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
