Shai Secunda

The Martin Buber Society of Fellows

The Iranian Talmud:

The Evolution of Rabbinic Law in its Persian Context1

Since the middle ages, the Babylonian Talmud, or the Bavli as it is conventionally
known, has sat at the nerve-center of the Jewish canon. The Bavli like its older
Palestinian rabbinic counterpart the Yerushalmi is a voluminous, late antique
rabbinic compilation written in Aramaic. Structurally-speaking, it is organized as a
commentary on the Mishna, an early rabbinic legal work that was compiled by Rabbi
Yehuda the patriarch around the year 200 CE in Roman Palestine. Despite this
organizing principle, the Bavli frequently casts aside sober commentarial work on the
Mishna and veers away from a regular preoccupation with halakha (normative Jewish
law) to consider anything from magical incantations and medicinal cures to the shape
of the godhead and the ideal contours of the female body.
The textual architecture of the Bavli is intricate and complex, and it is fairly clear that
it was not initially produced as a legal code or law textbook.2 For that reason,
relatively soon after the Talmuds completion sometime during the sixth and seventh
centuries CE, legal tracts began to appear that attempted to distill and then codify the
Jewish law preserved in the Bavli. Works like Halakhot Pesuqot and Halakhot
Gedolot (both of early medieval Iraq), Isaac Alfasis Sefer ha-Halakhot (eleventh
century Morocco) and Maimonides systematizing, magnum opus Yad ha-azaqa

This paper is a working paper. Not all of the citations have been added. Furthermore, the paper may
contain errors small and large. For that reason, I look forward to comments from readers. I also ask that
this paper not be forwarded beyond those participating in the Jerusalem legal history seminar without
my permission.
2
For a related treatment of the function of Mishna with some relevant comments regarding the Bavli,
see Yaakov Elman, Order, Sequence, and Selection: The Mishnahs Anthological Choices, The
Anthology in Jewish Literature (ed. David Stern. Oxford: Oxford University Press, 2004 ), 53-0.

(twelfth century North Africa), effectively and almost alchemically turned

rabbinic law as it was complicatedly refracted in the Bavli into a comprehensible and
workable legal system that might be readily applied to rabbinic jurisprudence and
Jewish life. To this day, the generative text of Jewish law remains the Bavli.
Halakhic codes and responsa maintain a productive relationship with the Talmud,
which is often cited as a prooftext and constantly reinterpreted. The Bavli thus
constitutes a kind of ground-zero for conceiving of and understanding Jewish law as
it has developed throughout the centuries.
Jews traditionally refer to talmudic literature as a sea.3 This metaphor nicely captures
the Bavlis voluminous size and impressive depth, and perhaps also the way it
functions as a self-enclosed textual ecosystem. In the nineteenth and early
twentieth century CE the traditional study of the Bavli was described by some
maskilim (enlightened Jews) as all-encompassing yet cut off from the world out of
which it first grew and in which it was presently studied.4 As a result, a number of
maskilim attempted to revolutionize the way rabbinic literature was read. For these
brave new Talmudists, the rabbinic corpus was no longer conceived of as a complex
of interlocking texts that express an eternal truth, rather as an assemblage of different
works composed in various times, places, and circumstances. The task that lay before
these scholars was twofold to chart the internal textual history of each of the
rabbinic compilations and also to locate them in a particular geographical and cultural
setting. For the majority of the classical rabbinic corpus including the Mishna,
Midrash, and Yerushalmi, this meant considering the Greco-Roman environment of

Rabbi Isaac Aboabs influential circa 1300 work, Menorat ha-Meor, seems to include the earliest
reference to this term.
4
For a more in-depth account of the history of academic Talmud study and early attempts to read the
Bavli in its historical context, see my The Iranian Talmud: Reading the Bavli in its Sasanian Context
(Philadelphia, University of Pennsylvania Press, forthcoming 2013).
3

Roman-provincial Palestine where these works were produced. In the case of the
Babylonian Talmud, scholars would need to explore the cultural, religious and
linguistic milieu of the Iranian Empire, which in late antiquity included and indeed
was to an extent centered in Babylonia.
Some took up the call to contextualize the Talmud with gusto. One maskil named
Yehuda Lieb Schorr penned lengthy essays in the journal he founded, ha-alut,
where he argued for an Iranian origin to a great variety of Jewish beliefs and
practices.5 Linguists searched for Persian loanwords and other Iranian linguistic
features in the Bavlis Aramaic.6 And historians began to write the history of
Babylonian Jewry. Unfortunately, the effort by Talmudists to contextualize the Bavli
largely petered out after the Second World War. As a result, until very recently the
academic study of rabbinic literature was characterized by a striking imbalance.
While it was not unusual for scholars studying classical rabbinic Midrash or the
Yerushalmi to consult the archeological record of Roman Palestine and the vast
corpus of Greek and Latin literature that has survived from antiquity, researchers of
the Bavli often proceeded as if they were cloistered in a traditional yeshiva study hall.
This ignorance of the Bavlis milieu has been at the expense of gaining a deeper
understanding of the Talmuds ethical teachings, colorful narratives, and perhaps most
significantly, Jewish law.

See for example he-alu 7 (1865): 1-88; 8 (1869): 1-120

One particularly ambitious project in this direction was Alexander Kohut, Aruch Completum
(Hebrew; Vienna, 1878-1892).
6

Over the past decade, a growing number of Talmudists led by Yaakov Elman7 have
made significant advances towards studying the Bavli in its Iranian context.8 Some of

Key studies include: Yaakov Elman, Marriage and Marital Property in Rabbinic and Sasanian Law,
in Rabbinic Law in Its Roman and Near Eastern Context (ed. Catherine Hezser; Tbingen: Mohr
Siebeck, 2003), 227-276; idem., Acculturation to Elite Persian Norms in the Babylonian Jewish
Community of Late Antiquity, in Netiot le-David: Jubilee Volume for David Weiss Halivni (ed.
Ephraim Bezalel Halivni, Zvi Arie Steinfeld, and Yaakov Elman; Jerusalem: Orhot, 2004), 31-56;
idem., Up to the Ears; idem., The Babylonian Talmud in Its Historical Context. in The Printing of
the Talmud: From Bomberg to Schottenstein (ed. Sharon Liberman Mintz and Gabriel M. Goldstein;
New York: Yeshiva University Museum, 2005), 19-28; idem., Yeshivot bavliyot ke-vatei din, in
Yeshivot and battei midrash (Hebrew; ed. Emanuel Etkes; Jerusalem: Makhon Shazar, 2006), 31-55
(Hebrew); idem.,Rav Yosef in a Time of Anger, Bar Ilan Annual 30-31 (2006): 93-104 (Hebrew);
idem., Middle Persian Culture and Babylonian Sages: Accommodation and Resistance in the Shaping
of Rabbinic Legal Tradition, in The Cambridge Companion to the Talmud and Rabbinic Literature
(ed. Charlotte Elisheva Fonrobert and Martin S. Jaffee; Cambridge: Cambridge University Press,
2007), 165-197; idem., He in His Cloak and She in Her Cloak: Conflicting Images of Sexuality in
Sasanian Mesopotamia, in Discussing Cultural Influences: Text, Context, and Non-Text in Rabbinic
Judaism (ed. Rivka Ulmer; Lanham, MD: University Press of America, 2007), 129-164; idem., The
Socioeconomics of Babylonian Heresy, Jewish Law Association Studies 17 (2007): 80-126; idem.,
Who Were the Kings of East in West in Ber 7a?: Roman Religion, Syrian Gods and Zoroastrianism in
the Babylonian Talmud, in Studies in Josephus and the Varieties of Ancient Judaism: Louis H.
Feldman Jubilee Volume (ed. Shaya J. D. Cohen and Joshua Schwartz; Leiden: Brill, 2007), 43-80; and
idem., Returnable Gifts in Rabbinic and Sasanian Law, in Irano-Judaica VI (ed. Shaul Shaked;
Jerusalem: Ben Zvi Institute, 2008), 150-195.
8
See for example Geoffrey Herman, Ahasuerus, the Former Stable-master of Belshazzar and the
Wicked Alexander of Macedon: Two Parallels between the Babylonian Talmud and Persian Sources,
Association of Jewish Studies Review 29 (2005): 283-297; idem., The Story of Rav Kahana (BT Baba
Qamma 117a-b) in Light of Armeno-Persian Sources, Irano-Judaica VI, 53-86; idem., Bury My
Coffin Deep!: Zoroastrian Exhumation in Jewish and Christian Sources, in Tiferet leYisrael; Jubilee
Volume in Honor of Israel Francus (ed. Joel Roth, Menahem Schmelzer, and Yaacov Francus; New
York, Jewish Theological Seminary, 2010), 31-59; idem., Persia in Light of the Babylonian Talmud:
Echoes of Contemporary Society and Politics: hargbed and bidax, The Talmud in Its Iranian Context
(ed. Carol Bakhos and M. Rahim Shayegan; Tbingen: Mohr Siebeck, 2010), 61-84; idem., One Day
David Went out for the Hunt of the Falconers: Persian Themes in the Babylonian Talmud, in
Shoshanat Yaakov, 111-136; idem., Table Etiquette. Examples of Talmudo-Iranic research by a new
generation of Talmudists include Yishai Kiel, Redesigning tzitzit in the Babylonian Talmud in Light
of Literary Depictions of the Zoroastrian kustg, in Shoshannat Yaakov: Jewish and Iranian Studies
in Honor of Yaakov Elman (ed. Shai Secunda and Steven Fine; Leiden: Brill, 2012), 185-202; Reuven
Kiperwasser and Dan Shapira, Irano-Talmudica I - The Three-legged Ass and "Ridy in B.
Taanith: Some Observations about Mythic Hydrology in the Babylonian Talmud and in Ancient Iran,
Association of Jewish Studies Reivew 32 (2008): 101-116; idem., Irano-Talmudica II: Leviathan,
Behemoth and the Domestication of Iranian Mythological Creatures in Eschatological Narratives of
the Babylonian Talmud, in Shoshannat Yaakov, 203-235; Jason Sion Mokhtarian, Empire and
Authority in Sasanian Babylonia: The Rabbis and King Shapur in Dialogue, Jewish Studies Quarterly
19 (2012): 148-180; Jeffrey L. Rubenstein, Talmudic Astrology: Bavli abbat 156a-b, Hebrew Union
College Annual 78 (2007): 109-148; Shai Secunda, Talmudic Text and Iranian Context: On the
Development of Two Talmudic Narratives, Association of Jewish Studies Review 33 (2008): 4569;
idem., Studying with a Magus / Like Giving a Tongue to the Wolf, Bulletin of the Asia Institute 19
(2005; published 2009): 151-157; idem., Reading the Bavli in Iran, Jewish Quarterly Review 100
(2010): 310-342; idem., The Sasanian Stam: Orality and the Composition of Babylonian Rabbinic
and Zoroastrian Legal Literature, in The Talmud in Its Iranian Context, 140-60; idem., The Talmudic
bei abedan and the Sasanian Attempt to Recover the Lost Avesta, Jewish Studies Quarterly 18
(2011): 343-366; Parva a Magus, in Shoshannat Yaakov, 391-402; idem., The Construction,
Composition and Idealization of the Female Body in Rabbinic Literature and Parallel Iranian Texts:
Three Excursuses, Nashim 23 (2012): 60-86.
7

the recent research looks at specific aspects of rabbinic law in light of the parallel
Iranian legal system.9 As of yet, there has not been a wide-ranging and up-to-date
effort to consider the effects of the Bavlis Iranian context on Jewish law. The limited
goal of this paper is to begin this process by considering the basic facts of the Bavlis
legal context in light of advances in Talmud criticism and Iranian studies, and then to
point towards some potentially fruitful areas of inquiry. I will highlight four features
of the Bavlis context that I believe are noteworthy and significant for appreciating
the development of rabbinic law. The first two points rely on recent research in
Iranian studies which for whatever reason has not yet been sufficiently taken into
account by scholars of Jewish law. The final points are taken from my own work on
the Bavli and its Persian context, and will include a close reading of some illustrative
sources.
By necessity, a full-blown thesis must be deferred until more research in this direction
has been undertaken. Nevertheless, even at this early stage I will claim that
appreciating the Iranian character of the Babylonian Talmud what might be called
the Iranian Talmud will significantly affect the way scholars understand the
content, shape, and thinking processes of Jewish law.

See Elman, Marriage; idem., Up to the Ears; and idem., Returnable Gifts and Maria Macuch,
An Iranian Legal Term in the Babylonian Talmud and in Sasanian Jurisprudence: dastwar(h), in
Irano-Judaica VI (ed. Shaul Shaked; Jerusalem, Ben Zvi Institute, 2008), 128-138; idem.,Iranian
Legal Terminology in the Babylonian Talmud in the Light of Sasanian Jurisprudence, Irano-Judaica
IV (ed. Shaul Shaked and Amnon Netzer; Jerusalem: Ben Zvi Institute, 1999), 91101; idem., The
Talmudic Expression Servant of Fire in Light of Pahlavi Legal Sources, Jerusalem Studies in
Arabic and Islam 26 (2002): 10929; Note also the important early effort of Herbert Finkelscherer,
Zur Frage fremder Einflsse auf das rabbinische Recht, in Monatsschrift fr Geschichte und
Wissenschaft des Judentums 75/56 (1935): 38198, 43142.
9

I. Room to Grow: The Sasanian Legal Landscape and Babylonian Rabbinic Law
The Babylonian Talmud was produced by generations of rabbis who traced
themselves back to Jews originally exiled to Mesopotamia from the Land of Israel
during the early sixth century BCE.10 By the dawn of the Babylonian rabbinic era at
the beginning of the third century CE, Mesopotamian Jews had been living under
Iranian rule for more than half a millennium. The rise of Babylonian rabbinic society
coincided almost perfectly with the inauguration of a new Iranian dynasty in 226 CE
the Sasanians, who replaced the Parthians and ruled the region until the Islamic
conquest in 651 CE. The Sasanians brought new imperialistic energies to a vast
territory stretching from parts of the Eastern Mediterranean basin to Central Asia and
beyond, and pushed the Empire towards greater centralization and bureaucratization.
Under Sasanian rule, Zoroastrianism the ancient Iranian religion that originated in
the second millennium BCE thrived, and grew in importance and power.
Zoroastrian theology, the interpretation of the Avesta Zoroastrianisms ancient
Scriptures, and legal and ritual thinking evolved in fresh and sophisticated ways.
During the Sasanian period, Zoroastrian exegetical literature came to develop
characteristics similar to rabbinic literature (though not due to influence), to the point
that one of the nineteenth centurys most important philologists commented on the
similarities and differences between the two corpora.11 Needless to say, the effect that
the intellectual developments had on Sasanian law both religious and civil was
considerable.

For the history of this community in antiquity, see M. Dandamayevm Babylonia in the Persian age,
and Elias Bickerman, The Babylonian Captivity, in The Cambridge History of Judaism: Vol. 1 (ed.
W. D. Davies and Louis Finkelstein; Cambridge: Cambridge University Press, 1984), 326-357.
Regarding late antiquity, see Isaiah Gafni, The Political, Social, and Economic history of Babylonian
Jewry, 224-638 CE. In The Cambridge History of Judaism: Vol. 4. The Late Roman-Rabbinic Period
(ed. Steven T. Katz; Cambridge: Cambridge University Press, 2006), 840-876.
11
Friederich Spiegel, Einleitung in die traditionellen Schriften der Parsen (Leipzig, 1856), 92.
10

In Sasanian Iran, the legal system was experienced as a complex set of processes
which some scholars refer to as legal pluralism.12 Such a framework is markedly
different from the contemporary Western situation in which the State occupies a
central role in most legal proceedings. Against a background of impressive ethnic and
religious diversity which according to a third century CE Middle Persian inscription
included Jews, Buddhists, Hindus, Aramaic- and Greek-speaking Christians,
Manicheans, and Mandeans13 numerous Sasanian communities and actors
negotiated for legal legitimacy and authority within the Empire and among a web of
societies.
Scholars of Sasanian law are beginning to understand the space that the Sasanian legal
system carved out for non-Zoroastrian religious communities like the Jews.
According to Maria Macuchs reconstruction of the Zoroastrian Middle Persian
evidence, there were four basic options available for legal action in the Sasanian
Empire: (a) Disputes in the presence of witnesses who also functioned as arbitrators
or mediators; (b) disputes presented to a least three righteous Zoroastrians who also
acted as mediators and arbitrators for conflicts carried out in accordance with
Zoroastrian law; (c) disputes that took place in the presence of a private judge
(known in Middle Persian as rad xw) who was a religious master for one or both
of the litigants and had certain level of authority over their community;14 and (d)

12

For a related examination of this reality in early medieval Mesopotamia and its environs, see Uriel I.
Simonsohn, A Common Justice: The Legal Allegiances of Christians and Jews under Early Islam
(Philadelphia: University of Pennsylvania Press, 2011).
13
See D. N. Mackenzie, Kerdirs Inscription, in The Sasanian Rock Reliefs at Naqsh-i Rustam:
Naqsh-i Rustam 6, The Triumph of Shapur I 35-72 (ed. Georgina Herrmann; Berlin: D. Reimer, 1989),
35-72, 54.
14
Alternatively, this figure could also act as an arbitrator.

finally, there were the various official legal proceedings that occurred in proper
Sasanian courts before judges of different ranks.15
These categories appear in Middle Persian texts, and they were clearly most relevant
for the ruling community of Sasanian Zoroastrians who transmitted them. Regardless,
it is easy to see how the first three categories, and particularly the third, might be
adapted to the situation of a minority community like the Jews. Indeed, a careful
reading of some relevant talmudic passages regarding the way rabbis constructed their
authority in litigation indicates that justice in the rabbinic community normally
proceeded via a type of arbitration model in which the litigants accepted upon
themselves the individual rabbinic sage as a judge. Despite attempts to portray the
situation otherwise, talmudic depictions of extensive and autonomous authority on the
part of the rabbis seem to have been just that depictions.16 At the same time, as long
as the rabbis did not overstep their bounds and rule on matters beyond their
jurisdiction like capital punishment, the Sasanian authorities were apparently content
to leave them to their own devices; to administer and develop Jewish law.
The first point I would like to make has been noted by others in the past but still bears
repeating here, especially in light of an additional, contrastive twist: A crucial feature
of the Bavlis Iranian milieu for the development of Jewish law was actually an
absence. Specifically, the legal autonomy the Sasanians provided the Babylonian
rabbis ensured that the rabbinic law would develop relatively unhindered. By way of

Maria Macuch, Jewish Jurisdiction within the Framework of the Sasanian Legal System, in
Encounters by the Rivers of Babylon: Scholarly Conversations between Jews, Iranians and
Babylonians in Antiquity (ed. Uri Gabbay and Shai Secunda; Mohr Siebeck, Tbingen, forthcoming)
16
See especially Geoffrey Herman, A Prince without a Kingdom: The Exilarch in the Sasanian Era
(Tbingen: Mohr Siebeck, 2012), 194-202. Herman also deals with the question of approbation by the
exilarch the semi-official communal leader of the Babylonian Jewish community. In his reading,
while a ruling rabbis authority would ascend a degree, even then there were few tools to enforce
decisions.
15

contrast, while the form of law practiced by the Babylonian rabbis colleagues in
Palestine was not normally dictated by Rome, nevertheless, the legal environment in a
Roman province with a long history of tension with its subjects like Palestine must
have been different from the state of affairs in Sasanian Babylonia.17

II. The Law of the Kingdom: Sasanian Law in the Bavli

The fact that Sasanian Irans legal pluralism gave the rabbis the space within which to
develop their own legal system does not mean that Babylonian rabbinic law did not
intersect with or was not aware of Sasanian law. Famously, a statement attributed to
the early third century CE Babylonian rabbi Shmuel, declares that the law of the
kingdom is the law () . Given the historical context, the kingdom
Shmuel refers to is undoubtedly the Sasanian Empire.
Although his statement appears just a handful of times in the Bavli,18 it formed the
backbone of numerous medieval and modern rabbinic attempts to articulate a position
regarding the ruling, non-Jewish legal system. Recently, the dating and scope of
Shmuels statement has been challenged on philological grounds, suggesting that it
was unlikely that the dictum originally represented a wide-ranging, early third century
rabbinic approach to Sasanian law.19 Yet regardless of whether it was first uttered in
the third or fourth century or originally had to do with the Sasanian legal system in
toto or primarily its tax code, the statements emergence in the distinct environment of

17

On this matter, see further Hayim Lapin, Rabbis as Romans: The Rabbinic Movement in Palestine
100-400 CE (Oxford: Oxford University Press, 2012).$
18
Apparently, the original context is Bavli Bava Batra 55a. The statement is then quoted at Bavli
Bava Qamma 113a-b; Bava Batra 54b; Gittin 10b; Nedarim 28a and Sanhedrin 25b according to MS
Herzog 1.
19
See Herman, A Prince, 202-7. See there also for literature concerning the use of the term in
medieval and modern rabbinic literature.

Sasanian Babylonia ultimately influenced post-talmudic law in profound ways even

if this occurred via the unpredictable mechanisms of creative reinterpretation.
Instead of looking for sweeping statements like Shmuels declaration, perhaps a better
way to assess the knowledge of and reception of Sasanian law in the Talmud is to
examine individual talmudic rulings and terminologies that intersect with the Sasanian
system. Interestingly, on a number of occasions the Bavli explicitly refers to the
Sasanians and their laws, often reflecting a high level of familiarity with the
intricacies of that legal system. To name a few examples: (a) In one passage the
Talmud uses a precise Middle Persian legal term to refer to a strong and legally
binding contract (muhraq wwargne).20 (b) Elsewhere, the Bavli employs the
Middle Persian legal term dastwar, which refers to a person having title to a property
even merely for its income and not principle.21 Significantly, a distinction between
the related abstract term dastwarh ownership and the word for possession
(drin) is a critical feature of Sasanian property law, as is the case in Roman law as
well. (c) A final example concerns a notoriously misunderstood talmudic passage in
which the fourth century sage, Rava, suggests that rabbis pretend that they are
servants of the (Zoroastrian) fire temple () 22 in order to evade tax
collection. Instead of flippantly recommending apostasy in order to evade taxes, it
has now been demonstrated that Rava was actually referring to a specific class of
church property, which rabbis might legitimately claim.23 In all of these examples

Bavli Eruvin 62a. See Maria Macuch, Iranian Legal Terminology in the Babylonian Talmud in the
Light of Sasanian Jurisprudence in Irano-Judaica IV (ed. Shaul Shaked and Amnon Netzer;
Jerusalem: Ben Zvi Institute, 1999): 91-101.
21
Bavli Arakhin 28a and Qidushin 60b. See Maria Macuch, An Iranian Legal Term in the Babylonian
Talmud and in Sasanian Jurisprudence: dastwarh in Irano-Judaica VI (ed. Shaul Shaked; Jerusalem:
Ben Zvi Institute, 2008), 126-138.
22
Bavli Nedarim 62b.
23
Macuch, A Servant.
20

and there are more24 when scholars presume rabbinic familiarity with Sasanian law,
formerly difficult passages become comprehensible. More significantly, a picture
begins to emerge of a pluralistic, interlinked legal environment in which, despite the
relative autonomy granted to Babylonian rabbis to operate according to their own
legal system, the rabbis were aware of Sasanian law, its terms and its principles.
More than that, explicit interaction between rabbinic and Sasanian law is recorded in
the pages of the Talmud.

III. Intercultural Dynamics

In their research, legal historians typically examine the evolution of particular legal
phenomena without necessarily focusing on the cultural dynamics associated with
their development an area of interest often left to cultural historians. Regarding the
development of Babylonian rabbinic law, however, it is crucial to reconstruct rabbinic
responses to the Sasanian system when measuring the possible influence the latter had
on the former.
Unfortunately, when it comes to assessing rabbinic perceptions of the Sasanian courts,
one encounters a confusing and sometimes contradictory set of sources. In certain
instances, the Bavli roundly criticizes the Sasanian legal institutions. Rather
problematically, the negative sources have been read maximally by many scholars as
evidence that the rabbis viewed the Persian legal system entirely negatively. I
recently undertook an extensive examination of the relevant passages and discovered

See further Yaakov Elman, Up to the Ears; idem., Marriage; and Maria Macuch, Allusions to
Sasanian Law in the Babylonian Talmud, in The Talmud in its Iranian Context (ed. Carol Bakhos and
Rahim Shayegan; Tbingen: Mohr Siebeck, 2010), 100-111.
24

that as a matter of fact, a fair amount of complexity can be detected on these issues.25
For one, even in regards to rabbinic sources that do criticize the courts, the broader
implications of this phenomenon are not immediately clear. While it is possible to
read rabbinic disparagement of the Sasanian institutions uncomplicatedly as simply
reflecting a perception that Persians and their legal systems were problematic,
oppressive, ineffective, and/or corrupt, one might also understand the critique as
simply a strategy for discouraging Jews from attending Sasanian courts.
A few terms in the Bavli explicitly refer to Sasanian law. One of them,
magian (i.e. Zoroastrian priestly) law () , appears in a passage in which
the Bavli refers to magian law as a negative alternative to Torah Law.26 In
another source, magian law only refers to a specific form of Persian court protocol
that problematically at least from a rabbinic perspective accepts the testimony of a
single witness in cases of monetary law.27
Ezra Spicehandler, who skillfully analyzed two of the terms for Sasanian
courts bei dina de-magista and bei *d(d)war concludes his article on the topic by

25

See Shai Secunda The Iranian Talmud: Reading the Bavli in its Sasanian Context (Philadelphia:
University of Pennsylvania Press, forthcoming).
26
Bavli Bava Meia 30b.
27
Bavli Bava Qamma 113b-114a.
' '
'

Rava proclaimed and others say, Rav Huna: [To] those who go up [to the Land of Israel]
and who come down [from Babylonia] a Jew who knows some evidence concerning a
fellow Jew about a non-Jew, and he goes and testifies about him in a non-Jewish court, we
excommunicate him. What is the reason? Since non-Jews adjudicate the payment of money
[even based] on the evidence of one witness, we excommunicate him. But this is the case
only in a magian court. However in a *d(d)war court they too [like the rabbis] impose an
oath upon a single witness [before adjudicating].
As much as this passage criticizes the practices of certain kinds of Sasanian courts, it nevertheless
makes an important distinction. Only magian courts accept the testimony of a single witness without
verification. On the other hand, those Persian courts known as bei d(d)war (court of judges) are
careful to require a single witness to take an oath. In other words, while it is true that in the Talmuds
eyes one kind of Sasanian court is substandard, the other form of Sasanian justice is actually considered
on par with rabbinic standards.

suggesting that the phrase Persian law ( ) was yet another term used in the
Bavli in a generally disparaging way.28 If this were true, it would mean that the rabbis
not only had problems with specific kinds of Sasanian courts, but that they also
perceived of Sasanian law as more broadly and fundamentally flawed. And yet,
although some rabbis may have seen the Sasanian system this way, a closer
examination of the manuscript traditions and the editorial arrangement of the talmudic
sources which refer to Persian law reveals a far more complicated and fluid
picture.29
In the interest of time I am able to examine only one passage that refers to
Persian law. The occurrence appears in a discussion at the end of tractate Bava
Batra in regards to the roles and obligations of loan guarantors. The sugya opens with
a discussion of the following Mishna:
'
' ['] .
If a man lent his fellow money through a guarantor, he may not exact payment
from the guarantor. If he said, on the condition that I may exact payment
from whom I wish, he may exact payment from the guarantor. R. Shimon b.
Gamliel says: If the borrower has property, in either case [the creditor] may
not exact payment from the guarantor.30

Ezra Spicehandler, and : Notes on Gentile Courts in Talmudic Babylonia,

Hebrew Union College Annual 26 (1955): 333-354.
29
The following section is rather technical and includes some information of relevance to Talmudists
in particular. In order to follow the argument, non-specialists should be aware that academic Talmud
research spends considerable energy trying to establish the original talmudic text, which is not taken
for a given. In addition, critical Talmudists emphasize the distinction between statements attributed to
rabbinic sages and the anonymous, editorial material often referred to as the Stam (anonymous)
which incorporates these statements and is seen as reflecting a later stage of development.
30
Mishna Bava Batra 10:14, according to the text and number of the Kaufman manuscript.
28

A straightforward reading of this Mishna seems to imply, strangely enough,

that a typical creditor may never approach the guarantor in order to collect his loan.
There is no distinction in the text, nor is there a condition attributed to the creditor,
indicating that the Mishna is dealing with a legal category known in rabbinic law as
surety for person a type of guarantor related in certain ways to the modern bail
bondsman who has virtually no financial obligation to the creditor and only offers
commitments to ensure that the borrower shows up to pay his loan when it is due.31
Notably, the Yerushalmi cites R. Yoanan as emphasizing that the Mishna actually
absolves the guarantor from paying only when the borrower is solvent.32 On the other
hand, the first opinion cited in the Bavli reads the Mishna literally and seems to
understand the role of a typical that is undefined guarantor as merely ensuring that
the borrower show up when the creditor demands loan payment:
33 '
What is the reason [that the Mishna does not require the guarantor to pay the
loan]? Both Rabba and Rav Yosef say: [Because the guarantor can say,] You
have handed over to me a man; and a man have I have handed over to you.34
Rabba and Rav Yosef normally absolve the guarantor from paying the loan
since the latters job is simply to produce the borrower for loan repayment.
Presumably, if an undefined guarantor is technically unable to ensure that the

On this form of surety contrasted with surety of debt in talmudic, geonic, and medieval sources,
and compared with Islamic law, see Gideon Libson, Surety for Person in the Writings of Rav Shmuel
Ben Hofni Gaon, Maimonides and Parallel Moslem Literature, Annual of the Institute for Jewish Law
13 (1981): 121-184.
32
Alternatively, as the next clause of the Mishna states, according to the first opinion even if the
borrower is solvent the guarantor must pay the loan in a case where the lender made a special
stipulation.
33
] This is the reading of all the manuscripts, except MS Paris 1337 which records
( Rav and Shmuel).
34
This and the following passages from the sugya are from b. Bava Bathra 173b according to MS
Hamburg 165.
31

borrower shows up to pay for example in a case where the borrower has fled or died
the guarantor must pay back the loan.35 Nevertheless, Rabba and Rav Yosef are
generally content to interpret the Mishna literally as absolving the guarantor of
obligation in many circumstances.36
The next opinion is attributed to Rav Naman who is apparently not satisfied
with a literal reading of the Mishna. This part of the sugya clearly has two
chronological layers, so for clarification purposes I have italicized the anonymous
editorial voice in the translation:
40 39 38 37
' ' 41
' 42

See the medieval commentator, Rashbam ad loc gavra. However, see Libson, Surety for a
different view on the development of the laws of surety in medieval halakhic sources.
36
Note that Rashbam and other talmudic commentators explain that this literal reading of the mishna is
merely a temporary presumption. As a matter of fact, there is no indication that Rabba and Rav Yosef
ever retracted their opinion. Indeed, the late tenth and early eleventh century gaon, Shmuel Ben ofni,
did maintain Rabba and Rav Yosefs opinion in certain circumstances, as did some other medieval
jurists in his wake. See Libson, Surety; and Berachyahu Lifshitz, A Guarantee for the Body
Halacha and Aggada, in Studies in Talmudic and Midrashic Literature in Memory Of Tirzah Lifshitz
(Hebrew; ed. Moshe Bar-Asher, Joshua Levinson, and Berachyahu Lifshitz; Jerusalem: Mosad Bialik,
2005), 231-245 (Hebrew), which contains an important analysis of this passage.
37
] This is the reading of almost all witnesses. However, note that geniza fragment Cambridge
T-S F2 (2) 53 records: ( said).
38
] This is the reading of all the manuscripts. Note the MS Escorial corrected this name from
.
39
] This is the reading of most manuscripts. Note however MSS Florence II-I-9 and Escorial GI-3 have ( now). Aside from the similarity to the normative reading it is possible
that the variant can be connected with two other passages that discuss Persians in reference to
nowadays ( )b. Avoda Zara 16a ( ' and
nowadays that we do sell [non-Jews material for weapons]? Rav Ashi said: To the Persians, who
protect us) and b. Bava Meia 108a (... and nowadays that the Persians
write).
40
] Only MS Hamburg repeats these words.
41
] Thus MS Hamburg. See also the Cambridge geniza fragment T-S NS 121.20: ;MSS
Escorial, Vatican 115 and the Pesaro edition have ( the courthouse) while MSS Florence and
Munich 95 have ( with the law).
42
]This is the reading in all witnesses, save for MS Florence and the Cambridge geniza fragment
T-S F2 (2) 53 which have ( exact payment).
35

Rav Naman raised an objection: This is the law of the Persians! The law of
Persians?! On the contrary; they pursue the guarantor! Rather [the
following is Rav Namans objection]: [Is not this ruling] like Persian law
[where we find that the judges] do not give reasoning for their matters (i.e.
rulings)! Rather, said R. Naman: What is [the meaning of] he may not
exact payment from the guarantor? [That] he [may] not demand [payment
from] the guarantor first. Indeed, it was also taught [in a baraita]: If a man
lent his fellow money through a guarantor, he may not demand [payment
from] the guarantor initially. And if he said, on the condition that I may
exact payment from whom I wish, he may demand [payment from] the
guarantor first.
The first statement in this section is directly attributed to Rav Naman, a
fourth century CE rabbi who according to the Talmud was close to the exilarchs
court where judges are to be found (Bavli Bava Batra 65a). Rav Naman was one of
the Babylonian rabbis depicted as acculturated to upper-class Persian society, and
there is evidence that he was well aware of, and occasionally even adopted, certain
facets of Persian law.43 Here, however, Rav Namans exclamation that the mishna
looks like Persian law apparently lead to an alternative interpretation of the rabbinic
text that begins with the word rather.44 In other words, the similarity of this Mishna

See Elman, Returnable Gifts.

Although Rav Namans objection ostensibly appears as a response to Rabba and Rav Yosef, this
seems unlikely. First of all, one never finds Rav Naman responding to the latter two sages with a
formal objection, probably on account of Rav Namans seniority. See Yaakov Elman, Yeshivot
Bavel u-vatei din Parsiyim, in Yeshivot and Battei Midrash (Hebrew; ed. Emanuel Etkes; Jerusalem:
Zalman Shazar Center, 2006), 31-55 (Hebrew), 34-36. Note again that the geniza fragment T-S F2(2)
53 records said instead of raised the objection. In addition, MS Paris attributes the first
interpretation to the early amoraim Rav and Shmuel instead of Rabba and Rav Yosef, though this
reading is unconvincing.
43
44

to Persian law is deemed problematic enough to necessitate an alternate

explanation.
There are number of questions raised by this passage. First, why indeed
would the proximity of the Mishna to Persian law be objectionable especially in the
eyes of a relatively acculturated Sasanian rabbi like Rav Naman? There is no
evidence anywhere in rabbinic literature that Jewish civil law is not allowed to agree
with a non-Jewish counterpart. In fact, in two instances the Talmud explicitly rules in
accordance with Persian law.45 Second, is it indeed the case that Persian law forbids
the creditor from ever collecting loans from the guarantor and does not contain
regular, debt surety? How could a credit system that only recognizes surety of the
body have been viable in the enormous and enormously developed Sasanian
economy where the free-flow of credit would have been crucial for fiscal
functionality? More to the point, who would be willing to lend money knowing that
guarantors are virtually useless?46
Interestingly, the latter question is actually pursued in the Talmuds
anonymous layer, which responds in the negative On the contrary; they (i.e., the
Persian courts) pursue the guarantor! This exclamation is traditionally interpreted to
mean that the Persians go directly to the guarantor without first approaching the
borrower. In this way, the Stams (anonymous, editorial layers) objection may be
read as constituting the passages second critique of Persian law, for what kind of
legal system allows a creditor to always indiscriminately collect from a guarantor
without first approaching the borrower?! Unfortunately, the Stams objection only

See Bavli Bava Meia 108a and once again, Shmuels dictum the law of the Empire is law.
On these and many issues raised in the sugya, see Elman, Yeshivot Bavel. For further discussion of
credit problems in the Sasanian Empire as they may have influenced rabbinic law, see also Yaakov
Elman, The Chronology of the Sasanian Law-book and the Fall of the Empire, (paper presented at
the Middle Eastern Studies Association Annual Meeting, Boston, MA, November 2009).
45
46

creates more problems: Were it the case that undefined guarantors are always at the
mercy of the creditors demands for payment, why would anyone want to serve as a
guarantor? Again, the effects of such a system of credit would be just as damaging to
the Sasanian economy as one in which regular guarantors took on no financial
obligation.
The early seventh century Sasanian lawbook, Mdayn hazr ddestn
(MHD; Book of a Thousand Judgments), preserves an entire chapter dealing with
guarantors of various sorts and their associated obligations.47 One important passage
in that chapter states that a borrower may approach the guarantor for payment only at
a time when the debtor (literally, man) is insolvent or does not show up (pad n
zamn bawd ka mrag an-dn ayb n mad std).48 Otherwise, the guarantor has
no obligation to pay. Indeed, as the rest of that passage states, if the guarantor goes
ahead and pays the loan without the debtors consent, he cannot receive his money in
return.49 In other words, there is little doubt that generally speaking, Sasanian law
does not permit the creditor to go directly to an undefined guarantor in a case where
the debtor is both present and solvent.
This sharpens a number of challenges in the talmudic passage. Foremost of
these concerns the very facts of Sasanian credit law, as there are three mutually
exclusive depictions to contend with: On the one hand, the Sasanian law-book spells
out the only truly economically viable option, where guarantors normally guarantee a
typical loan in a case of either default or disappearance of the debtor. Rav Naman,

MHD (Mdayn hazr ddestn) chapter forty (MHD 55:10-59:10).

MHD 56:6; Maria Macuch, Rechtskasuistik und Gerichtspraxis zu Beginn des siebenten
Jahrhunderts in Iran: (Wiesbaden: Harrassowitz, 1993), 387 (text) and 392 (translation); Anahit
Perikhanian, The Book of a Thousand Judgements: A Sasanian Law-book (trans. Nina Garsoan;
Costa Mesa, Calif: Mazda, 1997), 144 (text) and 145 (translation).
49
MHD 56:6-8.
47
48

however, seems to think that Persian courts do not hold regular guarantors
accountable to pay a loan unless, perhaps, the borrower flees or passes away. Finally,
the Stam seems to depict Sasanian law as rather absurdly allowing creditors to always
collect payment from undefined guarantors.
Regarding the meaning of Rav Namans equation of the Mishna to Persian
law, there actually are other possibilities beyond those considered above. First,
recall that even the anonymous layer of the Talmud reinterprets Rav Naman so that
he does not actually equate the (literal understanding of) the law in the Mishna with a
corresponding Persian law. According to this view, Rav Naman is merely saying
that reading the Mishna literally so that it generally absolves the guarantor from
obligation is unreasonable much as Persian courts (or, depending on the reading,
simply Persian law50) are at fault for not expressing the reasoning behind their
rulings. This reinterpretation of Rav Naman is not without its problems, including
the fact that the Sasanian court memos cited in the Sasanian lawbook actually do on
occasion preserve a rulings legal reasoning.51 Nevertheless, it is worth employing
the Stams basic re-interpretive strategy, and reading Rav Namans exclamation
this is Persian law as simply a general term of critique without necessarily directly
corresponding to Sasanian law. Such a negative view of Persian law might indeed
reflect a level of rabbinic animosity to the Persian system. Alternatively, it might
simply express competition on the part of Rav Naman despite, or perhaps on account
of, his proximity to Sasanian law.52

50

See the variants collected above.

See Elman, Yeshivot Bavel, as well as Lifshitz, A Guarantee, which stress the difficulties in
viewing Persian law as systematically lacking reasoning.
52
Elman, Yeshivot Bavel, is somewhat hesitant to attribute criticism of Persian law to the
acculturated Rav Naman. Nevertheless, it remains possible that specifically those closest to a certain
institution, like Sasanian culture and law, might be those who hold the right to criticize it.
51

At first blush, understanding Rav Namans use of the term Persian law as
wholly negative has what to recommend it. The two other occurrences of the phrase
in the Bavli apparently refer to the injustice of certain rulings, and both are connected
to Rav Naman. However, further examination of these traditions reveals that this is
not necessarily the case. Moreover, the complexity of these sources might actually be
indicative of cultural tensions.53
Yaakov Elman has recently suggested another interpretation of Rav Namans
statement one that is perhaps more in line with the image of a rabbi relatively
acculturated to the Persian milieu and in contact with judges in the exilarchs court
and beyond.54 Specifically, if one peels away the Stams comments and editorial
framing of Rav Namans statement (including even the word rather) it is possible
to recover a more neutral-to-positive assessment of Persian law:
.... \
Rav Naman raised an objection / said55 this is the law of the Persians!....What
is [the meaning of the Mishnas ruling that] he may not exact payment from
the guarantor? [That] he [may] not demand [payment from] the guarantor
first.
Without the intervening anonymous commentary, the two statements
attributed to Rav Naman actually cohere quite well. Rav Naman notes that the
Mishna should be interpreted in line with Persian law, and that the creditor may go to
the guarantor when the debtor is insolvent. It is possible that the Bavlis anonymous

53

See my The Iranian Talmud.

For a different reconstruction that may have been used by the gaon Shmuel b. ofni, see Lifshitz, A
Guarantee, 236.
55
This textual variant found in a geniza fragment, as noted above.
54

layer took two statements of Rav Naman that it received independently. In the
course of weaving these statements into a longer passage, their meaning was reversed
so that Rav Naman is said to disagree with the literal reading of the Mishna
specifically because it is like Persian law. While the text of this passage as it comes
down to us does seem to initially present Rav Naman as criticizing Persian law in
some way or another, the work of a higher and lower text critical approach suggests
that this need not be the case. Possibly, it was actually Rav Namans knowledge of
Sasanian law that caused him to interpret a Mishna in a specific way with the
potential for influencing an aspect of Jewish law. Only later was this approach
deemed problematic by the Stam.
Notwithstanding its reception in late talmudic and medieval times, Rav
Namans original comments regarding Persian law should not been read as evidence
of a generally negative view of the Sasanian legal system. When dis-embedded from
its editorial framework, his remarks actually seem to reflect a rather neutral-topositive comparative posture towards Sasanian law. According to one reading, Rav
Namans knowledge of Persian law actually encourages him to reinterpret the
Mishna and bring it in line with the Sasanian view on the matter. The negative sense
that accompanies Rav Namans statement is actually the legacy of a series of
reinterpretations by later authorities.
The complex and dynamic evolutionary processes that this material underwent are
notable, but hardly rare in talmudic discourse. Most visibly, the original statement of
Rav Naman without its editorial framing reflects an ability to think clearheadedly
and sympathetically about a Sasanian legal institution. According to the most positive
interpretation of his remarks, Rav Namans respect for Sasanian jurisprudence leads
him to new interpretative and jurisprudential positions. The apparent shift in later

layers and commentaries of the Talmud apparently reflects an inability to imagine that
the rabbis might have seen anything at all positive in Persian law, or might have seen
Persian law as somehow equivalent for the purposes of comparison.56
In sum, the Rav Naman passage illustrates that familiarity with Sasanian law by
some rabbis may have led to new interpretations and applications of the Mishna and
other early rabbinic texts that were in line with the Sasanian legal system. At the
same time, it may reflect some of the tensions that such influence could have caused
in some rabbinic circles. Even though this passage is one of the only where a rabbi
explicitly acknowledges the influence of Sasanian law in his interpretation of a
Mishna, it demonstrates that such influence was not impossible and may very well
have been a normal occurrence. Since Babylonian rabbinic law constitutes an
interpretive legal literature and not a sui generis, creative legislative system, if
Sasanian law affected the rabbis legal interpretations then this means it influenced
the production of rabbinic law itself.
IV. The Heart of the Matter: Theoretical Sophistication in the Bavli and Parallel
Zoroastrian Legal Texts
The final area I would like to address concerns the sophisticated quality of rabbinic
legal theoretical thinking and the possibility that Sasanian and particularly
Zoroastrian law may have played a role in its development. Here I am quick to
admit that the argument I have to make is rather speculative and in the current context
can only be sketched in outline form. Nevertheless, I believe that this direction of

56

Interestingly, this ability to openly consider the proximity of Sasanians and their institutions to
rabbinic society, accompanied by a subsequent failure of the imagination in later, anonymous layers of
the talmudic tradition is something that shows up in a number of other texts. These include a
fascinating set of passages in which the Sasanian King, Shapur is depicted as knowledgeable in
rabbinic law, involved in rabbinic discussions, and even virtually interchangeable with some rabbis.
For further details, see The Iranian Talmud.

research is perhaps the most significant, since it gets to the heart of Jewish law and its
operative principles.
The word Talmudic appears in the English language not only in a formal capacity
as an adjective that describes texts and other intellectual objects relating to the
Talmud, but also as a pejorative which refers to bizarre argumentation, excessive
casuistry and shrewd dialectics that allegedly characterize talmudic texts. Pejoratives
aside, anyone who has studied a page of Talmud is aware that the Bavli can contain
difficult-to-follow, intricate and looping arguments that are frequently driven by
peculiar abstractions and conceptual principles largely unique to talmudic discourse.
In a 2002 monograph entitled Talmudic Reasoning,57 Leib Moskovitz studied the rise
of certain aspects of talmudic argumentation that he considered noteworthy and
which, he points out, later became typical of Jewish legal writings. Moskovitz basic
argument is that the Bavli evinces a conceptual jump above and beyond the rest of
classical rabbinic legal works like the Mishna, Tosefta, and even Yerushalmi, which
themselves reflect a mainly casuistic system of law. According to Moskovitz, this
evolution can be traced to the central fourth century figures Rava and Abaye and their
schools. While some of the terms Moskovitz uses to portray the Bavlis theoretical
approach, like abstraction and conceptualization, are fuzzy and rather
problematic, there is little doubt that there is an intellectual revolution reflected in the
Bavli that is in need of both explication and explanation.
If one wants to be precise, the Bavlis ostensible conceptual development actually
constitutes the second major revolution in rabbinic law. Against the background of

57

Leib Moscovitz, Talmudic Reasoning: From Casuistics to Conceptualization (Tbingen : Mohr

Siebeck, 2002).

the Dead Sea Scrolls and other Second Temple writings, a number of scholars have
spent the last two decades trying to distinguish between a priestly approach to
Jewish law, which is contrasted with the rabbinic (or even Pharisaic) view.
Following Daniel Schwartz pioneering work on the subject,58 many scholars now
describe this difference as having to do with legal realism the priestly view and
nominalism, which is seen as a kind of innovation attributed to the rabbis.59 At the
risk of oversimplification, one can say that nominalism focuses on the abstract legal
ontology of objects and agents even when dealing with ritual law (though not to the
total exclusion of some realistic factors60), while realism emphasizes the realworld aspects of the ritual legal system. In other words, already the rabbinic system
of law found in the Mishna which again is organized casuistically constitutes a
view of law that underlines the significance of unseen, metaphysical realities that
take the form of legal categories even regard ritual.61 What happens in the Bavli is
that things are taken much further.
One small example can be found in the rabbinic laws of leavened bread ( )on
Passover. The Bible itself simply rules that leaven should not be found in an
Israelites home on Passover.62 The rabbis claim that as a matter of fact, the
governing principle of this prohibition is not whether leaven is physically found in the
home, rather whether a (invisible) state of ownership links the Jew to the leavened

Daniel R. Schwartz, Law and Truth: On Qumran-Sadducean and Rabbinic Views of Law, The
Dead Sea Scrolls: Forty Years of Research (Leiden: Brill, 1992), 229-240.
59
As Jeffrey Rubenstein points out in an important critique of Schwartz article in his Nominalism
and Realism in Qumranic and Rabbinic Law: A Reassessment, Dead Sea Discoveries 6 (1999): 157183, Schwartz terminology realism and nominalism (which incidentally he adopted from Y.
Silman) are confusing since in legal studies they retain a different, and sometimes opposite usage.
60
On this point, see Christine Hayes, Legal Realism and the Fashioning of Sectarians in Jewish
Antiquity, Sects and Sectarianism in Jewish History (London: University College London, 2011).
61
If this formulation sounds tautological, this is because the rabbinic approach ended up becoming the
dominant view recognizable as Jewish law today.
62
See for example Exodus 12:19.
58

object. The Mishna goes as far as saying that even if a Jew has leaven in his home on
Passover in the form of a loan, but it is owned by a non-Jew, no prohibition has
been committed and the leaven can still be consumed after the holiday (unlike leaven
that was actually owned by a Jew over the holiday).63 For its part, the Bavli takes the
Mishnas unstated idea further and embarks on a sophisticated discussion about loan
security consisting of leaven that was held by a non-Jewish creditor from a Jewish
debtor over the holiday of Passover. The Bavli interrogates whether the Jewish
debtors security is considered owned by the non-Jewish creditor, which would then
obviate the problem regarding the ritual laws of Passover, or whether it remains
within the possession of the Jew and thus poses an issue. In all this, one would
assume that a realistic system of Jewish law would take a much more pragmatic
approach: If the leaven is found in the Jews house on the holiday, it is problematic,
regardless of the metaphysics of ownership.
This illustration is fairly typical and therefore does not require duplication. What it
demonstrates, aside from an aspect of the rabbis nominalistic view of Jewish law, is
that this approach to Divine law can be seen as unfolding in two phases. Already the
Mishna contains the germ of the idea that an exact determination of ownership is
necessary for determining the ritual reality of leaven in the home on Passover.
However, the Bavli explicates this principle and takes it to new levels of discourse. I
should emphasize that while in this example, one sees how aspects of civil law
influence rabbinic ritual law, there are also cases in which concepts that first evolved
in the legal ritual realm affect rabbinic civil jurisprudence

63

Mishna Pesaim 2:3

, ; ,
. , ; , .

One important question asked by Talmudists is whether the Bavlis level of

conceptual sophistication is merely the result of more intervening years to develop
following the compilation of the Mishna in 200 CE and then the Yerushalmi in the
early fifth century CE, or whether something intellectually dramatic occurred within
Babylonian rabbinic legal culture, perhaps due to its milieu, that pushed it further than
it might have developed on its own. Of course, when asking this sort of question it
should be acknowledged that absolute, scientific proof does not exist. Nevertheless,
the exercise may still be worthy if it provides even a possible, compelling framework
for explaining the evidence.
One of the noteworthy aspects of Sasanian law that is parallel to the rabbinic system
is the two-way traffic between the religious and civil legal disciplines. Famously,
the Talmud more or less seamlessly treats ritual and civil law in its pages, and many
rabbis were experts in various intellectual fields, including monetary law (),
ritual law (), and even theology. The situation in Sasanian law was similar, in
that major jurisconsults who appear in ritual contexts like the Zoroastrian purity laws,
are quoted in the Book of a Thousand Judgments the late Sasanian textbook of civil
law.64 This is all in contrast to Roman law, which saw imperial and private law begin
to separate themselves from the priestly system already in the third century BCE.
Although at the surface level Zoroastrian ritual literature may seem to reflect a
realistic approach to ritual law for example in its description of impurity
spreading in an almost physical way the exterior actually hides the true legal

64

At the same time, there are clear signs that Sasanian civil law was trying to distinguish itself from the
religious system, including the absence of ritual law from the Book of a Thousand Judgments. For an
up-to-date and accessible discussion of this and other major features of Sasanian law, see Maria
Macuch, Judician and Legal Systems iii Sasanian Legal System, Encyclopeadia Iranica Online,
accessed March 3, 2013 at http://www.iranicaonline.org/articles/judicial-and-legal-systems-iiisasanian-legal-system.

machinery of the Zoroastrian system. Indeed, one of the most significant moments
in the ancient Avestan book known as the Videvdad (the law for discarding the
demons a book largely devoted to laws of impurity that is comparable to the
biblical book of Leviticus) occurs when the deity, Ahur Mazda, informs the religious
leader Zarathustra that humankind need not worry about inadvertently sinning in the
laws of impurity, since Ahur Mazdas law reflects the independent will of the
Creator and not merely the realities of the physical world. In other words, Zoroastrian
ritual law expresses a form of nominalism.65 Given the way the Sasanian interpreters
read Zarathustras positive response to this teaching, it is clear that they understood
the Videvdad passage as constituting a kind of invention of Zoroastrian legal
thinking.
It is difficult to exemplify the features of Zoroastrian ritual literature that I am
referring to, since their world is foreign to non-specialists, and the current state of
these texts is far more fragmentary and elliptic than rabbinic literature. That said,
here is a short Zoroastrian Middle Persian text that seems to reflect a view of law
comparable to what I highlighted regarding (Babylonian) rabbinic law:
When they sell it (i.e. the temporary morgue) or they sell the ground-space,
and they (the buyers) sell it back, are they authorized or not? They are
authorized at that time when they sell it as one (i.e. the morgue and the
ground-space). If they do not sell it as one, then a sin goes to their account.66

65

See Videvdad 5.1-25. I am preparing an extensive treatment of this text with Domenico Agostini and
Eva Kiesele for future publication.
66
Zand fragard jud-dw-dd, MS TD 447:
ka n b frxnd ayb gyg zamg b frxnd ud n abz b frxnd pdixy hnd ayb n :: pad
n zamn pdixy hnd . ka pad k b frxnd . ka n pad k b frxnd :: ka -n winh bun ::

The text appears in Zand fragard jud-dw-dd a lengthy late Sasanian work that
is related to a late antique recension of the Videvdad. The passage concerns a potential
loophole for evading what is a normal ritual obligation to properly dispose of dead
relatives housed in a temporary morgue in due time. Similar to the rabbinic laws of
leaven, in Sasanian times this obligation came to be conceived of as originating from
a legal state of ownership. Apparently, a loophole developed, in which the temporary
morgue housing the corpses could be sold, and this sale would obviate the obligation
to dispose of the dead. The text is careful to emphasize that selling the morgue alone
would not accomplish the desired change of legal status. One also has to transfer the
land on which the morgue was build in order for the loophole to work. Given the
talmudic example I offered above, the Zoroastrian text seems to mirror the well
known rabbinic loophole of selling leaven to a non-Jew over Passover a practice
still in use today.
I am not arguing that the Zoroastrian passage reflects anything like the level of
sophistication one finds in rabbinic literature in general and the Bavli in particular.
However, I do think it evinces a similar approach to ritual law in which established
civil legal principles like the laws concerning ownership, are strongly integrated
within the ritual legal sphere. Also, it should again be noted that intellectual traffic
often moves in two directions, so that as some scholars have suggested, Zoroastrian
ritual principles affected Sasanian civil law. Either way, it seems possible that a
broad tradition of applying civil legal principles to ritual law and vice versa could
have had a notable effect on the development of rabbinic law. Although many of the
distinctive features of rabbinic law are already apparent in the Mishnaic, perhaps the
Bavlis Iranian milieu led to an acceleration and intensification of the conceptual
sophistication.

It should be acknowledged that Romanists like Alan Watson67 have complained about
the so-called legal isolationism of Roman jurists who took Roman law to great
heights of conceptual sophistication while sometimes ignoring the implications for
everyday jurisprudence. If that is the case, then why was the Bavlis situation in the
Sasanian Empire unique? I therefore should clarify that my point is not that rabbinic
and Sasanian law are highly conceptual while Roman law is not, rather that the type of
abstraction and conceptualization one finds in both Iranian and rabbinic law are
similar and possibly the product of legal systems in which the metaphysical concerns
of ritual law retained a productive relationship with the type of pragmatic
systemization found in civil law.
Conclusion
As a working paper, many of the conclusions and suggestions put forward in this
article are tentative and intentionally provocative. Generally speaking, I argue that
the recent push by Talmudists to read the Bavli in its Iranian context may have a
profound effect on our understanding of Jewish law in all of its post-classical (i.e.
medieval and modern) phases. The form of legal pluralism that existed in Sasanian
Babylonia fostered rabbinic laws independent growth. There is evidence that rabbis
versed in Sasanian law may have incorporated this knowledge in their interpretation
and application of rabbinic law. Finally, it is possible that the interconnectedness of
civil and ritual law in both the Zoroastrian and rabbinic systems influenced the growth
of sophisticated conceptual forms of legal thinking in the Bavli, and in a sense in
rabbinic legal writing to this very day.

67

See his The Spirit of Roman Law (Athens: University of Georgia Press, 1995).