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CHAPTER 1

A Late Antique Legacy of Legal Pluralism

The present chapter is primarily a survey of the various judicial institutions that were available under late Roman and Sasanian rule, from the late fourth century A.D. to the Arab conquest. The function of this survey is to set the stage for subsequent chapters, which deal with the early Islamic period; it will also serve to establish that a trend of multiple, overlapping legal orders was not unique to the period following the Islamic conquest but characterized Near Eastern late antique societies from early on. A consideration of the various judicial possibilities that were available to the subjects of the two empires highlights the fact that the Roman and Sasanian states were not the sole patrons of legal orders. This picture, described below in detail, conforms to the concept of legal pluralism. While in the later Roman Empire, for example, Roman law was valid in imperial courts and those of rural settlements, the law’s application in the latter was often compromised by customary and indigenous practices.

The people of late antiquity had a range of judicial institutions from which to choose. These varied in their methods, sources of legitimacy, and locations. In addition to imperial and ecclesiastical courts, a host of informal judicial institutions handled disputes and legal transactions. This reality allows us to view the society under discussion in more complex terms, as governed by a constant negotiation of authority among various social powers. At times, negotiation gave way to contention, particularly in the context of authority claims made by religious leaders. Accordingly, with respect to certain well-defined issues, the church fathers and the Rabbanite sages fiercely guarded the boundaries of their respective jurisdictions.

Legal pluralism exists across a number of legal orders as well as within a single legal order. Whereas the bishop court was part of the Roman legal apparatus following its formal endorsement in the fourth century, the judicial roles assumed by abbots and monks were not; this is only one example of the prevalence of “weak” and “strong” forms of legal pluralism that will be discussed below. Both forms, however, support the idea of a society whose members operated within more than one legal order and were able to choose from a variety of legal institutions. Admittedly, the people of the period did not possess such a schematic and all-encompassing perception of their institutions and most likely did not draw clear-cut distinctions between what is later described as “central versus provincial,” “secular versus religious,” or “formal versus informal” institutions. But for the present purposes, it is precisely this schematic analysis of late antique legal orders and their judicial institutions that enables us to consider their rise and formation as well as the manner in which they related to one another. “Legal pluralism is a concomitant of social pluralism,”¹ and it is this dynamic of social control and social opportunism that should be kept in mind throughout. Whatever their motives were, clients turned to a diverse group of legal authorities. Their ability to bring their suits before more than one judicial institution raises a variety of social questions. Such a choice reflects not only the subordination of litigants to a multiplicity of judicial authorities but also their affiliation with a multiplicity of social circles.

Judicial Institutions and Practices in the Eastern Roman Empire

Referring to the governor of the Mesopotamian province of ‘Āsrā‘inē (Osrohene) who held office in 497-98, the anonymous author of the early sixth-century Chronicle of Pseudo-Joshua the Stylite noted that every Friday the Roman official “would sit in the martyrion of Mār John the Baptist and Mār Addai the Apostle and settle lawsuits free of charge.”² The image of a Roman governor presiding over judicial proceedings outside the imperial courtroom in a martyrion provides a rare glimpse into late Roman judicial arrangements in the eastern provinces. The church was situated only a short distance from the Roman law courts in the southwestern quarter of Edessa.³ Yet the fact that the governor chose to pass his Fridays settling disputes in a church—moreover, one dedicated to a martyr—rather than in his formal courtroom brings to the fore some of the features of late Roman judicial practices. While the legal authority of the governor suggests the implementation of Roman law, the chosen venue of the martyrion reflects the interplay of imperial law and indigenous sentiments.

At least in theory, the citizen of the late Roman Empire could choose to settle disputes before an imperial magistrate, a military commander, a landlord, a village headman, a bishop, a monk, or even a recluse.⁴ Yet despite what may seem to be a highly decentralized imperial setting made up of an amalgamation of diverse institutions, things were not as fluid in practice. Rather than an absent imperial government, lying largely in major urban centers and military compounds, the image is of a sophisticated administrative scheme channeled through the services of local forces.⁵ Roman rulers sought to maintain control over their vast empire by enhancing reciprocal ties with members of local elites.⁶ The latter repaid the approval and sanction of the imperial government with loyalty to the empire and its laws.⁷ It is this principal premise of adaptation rather than stagnation that is the basis of the present analysis of late Roman judicial institutions. In addition, the present discussion includes another type of judicial institutions: out-of-court solutions that were not always formally sanctioned by the Roman state. Here, judicial services were rendered by a diverse group of individuals whose social capitals allowed them to assume informal judicial prerogatives.

A mixture of judicial offices, formal and informal, required an ongoing process of administrative adjustments. These adjustments tended to obscure administrative boundaries, making it unclear whether a bishop was issuing a judgment within the formal setting of an episcopal court or by virtue of his personal ties with members of his congregation. Similarly, the Justinianic decree, mentioned below, making it mandatory to hold a copy of the Scriptures in an imperial courtroom and declaring the imperial law to be of divine nature, may have added to a blurring of distinctions between ecclesiastical and secular courts.⁸

Imperial Courts

Caroline Humfress, in her discussion of dispute resolution under the late Roman Empire, quotes a constitution from 529 that emphasized the emperor’s role as the “sole maker and interpreter of the laws.” According to Humfress, while past emperors presented themselves as such, it was only under Justinian that an attempt was made to “make this rhetoric a reality.”⁹ By the time of Diocletian (fl. 284-305), the second highest judicial authority to the emperor was the provincial governor who presided over the courts as a first resort.¹⁰ Because of the size of their jurisdiction and overwhelming load of responsibilities, the governors often delegated judicial authority to their deputies. Another way of considering this delegation of power is to classify deputies as “lesser judges.” These officials dealt with affairs of a local nature because of their greater acquaintance with the affairs of local communities. The lesser judge is seen as precursor to the later-known defensor civitatis of the fourth century. The office is first noted in the end of the third century and is known to have included judicial authority before the fourth. The evolution of the defensor as a judicial post is viewed in modern scholarship as an imperial attempt to provide effective legal representation for those who were thus far denied, for whatever reason, the services of the imperial judiciary.¹¹ At the same time, the improvement in judicial services helped improve the notion of an imperial presence in urban centers.¹² If not from the outset, then at least by 535, the defensor had judicial appeal also among the well-off, thanks to his jurisdiction over legal affairs of substantial monetary value.¹³ The latter development can be seen as part of Justinian’s policy of restraining the damage caused by the corruption of other parts of the imperial judiciary (see below).¹⁴

State tribunals were available to all citizens of the empire.¹⁵ For certain social sectors, however, these tribunals possessed a special appeal. After all, the laws of the empire were created and implemented by the same group that sought to control it.¹⁶ Humfress points to the attempts of “high-ranking men … to circumvent the spirit of the emperor’s legislation by using a mechanism readily available within Roman civil law itself … by naming a third party as a ‘legitimate’ heir” as a means for securing the property of illegitimate children.¹⁷ Referring to a lawsuit of Augustine’s close companion Romanianus (d. ca. 408), Peter Brown commented that “[l]itigation in the Roman Empire involved an assiduous quest for patrons; and Romanianus must have counted on the support of leading Milanese citizens to secure a favorable settlement at the imperial court.”¹⁸ For members of the imperial elite, the system offered an advantage, as they brought their lawsuits before a state court designed, operated, and used by their peers. In addition, despite the extension of citizenship to most of the empire’s subjects by 400, there were still those who had less to expect of the imperial judiciary. These “have-nots,” according to Humfress, included “the urban poor and rural poor, and a whole host of ever-shifting socio-legally defined types of marginalized individuals.” As such, as of the early fourth century, they could expect harsher sentences extending even to the realm of “savagery.”¹⁹

The extension of citizenship, promulgated through the Constitutio Antoniniana of 212 A.D., placed a greater portion of the empire under state jurisdiction; yet it also presented a threat.²⁰ If governors wished to introduce state law in the provinces, they had to do so with caution lest they provoke local discontent.²¹ As a result, Roman legislators exercised leniency in their attempts to reconcile imperial laws with provincial legal practices.²² This leniency should not be solely attributed to a policy meant to avoid confrontation with provincial practices. Frequent complaints about the obscure nature of Roman law, its slow administration, high cost, and the personal and professional merits of the Roman judges did not add to the popularity of state courts.²³

Here the question of cost was of crucial significance behind a decision as to whether to pursue a legal affair in an imperial court.²⁴ The testimony of two “charge sheets” listing the fees of various bureaucratic services, which were found inscribed on late Roman governmental buildings in Timgad (modern Algeria) and Caesarea (Palestine), attest to the heavy financial burdens that litigation in imperial courts entailed.²⁵ For a plaintiff in fourth-century Timgad, the initial cost of 121 modiee for a case would have been about four-fifths of the annual wheat consumption for a family of four. Or, in monetary value, 121 modiee equaled three to four solidi, a sufficient income for an individual to live on for several months.²⁶ Furthermore, the fifth-century inscription from Caesarea shows that the privileged enjoyed reduced fees, while the unprivileged had to pay as much as twice the normal amount. Thus, a simple provincial litigant who chose to litigate in Caesarea had to pay approximately five solidi, “almost equal to the cost of feeding a person for one year.”²⁷ Under such circumstances, it would not be surprising to find many Roman subjects litigating in alternative venues.²⁸

The fifth-century Greek historian Priscus of Panium mentions in his History an encounter with a Greek-speaking former citizen of the Roman Empire. The latter’s criticism of the Roman legal system was expressed as follows: “The laws were fair and Roman polity was good, but … the authorities were ruining it by not taking the same thought for it as those of old.”²⁹ Roman legislation and contemporary “rhetorical fashions” suggest that Roman judges were taking bribes, fixing cases in favor of powerful citizens, engaging in extortion, manifesting judicial negligence and incompetence, and even acting sadistically. That being said, there appears to be no real evidence that would suggest such a scale of judicial corruption, or even that corruption was on the rise.³⁰

The Episcopalis Audientia

Late Roman ecclesiastical courts were recognized as formal judicial institutions by the fourth century. In contrast to civil magistrates, ecclesiastical judges drew their authority and legitimacy from both imperial recognition and spiritual reputation. It was in 318 under the rule of the first Christian emperor, Constantine (r. 306-37), that the episcopalis audientia, the episcopal tribunals, received the state’s formal recognition.³¹ Despite its marked religious character, the episcopal court shared two important features with contemporary secular institutions. First, its authority was sanctioned by the Roman government. Second, its formal inception took place parallel to that of the defensor civitatis and was thus in line with other imperial initiatives to extend Roman legal authority by empowering local institutions.³² Past scholars have viewed the formal sanction of the episcopalis audientia by Constantine as an expression of the emperor’s wish to comply with the Pauline command exhorting believers to take their lawsuits before judges designated by the church (1 Cor. 6:1-6). It is now acknowledged, however, that the motivation for this step was of a rather more mundane nature.³³ While the elevation of the episcopal court may well have served the purpose of Christianizing an empire, the formal endorsement of the ecclesiastical judiciary can be seen as another form of administrative adjustment in which local elites were acting as agents of the imperial government.³⁴

According to the New Testament and the church orders, the episcopalis audientia had already operated, albeit informally, prior to the reign of Constantine.³⁵ An example of its operation in the pre-Constantinian era can be found in the activities of Cyprian, the third-century bishop of Carthage (d. 258). His letters attest to the legal procedures of hearing, consulting, and passing verdict in matters pertaining to offensive clergymen.³⁶

Despite common features between the episcopalis audientia and secular imperial institutions, the episcopal judge differed from the civil magistrate in three significant points. First, whereas his jurisdiction was not purely religious, that of his secular counterpart pertained to civil matters only.³⁷ Although not from its outset, the bishop’s court gradually came to possess jurisdiction over both civil and religious matters and was open to clergy and laymen alike. Second, ecclesiastical judgment, though rendered in the conventional form of a ruling, was, from a legal point of view, considered a form of arbitration.³⁸ Finally, the bishop drew his authority from both the state and the faithful, thus fulfilling a temporal task in “an atmosphere charged with expectations of judgment that did not belong exclusively to the Roman world.”³⁹

Constantine’s step toward a full state endorsement of the bishop’s court was also a step toward its incorporation within the imperial legal apparatus.⁴⁰ By 355, bishops enjoyed the privilege of being tried only before their peers. By 411, this privilege had been granted also to clergymen and, by the time of Justinian, to monks and nuns as well.⁴¹ If laymen wished to litigate before an ecclesiastical judge, the consent of both litigating parties was required for the tribunal to be considered lawful. With time, however, lawsuits could be transferred to an episcopal court at the request of only one of the parties, even if the other party was not a Christian.⁴²

The road leading to a full state acknowledgment of episcopal courts was not without obstacles. By the end of the fourth century, an attempt was made to restrict the episcopal jurisdiction by confining it to religious matters and insisting once more on the need for the consent of both parties to litigate before a bishop. Yet by the fifth century and, to a greater extent, in the sixth century, the state had begun to enforce the bishops’ decisions that pertained both to religious and civil matters.⁴³ According to Tony Honoré, the transformation of the episcopal courts into another form of imperial judiciary, possessing jurisdiction over matters of civil law, was eased by the fact that many prominent Christians were legal experts.⁴⁴

The Life of Saint Augustine (bishop of Hippo, fl. 354-430) and his letters give some idea as to what it meant to hold spiritual authority and at the same time pass “worldly” judgment. When Augustine sat in judgment, reports his contemporary biographer, Possidius, “he heard their cases carefully and dutifully.”⁴⁵ In one of his letters, Augustine turns to his Roman legal adviser, Eustochius, with a question pertaining to hiring the labor of a certain child.⁴⁶ In the same letter, Augustine refers to the “secular duties” of his court: “There even earthly judgments are sought from us, especially concerning the temporal lot of men.”⁴⁷ Yet Augustine’s letter also attests to his incomplete grasp of Roman law, that is, civil law. He seeks the instruction of his addressee on a number of legal points: “I ask your most pure charity to be so kind as to instruct me what is to be observed concerning those who are born of a free woman and a male slave.” For the most part, however, Augustine was well informed about Roman law, as can be inferred from his ability to frequently cite it and his known collection of imperial constitutions.⁴⁸

An important reason for the development of the episcopalis audientia as alternatives to secular imperial courts was their growing appeal among laypeople.⁴⁹ In one of his letters to the Rogatist bishop Vincentius from 408, Augustine speaks of those who come before his judgment, stressing the dual nature of his sanction: “[S]hould they not, for their own good, be roused by a set of temporal penalties, as to make them come out of their lethargic sleep and awake to the health of unity? … For, if they were frightened but not taught, the compulsion would seem unjust.”⁵⁰ The bishop’s authority was perceived by some as superior to that of secular courts, as his judgment was valued not only for its legal principles but also for its morality.⁵¹ Because of his ability to resort to sanctions that follow from his authority as congregational leader, the bishop had both secular and religious powers to rely on. Furthermore, in contrast to the imperial magistrate, the bishop’s office was not limited in its tenure.⁵² Ecclesiastical tribunals were relatively accessible and able to offer a short process of administering justice.⁵³ In contrast to the ongoing chain of appeals characteristic of the secular institution, the episcopal tribunal was not an appellate institution.⁵⁴ The point is made clear in the Sirmondian Constitutions, found in the Theodosian Code, yet presumably from an earlier date:

[T]he judicial decisions, of whatsoever nature, rendered by the bishops, without any distinction as to age [of the litigants], must be observed as forever inviolate and unimpaired, namely, that whatever has been settled by the judicial decisions of the bishops shall be considered as forever holy and revered. Therefore, all cases which are tried either by praetorian or by civil law, when settled by the decisions of bishops, shall be affirmed by the eternal law of permanence; nor shall any case be subject to review which the judgment of a bishop has decided.⁵⁵

Constantine’s plan to extend the authority of Roman law by sanctioning ecclesiastical judicial power may have succeeded beyond expectations. By the sixth century, the tables had turned, as the imperial government found itself in competition with the episcopal system. It is plausible that one motivation for the Justinianic constitution of 530, insisting on the presence of the Gospels in every courtroom, was the fact that episcopal courts were becoming a preferred venue for litigation.⁵⁶

Self-Help and Outside-Court Arrangements

It would be erroneous to view Roman Egypt as an exact model for how things worked elsewhere throughout the Eastern Roman Empire. At the same time, an examination of the judicial institutions of late Roman Egypt may prove useful for understanding the manner in which formal and non formal judicial institutions coincided. Its administrative setting included flourishing urban centers, the seats of governors and their apparatus, as well as diverse and vast rural settlements stretching along the Nile and throughout its delta.⁵⁷ Whether the judicial institutions of late Roman Egypt were similar to those of other areas in the Near East is hard to determine; yet it is likely that the presence of Roman imperial administration next to that of local rural populations was not unique to Egypt.

Honoré, referring to the period following the extension of Roman citizenship, has argued that Roman provincial governors sought to implement Roman rule in a manner that would not provoke discontent within the provinces: “[Provincial governors] and other judges imposed the Roman legal system on the citizenry incrementally, and more cautiously in a province like Egypt that had its own well-developed legal institutions than in underdeveloped areas.”⁵⁸ According to Christopher Kelly, the primary targets of appeasement were “local elites whose complicity was essential to the effective operation of government.”⁵⁹

Yet in order to fully appreciate Roman measures, it is crucial to note that administrative concessions did not entail the creation of two (or more) autonomous legal orders. The example of the Babatha and Salome Komaise archives found by the Dead Sea suggest that even in the second century, local law was tolerated while at the same time adjusted to Roman law through the adoption of the conventional forms of Roman legal documents.⁶⁰ Local institutions were thus able to sustain their station along that of formal courts as long as they continued to abide by Roman law, if only on the face of it.⁶¹

While landowners are likely to have dominated the rural landscape for some time, by the fourth century they were joined by the church as an administrative element that had to be taken into account by Roman provincial authorities as well. The church was gradually acquiring a central position in administrating judicial affairs. It was formally sanctioned to do so by the imperial government and thus served the agendas of Christianization and administrative adjustments. The evidence discussed by James Keenan, however, suggests that the church was also to be considered on account of its ever-increasing land holdings.⁶² Evidence of this comes from the archive of Dioscorus of the village of Aphrodito. By 538, Dioscorus’s father, Apollos, had become a monk, although he had not renounced his property. The monastery founded by Apollos provided the local village of Aphrodito with lands on which local farmers could live.⁶³

Peter Sarris, in his study of the Apion estates in the region of Oxyrhynchus (in Upper Egypt) in the sixth century, has argued for a “highly standardized and professional character of Apion estate management” in which “legal proceedings … played a major part in social relations.”⁶⁴ Sarris also showed that at the same time, the office of the chief regional tax collector, the pagarch, was held by members of the Apion family.⁶⁵ Arthur Schiller has argued that the pagarch held some judicial authority, whether that of an ordinary judge or as someone who received complaints in the capacity of his administrative office.⁶⁶ This fits the argument made by Sarris that landowners such as the Apions were “coming to dominate productive and social relations in the late antique Egyptian countryside.”⁶⁷

Under such circumstances, a relationship of patronage, of mutual dependence existed between the landowner and his tenants. Patrons, however, were not necessarily landowners but members of an exclusive group of prominent individuals. Thus aristocrats, government officials, men of affluence, and landowners were all in a position to offer judicial services to their vassals in exchange for labor, produce, and, most important, loyalty.⁶⁸ Such relationships are known to have prevailed in the late antique rural settlements of northern Syria and Egypt.

The career of Synesius of Cyrene (modern-day Libya) provides a useful illustration of the authority obtained by these aristocratic figures. As a member of one of the leading local families in the late fourth to early fifth century, Synesius took charge of military operations and administrative offices.⁶⁹ He was able to do so by virtue of his high social ranking and land ownership. His later election to the office of bishop of Ptolemais in 411 does not change the basic fact of the matter: Synesius’s career was that of a local aristocrat who had assumed civil responsibilities at a moment of administrative change. These responsibilities, John Liebeschuetz tells us, entailed “occupying a position which had once been occupied by civic magistrates.”⁷⁰

So far, an examination has been made of the judicial role played by imperial magistrates, bishops, and landowners. Despite their various titles and sources of legitimacy, whether imperial decree, spiritual authority, or wealth, these figures were all acknowledged by the state and acted upon the principles of Roman law. Yet there were other means by which individuals could settle their disputes or validate their transactions. According to Schiller, at least a century and a half before the Arab conquest, “state litigation was absent and private arbitration was paramount for the settlements of civil disputes.”⁷¹ Right or wrong, Schiller’s point confirms the widespread practice of outside-court settlements that prevailed in late antique Egypt and outside it.⁷²

Gagos Traianos and Peter van Minnen have analyzed a document from Aphrodito dating to ca. 537 that was found in the archive of the aforementioned Dioscorus.⁷³ The document records the settlement of a dispute over a piece of property next to the village. The dispute in this case was resolved through the work of a notary and was never brought before a formal court for resolution.⁷⁴ As such, this form of settlement is considered a private one, since it does not require the involvement of a third party for purposes of judgment but only as a negotiator. The type of notary mentioned in this case was of the taboullarioi, who were not only entrusted with registering the legal document but also preparing it.⁷⁵ As such, they had to possess sufficient legal education in addition to first-rate Greek and scribal skills. Most important, however, is the fact that these officials were authorized, if not appointed, by the imperial government. In sum, while the Aphrodito document of ca. 537 was issued and formulated in line with Roman law, it was attained without the involvement of the state.

Despite what may have been “a reality of undergovernance” or of “rudderless and captainless vessels” in fourth-century Egypt,⁷⁶ papyri dating from the fourth to the eighth century attest to the function of a village headman, the lashane, or ape.⁷⁷ The headman heard legal disputes and presided over less formal arbitrations.⁷⁸ He was present at the signing of contracts and the drawing up and implementation of wills. He was also responsible for the confinement of delinquents, the collection of fines, and for addressing complaints.⁷⁹ Though most of our knowledge about the administrative role of the village headman is based on Egyptian papyri—most notably, those from Aphrodito—it has been suggested that similar figures existed outside Egypt as well.⁸⁰ Alongside the headmen was often a group of local town notables, better known as the “elders.” These men, clergy and laymen, customarily filled an administrative function by assisting the headman in his various tasks.⁸¹ The judicial role of local village notables is well attested in the Nessana papyri. According to Rachel Stroumsa, the documents suggest a loose and flexible arrangement, “and one which evidently continued to co-exist side by side with the government machinery,” in which respected members of the community oversaw the implementation of legal transactions and arbitrated disputes.⁸² As in the other forms of out-of-court judicial practices, however, the role of rural figures was not autonomous of the Roman legal order. Roman law was made known to the rural population, particularly through prefectorial edicts “disseminated throughout the country.”⁸³

Christian Holy Men

Individuals who offered judicial services outside the formal courtrooms acted in the capacity of their authoritative position as leaders and men of elevated social standing. Considering the growing importance of the church in the social administration of towns and villages, it is important to note that the social rank and responsibilities that came with it also served to legitimize the judicial function of religious leaders. The judicial services performed by recluses, monks, and rural priests were of particular significance in the absence of ecclesiastical institutions.⁸⁴ As small-scale egalitarian communities that often lacked autonomous institutions, local villages had a constant need for the intervention of external figures for purposes of direction, protection, and mediation.⁸⁵ One version of the Life of the Syrian holy man Simeon Stylite (d. 459), which was authored by the bishop-writer Theodoret of Cyrrhus (d. 466), mentions Simeon’s role as arbiter: “He can be seen sitting in judgment and handing down proper and just sentences. These and similar activities are dealt with after three in the afternoon, for he spends the whole night and the day up till three P.M. in prayer. After three P.M. he first delivers the divine teaching to those present and then, after receiving the request of each and affecting some healings, he resolves the quarrels of the disputants.”⁸⁶

Whereas the passage above illustrates Simeon’s role as an arbiter, resolving disputes and handing down sentences in a rather generic fashion, a letter from the Syrian village of Panir to the stylite exemplifies a village community seeking the patronage of a holy man. The letter, from Cosmas of Panir, was appended to the Syriac version of Simeon’s life and appears to be “a written covenant between the village and the holy man.”⁸⁷ The letter is, in fact, the only non-hagiographic source that attests to the stylite’s authority.⁸⁸

[T]o Mār Simeon … from Cosmas of the village of Panir together with the deacons and the readers and of the congregation and from the procurator and the veterans and all the village equally, all of us extol your great love in Christ, peace…. We are all writing to you in one perfect love concerning this. First we subscribe concerning Friday and Sunday, that be kept purely and worthily; concerning measures, that we not make ourselves two measures, but we have one true measure and one honest weight; that we not change a man’s boundary; that we not cheat a hired servant and a laborer of his wages; concerning usury, that half a percent be collected on extol your great love in Christ, peace…. We are all writing to you both old and new [debts]; about those small coins that are paid, that they be restored to their masters; that we administer honest judgment between the great and the small and that we show no favoritism; that we not accept a bribe, a man against his fellow man; that we not slander one another and not associate with robbers and magicians, that we chastise evil-doers and transgressors of the law, and we remain in the congregation for the life of our souls. Surely no one will be presumptuous and transgress these laws, or plunder, or defraud, or bribe a judge, or plunder orphans and widows or the poor, or rape a woman…. [W]hoever dares to transgress these, let it be according to your word, my Lord.

Pray for us, my just noble and true lord, that we be established and confirmed in what you have commanded us. We trust in Our Lord that if we do your words and keep your commandments and fulfill your laws we will be helped by Christ through your prayers. Pray for us, my lord, that we not be ashamed before you or found guilty by your Lord but that openly we will do these things in righteousness and we receive life from them.⁸⁹

In the case of Panir, the role that Simeon was expected to fulfill was not that of an arbiter but rather more of a leader, laying down and enforcing rightful conduct among the village’s members. The letter serves as evidence of the stylite’s position: his leadership was accepted thanks to his spiritual reputation and his position as a respectable outsider.

It is this position that enabled holy men to serve as men of judicial authority in other contexts. The stylite’s function, as described in the letter, can be viewed “as one dramatic instance in a wider history of Christian arbitration and intervention, which was active from Egypt to Constantinople.”⁹⁰ As Brown acknowledged in his reassessment of the rise and function of the holy man in late antiquity, holy men were not merely a late antique version of the classical holy fool but a variety of figures of spiritual reputation.⁹¹ The “collection of sayings, dialogues, and short narratives which preserve the words of the fourth- and fifth-century Egyptian monks,”⁹² the Apophthegamta Patrum, sheds light on some of the ideals pertaining to passing judgment in the context of a monastic community. Here the monk is guided to abstain from judging or condemning his neighbor and to refrain from resolving disputes.⁹³ Whereas such ideals may have been effective within the monastic community, their applicability outside it is less attested.

A collection of sixth-century questions and answers attributed to two members of the monastic community from the village of Tawatha, outside Gaza, testifies to the role played by monks in the life of local lay communities.⁹⁴ Among the cases mentioned in this collection, one speaks of thieves who broke into a man’s house. The man asked: “Should I chase after them, or should I pretend that nothing has happened?” To this, the monks replied: “Why is it that we want to take revenge instead of leaving everything to God? … [L]est we want to fall into vainglory, let us do nothing … to the thieves.” Further persistence on the part of the alleged petitioner meets the following position: “Those who are on the lower level … seek to recuperate what they have lost…. This brings some people to turn to the courts.”⁹⁵ Admittedly, the monks were not exercising judicial authority in its conventional form. Nonetheless, to an extent, their answers did assume a judicial capacity, as they were asked to decide on issues that required judicial resolution.

While the exact nature of the judicial role played by the sixth-century monks of Tawatha is debatable, the evidence regarding clergy exercising legal authority in the Egyptian village of Karanis is rather straightforward. One document, dated to 439 and issued by twelve presbyters and five deacons from Karanis, is a “statement forbidding the interception of water from a particular source.”⁹⁶ Indications of judicial services being rendered by monks can be found in the case of the monastery of SS. Sergius and Bacchus in the vicinity of Nessana. Among the documents excavated at Nessana are a few examples of judicial proceedings handled by members of the local monastic community and clergy. An example of one such document is a divorce agreement drawn up by a priest in 689.⁹⁷ Though the Nessana papyri are dated to the second half of the seventh century (after the Arab takeover of Palestine), the practices to which they attest trace their origins to an earlier historical period.

It is now acknowledged that the category of holy men consisted of a diverse group of individuals that included bishops, clergy, monks, and solitary stylites.⁹⁸ Thus the example of men such as Synesius, who started out as a local notable and by 411 was appointed bishop, suggests that the holy man and the local landowner could have merged into a single authority. Sometimes, this authority drew its legitimacy from material and at other times from spiritual capital.⁹⁹ Moreover, the rise of the holy man needs to be seen within the general context of Christianization. While the appointment of episcopal courts was a formal expression of that trend, the judicial functions fulfilled by rural priests, abbots, monks, and stylites constituted its informal obverse.¹⁰⁰ Although holy men lacked official appointment, it is possible that it was this very feature in their position that gave them so much power. The popularity of holy men as arbiters had much to do with their reputation of being “close to God.” Such a perception of the holy man not only gave special meaning to his judgment but also gave people a sense of security in his presence.¹⁰¹

Choice and Collaboration

Despite our systematic presentation of the various judicial institutions within the late Roman Empire, such a systemization was not conceived in practice, as people were not necessarily confined or obliged toward a single judicial institution. In fact, as we shall see, many of them chose to “forum shop” and appear before institutions of different social orientations, working each one to the best of their advantage.¹⁰² Indeed, there is evidence that individuals were in a position to make judicial choices. Augustine mentions a certain Jew, Licinius, who chose to appeal to the bishop’s court in order to save a piece of property he had lost to a member of the church, rather than turning to a secular authority.¹⁰³ Other cases show civil affairs falling under the jurisdiction of military magistrates and vice versa.¹⁰⁴ In her analysis of Coptic-language legal documents from the sixth century, Leslie MacCoull suggests that such documents, written in vernacular language (Coptic), were made for their future use in other tribunals.¹⁰⁵

There is also evidence for institutional collaborations, an example of which is found in the records of the monastery of Epiphanius near the Egyptian city Thebes, dating to the sixth and early seventh centuries. Written on a fragment of pottery (an ostracon), it is a correspondence between Strategius, lashane of Ne, to Cyriacus, presumably the abbot of the monastery of Jeme. The lashane informs the abbot that he was not able to settle a certain matter because of the absence of the latter, and he assures him that he will detain certain individuals until the abbot arrives.¹⁰⁶ It may be that the matter to which Strategius referred was a case in which he had no standing and thus required the abbot’s presence. Be that as it may, it suggests some level of coordination between judicial authorities—namely, those of the lashane and the abbot. Another document, recorded on a sixth-century papyrus, presents a letter signed by Shenoute, lashane of Jeme, and a list of other names, probably local elders, to Apa Epiphanius.¹⁰⁷ Here the secular authority asks the spiritual one to intervene on behalf of members of the local community who are in confinement by appealing to the lashane of the town where they are held.

Finally, presumably there was also some form of collaboration between a monastic authority and a lay one in a sixth-century case mentioned in the collection of questions and answers from Tawatha. In one of its letters, a judicial authority asked the Tawatha monks: “If the fathers ask me to offer judgment on a particular matter, but I do not feel very confident in myself, then what should I do? Should I avoid or accept?” The monks replied: “For the sake of the command of the fathers, accept and tell those receiving judgment: I shall judge only according to what I think is right.”¹⁰⁸ The passage suggests a lay leader of some judicial capacity who was asked by an ecclesiastical or a monastic figure to serve as judge in a certain affair.

Jewish Judicial Institutions

A sixth- or seventh-century document from Egypt mentions a “Jew who asked a respectable figure to intervene in a dispute which had arisen between him and his younger brother about the division of their father’s property.”¹⁰⁹ Like others, Jews had a judicial choice. By the fourth century, however, Jews formed a minority in what was formally a Christian empire. This was bound to have an impact on the choice of judicial institutions on the part of some Jews, as well as on the type of judicial institutions available to them. Jews, as members of a separate religion, traced their history in a past that long preceded that of the Christians. Yet by the time of the late Roman Empire, they lacked any form of political sovereignty. While the rabbis had addressed the problem of judicial boundaries long before Constantine, their insistence on judicial exclusivity was now charged with new energies. By now, the ancient Gentile (goy) judge may have been a member of a new monotheistic religion.

Modern scholarship is divided as to the extent to which Jewish social life was secluded from that of its neighbors under Roman rule.¹¹⁰ A relatively old school of modern scholarship tends to view Jewish life as having been autonomous vis-à-vis its surroundings and internally consolidated in terms of its communal institutions. Tessa Rajak has judiciously argued that such a perception of pre-Islamic Jewish life was defined through a Jewish modern experience: “Modern experience readily leads us to believe that the life-arrangements required by completely orthodox Judaism, as we today know it, presuppose an intensely communal existence and scarcely leave room for more than superficial mixing.”¹¹¹

More recently, however, late antique Jewish history has been presented along a line of ongoing transition, in which the rabbis were only at the margins of Jewish society. This process is thought to trace its origins to the period after the destruction of the Second Temple, in 70 A.D. and accelerating in the period from the formal Christianization of the Roman Empire in the fourth century into the period following the Islamic conquest. According to this revisionist approach, the Jews of late antiquity were guided and led by a variety of men and were loosely bound ideologically.¹¹² Nevertheless, the character and appeal of the judicial institutions that were available to Jews under late Roman rule were determined by a variety of factors, among which are the minority status of Jews, the agendas of Jewish elites, and the daily contact that Jews had with non-Jews.

By the late 390s, Roman law had outlined the boundaries of Jewish judicial jurisdiction in a way that strikingly resembled that of the church. In general, Roman law stated that a Jew, like any other Roman citizen, should bring his lawsuits before magistrates of the empire. Still, Jews were permitted to bring their lawsuits before Jewish courts. These were legally acknowledged as arbitrating bodies and, as such, required the consent of both litigating parties in order to pass judgment. The decisions issued in Jewish courts were to be enforced through the authority of the provincial governors.¹¹³

Roman law distinguishes between two types of law: a purely religious kind and a civil kind.¹¹⁴ Whereas from the outset, the former was under the jurisdiction of Jewish courts, the latter could be brought before either a Roman or a Jewish court.¹¹⁵ Such a distinction was unfamiliar to Jewish jurists, as Jewish law governs all aspects of Jewish life.¹¹⁶ By 529, however, as stated in the Justinianic Code, religious as well as civil matters of Jews had to be brought before imperial magistrates as a general rule. Legal matters could be brought before a Jewish court only if both litigating parties chose to do so. The change introduced in sixth-century Roman legislation is the extension of Roman law over matters pertaining to Jewish religious law.¹¹⁷ Chapter 4 below surveys the principles of the Jewish judiciary as they stem from rabbinic literature. Our present task will be only to identify some of the “Jewish” judicial possibilities that were open before Jews in the Eastern Roman Empire, most notably in Palestine.

The patriarch (nasi) has been seen in modern scholarship as the supreme Jewish authority within the Roman Empire.¹¹⁸ Thus his office, extended through a network of emissaries throughout the Jewish diaspora, constituted the highest judicial authority until the abolishment of the patriarchate in 429.¹¹⁹ This historiographic position, however, has met a counter opinion, according to which the patriarch enjoyed a lesser degree of judicial authority.¹²⁰ Correspondingly, the testimony of early rabbinic sources, highlighting the patriarchate as the focus of Jewish leadership, is understood as one that is meant to serve a specific agenda, one that developed in the context of ongoing competition between the patriarchate and rival rabbinic circles.¹²¹ Without attempting to resolve these two poles of historiographic perceptions, it should be noted that, at least from an imperial perspective, the patriarch, up to the time of his deposal in 429, possessed a central position.¹²²

The image that emerges from early rabbinic literature is of a firmly established body of Jewish scholars operating amid late antique Jewish society.¹²³ The rabbis have thus been seen either as part of the patriarch’s judicial administration, serving as legal experts, or outside of it, contending with the patriarch’s authority.¹²⁴ Accordingly, those rabbis who submitted to the patriarch’s authority were appointed on his behalf as local communal judges.¹²⁵ Yet this image should be qualified, if only because of the fact that it is provided by the rabbis themselves. Thus recent scholarship has offered an alternative scenario in which the rabbis operated at the fringes of Jewish society and, as such, should best be perceived as self-proclaimed.¹²⁶

The fifth-century Theodosian Code refers to the synedrii as bodies entrusted with administrating Jewish life in the provinces.¹²⁷ The exact meaning of the term synedrii, however, remains unclear. It may be understood as the ancient great Sanhedrin, the council of sages that constituted both the supreme court and a legislative body of ancient Israel.¹²⁸ There is also the possibility that the synedrii were Jewish provincial councils that assumed local legal and political responsibilities, or possibly even several local councils operating in the same province.¹²⁹ Nevertheless, whether at an imperial, provincial, or local level, these councils were dominated by Rabbanite scholars.¹³⁰ Leaving aside the scholarly debate, the role of the rabbis should not be discounted, primarily in villages and smaller towns, where these men acquired prestige on account of their scholarly reputation. With time, the rabbis increased their interpersonal ties with the Jewish population and were gradually accepted as men of authority who served as legal specialists and judges.¹³¹

Two questions remain unresolved. The first relates to the exact nature of the judicial role assumed by the rabbis. While some acted on behalf of the patriarchate, others acted independently. Aside from passing judgment, a rabbi fulfilled other roles within his local community, as a teacher, scribe, or leader of prayer. By fulfilling a multiplicity of tasks within the community, the rabbi was at the center of local social life. His authority, therefore, derived from interpersonal ties with members of his community and from the high esteem in which he was held by local Jews.¹³² The second question relates to chronology. Scholarly debate over the point at which rabbis gained authority, whether by the fourth century or later, is still in progress. While an early development of a rabbinic judiciary is plausible, there is no reason to reject the assumption that at least some of the rabbis acted upon similar principles as those of Christian holy men.¹³³

Formally speaking, the institutions of the Jewish judiciary that were recognized by the Roman Empire operated through a delegation of authority by the patriarch. Delegation of power was channeled not only through the rabbis but also through those who are known in the Theodosian Code as the “primates of the Jews”—local Jewish leaders.¹³⁴ The exact nature of these figures is obscure. It is hard to define the source to which these men owed their prominence. It could very well be that the term “primate” referred to the early rabbis. After all, according to the Theodosian Code, the primates were members of the synedrii.¹³⁵ Further reference to sources of social power can be seen with respect to the descendants of priestly families (kohanim). Subsequent to the abolishment of the patriarchate, there was a significant rise in the influence of this group.¹³⁶ The kohanim, unlike rabbis or wealthy laymen, drew their status from their lineage. They were the descendants of a not-so-long-ago tightly knit group that served in the Temple and were thus located at the center of Jewish social consensus.

The judicial role assumed by individuals who were not formally ordained through rabbinic institutions in late antiquity is unclear. Nonetheless, there is reason to believe that the aforementioned primates as well as members of priestly families were in a position to assume judicial responsibilities, as Jewish law does indeed speak of laymen as judges of some capacity. The legal principle of lay courts will be discussed in detail in Chapter 4. Suffice here to note the discussion in the Babylonian Talmud regarding a court of non specialists (bet din shel hedyotot).¹³⁷ The main function of this tribunal was to arbitrate. Similar courts were likely to have been operative even in tannaitic times (first–third century A.D.).¹³⁸

Judicial Institutions and Practices in the Sasanian Empire

The study of the social history of the Sasanian Empire is far more challenging than that of the late Roman Empire. Here we must expand our search for information and also examine the testimonies of non-Sasanian sources, namely, Christian and Jewish. The discussion in this section is divided into three parts. As in the previous section, it begins with a survey of the imperial judicial organization; it then turns to examine the state of the Christian, East Syrian judicial setting; and finally that of the Rabbanite Jews of Babylonia.

Sasanian Judicial Institutions and Their Accessibility to Non-Zoroastrians

Hierarchically organized, the Sasanian judiciary ran down from the Sasanian emperor, the supreme judge, to the rest of the empire through provincial, rural, and communal judges.¹³⁹ A notion of hierarchy can be discerned through the anonymous work known as The Letter of Tansar. Scholars disagree as to whether the work should be attributed to the time of the founder of the Sasanian Empire, Ardašīr (fl. 224-40), or that of the emperor Khusraw Anuširvan (fl. 531-78).¹⁴⁰ The work, which seeks to exalt the founder of the Sasanian dynasty, is an alleged letter written by a certain Tansar (Tōsar), chief priest of Ardashīr. Despite the difficulty of asserting its date and authorship, the work sheds valuable light on the administrative culture of the empire. It describes how a system of organizational hierarchy had been imposed over the state’s bureaucracy through a legal reform:

[The king] has set a chief over each [administrative unit], and after the chief an intendant to number them, and after him a trusty inspector to investigate their revenues … and he has appointed teachers and judges and priests.¹⁴¹

Since we have seen that by the laws and customs of the ancients the injured received no benefit, but society suffered a mischief and loss in numbers and vigor, we have established this law and custom that people may act upon it in our own day and hereafter; and we have ordered the judges that if offenders of this kind, whose fines are fixed, repeat their offences a second time, their ears and nose are to be cut off.¹⁴²

The Letter of Tansar represents a highly bureaucratized Sasanian administration of which the judiciary was, of course, an integral part. The second passage attests to the intention of the Persian ruler to reform the legal order in a way that brings its magistrates under his close control.¹⁴³ Second to the Sasanian king, the supreme head of the judges, stood the “judge of the empire,” who was, in fact, the Zoroastrian high priest, the mowbedān mowbed. In the capacity of his religious authority, the Zoroastrian priest was entrusted with the supervision of all aspects of Zoroastrian religious life. In addition to their judicial authority, at least some of the mowbeds served as rulers of cities or as diplomats and were highly immersed in the empire’s political affairs.¹⁴⁴

Nonetheless, the exact legal jurisdiction of the mowbed is not entirely clear. In his discussion on the function of the mayānjīg in the Sasanian period, Shaul Shaked makes a point that the term designated a judicial function: “Among the roles of this office was the supervision over measurements and listening to the complaints of the poor, the defense of whom it has been made a formal attribute of mōbads.”¹⁴⁵ Shaked shows that the term mayānjīg was applied to the Zoroastrian divinity, Mithra, and it is in reference to the latter as a judge that in other texts we come across such terms as rāst dādwar, dādwarīh, mayānjīgīh, and azešmānd. These terms, according to Shaked, “denote separate judicial functions,” though, he admits, “it is not possible, in our state of knowledge, to distinguish more closely between them.”¹⁴⁶ While the reference to a variety of judicial officeholders and the ambiguous character of the mowbed’s office make it difficult to obtain an accurate picture regarding the state of the judiciary under Sasanian rule, they also underscore its pluralistic character.

The Pahlavi text Rivāyat i Ēmēd i Ašawahištān (The religious explanation of Ēmēd, son of Ašawahišt) is a ninth- or tenth-century “collection of religious, social, and civil laws based on the Zoroastrian religious codes” and is believed to reflect Zoroastrian practice from the Sasanian era.¹⁴⁷ Question 5 in this work refers to the duty of family guardianship. This includes an inquiry into the identity of the authority to whom the nomination of a guardian should be made. The issue of appointing family guardians sheds some light on the identity of Zoroastrian judges, as the question itself suggests that appointing guardians was a prerogative that belonged to a judicial authority. The answer establishes the following procedure:

If a religious authority or a priest or a minister is present [i.e., the presence of these religious eminences is required for the nomination of a guardian], in that case [the nominee’s] request to take family guardianship should be made to one of them. If neither an authority of the religion nor a priest nor a minister be present, [but] a sacred fire be in the vicinity, in the town, this claim should be announced by a regular visitor to that fire. If the situation does not prevail either, a righteous man who is a student of a priest, whose knowledge of the religion is rooted in his lineage, to him the request [of the official declaration of the guardian] should be made. If that is not available too, any adherent of Zoroastrianism in that town who is elderly, well known, and with good reputation, and his veneration for the soul and his wisdom are attested more [than the other’s], to him the request [of the official declaration of the guardian] should be made.¹⁴⁸

The answer should be read in the context of its time, a period in which Zoroastrians no longer enjoyed a life within Zoroastrian sovereignty. The answer, like the entire text, reflects the difficulty met by Zoroastrians in maintaining their ancient customs in the context of a general decline in priestly circles.¹⁴⁹ Yet the significance of this passage has also to do with the Sasanian era, as it attests once again to the crucial link between religious and judicial responsibilities in Zoroastrian eyes and, presumably, in Sasanian eyes as well.

Sasanian legal courts existed not only in central towns but also in rural settlements. In the latter, judgments were rendered by local village judges.¹⁵⁰ The distinction between urban and rural courts is attested in the Babylonian Talmud:

Raba proclaimed or, as others say, Rav Huna: those who go up to the Land of Israel and who come down from Babylonia know that if an Israelite knows evidence for the benefit of a Gentile and, without being subpoenaed, goes into a Gentile court and testifies against another Israelite, in such a case, we shall excommunicate him. Why? Because [the Gentiles] collect money even on the evidence of a single witness. And we have made that statement only if it involved one witness, not two. And, further, we have made that ruling only in the case of a trial before the mgistā [untrained magistrates; rural courts], but [not] if it was before the davār [the Persian circuit court; the authorities’ court], where the judges impose an oath on the evidence of a single witness.¹⁵¹

The passage refers to two judicial forums, the mgistā and the davār. Whereas the former appears to have operated in the countryside and to have been administered by lay figures, the latter appears to have been a direct extension to the Sasanian judicial apparatus.

A striking characteristic of the Sasanian Empire was a strong emphasis on social demarcation. The strength of social rank in the Sasanian Empire is suggested by the following passage in The Letter of Tansar: “The King of Kings has had established new customs and new ways; but family and rank are as corner-piers and struts and foundations and pillars. When the foundation perishes the house decays, is ruined and collapses.”¹⁵²

By prescribing discrete social categories, the Sasanians were drawing on an ancient Persian heritage that sought to maintain a system based on social rank. This heritage reached a point of legislative consolidation by the fifth century A.D. through the division of the middle class into social estates.¹⁵³ Four main estates were established: priests and judges; warriors; scribes; and cultivators and craftsmen. Each estate consisted of further subdivisions. Whereas the higher classes included the king’s family, vassal rulers, courtiers, state officials, and rural nobility, the lower classes comprised nomadic and rural populations.

Legally speaking, despite this scale of social ranks, Sasanian society was divided into those who possessed citizenship and those who did not. The former had access to state courts; the latter did not.¹⁵⁴ A member of the Sasanian society was automatically born into an agnatic group, a community. Membership in such a community entailed active participation in social life, religious worship, and personal and social security. The agnatic group includes subgroups of prominent members who held authority and regulated disputes.¹⁵⁵ In general, community members shared the same religion. Thus, abandoning one’s religion entailed a loss of membership in one’s community. Yet being a non-Zoroastrian did not mean that a person lacked civic status.¹⁵⁶ The Sasanian legal order was not closed to non-Zoroastrians, while non-Zoroastrians also had their own civic institutions to rely on.

Christian Judicial Institutions in the Sasanian Empire

The Sasanian Empire was ruled by the adherents of the Zoroastrian faith. Here Christians, in contrast to their status under Rome and like the Jews, were members of a religious minority group. Reading through the literary material produced by Christians and Jews under Sasanian rule, it is hard to avoid the notion of self-contained religious communities. That being said, it is worth considering these narratives as forms of a general “rhetoric of insularity,” in their attempt to instill in their readers a sense of communal identity.¹⁵⁷ There is, therefore, reason to doubt these claims and consider the possibility that Christian and Jewish communities were not as autonomous as their religious elites wished them to be. This is suggested, among other things, by the fact that Christians and Jews had recourse to Sasanian judicial institutions.

A passage from the Mādayān ī Hazār Dādestān (The book of a thousand judgments) suggests that this work—the only Sasanian legal document preserved to date—is a compilation of Sasanian judicial cases and decisions going back to the pre-Islamic period. The compilation includes very few references to non-Zoroastrians. Among those is one particular regulation addressing the question of the property of an heirless deceased:

Non-believers [i.e., non-Zoroastrians] are not obliged to settle all [the debts of a deceased Zoroastrian head of household, as this must be done by his successors, just as] they also do not become his heirs. As regards non-believers—except for the fact that they shall not be appointed stūrs [persons upon whom is laid the obligation to provide a successor for a dead man who left no male issue], as well as for everything which comes, is due in line of direct family succession or [agnatic] kinship—[ … they ha]ve [?] decisions concerning everything else as the same as those for Zoroastrians.¹⁵⁸

The regulation deals with non-Zoroastrian heirs in a Zoroastrian household. It stipulates that there is no obligation incumbent upon non-Zoroastrians to appoint a successor for an heirless male (a stūr-ship). A possible reason for this rule was an interest by the state religion in preventing the proliferation of non-Zoroastrian successors.¹⁵⁹ For present purposes, of special interest is the final part of the regulation, indicating that non-Zoroastrians, except in matters pertaining to inheritance, are liable to the same decisions as Zoroastrians. This suggests that, at least partially, non-Zoroastrians fell under the same legal jurisdiction as their Zoroastrian neighbors.

Two other sources that suggest that non-Zoroastrians had access to Sasanian courts are: the Life of Mār Abā, the catholicos, patriarch of the East Syrian Church (fl. 540-52); and a legal treatise, Maktbānūtā d-‘al Dinē (A collection of judgments), written by the East Syrian cleric Išō‘bokt (eighth century; exact dates unknown).¹⁶⁰ According to the Life of Mār Abā, the catholicos was originally a Zoroastrian who had converted to Christianity. As a result, he had to leave his official position in the Sasanian court, and he faced charges from his previous coreligionists: “As the king released him, the king announced: that you have trespassed our orders and came, we forgive you. But these four very heavy charges, which the Magians [mgušhē] bring against you, are as follows: that you have turned people away from the Magian religion and converted them to Christianity; that you did not permit your fellow people to take multiple wives; that you drew lawsuits from the Magian way to yourself; that you were first a heathen [ḥanpā] and later became a Christian.”¹⁶¹ A primary concern for the accusers of Mār Abā was the fact that he was drawing Christians away from the Sasanian judiciary, indicating that such recourse was an option.¹⁶²

Išō‘bokt’s work may serve as further indication of Christian use of Sasanian courts. The treatise is an attempt to harmonize legislative measures that had already been established under the Sasanians and were applied later by the episcopal tribunal.¹⁶³ Chapter 3 of the present study discusses the contents of Išō‘bokt’s compilation in greater detail. For now, it should suffice to note that his work refers to matters that fall under the jurisdiction of ecclesiastical as well as secular judges. As a Christian clergyman, Išō‘bokt sought to restrict Christians to the jurisdiction of the ecclesiastical judge. Drawing from earlier materials that predated Islamic rule—most notably, from Zoroastrian law—Išō‘bokt was among the first ecclesiastical jurists to attempt to introduce a unified religious and civil corpus of ecclesiastical regulations to the Eastern Christian churches. His notion of a judiciary that embodied both legal realms, the religious and the secular, was likely to have been inspired by a Zoroastrian tradition. Indeed, ecclesiastical principles pertaining to civil law, such as questions of inheritance and marriage, had already emerged in the fifth century; yet the absence of an ecclesiastical civil jurisdiction could no longer be tolerated by the church.

In Išō‘bokt’s treatise and in the Life of Mār Abā, there is an attempt to draw Christians to ecclesiastical courts. The East Syrian Church, operating in Sasanian society, sought to create its own autonomous institutions.¹⁶⁴ The reign of the Sasanian monarch Yazdegerd I (fl. 399-420) marked the beginning of an era of toleration toward non-Zoroastrian minorities in the Sasanian Empire. One expression of this Sasanian policy was a growing cooperation between rulers and local bishops.¹⁶⁵ An immediate benefit to the church was its ability to organize itself and consolidate the authority of its leaders, despite their constant dependence on the whim of Sasanian rulers. The synod of 410 announced Yazdegerd’s “Edict of Toleration” to the East Syrian Church. The edict granted an autonomous standing to the church within the Sasanian Empire, thus reinforcing the position of its ecclesiastical leadership. Most important, “the king offered to support the bishops’ edicts and judicial decisions with the full coercive power of the monarchy.”¹⁶⁶

The synod of 410 also marks the first official recognition of the bishop of Seleucia-Ctesiphon, the catholicos, as head of the East Syrian Church.¹⁶⁷ In his capacity, the catholicos would also serve as the supreme judicial authority of his church.¹⁶⁸ By 424, the East Syrians were insisting that internal disputes not be settled through the intervention of external elements.¹⁶⁹ Generally speaking, the fifth century marks the beginning of the organizational consolidation of the East Syrian Church with a permanent presence in Sasanian society. It is in this context that bishops functioned as judges and had their decisions enforced through the Sasanian state.¹⁷⁰ Whereas the catholicos stood at the top of this legal order, East Syrian bishoprics, scattered over a wide territorial jurisdiction, were facilitating the judicial activities of local ecclesiastical judges.¹⁷¹

Another source of Christian judicial authority under Sasanian rule can be seen in the roles performed by East Syrian monastic communities. The Syriac treatise better known as the Liber Graduum, or The Book of Steps, is a fourth-century work outlining the structure and principles of an ideal Christian society.¹⁷² The work is thought by modern scholars to have been composed over a stretch of time in the context of a monastic community. It addresses two principal groups of Christians: the upright, kēnē; and the perfect, gmirē. The members of both groups are considered to have reached a high level of spirituality on “a road to salvation,” yet the different designations denote a hierarchy in which the perfect are superior to the upright in their spiritual achievements. Whereas the upright assume leadership within Christian communities, the perfect are depicted as homeless individuals who wander around, begging and mediating disputes among the believers. Chapter 4 of the Liber Graduum instructs the perfect one: “When you meet people who are at enmity with each other, say, Brothers, blessed are the peacemakers [‘ābday šlāmā], for they shall be called sons of God (Matt. 5:9). Now peacemakers are those who reconcile enemies who belong to other churches, away from their own.¹⁷³ They make peace in the land of their Father, and are mediators [meṣ‘āyē] who reconcile people by imploring them, demonstrating lowliness to them, and admonishing them.”¹⁷⁴

Jewish Judicial Institutions in the Sasanian Empire

Modern scholars generally agree that the history of the Jews during the later part of Sasanian rule is one of relative religious freedom and tranquillity.¹⁷⁵ Part of this reality is attributed to the absence of an interest on the part of the Sasanians to draw converts.¹⁷⁶ In contrast to the testimony of contemporary Christian martyrologies, the Babylonian Talmud mentions only sporadic cases in which Zoroastrian priests interacted with Jews.¹⁷⁷

With regard to the nature of the Rabbanite leadership in Sasanian Babylonia, Jacob Neusner has argued that “the rabbis carried out crucial community responsibilities as judges and administrators.” As such, the rabbinic courts in Babylonia “constituted the institutions of Jewish government.” Neusner concludes this part of his discussion by arguing that the Jews of Babylonia were organized in a manner comparable with that of the Ottoman millet system, over which the exilarch (reš galūtā) was the sole and absolute judicial authority.¹⁷⁸ What seems as a logical depiction of Jewish society, however, should be met with caution, as our knowledge regarding Jewish communities and their judicial institutions under Sasanian rule derives exclusively from the Babylonian Talmud. This fact alone significantly limits our ability to discuss the history of these communities in concrete terms. The Babylonian Talmud was written throughout a period of about five or even six centuries (ca. 200-750, the latest) and records rabbinic negotiations on matters pertaining to law and ritual. It does not purport to provide a historical portrayal. Moreover, it is the product of Babylonian Rabbanite scholars who, as we shall see, had their own social agenda.

The Babylonian Talmud refers to two main Jewish judicial institutions, that of the exilarch and that of the scholars. In many ways, the situation of the rabbinic judiciary under Sasanian rule resembled the one under Rome. Similar to the patriarchate in pedigree and formality, the Babylonian exilarchate acted as the supreme Jewish judicial body.¹⁷⁹ The exilarch, like the Palestinian patriarch, possessed the prerogative of passing judgments that were enforceable by the state, and, in his capacity as the supreme judicial authority, he reserved the right to appoint local judges on his behalf.

Another way to assess the scope of the exilarch’s prerogatives is to compare his office with that of the Christian catholicos. A close examination of the two offices gives the impression of a number of common features: both had their seats near the Sasanian monarch in the capital, occupied a centralized office, and enjoyed state recognition and empowerment. Such common features could be attributed to a common political context.¹⁸⁰ It is plausible that the early fifth century, which marked the beginning of Sasanian recognition of East Syrian institutions, meant the same for Jewish institutions. When adding this assumption to the Talmud’s testimony, the possibility of an exilarchal judicial institution seems less unlikely.

The Talmud not only alludes to the central judicial role of the exilarch but also to that of a less institutionalized group: the Babylonian sages (amoraim).¹⁸¹ As in the case of the Palestinian rabbis, the Babylonian sage maintained ongoing contacts with lay members of his religious community. Yet unlike his Palestinian counterpart, the Babylonian sought to create a formal space in which he would interact with lay society. Furthermore, as teachers, local leaders, and judges, the Babylonian sages had the privilege of receiving, rather than approaching, their audiences.¹⁸² While the Babylonian sages sought formal authorization from Palestine, they were gradually developing an independent pattern of practice. With time, this line of action served as an important precedent in which “new communities would rise up and assert themselves vis-à-vis their mother communities.”¹⁸³ In Palestine and in Babylonia, the process by which scholarly figures assumed a central role in the lives of their communities is likely to have been gradual. This process should be seen in the background of later competition between Rabbanite circles and monarchic ones: the patriarchate and the exilarchate, on the one hand; and the geonic academies, on the other.

Christian and Jewish Responses to Legal Pluralism in the Pre-Islamic Period

Having considered the variety and accessibility of formal and informal judicial institutions under late Roman and Sasanian rules, we now turn to some of the earlier references made by Christian and Jewish sources to the question of extra-confessional judiciary. The positions cited below were not voiced by a single authority, since the Christian and the Jewish worlds, spanning from North Africa to Mesopotamia, were not uniform entities under a single leadership. Despite internal divisions, Christian and Jewish concerns for maintaining judicial exclusivity were already evident in late antiquity; the claim for judicial exclusivity and the contents of some of the sources suggest competition between religious and secular judicial institutions. It is here, therefore, that the attempt by power groups to establish exclusive judicial authority, a principal implication of legal pluralism, is best discerned.

The church fathers and the Rabbanite sages were well aware of the diversity and accessibility of the judicial institutions around them. Their insistence on the judicial exclusivity of their own institutions signals this awareness. Yet the claims of judicial authority on the part of late antique Christian and Jewish confessional leaders were not exceptional. Rather, they reflect a broader dynamic of legal pluralism in which power groups attempted to achieve social control by imposing norms through a judicial mechanism. Such claims, as we have already pointed out, tend to accelerate when they are brought on religious grounds. Maintaining a legal order in this case goes beyond social considerations because it pertains directly to maintaining confessional identities. Still, whether for divine or for temporal ends, the goal of religious and secular patrons of legal orders was one and the same: legitimacy, supremacy, and, ultimately, exclusivity.

Christian Attitudes toward Non-Christian Judiciary

The judicial services performed by recluses and monks in the fifth century have been interpreted as a later development of an earlier role played by Christian leaders: “In the previous age of martyrdom, the role had rested on the confessors. Martyrs awaiting trials had been approached for judgments on theological authenticity, for blessings, remission of sins, and no doubt for settlement of disputes.”¹⁸⁴ Yet as the church began to acquire an institutionalized form, assuming a role hitherto performed by secular administrators, the bishop was expected to fulfill the role of saint. It is the bishop’s holy reputation that was to endow him the responsibility of providing for the poor, a task that transcended its literal meaning and took on a moral dimension: “In the Near Eastern model of society, the ‘poor’ was a judicial, not an economic category…. To give ‘justice’ to the ‘poor’ was a sign of royal energy—whether this was the energy of a king or God.”¹⁸⁵

In reference to a bishop or a recluse, the principle that emerges from Christian sources is that all human problems should be addressed according to Christian ideals. With particular regard to judicial authority, these ideals can be summed up in three rules: contending parties should try to reconcile, thus avoiding having their matter brought before a judicial decision; secular rulers are not to pass judgment over Christians; and if judgment is inevitable, it is to be given by a “saint”—by a bishop or, as presented in the Liber Graduum, by a group of chosen perfect.

The principal approach, exhorting the believers to resolve their disputes quietly, appears in the Book of Matthew: “If another member of the church sins against you, go and point out the fault when the two of you are alone. If the member listens to you, you have regained that one. But if you are not listened to, take one or two others along with you, so that every word may be confirmed by the evidence of two or three witnesses. If the member refuses to listen to them, tell it to the church; and if the offender refuses to listen even to the church, let such a one be to you as a Gentile and a tax collector” (Matt. 18:15-17).

Thus disputes between believers are to be settled privately and are to be brought before the arbitration of the church only as a final resort. The New Testament’s concern with believers litigating before non-Christians is found in the Pauline command:

When any of you has a grievance against another, do you dare to take it to court before the unrighteous, instead of taking it before the saints? Do you not know that the saints will judge the world? And if the world is to be judged by you, are you incompetent to try trivial cases? Do you not know that we are to judge angels, to say nothing of ordinary matters? If you have ordinary cases, then, do you appoint as judges those who have no standing in the church? I say this to your shame. Can it be that there is no one among you wise enough to decide between one believer and another, but a believer goes to court against a believer and before unbelievers at that? (1 Cor. 6:1-6)

The Pauline passage is the most explicit reference in the New Testament to the judicial authority of Christian leaders, ambiguously referred to as “saints.” It rejects the authority of the “unjust” and “unbelievers.” If the latter are contrasted with the “saints,” who were designated by their Christian community, whether clergy or monks, we may surmise that the expressions “unjust” and “unbelievers” refer to either secular or non-Christian figures.

By the end of the fourth century, “judges were no longer ungodly.”¹⁸⁶ Whereas the New Testament addressed litigation outside the Christian community during the early phases of Christianity, The Apostolic Constitutions was composed in the post-Constantine era. By now, appearing before an ecclesiastical judge was a legitimate and legal judicial option. Written in Syria around the end of the fourth century, The Apostolic Constitutions is considered to be a comprehensive church order. It comprises earlier church orders such as the Didascalia, Didache, and the Apostolic Tradition.¹⁸⁷ As such, it serves as a useful source for considering the early ecclesiastical position regarding Christian recourse to nonecclesiastical tribunals: “If by any management or temptation a contest arises with anyone, let him endeavor that it be composed, though thereby he be obliged to lose somewhat; and let it not come before a heathen tribunal. Nay, indeed, you are not to permit that the rulers of this world should pass sentence against your people; for by them, the devil contrives mischief to the servants of God and occasions a reproach to be cast upon us, as though we had not one wise man that is able to judge between his brethren (1 Cor. 6:1, etc.) or to decide their controversies.”¹⁸⁸

Whereas the aforementioned Pauline passage uses expressions such as “unjust” and “unbelievers” to denote illegitimate judges, the passage in The Apostolic Constitutions refers to such judges as “heathen” and “rulers of this world.” Yet there is a greater ideal than turning to the “saint” instead of “rulers of this world”: “by suffering loss in the affairs of this life, thou wilt be sure not to suffer in the concerns of piety, and wilt live religiously, and according to the command of Christ.” The believers are called upon to endure loss and thus avoid contention as an act of piety and fulfillment: “In fact, to have lawsuits at all with one another is already a defeat for you. Why not rather be wronged? Why not rather be defrauded?”¹⁸⁹

The concept is repeated once more in The Apostolic Constitutions, now in a harsher tone: “But if brethren have lawsuits one with another, which God forbid, you who are the rulers ought thence to learn that such as these do not do the work of brethren [in the Lord], but rather of public enemies; and one of the parties will be found to be mild, gentle, and the child of light; but the other unmerciful, insolent, and covetous. Let him, therefore, who is condemned be rebuked, let him be separated, let him undergo the punishment of his hatred to his brother.”¹⁹⁰ The true believer, the “mild, gentle, and the child of light,” has no lawsuits. In contrast, a person who pursues lawsuits is considered a “public enemy … unmerciful, insolent, and covetous,” and therefore must be cast out of his community.

Examples of the application of these principles can be found in early Christian question-and-answer literature, legislation, and treatises on normative Christian behavior. A letter from the aforementioned collection of questions and answers of sixth-century Tawatha contains a question about the proper conduct in a case of legal contention, which is met with this answer: “Strive, to the best of your ability, to be reconciled quickly; for it is a sign of the perfect not to be troubled by temptations that come upon them. The weak person, however, if he postpones reconciliation, later arrives at it and ends up regretting the matter; then, instead of blaming himself, he turns to blaspheme against God and loses his soul. Thus the following words are fulfilled in that person: For what does it profit one to gain the whole world and forfeit one’s life?” (Matt. 16:26; Mark 8:36).

Once more, the idea of refraining from contention as the ideal solution to legal conflict is attested. The point is also found in a number of passages in the Liber Graduum. Yet in the latter, as the author of this work addresses groups of different levels of piety, he is aware that not all are capable of performing the entire set of commandments. Thus in chapter 11, he guides the perfect one, who is to set an example for other believers:

Do you want to become perfect? Pursue the great commandments. But pay attention, because if you prescribe these minor and major commandments to a person, he will not be able to observe them all at once, unless he leaves one in order to observe the other…. [O] ur Lord said, Do not judge (Matt. 7:1); and he [also] said, If the member refuses to listen to them, tell it to the church (Matt. 18:17). If both of them are [intended] for you, which one will you choose? … Therefore, these commandments, which do not judge anyone and love everyone, are spoken to the strong…. These minor [commandments] are spoken to the young and imperfect.¹⁹¹

The passage above suggests that although passing judgment is to be avoided, there are still those in the church who require it, as they have not “matured” but are “young and imperfect.”

Such ideas may help us view early Christian canon laws exhorting believers, predominantly clergy, not to take their lawsuits outside the church. An objection against contention in court, whether presided over by an ecclesiastical judge or a layman, was shared throughout the Christian world. Yet there was a pragmatic recognition, even in the New Testament, that such ideals could not be imposed upon all believers. If a lawsuit were to arise, it was to be kept within the community and not brought before secular judges. Even in the fourth century, Roman bishops issued canons against clergy taking their lawsuits outside the church. Silvester (fl. 314-35) and Julius (fl. 337-52) had both decreed that clerics should not enter a court for any reason and should keep their legal concerns within the church.¹⁹² A canon from the East Syrian synod of 484, held in the city of Bēt Lapat—a summer residence of Sasanian monarchs—states: “As to a clerk or a monk [bar qyāmā w-dayrāyā], when he has a legal claim against a secular [‘ālmā], he may not voluntarily and under no coercion turn to the tribunal of the outsiders [barrāyē]: Whoever goes out and willingly does so, and is found guilty, thus committing himself to the oaths [taken] before pagans [ḥanpē] or gives an ecclesiastical oath, will be listed in a particular book. He shall be received after pleading and giving penance according to the rules of the priests.”¹⁹³

In 576, Canon 5, issued at a synod of the East Syrian Church, refers to members of the Christian community who defy ecclesiastical judgment by seeking refuge outside the church:

It is said in the synod that there are people who are excluded from the church on account of their disobedience with regard to what is proper; they then cling to their defiance and their infidelity, seeking refuge among the pagans [ḥanpē] and the secular [‘ālmānāyē]; they trouble those who have excommunicated them. They demand pardon though they do not deserve it. With regard to their matter, this synod has decreed that until they become obedient and do the proper thing, they shall remain outside the church under affliction and penitence for a certain time, whereupon they shall be forgiven.¹⁹⁴

The context in which these canons were given is unknown. Chapters 3 and 5 of this volume try to uncover the identity of the nonecclesiastical judicial authorities mentioned here. For now, it would be useful to note the principal approaches of Christian leaders toward non-Christian judiciary and the signs of early ecclesiastical efforts to impose judicial exclusiveness.

Jewish Attitudes toward Non-Jewish Judiciary

The Mishnah’s discussion of the validity of deeds issued in non-Jewish courts is the earliest rabbinic reference to the use of non-Jewish courts in late antiquity: “All documents that are accepted in heathen courts, even if they who signed them were Gentiles, are valid [for Jewish courts] except writs of divorce and of emancipation. Rabbi Shim‘on says: These also are valid; they were only pronounced [to be invalid] when drawn up by unauthorized persons.”¹⁹⁵

The Mishnah expresses an ambivalent opinion on the question of non-Jewish courts for the purposes of validating deeds. According to one opinion, the courts of non-Jews can be used for drawing up deeds, with the exclusion of bills of divorce and manumission of slaves. A second opinion, that of Rabbi Shim‘on, validates even the latter kinds of deeds when issued in non-Jewish courts.

A later rabbinic position reflects a much stricter attitude. The collection of exegesis of the Pentateuch, Midrash Tanhuma, ascribed to Tanhuma, a fourth-century Palestinian scholar, states: “There he cried onto the Lord…. There he made for them a statute and an ordinance and there he put them to the test (Exod. 15:25) for them and not for the worldly nations. For he who renounces the judgments of Israel and goes before the worldly nations has transgressed against God first, and then against the Torah.”¹⁹⁶

The Babylonian Talmud discusses the Mishnah dealing with the validity of deeds that were drawn up in a non-Jewish court. The tannaitic rule, according to which all deeds that are drawn up in non-Jewish courts are valid except for bills of divorce and manumission of slaves, stimulated the discussion of the Babylonian sages:

[Mishnah]: All documents that are accepted in heathen courts, even if they who signed them were Gentiles, are valid [for Jewish courts] except for writs of divorce and of emancipation. Rabbi Shim‘on says: These also are valid; they were only pronounced [to be invalid] when drawn up by unauthorized persons.

[Gemara]: [Our Mishnah] lays down a comprehensive rule in which no distinction is made between a sale and a gift. We can understand that the rule should apply to a sale, because the purchaser acquires the object of sale from the moment he hands over the money in their presence, and the document is a mere corroboration; for if he did not hand over the money in their presence, they would not take the risk of drawing up a document of sale for him. But with a gift [it is different]. Through what [does the recipient] obtain possession? Through this document, [is it not]? And this document is a mere piece of clay?—Said Shmuel: The law of the government is law. Or if you prefer, I can reply: Instead of “except writs of divorce” in the Mishnah, read, “except [documents] like writs of divorce.”¹⁹⁷

The talmudic discussion concerns two kinds of documents: “evidentiary” and “constitutive.” The former documents concern activities that are effectuated by payment, namely, monies that are given in exchange for goods. Here the document, a receipt, serves as evidence of such payment (rather than effectuates the transaction). In the latter, however, no payment takes place; thus the passing of property from one person to another is effectuated by the document itself. According to the Mishnah, all documents issued in Gentile courts are valid, except those that have a religious character, such as bills of divorce and manumission of slaves (their religious character precludes any non-Jewish involvement). In the Mishnah, however, there is no distinction between evidentiary and constitutive documents. The discussion in the Talmud concludes that evidentiary documents create no new legal state, but simply attest to one; thus they depend on credibility alone and hence are valid when issued by Gentile courts.

But in the case of constitutive documents, the Talmud asks how these can be valid if issued by a Gentile court. Such documents create legal states and therefore cannot be issued by a Gentile court, as it is outside the realm of Jewish law. The Talmud gives two different replies. The first is that, indeed, constitutive documents of Gentiles are valid in lands under Gentile rule (as was Palestine at the time of the Mishnah). Jews under Gentile rule must conform to Gentile law (“the law of the land”), and since the constitutive document (of gift) issued by a Gentile court is valid in Gentile law, it automatically becomes valid in Jewish law.

The second reply states that constitutive documents of Gentile courts are invalid. The remark of the Mishnah “except bills of divorce and manumission” should be read “such as bills of divorce and manumission.” Bills of divorce and manumission are disqualified here not because of their religious character (which indeed they have) but, more sweepingly, because of their constitutive character.

Settling disputes in non-Jewish courts also comes up in the Talmud:

[Gemara]: Rav Nahman said in the name of Shmuel: A get given under compulsion [exercised] by an Israelite court with good legal ground is valid, but if without sufficient legal ground, it is invalid, but it still disqualifies [the woman for a kohen].¹⁹⁸ If enforced by a heathen court on good legal grounds, it is invalid but disqualifies [the woman for a kohen]; if without sufficient legal ground, there is no tincture of a get about it. How can you have it [both ways]? If the [heathens are] competent to apply compulsion, it should actually be valid. If they are not competent to apply compulsion, it should not disqualify! Rav Mesharsheya explained: According to the strict rule of the Torah, a get enforced by a heathen court is valid, and the reason that [the rabbis] declared it invalid was to prevent any [Jewish woman] from attaching herself to a heathen and so releasing herself from her husband. If that is so, [why did Shmuel say that] if it is enforced [by a heathen court] without sufficient legal ground, it has not even the tincture of a get? Let it at least be on a par with the similar get exacted by an Israelite court, and disqualify the woman for a kohen?—The truth is that Rav Mesharsheya’s [explanation] is erroneous. And what is the reason?—[A get enforced by a heathen court] on legal grounds is likely to be confused with [a get enforced by] an Israelite court on legal grounds, but [a get enforced by a heathen court] without proper grounds will not be confused with [a get enforced by] a Jewish court with legal grounds…. Rabbi Tarfon used to say: In any place where you find heathen law courts, even though their law is the same as the Israelite law, you must not resort to them, since it says, These are the judgments that thou shall set before them (Exod. 21:1), that is, “before them” and not before heathens.¹⁹⁹

A court cannot issue a divorce in Jewish law. A bill of divorce can be written only upon the express instruction of the husband. If a husband refuses to give such instruction, he may, in certain instances, be coerced by the courts to do so. It is this judicial coercion that is the subject of the talmudic discussion. Some Jews turned to Gentile courts for legal implementation; otherwise, it is unlikely that a discussion about the validity of such a divorce would be found. Despite its general disqualification of a divorce coerced by a non-Jewish court, the Talmud grants such a divorce (get) some validity (“a tincture of a get”): “If enforced by a heathen court on good legal grounds, [the divorce] is invalid but disqualifies [a divorced woman from marrying a member of priestly descent, a kohen].”

It is noteworthy that the Talmud does not challenge the tannaitic position that “a heathen court … may flog a man and say to him, do what the Israelite [authorities] command you.” In addition, following the question of the validity of a divorce issued in a non-Jewish court, the talmudic discussion cites the saying of the tanna Rabbi Tarfon against appeal to non-Jewish courts. While the talmudic discussion before its reference to Rabbi Tarfon focuses on the question of divorce, it now raises a much broader concern: appeal to non-Jewish courts. The sequence of the discussion creates an interplay between the question of divorce and that of appeal to non-Jewish courts in general, thus disqualifying any resort to non-Jewish courts. Nonetheless, there is no objection to the use of non-Jewish courts as a means of enforcing Jewish court decisions.

Conclusion

The judicial landscape of the Eastern Roman and the Sasanian Empires was anything but monolithic. Under both empires, there was a great diversity of judicial institutions that drew their authority from a variety of sources, including imperial sanction, religious affiliation, social rank, and interpersonal relationships. Imperial magistrates, ecclesiastical officials, and urban aristocrats on both sides of political boundaries were the formal upholders of imperial laws, thereby acting as propagators of imperial unity. Through the application of imperial law, members of the Roman and Sasanian judicial apparatus served as constant reminders of sovereignty. These officials, however, were not the exclusive possessors of judicial authority. Our evidence attests to a variety of institutions and individuals, both in urban and rural centers, who held judicial authority as well. These include village headmen, local notables, and pious individuals. A third category of judicial authority was that of minority confessional leaders, as in the case of the Jews under late Roman rule and the Christians and Jews in the Sasanian Empire.

The available evidence does not indicate the scale of recourse to more than one judicial institution, but it clearly suggests that such behavior was not exceptional. The existence of different judicial institutions within one or more legal orders is illustrative of the social and cultural pluralisms that prevailed under both empires. The choice of individuals to settle their legal disputes and validate their transactions before different institutions suggests their concurrent affiliation with different social circles. A citizen of the Roman Empire did not renounce his civil status when he chose to bring his dispute before a village headman, a landlord, or an individual of pious reputation, rather than before a formal representative of the imperial apparatus.

Yet the choice does reflect his or her simultaneous subordination to both imperial and local legal orders. Whereas judicial choice may have worked to the advantage of litigants, patrons of legal orders did not always welcome it, particularly when it undermined their authority. As the last part of our discussion has shown, such concerns were of particular relevance to the implementation and maintenance of confessional disciplines. The church fathers and the rabbis sought at every opportunity to discourage the use of extra-confessional judicial institutions. Patristic and rabbinic literatures contain concrete positions on this question, a fact that in itself points to the existence of choice, to its use, and to its social significance. Religious exhortations and prohibitions, however, were more than dry prescriptions, as they provided the believers a way to imagine their world through concepts of holiness and worldliness, thus outlining the internal and external realms of their communal affiliation. It is here, in the context of overlapping jurisdictions or semiautonomous social fields, that law served to define social spaces by censoring recourse to extra-confessional legal orders. As we turn in the following chapters to examine legal pluralism in the Islamic period and the attitudes expressed toward this pluralism by various authorities (Muslim and non-Muslim), we should recall that these concerns were already prevalent in the period preceding Islam.