Oaths: at best embarrassing and at worst offensive

Eamon de Valera
Renowned Irish expert on oaths.

When giving evidence in an Irish court or being sworn in as a juror, why is the default oath still religious? In fact, why is an oath required at all? Over 20 years ago, the Law Reform Commission recommended that oaths were not required and should be abolished but their report has largely been ignored.

Irish law generally requires that evidence be given viva voce (ie. live in court) and, according to Murdoch’s Legal Dictionary, the purpose of that requirement is “to ensure that such evidence is true by the provision of a moral or religious and legal sanction against deliberate untruth”. The oath used in Irish courts calls upon the Christian god to witness that evidence is true. As an alternative, a solemn affirmation can be used which doesn’t involve any religious element.

The Law Reform Commission, in its 1990 report on oaths and affirmations, describe the oath as “security for the truth”, the historical reasoning being that human self-interest creates a conflict in the mind of the witness, necessitating that evidence be supported “by the indispensable security of the fear of an avenging God.” But, as Mary Kotsonouris, in her memoirs of her time as a District Court judge, rightly notes:

[T]hose who tells lies without qualm are not going to be put off by the prospect of doing so with their hand on the Bible or the Koran. Ironically, it is the witnesses who ask to affirm rather than swear who show that they are the ones taking the idea of religion seriously.

The oath used in Ireland involves repeating the following while having a hand on a copy of the bible:

I swear by Almighty God that the evidence I shall give shall be the truth the whole truth and nothing but the truth.

A similar oath is used when juries are sworn in. The statutory law on oaths, which originates in the 1800s, provided for a procedure of inquiring into the faith of the witness and formulating an oath which would be appropriately binding on his or her conscience. The most common alternative to the oath is the affirmation:

I do solemnly, sincerely and truly declare and affirm that the evidence I shall give shall be the truth, the whole truth and nothing but the truth.

But it is likely that the religious oath precedes the evidence given by the majority of witnesses in Ireland. Ireland is around 87% Roman Catholic and while no statistics on oaths are available, I would be surprised if 13% of witnesses opted for the affirmation.

There are many reasons why the oath is unsatisfactory and the Commission’s report concluded that many forms of oath are “at best embarrassing and at worst offensive”. The most significant objection is the risk that a juror might be prejudiced against a witness who affirms or who refuses to take the oath. This Commission report noted that this risk was identified by lawyers across many jurisdictions.

Aside from the people “who tell lies without qualm” referred to by Kotsonouris, what of the atheist who gives evidence on oath? Section 3 of the Oaths Act 1888 closes the loophole, at least in so far as terrestrial consequences are concerned: the fact that the witness does not have any religious belief or has beliefs contrary to the oath will not affect the validity of the oath.

The Commission report suggested that the oath is a formality to be “rattled off” and which has no special significance even for Christians; that “it has become a technical adjunct to the law of perjury, “more a genuflection performed out of habit than a ceremony sacred or significant to the law”.” A report of the New South Wales Law Reform Commission is quoted which suggests that the evolution of Christian beliefs in the modern era and the move away from belief in hell and damnation has meant that, even for devout Christians, the oath is deprived of much of its force. In addition, the swearing of an oath in judicial proceedings is contrary to the beliefs of some Christians on the basis of scripture.

The oath is, therefore, an empty formula. So what’s the point?

It would surely be more logical for the affirmation to be the default and, in the interests of efficiency if nothing else, only form of words used. After all, it should be sufficient that evidence given in a civil court be subject to civil law. One could go further and abolish oaths and affirmations entirely, something suggested by Kotsonouris.

The offence of perjury is lying to the court. While it may also be a sin, it is a crime. If, instead, a judge was obliged to tell all witnesses individually, including the police, of their obligation to tell the truth, to inform them of the penalties for perjury and to ask if they understood, it might take a little longer, but it might also put the fear of God – and of punishment – into some liars, while removing a cause of scandal to the pure heart.

The final recommendation by the Commission report was as follows:

Having reviewed all these factors, and in particular having regard to our conclusion that the oath offers little or no greater security for the truth than a statutory affirmation, the Commission considers that the potential prejudice to witnesses and jurors who choose to affirm, together with the great attraction of providing for a universal and simplified procedure which would place all persons on an equal footing, weighs in favour of the abolition of the oath generally.

This recommendation, that the oath be abolished and replaced by a modified affirmation, has never been implemented. For now, the oath is another aspect of public life in Ireland which remains theistic by default.

Thankfully, this can be changed by any reform-minded government. The oath required of a judge before taking office is, however, a different matter. Article 34 of the Constitution sets out the text of the declaration:

In the presence of Almighty God I, [judge’s name] , do solemnly and sincerely promise and declare that I will duly and faithfully and to the best of my knowledge and power execute [my] office … without fear or favour, affection or ill will towards any man, and that I will uphold the Constitution and the laws. May God direct and sustain me.

This oath does not involve swearing on the bible and merely states that it is made “in the presence” of God, calling upon him to “direct and sustain” the judge. Nevertheless, many categories of citizen might reasonably object to taking such an oath. Article 34, however, provides that any judge who declines or neglects to take this specific oath “shall be deemed to have vacated his office.”

12 thoughts on “Oaths: at best embarrassing and at worst offensive

  1. I am a Garda, and often get funny looks for taking the affirmation.

    Once I was asked by a judge why. Since I’m an atheist it would self defeating and dishonest to myself and others if I was to make a solemn declaration using the one thing i know to be false

  2. That’s very interesting, and exactly the type of incident that shows why the oath should be abolished. I’m amazed that anyone would actually ask why you were taking the affirmation, even if only out of curiosity.

  3. I have long thought that the oath for witnesses could, and should, be replaced by a warning: “You are about to give evidence in a criminal trial. If you knowingly mislead the court you may be tried for perjury, and, if found guilty, sentenced to a term of imprisonment of up to [ten, fifteen] years. Do you understand this warning?” A similar warning could be given in criminal trials to jurors, interpreters, Gardaí and anybody else who is currently required to take an oath.

    One reason not to swear on the bible is that the bible itself forbids the making of oaths, in Matthew 5:34: “But I say to you, Do not take an oath at all, either by heaven, for it is the throne of God.” I presume that the reason for this is that a Christian is supposed to tell the truth all the time, and I understand that this is the reason that Quakers are not supposed to swear oaths.

    A judge should never ask a witness why he wishes to make the affirmation, as it might lead to a perception of bias. Non-religious people should not be assumed to be less truthful than religious people. Many practitioners suggest that the opposite is the case.

  4. I agree with all of that, particularly the warning proposal. The LRC seems to have been attached to retaining a form of oath for no better reason than tradition. The Chinese (at least in 1990) used a warning system like what you propose. It stands to reason.

  5. The warning proposal is a much more sensible and realistic concept. An awkward occasion I recently witnessed was when a Witness who was deaf was handed a bible to hold while swearing the oath. Thankfully the witness after an uncomfortable moment had the where with all to put the bible down and sign the oath but putting a nervous person in that position was foolish.

  6. It’s not only the religious aspect (although that IS the most offensive facet of the oath) but the stupid archaic language used. I bristle with irritation every time I hear a juror sworn in, using the anachronistic form “I swear that I will well and truly try the issues……..and a true verdict give according to the evidence”. Why not use simple, up-to-date English, ie: “and give a true verdict according to the evidence”? There’s also the inane tautology of “well” and “truly”, to which legal language is also addicted on a wider scale (“last will and testament”, “give, bequeath and demise”, etc). I think the stupidest wording of all is the hastily slapped-together, sloppily-drafted oath that interpreters take, where they swear to faithfully interpret “all matters and things”. The inanity and vagueness of having someone interpret a “thing” is exceptionally annoying. They are not interpreting either “matters” or “things”, but just translating from one language to another. Grrrr…..

  7. PS: the introduction of the warning outlined by Mark above in place of empty, mealy-mouthed “oaths” would be extremely effective IMHO. In relation to redrafting the wording required under Article 34, I don’t think the country has the headspace to deal with another referendum just now! but hopefully that idea will be floated at some stage in the future. And Barry: I too can’t believe a judge had the nerve to ask you that in open court! (or indeed anywhere else)

  8. Agreed on all counts, especially the tautology of language in the professions. So many contractual clauses are like banging your head against a legal dictionary. Also: the word “matter” is overused. DLA Piper have gone so far as to adopt the slogan: “Everything matters”.

  9. So, I’m an atheist, I’m aspiring to be a lawyer, and in court I would be expected to swear and abide by something that holds no sway or importance over me? Frankly, I find it distasteful, quite offensive, and silly considering the progression of modern day society. Do I not have a right to my religion (or lack thereof)? Isn’t it contradicting to my religion to have to swear an oath on a Christian ‘God’? And even if I were willing, how could the court trust my words as the truth?

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