GIURAMENTO

OATH. — I. CONCEPT.

An oath is the invocation of God as witness to the truth of one’s statement and to the actual performance of an act or the occurrence of a future event. An oath thus presupposes the conviction that God exists and that He knows the matter for which He is called as witness; as far as the one swearing is concerned, he desires and intends that God attest what he affirms by oath. From the fact that, in this primary sense, an oath presupposes belief in the existence and omniscience of God, it follows immediately that an oath cannot be taken by one who does not believe; and from the fact that an oath consists in calling God as witness, it also follows that it is not sufficient, for a true and proper oath, merely to affirm that God knows all things, that God knows our thoughts, etc.

Sometimes, however, the term “oath” is used to denote only a particularly solemn and binding form of affirmation: a manner of asserting that is especially conscious due to the psychological preparation it entails, especially solemn in the manner in which it is made, especially worthy of belief, and especially binding (especially when it concerns an act or event to be performed).

The existence of these two concepts of oath, and in particular of the second, is clearly evident from Holy Scripture, legislation, and common usage. In Holy Scripture, it is often said that God swears (e.g., Gen. 26:3; Ex. 6:8; 13:5; 33:1; Num. 32:11; Deut. 31:20; etc.); yet it cannot be admitted that God swears in the first sense indicated. As for legislation, it suffices to recall the law of June 30, 1876, no. 3184, by which the oath was stripped of its essentially religious character that it had hitherto possessed, giving it instead the character of a solemn civil act; the religious aspect may be retained by those who wish, but it is no longer essential to the act of swearing. As for common usage, it suffices to consider the meaning that many—especially today—attribute to it: for example, atheists, the indifferent, and many officials, among others.

II. MORAL ASPECT.

Here we are concerned primarily with the first sense of oath and chiefly from a moral perspective. To better grasp the elements of the solution, we first examine the forms in which oaths appear and the motives from which they arise.

First, the invocation of God can be made to attest the truth of a statement or the actual performance of an act or event. In the first case, we have an assertory oath (e.g., “I swear that I am innocent”); in the second, a so-called promissory oath (e.g., “I swear that I will faithfully observe the constitution”). The latter includes the invocation of God that, at the moment the oath is taken, the swearer truly intends to do what he promises; it also includes the invocation of God to bear witness that such an intention will persist in the future and thus that the promised act or event will actually occur. It thus amounts to a twofold divine testimony: one concerning a will that currently exists, and another concerning a will that will endure in the future.

A special form of oath is the imprecatory or execratory oath. This consists in invoking God as witness to the truth of what is said or promised and, at the same time, as the punisher of the swearer (or of his loved ones) should he swear falsely. It thus presupposes, in addition to the belief that God exists and knows the matter for which He is called as witness, the conviction that God is offended by false testimony and will punish perjury.

Each of these oaths can be made with words (verbal oath: e.g., “I swear that I am innocent”), with gestures (real oath: e.g., raising the hand to heaven, touching the Cross or the Gospels), or with both words and gestures together (mixed oath).

As for the rite, an oath can be simple or solemn, depending on whether it is taken without particular ceremonies or with a special apparatus (e.g., lighted candles, a crucifix, upon the entrails of a sacrificial victim, etc.).

Finally, the invocation of God can be explicit or implicit. The latter form includes oaths made by appealing to the life of the person addressed (e.g., Gen. 42:15; 1 Kgs. 1:26; 17:55; 20:3; etc.), to one’s own head (Matt. 5:36), to the earth (Matt. 5:35; Acts 1:5, 12), to the heaven (Matt. 5:34; 23:22; Acts 1:5, 12), to the temple (Matt. 23:16), to the altar or offerings (Matt. 23:16, 18), to Jerusalem, etc., all of which are frequently mentioned in Scripture. Such forms arose from the Hebrew concern not to pronounce the name of God explicitly.

Turning now to the question of the root from which the oath springs, it can be said that it arises from the desire to give one’s affirmations absolute value. Man indeed has the faculty to express his ideas through particular oral or written signs: he can communicate to others, by means of freely fixed sounds or freely chosen signs (spoken and written words), the judgments he has formed. Yet such communication is by no means necessary. Each of us can always prevent it by concealing our thoughts; moreover, each of us has the possibility of communicating a content different from what is actually in our mind—that is, we can lie. This possibility remains even with the most solemn forms of affirmation, that is, with the oath in the second sense indicated. Nor does the testimony of others provide much help. Apart from the consideration that it is very difficult for others to penetrate our thoughts for the reasons just mentioned, there remains the possibility that they too may lie. And so we are back to square one. Absolute certainty can be obtained only through the testimony of One who cannot in any way deceive or be deceived, who knows things as they are and states them as He knows them. This One can only be God. And it is to Him that the one who swears appeals; by swearing, he seems to say: “God, who knows all things and therefore knows this matter which I affirm, God, who never lies, even in the case under consideration, attests that things are as I say; consequently, they are truly as I say.”

All this is even more evident in the promissory oath. Here, indeed, there is also the affirmation that an act or event will occur in the future; yet such an affirmation cannot be known with absolute certainty either by the individual making it (since he cannot know with absolute certainty what he will want or do in the future) or by other men, who can at most infer from a study of the individual’s character and tendencies what he will probably want or do, but not what he will certainly want or do. Here again, it is necessary to turn once more to God: He alone knows the free future; He alone, therefore, can provide testimony of absolute value.

From what has been said, several conclusions follow immediately:

1) Oaths always arise from the desire to provide others with a special proof of the truth of one’s assertions; in particular, a religious oath is born of the desire to provide others with an absolute guarantee of the truth of one’s assertions.

2) Consequently, an oath presupposes a certain insufficiency and some distrust in the ability of human beings to furnish a fully reliable proof of the truth of their assertions. It seeks to remedy this insufficiency through a particularly solemn form of affirmation or, even more, through the invocation of divine testimony.

Hence:

3) An oath always includes, beyond the will to invoke God as witness, the external expression of that will. A purely interior oath would not be conceivable; what is conceivable, however, is a purely external invocation (a false oath).

4) A religious oath includes the affirmation that God possesses a knowledge and veracity superior to that of any human being. From this perspective, it is a form of adoration. Yet this superior divine knowledge and veracity is not posited for its own sake, as an object to be recognized and thereby to render homage to God, but as a means to provide others with absolute certainty regarding the truth of our assertions or the seriousness and efficacy of our promises.

The question arises whether an act of this kind is permissible. Is it lawful to use divine science and veracity as a means to compensate for our insufficiency?

To this question, some have answered in the negative, appealing even to Holy Scripture, especially Mt 5:33-37 (“You have heard that it was said to the ancients: ‘You shall not swear falsely, but you shall fulfill your oaths to the Lord.’ But I say to you, do not swear at all: neither by heaven, for it is the throne of God, nor by the earth, for it is the footstool of His feet, nor by Jerusalem, for it is the city of the great King. Nor shall you swear by your head, for you cannot make one hair white or black. But let your speech be ‘Yes, yes’ or ‘No, no’; for whatever is more than these is from evil”) and Jas 5:12 (where the same concept is repeated). Among those who held this view were the Waldensians, the Beghards and the Beguines, the Fraticelli, Wycliffe, the Hussites, the Anabaptists, the Mennonites, the Quakers, Kant, and Fichte.

To these objections, it is replied that in certain cases there exists a necessity to acquire absolute or nearly absolute certainty regarding the truth of an assertion or the reality of a promise. Consider, for example, cases in which an accusation carries the penalty of death or life imprisonment (i.e., the end of a life) and in which the truth or falsity of the charge can be established only through the affirmation of the accused or a witness. Consider also the case in which a people entrusts to a man the custody of the constitution, the defense of the fatherland, etc. In such cases, it is not clear why one should not have the right to demand absolute proof of the truth of his words. On the other hand, such absolute proof is possible only through a religious oath; consequently, it is not clear why a religious oath should not be legitimate.

To this is added the entire tenor of Scripture. It speaks of oaths very frequently; at times it even reports their very formulas (cf. Num 33:10; Deut 1:34; 2 Kgs 19:8; Jer 22:5), all without ever indicating or even hinting that such an act is morally illicit. Indeed, more than once Scripture advises or commands that one swear (cf., e.g., Num 5:19; 30:3-16; Deut 6:13). As for the passage cited above from St. Matthew and that of St. James which repeats it, in these Jesus intends to exclude the abuse and frequency of oaths and implies that perfection would consist in never swearing at all. His disciples should swear with such sincerity that they are believed on their word alone, without recourse to any kind of oath, neither “by heaven” nor “by earth” nor “by Jerusalem.” Otherwise, it would be difficult to understand how, shortly thereafter, a disciple of the fidelity of St. Paul could resort to oaths with notable frequency (cf. Rom 1:9; 2 Cor 1:23; Gal 1:20; Phil 1:8, etc.). It may therefore be concluded that an oath is lawful; but it must immediately be added that it cannot be a frequent act, much less a habitual one. It arises from a certain distrust of human assertions and from the desire to have a special, indeed absolute, proof of their truth. It is therefore, by its nature, an exceptional act that cannot be repeated too often without losing its efficacy. On these concepts, cf. also Eccl 23:9-14; 27:15.

Pursuing these considerations and following the indication of Jer 4:2 (“You shall swear: ‘As the Lord lives,’ in truth and in judgment and in justice”), Catholic moral theology has specified the conditions of the morality of an oath as follows:

First, there is the condition of truth: that which one invokes divine testimony for must correspond to reality, at least insofar as it can be known; that is, it must correspond to what one has in mind. Otherwise, one would make God a false witness.

Second, there is the condition of justice: namely, that the assertion may be made. Not everything that is true may always and by everyone be spoken (e.g., sins confessed to a priest may not licitly be revealed by the confessor). It is not moral to invoke God’s authority to give validity to an assertion that the one swearing cannot make without violating the moral order. If, however, this were to occur, the oath would not hold (can. 1318, §2).

Third, there is the condition of judgment: namely, that there exists a true necessity to swear. One cannot therefore approve those who swear continually without any necessity, for trifles or futilities. The gravity of the fault depends on the frequency with which one swears and on the pettiness of the motives for which one does so.

When applied to a promissory oath, it must be that the one swearing truly intends to do what he promises, that the thing promised is physically and morally possible (i.e., something that he can do without requiring special divine assistance and without offending the moral order), and that there is a motive for confirming his resolve with an oath.

A further question that arises concerns the obligations that flow from a valid and lawful oath. The problem practically arises only for a promissory oath, since an assertory oath gives rise to no new obligation. The matter is different, however, for a promissory oath, in which God is called as witness to the actual fulfillment of the act. For this, one assumes the obligation to do what one has promised, also out of regard for the divine testimony (in this sense, can. 1317, §1 states: “Whoever freely swears to do something is bound by a special religious obligation to fulfill what he has confirmed by oath”). This obligation, however, cannot exceed the scope of what was assumed in the promise itself (can. 1318, §1); consequently, the oath is interpreted within this scope and holds as long as the object is possible and good, but ceases when the object ceases to be possible and honest or undergoes a substantial change (can. 1319, §2).

A vow also ceases for an internal cause when the final cause or the condition under which it was made is lacking (can. 1319, 3). From an external source, it can be remitted by the person in whose favor it was made, or through irritation, commutation, or condemnation (can. 1319, 4) by those who enjoy the same powers regarding the vow (v.), unless the dispensation would involve injury to the rights of third parties, in which case only the Holy See can dispense in view of the interests and scruples of the Church (can. 1320). It can also be remitted by the competent ecclesiastical superior in the case of an external vow made under violence or grave fear (can. 1317, 2). The binding obligation, which creates the vow and arises from the virtue of religion (can. 1317, 1) out of reverence for the name of God, in the internal forum never binds beyond the intention of the one taking the vow, and thus must be interpreted according to that intention; but if the person acts deceitfully, in the external forum the interpretation of the vow is entrusted by ecclesiastical law to the person in whose favor it was made (can. 1321), and moreover the one taking the vow, in both forums, is bound to make restitution for any damages. The obligation to observe a promissory oath and to be truthful in an assertory oath is in itself grave; however, many theologians admit the possibility of slight matter. In canon law, the obligation of the vow is personal and cannot be fulfilled by means of a proxy (can. 1316, 2). Its violation is punished with special penalties (cf. can. 1743, 3; 1757, 2, 1; 1795, 2; 2323; V. PERJURY).

Thus, those who are bound to take a vow before beginning the exercise of their office or duty include: cardinals (can. 234), bishops (can. 332 § 2), members of the diocesan curia (can. 364 § 2, n. 1), canons in chapters (can. 395 § 4), diocesan consultors (can. 425 § 2), religious who must participate in the election of their superior (can. 506 § 1), administrators of ecclesiastical goods (can. 1520 § 4 and 1522 n. 1), judges and other officials of tribunals (can. 1621), those who take part in beatification or canonization processes (can. 2037 and 2047), clerics who must be incardinated in a diocese different from their own (can. 117 n. 3), and in certain cases, those to be ordained (can. 956 and 994; the one foreseen by can. 994, however, is an assertory oath), etc.

Of particular juridical importance is the oath in the process, which can be either a means of proof in itself or a supplementary element of a deposition.

1. As a means of proof

Judicial oaths, in turn, are distinguished into voluntary or decisive, which is usually imposed by one party upon the other, and necessary, which is imposed by the judge ex officio. This latter type of oath can be either supplementary, which aims to supplement the results of other evidence already gathered in the process, or estimative, which occurs when the judge orders the injured party to assert by oath the amount of the damage suffered (when the case concerns compensation).

Specifically regarding the supplementary oath, the following must be considered: a) it is widely used in cases concerning the civil or religious status of a person; b) it cannot be imposed in cases involving facts or rights of particular importance, nor in any criminal case (can. 1829-31).

As for the estimative oath, the following two fundamental rules must be kept in mind: a) it must first be established (in order for the estimative oath to be imposed by the judge on the other party) that the right to compensation for damages has already been judicially ascertained and that the amount of such damages cannot be determined with certainty by other means; b) the estimative oath cannot be referred, since it is reserved for the party that has suffered the damage and its claims (can. 1832-33).

Finally, the decisive oath, which is by far the most commonly used of the three types of judicial oaths, can only be imposed if the conditions established by can. 1835 are met, namely: a) the matter must be one for which cession or settlement is permitted, so that the oath in question cannot be imposed in criminal cases, cases of public interest (and in particular matrimonial cases), and cases in general where the subject of contention involves goods whose alienation is not permitted without the authorization of the competent ecclesiastical authority; b) the object of the oath must not be of necessity great importance or value; c) the taking of the oath must occur between parties who, by law, have the capacity to dispose of their rights, thus excluding minors, the interdicted, and their representatives who do not have special authorization; d) the oath must pertain either to simple notices of facts or to facts that are proper to the person to whom the oath is imposed.

In general, the imposition of a judicial oath is established by a decree of the judge, to be notified to the party upon whom the oath is imposed, indicating the term within which the party must make known which of the attitudes permitted by law it intends to assume. Indeed, the party upon whom the oath is imposed may simply accept it, in which case it is as if the party were ready to swear to the notified form. The party may also refuse to swear (and failure to appear on the day set for the taking of the oath is equivalent to refusal, unless a legitimate impediment is demonstrated). If the refusal is justified, the imposition of the oath loses all procedural efficacy; conversely, if the refusal is not justified, the judge will evaluate, with prudent discretion, whether it should be equated with a confession.

Lastly, the oath can be referred by the party upon whom it is imposed to the party who imposed it (with the exception of the estimative oath). In this case, the referral of the oath determines, as is obvious, a reversal of positions, inasmuch as the burden and advantage of the oath pass from the referee to the referrer; and since the referral amounts to a new and definitive imposition, it is subject to the same conditions established for its imposition. By virtue of the referral, the referrer is bound to take the oath, provided that there are no legitimate grounds for refusal (cf. can. 1835 and 1836 § 5). And if the referrer refuses, the case is decided against him (can. 1836 § 4), inasmuch as he loses the claim or the exception.

As for the proper effects of the judicial estimate (g. estimatorio), it binds the judge only when the opposing party has accepted its outcome or when the judge himself does not consider the latter excessive, in which case the judge may, however, reduce the measure of damages to more equitable limits.

Finally, with regard to the supplementary estimate (g. suppletorio), it should be noted that its performance does not, in itself, preclude the allegation of other evidence (can. 1861 § 1), given the greater probative possibilities that the supplementary estimate offers to the judge, enabling him to form his own conviction on the basis of the results of the estimate itself, duly examined and evaluated in comparison with those of the means of proof previously adduced.

Identical norms have been issued (and will come into force on 6 Jan. 1951) for the Eastern Church (cf. motu proprio Sollicitudinem nostram, 6 Jan. 1950, cann. 353-60 and 404 n. 5, in AAS, 42 [1950], pp. 77-79 and 88).

2. G. to confirm a judicial deposition. — As a supplementary element to a witness’s deposition or to a party’s deposition, the g. may be of three kinds. First, there is the preventive g. or de veritate dicenda, which is a promissory oath, though not strictly necessary in cases involving merely private rights; it is moreover forbidden to defer such an oath to the accused in criminal proceedings (can. 1744, 1746, 1758, 1767, 2037 § 3, 2145 § 2).

Furthermore, in the judicial practice of the Church, the g. de veritate dictorum is usually required in spiritual causes or in criminal causes. This oath is assertory and may relate to the rendering of testimony either in whole or in part (can. 1768, 1824 § 3, 2037 § 3).

Lastly, there is another type of promissory oath, namely the g. de secreto servando, by which the judge has the faculty to bind the party or the witness to secrecy until the publication of the acts or, if there are dangers such as those referred to in can. 1623 § 3, without any time limit (cf. can. 1769, 1944 § 1, 2037).

The above-mentioned oaths may also be deferred to experts; and in any case, before beginning his duties, the expert must take the g. de munere fideliter implendo (can. 1797).

For Eastern canon law, the aforementioned motu proprio establishes (at cann. 266, 268, 280, 289-291, 320) norms identical to those mentioned above for Latin canon law; only the discipline of the oaths of the parties is more complete.