Sasanian Law

JANY Janos e-Sasanika 14 Pázmány Péter Catholic University, Budapest, 2010 Hungary

1. GENERAL

1.1. Definition

The proper term for law is the Middle Persian dād although the meaning of dād is more complex than the Western concept of law. In fact, several texts attest to the dual meaning of dād as both law and religion, sometimes understood as a religious law, sometimes as a synonym of religion, sometimes as a secular law or the king’s command. It is only the context of the text which is helpful to decide which meaning was referred to. In the Pahlawi Riwāyat Accompanying the Dādestān ī Dēnīg dād has the dual meaning of religion and law: ’when someone goes over from the (religious) law to which he belongs to another law he is margarzān, because he is deserting the Good Religion, and he is taking up this bad law’.1 This equation of law and religion is not peculiar to the PRDd alone since the Dēnkard, too, defines dād as ‘the beneficent regulating principle of Mazdean religion’, the ‘cognition of which is through wisdom’, but wisdom, in its turn ‘is the principle of dād’.2 It comes as no surprise, therefore, that Zoroastrianism is referred to as the dād ī Ohrmazd, ‘law/religion of Ohrmazd’.3 Not only Zoroastrianism is understood as dād but other religions, too, are conceptualized as ‘law’: Mēnōg ī khrad has dād ī dēwān, the law-creed of the demons; Dēnkard defines Jewish religion as the dād ī yahūdīg kēsh, the law-canon of Jewish religion while Bundahishn refers to the Mazdakites as dād ī mazdakīh.4 In the above quotations law and religion are interchangeable categories both denoting the essence of a particular religion in a single term dād. There are other texts, however, which

1 Kē az dād ī-sh andar estēd be ō dād ī dudīgar shawēd margarzān ēd rāy kū dād ī weh-dēnīh be hame hilēd ud ēn dād ī wad hamē gīrēd: PRdD 7.2: Williams 1990: Vol. I: 47; Vol II:9. 2 Dād khwābar rastagīh ī māzdēshn dēn; shnākhtan ī dād pad dānishn bawēd; dād bun dānāgīh: Dād: Enc. Ir 1993. (Mansour Shaki). 3 Ibid. 4 Ibid.

conceptualize dād differently. Xerxes in his so-called ‘Daiva-inscription’ reminds the faithful to ‘have respect for that law (dātā) which Auramazdā has established’ because ‘the man who has respect for that law which Auramazdā has established, and worships Auramazdā and Arta reverent(ly), he both becomes happy while living, and becomes blessed when dead’.5 Unfortunately, neither the text of Xerxes nor any other source reveals to us what the laws of Auramazdā were, but it stands to reason to think that these laws were not regulations to be followed by society in its everyday legal practice but ethical principles and norms granting a happy existence in the world to come. Now it is comprehensible why Ohrmazd’s law is ‘the love of people’.6 Therefore, the Zoroastrian concept of law is markedly different from that of the Jewish religion and Islam where God revealed particular norms for the believers which are not subject to change and could not be abolished. As a result, in contrast to Moses and Muhammad, Zaratustra is not a prophet mediating divine legal rules but a prophet teaching ethical standards and morals, precepts which could be regulated by law differently according to space and time. In short, Auramazdā is not a Lawgiver as Yahweh and Allāh are. The more so because it is not Auramazdā but primarily Mithra, the God of contract7 who presides over the just social order and judges the souls after death according to the principles of truth, justice and arta. Arta, whether understood as truth or cosmic order8 provides an underlying principle on which religion and law should rest and the law of Auramazdā fits also in the framework of this broad concept. Darius, however, had his own concept of law which highlights the king’s decrees and knows of no law of Auramazdā. Accordingly, ‘by the favour of Auramazdā these countries showed respect toward my law; as was said to them by me, thus was it done’; my law - that held them firm.9As it is clear now already, in the Achaemenid period a dual meaning of law is discernible, reflecting sometimes the law of Auramazdā (whatever it might be), sometimes the

5 dātā parīdiy tya Auramazdā niyashtāya; martiya hya awanā dātā pariyaita tya Auramazdā nīshtaya utā Auramazdām yadataiy artāčā brazmaniya hauw utā jīva shiyāta bawatiy utā marta artāvā bawatiy: Kent 1953: 151–153. The translation and interpretation of artāčā brazmaniya is subject to debate. For interpretations other than that of Kent, followed here, see Old Persian Arta: Enc. Ir. I; 1987 (P. O. Skjaervo). 6 Dād ī Ohrmazd mardōm-dōstīh: Dād: Enc. Ir 1993. (Mansour Shaki). 7 The meaning of the name of Mithra was interpreted as contract for the first time by Meillet in 1907, and his interpretation was followed by Gershevitch 1959: 26; Lentz 1970: 245–253; and Boyce 1975: 27. I, too, believe that its meaning is contract and not friendship, advocated by some scholars. 8 Gershevitch 1959: 6 interpret arta as truth, in doing so he followed Lüders; Schlerath agrees (see Asha: Enc. Ir I, (1987) 694–695). Boyce, however, thinks that the term asha could not be translated to any other language and its meaning cannot be reduced to truth alone but it stands for cosmic and moral order, see Boyce 1975: 27. 9 Vashnā Auramazdāha imā dahyāva tyanā manā dātā apariyāya yaθāshām hacāma aθahya avaθa akunavayatā; dātam tya manā avadish adāraiya: Kent 1953: 117–119; 137–138.

law of the king. This duality is also manifest in a royal decree preserved in the Old Testament (7 Ezra 12–26) according to which those who do not observe “the law of your God and the laws of may be punished by death, exile or confiscation of (דחא די אלהל ודחא די מלכא) ”the kingdom property.10 Only in the Sasanian period came these meanings together denoting a religious law as a result of Sasanian religious policy. This is the reason why dād-shnās means both a jurist and a theologian.11

1.2. Sources Concerning Sasanian law no law code has reached us and it is unknown whether such a code ever existed. Lacking thus legislative works the most important legal source at our disposal is the Mādigān ī Hazār Dādestān (MHD+A),12 a law book dating from the 7th century CE, containing several hundreds of legal cases. The compiler of the law book, himself a judge, probably in the province of Pārs, collected legal cases produced by everyday legal practice of the courts based on his own experience and the archives of the courts.13 Although it is difficult to navigate through this ocean of casuistry, it is nevertheless the only possibility for a modern scholar to learn about Sasanian law in operation. But this could be done only by induction at the risk of all the failures such a method includes since we have to infer from particular judgments to general norms being behind them for which in the majority of the cases there are no other sources for control. When a ruling was not yet established or a particular case was not clear for the compiler he refers to the various opinions of legal scholars which shed some light only on the ongoing debates in jurisprudence but not on legal practice. What complicates matters is that the work has not reached us completely but some parts are missing from the manuscript. Moreover, there is no underlying principle in the work the compiler seems to have followed, which makes the work more difficult to understand.

10 The interpretation of the quotation is subject to debate in modern scholarship, because it could not be answered for certain whether the two laws referred to are identical or not. Peter Frei thinks that the two laws are identical but Joseph Blenkinsopp denies this. Similarly to Blenkinsopp, Gary Knoppers also sees two separate laws in the quoted passage. For more on this topic see Watts 2001. 11 Dād: Enc. Ir 1993. (Mansour Shaki). 12 The work has two parts: the first referred to as MHD, the second as MHDA, the whole work being abbreviated as MHD+A. There is a German edition with transliteration, translation and commentary by Maria Macuch (Macuch 1981; 1993) and an English edition with transcription and translation by Perikhanian–Garsoian 1997. 13 Macuch 1993: 12–15.

Since the MHD+A contains only precedents in private law matters but has not a single case in criminal law, it is family law, the law of inheritance, the law of obligations and private procedural law which are discernible with its help. By contrast, the Syriac Acts of Martyrs, going back to Middle Persian original texts are particularly helpful in criminal law and criminal procedural law (Hoffmann 1880; Braun 1915; Wiessner 1967). Religious works such as the Wīdēwdād (Darmesteter 1892), the Ērbedestān and Nērangestān (Humbach–Elfenbein 1990; Kotwal–Kreyenbroek 1992, 1995, 2003), Shāyast nē-shāyast (Tavadia 1930, Mazdāpūr 1369) and the Supplementary text to the Shāyast nē-shāyast (Kotwal 1969) are helpful concerning the details of ritual law and the law of purity. Rock inscriptions of Sasanian kings and that of high priest Kardēr (Sprengling 1953; Back 1978; Mosig–Warburg 1982; Skjaervo 1983), historical writings such as the Letter of Tansar (Boyce 1968), the Kār-Nāmag ī Ardakhshēr (Nyberg 1964) and the chronicles of Muslim authors such as al-Mascūdī (Mascūdī 1989) and al-Óabarī (Nöldeke 1879; Bosworth 1999) could be relied on only to clarify some questions of minor importance but they are unable to give us a general overview of Sasanian law. Post-Sasanian works such as the Dēnkard (Madan 1911; de Menasce 1973; Shaked 1979), the Dādestān ī Dēnīg, (West 1882), the Pahlawi Riwāyat Accompanying the Dādestān ī Dēnīg (Williams 1990), Riwāyat ī Ēmēd ī Ashawahishtān (Safa-Isfehani 1980) or the law collection of Īshcōbōkht (Sachau 1914) attest to the legal practice of the 8–10th centuries. Given the political, social, economic and legal changes which took place in these centuries in the Zoroastrian community, these works cannot be taken as sources for the Sasanian period; they are only helpful to clarify some questions which cannot be solved on Sasanian sources alone.

2. LEGAL THEORY 2.1. Legal sources Sasanian law is not identical with Zoroastrian law although it draws heavily on it. Zoroastrian law as a legal system did not exist prior to the Achaemenids since by this time it was Persian custom which regulated the normative life of Persian society. It is clear from the reference of Herodotus according to whom Persian judges came from among the Persian nobles and decided the cases according to customary law which the king was also to follow, at least, in theory. But the more realistic judges acknowledged that the Persian king may do whatever he pleases.14

14 Herodotus III: 31

Based on Persian customary law Zoroastrian law emerged during the centuries and evolved into a sophisticated legal system, a process which reached its climax in the Sasanian period. In the Sasanian period besides Zoroastrian law secular law also existed in the form of royal law published in various royal edicts. Although not a single royal order has reached us references have been made to them in various sources. Therefore, we know that there was a royal edict regulating the use of seals15 while another decree established the content of personal files of convicted persons.16 This distinction is very important because Zoroastrian law was the law of the Zoroastrians which was not compulsory for believers of other religions. Therefore, Zoroastrian law followed the Personalitätsprinzip according to which persons belonging to a particular group, in this case the Zoroastrian community, were bound to follow its norms while others were not. By contrast, Sasanian law as a royal law was established for the entire population of the Sasanian kingdom and, therefore, compulsory for all. Therefore, royal law was territorial and not personal law. In addition, believers of tolerated religions such as the Jews and Christians were granted restricted legal autonomy according to which they could adhere to their own law, predominantly in private law matters and minor offences but not in capital cases. Thus, Zoroastrian law as such was compulsory only for members of the Zoroastrian community but it was applied also for non-Zoroastrians as the law of the land in cases for which legal autonomy was not granted to them. For example, Christian martyrs were heard in criminal procedures according to Sasanian law but not according to their own law; if executed, they were to be buried according to the Zoroastrian custom (as the law of the land) although they were non- Zoroastrians, a situation from which their relatives could escape only by bribing the wards. In addition, law in action was sometimes different from the law in books because courts developed their own rules (kardag) which supplemented, sometimes even modified existed norms. Therefore, kardag as the legal practice of the courts was also a legal source in everyday legal practice for both litigants and judges, although Sasanian law was not a precedent law. Perhaps there were local variants and customs, too, for a particular area or group of persons such as nomadic tribes, but lacking any written sources that could not be proven. Given, however, the huge territory of Sasanian Iran it stands to reason to think that local customs in Babylonia differed from that of Khurāsān, Māzandarān or Pārs. Since nomadic people follow their own

15 MHD 93.5. 16 Braun 1915: 86–87.

customs even in modern times it is not an exaggeration to believe that it was not much different in Sasanian times either. In sum, the Sasanian legal system is a complex system of laws consisting of (1) Zoroastrian law as a personal law; (2) royal law as a territorial law; (3) laws of the members of the tolerated religions as personal laws; (4) kardag as the legal practice of the courts; (5) local variants of customs in particular regions and towns; (6) customs of nomadic peoples. Concerning Zoroastrian law the legal sources were (1) the Awesta together with its commentary and (2) the consensus of the learned as attested by the Dēnkard.17 But the Awesta was not particularly helpful for a judge because its regulations had nothing to do with contemporary Sasanian social reality. This is the reason why commentaries were written to it and why judges could rely on them. But we do not know what consensus of the learned was and it seems that Sasanian legal scholars were not better of either since we have evidence for a variety of its interpretations: MHD 41. 5–8 refers to the consensus of three scholars, MHD 42. 5–9 has the agreement of only two scholars, MHDA 11. 12–17 mentions the consensus of the majority and MHD 46. 14–15 refers to the consensus of all the sages. It seems, therefore, that the same doctrine of two or three legal scholars was considered solid enough on which a judgment could be pronounced.18 Therefore, Zoroastrian law was markedly different in this respect from both Jewish and Islamic law because in the latter consensus was established in order to pronounce a rule whereas in Zoroastrian law consensus was only a basis for a particular judgment but not for a law. Moreover, consensus in Jewish law was established according to majority vote while in Islamic law consensus was a unanimous consensus, but the same view of two or three scholars was not accepted in either of them.

2.2 Legal schools In legal systems which were elaborated most of all by legal scholars and where formal law making was restricted the emergence of legal schools can be witnessed due to different interpretations of basic texts and existing norms. This is evident in both Jewish and Islamic law and Zoroastrian law did not differ. The term ‘school’ is misleading, although widely accepted, because at the beginning they were not formal institutions with set doctrines, boundaries and

17 Dādwar wizīr az awistāg ud zand kunishn ayāb az ham-dādestānīh ī wehān: quoted in Macuch 1993: 12. 18 On the role of consensus in Zoroastrian law see Jany 2005: 295–303.

methods but rather a master–disciple relationship. Islamic schools were personal schools as were the schools of Hillel and Shamma’y. Zoroastrian schools, too, were personal schools which never developed into more institutionalized entities. Concerning the history, structure and the number of the Zoroastrian schools we are left in darkness. Generally speaking, legal debates surrounded only questions of minor importance and details while basic institutions of law were not subject to debate. Paragraph 1.3 of the Shāyast- nē-shāyast mentions three schools, but the next paragraph (1.4) lists four schools, that of Ādurohrmazd-Nēwgushnasp; Ādurfarrobay Narseh–Sōshāns; Nēwgushnasp-Mēdōmāh; Sōshāns-Abarag. Unfortunately neither the author of the Shāyast-nē-shāyast nor any other source has to say more about the schools; therefore, we cannot solve the contradiction for certain. Despite this it is evident that the genealogy of the schools contains identical names at more than one point. If we assume that the same names identify the same persons then we have two schools: the school of Ādurohrmazd–Nēwgushnasp–Mēdōmāh and the school of Ādurfarrobay Narseh–Sōshāns-Abarag.19 Almost nothing is known about these personalities save the fact that Abarag, Mēdōmāh and Sōshāns were also the commentators on the Awesta, Wīdēwdād, Ērbedestān and Nērangestān.20 Therefore, they were religious scholars which made them also expert in law. It is interesting to note however that the MHD+A refers in the majority of the cases to Abarag and Mēdōmāh, that is, the representatives of the last generation while other members of the schools are almost completely missing. The date of emergence and the history of the schools are not mentioned in either of our sources but a ruling at the beginning of the MHD+A sheds some light on it (MHD 1. 2–4): “It is said that up to (the reign) of Wahrām, persons became the owners of a slave born of a father (belonging to them), but not of (such a) mother. For Sōshyans stated that the child belongs to the father, but now, it is said (that he belongs) to the mother.”21

This reference is very important because it is the only one which mentions the names of both a legal scholar and a Sasanian king at the same time. Unfortunately, there were six kings named Wahrām on the throne of the Sasanians: Wahrām I (274–276), Wahrām II (293), Wahrām III (293–302), Vahrām IV (388–399), Wahrām V (421–439), Wahrām VI (590) and in theory

19 Following Tavadia 1930: 28–29 I argued also for two schools (Jany 2006: 295ff); see also Kreyenbroek 1994: 10. 20 Macuch 1993: 13. 21 Perikhanian–Garsoian 1997: 27.

any of these rulers could be intended. I think that it was Wahrām Čōbīn VI (590) who was referred to, therefore the emergence of the legal schools could be dated to the 6th century. Following this hypothesis the representatives of the third generation were contemporaries of the compilers of both the Shāyast-nē-shāyast and the MHD+A (first part of the 7th century). If we count down three generations from this date we have the reign of King Khusraw I (531–579) as the starting point of Zoroastrian jurisprudence. Given the considerable administrative, social and economic changes that took place during these decades (following the Mazdakite uprising and the reforms of Khusraw) the emergence of legal schools is intelligible because old rules had to be adjusted to the changing social reality which obviously produced different interpretations of legal norms.22 It is impossible to determine the doctrines of the schools and in what points they differed from each other because what we know is the names of some legal scholars and their legal opinion concerning questions of minor importance. It seems likely that it was ritual law which was in the focus of these schools while secular legal matters were not their primary concern. At least this could be inferred from a statistical approach: in the MHD+A Mēdōmāh’s school is mentioned only trice (MHD 17.14, 50.15, 51.15), Abarag’s school only once (MHD 50.13); Mēdōmāh’s name occurs five times (MHD 5.13, 22.5. 50.15, 51.9, 52. 3–9), and Abarag’s even less frequently (MHD 5.14, 22.5, 52.3, MHDA 30.3). If we recall that the number of references to various scholars is about one hundred and eighty in the MHD+A, the altogether thirteen references to the two schools is a rather low figure. Thus, the overwhelming majority of references go to scholars outside of the schools such as Pusānweh, Wahrām, Siyāwakhsh, Mardag, but we do not know who they were. By contrast, in the Shāyast-nē-shāyast, a work dealing with ritual law references to scholars of the schools dominate while legal scholars dominant in the MHD+A are practically missing. The focus on ritual law is understandable if we recall that Sasanian Zoroastrianism was rite-centred and jurisprudence was in the hands of the priesthood practising ritual. Therefore, Sasanian jurisprudence was at times very academic dealing with hypothetical cases and problems out of touch with everyday legal practice. Here it is sufficient to refer to a dispute ongoing on pages of the Shāyast-nē-shāyast in which legal scholars discuss whether one should pull out a corpse floating on the water or not, and what a

22 Maria Macuch dates Sōshāns to the third century: Macuch 1993: 29, while Anahit Perikhanian thinks that Wahrām V was referred to and therefore, places Sōshāns to the fifth century: Perikhanian–Garsoian 1997: 418; for more on this subject see Jany 2006: 295–307.

person’s liability would be if doing nothing to hinder the water to be polluted by a dead body.23 This example is only an illustration; there are numerous other cases for academic discussions in this work. Since there was no literary genre similar to the responsa/fatwā literature in Jewish and Islamic law, Zoroastrian legal scholars were prevented from dealing with questions of everyday legal practice in the Sasanian period. After the fall of the Sasanians, however, a dastūr had to give advice also in mundane matters in order to ensure Zoroastrian ethics and law to be followed. Therefore, responses called riwāyat emerged in the post-Sasanian Zoroastrian literature. There are numerous collections of riwāyats because the practice to write such works continued for centuries. Among these the Riwāyat-ī Ÿmēd-i Ashawahishtān and the Riwāyat accompanying the Dādestān ī Dēnīg should be mentioned as particularly important. We can observe considerable changes in discussing the material in these works. It is not the positive law which underwent gradual transformations but the way legal problems were presented and solved. There is no reference to legal schools and scholars any longer; the academic way of legal thinking disappeared together with the hair-splitting argumentations about hypothetical questions. What remained were practical questions put by the members of the Zoroastrian community to its leader. Answers were as simple as the questions were: the dastūr simply outlined the basic norms of Zoroastrian law, mainly in the field of private law, particularly marriage and the law of inheritance. The style is free from any sophisticated argumentation, written in a simplistic language understandable to all. In brief: scholarly disputes were replaced by the practice of simple legal advising.

2.3 Legal education There was no separate legal education in Sasanian Persia but it was a part of priestly training. It is small wonder since jurisprudence and the administration of law was the terrain of the Zoroastrian priesthood and new generations of priests had to be instructed in ritual, theology and law. It was the ērbed, the teaching priest whose task was to educate young priests which explains why ērbedestān meant a place of training and also a text about education and other, loosely related topics.

23 Shāyast nē-shāyast 2: 79–95.

The main feature of the relationship between a teacher (ērbed) and his student (hāwisht) was unconditional respect of the teacher and subordination to him. The fact that this relationship was called tarsagāh, a derivative of the verb ‘to fear’ tells books.24 As a result of the subordination of the students they could be punished by corporal punishment for a sinful neglect of duties or for the disregard of rules of proper behaviour (such as chatting while eating). In such cases sanctions established for petty crimes (e.g. ardush) had to be implemented.25 The work entitled Panč hēm ī asrōnān (The five virtues of the priests) explains qualifications expected of priests. These are: incorruptibility, niceness in thought, word and deed (a reference to the basic principles of Zoroastrian ethics expected from every believer), to have a spiritual leader as a wise guide, worship according to the ritual, and to contend with opponents. To this end priests had to know the sacred texts by heart, that is, the Awesta and the Zand which together comprise of an enormous quantity of texts. It is the dastwar who knew by heart this corpus of texts most profoundly and without any written aid (hamāg apastāg ud zand warm: one who had memorised the entire Awesta and Zand). Therefore, the most important task was to memorise the texts and it is not surprising that heresy, laziness and forgetfulness were sins that could be committed by priests.26 Memorisation was the joint work of teacher and students but repetitors, important figures in both Jewish and Islamic legal education (tanna, muid) who came to the assistance of the students were missing. After the teacher and the students repeated the text thrice and the student was able to repeat it for the fourth time the text was considered as learned.27 Since education was accomplished orally, the deaf and dumb were disqualified.28 Teaching was taken rather seriously; therefore absence from learning was permitted only when the force of nature hindered the students to attend (starvation, thirst, drought, cold).29 As a result of the long personal contact between master and his disciples the proper transfer of the oral tradition was guaranteed only within small groups while a wide audience was hindered to participate, a clear sign for the caste-like nature of Zoroastrian priesthood. It calls for no further explanation that non-Zoroastrians and foreigners could not be taught. It is interesting

24 Ērbedestān 0.3. 25 Ērbedestān 16.12; 17.1. On the classification of crimes see the chapter about substantial criminal law. 26 Bailey 1943: 158–165. 27 Ērbedestān 13.5, 13.15. 28 Ērbedestān 16.1–2. 29 Ērbedestān 17.3.

to note against this background that when the life of a teacher was at risk (e.g. because of starvation) and he could secure his livelihood only by the ‘tuition fee’ paid for by a foreigner, some part of the tradition could be revealed to him but not more than what was necessary to the teacher’s survival.30 Surprisingly, perhaps, women could participate in education, yet the Ērbedestān is clear about this issue and claims that both husband and wife could participate in education, but one of the spouses who was better in the management and increase of family wealth had to stay at home. If this person was the head of the family his wife could go to study.31 The duty of education rested also on close relatives (nabānazdisht) who committed sin if they failed to train a relative who asked them for it. Their sin was in accordance with the grade they were related to each other: the more close relative the student was the sin of the relative who did not instruct him was the more grievous.32 This rule is another proof for the caste-like social mechanism of Zoroastrian priesthood since to refuse to educate the next generation threatened the social cohesion and interest of the priesthood. Studies lasted for a year,33 but this reference may be understood as referring only to elementary education since it was impossible to learn by heart the entire Zoroastrian tradition in such a short period of time. Therefore further studies were continued next with a prominent master. Students gathered around such scholars and after completing their studies carried on the master’s teaching. The (legal) schools of Abarag, Sōshāns, and Mēdōmāh can be understood in this context. It was the teacher’s duty to teach his students and to render assistance that was necessary to complete the studies, but he was not expected to do more. At the same time if the students did not progress properly in their studies it was regarded as the teacher’s failure.34 Students could learn from several masters, moreover, they were encouraged to do so. If a student had already learned everything from his/her teacher he/she could continue his/her studies with another scholar in order to learn more: he could go to two or even three teachers for this purpose.35 Disputes, important elements of both Jewish and Islamic legal training were missing from Zoroastrian legal education. Obviously, legal problems were disputed among legal scholars but there is no reference to discussions between masters and their disciples: the disciples’ task

30 Ērbedestān 12. 38–39; 19. 3–9. 31 Ērbedestān 5.1–5.6. 32 Ērbedestān 15.6. 33 Ērbedestān 12.1. 34 Ērbedestān 14.5; 15.1–2. 35 Ērbedestān 13.1–2; 14. 2

was to follow the master’s guidance and to memorise texts, but not to engage in scholarly debates with him.

2.4. Theories of punishments36 It was criminal law for which Persian legal scholars elaborated theoretical reflections and conceptualised crimes in a broader framework of religious thinking while other branches of law were not dealt with theoretically excepting some aspects of family law. It comes as no surprise since criminal deeds are more often than not against the moral order of society and the religious ethics propagated by Zoroastrian priesthood and, therefore, a theoretical reflection on crimes and punishments anchors criminal law in Zoroastrian teachings. Accordingly, the aim of the punishment was to save the soul of the offender from the consequences of his crime because final judgment could not be avoided and the souls of perpetrators would face divine sanction if left unpunished in their present existence. By punishing the delinquents on Earth their crimes will not count before the divine judge and their soul could hope for a favourable decision during the final judgment. Thus, the soul could be released from the result of his crime when punished here on Earth. Margarzān sinners who do not confess their crimes will find their place in Hell, regardless of their good words and deeds. After the final destruction of the Earth their heads will be cut off for every margarzān crime and then they will be made alive again and will suffer other punishments for three successive days, or according to another variant, will suffer in Hell.37 These endless sufferings are the results of the crime committed and the absence of penitence for it. Thus, penitence is not to save the material life of the delinquent but to rescue his soul from sufferings after death. Penitence should be announced openly and truthfully. To confess publicly means that the delinquent should confess all his crimes without omitting anything. If he holds a crime in secret, the consequence of it makes his situation worse. To confess truthfully means that he should declare that he would not sin again.38 The confession should be declared in the presence of the victim if the crime was committed against a third person, or in the presence of the rad, if the

36 This section is based on my previous writing devoted to Sasanian criminal law, see Jany 2007: 348–362. 37 Shāyast nē-shāyast 8. 7. 38 Shāyast nē-shāyast 8. 8–9.

crime was against his own soul (a violation of a ritual rule).39 Following confession delinquents of a tanāpuhl sin became ritually pure immediately, and their good words and deeds could be taken into account during the final judgment.40 By contrast, those who do not confess could be outlawed; if they die during this period, they should be regarded as margarzān.41 Confession is only the first step, margarzān sinners should give their lives into the hand of the rads42 and probably also their wealth.43 Following MHD 97.15, according to which a margarzān sinner loses not only his wealth but also his family, the latter seems to be a more reliable variant describing the consequences of the confession in full. After hearing the penitence the rad could punish the perpetrator by any sanction he saw fit his discretionary power being not subject of any restriction. This includes also capital punishment which was carried out in the majority of the cases by decapitation by the sword.44 The punishment imposed by the rad was considered as a sentence for the benefit of Ohrmazd (pad sūd ī Ohrmazd).45 Whatever his sentence was, after imposing the punishment, the soul of the delinquent was free from the consequences of his crime and became ritually pure.46 It is worth noting that this theory is not unique to Sasanian Persia since Hindu legal theory developed a concept similar to it.47 In Sasanian Persia crimes were classified according to various concepts. The first classification distinguishes the sins committed “against the soul” (wināh ī ruwānīg) and sins committed against a third party (wināh ī hamēmālān: lit: sin against the adversary). Maria Macuch has shown that this typology anticipated the time when the Sāsānian state came into being, and originally it was composed of both criminal and private misdeeds.48 The distinction between wināh ī ruwānīg and wināh ī hamēmālān is important because the latter one consists of crimes committed against fellows while wināh ī ruwānīg designates crimes against religious precepts and values. The second classification of crimes is mentioned in Shāyast-nē-shāyast (1.1.):

39 Shāyast nē-shāyast 8.1. 40 Nērangestān, Fragard 2, 23.7. Kotwal–Kreyenbroek 2003: 32–33. 41 Ibid. 42 Shāyast nē-shāyast 8.2: ōy ī margarzān, wināh andar radān garzishn ud tan be abespardan 43 Shāyast nē-shāyast 8.5: margarzān, ka-sh tan ud khwāstag ēwāz ō radān abespārēd 44 Shāyast nē-shāyast 8.6. 45 Shāyast nē-shāyast 8. 21. 46 Shāyast nē-shāyast 8. 5-6. 47 For Hindu theory of punishment see Glucklich 1988: 96–105; Lingat 1973: 232–234; von Stitencorn 1980: 537– 553. 48 Macuch 2003: 173–174.

“As it is known from the Awesta, according to the Widēvdād, there are eight types of sins in religion: framān, āgrift, ōyrisht and ardush and khwar and bāzāy and yāt and tanāpuhl.”49

This system of crimes has no hints to the categories wināh ī ruwānīg and wināh ī hamēmālān discussed above but gives a hierarchy starting with petty crimes and ending with a serious crime although margarzān, the capital delict is missing (for more on this subject see the chapter on substantive criminal law). The third classification of crimes can be found in the Letter of Tansar, a work of political propaganda written most probably in the 6th century.50 Accordingly, King Ardakhshēr distinguished three categories of crimes: those committed against God, those against the king and the crimes people commit against each other. The crime against God is apostasy, crimes against the king consist of rebellion and treachery, but the numerous crimes people commit against each other are not listed.51 Tansar’s first class of delicts, those against God, consists only of apostasy, while any other misdeeds against religion are completely missing. The king was thus evidently interested in upholding Zoroastrianism as the royal ideology of Sasanian rule which would be threatened by mass conversions. Following Tansar, in case of apostasy the king was more generous than his predecessors. Accordingly, before the reign of Ardakhshēr apostates were put to death; from this time on they were sentenced to prison for a period of a year during which learned men of religion visited them, gave them advice and destroyed their doubts by arguments. If the apostate repented and confessed his faith, he could be released, if, however, he remained faithful to the religion he had adopted, he would be put to death.52 Although Tansar makes every effort to define this method as human, it is evident that it was in fact a form of inquisition. If we recall the fact that there was no inquisition in the Achaemenid period (save Xerxes’ Daiva-inscription) and in the long centuries under the liberal-minded Parthians the reference to former days in his argument is false.

49 Shāyast nē-shāyast 1.1: Čiyon az abestāg paydāg, pad Wīdēvdād guft ēstēd kū ēn hasht pāyag ī wināh pad dēn guft ēstēd: ast ī framān, āgrift, ōyrisht ud ardush ud khwar ud bāzāy ud yāt ud tanāpuhl. 50 Boyce 1968: 11–22. The original MP version of the text has not reached us, it is known only by a NP version of Ibn Isfandiyār, as an insertion to his Tārikh-i Óabaristān. The NP text was edited by Minovi in 1932 and Iqbāl in 1942, translated into English with introduction and commentary by Boyce 1968. 51 Ibn Isfandiyār 1942: 22. 52 Ibn Isfandiyār 1942: 22.

The discretionary power of the king in criminal matters is highlighted in political crimes. According to Tansar, the king put to death some of the rebels to inspire terror and left alive some to hope for pardon. Full discretion in criminal judgment as a technique of power and control was emphasised by Tansar while stating that it is the “most comprehensive measure for good government”53 because “sometimes one should exact death penalty for a transgression which merits and deserves pardon, and sometimes pardon a transgression which demands death”.54 According to Tansar, crimes committed by the people against each other did not escape the attention of the king either. He established a new law in which the old lex talionis was replaced by compensation. The guideline of this reform was highly utilitarian, Tansar explains, since if the hand of a thief was cut off it was disadvantageous for both the victim and the thief; replacing it, however, with compensation, it is advantageous for both because compensation is a material help for the former and a penalty for the latter. It is of importance that by imposing penalties nobody should be mutilated seriously in order not to lose the capacity to work: even the cutting off of the nose, a penalty prescribed for adultery, does not hinder the delinquent to work meanwhile the stigma of the sin remains there during the entire life.55 In sum, there were competing theories on crimes and punishments in Sasanian Persia. The theory elaborated by Zoroastrian priesthood highlighted the fate of the soul and penitence while the more utilitarian approach of the state emphasised social and political order. It is common in both theories that both gave discretionary power to the person judging the crime (the rad and the king) though on different lines of reasoning.

3. OUTLINES OF SUBSTANTIVE LAW 3.1. Private procedural law56 Similarly to other pre-modern, archaic societies litigation was not looked at positively in Sasanian Persia and attempts were made to avoid it if possible. Therefore, launching a lawsuit was regarded as a condition invalidating several contracts already concluded between the parties,57 sometimes the right to launch a lawsuit was abandoned in exchange for

53 Boyce 1968: 42. 54 Boyce 1968: 43. 55 Ibn Isfandiyār 1942: 22–23. Adultery was punished by cutting of the nose in Assyria, too; see Middle Assyrian Laws (MAL) 15.§ in: Roth 1995: 158. 56 This section is based on my previous writing on private procedural law, see Jany 2010. 57 MHDA 33. 3–7, 11–14.

compensation.58 Women were particularly safeguarded against the turbulence and honour- breaking debates of a lawsuit and were kept at distance from courts as much as possible. The general term for a judge was dādwar but occasionally there are references to subcategories such as dādwar ī keh and dādwar ī meh. Perhaps the dādwar ī keh (literally: small judge) was, as indicated by his designation a judge of lower grade while the dādwar ī meh (great judge) meant some kind of a forum of appeal.59 A judgment of a dādwar could be revised by the mōbeds representing the next level in the hierarchy of the judiciary.60 There is one reference (MHDA 12.11) to the dādwar ī pasēmār and the dādwar ī pēshēmār who are literally the judges of the defendant and of the plaintiff respectively. Perhaps an arbitrate court is indicated, as Maria Macuch rightly observes,61 where both parties delegated equal members to represent their interests and decide about the case. Rad and mōbed, two priests of the Zoroastrian clergy had judicial competencies, too. The mōbed was both an appellate forum of the regular court of the dādwar and a separate court. As a next instance above the dādwar he could proceed in all issues in which the dādwar had competency.62 As a separate court he could decide about issues which other organs had no competency to deal with, most importantly to appoint a stūr for a man and a sālār (guardian) for a family.63 The function of the rad was similar to that of the mōbed but was not authorised to nominate sālārs and stūrs.64 The hierarchy of the judiciary was headed by the mōbedān mōbed, no further appeal was possible against his judgement.65 The hamārgar, an office going back to the Achaemenid period was a legal representative of the monarch in a lawsuit, an authority of public administration and a judge, his function depending on the case he dealt with.66 A lawsuit started with bringing an action against the defendant by the plaintiff, but the plaintiff was left alone against a defendant unwilling to appear at court. Persons of full legal capacity could be parties on either side, but there were some exceptions. Women and slaves could be litigants in their own right rather rarely; they usually participated in the lawsuit as

58 MHDA 17. 4–7, 22. 1–7. 59 Macuch 1981: 14. 60 MHD 3. 6-8; MHD 110.13–15; Macuch 1993: 660; MHDA 12. 12–13. 61 Macuch 1981: 14 suggests a procedure of arbitration by a court chosen by the parties. 62 MHDA 26. 14–15; MHD 110. 13–15. 63 MHDA 26. 12–16. 64 MHDA 26.17–27.4. 65 MHDA 27. 4–5. 66 MHDA 27.13.–28.3.

partners of their representative (guardian). A woman could not appear in her own right as plaintiff in a dispute related to ownership.67 Children were always represented by their guardian in a lawsuit. If a male child came of age before the suit came to an end the guardian could not continue it, and if he did so he was qualified as of bad intention (wadkhāh) and a judgment was passed against him.68 The date of the proceedings was set by the judge69 at which time the parties were obliged to appear at court. When both parties appeared at court, this was registered. If one of the parties refrained from appearing the fact of absence (nē āmad: “did not come”) had to be recorded in the protocol.70 Absence from the hearing was called azishmānd, a complex and somewhat puzzling judicial term designating, among others, misconducts during a trial. Three successive azishmānds resulted in the loss of the lawsuit.71 A proceeding started in the morning and the judge was to pronounce his judgment on the same day.72 When both parties appeared the lawsuit began. It was the task of the proceeding judge to identify the parties, their age (literally the blackness and whiteness of the hair), their gender, name, and seal.73 The hearing then continued with the statements of the parties standing at a distance of three steps from the judge. The plaintiff’s (pēshēmār) statement was followed by that of the defendant (pasēmār). The designation of the parties reflects the order of the statements to be made (pēshēmār: “the one who speaks first”; pasēmār: “the one who speaks later”).74 Protocols (sakhwan nāmag) were produced during the hearings to record the statements of the parties which had to be sealed by them. When both parties pronounced their statements the proceeding entered into its next phase. Now the judge had to decide on whom the burden of proof rested because there was no law regulating this issue in general. In fact, in a considerable part of the cases known to us (mostly in lawsuits on ownership and property) it was the duty of the defendant to prove that the claim of the plaintiff was not true (nē ēdōnīh).75 Statements could be proven by witnesses, document76 or material proof.77 It is important to note that during a

67 MHD 16. 5–10. 68 MHDA 32. 9–13 69 MHDA 25. 16–17. 70 MHD 73.13–74.5. 71 MHD 10.16.11.7. 72 MHDA 13.17.14.1; Macuch 1981: 16; 155. 73 MHDA 25.15–26.11. 74 Macuch 1981: 160. 75 MHD 6. 2–6, 15. 12–14, 14–16, 108. 6–8, MHDA 30.17–31.3 76 MHD 83.17–84.5.

lawsuit sometimes the testimony of a single witness was acceptable.78 By contrast, three witness were required to certify a private document outside the court (for instance in the case of an oral testament).79 When neither witnesses, nor documents, nor any other material proofs were at hand, the issue was settled by ordeals or oaths. Unusual or statements difficult to believe had to be confirmed by oath, too (e.g. if the debtor stated that his debt was annulled by the creditor).80 In such cases the proceeding was suspended in the court to be continued only after an ordeal or taking of an oath had taken place, usually in a different location (khwārastān) under the supervision of the war-sālār.81According to the Dēnkard82 thirty-three oaths were known but only four of them are mentioned in the MHD+A, such as the war ī dēnīg, war ī pāy nishān, war ī pad sōgand, and war ī pad nāmag passāz. Taking an oath was considered as an advantage in the lawsuit because the party swearing the oath could influence the outcome of the lawsuit. This is clear from the judgment divesting the defendant of his right to give an oath in case he committed an act of azishmānd and the privilege of taking an oath was transferred to the plaintiff qualified earlier as less worthy.83 When the oath was taken properly the suit continued in the court room. The judge, now all evidence at his disposal was able to pronounce the judgment. Until this time the plaintiff had the right to ask for a suspension of the procedure but the defendant’s consent was required to it.84 Until the judgment was passed the parties could conclude an agreement outside litigation. Such an agreement resulted in the termination of the lawsuit which, however, did not hinder the parties to start a new litigation later.85 If the lawsuit was not suspended or the parties came to no agreement outside litigation the judge pronounced the judgment. The judgment was committed to writing (in all probability by the clerks) and a copy of it was kept in the archives.86 If the judgment was at variance with the rules of procedure it had to be considered

77 MHD 7. 3–4. 78 MHD 107. 9–12 ,12–14 79 Macuch 1981: 137. 80 MHD 8. 15–16. 81 MHD 8. 15–16, 8.16–9.1, 57.3–12). 82 Dēnkard 644. 14.ff in Macuch 1993: 135. 83 MHD 14. 12-17. 84 MHD 90. 6–8. 85 MHD 74. 9–12. 86 MHDA 26.6.

as “not good” (ne pad khūb dāshtan),87 if it was contra legem of norms of substantial law it was considered a “lie judgment” (drōg wizīr).88 When the ruling was announced the parties could decide whether to accept it or to appeal against it. After their statement of acceptance the parties could not change their minds.89 When the parties (or one of them) appealed against the judgment the procedure continued at a second or third instance depending on at which court the lawsuit previously started.90 This court informed the appellate court about the facts of the case.91 A particular form of legal remedy took place in the royal court during two major festivals of Zoroastrianism, Nawrūz and Mihragān. According to the Kitāb al-tāj of al-Jah iz , during these occasions complaints against the king and his officials could be presented by anyone who was dissatisfied with the previous judicial procedures for whatever reasons. The mōbedān mōbed in person guaranteed that entry should not be denied to anyone. In case justice was given to the complainant the king had to redress the complaint, otherwise the complainants were punished for high treason. This custom is said to be in practice for centuries until Yazdagerd I. abolished it.92

3.2. Criminal procedural law93

Officials called frēzwān and zēndānbān were authorities who took part in the criminal procedure. The frēzwān rendered assistance to the judge in conducting the lawsuit. It was his task to collect evidence and to present them at the proceedings, to identify the parties, to arrest the accused and to take him away after the proceeding.94 The zendānbān was a prison ward but his competency was not precisely delineated, he had perhaps tasks similar to those of the frēzwān.95 The zendānbān kept records related to prisoners and was responsible for the safekeeping of

87 MHDA 14. 5–6. 88 Macuch 1981: 194. 89 MHD 3. 1–3. 90 MHD 3. 6–8 91 MHD 110. 13–15. 92 Perry 1978: 204. According to al-Óabarī, too, the custom of royal audience was abolished by Yazdagerd I. The Syriac Acts of Martyrs, however, know it differently: accordingly the public hearings were held on the first week of every month when nobles had the opportunity to refer cases of misconduct and oppression to the king, see: Braun 1915: 179. 93 For more on criminal procedural law see Jany 2007: 373–384. 94 MHDA 27. 10–12, Macuch 1981: 202–203. 95 MHDA 28.11–16.

convicts.96 In criminal procedures against Christians the commissars were called the king’s representatives (sharrīra de malkā in the Syrian text)97 who proceeded in their own right without consulting the frēzwān and were various dignitaries of Zoroastrian priesthood.98 Investigation started when the accused was made acquainted with the charges against him/her. The charges and the plea were made orally, sometimes in the presence of the monarch. Protocols were produced during the hearings which contained the accusation, the questions put to the accused and his/her answers to the questions, denial or confession. Protocols recorded during a criminal procedure were called pursishn-nāmag, book of questions99 which contained the oral declarations of the parties and also the judgment had to be recorded in it at the end of the procedure.100 Such protocols were produced only in cases of margarzān, in cases of minor importance producing a pursishn-nāmag was left to the discretion of the judge.101 When one hearing was sufficient to decide the judgment was pronounced at the end of it, otherwise more hearings were necessary. There was no rule whatsoever concerning intervals between hearings. Between hearings the accused was kept in custody, either in jail or in house arrest102 sometimes for a long period during which torture was common (at least in investigations against Christians) which resulted in serious corporal mutilations (the tongue of the accused was cut off, his teeth were beaten off, his bones were broken).103 As attested by both the Acts of Martyrs and the Letter of Tansar apostates were put to jail before the judgment was pronounced. While in custody, the accused was put amidst robbers and assassins, was fettered by heavy chains,104 was interrogated and harmed repeatedly during the day,105 was left without food and drink for long spells of time;106 was whipped with thorny pomegranate branches,107 and it was prohibited to visit the captives, to supply them with food, drink and garments.108 But sometimes

96 MHDA 28.17–29.6. 97 Perhaps it is the equivalent of Middle Persian ōstīgān, see Macuch 1993: 632–633. 98 Wiessner 1967: 169-178. 99 Braun 1915: 203; MHD 78.4. 100 MHDA 34. 8–9. 101 MHDA 34. 6. 102 Braun 1915: 208. 103 Braun 1915: 2–3. 104 Braun 1915: 145. 105 Braun 1915: 94. 106 Braun 1915: 101. 107 Braun 1915: 120. 108 Braun 1915: 122.

prisoners could be released on bail (although there was no legal term for it), at least this can be inferred from a single case.109 When the last hearing terminated, judgment followed it immediately. The judgment of capital punishment usually contained the crime the person was accused with, the sanction and the type of execution, giving a detailed description how it was to be done. The execution was postponed until delivery when the convict was a pregnant woman because the child was regarded innocent and could not be condemned to death.110 Most frequently capital punishment was decapitation by the sword carried out by the executioner.111 Occasionally, decapitation was made more severe: in such cases the executioner first cut off the fingers, next the hands and feet and only then decapitated the convict.112 Crucifixion was another way convicts were put to death, occasionally the condemned was crucified head first.113 Crucifixion was the punishment of robbers and witches.114 Sometimes culprits were cut into half at the waist,115 or were burnt alive after having been smeared with naphtha.116 There was precedent also of gauging the condemned’s eyes with a hot needle and then left to die,117 or of digging him into the earth at half his height and then a shower of arrows was shot at him,118 or vinegar and mustard were squeezed into his eyes, mouth and nose.119 Stoning was a rarely applied mode of execution. Occasionally elephants were also applied for executions, mostly against Christians, robbers and murderers.120 When a prominent person was put to death and the king personally wanted to learn that the convicted was in fact dead the head of the corpse was cut off and presented to the ruler.121

3.2. Criminal law122

109 Braun 1915: 145–146; Hoffmann 1880: 37–38. 110 Nyberg 1964: 10. 111 Braun 1915: 34; 55; 81; 95; 99; 104; 105; 148; 169; Hoffmann 1880: 16. 112 Braun 1915: 153; 176. 113 Braun 1915: 185; 187; 268. 114 Ibn Isfandiyār 1942: 26. 115 Braun 1915: 4; 92; Hoffmann 1880: 33. 116 Braun 1915: 183. 117 Braun 1915: 4. 118 Braun 1915: 4. 119 Braun 1915: 185, Hoffmann 1880: 56. 120 Braun 1915: 182. The Letter of Tansar confirms the claim of the Acts of Martyrs that elephants were favoured against heretics: see Ibn Isfandiyār 1942: 26. 121 Braun 1915: 3. 122 For more on criminal law see Jany 2007: 362–373 and Macuch 2003: 172–189.

Sasanian legal scholars established a system of crimes putting them into a hierarchy according to the volume of compensation to be paid for them. As Shāyast-nē-shāyast 1.2 has it: “One framān is four stērs, and every single stēr is worthy of four drakhms; āgrift and ōyrisht are those of the smallest (amount of) compensation, their price (are) special, there have been some (authority) who said ‘at the most one drakhm’; ardush thirty stērs, khwar sixty stērs, bāzā ninety stērs, and yāt hundred and eighty stērs and tanāpuhl three hundred stērs.”

According to this list, the less severe crimes were āgrift and ōyrišt, having no definite amount of penalty followed by framān, ardush, khwar, bāzā, yāt and tanāpuhl. Individual crimes (theft, bodily injuries, etc.) were put into this system and penalised accordingly. But if someone committed the same crime habitually he was condemned after a fixed number of crimes according to the next category in the hierarchy. The inherent logic of the system was proportionality, because the more serious the crime was the less number was needed to change the category. For example, the eighth crime committed of an āgrift led the perpetrator to be punished by tanāpuhl, but it were the seventh of an ōyrisht, and only the fifth of an ardush which led to the same result. The list of crimes found in Šāyist-nē-šāyist 1. 2 is far from being complete because it omits margarzān and srōshōčarnām.123 The supplementary text to the Shāyast-nē- shāyast (chapter eleven), however, gives a list of crimes different from the text just quoted. Accordingly, between framān and āgrift there is the category srōshōčarnām. Chapter sixteen of the same work has another sequence of crimes, beginning with framān, as the less serious crime, followed by āgrift, ōyrisht and ardush. To turn to individual crimes, MP sources concentrate above all on tanāpuhl and margarzān having only a few words to say on other categories. Yāt is documented only once (pouring the water in unclean places),124 framān is also a ritual delict (a menstruating woman glances at the fire or at the water;125 somebody brings water into an unclean house126 or goes without wearing the kustī for three steps.127 Framān could be changed to tanāpuhl, if the menstruating woman walked three steps toward the fire, or anybody goes more then three steps

123 Properly speaking, margarzān is not a term for a crime but denotes perpetrators of capital crimes. 124 Shāyast-nē-shāyast 2. 51 125 Shāyast-nē-shāyast 3. 27–28 126 Shāyast-nē-shāyast 2. 51 127 Shāyast-nē-shāyast 4. 10

without wearing the kustī.128 Khwar is to cohabit with a non-Iranian, an agdēn or a tanāpuhl woman.129 The crime of a disciple who does not learn the sacred text is ardush.130 Tanāpuhl crimes, too, consisted of not observing ritual law such as to carry fire toward a corpse within three steps,131 to bring fire into an unclean house, to light fire there,132 to enter into an unclean house having no business there,133 to move a corpse previously not seen by a dog,134 to have sexual relationship with a menstruating woman,135 to walk in rain or to sit in water by a menstruating woman,136 to walk more than three steps without wearing a kustī,137 to walk more than four steps wearing only one shoe,138 to talk while eating,139 to fail to recite the Gāthās, or to fail to celebrate the Gāhāmbār either out of hostility or out of defiance,140 to kill a dog and beneficial wild animals.141 Some crimes, originally classified as tanāpuhl could be margarzān after a year, if committed perpetually such as to walk with a child of an agdēn or a tanāpuhl sinner,142 to hand over a faithful Zoroastrian to a non-Iranian or agdēn person, or to a man who committed tanāpuhl sin,143 apostasy,144 to refute stūrship after acceptance.145 Finally, there are crimes which qualified as margarzān when committed for the first time such as to carry a corpse toward fire so that the corpse enflames;146 to carry a corpse in rain;147 to carry a corpse alone;148 to eat carrion by a pregnant woman;149 to give donation to the rads from the wealth of a

128 Shāyast-nē-shāyast 3. 27–28; Shāyast-nē-shāyast 4. 10. 129 Ērbedestān, 12.29 130 Ērbedestān, 17.1. 131 Shāyast-nē-shāyast 2. 40 132 Shāyast-nē-shāyast 2. 50. 133 Shāyast-nē-shāyast 2. 53. 134 Shāyast-nē-shāyast 2. 69. 135 Shāyast-nē-shāyast 3.26 136 Shāyast-nē-shāyast 3. 28. 137 Shāyast-nē-shāyast 4.10. 138 Shāyast-nē-shāyast 4. 12. According to the Pahlavi Rivāyat Accompanying the Dādestān ī Dēnīg, wearing only one shoe stops the milk of the women. (PRDd 11.2; Williams 1990 Part I: 72–73; Part II 23.) 139 Shāyast-nē-shāyast 5. 3–5. 140 Nērangestān, Fragard II, 23.1; 24.1; 26. 3–4 141 Macuch 2003: 187. 142 Ērbedestān 11.1. 143 Ērbedestān 11.8. 144 Nērangestān Fragard II, 23.4. This rule confirms the reference of Tansar to the practice that apostates were not prosecuted immediately, only after a year when the perpetrator did not repent. 145 MHD 82. 13-14. 146 Shāyast-nē-shāyast 2. 40. 147 Shāyast-nē-shāyast 2.9. 148 Shāyast-nē-shāyast 2. 63. 149 Shāyast-nē-shāyast 2. 105.

tanāpuhl-sinner,150to fail to recite the Gāthās because of drunkenness.151 Besides these ritual wrongs an attempt to murder the king was also margarzān.152 Soldiers fleeing the battlefield deserved also capital punishment.153

3.3. Private law All the cases presented in the MHD+A are about private law matters but litigations about family law and the law of inheritance prevail. It is understandable even for a modern reader since Sasanian family law was in fact complicated and it is small wonder that hard cases found their way into the compilation. A Persian family was patriarchal and patrilinear but it is subject to debate whether it was agnatic or not. A. Perkihanian argues for an agnatic family structure but B. Hjerrild denies this because a woman did not lose her bonds to her original family which had the right to claim her back if circumstances required it to produce heirs to one of her male relatives (ayōkēn).154 A marriage bound was not monogamous because (1) there were three types of marriages a man could enter into simultaneously and (2) a man could have more wives in the same type of marriage. The principal marriage was called padikhshāy in which the husband enjoyed the rights of a pater familias (kadag khwadāy) over his wives and children. A padikhshāy marriage was established with a contract. Unfortunately, no such contract has conme down to us but a marriage contract written in Sogdian, dated about 710 CE may not differ essentially from its Sasanian antecedents.155 Padikhshāy marriage was a matrimonium cum manu mariti, that is, the husband was entitled to exercise manus over his wife and children (sālārīh). Sālārīh was an important part of the marriage contract since without sālārīh the marriage was null and void (MHD 4.15– 5.3.). On behalf of the woman it was her guardian (sālār) who signed the contract and if the marriage was concluded without the guardian’s consent, it was void (MHD 36. 2–5) or was to be recognised only as a khwasrāyūn marriage, but not as a padikhshāy. In theory, the consent of the girl was needed; if the contract was concluded when she was only a minor, she had to confirm

150 Nērangestān Fragard II, 36.3. 151 Nērangestān Fragard I, 11.2. 152 ōy ke pad gyān ī khwadāyān kōkhshēd, margarzān, be ōzanishn: one who attempts to murder the king is margarzān, should be killed. Nyberg 1964: 10. 153 Braun 1915: 43, confirmed by the Letter of Tansar. 154 Hjerrild 1993: 80–85. 155 MacKenzie 1969.

the marriage or could refuse it when she came of age (MHD 36.9–16; 106. 7–9; 89. 15–17; 89. 17–90.2). As a consequence of sālārīh the husband was entitled to rule the family (as the very name of the marriage reflects) with orders (framān) which all persons belonging to his sālārīh (wife, children, slaves) had to obey (framān burdārīh). Neglecting such orders was a serious misdeed called atarsagāyīh (‘not-fearing’) with legal consequences. It was not at all clear for Sasanian lawyers what actions could be regarded as an act of atarsagāyīh and, therefore, various opinions were formulated. But the uncertainty in jurisprudence shows that husbands might enjoy discretionary power in this regard. Here, however, the judiciary came to the assistance of the woman because the document produced by the husband could be brought to court and the wife could prove that she was in fact obeying. Only the document of the court (dib ī pad atarsagāyīh) was considered as solid enough (ēwar) to prove that the wife committed atarsagāyīh. Once being atarsag the wife was deprived of the rights she enjoyed previously (lost her income (windishn), lost her share if she was a co-owner with her husband) but did not lose her right to inherit her share automatically but only when her husband declared so in his testament (MHDA 5. 9–10; 7. 2–3; 6.1–14; 3. 13–17; 7. 11–13). It was an underlying principle of Sasanian law that no family was to remain without a guardian. Therefore, should a pater familias die a guardian was nominated to manage family affairs. Guardians were of three types. The dūdag sālār ī būdag came from among the members of the nuclear family; usually it was the son of the deceased if he already reached maturity. In this case the son was the guardian of his mother whose consent was needed if she wanted to remarry (MHD 26. 3–5). Obviously, such a son was the guardian of his minor brothers and sisters, too. If there was no such son in the family a guardian was nominated from among the close relatives by the mōbeds (dūdag sālār ī gumārdag). The pater familias had the right, however, to designate a guardian for his family in his will. Such a person was called dūdag sālār ī kardag who could refuse the job or convey it to another person (MHDA 14. 9–12; MHD 27. 4– 5; 28. 12–13). It is clear from the judgments recorded in the MHD+A that Persian lawyers regarded the dūdag sālār ī būdag as the favourable guardian while the other two guardians were seen only as auxiliary persons. For example, if a minor son came of age he had to become the guardian of the family and the gumārdag or kardag guardian had to stop his activity. Should he continue to exercise his right he was of bad intent (wadkhah) and liable (MHD 48. 16–17, MHDA 32. 9–13).

It was the husband’s right to dissolve the marriage which was to be recorded in a document called hisht-nāmag. In this letter of divorce the husband had to designate the person who would exercise guardianship over his wife after divorce. According to law a letter of divorce was null and void if the husband failed to designate such a person but in legal practice (kardag) the courts did not follow this rule strictly (MHD 4.10). The husband had to pay back the dowry his wife brought into the marriage but it was subject to debate among Persian legal scholars whether the income of the wife (windishn) was also to be given back (MHD 4. 10–15). There was no rule of primogeniture, therefore, all legitimate offspring were entitled to inherit but sons had a double share than unmarried daughters while a widow received the same share as a son and married daughters received nothing (because they received their share in the form of a dowry already). If there were more sons the father had to select from among his male heirs his successor as the head of the family who had to fulfil ritual obligations when his father died. Since ritual and worship on behalf of a deceased was very important, to have such a son was necessary in both religious and ritual points of view. Therefore, Sasanian law made every effort to guarantee such a son for a man without an heir. The first technique was adoption, but the legal status of the adopted son was subject to debate and Persian lawyers seem to regard this institution with some kind of a suspicion (MHD 26. 10–12; 69. 9–10; 71. 4–7). By contrast, stūrīh was a widely accepted means which seems to be closer to Persian legal thinking than adoption. Accordingly, a man could set apart an amount he saw fit but not less then 80/60 stēr/drachm (?!) for his heir produced by the stūr. If this son came of age he was regarded as the legitimate heir of the testator who inherited the amount defined by his ‘father’ while the interest realised during these years was the payment of the stūr. Stūrs were of three kinds: būdag, gumārdag and kardag, a classification in harmony with that of the guardians. One of the stūr ī būdag was the widow provided she was Zoroastrian (MHD 44. 6–8). The daughter of a deceased man was also considered as a stūr ī būdag unless she was under his father’s sālārīh at the time of his death. If the daughter in charge was already married her previous marriage had to be dissolved (MHD 43. 1–4). It was not clear for Persian lawyers which of the daughters would become stūr if there were many: some authorities preferred the youngest daughter while others the first-born daughter (MHD 46. 17–47. 2; 41. 16–42. 1). The stūr i kardag was a person designated by the testator in his will who had priority over the būdag. Therefore, when a stūr i kardag had been nominated, the responsibility of stūrship could be

taken over by a stūr ī būdag only if the former was unable to meet his obligations for some reasons (MHD 41. 15). The testator could designate anybody as a stūr for himself instead of his children and wife (MHD 82. 10–16). The nomination of a stūr i gumārdag took place if the testator did not designate a stūr in his will, and there was no stūr ī būdag in the family either. If there were several persons who were ready to perform the duty of a stūr, the “most worthy” (sazāgtar) had to be appointed by the mōbed (MHD 43. 1–4; MHDA 26. 11–12). Regarding the person of a stūr, there were no distinctions based on gender but female stūrs had priority over males. A woman could only be one man’s stūr (MHD 43. 8–11) because otherwise it would not have been possible to determine to whom the children belonged but a man could be a stūr of several persons. According to religious and legal theory the function of a stūr was merit without financial advantages but according to Mardag’s view the stūrship could be profitable, at least for men and it is the latter which seems to be closer to social reality (MHDA 2. 6–7; MHD 41. 8– 9).156 Čagar marriage was another possibility to produce an heir for a deceased man without a male offspring. When such a man died his widow and daughter had the obligation to enter into a čagar marriage and produce children for her deceased padikhshāy husband and father. Consequently, in the čagar marriage the manus was not exercised by the čagar father and husband. As a result, the čagar marriage was a matrimonium sine manu mariti and the wife was entitled to choose a sālār for herself from among the male members of the family of her deceased husband. Being deprived of sālārīh čagar husbands had no legal ties to their own offspring, a curious situation being at variance with their interest. Therefore, attempts were made to create legal ties between father and natural sons. Since, however, this would jeopardise the very aim of čagar marriage a debate among legal scholars followed attested by the MHDA containing several contradictory legal opinions in this regard. At the end of the Sasanian period this debate seems not to have been settled for certain but post-Sasanian sources clearly prove that legal ties between čagar fathers and their sons were established (right of inheritance, stūrīh) and čagar marriage lost therefore its original function and had become a second-rate marriage.157 A khwasrāyūn marriage came into being when the marriage was concluded without the consent of the sālār for whatever reasons. In this marriage the husband was called gādār who

156 For more on stūrīh see Hjerrild 2002 and 2006. 157 Carlsen 1984: 105-114.

was not entitled to sālārīh save if the woman had no sālār when concluding the marriage and was not given the right to be the sālār of her own (khwēsh tan sālār); otherwise she remained in the sālārīh of her father or brother. (MHDA 14. 1–4). Therefore, the gādār had no obligation to provide for his wife who should live from her own income or her father should provide for her when she had no income on her own (MHD 33. 1–3). Here again the strong connection between marriage and sālārīh so characteristic of Persian legal thinking comes to the foreground. Without sālārīh, however, the children produced in this marriage were not regarded as the offspring of the gādār which proves that it was an irregular form of marriage which came into being when the sālār (that is the father or the brother) failed to arrange a proper marriage for the woman. Both čagar and khwasrāyūn marriages could be concluded as temporary marriages, that is, the duration of the marriage was established in the contract and it was dissolved when the time expired.158 In monetary matters the MHD+A has not too much to offer for a modern reader. It is certain that Persian lawyers made a distinction between possession (khwāstag, dārishn) and ownership (khwēshīh). Concerning law of obligation the compilation is filled with problems of minor importance in a very casuistic manner for the discussion of which there is neither need nor space in a short outline as this. But a peculiar institution which we may call charitable trust deserves some attention. A person was entitled to separate a part of his/her property for an aim specified by him/her the realisation of which was accomplished with the help of this wealth. The administration and management of this was the responsibility of the sālār designated by the founder. Among the beneficiaries could be the settlor if the trust was established for the rituals of his own soul (ruwān yazishn rāy), or any other person if the aim was his/her salvation (pad ruwān). A particular trust was that for a Fire-temple. A wealth separated for this purpose (khīr ī ātakhsh) could be used also for business purposes without jeopardizing the aim of the trust, that is, maintaining a Fire-temple.159 Since noble persons, leading dignitaries and wealthy persons established such Fire-temples, considerable wealth concentrated in these trusts having an important role in Sasanian economics. Small wonder, therefore, that we can find a great deal of legal problems concerning its management in the MHDA.

158 For more on temporary marriages see Macuch 1985. 159 For more on Sasanian trusts see Jany 2004.

4. Sasanian law in a global context Sasanian law evolved according to its own postulates and values but we can find some similarities with other legal systems. The concept of arta and law being conceptualised in a cosmic order as the law of Auramazdā but not revealed as a positive norm to a prophet resembles the Hindu notion which may be due to the common Indo-Iranian heritage. Sasanian legal thinking had some influence on Jewish law, at least this could be inferred from Persian legal terms found in the Talmūd.160 Jewish lawyers were familiar with Sasanian legal practice, they even knew how and when to bribe Iranian officials.161 In both Jewish and Sasanian law a person could be half free-half slave, a peculiar legal situation not shared by other legal cultures.162 Trusts, referred to above, seems to be a widely known institution throughout the whole Mediterranean since it could be found in Roman and Byzantine law, too, and it is also a peculiar institution of Islamic law (waqf). Whether or not the establishment of waqfs in Islamic law was modelled on Sasanian or Byzantine models is subject to research in modern scholarship.163 Perhaps Sasanian law had not so much influence on Islamic legal thinking than it was believed previously.164 In sum, although Sasanian law was not isolated from other legal cultures, it developed according to its own concepts and to the political, economic and social circumstances of the Sasanian Empire being subject almost to no influence from outside and giving few impetus to neighbouring legal cultures.

160 Macuch 2002; Macuch 1999; 161 Gittin 28b. 162 Jany 2009: 473-484. 163 Macuch 1994; Macuch 2004 164 Concerning the comparison of uÒūl al-fiqh with Zoroastrian legal theory see Jany 2005; whether or not the office of the qāÃī al-quÃāt came into being on the Persian model was discussed in Jany 2008.

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