Between Christ and Caliph. Lev E. Weitz

Notably, Sasanian-era East Syrian bishops never claimed for themselves exclusive jurisdiction over the civil affairs of laypeople; they did so only for clerics. The bishops thus at least tacitly recognized the authority of Sasanian law and the imperial judiciary over all of the empire’s subjects, again like the rabbis.⁵⁴ Christian judicial institutions, moreover, are likely to have been more informal audiences of ecclesiastics, monks, and lay notables rather than a centrally organized, hierarchical court system.⁵⁵ Furthermore, the East Syrians’ ecclesiastical law never developed to cover the full range of civil affairs that would have been necessary had the bishops intended to fully insulate Christians from extracommunal law. Throughout the Sasanian period, East Syrian law was embodied in two main groups of texts: first, Syriac translations of foundational works of Roman ecclesiastical law—the canons of local and ecumenical synods, associated episcopal letters, and pseudo-apostolic writings—and second, the canons and proceedings of the Church of the East’s own synods.⁵⁶ Like the received materials of Roman provenance, the East Syrians’ early synodal legislation dealt mainly with the organization of the ecclesiastical hierarchy rather than the civil affairs of laypeople (with a few important exceptions, discussed below). According to one recent analysis, this material demonstrates that East Syrian bishops never claimed the coercive powers of the Sasanian judiciary even when their law concerned civil transactions; they offered only spiritual punishments (essentially, exclusion from the Eucharist) for transgression. East Syrian law’s primary aim, rather than drawing laypeople into some discrete Christian legal sphere, was pastoral admonishment that not all the legal institutions available to Sasanian subjects were appropriate for true-believing Christians.⁵⁷ In this respect, East Syrian law under the Sasanians was not unlike ecclesiastical law in the Roman Empire. Rather than providing a comprehensive legal system for Sasanian Christians, East Syrian ecclesiastical elites conceived of their legal tradition and their jurisdiction as complementary to other legal orders in the Sasanian Empire. We can be sure that many Christians sought the services of communal figures of authority to settle disputes. As subjects of the Sasanian King of Kings, however, they also certainly made use of state judicial institutions for at least some purposes.

      The question of whether and how often they would have done so when they sought to contract marriages is more problematic. Sasanian bishops never claimed exclusive jurisdiction over the administration of marriage among Christians, nor did East Syrian law set any rules for how marriage was constituted as a legal relationship.⁵⁸ The rabbinic tradition of the Mishnah and Talmud, by contrast, offered a thorough explanation of what made marriage marriage; in a rabbinic audience in the Sasanian Empire, a marriage was valid if it had been contracted according to rabbinic law.⁵⁹ East Syrian law of the Sasanian period gave no such direction. At the same time, the family law administered by the empire’s courts was heavily structured by Zoroastrian cosmological principles—its “ideological foundation,” in the words of one scholar.⁶⁰ A medieval Zoroastrian marriage contract that scholars believe to be based on Sasanian-era models, for example, is laden with Zoroastrian imagery and phraseology. It alludes to the liturgical recitation of “good utterances”; it calls marriage a “pious act” in the terms of Zoroastrian cosmology; and the bride states that she will not “deviate from … being an Iranian (ērīh) and (practising) the Good Religion (weh-dēnīh)” (i.e., Zoroastrianism).⁶¹ This model marriage contract is thus very much a Zoroastrian one. Did Zoroastrian scribes and judges only draw up marriage contracts like it? If they did, would Christians have made use of them?

      One way or the other, it remains probable that Christians interacted with Sasanian judicial structures when dealing with legal business related to the family. The best reading of the evidence suggests that when the empire’s Christian subjects sought to record their marriages in written contracts, they would have had them drawn up by local scribes according to the conventions of either Sasanian law or local civil traditions. Subsequently, they would have had those documents confirmed by the seals of state officials or local notables, including ecclesiastics, making them eligible for adjudication by Sasanian courts. In this manner, even if Christians did not contract marriages according to Sasanian law, they still acted within a legal arena defined by imperial judicial practice.

      In heavily Zoroastrian, Middle Persian–speaking regions of the empire that also had Christian populations, such as Khuzistan and Fars, it is reasonable to think that some Christians would, in fact, have gone to Zoroastrian scribes and judges to have marriage contracts drawn up according to Sasanian law. The writings of the East Syrian patriarch Mar Aba are instructive here. In the mid-sixth century, Mar Aba wrote a treatise and issued canons prohibiting Christians from practicing close-kin marriages, such as unions between a man and his father’s widow, his uncle’s widow, or his aunts. These practices were lawful and in some cases encouraged by Zoroastrian ethics and Sasanian law, but to Mar Aba they were fundamentally un-Christian.⁶² They were apparently common enough among Sasanian Christians, however, to warrant active condemnation. Notably, this indicates that the offenders (from Mar Aba’s perspective) were directly familiar with the substance of Sasanian family law, or at least with the distinctive marital practices it recognized and regulated. That such Christians would have contracted marriages before Zoroastrian judges or through Zoroastrian scribes is not at all unlikely. Perhaps they simply left the most overtly Zoroastrian language out of their contracts (or perhaps they did not).

      For Christians in other regions of the empire, it is likely that local civil law traditions—what we might call common law—held sway. In these areas, Sasanian Christians would have turned to Christian scribes and notables, who often had positions in the church and/or the state and who were versed in local legal practices, to draw up marriage contracts. Generally, we might expect this to have been the case more in the heavily Christian areas of Mesopotamia than in the Iranian provinces of the empire. As we will see in Chapter 4, law books written by East Syrian bishops in the early ninth century prescribe forms of betrothal and marriage very similar to those of other regional legal cultures and to ancient, pre-Sasanian ones. Without overstating direct connections, this implies the continuity of regional common law traditions in Sasanian Mesopotamia, likely transmitted through scribal practice rather than encoded in normative treatises.⁶³ When Sasanian Christians did not go to Zoroastrian judicial figures to contract marriages, we should imagine them doing so according to these regional legal traditions through the services of local Christian scribes.

      Either way, Sasanian Christians would have been operating within the framework of Sasanian norms of judicial practice. The standard method of validating the content of a legal document in the Sasanian Empire was to attach to it a clay bulla impressed with the seals of office-holders and witnesses. If a document was sealed by a state official, a Sasanian court accepted it as fully valid. If a document carried only the seal impressions of private individuals as witnesses, it was up to the judge to determine its probative value.⁶⁴ Presumably, any marriage agreement drawn up by a Zoroastrian judge would have received an authenticating seal impression. But even if non-Zoroastrian contracts were sealed only by witnesses, the descriptions of Sasanian judicial procedure we have suggest that they still would have been admissible before Sasanian judges, just at a lower level of evidentiary value. In other words, they still functioned under the auspices of the Sasanian judicial system, not in a fully autonomous Christian legal sphere. Additionally, Christian formulas and iconography on recent seal findings indicate that some Christians held imperially recognized offices, as does the Sasanian dynasty’s frequent interest in employing bishops in official capacities such as imperial embassies.⁶⁵ Such individuals’ seals would presumably have granted marriage contracts full legitimacy, even if they did not conform to the Zoroastrian norms we see in the Middle Persian model contract. In these various ways, we should imagine Sasanian Christians operating under the purview of the Sasanian administration and its judicial apparatus even when they did not marry according to the same substantive norms as their Zoroastrian co-subjects.

      Much as in the Roman Empire, the fact that marriage as a legal relationship did not fall under the exclusive purview of East Syrian law does not mean that ecclesiastical figures played no role in its administration. It is entirely likely that priests attended and blessed marriages, although the earliest positive evidence for an East Syrian liturgical ceremony of betrothal is not earlier than the seventh