Zoroastrian Excarnation, Feasibility and Legality

Dr Martin Szarkiszjan, Lecturer at NLS https://www.ntu.ac.uk/staff-profiles/law/martin-szarkiszjan

Diego Delso, delso.photo, License CC BY-SA

Disgust is an evolutionary, protective adaptation. Humans exhibit an intrinsic, instinctual revulsion of entities that are liable to harbour pathogens. Conspecifics, that is members of the same species, often pose a greater risk than members of other species. With humans, this risk is exacerbated by the fact that humans have evolved as pro-social mammals that live in communities of conspecifics where the anthroponotic disease transmission vector is particularly relevant.

Burial processes exhibit a plurality of sacral, religious justification, but also numerous commonalities in terms of accomplishing the insulation of cadavers from the living, whether through inhumation, cremation or excarnation, despite many predating germ theory by hundreds and sometimes thousands of years. Zoroastrian excarnation is a fascinating example because of the stark difference compared with cremation and inhumation, and because of recent doctrinal and ecological challenges.

Zoroastrianism

Zoroastrianism is an ancient Iranic religion with a cosmic dualism between the concepts of Asha and Druj. Asha and Druj are frequently translated or described as Truth and Falsehood respectively, but they do not represent epistemic or propositional truth or falsehood. Rather, Asha is Order and Druj is Disorder or Distortion. A possible cognate concept to Asha is Rta in the Vedic branch of the broader Indo-Iranian religious continuum where it refers to a Cosmic Order. These concepts are central to the Zoroastrian value system and even relatively minor actions are thought to foster the one or the other. Cadaveric disposal is no exception, and action aligned with Asha is seen as part of a cosmic conflict against Druj, which means that within the Zoroastrian cosmogony proper funerary mechanics are not only personally but cosmically important as well.

The elements Earth, Fire, Water and Air are considered sacred and aligned with Asha. By contrast, the malign pestiferous force known as Nasu is aligned with Druj. It represents physical and spiritual decay. The personification of Nasu is the demonic Druj Nasu, a malignant entity that invades the cadaver immediately upon death, making cadavers intrinsically impure. Due to this impurity, inhumation, water burial and cremation are impermissible in Traditional Zoroastrianism to prevent contamination of the sacred elements by the impure cadaver, inhabited by Nasu.

The traditional Zoroastrian means of disposing of cadavers in a ritually appropriate manner is excarnation by vultures.

Putrefaction is seen as the work of Nasu. The objective of Zoroastrian burial practice is to excise the impurity, protect the sacred elements and purify the afflicted biomass. Cadavers are exposed within a Dakhma or Tower of Silence, an elevated open structure with an ossuary in its centre, where cadavers are excarnated by vultures of the Gyps genus, e.g. Gyps fulvus in Iran or Gyps indicus and others in India. These vultures are gregarious, obligate detritivores, and they can rapidly excarnate cadavers before e.g. corvids, canids or invertebrate detritivores and microbes can exacerbate ritual impurity.

For thousands of years (with first attestation by Herodotus in the 5th century BCE) this form of burial had proved to be an ecologically and infrastructurally convenient form of burial in the climates and ecosystems where Zoroastrians have predominantly lived. However, historic, cultural, demographic and ecological changes have resulted in significant, possibly insurmountable impediments in practicing excarnation compliant with the Vendidad, the governing clerical text on the matter.

The Vendidad or the Law Against the Daevas is a clerical code of ritual purity that describes how ritual purity can be attained, maintained and lost. While it forms part of the broader corpus of Zoroastrian sacred texts the Avesta, the Vendidad is a more recent auxiliary work that serves as a procedural clerical aide in matters of ritual purity. The Gathas serve as the foundation and central text of the Avesta and predate the Vendidad by approximately 500-700 years.

Zoroastrianism consists of Traditionalist and Reformist Zoroastrians, and the latter hold more permissive views regarding funerary practices and other doctrinal and theological matters. The reformist movement arose in the 18th and 19th centuries as part of a theological revival of the Gathas, Hymns attributed to Zarathustra. The primacy of the Gathas places theological and practical emphasis on ethical abstraction, personal discernment and accountability over prescriptive ritual and legalism and many Reformists reject the prescriptive obligation to undertake excarnation as non-Gathic and therefore not obligatory.

Modern Issues with Excarnation

Even in geographic regions where the ecosystem would traditionally permit rapid, clean excarnation, such as in Iran and India, populations of the Gyps genus have dramatically declined due to severe visceral gout induced by the consumption of cadavers containing diclofenac. Even trace amounts of diclofenac cause fatal visceral gout in vultures and combined with persistent habitat loss and the slow reproduction of Gyps vultures, recovery of Gyps populations is not anticipated in the near or intermediate future.

Alternatives, like solar collectors to accelerate decomposition, have been suggested. As a matter of ritual purity, the objective of defleshing is the prevention of putrefaction and the swift purification of polluted soft tissue by vultures. Solar collectors elevate cadaveric temperatures, causing desiccation akin to mummification in arid and liquefaction in humid environments. Neither outcome is ritually appropriate.

Legality in the United Kingdom & Human Rights

Zoroastrian excarnation is not permitted in the United Kingdom. Section 46(1) of the Public Health (Control of Disease) Act 1984 states that where no suitable arrangements are made for the disposal of a cadaver, the local authority must cause it to be cremated or buried. Per s.47 the Secretary of State can ‘make regulations imposing any conditions and restrictions’ regarding funerary practices other than cremation or burial ‘which may appear to be desirable in the interests of public health or public safety.’ It is improbable that excarnation would be viewed as such.

The leading case in the broader context of atypical funerary cadaveric disposal arrangements is R. (on the application of Ghai) v Newcastle City Council. This case concerned the request by a Hindu man to undergo open cremation following death. While cremation, the focal point of Ghai, is not completely analogous, the broader discussion concerning the European Convention on Human Rights is particularly relevant to the question of the legality of excarnation.

Ghai concerned the application of the test in R. (on the application of Williamson) v Secretary of State for Education and Employment to ascertain, for the purposes of Article 9(1) ECHR, whether the conduct would be a manifestation of religion or belief. On first instance in R (Ghai) v Newcastle City Council Cranston J had argued that the lack of universality on part of Ghai’s co-religionists in the UK would prevent the recognition of open cremation as a manifestation of religion. The Court of Appeal had rejected this position on the basis that doctrinal universality was not a requirement, and it sufficed that the belief was sincerely held.

In principle, if a Zoroastrian individual sincerely held the belief that only excarnation is doctrinally permissible, it is logical to think that as with Ghai, this sincere belief would establish that the relevant behaviour is a manifestation of religion, notwithstanding the existence of a body of Reformist Zoroastrians who hold divergent views.

The Court of Appeal accepted that Ghai’s belief was sincerely held, and the intended manner of cremation would therefore be a religious manifestation. However, this is a qualified right with limitations permissible in protection of ‘public order, health or morals.’ The Court of Appeal in Ghai did not resolve this tension in the case and opted to furnish a congruent statutory interpretation to demonstrate that UK law already permits open cremation, within a walled, roofless structure.

Ghai is concerned with a doctrinally specific variant of a permitted funerary disposal method: cremation. Funerary excarnation is prohibited in all its forms, but comparison with open cremation can be used to draw inferences about the treatment excarnation might be met with, in the same context explored in Ghai. While the cremation of a cadaver over an open air pyre results in the emission of harmful airborne chemicals, the decomposition and eventual liquefaction of a cadaver in the humid climate of the UK is a considerably greater public health hazard.

Cranston J also advanced arguments regarding public order and morality, stating that the sight of the process might cause offence to those who perceive open cremation. By analogy, the prospect of gradual putrefaction of a cadaver in a temperate maritime climate, on a raised platform, would weigh heavily against permission.

Slow putrefaction is likely contrary to the objectives and theological and jurisprudential basis for excarnation in Zoroastrianism. Excarnation in the UK is unlikely to satisfy the doctrinal requirements of excarnation as a funerary practice within Zoroastrianism precisely because the climate and ecosystem are not suited to prevent slow putrefaction. Art.9(1) does not require doctrinally valid and congruent belief, but the inability to achieve ritual purity through excarnation makes challenging the prohibition considerably less attractive, other than by those with doctrinally divergent personal views of ritual purity.

This legal question is yet to arise in practice. Currently, most Zoroastrians in the UK are buried and spiritually quarantined from the Earth using stone-lined graves in the Brookwood Cemetery. However, in the not too distant future the lawfulness of preventing Zoroastrian excarnation funerary practices in the UK could become a matter for the British courts.

Further Reading:

Peter Cumper and Tom Lewis, ‘Last Rites and Human Rights: Funeral Pyres and Religious Freedom in the United Kingdom’ (2010) 12 Ecclesiastical Law Journal 131.

Curtis V, Aunger R and Rabie T, ‘Evidence That Disgust Evolved to Protect from Risk of Disease’ [2004] Proceedings of the Royal Society of London. Series B: Biological Sciences

Daruwalla K, ‘Evolution of the Zoroastrian Priestly Rituals in Iran’ (2017) 10 The SOAS Journal of Postgraduate Research

De Jong AF, ‘Purity and Pollution in Ancient Zoroastrianism’, Purity and the Forming of Religious Traditions in the Ancient Mediterranean World and Ancient Judaism (Brill 2013)

Eastabrooks RLK, ‘Burials’ in Todd K Shackelford and Viviana A Weekes-Shackelford (eds), Encyclopedia of evolutionary psychological science (Springer International Publishing 2021)

Foltz R and Saadi-nejad M, ‘Is Zoroastrianism an Ecological Religion?’ (2007) 1 Journal for the Study of Religion, Nature & Culture 413

Hintze A, ‘Change and Continuity in the Zoroastrian Tradition’ (2012) 22 An Inaugural Lecture Delivered on

Hintze A, ‘Zoroastrian Afterlife Beliefs and Funerary Practices’, The routledge companion to death and dying (Routledge 2017)

Oliveira MAS and SILVA S, ‘Funerary Practices in Archaeology: Pluralities & Heritage’ (2021) 9 International Journal of Archaeology 62

Sholevar GP, ‘Zoroastrian Religion: Zoroaster—the First Prophet’ in H Steven Moffic and others (eds), Eastern religions, spirituality, and psychiatry: An expansive perspective on mental health and illness (Springer Nature Switzerland 2024)

Skjærvø PO, ‘The Gathas, a Forgotten Masterpiece’, A companion to world literature (John Wiley & Sons, Ltd 2019)

Skjærvø PO and Sheffield DJ, ‘Zoroastrian, Scriptures’ in Zayn R Kassam, Yudit Kornberg Greenberg and Jehan Bagli (eds), Islam, Judaism, and Zoroastrianism (Springer Netherlands

2018)

Solanki K, ‘Buried, Cremated, Defleshed by Buzzards? Religiously Motivated Excarnatory Funeral Practices Are Not Abuse of Corpse Notes’ (2016) 18 Rutgers Journal of Law and Religion 350

Subramanian M, ‘Towering Silence: For Millennia Zoroastrians Have Used Vultures to Dispose of Their Dead. What Will Happen When the Birds Disappear?’ (2008) 19 Science & Spirit 34+

Vazquez P, ‘A Tale of Two Zs: An Overview of the Reformist and Traditionalist Zoroastrian Movements’ (2021) 25 Himalayan and Central Asian Studies 230

Zykov A, ‘Zoroastrian Funeral Practices: Transition in Conduct’ [2016] Threads of Continuity: Zoroastrian Life and Culture. New Delhi: Parzor Foundation

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R. (on the application of Williamson) v Secretary of State for Education

R. (on the application of Williamson) v Secretary of State for Education and Employment UKHL 15 [2005] 2 A.C. 246

R. (on the application of Ghai) v Newcastle City Council [2010] EWCA Civ 59

R (Ghai) v Newcastle City Council [2009] EWHC 978 (Admin)