When a man takes an oath (Issue 3)May 5, 2011 No Comments
When a man takes an oath
By Kevin H. Govern, Associate Professor, Ave Maria School of Law
Contributor | Naples, Florida
Article featured in Issue 3 of Maria News Magazine
On 14 April 1534, St. Thomas More was summoned to Lambeth to take an oath under the Act of Succession; where on his refusal, he was committed to the custody of the Abbot of Westminster. Four days later he was removed to the Tower, and by the following summer, he was martyred.
St. Thomas More sacrificed his life in an effort to remain “the King’s good servant, but God’s first,” refusing to alter the order of his allegiance if only by words (2). The trials he faced demonstrate but one instance of the personal and spiritual connection that binds an individual to his or her oath, and the extensive prescriptions and proscriptions of truth-telling and oath-taking remain an important facet of many systems of belief. This article will review a bit of the history behind Christian sacraments, along with the similarities and differences between the Judeo-Christian notions of oath-taking and those of Islam, and the significance of such differences in regard to current policy considerations and issues within the U.S. legal system.
As far back as early Roman civilization, an oath has been acknowledged as invoking a higher authority to witness an individual’s statement. This distinguishes the idea of an oath from that of a mere promise, granting it greater significance based on both its sacred nature and the magnitude of the consequences faced if it is not maintained. While a promise is limited by certain boundaries, an oath represents an ongoing personal commitment with serious implications, placing a tremendous emphasis on the importance of an individual’s word. A Roman citizen, for example, could only become a Roman soldier via an oath of allegiance, or sacramentum. After this allegiance had been sworn, he could only be released from the sacramentum by two things: death or demobilization. Further, without taking this oath, a Roman citizen could not gain the authority granted to a soldier, including the ability to free oneself from the constraints of their conscience and from personal responsibility for their actions. Once an oath of allegiance had been taken, a Roman soldier, acting at the will of the General, could claim a defense of “superior orders” such that as the General’s agent, he would bear no responsibility for the actions he would commit for the General. Even the garments worn by a legionary, a blood red tunic, were intended to denote that the blood of the vanquished would not stain him (3).
It wasn’t until the time of the governor Pliny in roughly 112 (AD), that the term “sacrament” was first applied to Christian practices. It is believed that Pliny misunderstood Christian sacraments to be oaths not to commit crime (4). The Greek mysterion, or divine plan, was translated into the Latin sacramentum, and the practices of Baptism and Eucharist became designated as sacraments. In addition to the Judeo-Christian traditions of oath-taking (Genesis 21:23-24; Joshua 2:12, 23:7; 1 Samuel 30:15; 2 Samuel 19:7; 1 Kings 2:42; Psalm 63:11; Jeremiah 12:16; Amos 8:14; Zephaniah 1:5; Deuteronomy 6:13), consider the following passage pertaining to vows and the significance of King Solomon’s own word from Ecclesiastes 5:2-7:
“Be not rash with your mouth, nor let your heart be hasty to utter a word before God, for God is in heaven and you are on earth. Therefore let your words be few. For a dream comes with much business, and a fool’s voice with many words. When you vow a vow to God, do not delay paying it, for he has no pleasure in fools. Pay what you vow. It is better that you should not vow than that you should vow and not pay. Let not your mouth lead you into sin, and do not say before the messenger that it was a mistake. Why should God be angry at your voice and destroy the work of your hands? For when dreams increase and words grow many, there is vanity; but God is the one you must fear.”
Consider, too these words of wisdom from James to those nascent followers of Christ, instructing them to follow both the letter and the spirit of the law in their word and deed:
“But above all, my brothers, do not swear, either by heaven or by earth or by any other oath, but let your ‘yes’ be yes and your ‘no’ be no, so that you may not fall under condemnation.” (James 5:12).
Christ’s exhortations to keep one’s word echoed the divinely inspired wisdom of prophets and wise men before the coming of the Savior:
“But I say to you that for every idle word men may speak, they will give account of it in the day of judgment. For by your words you will be justified, and by your words you will be condemned” (HYPERLINK “http://bibletools.org/index.cfm/fuseaction/Bible.show/sVerseID/23526/eVerseID/23526″Matthew 12:36).
An emphasis on keeping one’s oath is common among many religions; however, the presence or absence of this characteristic in the Islamic faith has recently been a topic of debate. Islam, as a religion and philosophy, is based upon the belief that God (Allah) transmitted knowledge to Muhammad (570–632 AD) and other prophets. No oath is to be taken lightly by any Muslim, and all should be done only in the name of Allah, lest the oath-taker commits shirk, or apostasy, for which the penalty is death. Nonetheless, non-Muslims considering the Muslim perspective of oath-taking (and breaking) may view it as being “voidable” insofar as impossibility that prevents adherence to the oath can be seen as excusing performance. This perspective has caused some non-Muslims to question the credibility of oaths taken by those who proscribe to the Islamic faith, as evidenced by recent controversial events. In early 2007, for example, Keith Ellison, the first Muslim member of Congress, was permitted to swear in on a Quran rather than the Bible. Those opposed to this action cited several passages of the Quran in an effort to denounce the Islamic conceptualization of an oath as running contrary to fairness, human rights, and a democratic system of government (6). One passage commonly utilized to support this argument is Surah 5:89, which instructs Muslim individuals that a futile oath may be disregarded and a deliberate oath expiated. One translation of this passage reads:
“Allah will not call you to account for what is futile in your oaths, but He will call you to account for your deliberate oaths: for expiation, feed ten indigent persons, on a scale of the average for the food of your families; or clothe them; or give a slave his freedom. If that is beyond your means, fast for three days. That is the expiation for the oaths ye have sworn. But keep to your oaths. Thus doth Allah make clear to you His signs, that ye may be grateful” (7).
Another passage cited to is Surah 2:225, which states that “Allah will not call you to account for thoughtlessness in your oaths, but for the intention in your hearts; and He is Oft-forgiving, Most Forbearing.” Those opposed to using the Quran for oath-taking procedures have argued that the Islamic faith extends beyond personal spirituality and proscribes notions of social and political significance as well (8). References have been made to Muhammad dissolving his formal treaty with the pagans at Mecca in support of this claim. In regard to this action, the Quran states that “freedom from obligation [is proclaimed] from Allah and His messenger toward those of the idolaters with whom he made a treaty.” (Surah 9:1).
The opposing viewpoint on this issue also received much attention in 2007, when a case decided by Wake Superior Court Judge Paul Ridgeway permitted Muslim individuals to swear on the Quran prior to serving as a witness in any North Carolina court. The case allowed not only the use of the Quran, but also other religious texts, such as the Hebrew Bible. In support of his decision, the judge noted that “the highest aim of every legal contest is the search for truth” (9). When considering this viewpoint it is important to note that many Muslim traditions prohibit swearing by anything other than the name of Allah, and that such oaths may even be viewed as Haraam, or forbidden (10). When viewed in conjunction with the Federal Rules of Evidence, which provide that an oath should be “administered in a form calculated to awaken the witness’ conscience and impress the witness’ mind,” it becomes evident why the use of the Quran may be viewed by some as best furthering the truth-seeking interest of the court (11). In addition, an examination of passages from both Judeo-Christian and Islamic texts reveals that comparable ideas on the subject of maintaining one’s oath do in fact exist across religions, specifically at a personal level. Both texts instruct their followers to speak the truth, highlighting the spiritual consequences of not adhering to this rule. Surah 48:10, for instance, states that “any one who violates his oath does so to the harm of his own soul,” a notion similar to that expressed in Matthew 12:36 that “for by your words you will be justified, and by your words you will be condemned.”
Insight into the cross-cultural emphasis on personal responsibility can be found in the origins of oath-taking and their historical relation to the Christian sacraments. This may perhaps be best articulated by the adage sacramenta pro propulo, or “sacraments exist for people,” which, as expressed by one author, conveys the idea that “sacraments are intended to better humans as human” (12). Among the varying definitions of an oath across religions, consistency may be found in the common desire among all to maintain and uphold the sanctity of their faith. In a discussion of St. Thomas More’s life as a “servant of the truth,” Yves Congar writes, “for this sacrament […] we have less resources than for any other reality, because our conviction of its truth depends upon faith alone” (13).
(I) Bolt, Robert. A Man For All Seasons. 1990. Vintage International, New York.
(10) Attributed to Fat’hol- Bari, in Islam: The Qur’an, Oath of Office and the U.S. Congress
(12) Bernard J. Cooke, Sacraments and Sacramentality (7th ed.) (2006).
Tags: ave maria school of law, Maria News Magazine, MariaNews.com, Professor GovernFeatured Article, Issue 3