Some More Thoughts on Oaths

May 12, 2004 | 22 comments
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As I have a tendency to do, I have been reading law today. In particular, I came across a case dealing with the old rule against party testimony. Originally at common law, a party to a lawsuit could not testify in the suit. There were two justifications for the rule. The first was that the parties to a suit had an incentive to lie in their own interested and therefore their testimony was unreliable. The second justification was that testimony was given under oath, which gave it grave theological significance. Perjury was more than a crime. By virtue of the oath it was a grave sin for which one could be damned. The sin was not lyng per se, but rather oath breaking. The judges reasoned that the law should not present parties to litigation with such a grave temptation. Much better to do without party testimony and not risk people damning themselves.

The concern with oaths was serious stuff. For example, in the earliest common law — as well as in other legal systems such as shar’ia — many law suits were settled by oaths. A party would make an accusation. The defendant then had a choice. He could allege additional facts, put on evidence that the plaintiffs allegations were false, or he could simply swear an oath. If he swore that the accusations were false, that was the end of the lawsuit. (At one point in English history “oath helpers” were necessary. In other words, you had to get a certain number of friends who were also willing to swear an oath that you were not liable.) What is remarkable is that the existing court records indicate that most defendants chose not to swear the oath. Too risky.

The concern with oaths even made it into the constitution. Several sects, most notably the Quakers, took Jesus’s admonition not to swear literally. They would not swear in court, for example. The constitution accomodated the belief by allowing the President and other federal officials to take office after “oath or affirmation.” The idea was that the affirmation simply implicated the commandment not to lie, but was not an actual oath.

In Mormonism we also make oaths, most notably in the temple. Those oaths are to be taken very seriously, a point graphiclly driven home in the earlier versions of the endowment. I am curious as to how we conceptualize these oaths. I take it that believing Mormons would regard the violation of temple oaths as a very great sin. Does the sin come because the underlying action is inherently wicked or does it come as a result of the oath itself? What about other oaths? Should I understand an oath in a courtroom — “I solemnly swear to tell the truth, the whole truth, and nothing but the truth, so help me God” — as having theological significance?

It seems to me that a serious theology of oaths would be a pretty socially useful thing to have. Provided that people believed that they could damn themselves, oaths provide a way of credibly signalling to others that you are telling the truth, or will actually carry out some future act. To a certain extent, we still believe oaths have some special significance, but I doubt that most Mormons believe that oath breaking has the same sort of eternal consequences that say a medieval Catholic would have ascribed to it. Why is this?

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22 Responses to Some More Thoughts on Oaths

  1. MDS on May 12, 2004 at 8:50 pm

    I have been taught that there is some authority for the idea that only God should make in oath, since only he can be assured of keeping it. Thus, the Oath and Covenant refers to God’s promise, the Oath, and man’s promises, the Covenant.

    “This oath by Deity, coupled with the covenant by faithful priesthood holders, is referred to as the oath and covenant of the priesthood.” (“Three Imperative Responsibilities,” London England Area Conference, 19-20 June 1976.) Teachings of Ezra Taft Benson, p.223

  2. Adam Greenwood on May 13, 2004 at 8:29 am

    Most of us don’t believe that anything will permanently damn us so why should oaths be any different?

    I think oaths are more serious and more weighty, even secular oaths (they are still made to God and explicitly in his presence, even if he didn’t initiate them), but I don’t know why. I await as eagerly as you someone coming on here with some ideas.

  3. Adam Greenwood on May 13, 2004 at 8:42 am

    Part of the problem is that we don’t have a clear idea of why lying is wrong.

    Anyway, here’s a thought: Is the problem that when we swear an oath we invoke God as an ‘oath-helper.’ In other words, it seems to me that an oath, by definition, is a promise in which one invokes God as a guarantor or joint-promisor. Thus, when one breaks one’s oath one is choosing to make a liar of God. You are profaning–you are covering sacred things with greed, apathy, or whatever other reason led to your breaking the oath-in the most awful sense of the word. Of course we Mormons should feel ourselves covered with guilt in this regard quite often, since we have accepted for ourselves the image of Christ and then put that image through horrid mockeries and obscene blasphemies.

    A side note: since the law was so concerned to take the incentive out of oathbreaking, in those lawsuits you name where the defendant could choose to swear to his innocence or else have a trial, was the court forbiddent to attach any presumption of guilt to the choice to have a trial?

  4. Dave on May 13, 2004 at 7:19 pm

    Nate, very interesting post and topic. It deserves more than three comments, if not the 250 garnered by “common and elite.” Oaths were obviously a category of great importance in the 18th/19th century, but less so today so it’s hard to relate to that older viewpoint.

    A contract is more than a promise. Likewise, covenants and oaths are more than mere promises, although exactly what they are is not at all clear. I don’t like comparing covenants to contracts–although LDS theology seems to hold God is bound by covenants we make here, I’m not sure that’s the proper way to define God’s involvement.

    Oaths are even less clear, partly because it is an 18th-century concept being transposed to the modern context. How does an oath (in contemporary LDS thinking) differ from a covenant? Seems like modernly the “theology of oaths” has been swallowed up by more general thinking about covenants.

  5. Ben Huff on May 13, 2004 at 8:26 pm

    wow, wild stuff! : )
    thanks Nate!

  6. obi-wan on May 13, 2004 at 8:30 pm

    “I don’t like comparing covenants to contracts–although LDS theology seems to hold God is bound by covenants we make here, I’m not sure that’s the proper way to define God’s involvement.”

    I don’t like comparing covenants to contracts either because they are *not* contracts — not bargained for, not arms-length, not for quid pro quo transactions. The Sunday School trope that “a covenant is a two-way promise” badly misconceives the nature of our relationship with the Lord. God’s involvement is that of overlord or suzerain to vassal.

    (This is quite consistent with the parental relationship, BTW, since the suzerain was typically cast in the role of parent — actually, father — to the vassal.)

    Our covenental forms arise out of feudalism, and out of obligation to the soveriegn. You owe your feudal suzerain loyalty whether or not you receive anything in exchange. The suzerain typically has responsibilities to you as well, but they are two independent sets of unilateral obligations not quid pro quo.

    So, too, our gospel covenants. King Benjamin makes this clear: we are obligated to the Lord whether or not he offers us blessings. We are in no position to negotiate with him, because we have nothing to bargain with that we can call our own. We have nothing to offer him, because he is the ultimate monopolist — quite literally *everything* is already his.

    The oath is the mechanism by which the parties create the covenental obligation — again, a set of sworn unilateral promises, not a quid pro quo exchange. Adam is quite correct that the individual relies upon diety as guarantor, invoking supernatural punishment should the oath be broken.

    (This is where the suzerainity model breaks down a bit, BTW, since it is not clear what higher power God would invoke to guarantee his oath — at least, not under our theology. In most ancient conceptions of cosmology, he could nearly always have sworn by some higher god.)

  7. Nate Oman on May 14, 2004 at 11:16 am

    Adam: You are right, of course, that the rule against party testimony and resolving lawsuits by putting the defendant to an oath are inconsistent. It is important to realize that we are talking about legal rules that are seperated by many centuries. Putting a party to an oath was an Anglo-Saxon process, which means it was going on well before 1066 A.D. Indeed, the idea that a trial consistent of testimony and evidence was quite late in developing. Remember, the medeival jury was not a neutral fact finder that heard evidence and drew conclusions. Rather, it was a group of knowledgable local citizens who was to tell the judge the facts based on personal knowledge without any rules of evidence at all.

    Dave: I find it very puzzling that you think of oaths as an 18th century concept. It seems to me that they were much more powerful during the medeival period. By the 18th century they still mattered more than they do today, to be sure, but it seems to me that there influence was already on the wane.

    Obi-wan: I agree with you that feudalism is a more useful way of thinking about covenants than is the modern idea of contract. I blogged about this a while back. Check out “Contract and Status”

  8. Frank McIntyre on May 14, 2004 at 11:39 am

    “King Benjamin makes this clear: we are obligated to the Lord whether or not he offers us blessings.”

    And yet, King Benjamin couches our responsibilities to God as debts for what God had done for us, albeit ones we will never be able to square. In this sense, he states our responsibility to God as very much related to the blessings already offered.

    I don’t know anything about suzerain. What does this model get me that a straightfoward “parent-child” model would not? Or is it a supplement to a a “parent-child” understanding of obligations.

    “I the Lord am bound when ye do what I say”— This sounds like quid pro quo, if you do something specific, I will do something. More generally, many of God’s promises to us reflect conditional blessings based on our actions. Why doesn’t this fit a model of a two-way promise or contract? Certainly a covenant is more than a 21st century piece of paper signed by two parties, but I’m not sure it is fully “unilateral”. Certainly there some unilateral elements to the covenenat, and perhaps that is your point, in which case I agree.

  9. John David Payne on May 14, 2004 at 4:02 pm

    Tangential thought:

    My brother Sam always thought that when Captain Moroni says to Zerahemnah (Alma 44:11), “I cannot recall the words which I have spoken,” he meant that he couldn’t remember what he said. He was surprised to hear that I understood this to be Moroni refusing to re-negotiate the terms he had already offered to Zerahemnah and his men.

    In context, I think the meaning of Moroni’s words is clear, but removed from context, I think my brother’s interpretation is equally reasonable. Perhaps more reasonable, given current usage.

    But consider the implications of the two different interpretations. If “can’t recall” means “can’t take back,” I assume responsibility for my words. Once I’ve spoken them out loud, they’re a matter of public record and I must abide by them.

    On the other hand, if “can’t recall,” means “can’t remember,” I assume no responsibility for my words. The things I say just slip out into the ether and flit away. I can’t be bothered to know what happens to them.

    The first viewpoint clearly fits in with the kind of culture that takes oaths, and takes them seriously. On the other hand, I think American culture right now is a lot closer to the second viewpoint, so we have trouble understanding the whole concept of oaths. Breaking an oath only has has theological significance if we take responsibility for our words, which a lot of us don’t. Me included, most of the time.

  10. obi-wan on May 14, 2004 at 5:21 pm

    Frank McIntyre writes: “‘I the Lord am bound when ye do what I say’— This sounds like quid pro quo, if you do something specific, I will do something. More generally, many of God’s promises to us reflect conditional blessings based on our actions. Why doesn’t this fit a model of a two-way promise or contract?”

    and

    “What does this model get me that a straightfoward ‘parent-child’ model would not? Or is it a supplement to a a ‘parent-child’ understanding of obligations.”

    More the latter. As I mentioned, a parent-child relationship was an important component of the vassal-overlord relationship, so long as we keep in mind that it was a pre-twentieth century parent-child relationship, not necessarily involving our modern formulations.

    Here is an analogy I have used in the past to highlight this aspect of the covenental relationship: suppose I have a child and decide that it would be beneficial for the child to learn how to handle some money and to learn something about work. So I promise the child that I will pay a certain weekly allowance on condition that the child performs certain household chores.

    Contrast this with another common situation, where the child on his or her own performs certain chores — taking out the trash, watering the lawn, and so on — and then presents the parent with a bill for services rendered. I have known children to do this, and best parental response I have seen is for the parent to solemnly present a counter-statement for housing, clothing, food, etc., deducting the child’s bill from the overwhelmingly large parental invoice.

    In the first situation, am I “bound” to pay the promised allowance in return for the performance of household chores? Yes, in one sense, unless I want to be foresworn — I promised to pay on condition of performance, and presumably will not do so if the chores are not performed. But as the second scenario illustrates, I was under no obligation make the promise in the first place; I could have demanded exactly the same services without paying *any* allowance, given the obligations that the child already owed me (especially pre-twentieth century!). I’m actually not getting anything for my payment; the consideration is entirely illusory.

    The overall point — which I think is also King Benjamin’s point — is that we ought not to confuse conditional promises with quid pro quo bargains.

  11. Frank McIntyre on May 14, 2004 at 5:59 pm

    I see the issue. Quid pro quo is not simply an exchange, but rather an equal exchange, whereas our covenant is nothing of the sort. I have no problem with that. And yet, is this a common problem, to think we are somehow in tit for tat bargaining with God? Surely that would be an odd view in the Church.

  12. obi-wan on May 14, 2004 at 7:12 pm

    Perhaps you’ve been spared these, but I have endured over the years some enormously tortured lessons trying to treat covenants — especially the Oath and Covenant of the Priesthood — as contracts, in order to parse what we “owe” the Lord, and what the Lord “owes” us. [shudder]

    (cf. the quotation in the comment above posted by MDS.)

    And, just as a bonus, this approach also helps explain why we developed the familiar (“thee”) form of address to Lord — not only be appropriate between parent and child, but between suzerain and vassal.

  13. Mark Butler on May 15, 2004 at 12:26 am

    If we all treated our engagements much more like covenants, and much less like contracts, we would all be much better off. In the language of the KJV, there is no such thing as a unconditional covenant. The moral obligation to perform as promised under any covenant is always conditional. The Abrahamic covenant is a classic example. After entering the waters of baptism, if we enter the paths of sin, the Lord’s obligation unto us becomes null and void.

    Of course, if we repent, the Lord will justify us anyway. But that it is a matter of grace (gratia), the gift of God, not a matter of obligation. Since we all sin, and fall short of the glory of God, we are justified by faith in his name. After sufficient trials of our faith, we are proven worthy, and our calling and election is made sure. Then the word of the Lord unto us changes from the conditional language of covenant to the unconditional language of oath. The covenant then passes to our posterity, who are jointly and severally called, chosen, and elected, according to their faithfulness. Called out of the world, chosen to accomplish the work of the Lord, and elected to inherit an everlasting exaltation.

    Covenants (even the Lord’s covenants) are conditional for exactly the same reason most prophecies are conditional. If we despise our covenant with the Lord, the Lord will most assuredly repent of his intent to fulfil the promised blessing, at least until we return and abide anew in the covenant from which we departed.

    But oaths are unusually dangerous because they unilaterally obligate us to do something regardless of the consequences, even unto death, at least if we wish to preserve our honor. Or worse, they put us in the position of making a unilateral obligation for our superior, claiming _plenipotentiary_ authority not just to enter covenants on his behalf, but to bind him unilaterally.

    So we might conclude that oaths are only appropriate to those circumstances where the fate of the nation depends on faithful performance of the unilateral obligations entered therein. Those rightly occur in parenthood, in all branches of government, in the military, and in the priesthood, on my view.

    A covenant of marriage made be void through infidelity or worse, but the unilateral obligation of a father and a mother to provide for and nuture ones own children cannot be voided. Parenthood should properly be considered to be more sacred than marriage itself.

  14. Mark Butler on May 15, 2004 at 1:22 am

    So procreation practically creates a common law marriage by virtue of the implicit obligation of the father to the mother by virtue of his sacred duty to the child of their union.

    Likewise our Father has taken on himself similar obligations, that make our relationship with him more than a matter of covenant. He has sworn with an oath to work to save all his children. He will not give up on us, save we sin unto death. His solemn affirmation of love for us is an oath, not a covenant.

  15. Mark Butler on May 15, 2004 at 1:58 am

    Please let me repeat myself. My apologies for not being more careful the first time:

    If we all treated our engagements much more like covenants, and much less like contracts, we would all be much better off. However, in the language of the KJV, there is properly no such thing as a unconditional covenant. The moral obligation to perform as promised under any covenant is always conditional, except and to the degree that it be accompanied by an oath. The Abrahamic covenant is a classic example. After entering the waters of baptism, if we enter the paths of sin, the Lord’s covenantal obligation unto us becomes null and void.

    Of course, if we repent, the Lord will justify us anyway. But that it is a matter of grace (gratia), the gift of God, not a matter of obligation per se. Since we all sin, and fall short of the glory of God, we are justified by faith. After sufficient trials of our faith, we are proven worthy, and our calling and election is made sure. Then the word of the Lord unto us changes from the conditional language of covenant to the unconditional language of oath. The covenant then passes to our posterity, who are jointly and severally called, chosen, and elected, according to their faithfulness. Called out of the world, chosen to accomplish the work of the Lord, and elected to inherit an everlasting exaltation.

    Covenants (even the Lord’s covenants) are conditional for exactly the same reason most prophecies are conditional. If we despise our covenant with the Lord, the Lord will most assuredly repent of his intent to fulfil the promised blessing, at least until we return and abide anew in the covenant from which we departed.

    But oaths are unusually dangerous because they unilaterally obligate us to do something regardless of the consequences, even unto death, at least if we wish to preserve our honor. Or worse, they put us in the position of making a unilateral obligation for our superior, claiming _plenipotentiary_ authority not just to enter covenants on his behalf, but to bind him unilaterally.

    So we might conclude that oaths are only appropriate to those circumstances where the fate of the nation depends on faithful performance of the unilateral obligations entered therein. Those rightly occur in parenthood, in all branches of government, in the military, and in the priesthood, on my view.

    A covenant of marriage may be nullified through infidelity or worse, but the unilateral obligation of a father and a mother to provide for and nuture their own children is not so easily discarded. Parenthood should properly be considered to be more sacred than marriage itself. Procreation practically creates a common law marriage by virtue of the implicit obligation of the father to the mother by virtue of his sacred duty to the child of their union.

    Likewise our Father has taken on himself similar unilateral obligations, that make our relationship with him more than a matter of covenant. He has sworn with an oath to work to save all his children. He will not give up on us, save we sin unto death. His solemn affirmation of love for us is an oath, not a covenant.

  16. Adam Greenwood on May 15, 2004 at 11:20 am

    Mark B.,
    Thanks for putting all this down. I enjoyed it immensely. I think your definition of oath–a promise without conditions–can be very fruitful. Loking at it, most promises we make, though not explicitly conditioned, are implicitly conditioned by some idea of ‘reasonableness.’ If I promise I’ll go to your party, and I get a nasty bug, most people wouldn’t feel I broke my promise. Oaths, on the other hand, don’t need only reasonable performance.

    I’ve just read about an incident of the 100-years war in Tuchman’s The Distant Mirror. The King of France had instituted an order of chivalry with all the usual ceremonies, costumes, etc. One feature of the order was an oath not to retire from the presence of the enemy without the permission of the king (many lords had a ‘right of independent withdrawal’ that the oath was designed to counteract). Turns out that a group of the order was out riding when they ran into a much superior English force. They felt that the wording of the oath wouldn’t permit them to gallop away, so they stayed and got massacred. I guess the lack of implicit conditions on oaths makes the technical language much more important.

  17. Mark Butler on May 15, 2004 at 2:05 pm

    Thanks for the story, Adam. That is an excellent illustration of the risks of oath taking. The idea of a covenant as a sacred but conditional promise shows up in the KJV quite a bit, usually when the Lord is undertaking a unilateral, but conditional obligation.

    Jeremiah 18:7-10 establishes that idea quite soundly, Ezekiel 18 more so, not to mention Deuteronomy 30. Hebrews 6-7 includes eloquent commentary on the distinction between an oath and an ordinary affirmation. The leading theme of Hebrews 10-11 is the conditionality of divine covenant and the need to endure in faith whether we receive the promise (election) in this life or not.

  18. Mark Butler on May 15, 2004 at 2:56 pm

    That should be read in the context of the KJV Genesis account, of course. Genesis is full of unilateral, but conditional covenants, generally undertaken by the Lord in response to demonstrated fidelity on the part of Abraham. The New Testament demonstrates how those unilateral divine undertakings move from affirmation (calling), to covenant (choosing), to promise (election), to oath (election sure).

    Properly speaking, we might consider the marriage covenant to be three covenants in one. One undertaken by the bride, one undertaken by the groom, and one undertaken by the Lord, but yet one covenant. And yet each covenant is not purely covenantal, but rather in part a covenant, in part a promise, and in part an oath and affirmation. A covenant of honor, a promise of fidelity, and an oath of sincerity.

  19. Mark Butler on May 15, 2004 at 3:10 pm

    This all no doubt has something to do with Brigham Young’s somewhat more relaxed attitude towards divorce, than what you might find in some Catholic countries, for example. We need a covenant and a promise, but oaths are dangerous. There is such a thing as a justified divorce. Reading the marriage covenants as solemn oaths precludes that possibility. That is what the Holy Spirit of Promise is for, and that not suddenly nor irrevocably.

  20. Nate Oman on May 16, 2004 at 10:57 pm

    Mark: reading through your comments, I am still not clear on what sort of distinction you are making between covenants and contracts. For example, Frank points out that the quid-pro-quo of a contract is supposed to be equal. Now in modern contract law this is not the case — we refuse to look at the adequacy of consideration. However, under medeival just price theory the notion of equality in exchange was central. (In practice is meant that you couldn’t charge much above or below the standard market price.) However, the notion of equality in exchange was NOT a component of other sorts of voluntary obligations. Two obvious examples would be a marriage and an oath of fealty. (Indeed, some medieval lawyers seem to have gotten around the equality in exchange requirement by recasting certain contracts — ie quid-pro-quo exchanges — as defeasible oaths. Thus rather than saying, “I will convey my castle to you in one year inexchange for payment of 100 marks now,” I swear an oath that next year I will give 500 marks, unless I convey my castle first.)

  21. Mark Butler on May 19, 2004 at 12:51 pm

    Nate, I would say that the practical difference between a contract and a covenant is a parallel of the distinction between justification and sanctification. If one abides by the letter of the law, he is justified, but if he abides by the spirit of the law he is sanctified. The mission of Jesus Christ was in part to remind the Jews of the primacy of the Spirit. Saul was a letter man, Paul a man of the Spirit. Grace is the fulfilment of the law, not the end thereof. The true spirit of the common law, from Moses down to the present day, starts in equity (obligation) and ends in love (sanctification).

  22. Mark Butler on May 19, 2004 at 1:26 pm

    Modern contract law is held in contempt by ordinary people because it largely takes the form of contracts of adhesion. Equity and love are out the window. It is considered moral in the modern world to pick the harshest terms the market will bear, conceal those in the fine print, wield them without mercy at the slightest provocation, and then defend your actions in the cloak of voluntarism.

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