In a court in North Carolina certain witnesses recently requested to be administered the oath to "tell the truth.." on the authority of their own God and with the aid of their own holy scripture. They expressed a wish to swear on the Koran. Various groups in the state argued against the proposal. There are many potential ways to think of the the question. We have taken a look at the historical reasons for the oath, its current purpose, and ways in which it promotes and fails to promote its purpose. We conclude that it is in the inerest of society to provide a method to meet the ends of justice with equal efficacy among all men, and propose several ways this might be carried out.
The ultimate interests of the court lie in resolving cases of criminal and civil law in ways that are consistent with the letter and spirit of the law and the constitution, and to have the process be both transparent and unbiased. In order for this to occur, the court must be capable of depending on the truthfulness of every possible witness whose testimony can bring some useful light to a case. The court has an interest, then, in being able to draw from every person in the community as a witness. It also has an interest in seeing to it that the conditions influencing the testimony are precisely the ones that simultaneously make it most likely that a witness tells the truth and most likely that a witness is believed when he is telling the truth. One condition without the other is counterproductive to the purpose of the court.
It has been assumed that the swearing-in ritual serves the interest of the court. And there are certainly reasons to believe it is true. Some are psychological and others are historical. We'll explore the historical ones first.
We will start in a hypothetical court in feudal England roughly a millenium ago. We happen not to know much about the practice of law then; so we will construct our argument by drawing from a few simple ideas. One is that in feudal soceities there were three not well defined classes. The feudal lords were little local gods who were essentially above the law. And there were their families who were technically subject to it. These constituted the upper class, or nobility. There was a small class of townspeople near every feudal estate - ironworkers, bakers, butchers, chandlers, inn keepers, and so on, - who tended to the sundry needs of the estate, but did not "belong" to it. These people were subject to the law and were likewise protected by the law in many ways. Finally, there were the serfs who worked the land for the feudal lord. The serfs were, for some time, considered chattel. And as such were sometimes beyond the protection of the law.
The British took jurisprudence quite seriously. And it was frequently true that when a crime was committed the witness or witnesses came from the serf group. So the problem would have certainly arisen: "How does one make the testimony of a serf bear the same weight as that of a free man or as a member of the nobility?" There were great stretches of English history in which the idea was perposterous. But the question is somewhat less about actually getting serfs to be believed in the same sense as nobility, than it was to give serfs the legal standing that would allow them to be believed. There was the potential for a lot of cases to go unsolved if the issue were not addressed. As a simple matter, if one conceives of a society in which all people worship the same God and are subject to Him, then by evoking that relationship in court, one can put all men on the same legal footing who give legal testimony.
This is a simple and straightforward idea. The oath "transforms serfs from property into people with legal standing before the court." In the absence of such an oath legal status might otherwise be a unclear. At the same time, the oath puts feudal lords under a higher authority, implicitly bringing them into the reach of the authority of the court. In all cases such an arrangement is not just desirable but necessary. Imagine a special case such as when a member of the lord's family has committed a heinous act such as a murder and the only witness is a serf. In such a case it is only the suspension of relationship between lord and serf that permits prosecution of the case. And this is accomplished by posing an intervening and uniform relationship between God and man that the serf can gain and keep the authority to speak what he knows in court.
In this hypothetical situation in feudal England, the cause of justice is served by the institution of the oath. In fact, the oath, given and taken seriously in this context is the only hope of achieving justice. And the reason it works is because it interposes a new relationship which breaks the bonds between a serf and his feudal lord for the duration of the testimony. Of course, it is a legal artifice. It depends on all parties believing that the oath actually makes some material difference. Most specifically, it depends on the witness believing this. And it depends on the decision-makers of the court believing it. It is impossible to know what portion of witnesses would have been positively affected, or what portion of judges. We may assume as the courts seem to have done for a very long time that it was some, perhaps many. Probably not all.
The ritual of swearing an oath is very old and perhaps we will not know where it actually originated or why. But it certainly had a good rationale in Europe during the dark ages. And it survived the dark ages, the Renaissance, and the Enlightenment. The ritual crossed the Atlantic with the colonists and became part of the American jurisprudence. But the conditions in America were different. One difference was that feudalism was (assumed to be) dead. Freemen worked their own land. In most parts of the north and many (small) parts of the south men worked their own land. The idea of feudal lord and serf (per se) did not exist. And the swearing ritual lost much of its raison d'etre.
But it still had reason to exist. One argument is that people who are religious and who believe that their God allows them to swear oaths - some religious people do not believe this - may be more inclined to take the witness process seriously. They may believe, for instance, that if they lie in the witness stand God might punish them in this world or the next in a way that he might not have done without the oath. Those inclined to believe this way may be more likely to tell the truth if given the oath. There is also a class of not very religious, but very superstitious people who might be affected by the oath in much the same positive way.
Furthermore, one might argue that even people who fit neither category might be positively affected by the oath. It is probably true for some people that the time spent in the actual ritual process regardless of its content has an effect on their mental state. The swearing-in ritual can have the psychological effect of causing a person to focus on the proceding and take it seriously in a way that they might not have done in the absence of the ritual. In this sense the ritual can have value even in the case of non-religious or non-superstitious people.
To argue that it can offer some beneficial effect on the outcome, however, is different than to argue that it makes sense. Ambrose Bierce lampooned it in his Devil's Dictionary
Oath: in law, a solemn appeal to the Deity, made binding on the conscience by penalty of perjury.
At first, it sounds like the definition of a madman, because there is no apparent connection between the concepts. And then one realizes that this is precisely Bierce's point: perjury and conscience have nothing to do with each other. A person of conscience will be inclined to tell the truth regardless of whether an oath is administered. A person lacking conscience may be affected by the threat of a charge of perjury, but unaffected by oath. By this reasoning, the oath makes no sense except as a means to remind a person that their speech potentially has extraordinary consequences. It has only an empty, ritualistic purpose. And in this case, a reminder may work just as well as an oath. Perhaps it would work better. Ironically, the oath, if it works, does so only on people who are superstitious but have no great sense of conscience. And in such cases we may be let to wonder whether the oath increases the court's credulity to a greater extent than in increases the witness's credibility. If this were the case, the oath would be counterproductive.
John Stuart Mill in On Liberty (p 91)spends some time examining the question of the swearing of oaths. He is troubled not so much by the fact that the oath makes no sense but by its peculiar logic in special cases. The oath implicitly assumes, he claims, that people who do not believe in God are not truthful. Now, if those who do not believe in God are asked to take the oath they may fall into two categories: those who agree to take it, and those who do not. Ironically, those who do not believe in God but who swear an oath in his name have at that point committed their first act of perjury and in so doing have increased their own credibiility before the court. On the other hand, those who do not believe in God and refuse to swear are either denied the chance to give testimony or risk having their testimony discounted, even though it is being produced by men who take their moral position more seriously than the ones just discussed. So among those who do not believe in God, the oath causes less truth to be produced in court than might otherwise be the case, rather than more, regardless of the way these people choose to behave. The court puts them in an impossible position with regard to giving honest testimony consistent with their own moral view of the world. This clearly runs counter to its purpose as a civil institution.
To make matters worse, there are groups of religious Americans who believe that several New Testament passages prohibit Christians from swearing oathes. They believe that it is a violation of the commandment not to take the name of God in vain. This is a serious infraction. They believe that their speech is to be simple, direct, and truthful always. One such group is Quakers who have for some centurlies taken literally the words of Jesus in Matthew 23:16-23 about swearing oaths. "A promise is a promise" Christ says. No need to swear an oath. And James, following Christ's lead directs Christians not to swear oaths. Thus, there is a reasonable argument to be made that forcing a person to swear an oath is a violation of freedom to practice one's religion. The matter was settled in a suitable fashion by the courts, allowing Quakers to 'affirm' instead of 'swear.' Thus it is impossible to distinguish the kind of speech before court from all the rest of their speech. Once again, those religious persons who believe they ought not swear but do so act against their conscience. Whether this has a negative affect on the particular proceding in question is unlikely, but to have court procedings produce conditions that affect most negatively those whom it is most likely to gain the truth is generally not a favorable condition for the cause of justice or society.
In both cases - the case of the atheist and the case of the religious person who cannot swear - the swearing-in ritual degrades the quality of the outcome. So the question in these cases is, "what ought the court do if it is to regain the full measure of truth available in any case?" There can be only one answer. The court must have an inclusive ritual that accommodates the peculiar needs of Christians who cannot swear on the Bible because of their interpretation of what it says. And the court must have an inclusive ritual that accommodates the peculiar needs of athiests who find it nonsense to swear to a God in which they do not believe. Courts have made some accommodation for these problems. Usually it is by adopting some exceptional procedure for each exceptional class. This is the most expedient solution since it poses the least change to the system of government. But it raises concerns.
The fundamental issue is that the court is not a religious place. A society that is made up of people with a wide variety of religious views needs to have courts that both are in fact and that appear to be equally fair to people of all religious persuasions. The problem with exceptional procedures is that no matter how well they are tailored to meet the needs of particular groups, they risk being percieved by some as favoring or handicapping members of certain groups. It is very much in the interest of the court not appear biased, even in the slightest degree. By this line of reasoning it may be in the interest of the courts to have a uniform, non-religious pre-testimony ritual.
We must realize, though we may be tempted to think otherwise, that an oath does not transform the court into a kind of holy temple of truth. Certainly it is in the interest of the court to inspire the same level of attention, the same level of gravitas, the same amount of earnest intent as might the most serious ritual in a religious context. It might even evoke the same kind of inner sense of awe; but that does not make it religious. Religion is about one's soul, something very intangible. Law is about society, the relationships among humans. The relationships per se may be intangible but the objects of the relationships and the expression of these relationships is very real and tangible. It is a vital distinction. God may punish a man's soul, but the court's only means of punishment involve the body.
Religious or not, the swearing in or oath-taking process is a ritual. And as is frequently true of rituals we do them for reasons that, if we ever had them, are lost in antiquity. All we can say for sure about the ritual is that we do it and have done it. And we hope that it works. For the ritual to work, the witness being sworn in must be a person of serious and earnest nature. Subjects disinclined to take the ritual very seriously will, of course, not be very affected by it. They will tell the truth or not based on some logic unconnected with the ritual. In such cases, the ritual gains nothing.
There exist quite a number of people who hold nothing sacred - except possibly the notion that nothing is sacred. And there are those who take nothing very seriously. For these people the swearing-in ritual is completely pointless. We are reminded of a popular President who, some time after being sworn in is asked a question to which he replied "I don't remember." Then he grined, turned to the defendent - whose case would have been devastated had the President's memory not failed - and he winked. In such a case, the oath tends to decieve the court into believing that something truthful happened during the ritual. This deception might do a substantial harm. The court, unfortunately has no way of determining in advance who these people are, but recent Presidents seem to display more contempt for the spirit of the proceding than do most common citizens.
Among common citizens there also exist people for whom other objects are holy. Muslims hold the Koran holy. And, I am led to believe, may do so with much greater earnestness than their most earnest and religious Christian counterparts. And, for the most part their Christian counterparts may not be terribly earnest. It is fair to wonder whether a devout Moslem who swears on a Koran will be as likely to tell the truth in court as a Christian who swore on the Bible. It is certainly an issue that is of interest to the court. It may be an issue to study. But we certainly do not know the answer a priori. We certainly have no basis to assume a devout Moslem would be less truthful than a devout Christian. And we have more reason to believe a Muslim who claims to be devout regarding the nature of his convictions
In fact, the punishments in Islam are generally more severe than those in Christian traditions. And the rituals required of Moslems are more burdensome; fasting during Ramadan, and prayer five times daily. So their own religious discipline is more likely to inspire truth-telling. The outward signs of religious devotion in Muslims far exceed those in most modern Chistians. Muslims modify dress, appearance, speech and eating practices to comply with their religion. Few are the Christians who do this. This further suggests that oath-taking on the part of Muslims might be more fruitful in producing the desired truth-telling behavior than it is in Christians - provided the terms of the oath are the right ones.
So the question of whether to allow Muslims to swear on the Koran can be settled simply by asking what purpose it is to serve. If the swearing-in ritual is to serve the course of justice by holding a person accountable to a power above the earthly plane, it is clear in the case of Muslims that the Koran must be the object of choice.
One of the underlying assumptions in the question is the role a God might take in the procedings. Let us suppose that there is a God and that He takes an interest in our court procedings in precisely the way the oath assumes He does: that when a person who tells a lie under oath he incurs God's Wrath and his soul is then punished for the infraction. Given this assumption, what role does the oath play for those who are not good Christians?
If a witness is motivated to tell the truth by the wrong god and our God decides to smite him for choosing the wrong god, then He will equally well smite him for lying under oath to a false god as to a real one. Otherwise we would be asserting that God reasons thus: " You, Christian, swore an oath on a Bible and on the real God, but lied, so you will burn in Hell. but you, Oscar swore on a stack of pigs turds and lied, making a mockery of the true God, the court, and the rule of law; therefore you shall live in the eternal bliss of heaven?" It seems a little unlikely. And if God does actually reason this way, can we be sure he is the right deity to be swearing before in the first place? Surely we can trust God to act in the interest of his creation.
What God does is neither the business of the US government, nor its courts, nor its judiciary functionaries, nor tthat of the citizens who witness in the dock, nor those who protest the idea of providing Korans for the ritual. We do not know the mind of God. In fact, the whole idea of separation of church and state arose to stop people from killing each other their own exclusive claims to God's intellectual property. If Americans are to learn anything from a millenium of European history (which we do not study) it ought to be how much blood and treasure the idea of separation of church and state might save.
And if one is to respect God as being even a bit bigger and wiser and smarter than the stupidest, most transparent among us, we must not pretend to know what he thinks. That is blasphemy. History teaches us that even if we pretend to know it we must almost certainly be wrong. So we have religious, political, and historical reasons to separate church from state.
But so long as we insist we must enshrine God in the courtroom, then we must allow Him to do his job. Who can prove that the God of Mohammed is not simply a Moslem manifestation of the God of Paul, or the God of Moses? Mohammed, after all, claimed he was the same one. Even if every person in Christendom did not believe it, this fact would not prove it false. So, if we give religious practice sway in improving the reliability of courtroom procedings, it is both prudent and respectful to allow Muslims the Koran. In showing this respect, we might improve the outcomes of the proceedings.
As a practical matter, it seems likely that the collection of objects that a court would have to have on hand would be small. The list of religions that drive men to materially alter their behavior is finite. And those who hold no special religious convictions might be persuaded to swear upon any convenient object.
But suppose this were not true; the cost of a trial is huge and its outcomes can depend on a small number of words by a single witness. The tiny marginal cost of having on hand the appropriate object of art that might improve the outcome is almost always miniscule compared to the cost of even the most mundane and cursory proceding. Rare and expensive objects, if they might be required could always be lent to the court for the proceeding. The practical costs of such a policy are so small that it is almost impossible to measure them. The cost of the resolving any objections to the change of practice will likely swamp the cost of implementation. The issue of cost is not a credible objection.
As a matter of law, the case seems pretty clear. Courts have for some time been ruling on separation questions. And a cursory examination of the relevant law suggests a clear direction in the reasoning. Free exercise of religion is guaranteed constitutionally and through the interpretation of law dealing with the issue.
In Sherbert v Verner .. the Supreme Court held that if a general non-discriminatory law imposes substantial burden on the exercise of sincere good-faith belief, government should prevail only if it could show that the regulation:
1) Served a compelling state interest
2) Was narrowly tailored to achieve that interest with the least possible intrusion on free exercise rights
The state's compelling interest is to get truthful testimony. To the extent that oath-swearing does this, the objects and language employed in the process ought to be the ones most likely to achieve the desired outcome. Regulations that would restrict the language of the oath or the objects used in the process fail to serve a state interest when they are restricted to a The Bible and God. So if the oath-giving practice were established by statute it would fail on the first count. Swearing by an appropriate deity and upon an appropriate object imposes no great burden upon the court, so clearly the current practice fails to be the least intrusive. Thus the practice, if it had been established by law rather than by custom would fail under both criteria.
The court has since weakened the Sherbert criteria. But it still requires a neutrality in law to the extent that such neutrality does not overbalance a compelling state interest. How could one possibly argue that the stateÕs interest is anything other than to get the most truthful testimony possible? Surely this was the case in medieval Europe when the church ruled the land. Surely it must remain true today. And if that interest is best served by allowing some latitiude in the process, how could there be any reasonable objection?
The swearing-in process has come under scrutiny before. And the decision reached was consistent with this point of view. If Muslims believe that it they are somehow defiled by swearing an oath on the Bible, then the book upon which they swear enters the realm of religious practice. And in this realm there is a Constitutional mandate to allow them to choose their article of veneration. The principles enshrined in the Constitution force us to accept the outcome that is the most fair, most equitable, and most effective in the pursuit of justice.
Surely fairness, equity, and justice must outweigh personal bias in the practical exercises of making and enforcing law? How can any person who has seriously studied the history of the religious abuses of governments and the horrors of religious wars and oppression come to a different conclusion? How can any person who understands the bloody history of religion and government seriously entertain another notion? Surely we can all support the idea that truth in justice ought to be part of the American Way.
Copyright: Stephen R. Brubaker, 2006. All Rights Reserved