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