Vows and Oaths
VOWS AND OATHS
VOWS AND OATHS . With the vow to accomplish something, a person dedicates himself to the task wholly. Whoever takes an oath to accomplish something is required to answer for it, for he has named himself or some one of his belongings as a pledge of his commitment and is thus bound by his very life, his honor, and his property.
Vows and oaths therefore affect a person's whole being; they put one's very existence in pawn. There is a distinct difference, however, between an oath and a vow: a vow is merely a personal promise, whereas an oath is a promise made before some institutional authority. In taking an oath, a person not only assumes an obligation but also becomes liable to prosecution; the state and society have an interest in his act. Oaths serve as objective guarantees of what is promised. Swearing to tell the truth, one guarantees that what one says is true. Oaths are self-endorsing.
The practice of oath taking by which a person places his very life at risk is an extremely ancient one. It is an institution of coercion, "the most powerful coercion known to primitive man" (Thurnwald, 1925, vol. 2, p. 39). Oaths are encountered among all peoples and in all cultures. They are a primal symbol of religion.
Because they are absolutely binding by nature, and because they are subject to both misuse and overuse, oaths are nevertheless looked upon with some suspicion in the fields of ethics, politics, and jurisprudence. They have to be judged in themselves, in relation to the particular substance of the promise they contain and the nature of the guarantee, as both tend to vary considerably depending on the level of the given culture and the conventions of the applicable code of law.
Giving and Receiving—An Institution of Life
In the archaic scheme of things, objects of barter, things that must be paid for, are not simply goods but rather gifts. They establish a substantial bond between giver and receiver, for the latter is obligated to provide something in exchange for the gift. Such exchange affects the social position of the participants: it turns the giver into a receiver and makes of the receiver a giver.
In this economy of mutual giving, the objects exchanged have both an objective and a subjective significance; they not only create the partnership, they also serve to insure it. They are subject to recall. They give rise to rights and obligations. They are pledges.
Vows and oaths have the same archaic structure. They create and solidify partnerships based on reciprocal giving. One swears by specific things, and in the exchange these pledges become extremely important. They guarantee the peace, subjectively and objectively. The bond of order they establish is affirmed in the oath itself, so that the oath, like the things by which it is sworn, is part blessing and part curse: it obligates one to a bond, and binds one to an obli-gation.
In many languages the word for "oath" is somehow associated with fate. The Assyrian mamuti translates as "oath," but it also means "obsession" and "curse." The related term tamitu is also used for "oath," but in addition it can refer either to a divine oracle or the question put to the god (Pedersen, 1914, p. 2). Clearly one is oneself possessed by what one possesses. Property can have a fatal power.
The Arabic word baiʿ translates as both "purchase" and "sale," but it also means "convenant." The exchange of wares, accompanied by ceremonial gestures of bonding such as reciprocal touching and shaking of hands, confers certain rights and obligations to both parties. One sells a certain object, but one also sells oneself. The bond linking buyer and seller is an oath. Implicit in the word baiʿ are both the sealing of a compact and an exchange of oaths (ibid., pp. 52–58). The former secures the connection, while the latter constitutes "religion" (from religare, "to tie fast") in the truest sense, bondage to the gift of life. The Anglo-Saxon verb swerian ("to swear") suggests something of the magic in such a bond, for at one time it meant to recite mystic charms and spells in a strange, singsong kind of chant. Old Frisian swera meant simply "to sing"—in the service of religion.
Oaths in early Germanic times were not only a religious rite, they were themselves the religion. An oath was an actus religiosissimus in the truest sense (Lex, 1967, p. 24). The Middle High German word for "oath" contains the Indo-European root *it or *lig, meaning bond. An oath is an added confirmation, an absolute guarantee, of the word and intent of the person swearing, and it is also the fetter that binds him to the truth. The Latin term for "oath" is ius iurandum ("sworn law"). Oaths were firmly established legal instruments with statutory force: "An oath is an assurance backed by religious sanctity; and a solemn promise given, as before God as one's witness, is to be sacredly kept" (Cicero, De officiis 3.104). The oath of allegiance was known as the sacramentum.
The things one swears by are pledges, and the promises to which one binds oneself in swearing by things are oaths. With the specific things to which he appeals, a person guarantees that to which he has committed himself. They can be demanded of him; they become objects for litigation. Greek mythology (according to Hesiod) speaks therefore of the oath as the offspring of contention. It issues from conflict over things to which one is obligated, namely heaven and earth, life and death, gods and men. The obligation to them is binding, and the bond with them brings with it obligation. The very earth avenges itself on the perjurer, for with his oath he has placed it in pawn. The Greeks speak of having to pass through the portals of the oath, for horkos, their word for "oath," designates a separate space before which one has a sense of dread (aidōs ), a border region. The strongest oaths of all were those sworn on the bank of the Styx, the underworld stream whose waters expose the guilty and cleanse the innocent of false accusations.
Oaths are a divine judgment. The good and evil that they decide between amount to fortune and misfortune. Hence one speaks of eating and drinking one's oath. It either confirms or threatens one's very existence.
Oath taking may entail trial by fire, duels, symbolic destruction of specific objects, or hypothetical self-condemnation. The Maasai of East Africa bite off a few blades of grass, then exclaim: "May this grass prove poisonous to me if I have lied before God!" (Lasch, 1908, p. 80).
The reciprocal giving and taking in the economy of barter is something that serves to solidify society, for the one who gives also has a right to receive. Gifts are therefore challenges: they bind the receiver to the giver; they are what establishes a compact with him. They are an opening ceremony. While they serve to guarantee the fulfillment of oaths, they also anticipate the fulfillment of a vow, which is not a pledge to the past, but to the future. A vow presumes a compact that is yet to be. Votive gifts are only down payments on future covenants. They serve as symbols in the here and now of future fulfillment, and they have personal meaning. They give objective reality to a subjective religion.
Like votive gifts, magical rites and animal and human sacrifice are typical examples of such objectivization. So are the conjuring of rain in Arizona, New Mexico, and southern Europe, and so were temple prostitution in the Near East, cult chastity among the Romans, continence in preparation for specific tasks (as in war vows), or the habit in Latin countries of placing votive offerings in the form of garments and models of healed limbs on altars and temple walls. Popular faith abounds with customs of this kind. In them, promises take the form of gifts, and gifts serve as promises, concrete expressions of personal religion.
Vows and Personal Religion
Gifts initiate the reciprocity of giving and receiving, and they have been used for that purpose since archaic times. They have personal importance, for the promises they imply must be kept only if the gifts are found acceptable.
Vows are promises of the same kind. Whether they are fulfilled is not a matter for the law but rather hinges on the person governing the giving and receiving. Nothing is given that is found unacceptable, and nothing is accepted that cannot be given. All involuntary vows are invalid. All voluntary ones are valid provided they satisfy the controlling authority, the religion, under which they are made. The same authority has the option of annulling them.
The Bible, Judaism, Christianity, Islam, and Buddhism all limit the use of vows. They have rules applying to the pledges of individuals as well as those of whole groups, such as communal orders and sects.
The terms for vow in the Bible are the Hebrew nazir and the Greek euchē ("prayer"). There a vow is an unconditional pledge of special submission to Yahveh. The Nazirite, or the man who has made such a vow, must refrain from drinking wine (Nm. 6:3), cutting his hair (Nm. 6:5), and coming into contact with a corpse (Nm. 6:6). The charismatic warrior Samson is an example of such a man (Jgs. 13ff). What distinguishes a person under such a vow is not his asceticism but rather his symbolic strength, his total commitment to the advancement of Yahveh's cause. This same vow is met with in the New Testament as well: Paul had placed himself under one (Acts 18:18) even before the Jerusalem congregation required it of him (Acts 21:23–24). Such a vow can be either for life or for only a specified period.
The Talmud and Mishnah treat all kinds of vows, that is, vows of abstinence as well as vows of consecretion, under the single rubric of nedarim, "vows" (Ned. 3.4). They advise that any such pledges be restricted as much as possible to basic religious practices. While admitting their usefulness as insurance of unconditional compliance with sacred obligations, the Jewish texts warn that vows must not be undertaken lightly and add that they have only limited validity when made by minors.
Christian vows consist of promises to obey the so-called gospel counsels: poverty, chastity, and obedience. They are taken in the various monastic orders and are implicit in their rules. Affirmation of the counsels is a sign of the Christian's calling within the church to give himself to God, to preach the gospel, and to personify the Lord's dominion. It constitutes an anticipation of heavenly existence. By referring to the calling and thereby underscoring the voluntary and charismatic aspects of monastic life, this article deliberately skirts the notion of ascetic self-indulgence and personal gain rejected by Luther in his Reformation tract De votis monasticis. There is such a thing as an unconditional pledge that is of necessity only temporal and is therefore not binding for all eternity.
The Qurʾān and the six canonical works of the sunnah warn against excessive use of vows (nudhūr; sg., nadhr ) and make quite clear just what the nature of such pledges ought to be. According to the earliest thinking, they are best related to the basic religious duties and devotions, the intensity of which they tend to heighten. Thus one might vow to pray at specified places and times, to fast on unusual occasions, to undertake pilgrimage to shrines other than Mecca, or—most important of all—to provide additional, voluntary alms. Moreover, it is acceptable to vow to free slaves or to be especially attentive to fellow Muslims, to visit the sick, to attend services for the dead, and to accept invitations to weddings. Restrictive vows, entailing abstinence from certain foods, celibacy, extreme penance, and professions of contrition, are not considered binding. They are rejected for the simple reason that a person who presumes to declare forbidden what is generally allowed is no different from the one who allows what is in fact forbidden. Therefore the Qurʾān explains that monasticism is an innovation "that was not instituted by God, one that was only invented by the generations before you" (sūrah 57:27).
In the broadest sense, vows are unconditional promises to do something specific—good or evil. In the narrower sense, they are unqualified pledges to do good, not evil, and as such they are directed solely to God. Often they are cast in hypothetical terms: one "promises to do this or that under the condition that this or that is forthcoming" (Gottschalk, 1919, p. 30). Muḥammad is supposed to have said that a vow does not hasten anything and cannot forestall anything. However the miser's vow makes him better, for essentially he tells God: "Give, that I may give—da ut dem!" (ibid., p. 4).
Vows encourage the fulfillment of obligations and the accomplishment of certain tasks. War vows and vows of revenge are clear examples of this; they enlist self-sacrifice and deprivation in the cause of securing just retribution. The bodhisattva vow of Mahayana Buddhism consists of the promise not to wish to enter nirvāṇa until all creatures have been released from the cycle of rebirth and have attained perfection. It first appears in the legend of the Buddha Amitabha in the second century bce, and it continues to characterize the aspirations of major sects in China and Japan. It is the key to the salvation doctrine of Amida Buddhism. For if one gives what one receives, so does one receive what one gives. In promising to wait for salvation, one finds salvation in the waiting. Such a vow has cosmic significance. It constitutes sacrifice and self-denial.
Oaths and Their Institutional Forms
Oaths have both a constitutive and an instrumental force. They convey the truth of an assertion, but they also serve as a means whereby it can be determined whether or not that assertion is true. They confirm a promise, and at the same time provide by their very form proof positive of the accuracy of its content.
The instrumental nature of oaths becomes particularly apparent when a judicial system becomes detached from the life of the community, when state and culture are no longer one and the same. In such cases, oaths no longer reveal their constitutive force. In a state trial they function as legally binding proofs. They are one method of arriving at the truth in legal proceedings, and as such they take on regulative importance.
The ritual of oath taking takes numerous forms. In every case there are strict rules governing the behavior of all participants, the rights and obligations of the person swearing, and the specific form in which he pronounces and confirms his pledge. There is a mystique associated with the taking of oaths, one that was especially pronounced in the Indo-European cultural sphere. An obsession with form is typical of such rites, each role being carefully prescribed. An oath could miscarry if for some reason it was impossible to observe strict conventions in the swearing of it.
These conventions applied not only to the person taking the oath but also to his oath-helpers. The use of witnesses is characteristic of the Germanic peoples and is in fact unique to them. They might be members of the oath taker's family or men with whom he has sworn brotherhood. They were not obliged to confirm the substance of his assertion but only to attest to this credibility. Once his oath had been taken, they were called upon to swear—by twos, threes, sixes, or twelves—that it was "pure and not forsworn."
Such oaths of purification could still count for naught in the event of so-called eidschelte (ON, "oath challenge"). If the accused chose to force down the raised hand of the person swearing, a duel had to be fought to decide the issue.
The spot where an oath could be sworn, its wording, and all of the attendant gestures were strictly prescribed. The setting was called the malstat ("justice site"), dingstat ("trial site"), or richtstat ("judgment site"). This was where the community regularly gathered for its Þing, or legislative assembly, and it was here that sacrifices were offered to the gods and trials were held. An oath circle would be inscribed on the ground and the person swearing required to stand inside it. Under no conditions could he leave the circle or even place a foot outside its perimeter until the ritual was ended.
The wording of oaths differed considerably depending on the authority before which they were sworn and the persons or objects serving as pledges. A man might swear by his sword, his threshold, the plank of his ship, his wife and children, his own life, or one of the gods. The oath taker was required to stand and recite the argumentum iuramenti, called the eidstab ("oath stave"), in a clear voice and without assistance. On occasion the phrases might first be spoken by either the judge or the accuser, then repeated word for word by the accused. This type of oath was known as a gestabter eid ("directed oath").
While swearing, the oath taker had to be touching his pledge with his free hand. It was this physical contact "that established the supernatural bond of the oath, the mysterium iuramenti, and gave it its magical force" (Brunner, 1906–1928, vol. 1, p. 257). If the oath was sworn by a god, such contact was accomplished through substitution. An animal was sacrificed to the god and the so-called eidring ("oath ring") dipped in its blood. The oath taker then took hold of the ring with one hand while raising the other. Local custom dictated how many of the fingers of his raised hand were to be extended, whether two, three, or all of them.
Everyone participating in the rite had to perform his role in accordance with fixed rules. No distinction was made between the miscarriage of an oath and outright perjury. Form and content were considered one and the same. If one of the oath-helpers swearing overstepped the margin of the oath circle by a fraction of an inch, forgot a portion of the formula, used a wrong word, lowered his hand too quickly, or failed to touch the pledges as required, the oath was useless and the guilt of the accused was established. It was clear that he had perjured himself, and he was required to leave the settlement in dishonor, stripped of all communal ties. Later it became customary to punish a perjurer by chopping off either the fingers he had used in swearing or his entire hand.
In Germanic law a man's whole life might hinge on his oath. Depending on its force in a trial, he could be either saved or doomed. Oaths of fealty and vassalage have the same constitutive importance, as does the citizen's oath of the Middle Ages. The Swiss Eidgenossenschaft ("sworn confederacy") takes its strength from the constitutive force of the citizen's oath, and the country's civil code is based on it.
There are, however, a number of traditions in which oaths are accorded only instrumental importance. This is the case in Greek rhetoric, Roman and Islamic law, and in the various modern judicial systems. For them an oath is not proof in itself but only a means of proof. It can be of assistance in determining the truth, yet it is not considered the truth itself.
In Roman civil cases the oath "occupies a less important position than in Germanic ones, for while in the latter it is a statutory right of the accused that regularly takes precedence over other proofs, in the former it only appears at the request of the adversary or the judge when there are no other means for bringing the truth to light" (Bethmann-Hollweg, 1864–1874, vol. 2, p. 573). It serves as a kind of confirmation, strengthened by the fact that God is called to witness it. Here the form and content of oaths, their religious and legal significance, and their ethical and political aspects are distinctly separate.
The ancient writers produced numerous logical, rhetorical, philological, philosophical, and theological treatises on the problem of intent in oaths (restrictio mentalis ), on the meanings of their terms and their differing connotations, on the degree to which an oath is binding depending on the rank of the deity by which it is sworn, and on the question of how frequently oaths may be required. They speak of sophistic oaths, in which the sense and the wording differ, of involuntary oaths (unlike Plato and Aristotle, Democritus considered all oaths to be valid, even involuntary ones), and finally of the proper form for the naming of pledges. One reads of Rhadamanthys's struggle against the misuse of oaths and of Herakles' effort to do away with them altogether. The Hippocratic oath sworn by physicians has a venerable tradition, surviving as it does into the current time. Always there have been disputes over just what one ought to swear upon (as in the oath of allegiance or loyalty oath) and the degree to which one commits oneself (oaths of office, oaths of vassalage, the oath to the Führer).
In the Bible, oaths are treated in both their constitutive and instrumental senses. The Lord swears an oath by himself (Dt. 29:9ff.). That oath is the basis of the covenant with Israel, and he is bound and obligated by it. But for it, he would not have stood behind his chosen people and liberated them from bondage. That divine oath has constitutive force even for God himself. Men are permitted to swear oaths only as long as they call upon God in doing so, but they have not always observed this restriction. Hence Jesus' admonition not to swear at all (Mt. 5:34–37). Oaths are to be sworn before the Lord as God; they are not suited for the reinforcement of an intention that does not relate to him (Mt. 23:16–22). Jesus rejects the instrumental use of oaths. He nevertheless admits them when they serve to reaffirm the promise implicit in the Lord's name (Mt. 5:33). He also admits affirmation in the form of "Yea, yea," "Nay, nay." (Mt. 5:37).
This rule is applied by the early Christian church both positively (Heb. 6:13–19) and negatively (Jas. 5:12). Swearing is permitted, yet oaths are still rejected. Meanwhile the oath had come to serve in an instrumental sense as a confirmation of faith. In 251 ce the antipope Novatian required an oath of allegiance from his followers; he was the first pontiff to do so. Later it became customary for bishops and teachers to take oaths of office, Christian significance was given to the fingers extended when swearing, and oaths were sworn on the Gospels and on relics.
One persistent problem has been whether priests ought to be required to swear oaths to secular authority, as in the oath to the emperor in antiquity, to the Republic during the French Revolution, or to the Führer under National Socialism. The Reformation rejected papal oaths. Various Christian sects—Anabaptists, Jehovah's Witnesses, Mennonites—refuse to take oaths of any kind.
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Elmar Klinger (1987)
Translated from German by Russell M. Stockman
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