to have been based upon "ancestral" Roman law.86
An important element in them, though far from the dominant ele-
ment, was social protection in the form of regulation of the relation-
ship between patron and client87 and in the early Republic this tradi-
tion was maintained in the leges and plebiscita concerning debt and
agrarian reform.88 The king, according to Dionysius, was charged
with "the guardianship of the laws and customs of the country and
the general oversight of justice in all cases, whether founded on the
law of nature or the civil law,"89 reflecting a dual role in relation
to both ideal and actual law which we have found to be prominent
in both classical India and ancient Babylonia. The positive law, it
seems, was not written down90 but some ius scriptum is attributed
to this period and is said to have "had the force of law."9' We are
not bound to conclude that this phrase indicates the binding force of
a statute ;92 in some respects the accounts of this regal written law
are suggestive of the dharma and kittum which as we have seen were
accorded court patronage in India and Old Babylonia. The books
which contained it are described as "sacred" by Dionysius93 and the
special role of the pontifex in relation to them is indicated by Livy.94
Wisdom associations are also to be found. Dionysius describes Numa
Pompilius as "a man of consummate wisdom and of rare sagacity in-
terpreting the will of the gods"95 and Livy has king Ancus Marcius
order the pontifex copy the rules concerning the state cult ex commen-
tariis regis.96 There is, moreover, one substantive parallel between
the content of the leges regiae and the Biblical and ancient Near East-

85. Watson, supra n. 84 at 102-3, on the power of the paterfamilias to ex-

pose infants and to sell a son married cum manu.
86. Dionysius 2.27.3. On the traditions suggesting Greek influence, see in-
fra, text at nn. 101-02.
87. Watson, supra n. 84 at 100-103.
88. See Pugliese, "Customary and Statutory Law in Rome," 8 Isr. L.R. 29-
30 (1973), describing such social measures as "two favourite objects of these
statutes."
89. 2.14.1 (Cary's translation): ". . . kai pantos tou kata phusin e kata
sunthekas dikaiou pronoein."
90. Watson, supra n. 84 at 105. Hence it cannot have been statutory in
modern sense.
91. Dionysius 2.24.1; 10.1.4.
92. nomon eiche dunamin (10.1.4). Cf. Justinian, Inst. 1.2.6., quod prin
placuit, legis habet vigorem, which goes far beyond the actual conclusion
rived from the imperium argument in the succeeding clause commencing qu
cumque igitur. Cf. also Narada 18.21, at Lingat 214-5.
93. 10.1.4.
94. Ab urbe condita 1.32.2. See also Watson's argument for the prese
tion of the leges regiae in the pontifical records, supra n. 84 at 104.
95. 2.23.6.
96. 1.32.2. Note also Cicero, de re publica 5.2, . . . Nihil esse tam regale
quam explanationem aequitatis: in qua iuris est interpretatio, and see St
Regulae luris 13 (1966), on aequum as a statement of what is right unacco
panied by authoritative formulation.

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 508 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 23

ern (including in this case Egyptian) wisdom traditions: all contain

a provision designed to prevent the removal of landmarks and all seek
enforcement by way of divine sanctions, in the East by way of a curse,
in Rome by devotion of the offender to the god, together with reduc-
tion of his status to that of an outlaw.97
In the light of recent discovery and investigation, the possibility
that the role of the Roman kings in relation to both positive and ideal
law may have been influenced by ancient Near Eastern conceptions
deserves some consideration. An independent genesis cannot of course
be excluded; the similarities between classical India and the ancient
Near East are themselves almost certainly attributable to independent
parallel development. But Semitic influence was present in early
Rome as the sixth century temple to Astarte, discovered in 1964,
shows98 and two recent articles have gone far to establish such influ-
ence, sometimes through the medium of relations with Carthage, upon
treaty terminology99 and, most significant for present purposes, the
structure of the early magistracy.100 Foreign influence upon the leges
regiae is indeed asserted by Dionysius, though the sources, he main-
tains, were Greek.'01 Similarly, Cicero in writing of the kings' judicial
activities comments that "it appears to me that our Numa in particular
held to this old practice of the kings of Greece."'102
When we reach the Twelve Tables the tradition of Greek influence
is even stronger and the statutory intention of the document is un-
equivocably maintained. Indeed these two elements are plausibly
combined by Livy, who presents the embassy to Greece as being di-
rected towards resolution of the dispute over who would propose the

97. Deuteronomy 19:14 and esp. 27:17; Dionysius, 2.74.2-4. For the ancient
Near Eastern kudurru inscriptions see Hinke, Selected Babylonian kudurru In-
scriptions (1911); Noth, The Laws in the Pentateuch and Other Essays 124-5
(1966). For the Egyptian and Biblical wisdom sources see Weinfeld, supra n.
18 at 265-7.
98. See Yaron, "Semitic Elements in Early Rome," in Daube Noster, Wa
son ed., 347-8 (1974).
99. Yaron, ibid at 348-51, on the Anderungsklausel of the foedus Cassia-
num; Weinfeld, "Covenant Terminology in the Ancient Near East and its influ-
ence on the West," 93 JAOS 190-99 (1973). One point may be added to Wein
feld's data. The Hebrew, Phoenician, and Aramaic phrases "to cut a covenant"
(used to denote the establishment of such a relationship) is paralleled not only
by the Greek horkia temnein, but also the Latin foedus ferire. See Lewis an
Short, A Latin Dictionary, s.v. ferio; Bickerman, "Couper une alliance," 5
AHDO 133ff. (1950); Rabinowitz, Jewish Law. Its Influence on the Develop
ment of Legal Institutions 1-2 (1956).
100. Yaron, supra n. 98 at 351-4.
101. E.g. 2.8.1-2. We may note that Dionysius was an eager comparatist,
and a diffusionist not lacking in sophistication. See e.g. 2.19.3: ". . . even
though she (Rome) has, in pursuance of oracles, introduced certain rites from
abroad, she celebrates them in accordance with her own traditions, after ban-
ishing all fabulous clap-trap". Cf. 2.9.2. For evidence of contacts between
Greece and Rome before the Twelve Tables see Jolowicz and Nicholas, Histori-
cal Introduction to the Study of Roman Law 112 (1972), citing Gjerstad, Early
Rome 582, 586-7, 597-8 (1966).
102. De re publica 5.2.

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 1975] COMMENTS 509

laws (which would determine upon whom they were binding'03)

rather than what they should contain.104 The ferment which had pro-
voked the constitutional crisis was concerned not with the substance
of the law but with the inconsistency of its application by the magis-
trates.105 That it was the binding character of the Twelve Tables that
made them so important'06 is indicated by Dionysius when he records
that even once ratified by the people in the comitia centuriata, the
laws needed "some magistracy absolute in power . . . in order that
willingly or unwillingly people might abide by them."'107
We have observed that the absence of evidence of statutory inter-
pretation in the ancient Near East suggests the absence of verbally
binding statutes.108 Their origin, it seems, is to be found in the work-
ings of the democracies of Greece'09 for it is there, in the form of
the orators' interpretations of statutes before the popular jury-courts
of Athens, that the earliest examples of verbal interpretation are to
be found. The repercussions of this unique development were re-
flected in the Roman Twelve Tables. Moreover, this is also the period
of the canonisation of the Pentateuch, which had the effect of turning
wisdom-laws into statute. Though the beginnings of this process
probably go back to the seventh century, the major step in turning
from torah to nomos may well have been occasioned by developments
in Greece.
So revolutionary a change in Roma legal conceptions as appears
to be signified by the Twelve Tables cannot have occurred without
leaving some traces of older conceptions. In the late Republic the
Twelve Tables were not regarded merely as the origin of positive law;
they were, we are told, learned by schoolchildren of Cicero's genera-
tion."10 The notion of eternal law, a feature of dharma, kittum and
torah, was applied even to lex in the early period, as may be gathered
from the verb abrogare, which literally translated means "to propose
something different from . . .", and only by extension "to repeal.""'
In theory, it seems, even a superseded law remained a law just as
dharma, kittum and torah retained their validity despite the absence

103. As may be seen from the status of plebiscita before the lex Hortensia,
according to Gaius, Inst. 1.3.
104. 3.31.8. Cf. 3.34 on confirmation of the decemviral draft by the whole
people in the comitia centuriata. Dionysius on the other hand regards the sub-
stance as eclectic, 2.27.3; 10.57.5.
105. Dionysius 2.27.3; 10.1.2; 10.2.1. This is not quite the same as the form
in which the account is often given, that the plebeians complained at having
no knowledge of the law. Such a suggestion is made by Dionysius 10.1.4, but
he refers to the sacred, pontifical books which as has been suggested above
may have represented ideal rather than positive law.
106. Livy 3.34.6 refers to them as fons omnis publici privatique iuris.
107. 10.58. 1.
108. Supra, text at n. 10-12.
109. On the importance and ideology of statutes in Attic law see Vinogra-
doff, 2 Outlines of Historical Jurisprudence 72-5 (1922).
110. De legibus 2.9.
111. Biscardi, "Apergu historique du probleme de l'abrogatio legis," 18
RIDA 449-70 esp. 457 (1971). Cf. Stein, Regulae luris 19-21.

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510 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 23

of enforcement. A similar idea is to be found in an argument of De-

mosthenes concerning implied repeal. Commenting upon the Athen-
ian constitutional requirement that no law inconsistent with an ear-
lier statute be proposed without expressly repealing the latter, he
comments that otherwise two inconsistent laws would exist, both of
them equally valid."12 A compromise had thus been effected: a law
might be deprived of its inherent permanence but nothing short of
express repeal was capable of so depriving it.

The effects of custom as an agent of repeal may also be better

understood when the duality of lex, as comprehending elements of
both the ideal and the actual, is taken into account. Desuetude has
presented historians of Roman law with some acute problems. The
earliest juristic statement is that of Julian, preserved in Justinian's
Digest,'13 that leges may be repealed even by the tacit consent of all
the people. Two centuries later a rescript of Constantine asserts that
the authority of consuetudo is not sufficient to prevail over ratio or
lex,114 and this source is preserved in Justinian's Code, which was in-
tended as a compilation of imperial legislation still in force. Without
more we might conclude that the Digest passage was of purely histor-
ical interest in Justinian's day. But the institution of desuetude is
given a place also in Justinian's Institutes,"15 which elsewhere gives
the Twelve Tables' penalty for personal injury as an example of an
institution which had fallen into desuetude.'"6 Thomas views such
historical elements in the Justinianic corpus as unreliable and main-
tains, following modern opinion, that Julian's statement is interpo-
lated." 7 He concludes that the role of custom as a positive and desue-
tude as a negative source of law is a development of postclassical times
attributable to conditions peculiar to that period. But the text of Ju-
lian shows no internal sign of spurity; indeed it is a well integrated
part of the passage which it concludes. And the interpolationist solu-
tion hardly solves the problem, as Thomas comes near to conceding
when he suggests that Julian's statement does not even represent Jus-
tinianic law.1'8 In fact, these various statements exhibit no necessary
contradictions if due attention is paid to their terminology. Julian
says that leges abrogentur by desuetude, and though this equally re-
fers to the context of abrogation by a later statute, we may still give
the verb its original meaning1'9 and conclude that desuetude merely

112. Timoc. 33ff.

113. 1.3.32.1: quare rectissime illud receptum est ut leges non solum suffra-
gio legis latoris sed etiam tacito consensu omnium per desuetudinem abrogen-
tur.
114. C.8.52.2: Consuetudinis ususque longaevi non vilis auctoritas, verum
non usque adeo sui valitura ut aut rationem vincat aut legem.
115. 1.2.11.
116. 4.4.7.
117. "Custom and Roman Law," 31 TvR 44-7 (1963); "Desuetudo," 12 RIDA
469-83 (1965).
118. 31 TvR 46 (1963); 12 RIDA 482 (1965).
119. Supra, text at n, 111.

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 1975] COMMENTS 511

suspends the operation of a lex.120 Similarly in India, custom may

negate the application of a given dharmic rule as ius positivum but
it does not alter its moral authority.'2' This, in effect, is what Justin-
ian maintains in the Institutes when he contrasts naturalia iura, which
are semper firma atque immutabilia, with those iura established by
each state for itself, which may often be changed by the tacit consent
of the people or a later lex.122 We may note that even in the latter
part of this proposition the subject is still iura (not lex).123 Natural
law is immutable but to the extent to which it is incorporated as posi-
tive law it may be changed (for the purposes of the positive law of
that state) by the tacit consent of the people. None of this requires
us to give desuetude the capacity to repeal (not merely suspend) lex.
Thus when Constantine states that the authority of custom and long
usage'24 is not small but is not sufficient ut aut rationem vincat aut
legem he contradicts neither Julian nor the Institutes. Desuetude
may not repeal a lex nor may it destroy the validity of reason; in
the former case because an explicit statement of popular will is more
authoritative than a tacit one, in the latter because custom and
ratio,'25 like custom and dharma, take their validity from entirely dif-
ferent spheres.
This is not the place to pursue in any detail the comparison of
the Roman ius naturale with the Hindu dharma. We may however
conclude by noting that the dual role of dharma as the ideal which
in part is actually practiced is reflected also in Roman sources. Gaius
regards ius gentium as the law which natural reason establishes in
all mankind126 and Justinian, in the passage of the Institutes discussed
above, implies that any state may draw upon iura naturalia as Ja source
of its own ius civile. Similarly, Ulpian observes that private law has
three sources, natural, common and civil rules.'27 Much has been
made in the literature of the difference between Ulpian's "trichotomy"
and the conception of Gaius. In logic however they are wholly com-
patible. Gaius says that naturalis ratio is ithe source of the ius gen-
tium; even if this means that every rule of the ius gentium, is
derived from naturalis ratio it does not imply the converse, that

120. This is, in fact, supported by Thomas's discussion of rules and leges
which had fallen into disuse in the classical period, 31 TvR 45-6 (1963). See
also Jolowicz and Nicholas, supra n. 101 at 353-5, and literature there cited.
121. Lingat, 189ff., esp. 200-02.
122. Inst. 1.2.11.
123. On lex as the authoritative statement of an abiding ius see Stein, supra
n. 111, ch. 1.
124. Thomas, 31 TvR 51 (1963); 12 RIDA 481 (1965), bases the ratio upon
the principle lex posterior priori derogat, but implies, rightly, that only usus
and not consuetudo is here conceived as ancient. On the role of new custom
at a later period of legal history, see van Caenegem, Proceedings of the Second
International Congress of Mediaeval Canon Law 301 (1965).
125. Naturalem rationem?
126. Inst. 1.1.
127. Dig. 1.1.1.2: privatum ius tripertitum est: collectum etenim est ex
naturalibus praceptis aut gentium aut civilibus.

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512 THE AMERICAN JOURNAL OF COMPARATIVE LAW

every rule demanded by naturalis ratio is part of the ius gentium.

Thus privatum ius may still have three sources even though some
praecepta naturalia are adopted as part of the ius gentium. It may
further be noted that the acceptance in Justinian's Institutes of the
view that some iura naturalia are adopted in the ius civile of various
states clearly does not imply that all iura naturalia are so adopted;
indeed the text has ea (iura) vero, quae ipsa sibi quaeque civitas con-
stituit. In the same way Ulpian's "trichotomy" does not imply that
all naturalia praecepta are adopted by private law. Neither here nor
in classical India would it be true to say that all dharma becomes
law.

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