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.