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”
