Sasani an Law

J ANY J anos
Pzmny Pt er Cat hol i c Uni ver si t y, Budapest ,
Hungar y


e-Sasanika 14
2010
1. GENERAL

1.1. Definition

The proper term for law is the Middle Persian dd although the meaning of dd is more complex
than the Western concept of law. In fact, several texts attest to the dual meaning of dd as both
law and religion, sometimes understood as a religious law, sometimes as a synonym of religion,
sometimes as a secular law or the kings command. It is only the context of the text which is
helpful to decide which meaning was referred to.
In the Pahlawi Riwyat Accompanying the Ddestn Dng dd has the dual meaning of
religion and law: when someone goes over from the (religious) law to which he belongs to
another law he is margarzn, because he is deserting the Good Religion, and he is taking up this
bad law.
1
This equation of law and religion is not peculiar to the PRDd alone since the Dnkard,
too, defines dd as the beneficent regulating principle of Mazdean religion, the cognition of
which is through wisdom, but wisdom, in its turn is the principle of dd.
2
It comes as no
surprise, therefore, that Zoroastrianism is referred to as the dd Ohrmazd, law/religion of
Ohrmazd.
3
Not only Zoroastrianism is understood as dd but other religions, too, are
conceptualized as law: Mng khrad has dd dwn, the law-creed of the demons; Dnkard
defines Jewish religion as the dd yahdg ksh, the law-canon of Jewish religion while
Bundahishn refers to the Mazdakites as dd mazdakh.
4

In the above quotations law and religion are interchangeable categories both denoting the
essence of a particular religion in a single term dd. There are other texts, however, which

1
K az dd -sh andar estd be dd dudgar shawd margarzn d ry k dd weh-dnh be hame hild ud n
dd wad ham grd: PRdD 7.2: Williams 1990: Vol. I: 47; Vol II:9.
2
Dd khwbar rastagh mzdshn dn; shnkhtan dd pad dnishn bawd; dd bun dngh: Dd: Enc. Ir 1993.
(Mansour Shaki).
3
Ibid.
4
Ibid.

conceptualize dd differently. Xerxes in his so-called Daiva-inscription reminds the faithful to

have respect for that law (dt) which Auramazd has established because the man who has
respect for that law which Auramazd has established, and worships Auramazd and Arta
reverent(ly), he both becomes happy while living, and becomes blessed when dead.
5

Unfortunately, neither the text of Xerxes nor any other source reveals to us what the laws of
Auramazd were, but it stands to reason to think that these laws were not regulations to be
followed by society in its everyday legal practice but ethical principles and norms granting a
happy existence in the world to come. Now it is comprehensible why Ohrmazds law is the love
of people.
6
Therefore, the Zoroastrian concept of law is markedly different from that of the
Jewish religion and Islam where God revealed particular norms for the believers which are not
subject to change and could not be abolished. As a result, in contrast to Moses and Muhammad,
Zaratustra is not a prophet mediating divine legal rules but a prophet teaching ethical standards
and morals, precepts which could be regulated by law differently according to space and time. In
short, Auramazd is not a Lawgiver as Yahweh and Allh are. The more so because it is not
Auramazd but primarily Mithra, the God of contract
7
who presides over the just social order and
judges the souls after death according to the principles of truth, justice and arta. Arta, whether
understood as truth or cosmic order
8
provides an underlying principle on which religion and law
should rest and the law of Auramazd fits also in the framework of this broad concept.
Darius, however, had his own concept of law which highlights the kings decrees and
knows of no law of Auramazd. Accordingly, by the favour of Auramazd these countries
showed respect toward my law; as was said to them by me, thus was it done; my law - that held
them firm.
9
As it is clear now already, in the Achaemenid period a dual meaning of law is
discernible, reflecting sometimes the law of Auramazd (whatever it might be), sometimes the

5
dt pardiy tya Auramazd niyashtya; martiya hya awan dt pariyaita tya Auramazd nshtaya ut
Auramazdm yadataiy art brazmaniya hauw ut jva shiyta bawatiy ut marta artv bawatiy: Kent 1953:
151153. The translation and interpretation of art brazmaniya is subject to debate. For interpretations other than
that of Kent, followed here, see Old Persian Arta: Enc. Ir. I; 1987 (P. O. Skjaervo).
6
Dd Ohrmazd mardm-dsth: Dd: Enc. Ir 1993. (Mansour Shaki).
7
The meaning of the name of Mithra was interpreted as contract for the first time by Meillet in 1907, and his
interpretation was followed by Gershevitch 1959: 26; Lentz 1970: 245253; and Boyce 1975: 27. I, too, believe that
its meaning is contract and not friendship, advocated by some scholars.
8
Gershevitch 1959: 6 interpret arta as truth, in doing so he followed Lders; Schlerath agrees (see Asha: Enc. Ir I,
(1987) 694695). Boyce, however, thinks that the term asha could not be translated to any other language and its
meaning cannot be reduced to truth alone but it stands for cosmic and moral order, see Boyce 1975: 27.
9
Vashn Auramazdha im dahyva tyan man dt apariyya yashm hacma aahya avaa akunavayat;
dtam tya man avadish adraiya: Kent 1953: 117119; 137138.

law of the king. This duality is also manifest in a royal decree preserved in the Old Testament (7
Ezra 1226) according to which those who do not observe the law of your God and the laws of
the kingdom ( ) may be punished by death, exile or confiscation of
property.
10
Only in the Sasanian period came these meanings together denoting a religious law as
a result of Sasanian religious policy. This is the reason why dd-shns means both a jurist and a
theologian.
11


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

10
The interpretation of the quotation is subject to debate in modern scholarship, because it could not be answered
for certain whether the two laws referred to are identical or not. Peter Frei thinks that the two laws are identical but
Joseph Blenkinsopp denies this. Similarly to Blenkinsopp, Gary Knoppers also sees two separate laws in the quoted
passage. For more on this topic see Watts 2001.
11
Dd: Enc. Ir 1993. (Mansour Shaki).
12
The work has two parts: the first referred to as MHD, the second as MHDA, the whole work being abbreviated as
MHD+A. There is a German edition with transliteration, translation and commentary by Maria Macuch (Macuch
1981; 1993) and an English edition with transcription and translation by PerikhanianGarsoian 1997.
13
Macuch 1993: 1215.

Since the MHD+A contains only precedents in private law matters but has not a single
case in criminal law, it is family law, the law of inheritance, the law of obligations and private
procedural law which are discernible with its help. By contrast, the Syriac Acts of Martyrs, going
back to Middle Persian original texts are particularly helpful in criminal law and criminal
procedural law (Hoffmann 1880; Braun 1915; Wiessner 1967). Religious works such as the
Wdwdd (Darmesteter 1892), the rbedestn and Nrangestn (HumbachElfenbein 1990;
KotwalKreyenbroek 1992, 1995, 2003), Shyast n-shyast (Tavadia 1930, Mazdpr 1369)
and the Supplementary text to the Shyast n-shyast (Kotwal 1969) are helpful concerning the
details of ritual law and the law of purity. Rock inscriptions of Sasanian kings and that of high
priest Kardr (Sprengling 1953; Back 1978; MosigWarburg 1982; Skjaervo 1983), historical
writings such as the Letter of Tansar (Boyce 1968), the Kr-Nmag Ardakhshr (Nyberg 1964)
and the chronicles of Muslim authors such as al-Mas
c
d (Mas
c
d 1989) and al-abar


(Nldeke 1879; Bosworth 1999) could be relied on only to clarify some questions of minor
importance but they are unable to give us a general overview of Sasanian law.
Post-Sasanian works such as the Dnkard (Madan 1911; de Menasce 1973; Shaked
1979), the Ddestn Dng, (West 1882), the Pahlawi Riwyat Accompanying the Ddestn
Dng (Williams 1990), Riwyat md Ashawahishtn (Safa-Isfehani 1980) or the law
collection of sh
c
bkht (Sachau 1914) attest to the legal practice of the 810th centuries. Given
the political, social, economic and legal changes which took place in these centuries in the
Zoroastrian community, these works cannot be taken as sources for the Sasanian period; they are
only helpful to clarify some questions which cannot be solved on Sasanian sources alone.

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

14
Herodotus III: 31

Based on Persian customary law Zoroastrian law emerged during the centuries and evolved into
a sophisticated legal system, a process which reached its climax in the Sasanian period.
In the Sasanian period besides Zoroastrian law secular law also existed in the form of
royal law published in various royal edicts. Although not a single royal order has reached us
references have been made to them in various sources. Therefore, we know that there was a royal
edict regulating the use of seals
15
while another decree established the content of personal files of
convicted persons.
16
This distinction is very important because Zoroastrian law was the law of
the Zoroastrians which was not compulsory for believers of other religions. Therefore,
Zoroastrian law followed the Personalittsprinzip according to which persons belonging to a
particular group, in this case the Zoroastrian community, were bound to follow its norms while
others were not. By contrast, Sasanian law as a royal law was established for the entire
population of the Sasanian kingdom and, therefore, compulsory for all. Therefore, royal law was
territorial and not personal law. In addition, believers of tolerated religions such as the Jews and
Christians were granted restricted legal autonomy according to which they could adhere to their
own law, predominantly in private law matters and minor offences but not in capital cases. Thus,
Zoroastrian law as such was compulsory only for members of the Zoroastrian community but it
was applied also for non-Zoroastrians as the law of the land in cases for which legal autonomy
was not granted to them. For example, Christian martyrs were heard in criminal procedures
according to Sasanian law but not according to their own law; if executed, they were to be buried
according to the Zoroastrian custom (as the law of the land) although they were non-
Zoroastrians, a situation from which their relatives could escape only by bribing the wards.
In addition, law in action was sometimes different from the law in books because courts
developed their own rules (kardag) which supplemented, sometimes even modified existed
norms. Therefore, kardag as the legal practice of the courts was also a legal source in everyday
legal practice for both litigants and judges, although Sasanian law was not a precedent law.
Perhaps there were local variants and customs, too, for a particular area or group of persons such
as nomadic tribes, but lacking any written sources that could not be proven. Given, however, the
huge territory of Sasanian Iran it stands to reason to think that local customs in Babylonia
differed from that of Khursn, Mzandarn or Prs. Since nomadic people follow their own

15
MHD 93.5.
16
Braun 1915: 8687.

customs even in modern times it is not an exaggeration to believe that it was not much different
in Sasanian times either. In sum, the Sasanian legal system is a complex system of laws
consisting of (1) Zoroastrian law as a personal law; (2) royal law as a territorial law; (3) laws of
the members of the tolerated religions as personal laws; (4) kardag as the legal practice of the
courts; (5) local variants of customs in particular regions and towns; (6) customs of nomadic
peoples.
Concerning Zoroastrian law the legal sources were (1) the Awesta together with its
commentary and (2) the consensus of the learned as attested by the Dnkard.
17
But the Awesta
was not particularly helpful for a judge because its regulations had nothing to do with
contemporary Sasanian social reality. This is the reason why commentaries were written to it and
why judges could rely on them. But we do not know what consensus of the learned was and it
seems that Sasanian legal scholars were not better of either since we have evidence for a variety
of its interpretations: MHD 41. 58 refers to the consensus of three scholars, MHD 42. 59 has
the agreement of only two scholars, MHDA 11. 1217 mentions the consensus of the majority
and MHD 46. 1415 refers to the consensus of all the sages. It seems, therefore, that the same
doctrine of two or three legal scholars was considered solid enough on which a judgment could
be pronounced.
18
Therefore, Zoroastrian law was markedly different in this respect from both
Jewish and Islamic law because in the latter consensus was established in order to pronounce a
rule whereas in Zoroastrian law consensus was only a basis for a particular judgment but not for
a law. Moreover, consensus in Jewish law was established according to majority vote while in
Islamic law consensus was a unanimous consensus, but the same view of two or three scholars
was not accepted in either of them.

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

17
Ddwar wizr az awistg ud zand kunishn ayb az ham-ddestnh wehn: quoted in Macuch 1993: 12.
18
On the role of consensus in Zoroastrian law see Jany 2005: 295303.

methods but rather a masterdisciple relationship. Islamic schools were personal schools as were
the schools of Hillel and Shammay. Zoroastrian schools, too, were personal schools which never
developed into more institutionalized entities.
Concerning the history, structure and the number of the Zoroastrian schools we are left in
darkness. Generally speaking, legal debates surrounded only questions of minor importance and
details while basic institutions of law were not subject to debate. Paragraph 1.3 of the Shyast-
n-shyast mentions three schools, but the next paragraph (1.4) lists four schools, that of
durohrmazd-Nwgushnasp; durfarrobay NarsehSshns; Nwgushnasp-Mdmh;
Sshns-Abarag. Unfortunately neither the author of the Shyast-n-shyast nor any other source
has to say more about the schools; therefore, we cannot solve the contradiction for certain.
Despite this it is evident that the genealogy of the schools contains identical names at more than
one point. If we assume that the same names identify the same persons then we have two
schools: the school of durohrmazdNwgushnaspMdmh and the school of durfarrobay
NarsehSshns-Abarag.
19
Almost nothing is known about these personalities save the fact that
Abarag, Mdmh and Sshns were also the commentators on the Awesta, Wdwdd,
rbedestn and Nrangestn.
20
Therefore, they were religious scholars which made them also
expert in law. It is interesting to note however that the MHD+A refers in the majority of the
cases to Abarag and Mdmh, that is, the representatives of the last generation while other
members of the schools are almost completely missing.
The date of emergence and the history of the schools are not mentioned in either of our
sources but a ruling at the beginning of the MHD+A sheds some light on it (MHD 1. 24):
It is said that up to (the reign) of Wahrm, persons became the
owners of a slave born of a father (belonging to them), but not of
(such a) mother. For Sshyans stated that the child belongs to the
father, but now, it is said (that he belongs) to the mother.
21


This reference is very important because it is the only one which mentions the names of
both a legal scholar and a Sasanian king at the same time. Unfortunately, there were six kings
named Wahrm on the throne of the Sasanians: Wahrm I (274276), Wahrm II (293), Wahrm
III (293302), Vahrm IV (388399), Wahrm V (421439), Wahrm VI (590) and in theory

19
Following Tavadia 1930: 2829 I argued also for two schools (Jany 2006: 295ff); see also Kreyenbroek 1994: 10.
20
Macuch 1993: 13.
21
PerikhanianGarsoian 1997: 27.

any of these rulers could be intended. I think that it was Wahrm bn VI (590) who was
referred to, therefore the emergence of the legal schools could be dated to the 6th century.
Following this hypothesis the representatives of the third generation were contemporaries of the
compilers of both the Shyast-n-shyast and the MHD+A (first part of the 7th century). If we
count down three generations from this date we have the reign of King Khusraw I (531579) as
the starting point of Zoroastrian jurisprudence. Given the considerable administrative, social and
economic changes that took place during these decades (following the Mazdakite uprising and
the reforms of Khusraw) the emergence of legal schools is intelligible because old rules had to be
adjusted to the changing social reality which obviously produced different interpretations of legal
norms.
22

It is impossible to determine the doctrines of the schools and in what points they differed
from each other because what we know is the names of some legal scholars and their legal
opinion concerning questions of minor importance. It seems likely that it was ritual law which
was in the focus of these schools while secular legal matters were not their primary concern. At
least this could be inferred from a statistical approach: in the MHD+A Mdmhs school is
mentioned only trice (MHD 17.14, 50.15, 51.15), Abarags school only once (MHD 50.13);
Mdmhs name occurs five times (MHD 5.13, 22.5. 50.15, 51.9, 52. 39), and Abarags even
less frequently (MHD 5.14, 22.5, 52.3, MHDA 30.3). If we recall that the number of references
to various scholars is about one hundred and eighty in the MHD+A, the altogether thirteen
references to the two schools is a rather low figure. Thus, the overwhelming majority of
references go to scholars outside of the schools such as Pusnweh, Wahrm, Siywakhsh,
Mardag, but we do not know who they were. By contrast, in the Shyast-n-shyast, a work
dealing with ritual law references to scholars of the schools dominate while legal scholars
dominant in the MHD+A are practically missing. The focus on ritual law is understandable if we
recall that Sasanian Zoroastrianism was rite-centred and jurisprudence was in the hands of the
priesthood practising ritual. Therefore, Sasanian jurisprudence was at times very academic
dealing with hypothetical cases and problems out of touch with everyday legal practice. Here it is
sufficient to refer to a dispute ongoing on pages of the Shyast-n-shyast in which legal
scholars discuss whether one should pull out a corpse floating on the water or not, and what a

22
Maria Macuch dates Sshns to the third century: Macuch 1993: 29, while Anahit Perikhanian thinks that
Wahrm V was referred to and therefore, places Sshns to the fifth century: PerikhanianGarsoian 1997: 418; for
more on this subject see Jany 2006: 295307.

persons liability would be if doing nothing to hinder the water to be polluted by a dead body.
23

This example is only an illustration; there are numerous other cases for academic discussions in
this work.
Since there was no literary genre similar to the responsa/fatw literature in Jewish and
Islamic law, Zoroastrian legal scholars were prevented from dealing with questions of everyday
legal practice in the Sasanian period. After the fall of the Sasanians, however, a dastr had to
give advice also in mundane matters in order to ensure Zoroastrian ethics and law to be followed.
Therefore, responses called riwyat emerged in the post-Sasanian Zoroastrian literature. There
are numerous collections of riwyats because the practice to write such works continued for
centuries. Among these the Riwyat- md-i Ashawahishtn and the Riwyat accompanying the
Ddestn Dng should be mentioned as particularly important.
We can observe considerable changes in discussing the material in these works. It is not
the positive law which underwent gradual transformations but the way legal problems were
presented and solved. There is no reference to legal schools and scholars any longer; the
academic way of legal thinking disappeared together with the hair-splitting argumentations about
hypothetical questions. What remained were practical questions put by the members of the
Zoroastrian community to its leader. Answers were as simple as the questions were: the dastr
simply outlined the basic norms of Zoroastrian law, mainly in the field of private law,
particularly marriage and the law of inheritance. The style is free from any sophisticated
argumentation, written in a simplistic language understandable to all. In brief: scholarly disputes
were replaced by the practice of simple legal advising.

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

23
Shyast n-shyast 2: 7995.

The main feature of the relationship between a teacher (rbed) and his student (hwisht) was
unconditional respect of the teacher and subordination to him. The fact that this relationship was
called tarsagh, a derivative of the verb to fear tells books.
24
As a result of the subordination of
the students they could be punished by corporal punishment for a sinful neglect of duties or for
the disregard of rules of proper behaviour (such as chatting while eating). In such cases sanctions
established for petty crimes (e.g. ardush) had to be implemented.
25

The work entitled Pan hm asrnn (The five virtues of the priests) explains qualifications
expected of priests. These are: incorruptibility, niceness in thought, word and deed (a reference
to the basic principles of Zoroastrian ethics expected from every believer), to have a spiritual
leader as a wise guide, worship according to the ritual, and to contend with opponents. To this
end priests had to know the sacred texts by heart, that is, the Awesta and the Zand which together
comprise of an enormous quantity of texts. It is the dastwar who knew by heart this corpus of
texts most profoundly and without any written aid (hamg apastg ud zand warm: one who had
memorised the entire Awesta and Zand). Therefore, the most important task was to memorise the
texts and it is not surprising that heresy, laziness and forgetfulness were sins that could be
committed by priests.
26

Memorisation was the joint work of teacher and students but repetitors, important figures in
both Jewish and Islamic legal education (tanna, muid) who came to the assistance of the students
were missing. After the teacher and the students repeated the text thrice and the student was able
to repeat it for the fourth time the text was considered as learned.
27
Since education was
accomplished orally, the deaf and dumb were disqualified.
28
Teaching was taken rather seriously;
therefore absence from learning was permitted only when the force of nature hindered the
students to attend (starvation, thirst, drought, cold).
29

As a result of the long personal contact between master and his disciples the proper transfer
of the oral tradition was guaranteed only within small groups while a wide audience was
hindered to participate, a clear sign for the caste-like nature of Zoroastrian priesthood. It calls for
no further explanation that non-Zoroastrians and foreigners could not be taught. It is interesting

24
rbedestn 0.3.
25
rbedestn 16.12; 17.1. On the classification of crimes see the chapter about substantial criminal law.
26
Bailey 1943: 158165.
27
rbedestn 13.5, 13.15.
28
rbedestn 16.12.
29
rbedestn 17.3.

to note against this background that when the life of a teacher was at risk (e.g. because of
starvation) and he could secure his livelihood only by the tuition fee paid for by a foreigner,
some part of the tradition could be revealed to him but not more than what was necessary to the
teachers survival.
30
Surprisingly, perhaps, women could participate in education, yet the
rbedestn is clear about this issue and claims that both husband and wife could participate in
education, but one of the spouses who was better in the management and increase of family
wealth had to stay at home. If this person was the head of the family his wife could go to study.
31

The duty of education rested also on close relatives (nabnazdisht) who committed sin if they
failed to train a relative who asked them for it. Their sin was in accordance with the grade they
were related to each other: the more close relative the student was the sin of the relative who did
not instruct him was the more grievous.
32
This rule is another proof for the caste-like social
mechanism of Zoroastrian priesthood since to refuse to educate the next generation threatened
the social cohesion and interest of the priesthood.
Studies lasted for a year,
33
but this reference may be understood as referring only to
elementary education since it was impossible to learn by heart the entire Zoroastrian tradition in
such a short period of time. Therefore further studies were continued next with a prominent
master. Students gathered around such scholars and after completing their studies carried on the
masters teaching. The (legal) schools of Abarag, Sshns, and Mdmh can be understood in
this context. It was the teachers duty to teach his students and to render assistance that was
necessary to complete the studies, but he was not expected to do more. At the same time if the
students did not progress properly in their studies it was regarded as the teachers failure.
34

Students could learn from several masters, moreover, they were encouraged to do so. If a student
had already learned everything from his/her teacher he/she could continue his/her studies with
another scholar in order to learn more: he could go to two or even three teachers for this
purpose.
35
Disputes, important elements of both Jewish and Islamic legal training were missing
from Zoroastrian legal education. Obviously, legal problems were disputed among legal scholars
but there is no reference to discussions between masters and their disciples: the disciples task

30
rbedestn 12. 3839; 19. 39.
31
rbedestn 5.15.6.
32
rbedestn 15.6.
33
rbedestn 12.1.
34
rbedestn 14.5; 15.12.
35
rbedestn 13.12; 14. 2

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

2.4. Theories of punishments
36

It was criminal law for which Persian legal scholars elaborated theoretical reflections and
conceptualised crimes in a broader framework of religious thinking while other branches of law
were not dealt with theoretically excepting some aspects of family law. It comes as no surprise
since criminal deeds are more often than not against the moral order of society and the religious
ethics propagated by Zoroastrian priesthood and, therefore, a theoretical reflection on crimes and
punishments anchors criminal law in Zoroastrian teachings.
Accordingly, the aim of the punishment was to save the soul of the offender from the
consequences of his crime because final judgment could not be avoided and the souls of
perpetrators would face divine sanction if left unpunished in their present existence. By
punishing the delinquents on Earth their crimes will not count before the divine judge and their
soul could hope for a favourable decision during the final judgment. Thus, the soul could be
released from the result of his crime when punished here on Earth.
Margarzn sinners who do not confess their crimes will find their place in Hell,
regardless of their good words and deeds. After the final destruction of the Earth their heads will
be cut off for every margarzn crime and then they will be made alive again and will suffer other
punishments for three successive days, or according to another variant, will suffer in Hell.
37

These endless sufferings are the results of the crime committed and the absence of penitence for
it. Thus, penitence is not to save the material life of the delinquent but to rescue his soul from
sufferings after death.
Penitence should be announced openly and truthfully. To confess publicly means that the
delinquent should confess all his crimes without omitting anything. If he holds a crime in secret,
the consequence of it makes his situation worse. To confess truthfully means that he should
declare that he would not sin again.
38
The confession should be declared in the presence of the
victim if the crime was committed against a third person, or in the presence of the rad, if the

36
This section is based on my previous writing devoted to Sasanian criminal law, see Jany 2007: 348362.
37
Shyast n-shyast 8. 7.
38
Shyast n-shyast 8. 89.

crime was against his own soul (a violation of a ritual rule).

39
Following confession delinquents
of a tanpuhl sin became ritually pure immediately, and their good words and deeds could be
taken into account during the final judgment.
40
By contrast, those who do not confess could be
outlawed; if they die during this period, they should be regarded as margarzn.
41

Confession is only the first step, margarzn sinners should give their lives into the hand
of the rads
42
and probably also their wealth.
43
Following MHD 97.15, according to which a
margarzn sinner loses not only his wealth but also his family, the latter seems to be a more
reliable variant describing the consequences of the confession in full. After hearing the penitence
the rad could punish the perpetrator by any sanction he saw fit his discretionary power being not
subject of any restriction. This includes also capital punishment which was carried out in the
majority of the cases by decapitation by the sword.
44
The punishment imposed by the rad was
considered as a sentence for the benefit of Ohrmazd (pad sd Ohrmazd).
45
Whatever his
sentence was, after imposing the punishment, the soul of the delinquent was free from the
consequences of his crime and became ritually pure.
46
It is worth noting that this theory is not
unique to Sasanian Persia since Hindu legal theory developed a concept similar to it.
47

In Sasanian Persia crimes were classified according to various concepts. The first
classification distinguishes the sins committed against the soul (winh ruwng) and sins
committed against a third party (winh hammln: lit: sin against the adversary). Maria
Macuch has shown that this typology anticipated the time when the Ssnian state came into
being, and originally it was composed of both criminal and private misdeeds.
48
The distinction
between winh ruwng and winh hammln is important because the latter one consists of
crimes committed against fellows while winh ruwng designates crimes against religious
precepts and values. The second classification of crimes is mentioned in Shyast-n-shyast
(1.1.):

39
Shyast n-shyast 8.1.
40
Nrangestn, Fragard 2, 23.7. KotwalKreyenbroek 2003: 3233.
41
Ibid.
42
Shyast n-shyast 8.2: y margarzn, winh andar radn garzishn ud tan be abespardan
43
Shyast n-shyast 8.5: margarzn, ka-sh tan ud khwstag wz radn abesprd
44
Shyast n-shyast 8.6.
45
Shyast n-shyast 8. 21.
46
Shyast n-shyast 8. 5-6.
47
For Hindu theory of punishment see Glucklich 1988: 96105; Lingat 1973: 232234; von Stitencorn 1980: 537
553.
48
Macuch 2003: 173174.

As it is known from the Awesta, according to the Widvdd, there
are eight types of sins in religion: framn, grift, yrisht and ardush
and khwar and bzy and yt and tanpuhl.
49


This system of crimes has no hints to the categories winh ruwng and winh
hammln discussed above but gives a hierarchy starting with petty crimes and ending with a
serious crime although margarzn, the capital delict is missing (for more on this subject see the
chapter on substantive criminal law).
The third classification of crimes can be found in the Letter of Tansar, a work of political
propaganda written most probably in the 6th century.
50
Accordingly, King Ardakhshr
distinguished three categories of crimes: those committed against God, those against the king and
the crimes people commit against each other. The crime against God is apostasy, crimes against
the king consist of rebellion and treachery, but the numerous crimes people commit against each
other are not listed.
51

Tansars first class of delicts, those against God, consists only of apostasy, while any
other misdeeds against religion are completely missing. The king was thus evidently interested in
upholding Zoroastrianism as the royal ideology of Sasanian rule which would be threatened by
mass conversions. Following Tansar, in case of apostasy the king was more generous than his
predecessors. Accordingly, before the reign of Ardakhshr apostates were put to death; from this
time on they were sentenced to prison for a period of a year during which learned men of religion
visited them, gave them advice and destroyed their doubts by arguments. If the apostate repented
and confessed his faith, he could be released, if, however, he remained faithful to the religion he
had adopted, he would be put to death.
52
Although Tansar makes every effort to define this
method as human, it is evident that it was in fact a form of inquisition. If we recall the fact that
there was no inquisition in the Achaemenid period (save Xerxes Daiva-inscription) and in the
long centuries under the liberal-minded Parthians the reference to former days in his argument is
false.

49
Shyast n-shyast 1.1: iyon az abestg paydg, pad Wdvdd guft std k n hasht pyag winh pad dn
guft std: ast framn, grift, yrisht ud ardush ud khwar ud bzy ud yt ud tanpuhl.
50
Boyce 1968: 1122. The original MP version of the text has not reached us, it is known only by a NP version of
Ibn Isfandiyr, as an insertion to his Trikh-i abaristn. The NP text was edited by Minovi in 1932 and Iqbl in
1942, translated into English with introduction and commentary by Boyce 1968.
51
Ibn Isfandiyr 1942: 22.
52
Ibn Isfandiyr 1942: 22.

The discretionary power of the king in criminal matters is highlighted in political crimes.
According to Tansar, the king put to death some of the rebels to inspire terror and left alive some
to hope for pardon. Full discretion in criminal judgment as a technique of power and control was
emphasised by Tansar while stating that it is the most comprehensive measure for good
government
53
because sometimes one should exact death penalty for a transgression which
merits and deserves pardon, and sometimes pardon a transgression which demands death.
54

According to Tansar, crimes committed by the people against each other did not escape
the attention of the king either. He established a new law in which the old lex talionis was
replaced by compensation. The guideline of this reform was highly utilitarian, Tansar explains,
since if the hand of a thief was cut off it was disadvantageous for both the victim and the thief;
replacing it, however, with compensation, it is advantageous for both because compensation is a
material help for the former and a penalty for the latter. It is of importance that by imposing
penalties nobody should be mutilated seriously in order not to lose the capacity to work: even the
cutting off of the nose, a penalty prescribed for adultery, does not hinder the delinquent to work
meanwhile the stigma of the sin remains there during the entire life.
55

In sum, there were competing theories on crimes and punishments in Sasanian Persia.
The theory elaborated by Zoroastrian priesthood highlighted the fate of the soul and penitence
while the more utilitarian approach of the state emphasised social and political order. It is
common in both theories that both gave discretionary power to the person judging the crime (the
rad and the king) though on different lines of reasoning.

3. OUTLINES OF SUBSTANTIVE LAW
3.1. Private procedural law
56

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

53
Boyce 1968: 42.
54
Boyce 1968: 43.
55
Ibn Isfandiyr 1942: 2223. Adultery was punished by cutting of the nose in Assyria, too; see Middle Assyrian
Laws (MAL) 15. in: Roth 1995: 158.
56
This section is based on my previous writing on private procedural law, see Jany 2010.
57
MHDA 33. 37, 1114.

compensation.
58
Women were particularly safeguarded against the turbulence and honour-
breaking debates of a lawsuit and were kept at distance from courts as much as possible.
The general term for a judge was ddwar but occasionally there are references to
subcategories such as ddwar keh and ddwar meh. Perhaps the ddwar keh (literally: small
judge) was, as indicated by his designation a judge of lower grade while the ddwar meh (great
judge) meant some kind of a forum of appeal.
59
A judgment of a ddwar could be revised by the
mbeds representing the next level in the hierarchy of the judiciary.
60
There is one reference
(MHDA 12.11) to the ddwar pasmr and the ddwar pshmr who are literally the judges
of the defendant and of the plaintiff respectively. Perhaps an arbitrate court is indicated, as Maria
Macuch rightly observes,
61
where both parties delegated equal members to represent their
interests and decide about the case. Rad and mbed, two priests of the Zoroastrian clergy had
judicial competencies, too. The mbed was both an appellate forum of the regular court of the
ddwar and a separate court. As a next instance above the ddwar he could proceed in all issues
in which the ddwar had competency.
62
As a separate court he could decide about issues which
other organs had no competency to deal with, most importantly to appoint a str for a man and a
slr (guardian) for a family.
63
The function of the rad was similar to that of the mbed but was
not authorised to nominate slrs and strs.
64
The hierarchy of the judiciary was headed by the
mbedn mbed, no further appeal was possible against his judgement.
65
The hamrgar, an
office going back to the Achaemenid period was a legal representative of the monarch in a
lawsuit, an authority of public administration and a judge, his function depending on the case he
dealt with.
66

A lawsuit started with bringing an action against the defendant by the plaintiff, but the
plaintiff was left alone against a defendant unwilling to appear at court. Persons of full legal
capacity could be parties on either side, but there were some exceptions. Women and slaves
could be litigants in their own right rather rarely; they usually participated in the lawsuit as

58
MHDA 17. 47, 22. 17.
59
Macuch 1981: 14.
60
MHD 3. 6-8; MHD 110.1315; Macuch 1993: 660; MHDA 12. 1213.
61
Macuch 1981: 14 suggests a procedure of arbitration by a court chosen by the parties.
62
MHDA 26. 1415; MHD 110. 1315.
63
MHDA 26. 1216.
64
MHDA 26.1727.4.
65
MHDA 27. 45.
66
MHDA 27.13.28.3.

partners of their representative (guardian). A woman could not appear in her own right as
plaintiff in a dispute related to ownership.
67
Children were always represented by their guardian
in a lawsuit. If a male child came of age before the suit came to an end the guardian could not
continue it, and if he did so he was qualified as of bad intention (wadkhh) and a judgment was
passed against him.
68

The date of the proceedings was set by the judge
69
at which time the parties were obliged
to appear at court. When both parties appeared at court, this was registered. If one of the parties
refrained from appearing the fact of absence (n mad: did not come) had to be recorded in the
protocol.
70
Absence from the hearing was called azishmnd, a complex and somewhat puzzling
judicial term designating, among others, misconducts during a trial. Three successive azishmnds
resulted in the loss of the lawsuit.
71
A proceeding started in the morning and the judge was to
pronounce his judgment on the same day.
72
When both parties appeared the lawsuit began. It was
the task of the proceeding judge to identify the parties, their age (literally the blackness and
whiteness of the hair), their gender, name, and seal.
73
The hearing then continued with the
statements of the parties standing at a distance of three steps from the judge. The plaintiffs
(pshmr) statement was followed by that of the defendant (pasmr). The designation of the
parties reflects the order of the statements to be made (pshmr: the one who speaks first;
pasmr: the one who speaks later).
74

Protocols (sakhwan nmag) were produced during the hearings to record the statements
of the parties which had to be sealed by them. When both parties pronounced their statements the
proceeding entered into its next phase. Now the judge had to decide on whom the burden of
proof rested because there was no law regulating this issue in general. In fact, in a considerable
part of the cases known to us (mostly in lawsuits on ownership and property) it was the duty of
the defendant to prove that the claim of the plaintiff was not true (n dnh).
75
Statements could
be proven by witnesses, document
76
or material proof.
77
It is important to note that during a

67
MHD 16. 510.
68
MHDA 32. 913
69
MHDA 25. 1617.
70
MHD 73.1374.5.
71
MHD 10.16.11.7.
72
MHDA 13.17.14.1; Macuch 1981: 16; 155.
73
MHDA 25.1526.11.
74
Macuch 1981: 160.
75
MHD 6. 26, 15. 1214, 1416, 108. 68, MHDA 30.1731.3
76
MHD 83.1784.5.

lawsuit sometimes the testimony of a single witness was acceptable.

78
By contrast, three witness
were required to certify a private document outside the court (for instance in the case of an oral
testament).
79

When neither witnesses, nor documents, nor any other material proofs were at hand, the
issue was settled by ordeals or oaths. Unusual or statements difficult to believe had to be
confirmed by oath, too (e.g. if the debtor stated that his debt was annulled by the creditor).
80
In
such cases the proceeding was suspended in the court to be continued only after an ordeal or
taking of an oath had taken place, usually in a different location (khwrastn) under the
supervision of the war-slr.
81
According to the Dnkard
82
thirty-three oaths were known but
only four of them are mentioned in the MHD+A, such as the war dng, war py nishn, war
pad sgand, and war pad nmag passz. Taking an oath was considered as an advantage in the
lawsuit because the party swearing the oath could influence the outcome of the lawsuit. This is
clear from the judgment divesting the defendant of his right to give an oath in case he committed
an act of azishmnd and the privilege of taking an oath was transferred to the plaintiff qualified
earlier as less worthy.
83
When the oath was taken properly the suit continued in the court room.
The judge, now all evidence at his disposal was able to pronounce the judgment. Until this time
the plaintiff had the right to ask for a suspension of the procedure but the defendants consent
was required to it.
84
Until the judgment was passed the parties could conclude an agreement
outside litigation. Such an agreement resulted in the termination of the lawsuit which, however,
did not hinder the parties to start a new litigation later.
85
If the lawsuit was not suspended or the
parties came to no agreement outside litigation the judge pronounced the judgment. The
judgment was committed to writing (in all probability by the clerks) and a copy of it was kept in
the archives.
86
If the judgment was at variance with the rules of procedure it had to be considered

77
MHD 7. 34.
78
MHD 107. 912 ,1214
79
Macuch 1981: 137.
80
MHD 8. 1516.
81
MHD 8. 1516, 8.169.1, 57.312).
82
Dnkard 644. 14.ff in Macuch 1993: 135.
83
MHD 14. 12-17.
84
MHD 90. 68.
85
MHD 74. 912.
86
MHDA 26.6.

as not good (ne pad khb dshtan),

87
if it was contra legem of norms of substantial law it was
considered a lie judgment (drg wizr).
88

When the ruling was announced the parties could decide whether to accept it or to appeal
against it. After their statement of acceptance the parties could not change their minds.
89
When
the parties (or one of them) appealed against the judgment the procedure continued at a second or
third instance depending on at which court the lawsuit previously started.
90
This court informed
the appellate court about the facts of the case.
91
A particular form of legal remedy took place in
the royal court during two major festivals of Zoroastrianism, Nawrz and Mihragn. According
to the Kitb al-tj of al-Jah iz , during these occasions complaints against the king and his
officials could be presented by anyone who was dissatisfied with the previous judicial
procedures for whatever reasons. The mbedn mbed in person guaranteed that entry should not
be denied to anyone. In case justice was given to the complainant the king had to redress the
complaint, otherwise the complainants were punished for high treason. This custom is said to be
in practice for centuries until Yazdagerd I. abolished it.
92

3.2. Criminal procedural law
93


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

87
MHDA 14. 56.
88
Macuch 1981: 194.
89
MHD 3. 13.
90
MHD 3. 68
91
MHD 110. 1315.
92
Perry 1978: 204. According to al-abar, too, the custom of royal audience was abolished by Yazdagerd I. The
Syriac Acts of Martyrs, however, know it differently: accordingly the public hearings were held on the first week of
every month when nobles had the opportunity to refer cases of misconduct and oppression to the king, see: Braun
1915: 179.
93
For more on criminal procedural law see Jany 2007: 373384.
94
MHDA 27. 1012, Macuch 1981: 202203.
95
MHDA 28.1116.

convicts.
96
In criminal procedures against Christians the commissars were called the kings
representatives (sharrra de malk in the Syrian text)
97
who proceeded in their own right without
consulting the frzwn and were various dignitaries of Zoroastrian priesthood.
98
Investigation
started when the accused was made acquainted with the charges against him/her. The charges
and the plea were made orally, sometimes in the presence of the monarch. Protocols were
produced during the hearings which contained the accusation, the questions put to the accused
and his/her answers to the questions, denial or confession. Protocols recorded during a criminal
procedure were called pursishn-nmag, book of questions
99
which contained the oral
declarations of the parties and also the judgment had to be recorded in it at the end of the
procedure.
100
Such protocols were produced only in cases of margarzn, in cases of minor
importance producing a pursishn-nmag was left to the discretion of the judge.
101

When one hearing was sufficient to decide the judgment was pronounced at the end of it,
otherwise more hearings were necessary. There was no rule whatsoever concerning intervals
between hearings. Between hearings the accused was kept in custody, either in jail or in house
arrest
102
sometimes for a long period during which torture was common (at least in investigations
against Christians) which resulted in serious corporal mutilations (the tongue of the accused was
cut off, his teeth were beaten off, his bones were broken).
103
As attested by both the Acts of
Martyrs and the Letter of Tansar apostates were put to jail before the judgment was pronounced.
While in custody, the accused was put amidst robbers and assassins, was fettered by heavy
chains,
104
was interrogated and harmed repeatedly during the day,
105
was left without food and
drink for long spells of time;
106
was whipped with thorny pomegranate branches,
107
and it was
prohibited to visit the captives, to supply them with food, drink and garments.
108
But sometimes

96
MHDA 28.1729.6.
97
Perhaps it is the equivalent of Middle Persian stgn, see Macuch 1993: 632633.
98
Wiessner 1967: 169-178.
99
Braun 1915: 203; MHD 78.4.
100
MHDA 34. 89.
101
MHDA 34. 6.
102
Braun 1915: 208.
103
Braun 1915: 23.
104
Braun 1915: 145.
105
Braun 1915: 94.
106
Braun 1915: 101.
107
Braun 1915: 120.
108
Braun 1915: 122.

prisoners could be released on bail (although there was no legal term for it), at least this can be
inferred from a single case.
109

When the last hearing terminated, judgment followed it immediately. The judgment of
capital punishment usually contained the crime the person was accused with, the sanction and the
type of execution, giving a detailed description how it was to be done. The execution was
postponed until delivery when the convict was a pregnant woman because the child was regarded
innocent and could not be condemned to death.
110
Most frequently capital punishment was
decapitation by the sword carried out by the executioner.
111
Occasionally, decapitation was made
more severe: in such cases the executioner first cut off the fingers, next the hands and feet and
only then decapitated the convict.
112
Crucifixion was another way convicts were put to death,
occasionally the condemned was crucified head first.
113
Crucifixion was the punishment of
robbers and witches.
114
Sometimes culprits were cut into half at the waist,
115
or were burnt alive
after having been smeared with naphtha.
116
There was precedent also of gauging the
condemneds eyes with a hot needle and then left to die,
117
or of digging him into the earth at
half his height and then a shower of arrows was shot at him,
118
or vinegar and mustard were
squeezed into his eyes, mouth and nose.
119
Stoning was a rarely applied mode of execution.
Occasionally elephants were also applied for executions, mostly against Christians, robbers and
murderers.
120
When a prominent person was put to death and the king personally wanted to learn
that the convicted was in fact dead the head of the corpse was cut off and presented to the
ruler.
121


3.2. Criminal law
122

109
Braun 1915: 145146; Hoffmann 1880: 3738.
110
Nyberg 1964: 10.
111
Braun 1915: 34; 55; 81; 95; 99; 104; 105; 148; 169; Hoffmann 1880: 16.
112
Braun 1915: 153; 176.
113
Braun 1915: 185; 187; 268.
114
Ibn Isfandiyr 1942: 26.
115
Braun 1915: 4; 92; Hoffmann 1880: 33.
116
Braun 1915: 183.
117
Braun 1915: 4.
118
Braun 1915: 4.
119
Braun 1915: 185, Hoffmann 1880: 56.
120
Braun 1915: 182. The Letter of Tansar confirms the claim of the Acts of Martyrs that elephants were favoured
against heretics: see Ibn Isfandiyr 1942: 26.
121
Braun 1915: 3.
122
For more on criminal law see Jany 2007: 362373 and Macuch 2003: 172189.

Sasanian legal scholars established a system of crimes putting them into a hierarchy according to
the volume of compensation to be paid for them. As Shyast-n-shyast 1.2 has it:
One framn is four strs, and every single str is worthy of four
drakhms; grift and yrisht are those of the smallest (amount of)
compensation, their price (are) special, there have been some
(authority) who said at the most one drakhm; ardush thirty strs,
khwar sixty strs, bz ninety strs, and yt hundred and eighty strs
and tanpuhl three hundred strs.

According to this list, the less severe crimes were grift and yrit, having no definite
amount of penalty followed by framn, ardush, khwar, bz, yt and tanpuhl. Individual crimes
(theft, bodily injuries, etc.) were put into this system and penalised accordingly. But if someone
committed the same crime habitually he was condemned after a fixed number of crimes
according to the next category in the hierarchy. The inherent logic of the system was
proportionality, because the more serious the crime was the less number was needed to change
the category. For example, the eighth crime committed of an grift led the perpetrator to be
punished by tanpuhl, but it were the seventh of an yrisht, and only the fifth of an ardush which
led to the same result. The list of crimes found in yist-n-yist 1. 2 is far from being complete
because it omits margarzn and srsharnm.
123
The supplementary text to the Shyast-n-
shyast (chapter eleven), however, gives a list of crimes different from the text just quoted.
Accordingly, between framn and grift there is the category srsharnm. Chapter sixteen of
the same work has another sequence of crimes, beginning with framn, as the less serious crime,
followed by grift, yrisht and ardush.
To turn to individual crimes, MP sources concentrate above all on tanpuhl and
margarzn having only a few words to say on other categories. Yt is documented only once
(pouring the water in unclean places),
124
framn is also a ritual delict (a menstruating woman
glances at the fire or at the water;
125
somebody brings water into an unclean house
126
or goes
without wearing the kust for three steps.
127
Framn could be changed to tanpuhl, if the
menstruating woman walked three steps toward the fire, or anybody goes more then three steps

123
Properly speaking, margarzn is not a term for a crime but denotes perpetrators of capital crimes.
124
Shyast-n-shyast 2. 51
125
Shyast-n-shyast 3. 2728
126
Shyast-n-shyast 2. 51
127
Shyast-n-shyast 4. 10

without wearing the kust.

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

to eat carrion by a pregnant woman;
149
to give donation to the rads from the wealth of a

128
Shyast-n-shyast 3. 2728; Shyast-n-shyast 4. 10.
129
rbedestn, 12.29
130
rbedestn, 17.1.
131
Shyast-n-shyast 2. 40
132
Shyast-n-shyast 2. 50.
133
Shyast-n-shyast 2. 53.
134
Shyast-n-shyast 2. 69.
135
Shyast-n-shyast 3.26
136
Shyast-n-shyast 3. 28.
137
Shyast-n-shyast 4.10.
138
Shyast-n-shyast 4. 12. According to the Pahlavi Rivyat Accompanying the Ddestn Dng, wearing only
one shoe stops the milk of the women. (PRDd 11.2; Williams 1990 Part I: 7273; Part II 23.)
139
Shyast-n-shyast 5. 35.
140
Nrangestn, Fragard II, 23.1; 24.1; 26. 34
141
Macuch 2003: 187.
142
rbedestn 11.1.
143
rbedestn 11.8.
144
Nrangestn Fragard II, 23.4. This rule confirms the reference of Tansar to the practice that apostates were not
prosecuted immediately, only after a year when the perpetrator did not repent.
145
MHD 82. 13-14.
146
Shyast-n-shyast 2. 40.
147
Shyast-n-shyast 2.9.
148
Shyast-n-shyast 2. 63.
149
Shyast-n-shyast 2. 105.

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


3.3. Private law
All the cases presented in the MHD+A are about private law matters but litigations about family
law and the law of inheritance prevail. It is understandable even for a modern reader since
Sasanian family law was in fact complicated and it is small wonder that hard cases found their
way into the compilation.
A Persian family was patriarchal and patrilinear but it is subject to debate whether it was
agnatic or not. A. Perkihanian argues for an agnatic family structure but B. Hjerrild denies this
because a woman did not lose her bonds to her original family which had the right to claim her
back if circumstances required it to produce heirs to one of her male relatives (aykn).
154
A
marriage bound was not monogamous because (1) there were three types of marriages a man
could enter into simultaneously and (2) a man could have more wives in the same type of
marriage.
The principal marriage was called padikhshy in which the husband enjoyed the rights of
a pater familias (kadag khwady) over his wives and children. A padikhshy marriage was
established with a contract. Unfortunately, no such contract has conme down to us but a marriage
contract written in Sogdian, dated about 710 CE may not differ essentially from its Sasanian
antecedents.
155
Padikhshy marriage was a matrimonium cum manu mariti, that is, the husband
was entitled to exercise manus over his wife and children (slrh). Slrh was an important
part of the marriage contract since without slrh the marriage was null and void (MHD 4.15
5.3.). On behalf of the woman it was her guardian (slr) who signed the contract and if the
marriage was concluded without the guardians consent, it was void (MHD 36. 25) or was to be
recognised only as a khwasryn marriage, but not as a padikhshy. In theory, the consent of the
girl was needed; if the contract was concluded when she was only a minor, she had to confirm

150
Nrangestn Fragard II, 36.3.
151
Nrangestn Fragard I, 11.2.
152
y ke pad gyn khwadyn kkhshd, margarzn, be zanishn: one who attempts to murder the king is
margarzn, should be killed. Nyberg 1964: 10.
153
Braun 1915: 43, confirmed by the Letter of Tansar.
154
Hjerrild 1993: 8085.
155
MacKenzie 1969.

the marriage or could refuse it when she came of age (MHD 36.916; 106. 79; 89. 1517; 89.
1790.2). As a consequence of slrh the husband was entitled to rule the family (as the very
name of the marriage reflects) with orders (framn) which all persons belonging to his slrh
(wife, children, slaves) had to obey (framn burdrh). Neglecting such orders was a serious
misdeed called atarsagyh (not-fearing) with legal consequences. It was not at all clear for
Sasanian lawyers what actions could be regarded as an act of atarsagyh and, therefore, various
opinions were formulated. But the uncertainty in jurisprudence shows that husbands might enjoy
discretionary power in this regard. Here, however, the judiciary came to the assistance of the
woman because the document produced by the husband could be brought to court and the wife
could prove that she was in fact obeying. Only the document of the court (dib pad atarsagyh)
was considered as solid enough (war) to prove that the wife committed atarsagyh. Once being
atarsag the wife was deprived of the rights she enjoyed previously (lost her income (windishn),
lost her share if she was a co-owner with her husband) but did not lose her right to inherit her
share automatically but only when her husband declared so in his testament (MHDA 5. 910; 7.
23; 6.114; 3. 1317; 7. 1113).
It was an underlying principle of Sasanian law that no family was to remain without a
guardian. Therefore, should a pater familias die a guardian was nominated to manage family
affairs. Guardians were of three types. The ddag slr bdag came from among the members
of the nuclear family; usually it was the son of the deceased if he already reached maturity. In
this case the son was the guardian of his mother whose consent was needed if she wanted to
remarry (MHD 26. 35). Obviously, such a son was the guardian of his minor brothers and
sisters, too. If there was no such son in the family a guardian was nominated from among the
close relatives by the mbeds (ddag slr gumrdag). The pater familias had the right,
however, to designate a guardian for his family in his will. Such a person was called ddag slr
kardag who could refuse the job or convey it to another person (MHDA 14. 912; MHD 27. 4
5; 28. 1213). It is clear from the judgments recorded in the MHD+A that Persian lawyers
regarded the ddag slr bdag as the favourable guardian while the other two guardians were
seen only as auxiliary persons. For example, if a minor son came of age he had to become the
guardian of the family and the gumrdag or kardag guardian had to stop his activity. Should he
continue to exercise his right he was of bad intent (wadkhah) and liable (MHD 48. 1617,
MHDA 32. 913).

It was the husbands right to dissolve the marriage which was to be recorded in a
document called hisht-nmag. In this letter of divorce the husband had to designate the person
who would exercise guardianship over his wife after divorce. According to law a letter of divorce
was null and void if the husband failed to designate such a person but in legal practice (kardag)
the courts did not follow this rule strictly (MHD 4.10). The husband had to pay back the dowry
his wife brought into the marriage but it was subject to debate among Persian legal scholars
whether the income of the wife (windishn) was also to be given back (MHD 4. 1015).
There was no rule of primogeniture, therefore, all legitimate offspring were entitled to
inherit but sons had a double share than unmarried daughters while a widow received the same
share as a son and married daughters received nothing (because they received their share in the
form of a dowry already). If there were more sons the father had to select from among his male
heirs his successor as the head of the family who had to fulfil ritual obligations when his father
died. Since ritual and worship on behalf of a deceased was very important, to have such a son
was necessary in both religious and ritual points of view. Therefore, Sasanian law made every
effort to guarantee such a son for a man without an heir. The first technique was adoption, but
the legal status of the adopted son was subject to debate and Persian lawyers seem to regard this
institution with some kind of a suspicion (MHD 26. 1012; 69. 910; 71. 47). By contrast,
strh was a widely accepted means which seems to be closer to Persian legal thinking than
adoption. Accordingly, a man could set apart an amount he saw fit but not less then 80/60
str/drachm (?!) for his heir produced by the str. If this son came of age he was regarded as the
legitimate heir of the testator who inherited the amount defined by his father while the interest
realised during these years was the payment of the str. Strs were of three kinds: bdag,
gumrdag and kardag, a classification in harmony with that of the guardians.
One of the str bdag was the widow provided she was Zoroastrian (MHD 44. 68).
The daughter of a deceased man was also considered as a str bdag unless she was under his
fathers slrh at the time of his death. If the daughter in charge was already married her
previous marriage had to be dissolved (MHD 43. 14). It was not clear for Persian lawyers which
of the daughters would become str if there were many: some authorities preferred the youngest
daughter while others the first-born daughter (MHD 46. 1747. 2; 41. 1642. 1). The str i
kardag was a person designated by the testator in his will who had priority over the bdag.
Therefore, when a str i kardag had been nominated, the responsibility of strship could be

taken over by a str bdag only if the former was unable to meet his obligations for some
reasons (MHD 41. 15). The testator could designate anybody as a str for himself instead of his
children and wife (MHD 82. 1016). The nomination of a str i gumrdag took place if the
testator did not designate a str in his will, and there was no str bdag in the family either. If
there were several persons who were ready to perform the duty of a str, the most worthy
(sazgtar) had to be appointed by the mbed (MHD 43. 14; MHDA 26. 1112). Regarding the
person of a str, there were no distinctions based on gender but female strs had priority over
males. A woman could only be one mans str (MHD 43. 811) because otherwise it would not
have been possible to determine to whom the children belonged but a man could be a str of
several persons. According to religious and legal theory the function of a str was merit without
financial advantages but according to Mardags view the strship could be profitable, at least for
men and it is the latter which seems to be closer to social reality (MHDA 2. 67; MHD 41. 8
9).
156

agar marriage was another possibility to produce an heir for a deceased man without a
male offspring. When such a man died his widow and daughter had the obligation to enter into a
agar marriage and produce children for her deceased padikhshy husband and father.
Consequently, in the agar marriage the manus was not exercised by the agar father and
husband. As a result, the agar marriage was a matrimonium sine manu mariti and the wife was
entitled to choose a slr for herself from among the male members of the family of her
deceased husband. Being deprived of slrh agar husbands had no legal ties to their own
offspring, a curious situation being at variance with their interest. Therefore, attempts were made
to create legal ties between father and natural sons. Since, however, this would jeopardise the
very aim of agar marriage a debate among legal scholars followed attested by the MHDA
containing several contradictory legal opinions in this regard. At the end of the Sasanian period
this debate seems not to have been settled for certain but post-Sasanian sources clearly prove that
legal ties between agar fathers and their sons were established (right of inheritance, strh) and
agar marriage lost therefore its original function and had become a second-rate marriage.
157

A khwasryn marriage came into being when the marriage was concluded without the
consent of the slr for whatever reasons. In this marriage the husband was called gdr who

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

was not entitled to slrh save if the woman had no slr when concluding the marriage and
was not given the right to be the slr of her own (khwsh tan slr); otherwise she remained in
the slrh of her father or brother. (MHDA 14. 14). Therefore, the gdr had no obligation to
provide for his wife who should live from her own income or her father should provide for her
when she had no income on her own (MHD 33. 13). Here again the strong connection between
marriage and slrh so characteristic of Persian legal thinking comes to the foreground. Without
slrh, however, the children produced in this marriage were not regarded as the offspring of
the gdr which proves that it was an irregular form of marriage which came into being when
the slr (that is the father or the brother) failed to arrange a proper marriage for the woman.
Both agar and khwasryn marriages could be concluded as temporary marriages, that is, the
duration of the marriage was established in the contract and it was dissolved when the time
expired.
158

In monetary matters the MHD+A has not too much to offer for a modern reader. It is
certain that Persian lawyers made a distinction between possession (khwstag, drishn) and
ownership (khwshh). Concerning law of obligation the compilation is filled with problems of
minor importance in a very casuistic manner for the discussion of which there is neither need nor
space in a short outline as this. But a peculiar institution which we may call charitable trust
deserves some attention. A person was entitled to separate a part of his/her property for an aim
specified by him/her the realisation of which was accomplished with the help of this wealth. The
administration and management of this was the responsibility of the slr designated by the
founder. Among the beneficiaries could be the settlor if the trust was established for the rituals of
his own soul (ruwn yazishn ry), or any other person if the aim was his/her salvation (pad
ruwn). A particular trust was that for a Fire-temple. A wealth separated for this purpose (khr
takhsh) could be used also for business purposes without jeopardizing the aim of the trust, that
is, maintaining a Fire-temple.
159
Since noble persons, leading dignitaries and wealthy persons
established such Fire-temples, considerable wealth concentrated in these trusts having an
important role in Sasanian economics. Small wonder, therefore, that we can find a great deal of
legal problems concerning its management in the MHDA.

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

4. Sasanian law in a global context

Sasanian law evolved according to its own postulates and values but we can find some
similarities with other legal systems. The concept of arta and law being conceptualised in a
cosmic order as the law of Auramazd but not revealed as a positive norm to a prophet resembles
the Hindu notion which may be due to the common Indo-Iranian heritage. Sasanian legal
thinking had some influence on Jewish law, at least this could be inferred from Persian legal
terms found in the Talmd.
160
Jewish lawyers were familiar with Sasanian legal practice, they
even knew how and when to bribe Iranian officials.
161
In both Jewish and Sasanian law a person
could be half free-half slave, a peculiar legal situation not shared by other legal cultures.
162

Trusts, referred to above, seems to be a widely known institution throughout the whole
Mediterranean since it could be found in Roman and Byzantine law, too, and it is also a peculiar
institution of Islamic law (waqf). Whether or not the establishment of waqfs in Islamic law was
modelled on Sasanian or Byzantine models is subject to research in modern scholarship.
163

Perhaps Sasanian law had not so much influence on Islamic legal thinking than it was believed
previously.
164
In sum, although Sasanian law was not isolated from other legal cultures, it
developed according to its own concepts and to the political, economic and social circumstances
of the Sasanian Empire being subject almost to no influence from outside and giving few
impetus to neighbouring legal cultures.

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

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