A Common Justice. Uriel I. Simonsohn
population and were gradually accepted as men of authority who served as legal specialists and judges.131
Two questions remain unresolved. The first relates to the exact nature of the judicial role assumed by the rabbis. While some acted on behalf of the patriarchate, others acted independently. Aside from passing judgment, a rabbi fulfilled other roles within his local community, as a teacher, scribe, or leader of prayer. By fulfilling a multiplicity of tasks within the community, the rabbi was at the center of local social life. His authority, therefore, derived from interpersonal ties with members of his community and from the high esteem in which he was held by local Jews.132 The second question relates to chronology. Scholarly debate over the point at which rabbis gained authority, whether by the fourth century or later, is still in progress. While an early development of a rabbinic judiciary is plausible, there is no reason to reject the assumption that at least some of the rabbis acted upon similar principles as those of Christian holy men.133
Formally speaking, the institutions of the Jewish judiciary that were recognized by the Roman Empire operated through a delegation of authority by the patriarch. Delegation of power was channeled not only through the rabbis but also through those who are known in the Theodosian Code as the “primates of the Jews”—local Jewish leaders.134 The exact nature of these figures is obscure. It is hard to define the source to which these men owed their prominence. It could very well be that the term “primate” referred to the early rabbis. After all, according to the Theodosian Code, the primates were members of the synedrii.135 Further reference to sources of social power can be seen with respect to the descendants of priestly families (kohanim). Subsequent to the abolishment of the patriarchate, there was a significant rise in the influence of this group.136 The kohanim, unlike rabbis or wealthy laymen, drew their status from their lineage. They were the descendants of a not-so-long-ago tightly knit group that served in the Temple and were thus located at the center of Jewish social consensus.
The judicial role assumed by individuals who were not formally ordained through rabbinic institutions in late antiquity is unclear. Nonetheless, there is reason to believe that the aforementioned primates as well as members of priestly families were in a position to assume judicial responsibilities, as Jewish law does indeed speak of laymen as judges of some capacity. The legal principle of lay courts will be discussed in detail in Chapter 4. Suffice here to note the discussion in the Babylonian Talmud regarding a court of non specialists (bet din shel hedyotot).137 The main function of this tribunal was to arbitrate. Similar courts were likely to have been operative even in tannaitic times (first–third century A.D.).138
Judicial Institutions and Practices in the Sasanian Empire
The study of the social history of the Sasanian Empire is far more challenging than that of the late Roman Empire. Here we must expand our search for information and also examine the testimonies of non-Sasanian sources, namely, Christian and Jewish. The discussion in this section is divided into three parts. As in the previous section, it begins with a survey of the imperial judicial organization; it then turns to examine the state of the Christian, East Syrian judicial setting; and finally that of the Rabbanite Jews of Babylonia.
Sasanian Judicial Institutions and Their Accessibility to Non-Zoroastrians
Hierarchically organized, the Sasanian judiciary ran down from the Sasanian emperor, the supreme judge, to the rest of the empire through provincial, rural, and communal judges.139 A notion of hierarchy can be discerned through the anonymous work known as The Letter of Tansar. Scholars disagree as to whether the work should be attributed to the time of the founder of the Sasanian Empire, Ardašīr (fl. 224-40), or that of the emperor Khusraw Anuširvan (fl. 531-78).140 The work, which seeks to exalt the founder of the Sasanian dynasty, is an alleged letter written by a certain Tansar (Tōsar), chief priest of Ardashīr. Despite the difficulty of asserting its date and authorship, the work sheds valuable light on the administrative culture of the empire. It describes how a system of organizational hierarchy had been imposed over the state’s bureaucracy through a legal reform:
[The king] has set a chief over each [administrative unit], and after the chief an intendant to number them, and after him a trusty inspector to investigate their revenues … and he has appointed teachers and judges and priests.141
Since we have seen that by the laws and customs of the ancients the injured received no benefit, but society suffered a mischief and loss in numbers and vigor, we have established this law and custom that people may act upon it in our own day and hereafter; and we have ordered the judges that if offenders of this kind, whose fines are fixed, repeat their offences a second time, their ears and nose are to be cut off.142
The Letter of Tansar represents a highly bureaucratized Sasanian administration of which the judiciary was, of course, an integral part. The second passage attests to the intention of the Persian ruler to reform the legal order in a way that brings its magistrates under his close control.143 Second to the Sasanian king, the supreme head of the judges, stood the “judge of the empire,” who was, in fact, the Zoroastrian high priest, the mowbedān mowbed. In the capacity of his religious authority, the Zoroastrian priest was entrusted with the supervision of all aspects of Zoroastrian religious life. In addition to their judicial authority, at least some of the mowbeds served as rulers of cities or as diplomats and were highly immersed in the empire’s political affairs.144
Nonetheless, the exact legal jurisdiction of the mowbed is not entirely clear. In his discussion on the function of the mayānjīg in the Sasanian period, Shaul Shaked makes a point that the term designated a judicial function: “Among the roles of this office was the supervision over measurements and listening to the complaints of the poor, the defense of whom it has been made a formal attribute of mōbads.”145 Shaked shows that the term mayānjīg was applied to the Zoroastrian divinity, Mithra, and it is in reference to the latter as a judge that in other texts we come across such terms as rāst dādwar, dādwarīh, mayānjīgīh, and azešmānd. These terms, according to Shaked, “denote separate judicial functions,” though, he admits, “it is not possible, in our state of knowledge, to distinguish more closely between them.”146 While the reference to a variety of judicial officeholders and the ambiguous character of the mowbed’s office make it difficult to obtain an accurate picture regarding the state of the judiciary under Sasanian rule, they also underscore its pluralistic character.
The Pahlavi text Rivāyat i Ēmēd i Ašawahištān (The religious explanation of Ēmēd, son of Ašawahišt) is a ninth- or tenth-century “collection of religious, social, and civil laws based on the Zoroastrian religious codes” and is believed to reflect Zoroastrian practice from the Sasanian era.147 Question 5 in this work refers to the duty of family guardianship. This includes an inquiry into the identity of the authority to whom the nomination of a guardian should be made. The issue of appointing family guardians sheds some light on the identity of Zoroastrian judges, as the question itself suggests that appointing guardians was a prerogative that belonged to a judicial authority. The answer establishes the following procedure:
If a religious authority or a priest or a minister is present [i.e., the presence of these religious eminences is required for the nomination of a guardian], in that case [the nominee’s] request to take family guardianship should be made to one of them. If neither an authority of the religion nor a priest nor a minister be present, [but] a sacred fire be in the vicinity, in the town, this claim should be announced by a regular visitor to that fire. If the situation does not prevail either, a righteous man who is a student of a priest, whose knowledge of the religion is rooted in his lineage, to him the request [of the official declaration of the guardian] should be made. If that is not available too, any adherent of Zoroastrianism in that town who is elderly, well known, and with good reputation, and his veneration for the soul and his wisdom are attested more [than the other’s], to him the request [of the official declaration of the guardian] should be made.148
The answer should be read in the context of its time, a period in which