Offprint from A Thousand Judgements Festschrift for Maria Macuch Edited by Almut Hintze, Desmond Durkin-Meisterernst and Claudius Naumann 2019 Harrassowitz Verlag · Wiesbaden © Harrassowitz Verlag, Wiesbaden 2019 This PDF file is intended for personal use only. Any direct or indirect electronic publication by the author or by third parties is a copyright infringement and therefore prohibited. Normative and Theological Dissent in Early Zoroastrian Law: Pahlavi Nīrangestān 23 Yishai Kiel and Prods Oktor Skjærvø Introduction The scholarly discussion about individual nonconformity to and dissent from traditional Zoroastrian law and doctrine1 has largely centered on medieval responses in Pahlavi and New Persian focusing on the legal status of apostates, typically in the form of converts to Islam 2 The treatment of apostasy and conversion by medieval Zoroastrian jurists reflects, for the most part, legal concerns typical of Zoroastrianism as a religious minority under Islamic dominance,3 some of which were shared by their Jewish, Christian, and Islamic contemporaries 4 The Zoroastrian responses from the early ninth century onward concern questions such as the marital status of the wife of an apostate, the legal status of his ayōgēn (“levirate”) sister, the inheritance privileges of the apostate, the conditions of his return and readmission to Zoroastrianism, the issue of performing mourning rituals for the salvation of his soul, and concerns pertaining to members of the clergy who apostatized 5 1 2 3 4 5 This article is concerned with the issue of nonconformity of Zoroastrians to traditional Zoroastrian law and doctrine For Zoroastrian views on non-Zoroastrian adherence to other religious systems and the question of whether or not non-Zoroastrians are expected, at least in theory, to convert to Zoroastrianism or abide by Zoroastrian law and doctrine, see Elman (2005 [pub 2009], 2010 b) The conversion of Zoroastrians to Islam during the first few centuries of the Islamic period is, in some respects, part of a broader cultural phenomenon termed the “Islamic age of conversions” (see, e g , Wasserstein 2010; de Menasce 1967 a; Morony 1990; Hoyland 1997, pp 336–342) The legal status of Zoroastrians under Islam was subject to some controversy among Muslim jurists (see Friedman 2003, pp 72–76) For comparative discussions of apostasy in Zoroastrian, Islamic, Christian, and Jewish law during this period, see, e g , Simonsohn 2013, Irshai 1984–1986, and Kiel/ Skjærvø 2011, p 11, and 2017 See, e g , REA 4, 26 (JamaspAsa/Nawabi 1978, pp 324, 338–339; cf Safa-Isfehani 1980, pp 19–24, 183–188); RAF 2–3, 5, 52–53 (JamaspAsa/Nawabi 1978, pp 323–325, 348–349; Anklesaria 1969, vol 1, pp 47–49, 70–71); Pahlavi Rivāyat 7 (Williams 1990, © Harrassowitz Verlag, Wiesbaden 2019 This PDF file is intended for personal use only. Any direct or indirect electronic publication by the author or by third parties is a copyright infringement and therefore prohibited. 238 Yishai Kiel and Prods Oktor Skjærvø The legal concerns pertaining to individuals’ nonconformity to Zoroastrian law and doctrine did not, however, originate as a reaction to the large-scale conversions to Islam in the early Islamic period In fact, the issue of religious dissent from Zoroastrian norms and views is systematically treated in the Pahlavi commentary on the Avestan Nīrangestān, which was redacted orally probably in the late Sasanian period The extensive medieval discussion of apostasy and conversion is, therefore, not only a reflection of the religious and legal encounter of Zoroastrianism with Islam, but also represents earlier Zoroastrian traditions, which were redacted in their final form before the advent of Islam Here, to honor Maria Macuch’s inestimable contributions to the study of Zoroastrian law, we shall discuss the twenty-third chapter of the Pahlavi Nīrangestān (N )6 along with its commentary against the backdrop of Islamic laws of apostasy, on the one hand, and Talmudic (particularly Babylonian) law and other sources, on the other hand We shall see that the discussions concerning religious dissent in this Pahlavi text are significantly illuminated by a comparison with Talmudic law and, particularly, with the Babylonian Talmud’s discussions of normative and theological dissent, which are situated in the intellectual world of the Sasanian period We shall also see that, after the redaction of the Nīrangestān, some of the legal concerns in our text continued to occupy the minds of the medieval Zoroastrian jurists, who appropriated and repackaged earlier discussions by applying them to the new reality of large-scale conversions to Islam Here, the traditions of the Pahlavi Nīrangestān together with their later incarnations in medieval Zoroastrian responses on apostasy and conversion can be significantly illuminated by a comparison with Islamic legislation 6 vol 2, p 9); Dādestān ī dēnīg 40 (Jaafari-Dehaghi, pp 168–171); Persian Rivāyats of Hormazyar Framarz (Dhabhar 1932, pp 197–198) Beginning of the second section (fragard) of the Nīrangestān (cf Kotwal/Kreyenbroek 2003, pp 30–35) The text is on HJ 64 r5–66 r2 (= Sanjana 1894) and TD 44 r12– 45 v4 (= Kotwal/Boyd 1980; in the Iranian reprint [n p , ca 1970] of Sanjana 1894, on pp 127–131) Here it is normalized to some degree, and only variants that might impact on the discussion are mentioned Parenthesis (…) = editorial additions An asterisk = slightly restored form and its translation/uncertain translation For manuscripts and previous editions, see Kotwal/Kreyenbroek’s edition Our interpretation of the text differs from theirs in various respects —Here and elsewhere, all texts cited are based on inspection of the manuscripts and, in the case of the Questions (Pursišnīhā) of Ēmēd son of Ašwahišt (REA), Ādurfarrbay (RAF), and Frīy-srōš (RFS), on new editions prepared by the authors © Harrassowitz Verlag, Wiesbaden 2019 This PDF file is intended for personal use only. Any direct or indirect electronic publication by the author or by third parties is a copyright infringement and therefore prohibited. Normative and Theological Dissent in Early Zoroastrian Law 239 Nīrangestān chapter 23 N 23 1 yō gāθå asrāuuaiiō ąstā vā tarōmaiti vā tanūm piriieiti. kē gāhān nē yazēd *anastīh7 rāy ka gōwēd ay dēn nēst (ayāb tar-menišnīh rāy) ka gōwēd ast u-š nē ābādīh dādār bē (guft?) [TD 44 v] tanābuhl bawēd N 23 2 kō ąstō kā *tarōmaitiš kadār *anastīh kadār tar-menišnīh [HJ 64 v] N 23 3 yā haca daēnaiiāt̰ māzdaiiasnōit̰ apastūitiš :: kē dēn ī mazdēsnān abāz stāyēd :: N 23 4 ēd gōwišn ī tan ī xwēš wizīr hād Abestāg ān gōwēd bawēd ka pad ēd gōwišn menišn gōwēd hād dēn nēst pad gyāg tanābuhl sāl-drahnāy margarzān tanābuhl az ēn gyāg paydāg 3 gōwišn sāl-drahnāy ōh margarzān az ān gyāg paydāg yō haca daēnaiiāt̰ māzdaiiasnōit̰ apastōit̰ θriš vaγžibiš *hakərət̰ vīpaiticit̰ N 23 5 ka nē menišnīg gōwēd margarzān nēst nē bawēd ka pad menišn abēr was menēd pad guftan nē gōwēd margarzān nē bawēd N 23 6 Rōšn [HJ 65 r] guft hād ēn griftārīh āmār tā 3 bār pad menišn menēd margarzān ōh bawēd ka 3 gōwišn *ēwāz8 pad gōwišn gōwēd margarzān pad anīy zamān bawēd ka-š kerd ēw abāg bē kunēd kerd abāg kunišn drāyān-jōyišnīh pad [TD 45 r] bun N 23 7 ka sāl pad petītīgīh bawēd *ā-š9 yašt ī nōg-nāywar abāg kunišn u-š tanābuhl ī ruwānīg bē wizārišn u-š kār kerbag pēš az ān kerd *abāz10 rasēd ān ī andar ān ēw xwēš nē bawēd For *anastīh (Bartholomae 1904, col 361) TD has <’wytwds> (= xwēdōdah!), H <’wytw’s> in §1 and <’wytyh> in §2 [w = n] 8 Mss : <’ywp>, the common ayāb “or,” is not unusual for the rarer <’yw’c> ēwāz “only ” 9 Mss u-š 10 Mss <LWTE> abāg for <LAWHL> abāz, cf RAF 53 cited below 7 © Harrassowitz Verlag, Wiesbaden 2019 This PDF file is intended for personal use only. Any direct or indirect electronic publication by the author or by third parties is a copyright infringement and therefore prohibited. 240 Yishai Kiel and Prods Oktor Skjærvø N 23 8 ka pad petītīgīh nē bawēd rad-iz (nē?) pādixšāy škastan kū pad petīt bawēd *radīhā ka škast11 rad rāy bē mīrēd margarzān N 23 9 ka Zardušt rāy gōwēd u-š dēn rāy guft bawēd ka Ohrmazd rāy gōwēd [HJ 65 v] xwārtar nē bawēd ma agar grāy bawēd abārīg dād rāy gōwēd ā-iz pad ēd šōn N 23 10 dād ī wattar pad ēč meh-dādestānīh nē pādixšāy stāyīdan ka xwadāy-gāh xwāstag rāy stāyēd margarzān ka bīm ī tan rāy stāyēd ā-m nē rōšnag N 23 11 (Rošn guft?) hād čē *dād ī weh kē-š ōh stāyēd u-š menišnīg stāyēd kē az dād ī weh ō wattar šawēd margarzān (az) ān ī wattar ō ān ī wattar margarzān nē bawēd Wehšābuhr guft hād pad ān zamān nē bawēd ka ān gyāg *ōh šawēd [TD 45 v] (ī) ēk wattar kū *anīy12 nēst N 23 12 az jud-ristagān wāz nē gīrišn u-š ōh nē dahišn ka ān gyāg ōh šawēd ka šāhān šāh gōwēd kū drōn ēw ma yaz [HJ 66 r] ā nē yazišn ka gōwēd ay nē abāyēd yaštan ā-š pad gōš dārišn Translation N 23 1 He who (because) not reciting the Gāθās, either out of *evil or out of disdain, forfeits his body He who does not sacrifice the Gāθās13 either out of *deceit—when he says: there is no dēn (or out of disdain)—when he says there is, but he has not (said) the ‘prosperity of the Creator’, becomes tanābuhl (his body is forfeit) N 23 2 What *evil? What disdain? Which is *deceit? Which is disdain? 11 12 13 TD has rad ka škast; not in HJ For *ōh and *anīy, the mss have <OL> and <ZK> I e , recite during the yasna “sacrifice” or other rituals © Harrassowitz Verlag, Wiesbaden 2019 This PDF file is intended for personal use only. Any direct or indirect electronic publication by the author or by third parties is a copyright infringement and therefore prohibited. Normative and Theological Dissent in Early Zoroastrian Law 241 N 23 3 The ‘back-praising’ from the Mazdayasnian daēnā He who praises ‘back’ the dēn of the Mazdayasnians N 23 4 This speech is a decision (about?) his own body That is, that is what the Avesta says It happens when he utters in this14 speech and thought: “No, there is no dēn,” (then) he is tanābuhl on the spot and, after a year, margarzān (worthy of death) (His being) tanābuhl is manifest from this place: “three utterances,” (and) “after a year (his being) margarzān in the usual way” is manifest from that (other) place: he who stands back from the Mazdayasnian daēnā three times with words (and) once with just *remorse 15 N 23 5 When he does not say it (while also) thinking (it), there will be no “there is no margarzān ” When he thinks it in his thought very much, (but) does not say it in speech, he will not be margarzān N 23 6 Rōšn said: Yes, but count this as being ‘seized’: As long as he thinks it three times in his thoughts, he becomes margarzān in the usual way When he utters the three utterances *only in speech, (he becomes) margarzān When it happens at some other time that he does an action in addition, (then) ‘done together with an action’ (and) ‘chewing while chattering’16 (accrues) to his account 17 N 23 7 When he remains in repentance for a year, he should perform a nōg-nāywar ritual together with (it) and (thereby?) resolve (~ expiate) the tanābuhl (sin) to his soul And the work and good deeds he has done before that come *back What (happened) during that period18 does not become his own 14 15 16 17 18 Mss <HNA>, but perhaps for <’ḏ = 3> (common in many Pahl mss ) as in the following “in three utterances and thoughts ” For *vīpaititi? See Skjærvø 2012, p 37 pad bun is usually “at the beginning/bottom,” but it is also used similarly to ō bun “to (his) account”: e g , Dēnkard 9 12 15 ān āsrō kē-š nē frāy az xwar-ēw pad bun “that priest who has no more than one xwar to his account” (Dresden 1966, p [MR154]; Madan 1911, pp 798–799); similarly Dādestān ī dēnīg 11 2, 12 3 (Jaafari-Dehaghi 1998, pp 58–61) Mādayān ī hazār dādestān 34 8 andar ān ēw ka “at the time when” (cf Macuch 1993, p 554: “zu einem Zeitpunkt, da …”; also in RAF 94 2 (JamaspAsa/Nawabi 1978, p 378; Anklesaria 1969, vol 1, p 57) © Harrassowitz Verlag, Wiesbaden 2019 This PDF file is intended for personal use only. Any direct or indirect electronic publication by the author or by third parties is a copyright infringement and therefore prohibited. 242 Yishai Kiel and Prods Oktor Skjærvø N 23 8 When he is not in repentance, he is also (not?) authorized to break the rad When he is repentant (it should be done?) *according to the rad When (he says it?) with a view to breaking the rad (and) he dies, he is margarzān N 23 9 When he says it with regard to Zarathustra, then he will (also) have said it with regard to the dēn When he says it with regard to Ohrmazd, it is not a lighter (sin), but rather a ‘heavier’19 one (When) he says it with regard to the rest of the Law, then too it is in this way N 23 10 By no ‘higher’ law is he authorized to praise a ‘worse’ law When he praises (it) with a view to lordly position (or) property, he is margarzān When he praises (it) for fear of his body, it is not clear to me (what the legal position is) N 23 11 (Rōšn said?)20 Yes,21 for he who praises the good Law in the usual way, he praises it in thought He who goes from the good Law to a worse one is margarzān (From) a worse to a worse, he does not become margarzān Wehšābuhr said: Yes, but he does not become so when he goes to that place in the usual way, where one is no worse than *another N 23 12 One should not take the wāj from ‘those with different ways’, and one should not give it in the usual way When one goes to such a place in the usual way, when the king of kings says: Do not sacrifice any drōn, then one should not sacrifice any When he says, “One must not sacrifice”—then one should keep it in the ear Pahl grāy is the old comparative of garān “heavy,” commonly used of a grade of sin; we also find sins that are garāntar “more ‘heavy’” and grāytar “more ‘heavier’”; cf , e g , Pahlavi Videvdad 13 24 c ēn tanābuhl-ēw rāy grāy bawēd čē pad adwadād ōzad estēd “for this one tanābuhl it becomes a ‘heavier’ (sin), for it was killed by adwadād (abandonment)” (cf Jamasp 1907, p 471) 20 The phrase ā-m nē rōšnag “is not clear to me” is frequently followed by the opinion of Rōšn (lit “light”) in legal texts; contrast Pahlavi Videvdad 5 62 tam kū gyāg tārīk Rōšn guft “tam, i e , a dark place Rōšn said …” (cf Jamasp 1907, p 202) 21 On the use of hād and other particles, see Skjærvø 2010, pp 182–190 19 © Harrassowitz Verlag, Wiesbaden 2019 This PDF file is intended for personal use only. Any direct or indirect electronic publication by the author or by third parties is a copyright infringement and therefore prohibited. Normative and Theological Dissent in Early Zoroastrian Law 243 Commentary N 23 1–3 The Avestan text says that a person forfeits his body for not reciting the Gāθās when it is done out of ąsta “*evil” or tarōmaiti “scorn/disdain ” The two Avestan terms are then defined: ąsta is when he denies the existence of the dēn out of “deceit” (?) and “scorn” when he says the dēn exists, but he has not (said?) “the prosperity of the Creator ” The last item may refer to notions such as that expressed in Yasna 37 1, where Ahura Mazdā’s creations are enumerated, concluding with vīspācā vohū “all good things,” Pahl harwisp-iz ābādīh ī bun ud bar “and all prosperity, root and fruit,”22 but also, perhaps, to the aṣ̌ə m vōhū vahištəm astī “aṣ̌a is the best good (thing/reward) there is,” Pahl ahlāyīh ābādīh ī pahlom ast If so, the implication may be that he says the dēn exists, but he does not say the aṣ̌ə m vohū On Pahlavi an-astīh The exact meaning of Avestan ąsta is not known, other than that it is something negative The word anastīh was not understood by the copyist in N 23 1, but he got it almost right in N 23 2 MacKenzie (1971) lists an-ast spelled <’nAYT'> “non-existent” and ānāst <’n’st' = ’n’yyt'> “spoilt,”23 but an-ast is also spelled <’n’st'> There appear to be two different meanings of anast/anastīh in the literature One is based on the analysis as an-ast/an-astīh “non-existent/non-existence, e g , from the Dēnkard: Dk 6 231 ka ahlomōγān ō dēn āyēnd ud abar astīh <AYT'yh> ud an-astīh <’n-AYT'yh> ī dēn ud yazdān pahikār kunēnd “when the heretics come to the dēn and argue about the existence and non-existence of the dēn and the gods”; Dk 6 E 31 c harw rōz 3 bār … astīh ud hamēyīgīh ī yazdān ud an-astīh ud abesīhišnīgīh ī Ahrimen ud dēwān bē gōwišn “three times every day, one should utter the existence and eternal being of the gods and the non-existence and annihilation of Ahrimen and the demons”;24 Dk 3 114 2 tan az judāgīh ī gyān nē an-astīh bē a-kārīh “the body does not get non-existence from being separated from the soul, but non-functioning”; 22 Note also ābādīh ī weh dādār “the prosperity of the good Creator” in the colophons of the Pahlavi Yasna mss Mf4 (K M JamaspAsa/Nawabi 1976, vol 1, p 2) and Pt4 (http:// ada usal es/paginas/ver/17198) 23 This possible meaning is found in Dādestān ī dēnīg 36 13 ud ham druz hamist dēwān ālūdagīhā ud <’n’st>-īhā … bērōn abgandan “and to cast out said Lie together with the demons so as to be polluted, <’n’st> …,” but the reading an-astīha “so as to be non-existent” is just as, if not more, likely (thus Jaafari-Dehaghi 1998, p 115) 24 Dresden 1966, pp [411, 461]; Madan 1911, pp 523, 581; cf Shaked 1979, pp 90–91, 198–199 © Harrassowitz Verlag, Wiesbaden 2019 This PDF file is intended for personal use only. Any direct or indirect electronic publication by the author or by third parties is a copyright infringement and therefore prohibited. 244 Yishai Kiel and Prods Oktor Skjærvø Dk 3 238 4 ag-dēnīh sāmān an-ast-mēnīdārīh ī dēn “the definition of ‘having an evil dēn’ is being somebody who thinks about the dēn’s being non-existent ”25 The other, spelled <’n’st‘> and <’n’stk>, has to do more specifically with falsehood in speech, e g :26 Bundahišn 27 41 Anāst dēw ān kē zūr gōwēd “the demon Anāst is the one who speaks wrongly”; Bundahišn 31 9 ašomōγān ud anāst-gōwišnān ud ahlaw-bēšān “the heretics, those who speak anāst, and those who harm the righteous”;27 Dk 6 C 30 anāstag ud drōw abar kas nē gōwišn “one should not speak anāst and lies about somebody”;28 RAF 61 1 mard-ēw kē anāst ēw abar mard ēw gōwēd wināh čē “what is the sin of somebody who speaks anāst about another?”;29 Zand ī Wahuman Yasn 4 38 zūr ud anāst(ag) abar man Ohrmazd gōwēnd “they utter falsehood and anāstag about me, Ohrmazd ”30 In the Pahlavi Yasna, <’n’st-> renders ąsta-, but appears to be used once in the sense of an-ast- and once in the sense of an-ast- or anāst: PY 34 8 ān ī ōzōmand ahlomōγ … pad ēd ī tō Ohrmazd <’n’st>-īh wurrōyēd pad dēn ī tō “the strong one, the heretic, believes in your, Ohrmazd’s, non-existence, in (that of) your dēn”; PY 44 14 <’n’st>-gar kū gōwišn ī kasān a-kār kunēnd “the one who does <’n’st>, i e, who invalidates what people say ”31 Note also Aogəmadaēca 48, where ąstəm “for the body” is rendered as Pazand anahastīh, Pahl an-ast, Sanskrit tanu-nāstikatvaṃ “non-existence of the body ”32 N 23 2–3 The Avestan text then asks explicitly what the two terms mean and answers that they refer to the “praising back” of the Mazdayasnian daēnā This statement has two important aspects Firstly, it evokes the Evil Spirit’s word to Zarathustra in Videvdad 19 6: apa.stauuaŋvha vaŋvhīm daēnąm māzdaiiasnīm, Pahl abāz 25 Dresden 1966, pp [82, 197]; Madan 1911, pp 111, 262; cf de Menasce 1973, pp 117, 248 26 Compare, perhaps, Khotanese hu-nāśa-salāva- “of very agreeable speech” (Skjærvø 2004, vol 2, p 370), which suggests a reading a-nāst 27 Cf Pakzad 2005, pp 325, 353 28 Dresden 1966, p [411]; Madan 1911, p 559; cf Shaked 1979, pp 156–157 29 JamaspAsa/Nawabi 1978, p 354; Anklesaria 1969, vol 1, p 33 30 Cf Cereti 1995, p 138 31 Cf Dk 3 114 2, above 32 See JamaspAsa 1982, pp 34–35 © Harrassowitz Verlag, Wiesbaden 2019 This PDF file is intended for personal use only. Any direct or indirect electronic publication by the author or by third parties is a copyright infringement and therefore prohibited. Normative and Theological Dissent in Early Zoroastrian Law 245 stāy weh-dēn ī mazdēsnān “praise back the good dēn of the Mazdayasnians,” which underscores the severity of the transgression Secondly, apa-stu- has as its opposite fra-stu- “send forth with one’s praise”, which is how the performance of the yasna begins: “I praise forth with good thoughts, etc ,” that is, presumably, Ahura Mazdā and the Life-giving Immortals, as suggested by Zand ī Wahuman Yasn 7 22, where, at the end of the world, this is what Pišišōtan and his men will do: frāz stāyēnd man Ohrmazd abāg amahrspandān 33 In N 30 11, the direct object is yasnas and vahmas “sacrifices and hymns of praise ”34 The implication of these passages is that *deceitful, that is, deliberate, and disdainful neglect35 to recite the Gāθās is equated with the “back-praising” of the (entire) dēn 36 The theological significance of N 23 1–3 lies in the explicit association of normative and doctrinal dissent The practical failure to perform a ritual (the recital of the Gāθās), when done out of (deliberate) *deceit or disdain, is equated with the theological denial of the (entire) dēn In other words, the question addressed in this passage is whether and to what extent deliberately neglecting a religious command (which amounts to performing the forbidden act of omission)37 equals theological dissent The commentary teaches us in this context that when a religious commandment is deliberately neglected out of disdain, the act must not be regarded as a “regular” offence requiring atonement, but as a form of theological dissent See also on N 23 9, below Similar issues were raised already by Palestinian rabbis, who used the term meshumad (lit “one who is destroyed,” from the noun shemad “destruction”) to denote the destruction of the soul or the body by deliberately and systematically committing a religious crime,38 but the legal concerns distinctly characteristic of the Babylonian rabbis are even more similar to those of the Zoroastrian dastwars Thus, in its discussion of meshumad, the Babylonian Talmud, on the one hand, distinguishes between different motivations for deliberately and systematically neglecting a religious command: there are those who neglect 33 34 35 36 37 38 Cf Cereti 1995, p 143 Note also ā-stu- “ally oneself to … by one’s praise” in Av ā-stauuana-, Pahl āstawān (see below) Cf N 18 3 pad sūdagīh “out of carelessness”, pad nigerišn “deliberately”, pad tarmenišnīh “out of scorn” For Pahlavi dēn as the totality of the oral tradition, see, most recently, Skjærvø 2012; cf Vevaina 2010 p 114, n 8 See examples in Skjærvø 2012, pp 38–41 Originally in the context of religious persecutions See, e g , Petuchowski 1959; Zeitlin 1963; Lieberman 1975, pp 228–229 and notes 103, 106; Wagner 1982, pp 198–227; Arad 2009, with detailed references to earlier scholarship The term mumar (lit “one who has been changed”) was used by sixteenth-century censorship to replace the term meshumad in the Talmudic manuscripts, see Sussman 1990, p 46, n 153; Arad 2009, pp 242–243 For the history of this term in Second Temple and early rabbinic literature, see Arad 2009, pp 238–251 © Harrassowitz Verlag, Wiesbaden 2019 This PDF file is intended for personal use only. Any direct or indirect electronic publication by the author or by third parties is a copyright infringement and therefore prohibited. 246 Yishai Kiel and Prods Oktor Skjærvø a command for the sake of provocation (‫)להכעיס‬, while others do so only for the sake of pleasure or desire (‫;)לתיאבון‬39 on the other hand, it distinguishes between religious dissent with regard to a particular command (‫ )משומד לדבר אחד‬and with regard to the entire Torah (‫ )משומד לכל התורה כולה‬40 Of interest here is also the clear distinction maintained between meshumad (apostate) and min (heretic) in the Palestinian sources—the former denotes dissidence in religious practice, while the latter refers to heretical beliefs41—a distinction blurred in the Babylonian Talmud, cf : Rav Aha and Ravina disagreed on this matter: one said: (a dissident) for the sake of desire (‫—)לתיאבון‬is regarded as an apostate (‫)משומד‬, for the sake of provocation (‫—)להכעיס‬is regarded as a heretic (‫ )מין‬And one said: (a dissident) even for the sake of provocation (‫ )להכעיס‬is regarded as an apostate (‫ )משומד‬Which is the heretic (‫ ?)מין‬One who worships idols (‫ )העובד עבודה זרה‬42 Again, the connection made by the Babylonian rabbis between normative and theological dissent—“an apostate for the sake of provocation is regarded as a heretic”—recalls the Pahlavi assertion that the practical neglect of a religious command out of disdain equals doctrinal denial (invalidation) of the religious tradition The attempt to define normative nonconformity as a form of apostasy was subject to extensive discussion among Islamic jurists, too For instance, according to a tradition recorded by Ibn Qudāma,43 not only heretical beliefs or the denial of Allah and his prophet constitute apostasy; the neglect of essential Islamic norms may be regarded as an act of apostasy punishable by death, as well: Vilifying Allah the Exalted or His Prophet, falsely impugning the honor of the Prophet‘s mother, denying the book of Allah or a part of it, (denying) one of His prophets or one of His books, rejecting a manifest and agreed upon commandment such as the five pillars (of Islam), or making licit a well-known and agreed-upon prohibition, such as wine, pork, carrion, blood, illicit intercourse and the like 44 39 Babylonian Talmud, Gittin 47 a; Hullin 4 a; Horayot 11 a; ʿAvodah Zarah 26 b See, e g , the translations in Epstein 1936 40 Babylonian Talmud, Eruvin 69 a–b; Hullin 4 b–5 a In this regard, we also encounter a category of religious dissent with regard to specific religious commandments, such as the “apostate with regard to the desecration of the Sabbath” (‫ )משומד לחלל שבת‬See Babylonian Talmud, ibid 41 This distinction is mentioned in Schiffman 1985, pp 41–49, but cf the definition proposed by Sussman 1990, p 54 n 176, and the discussion in Arad 2009, pp 246–251 42 Babylonian Talmud, Horayot 11 a 43 Ibn Qudāma, vol 4, p 60; see Friedman 2003, pp 122–123 44 Other Islamic jurists disagree with the notion that the transgression of eating or sexual taboos constitutes apostasy See, e g , Nawawī, vol 18, p 7; Shīrāzī, vol 3, p 256; and Friedman 2003, pp 121–133 © Harrassowitz Verlag, Wiesbaden 2019 This PDF file is intended for personal use only. Any direct or indirect electronic publication by the author or by third parties is a copyright infringement and therefore prohibited. Normative and Theological Dissent in Early Zoroastrian Law 247 N 23 4 The degree of sinfulness for “back-praising” the dēn, here (apparently) interpreted in terms of verbal or mental denial of the dēn, is twofold: in itself, it amounts to a tanābuhl sin, but, if the crime is not “resolved”45 within a year, the sinner becomes margarzān, which is common with tanābuhl sins, cf : Pahlavi Videvdad 7 52 ́ aδaca həṇti pərətō tanunąm šiiaoθənanąm uzuuarštaiiō ānōh paydāg kū wizārišn tanābuhl-ēw rāy margarzān bē estēd ā-š tanābuhl-ēw wizārd bawēd Then there will be the ‘working up’ of actions for which one’s body is forfeit. From there [= the text cited] it is manifest that for the resolving of a tanābuhl sin, the margarzān sin remains 46 Then, for him a tanābuhl sin has been resolved 47 Pahlavi tanābuhl is from Av tanu-pərəθa “whose body is forfeit” (cf tanūm piriieiti in N 23 1), while the term margarzān is not in the Avesta 48 Sometimes, margarzān is used simply to interpret Avestan tanu-pərəθa (e g , N 20 1, 21 1), but the above distinction is common already in the Pahlavi Videvdad Some medieval Zoroastrian jurists, among them the tenth-century Ēmēd son of Ašwahist, in his Questions, reaffirmed this decision of the Pahlavi Nīrangestān and applied it to the case of apostasy by conversion to Islam:49 REA 4 250 mard kē az weh-dēnīh ō ag-dēnīh šawēd ud pad ag-dēnīh bē rasēd pad gyāg tanābuhl ēw wināh ka andar sāl-drahnāy pad rāh ī weh-dēnīh hišt margarzān A man who goes from adhering to the good dēn to adhering to an evil dēn and comes to adhering to the evil dēn on the spot has a sin of one tanābuhl When he (remains) for a year on the path of leaving the good dēn, he (becomes) margarzān 51 Not all Zoroastrian jurists, however, were in agreement that a grace period of one year should be extended to an apostate who converted to Islam, cf : 45 46 47 48 49 50 51 On repentance and atonement of sin in Zoroastrian law and theology, see Asmussen 1965, pp 26–112; Kiel 2008 (pub 2012) and 2014 I e , the atonement for a tanābuhl sin does not resolve a margarzān crime Cf Jamasp 1907, p 276 See Šāyist nē šāyist 1 1–2 (Tavadia 1930, pp 27–28); Supplementary Texts to Šāyist nē šāyist 11 1–2, 16 1–4 (Kotwal 1969, pp 22–23, 68–69); RAF 72 (Anklesaria 1969, vol 1, p 40) On the classification of sins, see also Jany 2007, pp 347–361; Macuch 2003, pp 109–129 On this sage, see Modi 1931, pp 275–288; Safa-Isfehani 1980, pp i–xiii JamaspAsa/Nawabi 1978, p 246; cf Safa-Isfehani 1980, pp 21–22 A similar position is advocated in the Persian Rivāyats of Hormazyar Framarz (Dhabhar, pp 197–198) © Harrassowitz Verlag, Wiesbaden 2019 This PDF file is intended for personal use only. Any direct or indirect electronic publication by the author or by third parties is a copyright infringement and therefore prohibited. 248 Yishai Kiel and Prods Oktor Skjærvø Pahlavi Rivāyat 7 252 kē az dād ī-š andar estēd bē ō dād ī didīgar šawēd margarzān ēd rāy kū dād wehdēnīh bē hamē hilēd kē53 dād ī wad hamē gīrēd dād ī wattar grift rāy ēd rāy margarzān hamē bawēnd He who goes from the law in which he stands to another law (is) margarzān for the reason that he who takes up a bad law abandons the law of the good dēn For this reason they are always margarzān for taking up a worse law While this response may refer to the ultimate margarzān that takes effect only after a year, it is also possible that the author simply did not believe the grace period should be extended in this case The opinion of the high priest Mānuščihr (2 nd half of the ninth-century)54 differs from both of the above: an apostate essentially deserves the death-penalty,55 but he can repent for as long as he is alive: Dādestān ī dēnīg 40 556 bē *agar-iš andar zīndagīh az ān grāy petīt bawēd awēšān kē-š ō ān ī duš-dādīh frēbēnīd ō weh-dādīh hāzēnēd ud ān ī-š abārōnīhā pad dād nihād az rawāgīh kunēd rawāg-wināhīhā abāz bandēd čē raft abāz wirāyēd nōg pad dēn mazdēsnān menišnīg ud abar-estišnīg ud āstawān bawēd wināh ī-š rawāgēnīd bandēnēd ud pad xīr ud ranj ud tuwān ud kār-framān tōzēd ēd čē pad tan pad sidōš pādifrāh widārēd ēg āmurzišn windēd u-š ruwān bōzīhēd But, if during his lifetime, he repents from that ‘heavier’ (sin), brings those whom he had deceivingly brought to that evil law (back) to the good dēn, and stops propagating that which he has wrongly laid down as law, and ‘ties back’ the sins being propagated, redresses what has gone out, again thinks according to the dēn of the Mazdayasnians, stands firm (in it), and professes (it), and makes (people) ‘bind’ the sins which he has propagated and atones for (them) by material things, toil, ability, and hard work— (for all) this (for) which he suffers bodily punishment at the sidōš (“third dawn,” i e , after death), he then finds forgiveness, and his soul is saved 57 52 53 54 55 56 57 See Williams 1990, vol 2, p 9 Mss <ME> čē See Jaafari-Dehaghi 1998, pp 23–26 Dādestān ī dēnīg 40 2, cf Jaafari-Dehaghi 1998, pp 168–169 Cf Jaafari-Dehaghi 1998, pp 170–171 With the above passages, cf from the inscriptions of Kerdīr (after 276 CE): KKZ 14–15 ud was mardōm ī anāstawān būd ān āstawān būd ud was ān būd kē kēš ī dēwān dāšt u-š az man kerd ān kēš ī dēwān hišt u-š kēš ī yazdān grift “and much people who did not profess (the dēn), they professed (it); and there was many a one who held the teaching of the demons, but by my endeavor he abandoned that teaching of the demons and took up the teaching of the gods” (cf MacKenzie 1989, § 17 pp 55, 59 [transl defective]) © Harrassowitz Verlag, Wiesbaden 2019 This PDF file is intended for personal use only. Any direct or indirect electronic publication by the author or by third parties is a copyright infringement and therefore prohibited. Normative and Theological Dissent in Early Zoroastrian Law 249 Also, some medieval Islamic jurists argue that an apostate must be immediately executed, while others recommend various periods of grace, giving the apostate the opportunity to renounce his sins and return to Islam 58 It must be stressed, however, that, while the ninth- and tenth-century Zoroastrian responses correspond in many details with contemporary Islamic decisions, the Nīrangestān probably reflects an earlier layer of traditions, which was in turn adapted by the medieval jurists so as to apply to the case of conversion to Islam, too Compare also the requirement in N 23 4 that the denier of the dēn repeat his denial three times, whether in speech or in thought, to become tanābuhl (and, eventually, margarzān), with the prevailing positions among Muslim jurists that the apostate be asked to repent three times (or for three days) and that he be put to death only after he denies Islam three times 59 N 23 4 On the Avestan quotation The verb used here, apastōit̰, is surprising, since it cannot be from apa-stu- as one might expect (the construction with haca here is the same as in N 23 3 haca … apastūitiš), although corruption of *apa.stauuōit̰ is possible, cf upa.stauuōiš in V 19 22 (the missing syllable may have been lost, e g , at a line break in an ancestor ms ) An alternative solution might be to posit a thematic (aorist?) stem apa-stafrom *apa-stā- “stand back (from),” cf thematic axštat̰ in Yasna 51 4 and fraxšta“stand forth,” e g , imperfect/injunctive fraxštata “stood forth” in Yašt 13 97 (cf Greek aphistēmi < apo-stā-) 60 Such an analysis is supported by Mēnōy xrad 14, 22–23 hu-pādixšāyīh ān bawēd kē … agar ast kas kē az rāh ī yazdān bē estēd ēg-iš wirāyišn padiš kardan framāyēd u-š griftār kunēd ud abāz ō rāh ī yazdān āwarēd “being a good ruler is he who … if there is someone who stands away from the road of the gods, then he orders him to be restored and makes him ‘seized’ and brings him back to the road of the gods ” Here, Pahlavi bē est- + az “stand away from” is the perfect equivalent of apa-sta- N 23 5–6 According to N 23 5, the denial of the dēn must be in both speech and thought If one merely utters a denial of the dēn, but does not deny it in thought, or if one denies the dēn in thought, but does not utter a statement to that effect, he does not become tanābuhl (and margarzān after a year) According to the position attributed to Rōšn in N 23 6, however, even an utterance or thought alone, when 58 See Friedman 2003, pp 121–133 59 See, e g , Abū Yūsuf Ya‘qūb, p 182; Mālik b Anas, vol 2, p 737, no 16; Friedman 2003, p 131, n 62 60 Cf Kellens 1984, p 192 © Harrassowitz Verlag, Wiesbaden 2019 This PDF file is intended for personal use only. Any direct or indirect electronic publication by the author or by third parties is a copyright infringement and therefore prohibited. 250 Yishai Kiel and Prods Oktor Skjærvø repeated three times, renders the denier of the dēn margarzān Rōšn’s reasoning is that a person who repeatedly denies the dēn (even in thought or speech alone) is regarded as griftār “seized” by the sin The question debated by the Zoroastrian jurists in these passages, therefore, is whether a heretical thought alone or an utterance that is not accompanied by denial in thought is sufficient to render a person margarzān While Rōšn argues that an utterance or a thought alone is sufficient to render a person margarzān, other jurists insisted that a thought of heresy must be accompanied by an utterance in order for the sinner to become margarzān The particular legal matter of the status of heretical thoughts is, of course, intertwined with the broader issue of the role of intent and mental cognizance as opposed to verbal utterances and actions in assessing religious merit, on the one hand, and criminal liability, on the other 61 Although legal issues relating to mental awareness and intent emerge in the earliest stages of rabbinic thought and pervade the rabbinic corpus from then on,62 recent studies have shown that certain legal issues relating to intent are conceptualized in the Babylonian Talmud and the Pahlavi literature in a distinctly similar way 63 The positions of Rōšn and his interlocutors on the legal status of thoughts and utterances (or acts) recall those of the Babylonian rabbis Ravina and Rav Hisda, who debated the essential legal question of whether or not thoughts are akin to utterances: Ravina said, this means that a thought is akin to an utterance… Rav Hisda said: a thought is not akin to an utterance 64 N 23 6 On Pahlavi griftār Kotwal/Kreyenbroek understood griftār as “becoming involved (in an offence),” which would also fit the following passage: RFS 1 8 ōy kē … dēn ud dastwar a-passand … ud kas pad-iš wiyābānīhēd ud mardōm az rāh ī rāst passandišnīg abāz dārēd harw wināh ī az-iš uzīhēd pad-iš griftār ud āstārōmand “he whom … the dēn and the dastwars do not please … and somebody is led astray by him and he holds people back from the straight and pleasing path, every sin that arises therefrom—he (becomes) ‘seized’ by it and full of sins ”65 Another passage, however, suggests that we are dealing with the regular griftār “seized”: 61 62 63 64 65 On the role of intent in Zoroastrian law, see Macuch 2003, pp 109–129; Elman 2010 a; Shaked 2012, pp 403–414 The importance of intent and mental awareness in rabbinic literature is widely documented, see, e g , Bazak 2004; Jackson 1971; Balberg 2011; Rosen-Zvi 2011; Schick 2011 See e g Kiel 2013 Babylonian Talmud, Berakhot 20 b See also Berakhot 12 b; Yoma 28 b–29 a, Bava Batra 16 a, 164 b, Shabbat 64 a–b JamaspAsa/Nawabi 1978, p 404; cf Anklesaria 1969, vol 1, p 83 © Harrassowitz Verlag, Wiesbaden 2019 This PDF file is intended for personal use only. Any direct or indirect electronic publication by the author or by third parties is a copyright infringement and therefore prohibited. Normative and Theological Dissent in Early Zoroastrian Law 251 Mēnōy xrad 1 39–41 az pāy pēšārwār ma kun kū pad dād ī dēwān griftār nē bawē u-t ān wināh rāy dēwan ō dōšox nē kešēnd “do not urinate standing, so that you do not become seized by/caught in the law of the demons and the demons do not drag you to hell for that sin!”66 This use is also confirmed by the passage from Mēnōy xrad 14, 22–23 cited above, p 235: u-š griftār kunēd ud abāz ō rāh ī yazdān āwarēd “and makes him ‘seized’ and brings him back to the road of the gods,” as well as Dēnkard 7 1 43 mardōm pad xwāyišn pursišn ī ān tis ēdōn griftār būd hēnd čiyōn nūn pad xwāyišn pursišn ī dēn “people were ‘seized’ by seeking and studying that thing in the same way that (they are) now by seeking and studying the dēn ”67 The proximity of apa-stōit̰/bē estēd and griftār in both the Nīrangestān and the Mēnōy xrad passages strongly suggests the passages are related, perhaps drawing on one and the same phraseology in the oral Zoroastrian tradition N 23 7 According to N 23 7, if a person is “in repentance” for a year after denying the dēn (and not yet margarzān), he is authorized to perform rituals and thereby atone for the tanābuhl sin While a tanābuhl sinner cannot be credited at the final judgment for good deeds performed previously, upon expiating the sin, all the good deeds performed before the sinful act will go back to his account Good deeds performed while tanābuhl, however, and before atoning for the crime do not go to the sinner’s account in the usual way This decision is informed by the following text, which deals with the issue of repentance: Pahlavi Videvdad 7 5268 ay harw ān gyāg kū abestāg paititəm u vacō uruuaitiš u yauuaēca gōwēd ēn az garzišn wināh tanābuhl-ēw bē kunēd ud kerbag ōh estēd That is, in every place one utters the Avesta: “repented, a word of vow, and for ever”—this (is) from the confession of sins69—it cancels one tanābuhl, and the good deeds ‘stand’ in the usual way 66 Anklesaria 1913, p 13 67 Dresden 1966, p [476] The Mēnōy xrad passage also appears to provide the explanation of the Manichean phrase yazdān pand grift hēm “I was seized by the ‘path/advice’ of the gods” (cf hām-pand “companion of the road, fellow traveler”) in M49/II/V/4 (Šābuhragān; cf Boyce 1992), which has sometimes been adduced as an example of the modern Persian past tense construction in early Middle Persian, but which Boyce (1975, p 31) correctly translated as “I was seized by the counsel of the gods ” The evidence of the Mēnōy xrad passage suggests that pand grift hēm is yet another Zoroastrian idiom used by Mani Cf also Šābuhragān 355–356 pad yazdān pand raft hēd ud hām-pand ud hayār būd hēd “you have gone in the path of the gods and have been fellow travelers and friends” (cf MacKenzie 1979, pp 518–519) 68 Cf Jamasp 1907, p 276 69 Cf Shaked 1979, p 264, on māndag garzīdan © Harrassowitz Verlag, Wiesbaden 2019 This PDF file is intended for personal use only. Any direct or indirect electronic publication by the author or by third parties is a copyright infringement and therefore prohibited. 252 Yishai Kiel and Prods Oktor Skjærvø The theology expressed in N 23 7 is also applied by Ādurfarrbay (first half of the ninth-century), hudēnān pēšōbāy “leader of those of the good dēn,”70 to the case of an apostate who converted to Islam, but now seeks to revert to Zoroastrianism: RAF 5371 pursišn: mard ēw kē kustīg bē wišāyēd andar sāl bē mīrēd ud az ān wināh pad petīt bawēd ān wināh bē šawēd ayāb nē passox: ka andar sāl pad petīt bawēd kār ud kerbag (ī) pēš az ān kerd abāz rasēd ud ān ī pas az ān ī petīt kunēd ōh bawēd ud ān ī pas az kustīg-wišādagīh ud pēš az petītīgīh kunēd nē bawēd Question: A man who unties the kustīg (sacred girdle) and dies within a year, but repents that sin: does that sin go away or not? Answer: When he repents within a year, the works and good deeds done before that come back, and those he does after he repents will be in the usual way But those he does after untying the kustīg and before his repentance, will not The trend of apostatizing and reverting to one’s original denomination is well documented in Muslim, Jewish, Christian, and Zoroastrian sources of the early Islamic period 72 According to this passage, leaving the good dēn (to join Islam) is symbolized by untying the kustīg, which Zoroastrians are to wear at all times 73 While the removal of the girdle was considered a symbolic act of apostasy not only in Zoroastrian sources, but also in Christian documents,74 the removal of the girdle clearly had particular significance for Zoroastrians, for whom girding was a religious percept 75 While the particular symbolism of the removal of the kustīg probably belongs to the Islamic period, the theological core of Ādurfarrbay’s response appears to be derived from N 23 7 N 23 8 Here, rad refers not to the official, but to the ‘ritual model’, Av ratu, seen in ratu-friš “satisfying the ritual model,” Pahl radīhā “according to the ritual model,” glossed as dastwarīhā “according to the dastwars” in the Pahlavi 70 71 72 73 74 75 His title may be the Zoroastrian equivalent of the Islamic amīr al-mu’minīn He is said to have participated in interreligious disputations in the presence of the Caliph alMa’mun (815–833) and is remembered as one of the first redactors of the Dēnkard See Anklesaria 1969, vol 2, pp 1–25 JamaspAsa/Nawabi 1978, p 349; Anklesaria 1969, vol 1, p 28 Friedman 2003, pp 143–144; Simonsohn 2013 See, e g , de Menasce 1967 b; Stausberg 2004, pp 9–29; Shaked 2010; Kiel 2012 On the significance of girding in other religious denominations, see Herman 2014 On the removal of the girdle as an act of apostasy, see Hoyland 1997, pp 337–338 On Islamic polemics against the kustīg, see also the Pahlavi Gizistag Abāliš, cf Tafazzoli 1985; Cereti 2001, pp 188–189; Secunda 2010, pp 310–334 © Harrassowitz Verlag, Wiesbaden 2019 This PDF file is intended for personal use only. Any direct or indirect electronic publication by the author or by third parties is a copyright infringement and therefore prohibited. Normative and Theological Dissent in Early Zoroastrian Law 253 Ahunwar (cf dādīhā “according to the law”) Compare Dādestān ī dēnīg 47 20 gōwišnīg petītīg(īh) radīhā ōšmurdan “to enumerate the repentance in speech according to the ‘models’”;76 Pursišnīhā 10 2 Av aiβiiāstō aθa ratufriš “(when) girded, thus it satisfies the ‘model’,” Pahl ka aibyāst kū šabīg kustīg dārēd ēdōn radīhā “when one is girded, i e , one wears the shirt and girdle, in this way it is according to the ‘model’ ” 77 With “breaking the rad,” cf stūr(īh) škastan “break the stūr(īh),” 78 xwēdōdah škastan “break the xwēdōdah ”79 The implications of these statements are unclear, however, and the text may not be in order N 23 9 These far-reaching theological implications of denying the dēn of Zarathustra and Ohrmazd, with whom the dēn originates, or any other part of the Law are strikingly reminiscent of the Islamic definition of apostasy, which centers on the denial of Allah, his prophet Muhammad, or the religious law In Islam, retracting from either part of the shahāda pertaining to Allah or his prophet Muhammad is regarded as a form of apostasy 80 N 23 10 This passage introduces the term meh-dādestānīh (application of a) “greater law/ judgement,” denoting the prioritization of a ‘higher’ law (often pertaining to the preservation of life) over other laws in a case of conflicting religious obligations The term is widely attested in the Pahlavi literature and has been subjected to various interpretations Recently, Maria Macuch has suggested equating this term with weh-dādestānīh (application of a) “better law,” which she interprets as “going beyond the law” or “exceeding the minimum requirements of the law ”81 In several contexts, however, it would seem rather to refer to a ‘higher’ law, that is, one which overrides the regular law The principle according to which the preservation of life takes precedence over the fulfillment of other legal requirements is most clearly articulated in Pahlavi Videvdad 7 71, where it is taught that a woman who has given birth but suffers from fever or severe thirst may consume water despite its inevitable defilement, 76 77 78 79 80 81 After the manuscripts Cf JamaspAsa/Humbach 1971, pp 20–21 E g , Mādayān ī hazār dādestān II 4 28 (Macuch 1981, p 161 n 62) E g , REA 24 3 (JamaspAsa/Nawabi 1978, p 292; cf Safa-Isfehani 1980, pp 177–178) See Friedman 2003, pp 121–133 We would like to thank her for generously making this article available to us See also Macuch 2005 (pub 2009), p 95, and Agostini/Kiesele/Secunda 2014 © Harrassowitz Verlag, Wiesbaden 2019 This PDF file is intended for personal use only. Any direct or indirect electronic publication by the author or by third parties is a copyright infringement and therefore prohibited. 254 Yishai Kiel and Prods Oktor Skjærvø since the preservation of her life is the ‘higher’ law (meh-dādestānīh) 82 Similarly, the Pahlavi texts often refer to “fear for the body” (bīm ī tan) and “death and injury” (margīh ud rištagīh) to indicate life-threatening circumstances, in which a person is authorized to save his own life at the expense of transgressing the law 83 The rabbis similarly maintained that saving a life (‫ )פקוח נפש‬overrides the fulfillment of other religious commandments 84 While this concept has been long acknowledged as a clear expression of the sanctity of life endorsed by both Palestinian and Babylonian rabbis, in three cases, one is expected to give up one’s life and not transgress the law: idolatry, sexual crimes, and murder 85 Thus, N 23 10 appears to say that no appeal to a ‘higher’ law can save one for becoming margarzān for praising a “worse law,” especially, the redactor adds, when it is for material gain He is not certain, however, whether this trumps the principle of fear for one’s body, but another authority (Rōšn?) confirms that he will indeed become margarzān The limits of the general principle of the precedence of life are debated also elsewhere, as we see in a dispute concerning the obligation to carry a corpse out of water in a case of self-endangerment 86 In other words, despite this general principle, there were dastwars who held that in the case of severe transgressions such as heretical utterances (praising another religion), one may not transgress the law even when one’s life is in danger 82 A similar principle is reflected in Pahlavi Videvdad 5 16–21(Jamasp 1907, pp 159–164), as well as in the Zand ī fragard ī jud-dēw-dād (JamaspAsa/Nawabi 1978, pp 448–449), in which Ohrmazd is said to bring rain so as to nourish his creatures despite the fact that it might fall on corpses and defiling substances Ohrmazd, too, seems to follow a ‘higher’ law 83 See, e g , Hērbedestān 2 9, 3 6 (Kotwal/Kreyenbroek 1992, pp 32–35); Pahlavi Videvdad 5 4 (cf Jamasp 1907, pp 144, 149–150; see Elman 2010 a, pp 30–31; Kiel 2011, pp 55–58; Kiel/Skjærvø 2011, pp 9–10) 84 Mekhilta de-Rabbi Ishmael, Masekhta de-Shabta 1 (Horvitz-Rabin 1970, pp 340–341; cf Kahana 2005, p 151); ibid , Nezikin 13 (Horvitz-Rabin 1970, pp 292–293); Mekhilta de-Rabbi Shimon b Yohai, Exodus 21:14 (Epstein 1956, p 171); Tosefta, Shabbat 15:16 (Lieberman 1975, pp 73–74); Palestinian Talmud, Yoma 8:5 45 b; Sanhedrin 8:8 26 c; Babylonian Talmud, Yoma 85 a-b; Shabbat 132 a Shemesh (2013, pp 481–505, and 2009, pp 70–71) discusses this legal principle in rabbinic, Qumranic, and early Christian texts 85 Some rabbis disagreed R Ishmael, for one, held that preserving life overrides even the prohibition of idolatry, as long as it is not in a time of persecution See Sifra, Ahare Mot, Mekhilta de-‘Arayot 14, 86 b; Tosefta, Shabbat 15:17 (Lieberman 1975, pp 74–75); Palestinian Talmud Sheviʿit 4:2 35 a; Sanhedrin 3:6 21 b; Babylonian Talmud, Sanhedrin 74 a; Keritot 19 a 86 See Šāyist nē šāyist 2 79–81 (Tavadia 1930, pp 59–60); Pahlavi Videvdad 6 29 (cf Jamasp 1907, p 220) —Cf also Hērbedestān 19 8–9, where, according to the redactor, a Zoroastrian may teach a heretic in the case of danger of death and injury, while Farrox disagrees (see Skjærvø 2009, pp 489–490) © Harrassowitz Verlag, Wiesbaden 2019 This PDF file is intended for personal use only. Any direct or indirect electronic publication by the author or by third parties is a copyright infringement and therefore prohibited. Normative and Theological Dissent in Early Zoroastrian Law 255 Again, compare a Talmudic debate between two fourth-century Babylonian authorities: 87 It was stated: one who worships idols out of love (of a person)88 or fear: Abaye said he is liable Rava said he is exempt; only if he accepted the idol as his god is he held liable, but if not he is exempt N 23 11 When a person converts “from a worse law to a worse law,” i e , from one non-Zoroastrian law to another, he does not become margarzān according to the redactor Exactly what Wehšābuhr argues (if our reading is correct) is not clear, but the implication seems to be that there is a hierarchy of legal systems even among non-Zoroastrians and that some legal systems are regarded as better than others 89 Similarly, according to Abū Hanīfa, Mālik b Anas, and others, there is no death penalty for converting from one non-Islamic religion to another, since it is immaterial for Islam whether a person belongs to one wrong religion or another Aḥ m ad b Hanbal, however, views the issue of religious conversion between non-Islamic religions from the perspective of the social and economic interests of the Muslim community If a Jew or a Christian converts to an ‘inferior’ religion (e g Zoroastrianism or Manicheism), this person will no longer pay the jizya, the product of his slaughter will now be forbidden to Muslims, and so on This situation cannot be tolerated by the Muslim community and, therefore, a convert who seeks to downgrade his religious affiliation may be subjected to the death penalty Moving up in the religious hierarchy, however, supports the interests of the Muslim community and is thus tolerated 90 The different positions of the Islamic jurists on the issue of converting from one non-Islamic religion to another seem to match the positions in N 23 11 87 Babylonian Talmud, Sanhedrin 61 b; cf Shabbat 72 b; Keritot 3 a 88 This interpretation follows R Shlomo Itzhaqi in his commentary on Sanhedrin 61 b Cf Maimonides, Mishneh Torah, Laws of Idolatry, 3:6 89 Cf the assertion of Gōgušnasp in Pahlavi Videvdad 3 42, 5 38: če andar harw dād-ēw mardōm ahlaw ōh bawēnd čē az tūiriianąm dax́i iunąm paydāg “For people become righteous in every law in the usual way, which is manifest from “(the law?) of the Turian lands” (cf Jamasp 1907, pp 100, 180) In other words, if a certain religious system contains proper laws (in this particular case, the law of avoiding corpse-contamination), a non-Zoroastrian can become (relatively) righteous through that law This position contradicts the positions of Sōšāns and the anonymous redactor, who argue: PV 5 38 ēn az abestāg paydāg an-ēr margarzān hamāg ēdōn bawēd čiyōn ag-dēn “This is manifest from the Avesta: The non-Iranian is margazān; it is all like someone with an evil dēn” (cf Jamasp 1907, p 179; see Elman 2005 [pub 2009], pp 15–26) 90 See Friedman 2003, pp 146–148 © Harrassowitz Verlag, Wiesbaden 2019 This PDF file is intended for personal use only. Any direct or indirect electronic publication by the author or by third parties is a copyright infringement and therefore prohibited. 256 Yishai Kiel and Prods Oktor Skjærvø N 23 12 The chapter concludes with two examples of what Zoroastrians should not do in encounters with “those of different ways” (jud-ristagān): taking the wāj 91 and sacrificing the drōn 92 In the case that there is a contradiction between a religious obligation to sacrifice the drōn and a royal edict issued by the king of kings forbidding the sacrifice, the redactor distinguishes between two different circumstances: if the king says “do not sacrifice any drōn”, one must obey the king; but, when the king says “one should not sacrifice”, one must keep it in mind(?) 93 Here, the former case appears to address a specific occasion hic et nunc, while the latter may refer to this and future occasions A similar issue is raised in the Dēnkard: Dēnkard 6 23394 ān ī ka dahibed pursēd kū drōn yazišn ayāb nē ēg ka bazag pad bazag brīnēnd ēg-iz nē gōwišn kū nē yazišn bē ka ān dahibed mard-ēw framān dād kū drōn ma yaz ka yazēd nē yazišn bē wināh bawēd When a ruler asks: “Ought one to sacrifice the drōn or not?,” then one ought not to tell him not to perform it, even when they cut an evil deed with an evil deed 95 But, when that ruler has commanded a man: “Do not sacrifice the drōn,” if he does, it will not be a ‘sacrifice’, but a sin Thus, if a ruler gives a direct order, his order must be upheld The legal decision in the Dēnkard seems to rely on the former case of the Nīrangestān, in which the ruler merely forbids the sacrifice of the drōn on a specific occasion, but the latter case is not addressed in the Dēnkard 91 See Boyce/Kotwal 1971; Williams 1988; Karanjia 2010 92 On the drōn, see Choksy 1995; Boyce/Kotwal 1971; Jamasp-Asa 1918; JamaspAsa 1985 —A similar matter to that of taking the wāj from and giving it to a religious deviant is whether or not one may study Avesta and zand from, or teach it to, persons who practically or theologically differ from the dēn, see Hērbedestān 18–19 (Kotwal/ Kreyenbroek 1992, pp 76–83); Secunda 2005 (pub 2009) Educational encounters with a broad range of ‘others’, including non-Iranians, demon-worshippers, sinners, and heretics, are discussed throughout the Hērbedestān 93 The meaning of “keep it in the ear” is not certain According to Steingass’s Persian dictionary, dar guš dāštan means “keep in mind, remember ” 94 Dēnkard 6 233 (Dresden 1966, pp 411–412; Madan 1911, p 523; cf Shaked 1979, pp 90–91); cf Dēnkard 3 197 9 (Dresden 1966, p 166; Madan 1911, p 213; de Menasce 1973, p 206), according to which a decision of the ruler is considered to be of a lower rank than religious law See also Jany 2012, pp 48–49 95 Shaked (p 91) suggests the phrase may mean “come what may ” © Harrassowitz Verlag, Wiesbaden 2019 This PDF file is intended for personal use only. Any direct or indirect electronic publication by the author or by third parties is a copyright infringement and therefore prohibited. Normative and Theological Dissent in Early Zoroastrian Law 257 Final remarks The similarity between the Babylonian rabbinic and Zoroastrian discussions of religious dissent need not necessarily point to cultural exchanges between rabbis and dastwars, but these connections at least suggest that the Babylonian rabbis and the Zoroastrian authorities were part of a distinct “intellectual atmosphere” (not shared by the Palestinian rabbis), in which they confronted similar legal issues—whether of practical or theoretical nature—and sought to resolve these issues by considering similar legal taxonomies Bibliography Abū Yūsuf, Ya‛qūb b Ibrāhīm 1352 ah: Kitāb al-kharāj Cairo Agostini, D / E Kiesele / Sh Secunda 2014: “Ohrmazd’s Better Judgment (mehdādestāni ̄h): A Middle Persian Legal and Theological Discourse ” In: StIr 43, pp 177–202 Anklesaria, B T 1969: The Pahlavi Rivāyat of Āturfarnbag and Farnbag-Srōš 2 vols Bombay Anklesaria, T D 1913: Dânâk-u Mainyô-i Khard Bombay Arad, M 2009: Sabbath Desecrator with Parresia: A Talmudic Legal Term and Its Historical Context New York/Jerusalem Asmussen, J P 1965: Xu āstvānīft: Studies in Manichaeism Copenhagen Balberg, M 2011: “Recomposed Corporealities: Purity, Body, and Self in the Mishnah ” (PhD dissertation, Stanford University) Bartholomae, C 1904: Altiranisches Wörterbuch Strassburg Bazak, J 2004: “The Element of Intention in the Performance of Mitsvot Compared to the Element of Intention in Current Criminal Law ” In: H Gamoran (ed ): The Jewish Law Association Studies 14: The Jerusalem 2002 Conference Volume Binghamton, pp 9–15 Boyce M 1975: A Reader in Manichaean Middle Persian and Parthian Téhéran/ Liège Boyce M / F M Kotwal 1971: “Zoroastrian bāj and drōn I–II ” In: BSOAS 34, pp 56–73, pp 298–313 Cereti, C G 1995: The Zand ī Wahman Yasn: A Zoroastrian Apocalypse Rome — 2001: La letteratura pahlavi Milan Choksy, J K 1995: “Drōn ” In: EIr, vol 7,5, pp 554–555 de Menasce, J P 1967 a: “Problèmes des mazdéens dans l’Iran musulman ” In: G Wiessener (ed ): Festschrift für Wilhelm Eilers Wiesbaden, pp 220–230 (repr in: Hoyland 2004, pp 331–341) — 1967 b: “Early Evidence for the Symbolic Meaning of the Kustīk ” In: Sir JJ Zarthoshti Madressa Centenary Volume Bombay, pp 17–18 — 1973: Le troisième livre du Dēnkart Paris © Harrassowitz Verlag, Wiesbaden 2019 This PDF file is intended for personal use only. 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