1. The Laws of the ancient Persians
2. Religion and Divinity as the Foundations of Law
3. The State and the Sovereign
4. Administration of Justice
1) Early Fame of the Laws of the Persians The First Lawgiver
The Laws of the Medes and Persians have acquired universal fame; and the following pages will show how fully deserved that fame was. Iranian history starts in the beginnings of human life on earth, and yet the first Iranian ruling house was a dynasty of lawgivers. Hence Iranian law began to take shape ever since humanity started forming itself society, and indeed that happened far far away in the past when we consider that man has been living on this globe for over ten million years, or probably for much more many ages than that huge period of time.
Although the rulers of the first ancient royal house of Iran have all been distinguished as lawgivers, the first personage to have rendered special service in framing and codifying laws was Prince Uruvakhshaya, the brother of the immortal hero Krsaspa (Garshasp) and the son of King Thrita, the father of medicine. They were the immediate descendants of great Yima, the brilliant antediluvian monarch. This definitely shows that Law started in Iran in the beginnings of human history.
It is apparent that customs and laws would have to be recognised immediately the primitive men formed themselves into social units. Then wise men would appear and give them laws as necessity arose. Hence apparently jurisprudence should have a very ancient history in all annals of humanity, and every civilized nation of antiquity must have had a fair system of laws to guide and govern it.
Some Ancient Codes of Law
So far however the most ancient code of laws is understood by Western scholars to be the code of Hammurabi, an ancient king of Babylonia, who ruled about 2100 B.C. Babylonia, having an ancient culture, was in a fairly advanced state of civilization even at that early date; hence Hammurabi’s Code was only a revised and systematized collection of Babylonia’s old laws. But while some of her laws were sensible measures, the principle of retaliation vitiated the whole system and its imposition of vicarious punishments violated the spirit of pure justice.
The Code of Moses is supposed to have followed; but Sparta in ancient Greece probably had the next system of codified law in known history; for, in B.C. 900, Lycurgus, the king of that country, gave his people a new set of laws. In Greece itself Dracon drew up a sever code of laws at Athens in 621 B.C. Solon who followed however gave that state a more humane system of legislation.
Roman laws are said to have started with Romulus who is supposed to have lived about the year 753 B.C. Numa and Servius Tullius were the next Roman legislators. About 451 B.C. the Decemvirs gave Rome laws which were rather rigorous. The Twelve Tables which the Decemvirs had framed continued as standard Roman law until Emperor Hadrian promulgated the Perpetual Edict which was a fair code prepared by the lawyer Salvius Julian. The emperors who followed him gave new codes or imposed new laws, but the principal fame of having given a final shape to Roman law belongs to Justinian, the contemporary of Xosrow the Great of Persia who was more popularly known as Anoshervan. At Justinian’s command a commission under the lawyer Tribonian brought out those works of law for which the emperor’s memory has been kept fresh up to the present day.
The Ancient Laws of Iran: Their Wide and Varied Scope
It is apparent however that the more ancient civilizations of Iran, China, India and Egyptshould have had earlier systems of law. The laws of the Vendidad among the Iranians and the laws of Manu among the early Indians are well-known. But it is not equally known that the laws of the Vendidad formed only a fragment of the vast jurisprudence of the ancient Iranians. Since the days of Zarathushtra when human knowledge was raised into the sanctity of religion and formulated into twenty-one Nasks or Holy Books, one third of that great knowledge comprised Law, one-third Science, and one-third pure Religion.
The Books of Law dealt with Court and Magisterial Law, Law of Accusations, Law for Injuries to Person and Property; Laws pertaining to Theft, Misappropriation and Cruelty to Animals; Laws applying to Soldiers and Military Organisations; Church Law, Family Law and Law of Pedigree and Descent; Law applying to Medical Practice; Law of Business Transactions in relation to Property, Animate and Inanimate; Laws relating to Debt and Interest, the other Mutual Obligations; Laws of Purity, Health and Sanitation, Private and Public; Laws applying to the Cultivation of the Soil and Colonizing Schemes; and finally, the Law of the Heavenly Kingdom and the Divine Government of the Universe.
It will thus be seen that the matter dealt with in the following pages is concerned with only a few portions of the above vast field of Law.
2) Religion and Divinity as the Foundations of Law
Law founded on Religion and Divinity in the System of Zarathushtra
Law thus forms an essential part of the religious system of the Zarathushtra, as full one-third of their sacred literature comprises Law in its various phases and spheres. Indeed Law in a wider sense would coincide with Religion itself, for essentially the domain of Religion covers the universal field of Law. Hence it is that as Science too stands fully on the foundation of Law, Science constitutes the middle third of the Religious system of the Zarathushtrians and forms an essential link between God and Man. This is little to be wondered at when we know that Law abidingness is one of the most meaningful of the names of the Supreme Being in Zarathushtrian Theology.
So Aim of Law would be to promote Religion and Divinity in Mankind which would be furthered by the Spread of Learning and Knowledge among Men
Law having thus been enthroned by the Zarathushtrians on the lofty pedestal of Religion and Divinity, Farrukh-Mart Vahram, the learned compiler of this work, rightly observes that the aim of Law is to further the Mighty Word of the All-Knowing Creator and to defeat Falsehood, and thus to compass in the end the immortal, the illustrious and the most Brilliant and Perfect Sovereignty of the Kingdom of God. This would be possible, he adds, because Law-abidingness is deeply imbedded in the very nature of Humanity, and so the Divine Being has created the world and implanted man in it to live the Live of Righteous Progress; and this instinct of Law-abidingness is to prove useful and valuable in the distant end by means of knowledge and education, and discrimination and enlightenment and learning.
Thus the great Farrukh-Mart and the enlightened men of Iran of his time acknowledged and followed the wise principle that the spirit of Law-abidingness would progress in the world by educating the masses and spreading learning, enlightenment and science among them. Indeed the world would be the better and the happier if it followed this belief and practice of the ancient Iranians.
Knowledge of Terrestrial Experience is bounded by Limits which Religion removes
While real knowledge gives enlightenment and promotes law-abidingness, Farrukh-Mart rightly observes that knowledge that can be obtained by mere planetary experience is bounded by limits, whereas knowledge which is boundless and eternal can be obtained only be the higher guidance of the Divine Impulse. Hence he would maintain that Law should always be subservient to Religion if it is to have an eternally moral basis. Indeed he proceeds to say that there can be no right perceptain of things, no true knowledge about facts, and no recognition of real duty in man if he is devoid of religious sense or knowledge. Right conduct therefore depends on that higher knowledge, for knowledge in all its splendour can be revealed by reflection and meditation on the Holy Word, and research in all fields opened by them. Hence human salvation would depend on temporal as well as spiritual knowledge, and the subjection of Desire to the Good Reason in accordance therewith; and indeed as this last constitutes Law-abidingness, Law can never be independent of Religion. Religious principle therefore should always underlie the basis and the application of Law.
3) The State and the Sovereign
Parliamentary Checks on the Sovereigns of Ancient Iran
The Grand Senate and the Popular Assembly
The Iranians were a free people, and although their Sovereign had great prerogatives he could not misuse them with impunity. The Grand Senate in which the Nobles, the Prelates, the Grand Marshals and the Imperial Ministers and Secretaries sat, was always a power which the Great King respected and had constantly to consult. The Magistan, the imperial parliament of the Arsacides, appears to have continued even under the Sassanians in some form, for besides the Grand Senate, the great Popular Assembly figures more than once in the graphic descriptions of events in the Shah Nama which notes that Iran’s Parliament used to assemble in the palace of “Gulshan i Shadagan” or “Paradise of the Blest.”
While setting the claim of Bahram V to the throne, in deposing Kobad, in deposing Hormaz, for considering whether Bahram i Chubin could be elected to the throne of the Sassanides, and in the impeachment of Xosrow the Conqueror, the Grand Senate had always assembled to decide the issues. It is not clear whether the great Popular Assembly also had always met simultaneously; but there are incidents which show that that great body was the supreme power in the state. The Grand Senate, for instance, had opposed the accession of Bahram V to the throne, but he had got it by the superior vote of the Popular Assembly which had decided in his favour. Similarly when Kobad had listened to maligners and got executed the great hero Sufrae or Sukhrae who had saved the nation from the White Huns, both the army and the people had risen against him and voted for his dethronement, and that vote was fully carried out.
The Great King’s Responsibility to the State
His Submission to Trial and Judgement
Thus not only was the Great King dependent on the vote of the Grand Senate and the Popular Assembly for confirmation on the throne, but he was likewise responsible to them for good government and liable to be tried and deposed by them if he failed in that supreme function. And while he was made independent of the common law and its courts, he was not free from duties he was bound to fulfil towards the state and towards the people as law-abiding sovereign. Hence it was that when Papak, the Inspector General of the Imperial Forces of Iran under Xosroe the Great, ordered a grand review of the army, even the Great King had to attend it and fulfil his role in that national function alongside his subjects.
What is still more astonishing is that when the Great King granted public audience in the open to all his subjects on the Nowruz and Mihrigan days, the humblest members of the population had the privilege to present to him petitions and complaints which might be against the highest personages in the Empire including the Sovereign himself. Both by law and by disposition he was most solicitous to see that no was obstructed in doing so, and a herald pronounced the direst consequences to any one attempting such obstruction.
If among the petitions and complaints the Great King thus received, a complaint was presented against himself, he immediately get down from the throne on reading it, took the crown from his head and placed it on the empty throne, and turning to the Supreme Spiritual Lord who sat beside him, handed him the complaint on knees and begged him to hold inquiry in the case and pronounce an impartial judgment. If this was pronounced against the Great King he immediately had to make amends to the wronged party before wearing again the crown and resuming the throne.
His Grand Example was a Warning to the High Officials and Magnates of the Empire
This grand example was a warning to all the great personages in power in the Empire to behave justly with those under them, and promptly to rectify their also acts whenever any wrong on their part was brought to their notice. Indeed there are instances of failure in this having been visited with the supreme penalty. The Grand Marshal of the Marches in Azerbaijan had been appointed to rule that province in the days of Xosore the Great. Through the instances of a good old woman who had presented her petition with her own hands to that great monarch, it was found on a careful inquiry that that governor had amassed a huge fortune by a tyrannous and unjust rule. At the instances of the Great King, the Grand Senate sat in judgment on that ruler, and finding him guilty, pronounced on him the capital punishment, which was forthwith executed.
4) Administration of Justice
Grave Responsibility of those who sat in the Judgment Seat
It appears that all laws were enacted by the Imperial Legislature, and promulgated by the Decree of the Great King.
While no one was allowed to defy or frustrate the principles of justice, severest penalties were held out to those personages who sat in judgment and violated its sanctify by an intentional miscarriage of justice. This rule prevailed in Iran from the days of the Achaemenian Empire and earlier, and was scrupulously maintained throughout the Sassanian sovereignty.
Not only was the Judge thus warned against an intentional miscarriage of justice, but he was also instructed to maintain with the greatest firmness absolut impartiality in balancing judgment between the parties standing in litigation before him, and not to allow himself to be swayed by the smallest inclination towards any one side. He was thus to cast out all consciousness of self in the judgment seat, and it for strong human reasons and unusual circumstances he felt any prejudice against the accused, he was to pass the case on directly to the higher court, and not handle it himself.
The courts of Justice in the Empire
It appears that courts were dispersed throughout the Empire and in every canton, town and fortified citty, to render justice easy and prompt for the litigants and the wronged persons. Apparently the Supreme Court was that of the Sovereign himself, but he would no doubt decide cases with the help of the Chief Judge, the Lord Advocate and the Primate who was always well-versed in the whole law of the realm. Ordinarily however the Court of the Lord High Chancellor was the Supreme Court in all lay matters, and of the Primate in all disputes connected with Religion. Thus, beside the ordinary courts ecclesiastical courts presided over by the Dastur or Mobad were equally dispersed throughout the Empire, and probably provided a cheaper medium of obtaining justice. In all matters however which were not of a purely religious nature, and in the supreme direction of justice or in the keeping of the records of justice, the Chief Judge of the Empire had the highest authority.
Old Iran’s Learned Judges and their Duties
In the Roman Empire the judge was not always well versed in law, and hence in such cases individuals who knew law well were appointed there to help the judges. In Old Persia however judges and magistrates had to know law very perfectly themselves. Their various duties and functions described even in this work show it; and indeed they had often to explain law themselves to the parties or their counsels.
If a party in a case was represented by the lawyer, the judge or the magistrate, as the case might be, was first to be that he was appointed in proper form. He had them to consider whether he had the power to hear the case, and whether a case required an urgent hearing. Even when he had not that power, he could look into the prima facie of the plaint brought before him and could refuse to pass it on to the proper court if he found it groundless.
In cases properly to be tried by his court the judge or the magistrate had to see to the oath being properly administered to the parties. He had to examine the plaintiff or the complainant as to the statement of the grievance and to note down his replies. If in that preliminary inquiry no ground could be seen for drawing up a case against the defendant or the accused, he had to discharge him honourably.
Even when facts appeared quite obvious against the defendant or the accused, the judge or the magistrate had to make out a definite case and hold proper inquiry. He was to assure himself about the identity of the persons and things produced before him, and the extent, manner and circumstance of the commited act, by direct facts as well as evidence. He was likewise to examine identification as to a person’s name and deposition before making up a charge. He was also impartially to grant the fair request of any of the parties.
In criminal cases, the magistrate had first to examine the inquiry papers submitted to him and then carefully to examine the time of the act, the time of arrest, the time for which one was kept in custody and the time when he was preduced in court, and whether the case was bailable or not. Thus while he would searchingly examine the parties suing justice, he was equally solicitous to see that the police had not transgressed their powers or were not attempting a miscarriage of justice.
Bench of Judges and Assessors
Examination and Preservation of the Judgment Papers
In more serious cases two or more judges sat together and when they were more than two the decision of the majority settled the case. This practice would be usual in all grave trials, but a hint elsewhere given suggests that assessors too helped the judge in certain cases.
It is noteworthy that judges and all other presiding offices at courts had to forward the judgment papers to the Board of the Lord High Chancellor.
Contempt of Court: Instances of Contempt
Severe Dealing with Persistent Contempt
Any Contravention of the court’s order would amount to contempt of court, and the aggressive party would be dealt with greater or less severity according to the degree of the heinousness of the act.
Thus, for instance, when a person would claim a property which another was holding and would use force to eject him from possession, and the other seek the court’s help, and the court would order the claimant to stop action until it investigated the two parties respective claims, then the claimant would have to obey that order. The court would also command the assertive claimant to deposit in court an amount as security against his asserting the claim before the court’s decision in the matter.
If, notwithstanding the court’s order, the claimant would still assert his claim with attempt to eject the other claimant from his possession, that security deposited by him in court would be confiscated. If he still persisted and made a third attempt, his propriety right in the property would be forfeited, if he really had one, or he would otherwise be punished with due severity by the court.
It is apparent that in all other cases of contravention of court’s commands, the culprit would always be dealt with in a similar exemplary way.
Lawyers and Their Appointment
Their Fees could not be Excessive
Lawyers were regularly employed in ancient Iranian courts. Their appointment was to be formally recognized by the court, and was to be made by clients in a way as to leave no doubt. They were not allowed to argue contrary to their clients’ statements, nor to speak irrelevantly. Clients engaging lawyers could absent themselves from court in cases in which the penalty would not exceed an ordeal or a fine; but in such cases the court’s action was binding on such clients. They were however bound to attend if the opposite party insisted that they should do so. Each party was to appoint his lawyer distinctly, but one lawyer could be appointed by several defendants or accused jointly, and apparently also by several plaintiffs or complainants if they were concerned in an identical case.
A lawyer who was appointed after the case had proceeded to some extent, or to replace another, had to take up the case just at the point where it had proceeded. With the appointment of a new lawyer however the client had to take oath a new if the circumstances required it. Lawyers could not charge their clients excessively and even in prolonged cases of property dispute their fees were not to exceed 22 to 30 per cent of the property’s value, although they would be much less in ordinary cases, and only 12 per cent when the property was very small. If a lawyer charged so excessively as 75 per cent of the value of the property in dispute, he incurred a penalty which might be anything up to 18000 Dirhams according to the gravity of the offence.
Abstracted from : The Laws of the Ancient Persians, S. J. Bulsara, Bombay, 1937