Chapter 3

Judicial Procedure in Zoroastrian Law

Since there are no sources concerning legal procedures from the Achaemenid and Parthian periods, rules and social practice of these centuries remain in darkness. It is only the Sasanian period which is documented in this respect. In the Sasanian period private and criminal procedural law were distinguished in practice, though not in theory. There were different rules governing these two fields of procedure and, what is more, there were different legal terms for technical details, too. For instance, protocols produced in a civil procedure were called sakhwan nāmag, while protocols of criminal procedure were pursishn nāmag.

But here, too, there is no law regulating procedures available, whether civil or criminal, and studies cannot determine at present whether there was any at all. What is at hand is the Mādigān I Hazār Dādestān (MHD+A) containing hundreds of civil cases and their sometimes very terse description. Based on these judgments one can only infer by way of induction to rules being behind particular decisions. We can have at least a general overview of Zoroastrian private procedural law only when generalizing and sometimes conceptualizing the particularities of this ocean of casuistry. Since the MHD+A contains only minimal references to criminal cases, the source used to reconstruct criminal procedure is the Syriac Acts of Martyrs, which contains several criminal procedures against Iranian Christians. Although it is not a legal code but rather a religious work highlighting the sufferings and steadfastness of the Christian martyrs, it reflects the criminal procedural practice of the day.

Private Procedural Law1

The compiler of MHD+A, Farrokhmard ī Wahrāmān, is well acquainted with rules of procedure and the contemporary judicial practice of the courts. Perhaps it is because he was a judge himself, presumably in Pārs province, incorporating numerous cases from this area into his work.

As witnessed in various archaic societies, litigation was not looked at positively and attempts were made to avoid it if possible. Launching a lawsuit was regarded as a condition invalidating several contracts already concluded between the parties;2 sometimes the right to launch a lawsuit was abandoned in exchange for compensation.3 Women were particularly safeguarded against the turbulence and honour-breaking debates of a lawsuit and were kept at a distance from courts as much as possible.

Organs of Procedure

The judiciary consisted of a rather complex set of institutions. Unfortunately, not every detail is known, though Farrokhmard ī Wahrāmān dedicated a separate chapter to the issue. Nevertheless, it seems that several forums of different competencies and power existed and operated parallel to each other.

The designation of a judge was dādwar but occasionally there are references to subcategories such as dādwar ī keh (literally: small judge) and dādwar ī meh (great judge). Perhaps the dādwar ī keh was, as indicated by his designation, a judge of lower grade, while the dādwar ī meh meant a forum of appeal.4 A verdict passed by the dādwar could be revised by the mōbeds representing the next level in the hierarchy of the judiciary.5 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 the plaintiff respectively. Perhaps an arbitrate court is indicated, as Maria Macuch rightly observes,6 where both parties delegated equal members to represent their interests and decide the case. If this assumption is correct, we can witness an official judiciary operating, perhaps, on three instances; and parallel to this an unofficial body composed of unofficial judges was also accessible to the parties, applying less rigid rules of procedure and opening the door to compromises.

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 that fell under the competency of the dādwar.7 As a separate court he could decide issues that other organs had no competency to deal with, most importantly to appoint a stūr for a man and a sālār (guardian) for a family.8 The mōbed, however, was not only a judge of the highest standing but had other judicial functions as well. Authenticating documents may rather be regarded nowadays as a notary’s task but naturally it was not so sharply separated in that period. The reference according to which the mōbed also functioned as an authority of public administration, and particularly in the supervision of revenue administration and of the fire temples, is more difficult to interpret.9 As there are no more texts at our disposal it is not possible to say more about this issue. The function of the rad was similar to that of the mōbed, with the significant difference that the choice of the person for the sālār and the stūr was outside his competency.10

The hierarchy of the judiciary was headed by the mōbedān mōbed and no further appeal was possible against his judgment.11 Unfortunately it is not possible to determine how many levels the system was composed of. There was, however, a distinction made in respect of appeal – whether the judgment was made according to the kardag (legal custom of the courts) or to the čāshtag (legal doctrine). As a judgment passed on kardag was not regarded as ‘sure’ (ēwar), an appeal against it also meant that the appellate court did not proceed according to kardag but according to the norms of čāshtag, and it was up to the parties to decide.12 In exceptional cases the mōbedān mōbed could also participate in the procedure as a witness but not as a judge. His statement as witness qualified as absolutely reliable and did not have to be confirmed by oath, and even proved to be stronger than an oath.13

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. As representative of the royal treasury he represented the state (the ruler) in a lawsuit if the subject of the dispute was an item of goods belonging to the royal treasury. As an officer of public administration he was responsible for collecting taxes, and as judge he could fine those who damaged property belonging to the royal treasury.14

Some auxiliary personnel whose task was to help a judge conducting a lawsuit are known. The war sālār was charged with managing and supervising the complex procedure of oath-taking. In doing so he had to present the text of the oath, say the necessary recitations and produce the oath-taking protocol.15 The taking of the oath was performed outside the courtroom in a procedure having its own rules and the lawsuit itself continued after the taking of the oath was completed. Finally, the clerks (dibīr), who played an important role in preparing the protocols, should also be mentioned. The number of clerks was set at a maximum of four per court.16

The number of law courts was determined by districts (rōstāg) in a royal decree. These buildings of the judiciary were called mānāgān.17 Unfortunately the text of the MHD+A is damaged exactly where the number of law courts organized in districts is mentioned, therefore, it is not possible to state the exact number of law courts per district. The province of the court seems to be determined by the residence of the defendant,18 but problems emerged when nomads were among the parties. In this case every court was competent to proceed in the province where nomads resided at least on one occasion;19 thus in the case of nomads the province of the courts was defined very flexibly in order not to hinder judicial procedure.

Judicial organs had their own seals to prove their authority and competence. The use of seals was introduced for the mōbeds and hamārgars during the reign of Kawād ī Pērōzān (CE 488–531), and for the dādwars only under Khusraw ī Kawādān (CE 531–79).20 Only documents sealed by the authorities were considered official, this seal being regarded as the ‘valid seal’ (muhrigān wāwarīgān), in contrast to the seal of a private individual.21 It seems to have been a widespread custom for private individuals to seal documents instead of signing them,22 but this was not a substitute for the seal of the authorities.

Legal representation was not alien to Sasanian legal practice, and Farrokhmard dedicated a separate though short chapter to this issue (MHD 74.12–76.3). A legal representative was called jādag-gōw, a term expressing precisely the role he performed during the lawsuit: a person speaking in the case. As it seems he was not a barrister or a person well versed in law, he only represented a party, acting on their behalf and perhaps using his talent in rhetoric. Legal representation was the duty of the guardian of a family. Sasanian law elaborated rules to prevent the guardian misusing his position and gaining material or legal benefit from his position when a clash of interests between the family and its guardian representative emerged.

The ‘representative of the poor’ (driyōshān jādag-gōw) was a particular though somewhat puzzling institution or honorary title. Presumably it goes back to the Awestan tradition where the Prophet is mentioned as the protector of the poor.23 Its religious connotation could be discerned in the Sasanian period, too, because this title was put on the seal of the mōbedān mōbed, the high priest of Pārs province.24 Archaeology, however, proves that this title was widespread in Iran and was not limited to a single province.25 Unfortunately, nothing is known about his activity in a lawsuit or outside litigation, while the complete wording of the title is embarrassing: in fact the driyōshān jādag-gōw ud dādwar means the ‘representative of the poor and judge’. Perry thinks that it was not only an honorary title but also a function of a high-ranking official,26 but it is difficult to see how to combine these functions in one and the same person during a trial. The institution was deeply embedded in Iranian tradition since it survived in Islamic times in the form of wākil al-racāyā, though naturally this function was no longer performed by the Zoroastrian priesthood.27

Private Procedure

A lawsuit started with the plaintiff bringing an action against the defendant, but the plaintiff was left alone against a defendant unwilling to appear at court and no official help to overcome this problem seems to have been at his disposal.

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 somewhat rarely; they usually participated in the lawsuit as partners of their representative (guardian). Consequently they could make statements during the trial independently of their guardian. When a conflict of interests emerged between a sālār and a widow that resulted in the giving of contradictory statements, another sālār had to be appointed and the new sālār was bound by the widow’s statement.28 When the deceased had no descendants his widow could participate in the lawsuit even without a guardian as co-plaintiff against a third person.29

A woman could not appear in her own right as plaintiff in a dispute related to ownership.30 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.31

The date of the proceedings was set by the judge (dādwar),32 at which the parties were obliged to appear at court. When both parties appeared at court, this was registered (kār rāyēnēd: continues the lawsuit). If one of the parties failed to appear the fact of absence (nē āmad: did not come) had to be recorded in the protocol.33 Absence from the hearing was called azishmānd, a complex and somewhat puzzling judicial term designating, among others, misconduct during a trial. Three successive azishmānds resulted in the loss of the lawsuit.34 A proceeding started in the morning and the judge was to pronounce his judgment on the same day.35

When both parties appeared at court the lawsuit could begin. 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, seal and their reliability.36 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).37

As a rule the parties were bound by their statements and it was not possible to make subsequent modifications. In exceptional cases, however, both parties had the right to alter their former statements. Both defendants and plaintiffs were entitled to make their statements ‘more credible’ at any time.38 In addition plaintiffs had the right to modify their action provided the modification affected the title of the claim.39 If the defendant modified their statement (washtag sakhwanīh) to a less credible version, a judgment had to be passed against them, at least according to the majority opinion.40 The defendant lost the suit if he modified a statement qualified as sure earlier.41 It was the plaintiff who had to notice that the defendant had modified his previous statement. If the plaintiff signed the protocol, he could no longer refer to washtag sakhwanīh and no judgment was to be passed against the defendant because of it.42

Not every modification was considered washtag sakhwanīh, only those which related to the essential facts – for instance the time and title of possession or the person of the legal predecessor in a lawsuit on ownership.43 When the defendant first denied and later acknowledged the statements of the plaintiff, it was qualified as washtag sakhwanīh.44

Protocols (sakhwan nāmag) were produced during the hearings to record the statements of the plaintiff and the defendant, which had to be sealed by both parties. If the defendant’s seal was missing, the protocol was invalid.45 By contrast, if the plaintiff’s seal was missing the judge was entitled to continue the lawsuit ex officio, but this issue was disputed among Persian legal scholars.46 To cover the costs of the proceedings a fee was to be paid, the sum of which was established by kardag. Accordingly, it was between 22 and 30 per cent of the value of the disputed object – but never more than 2 or 3 drachmas.47

When both parties had made 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 other words, Sasanian law did not know the maxim that the burden of proof rested on the plaintiff. In fact, in a considerable number of cases known (mostly in lawsuits on ownership and property) it was the duty of the defendant to prove that the plaintiff’s claim was not true (nē ēdōnīh).48 The decisive factor in selecting which party bore the burden of proof was what kind of formulae the parties used in their contract because different wording or syntax (e.g. active/passive) resulted in different legal consequences.

Statements could be proven by witnesses, documents49 or material proof.50 It is important to note that during a lawsuit the testimony of a single witness was acceptable.51 By contrast, three witnesses were required to certify a private document outside the court (e.g. in the case of an oral testament).52 It was the witness’s obligation to testify; it is not known whether or not sanctions were applied against reluctant witnesses, but post-Sasanian sources clearly refer to strong moral condemnation.53

When no witnesses, documents or any other material proof were at hand the issue was settled by ordeals or oaths. Statements that were unusual or difficult to believe had to be confirmed by oath, too (e.g. if the debtor stated that his debt was annulled by the creditor).54 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. According to the Dēnkard55 33 oaths were known but only four of them are mentioned in the MHD+A: the war ī dēnīg, war ī pāy nishān, war ī pad sōgand and war ī pad nāmag passāz.

The war ī dēnīg (oath on faith) was to confirm whether a statement of a party was positive (ēdōnīh) or negative (nē ēdōnīh). Thus this kind of oath served to confirm material truth. The meaning of war ī pāy nishān becomes clear in the light of later sources.56 This form of oath was not used to confirm material truth but to prove the integrity of the person taking the oath. It does not prove that a statement is actually true but confirms only that the testifying person is of integrity The force of such an oath was obviously weaker than that of the war ī dēnīg. According to widely accepted scholarly wisdom the war ī pad sōgand was a special kind of oath, during which the person involved drank sulphur water. If he had given a false oath he would burn to death because of the sulphur in his body, as it was believed.57 This widespread explanation is now subject to criticism by Martin Schwartz.58 Nothing is known about the content of war ī pad nāmag passāz (oath used at taking records) besides what the term itself means. It seems that a legal representative could also take the two latter types of oaths.59

It is important to note that it was not necessarily the person charged with the burden of proof who testified under oath. By contrast, it was the person called wehdādestāntar who was given the opportunity to swear – that is, whose oath could be trusted more. Unfortunately, the conditions by which such a person was selected from the parties are unknown, but moral and religious considerations certainly were among them. It often happened that it was the defendant and not the plaintiff who qualified as wehdādestāntar; therefore he had to give his oath on the plaintiff’s statement which was made against him. In such a case the defendant’s oath was aimed at denial (nē ēdōnīh).60 Co-plaintiffs had to give their oath jointly, otherwise the oath was invalid.61

Taking an oath was considered 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.62

Oath-giving did not take place in the law court but in the khwārastān under the supervision of the war-sālār.63 This official conducted the entire procedure up to sealing the yazishn nāmag, the protocol of the oath-taking.64 This protocol did not certify the content of the statement but merely the fact that the oath was taken properly. Oaths were taken on a certain day of the month: on the third day of the month according to the čāshtag, and on the sixth day of the month according to the kardag.65 When a person obliged to take an oath did not perform his task he committed an act of azishmānd and was condemned by an interim judgment.66

Ordeals had similar functions to oaths, therefore the word war also meant ‘ordeal’. It is remarkable that in private litigation reference to ordeals is rather unusual, while in cases of capital crimes it was more frequent. Perhaps disputes of private individuals about material goods were considered not worth invoking God by ordeals and therefore oaths were sufficient to decide such cases. By contrast, to decide on crimes (which could be sanctioned with capital punishment) was looked at as important enough to make use of ordeal, too. This might explain why the MHD+A, mostly dealing with issues of private law, hardly refers to ordeals.

The division of ordeals into hot and cold goes back to ancient tradition. Walking on hot embers, pouring molten metal on the chest or dipping the hand into boiling oil belonged to the hot ordeals. Consuming huge quantities of food or cutting the limbs with a knife were particular forms of cold ordeal. Ordeals were also held in a place set aside for this purpose, in the presence of priests and witnesses, while sacred texts were recited.67

When the oath was properly taken and administered the suit continued in the court room. The judge, now with all evidence at his disposal, was able to pronounce judgment. Until this time the plaintiff had the right to ask for a suspension of the procedure, but the defendant’s consent to this was required.68 If the plaintiff intentionally hindered the procedure the defendant could demand compensation.69 Until the judgment was passed the parties could also conclude an agreement outside litigation. Such an agreement resulted in the termination of the lawsuit which, however, did not prevent the parties starting new litigation later. In such a case the protocol taken earlier was regarded as null and void and a new sakhwan nāmag had to be taken.70

The conclusion of an agreement outside the lawsuit proved to be advantageous to the defendant under certain circumstances – even if the content of the agreement did not fully reflect his interests – because as long as he was a defendant in a lawsuit he could not start a lawsuit against the same plaintiff on another issue.71 In such a situation the defendant could free himself from his defendant’s position with the help of a disadvantageous agreement, which allowed him to take another action to the law court. Later on, when the case was settled, he could start a lawsuit against the former plaintiff for correction of the agreement reached outside the lawsuit which was disadvantageous to him. It is not known for certain that such practices have in fact taken place but at least in theory procedural law did not hinder the use of such techniques.

If the lawsuit was not suspended or the parties came to no agreement outside litigation the judge pronounced the judgment. The verdict was committed to writing (in all probability by the clerks) and a copy of it was kept in the archives.72 If the judgment was at variance with the rules of procedure it had to be considered as ‘not good’ (ne pad khūb dāshtan);73 if it was contra legem of norms of substantial law it was considered a ‘lie judgment’ (drōg wizīr).74

When the judgment was announced the parties could decide whether to accept it or appeal against it. After their statement of acceptance the parties could not change their mind.75 Presumably those who violated the rule of res iudicata were punished; at least this may be inferred from one judgment.76

If both parties (or one of them) appealed against the judgment the procedure continued at a second or third instance court, depending on which court previously started the lawsuit.77 This court informed the appellate court about the facts of the case.78 Lacking any sources concerning trials at appellate courts, it is impossible to say more about such procedures.

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-Jai, during these occasions complaints against the king and his officials could be presented by anyone who was dissatisfied with previous judicial procedures for whatever reasons. The mōbedān mōbed in person guaranteed, with the help of soldiers, that entry should not be denied to anyone. The procedure started with the complaint of those who complained against the king being grouped around the imperial chief scribe. Next the king would kneel down before the high priest in a rather ceremonial manner and swear that no matter how he decided he would accept the high priest’s decision. In case justice was given to the complainant the king had to redress the complaint, otherwise the complainants were punished for high treason. After the cases of people complaining against the king were dealt with the rest of the cases were discussed. This custom is said to have been in practice for centuries until Yazdagerd I. abolished it. Obviously, the text of al-Jai, produced centuries later, contains an idealized state of affairs highlighting the importance of the chief priest, a kind of Zoroastrian priestly propaganda not necessarily identical to historical reality. Nevertheless, other sources also attest to the existence of such a practice.79

Criminal Procedural Law80

As seen above, private procedural law is relatively well documented in the MHD+A. By contrast, some important issues of criminal procedure remain in the dark because the MHD+A contains only sporadic references to criminal procedure. Therefore, to reconstruct Zoroastrian criminal procedural law one must rely on a variety of sources, such as the Syriac Acts of Martyrs, religious and secular literary works, and sometimes even pamphlets of dubious historical reliability (e.g. the so-called ‘Letter of Tansar’). None of these sources belong to legal literature since they focus on different topics (the martyrdom of Christians, the praise of Persian kings etc.) but contain some data on criminal procedure. Therefore, the only way to study criminal procedure is to consult these sources and interpret them very carefully. What complicates the matter is that the majority of the available texts focus on substantial criminal law or, more precisely, on punishments, but they have very little to say about criminal procedure. We are, therefore, relatively well informed about capital crimes (apostasy, treason, robbery) but know next to nothing about other crimes.

It is not known whether criminal procedure started on the accusation of the injured party or on that of an ‘attorney general’. Perhaps lesser crimes were in the hands of the injured party but conclusive proof is lacking. Serious crimes committed against the king and the official religion (i.e. Zoroastrianism) were ex officio prosecuted. Therefore the procedure was not initiated by a private individual but directly by the king or the Zoroastrian clergy.

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 present it at the proceedings; identify the parties; arrest the accused; and to take him away after the proceeding.81 The zēndānbān was a prison inspector (or warden); his competency was not precisely delineated but perhaps he had tasks similar to those of the frēzwān.82 The zēndānbān kept records relating to prisoners and was responsible for the safekeeping of convicts.83

Studying the Syriac Acts of Martyrs, Gernot Wiessner distinguishes between two types of procedures: the one in which the king was personally involved, the other in which only his officials took part. In cases of political significance when dignitaries and leading officials were charged, the king actively took part in the hearings, but in cases of no political interest he left the case to his commissars. The judgment, however, was passed even in these cases by the Persian king.84 In criminal procedures against Christians the commissars were called the king’s representatives (sharrīra de malkā in the Syrian text),85 who proceeded in their own right without consulting the frēzwān (the official responsible for investigations) and were various dignitaries of the Zoroastrian priesthood.86

Investigation started when the accused was made acquainted with the charges against them and could defend themself against the accusations. 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 their answers to those questions; denial or confession. Protocols recorded during a criminal procedure were called pursishn-nāmag (book of questions),87 which was, somewhat astonishingly, more than protocols because they not only contained the oral declarations of the parties but also functioned as indictment – and even the judgment had to be recorded in it at the end of the procedure.88 Thus, all relevant information was ultimately recorded in a single document. Such protocols were not produced, however, in every criminal procedure. It was compulsory only when a capital crime was committed (the perpetrators of such crimes were called margarzān, ‘worthy of death’); in cases of minor importance producing a pursishn-nāmag was left to the discretion of the judge.89

When one hearing was sufficient to decide the case, 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 on house arrest,90 sometimes for a long period, during which torture was common (at least in investigations against Christians) which resulted in serious corporal mutilation (the tongue of the accused was cut out, his teeth were knocked out, his bones were broken).91

As attested by both the Acts of Martyrs and the Letter of Tansar, apostates were put in jail before the judgment was pronounced. According to the latter apostates were jailed for one year in order to let them change their mind and return to Zoroastrianism, during which torture was common but was called with some pathos ‘advice and persuasion’.92 Such captivity, however, did not necessarily last a full year because there is evidence of some accused who spent only a couple of weeks or several months in jail, as well as three years.93 While in custody, the accused was:

put among robbers and assassins;
fettered by heavy chains;
interrogated and harmed repeatedly during the day;
left without food and drink for long spells of time;
whipped with thorny pomegranate branches;
and it was prohibited to visit the captives, or supply them with food, drink
and clothes.

Almost nothing is known about the prison conditions of the day. Reference has already been made to keeping the captives in chains and torturing them, but treatment was left to the discretion of the officials. A reference found in the Syriac Acts of Martyrs to fellow prisoners going out to the city to beg for food for those who were prohibited to do so suggests that more freedom was ensured for certain captives, though the cooperation of the jail wardens (zēndānbān) was also necessary.99 The practice of corrupting jail wardens is suggested by several texts. According to the chronicle of al-abarī, King Kawād – jailed by his opponents – was freed from prison by his sister promising the warden that he could satisfy his love for her. Although he was tricked at the end, the king nevertheless was freed.100 Needless to say, what al-abarī recorded is not history but folklore, yet at the same time such stories reflect the corruptness of Persian officials. Contemporary reality was also recorded in the Syriac Acts of Martyrs, according to which a rich Christian woman could enter a prison to treat the wounds of captives caused by torture by bribing the warden with a considerable sum of money.101 Bribery was a risky business because jail wardens risked a lot since they were responsible for safeguarding the prison. If a prisoner escaped the zēndānbān was punished, sometimes with capital punishment.102

Prisoners could escape captivity by lawful means, too. According to Sasanian law a prisoner could be released on bail (although there was no legal term for it); at least this can be inferred from a single case. Narse, a jailed Christian repeatedly tortured, was released on request of local residents who paid a large sum as bail and acted as guarantors for his appearance in the subsequent hearings. Thereupon a written accord was drawn up naming the person responsible for his supervision. As a result Narse regained his freedom and was at the disposal of the authorities for continuing the procedure against him.103

The supervision of jails was within the king’s competency. We can find wise counsel of Buzurgmihr in the chronicle of al-Mascūdī, which recommends that the king visit the detainees frequently in order to release the innocent and select the culprits.104 As other counsels of Buzurgmihr contain rather realistic proposals (honouring and controlling clerks and officials, keeping arms ready, checking weights used in markets etc.) there is no reason to doubt that the advice quoted here reflects the real prison conditions of the Sasanian period. It is reasonable to think, therefore, that a large number of innocent people were also detained in prison and that prisons could be overcrowded from time to time. This is indirectly supported by a royal edict preserved in the Acts of Martyrs. Accordingly, the king ordered the local governor (marzbān: border marquis) to execute those who deserved death, to punish those who deserved corporal punishment and to set the rest free.105

When the last hearing ended, judgment followed it immediately. The judgment of capital punishment usually contained the crime the person was accused of, the sanction and the type of execution, giving a detailed description of how it was to be done. Execution was postponed until delivery if the convict was a pregnant woman because the unborn child was regarded as innocent and could not be condemned to death.106 Most frequently capital punishment was decapitation by sword carried, out by an executioner.107 Occasionally, decapitation was made even more severe: in such cases the executioner first cut off the fingers, next the hands and feet and only then decapitated the convict.108 A single executioner, however, was insufficient when large numbers of convicts were to be executed, therefore on such occasions jailed assassins were ordered to carry out the executions.109

Crucifixion was another way convicts were put to death, and occasionally the condemned was crucified head first.110 Crucifixion was the punishment of robbers and witches.111 Sometimes culprits were cut in two at the waist112 or were burnt alive after having been smeared with naphtha.113 There was also a precedent of gouging the condemned’s eyes with a hot needle and then leaving him to die114 or of burying him in earth to half his height and then shooting a shower of arrows at him;115 or vinegar and mustard were squeezed into his eyes, mouth and nose.116 Stoning was a rarely applied mode of execution. A particularly cruel variant of punishment was when the inhabitants of the village and members of the Christian congregation were forced to participate in the execution of their fellows.117 Occasionally elephants were also used in executions, mostly against Christians, robbers and murderers.118 Revolts were also suppressed by elephants, as shown by the decision of Šābuhr II, who had the inhabitants of the city of Šūš trampled on by 100 elephants after a failed uprising. The Letter of Tansar mentions two more tools of execution, the ‘cow’ and the ‘donkey’: the former was a cauldron filled with lead and the condemned was squeezed into it; while the donkey was an iron tripod on which the condemned was hanged until they died.119

Executions took place in a public place where sometimes a crowd was gathered around, therefore order was guaranteed by soldiers whose task was to guard the corpses, too. Sometimes, however, soldiers were unable to keep order, particularly in mass executions when some people who were not accused and condemned were also executed. Once, when a favourite servant of the king was also among those executed, the monarch learned about the chaos experienced during the executions. As a result he issued an edict that the personal data of the condemned should be put in writing (their name, the names of their mother and father, place of birth, domicile, religion and their responses to the accusations), and that only those who possessed such a written document could be executed. The Acts of Martyrs, hardly sympathetic towards Persian rulers, acknowledge that after issuing this edict some order was manifest in the executions.120

Corpses were left hanging on the cross for three days and were removed only afterwards.121 The burial of the executed, however, was a starting point of further conflict. As Christians did not want to bury their dead according to Zoroastrian custom they turned to extra-legal means: they stole the corpses at the dark of night or, more commonly, bribed the guard and carried the corpses away to bury them.122 When a prominent person was put to death and the king personally wanted to learn that the convicted was dead such means were ineffective since the head of the corpse was cut off and presented to the ruler.123

Judicial Procedure in Jewish Law

Organs of Procedure

As seen previously the judiciary witnessed significant changes during the course of centuries. In the Second Temple period the Sanhedrīn became the most important judicial forum, therefore this section starts with problems related to it.

Rabbinic sources see the Sanhedrīn as an organ of the administration of justice having legislative functions, too. The Sanhedrīn consisted of the leading legal scholars and was governed by the ‘pairs’ (zugōt). By contrast, according to Greek sources it was a decision-making body, the leader of which was the king or the high priest. As a result of such contradictions some scholars suggested that there were two Sanhedrīns, one for the administration of justice and another for political decisions. This theory was represented, among others, by Büchler, according to whom the great Sanhedrīn and the bēt dīn ha-gādōl (‘grand court’), both operating in Jerusalem, were two different institutions. The bēt dīn ha-gādōl was primarily a religious institution, the leaders of which were the Pharisees headed by the ‘pairs’: the nāśī and the ’ab bēt dīn who, as chairman and deputy, acted as heads of the religious judiciary. The great Sanhedrīn, on the other hand, was primarily a political institution and a criminal court which was governed by the priesthood. This institution was under Roman influence and, therefore, disappeared with changing Roman policy and with the destruction of the Temple. Greenwald, Lauterbach and Aptowitzer agreed.124

By contrast, scholars such as Schürer, Hoffmann and Chwolson do not believe in two Sanhedrīns and dissolve the obvious contradictions of the sources historically. According to their argumentation the Sanhedrīn had different functions in different historical periods and, therefore, its leaders were different, too. The Greek and rabbinic sources, these scholars believe, differ from each other because they refer to different historical periods. According to Hoffmann the Pharisees were the leaders (the nāśī and the ’ab bēt dīn) of the Sanhedrīn who were repeatedly squeezed out of leadership as a result of the changing political situation. Herod limited the authority of the Sanhedrīn to religious issues, and its authority was further decreased during the leadership of the Roman procurators. Segal holds that two institutions were called by the same name because leading legal scholars were present in both. Their decision was of a legal or political nature depending on whether the gathering was to decide upon some details of the halakah or to investigate other cases.125

In addition to these views there is also the suggestion that there had been three Sanhedrīns, each having 23 members. According to Geiger one court was made up of the priests, the second of the Levites and the third of the Israelites. If a decision had to be made on an issue of general interest the three judicial councils had a joint session, thus forming the Great Sanhedrīn – which was then headed by the high priest.126

What complicates matter is that the term Sanhedrīn denoted not only this high-ranking judiciary and political body but also local courts. As a result the Sanhedrīn and the bēt dīn became synonyms by which local courts were also called. Thus smaller courts, consisting of 23 members (bēt dīn) were also called Sanhedrīn in the sources (M Sanh 1:5–6). Now it is understandable why the Sanhedrīn of Jerusalem was called the Great Sanhedrīn which denoted, according to Mantel, an organ of the administration of justice and not a political institution. In Mantel’s view the legal and the political forums of the same name should be distinguished from the lesser courts operating in the countryside which were also called Sanhedrīn (bēt dīn). The Great Sanhedrīn operated independently of these local Sanhedrīns but was not an appellate court.127

Now, coming to the legal competencies of the court, these consisted of legislation, legal interpretation and some administrative functions. The court as a legislative body issued ordinances (takkanah) in various fields of law, including agricultural law, civil law and laws on ritual purity.128 The law defined by this court was binding on everybody.129 As a supreme court the Great Sanhedrīn was entitled also to give legal advice to lower-level courts when they requested it, being in doubt on any legal issues. This opinion of the court, however, was binding.130 Among the court’s administrative functions perhaps the most important in legal practice was the appointment of the smaller courts of 23, while decisions such as the declaration of war and making additions to the city of Jerusalem and to the courtyards of the Temple131 became more and more irrelevant in the course of history.

The court as a judicial body made judgments in important issues which were not to be decided on by any other court. These issues were considered important because of the persons involved or because of their subject-matter. Thus, the high priest, a false prophet132 and the head of a tribe133 could be judged by this court only; a king was exempt according to Mishnah 2:2, but this rule was subject to dispute in Talmudic times.134 A rebellious elder (zāqēn mamre)135 was also judged by the court of 71136 together with certain crimes punishable by death (such as the judgment of a rebellious son, a false witness and one who leads a town to apostasy or who leads people away to idol worship): in these cases the judgment of other courts would be confirmed by the Great Sanhedrīn before execution was implemented.137

Rabbinic sources claim that the Sanhedrīn was headed by the nāśī, a term of long history and multiple meaning. Prior to the early biblical period a tribal chief or the head of a larger family unit was called nāśī, as were the leaders of the people in the wilderness (Ex. 16:2; 34:31), but the term lost its significance for some time with the establishment of the monarchy. Jewish rulers called themselves nāśī in the Second Temple period in order to avoid being called ‘king’. Bar Kokba’ also called himself nāśī on a coin.138 Rabbinic tradition interprets this title narrower and understands it as the head of the Sanhedrīn. According to present knowledge it is impossible to say who first filled the office of the Pharisee nāśī. Some scholars think that this office emerged before the Maccabees; others accept the tradition that the first Pharisee nāśī was Hillel (first century BCE); and a third group of scholars accept R. Yūdah (second century CE) as the first authentic person.139 The office was eliminated in 425 by Theodosian (Codex Theodosianus XVI: 8.22).

The most important task of the nāśī was to chair the bēt dīn ha-gādōl. The order of the session was set to underline the leading role of the nāśī: members of the Sanhedrīn were seated in a semicircle so as to see each other’s face, the nāśī sitting in the middle, flanked by the leading legal scholars.140 When the nāśī entered the room all had to rise and could only sit down when he gave them permission.141 He enjoyed such prestige due to his mastery in law and jurisprudence and not only because of his office alone. Outstanding nāśis of scholarly reputation were Hillel, R. Gamalī’el II and R. Yudah, who is said to be the compiler of the Mishnah. In the generations following R. Yudah, however, one may find a decreasing number of legal scholars among the nāśis who primarily had administrative and political functions. Characteristically the last nāśi, Gamalī’el VI, was a well-known physician.142

The functions of the nāśī can be grouped into four categories:

1. religious functions

2. administrative functions

3. political functions

4. functions in the administration of justice.

The religious functions of the nāśī included the fixing of the calendar, intercalation, determining the leap year and the proclamation of national fast days – these with the support of a court of three.143 The nāśī, together with the āb bēt dīn, led the prayer for rain.144

The aim of the administrative functions of the nāśī was to lead the Jewish community of the Roman Empire. This leadership consisted of legal guidance by answering questions put to him and sent back through his emissaries who visited communities in the Diaspora with his authorization. The emissaries of the nāśī were respected legal scholars who performed several religious functions and took part in the administration of justice, chaired the local courts and passed judgments. In addition, they had the right to remove any religious or lay official from office if they did not respect the principles or rules of law. The high social prestige of the emissaries is indicated by the fact that R. cAqībah, one of the most outstanding legal scholars of his age, did not find it below his rank to visit various communities as the nāśī’s emissary. The right to extend hospitality to an emissary was considered an honour. In addition to adjudication the emissaries founded schools and collected money for the nāśī to enable him to perform the tasks of his office, and for helping legal scholars and maintaining schools. Though the ratio of the contribution was not specified, it was customary to donate 2 per cent of the income. The emissaries, however, sometimes interfered deeply in the life of a community, as shown by the Jews of Antioch who called a legal scholar acting in the name of the nāśī a tyrant. Besides the emissaries the nāśī also appointed the inspector of markets, who controlled weights and measures, and even set prices if necessary. This office was regarded as the most important in the country145 and greatly resembles the office of the Byzantine agoranomos and that of the mutasib in Islamic law. Thus, the nāśī could govern rather effectively even remote communities.

The nāśī started to exercise his political function after 70 CE. The Romans acknowledged the nāśī as a political leader despite the fact that he did not govern a certain territory, but rather the dispersed Jewish communities. The political and social prestige of the nāśī in the Roman Empire is proven by the Codex Theodosianus (XVI: 8.11), according to which his public oral abuse was punishable. This rule was implemented by the Romans even against their own consul when Hilarius was removed from office because of such an act. Emissaries of the nāśī