Downloaded from Brill.Com09/26/2021 09:38:16AM Via Free Access

Home , Affirmation (law), Oaths Act 1978, Oath of allegiance, Oath of office

journal of law, religion and state 6 (2018) 195-212 brill.com/jlrs

The Rule of Law, Religious Authority, and Oaths of Office

Nicholas Aroney The University of Queensland [email protected]

Abstract

The rule of law requires political office holders to exercise their powers in accordance with the law. Most societies, however, rely not only on the moral obligation to obey the law but also require office holders to take a religious oath or solemn affirmation. The divine witness to the oath of office stands in as a guarantor of the political order but also looms above it. As such, the oath represents a paradox. It guarantees the performance of official duties while also subjecting them to external judgement. The oath thus encompasses the large question of the relationship between religious con- viction, personal fidelity, moral principle, and political power. It suggests that law and religion are as much intertwined as separated in today’s politics. By tracing the oath of office as a sacrament of power, much light can be shed on the relationship between law and religion in today’s liberal-democratic politics.

Keywords oath – office – religion – law – faith – power – secular

1 Introduction

The rule of law means, among other things, that those who hold political office are required to exercise their powers and perform their official duties in accordance with the law. Most liberal-democratic societies, however, do not rely only on the proposition that office holders are morally obligated or legally compelled to comply with the law. Typically, such societies also require office holders to take a religious oath, or at least a solemn affirmation, in which they publicly promise to fulfill their duties in accordance with the law.

196 Aroney

Oaths of office bind office holders to their duties by invoking divine or religious sanction for the performance of those duties. This divine witness to the oath appears to stand in as a guarantor of the political order, but also looms large as an authority that is separate from the political order, and in some sense stands above it. This opens the possibility for this “other sovereign” to make demands that supersede those of the political order and the duties incumbent upon the office holder. Oaths of office thus confront us with a paradox. They are meant to guarantee the performance of official duties, but at the same time they subject the content of these duties to external judgement. This paradox is embedded in the very nature of the oath of office, which captures within its short compass the large question of the relationship between religious convic- tion, personal fidelity, moral principle, and political power. By tracing the oath of office as a kind of sacrament of power, as Paolo Prodi once put it,1 much light can be shed on the nature of the contested relationship between law and religion in contemporary liberal-democratic states. This relationship is at times framed as an opposition between legal and religious authority, but the oath of office, at once both a legal and a religious instrument, suggests that the situation is more complex. The oath is required by law and supports the lawful exercise of political power, but it appeals to religious sanction as the guarantor of that law and power. It involves a personal commitment and invokes religious authority, but it does so in order to underwrite the authority of the political order—while also subjecting that authority to external judgement. The oath of office thus suggests that law and religion may be as much intertwined as they are separated in today’s politics.

2 The Rule of Law

We invest vast power in our political leaders. Why do we do so? Perhaps we see it as a matter of necessity, justice, or right order. But we also take comfort in the thought that our political leaders are constitutionally constrained. We rely on their democratic accountability, on the separation of powers, on the rule of law. Most constitutions divide power into three types—executive, legislative, and judicial—and invest these powers in distinct institutions. And it is fundamental to our liberal-democratic constitutions that these powers are

1 Paolo Prodi, Il Sacramento Del Potere: Il Giuramento Politico Nella Storia Costituzionale Dell’occidente (Mulino, 1992).

journal of law, religion andDownloaded state from 6 Brill.com09/26/2021 (2018) 195-212 09:38:16AM via free access

The Rule of Law, Religious Authority, and Oaths of Office 197 subject to the law. Our presidents and prime ministers may have considerable power, but their authority is limited. The law determines the outer limits of their capacities, and if they should act beyond those limits, the courts are on hand to declare, authoritatively, that their actions are void and of no effect. This is what makes our political systems a “government of laws,” rather than a “government of men.” But that is to understand our systems of government only on the surface of things. All these checks and balances depend upon something more fundamental than laws, institutions, and procedures. There is something more important that holds them all together. There is something deeper that ensures that each individual who holds public office is bound by the duties of that office. Our systems of government do not simply pit raw power against raw power. If that were really the case, political conflict would descend rapidly into physical conflict. But there are rules of the game, and the crux of our constitutional democracies does not lie in competition between the powerful, but in the willingness of the competitors to abide by the rules of the game. And here it is not enough to say, when office holders break the rules (as they will), that the courts are on hand to enforce the rules, for the judges are themselves partici- pants and office holders, and it is just as much a question whether a judge will perform his or her duties in accordance with the law, as whether a president, a prime minister, or a member of parliament will do so. The rule of law thus depends on more than the existence of law and the operation of independent courts. It also depends on the commitment of judges to exercise their powers in accordance with the law, and the corresponding willingness of politicians to accept their determinations. At the heart of the system is an active commitment to perform one’s duties of office and abide by the rules of the game. Merely compiling a set of laws and establishing a set of institutions—although valuable—is not enough. A government of laws still needs the government of men to put it into operation. To transform a government of men into a government of laws requires that men are prepared to act in accordance with the law. It is not enough to add one more layer of law or yet another checking institution to ensure that those who hold political power will exercise it in accordance with the law. Every additional institution, every layer of law always needs individuals to administer it, and the system will always depend upon the willingness and commitment of these individuals to perform their duties under the law. But what is it that constitutes, underwrites, and guarantees this active willingness and commitment to perform one’s official duties? That is the question. And the answer is: the oath of office.

journal of law, religion and state 6 (2018) 195-212Downloaded from Brill.com09/26/2021 09:38:16AM via free access

198 Aroney

3 A Strange Ubiquity, a Haunting Paradox

Oaths of office are strangely ubiquitous in modern liberal-democratic regimes.2 The constitutions of almost all such societies require their heads of state, their heads of government, their members of parliament, and their judges to take oaths or affirmations of office. At her coronation in 1953, Queen Elisabeth ii of England promised under oath to govern the peoples of the United Kingdom and her overseas possessions in accordance with their re- spective laws and customs; to cause law and justice, in mercy, to be executed in all her judgements; and to maintain the laws of God and the true profession of the gospel within the United Kingdom.3 Presidents and prime ministers of Israel are likewise required to pledge their loyalty or allegiance to the State of Israel and to faithfully carry out their official duties.4 Oaths of office are similarly required of presidents, members of congress, and justices of the United States,5 but when, at his inauguration in 2009, Barack Obama pronounced the words of the presidential oath in the wrong order, the oath was readminis- tered the next day “out of an abundance of caution.”6 If oaths of office are mere

2 As Denis Baranger has observed, “Dans l’histoire du droit occidental, le serment est partout présent”. Denis Baranger, “Le Serment Des Juges Dans Marbury v. Madison – Ou : Qu’est- Ce Qu’obéir À Une Constitution Écrite?”, in E. Zoller (ed.), Marbury v. Madison : 1803–2003 – Un Dialogue Franco-Américain (Dalloz, 2003), 51, 52. 3 Edward C. Ratcliff, The Coronation Service of Her Majesty Queen Elizabeth ii (Cambridge University Press, 1953), 3. 4 Basic Law: The President of the State (1964), s. 9; Basic Law: The Government (2001), s. 14. 5 u.s. Constitution, Art. ii, Sec. 1, cl. 8; Art. vi, cl. 3. 6 Marianne Constable, Our Word Is Our Bond: How Legal Speech Acts (Stanford University Press, 2014), 1–2, 5–8, 145. The President initially said “I, Barack Hussain Obama, do solemnly swear that I will execute the office of president of the United States faithfully. I will to the best of my ability, preserve, protect and defend the constitution of the United States. So help me God.” According to the u.s. Constitution, he should have said “… I will faithfully execute the office of president of the United States …” Most experts considered the first oath to have been effective legally, as well as morally, and religiously, but a concern with the precise words and legal technicalities, and an “abundance of caution,” led to the second swearing. Constable observed that, on close analysis, there is a difference in substance between the two promises. To “execute … faithfully” is to place emphasis on the object of the sentence, the office that is to be executed, whereas to “faithfully execute …” is to place emphasis on the subject of the sentence, the person who performs the office. She suggested that the second formula requires personal faithfulness on the part of the oath-taker, whereas the first requires only formal performance of the duties of office. Art. ii, Sec. 1, cl. 8 of the u.s. Constitution states: Before he enter on the execution of his office, he shall take the following oath or affirmation:– “I do solemnly swear (or affirm) that I will faithfully execute the office of President

journal of law, religion andDownloaded state from 6 Brill.com09/26/2021 (2018) 195-212 09:38:16AM via free access

The Rule of Law, Religious Authority, and Oaths of Office 199

formalities, they are nonetheless formalities that are pursued with utmost rigour.7 Oaths of office are required of the highest office holders in the state— kings and queens, presidents and governors, prime ministers and members of parliament—as well as of those involved in the routine administration of law. Justices of the High Court of Australia, for example, are required to affirm or swear that they will “do right to all manner of people according to law without fear or favour, affection or ill-will.”8 Since at least the 13th century, witnesses in English courts have been required to swear that the evidence they will give will be “the truth, the whole truth and nothing but the truth,”9 and in common-law countries jurors are required to swear or affirm that they will give a true ver- dict according to the evidence.10 Virtually every important public office in our societies is guaranteed by an oath or affirmation of office. The few countries in which oaths of office are not generally required are the exceptions that prove the rule.11 And yet herein lies a paradox. One side of the paradox is this: According to prevailing liberal theory, contemporary democracies seek to maintain confidence in public institutions by requiring office holders to suspend their personal religious convictions when exercising their public powers. According to John Rawls, Robert Audi, Stephen

of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.” The Twentieth Amendment states: The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin. 7 There is a profound issue that arises between the formal and the substantive, and the objective and the subjective meaning of oaths. For a discussion, see Izhak Englard, “The Stick of Rava, the Altar of St. Nicholas and the Chain of King David”, 52 Tarbiz: A Quarterly for Jewish Studies 591 (1983). 8 High Court of Australia Act 1979 (Cth), s 11, Schedule. 9 The Book of Oaths (1649), 204–207; David Mellinkoff, The Language of the Law (Little, Brown and Company, 1963), 172–173. See also Thomas Aquinas, Summa Theologiae (Fathers of the English Dominican Province trans, Burns & Oates, 1947–48), ii.ii, Art. 2. 10 Jury Act 1977 (nsw) s 72A; Jury Act 1995 (Qld) s 50. 11 As far as I can ascertain, the most prominent partial exceptions are France, Denmark, and Sweden, where oaths of office are less widely used than in most other countries. In Den- mark, for example, the coronation oath was abolished in 1849, but the monarch, members of parliament, and civil servants are still required to make a solemn declaration that they will adhere to the constitution: Constitution of Denmark (1953), ss 8, 27, 32.

journal of law, religion and state 6 (2018) 195-212Downloaded from Brill.com09/26/2021 09:38:16AM via free access

200 Aroney

Macedo, and many others, religious convictions have no decisively legitimate role in public life. All public power must be exercised ultimately on the basis of supposedly neutral, secular reasons.12 However, the other side of the paradox is this: Virtually all contemporary liberal-democratic societies bind office holders to their public duties by requiring them to take an oath or affirmation of office. And what makes this oath effective? It is the fact that it binds the conscience, and it does so by appealing to the deepest convictions of the office holder. So here, then, is the paradox: The oath binds office holders to their public duties by appealing to their deepest convictions. Thus, the oath uses the personal convictions of office holders to compel them to perform their duties even if this is contrary to their personal convictions. Or, at least, this is how the oath is meant to work in a liberal-democratic state established on secular principles. As a consequence, the use of the oath gives rise not only to a paradox but also to a tension and a potential instability in liberal-democratic regimes, because an oath appeals not only to the convictions of the office holder but also invokes divine authority as its guarantor. Oaths of office invoke divine or religious sanction.13 “I swear to tell the truth, the whole truth, and nothing but the truth, so help me God.” God is invoked as witness to the oath. The divine witness stands in as guarantor of the political order. The divine witness thus looms very large in the picture—as an authority that is separate from the political order, and in a sense stands above it. This opens the possibility that this “other sovereign” may make demands that supersede those of the political order.14 And this is why religious freedom is the first and most important human right: for religion has the potential to challenge the authority of the state like no other claim on human life. Religious freedom is the ultimate test of the willingness of the state to recognize human rights.

12 The most influential statement is in John Rawls, Political Liberalism (Columbia Univer- sity Press, Paperback ed, 1996). For a debate on the topic, see Robert Audi and Nicholas Wolterstorff, Religion in the Public Square (Rowman and Littlefield, 1997). 13 For this reason, Thomas Aquinas said that oaths were an act of latria or worship, the special reverence that is due to God alone. John Calvin similarly called oaths a “species of divine worship,” an act of “religious veneration.” See Aquinas, Summa Theologiae, ii–ii, Q89.4; Calvin, Institutes, 2.8.23. 14 See, e.g., the exchange between Chief Justice Beverley McLachlin, “Freedom of Religion and the Rule of Law: A Canadian Perspective”, and Jean Bethke Elshtain, “Response”, in Douglas Farrow (ed), Recognizing Religion in a Secular Society: Essays in Pluralism, Religion, and Public Policy (McGill-Queen’s University Press, 2004).

journal of law, religion andDownloaded state from 6 Brill.com09/26/2021 (2018) 195-212 09:38:16AM via free access

The Rule of Law, Religious Authority, and Oaths of Office 201

4 The Sacred and the Secular

Office holders in most liberal-democratic states have a choice whether to take a religious oath or a solemn affirmation. This is part of the apparent secularization of our law and politics. Note, however, that solemn affirmations were first introduced for faith-based reasons: to avoid injury to the religious consciences of Anabaptists, Quakers, Moravians, and other Christians.15 The solemn affirmation, in substituting for a religious oath, is now also available for those who profess to have no religion, but even in these cases the opportunity to do so exists to accommodate the convictions of those who profess to have no religious belief. And God is just as much a witness to the solemn affirmation of a religiously conscientious objector to the oath, as He is to the oath of a believer. For, as Carl Schmitt argued, all of our important modern concepts of the state are secularized theological doctrines.16 The solemn affirmation is such an institution. Although it does not invoke God explicitly, it performs the same function as a religious oath. It appeals to the convictions of the promisor, similarly to an oath. It also has the same structure as a religious oath. Typically, the only substantial difference is the substitution of the term “affirm” (or similar) for the term “swear,” and the deletion of the imprecation calling on God as witness and judge.17 The performative significance of the oath and the affirmation are much the same. The real difference lies in the perspective from which the efficacy of the undertaking is viewed. From a religious standpoint, both oaths and affirmations are made under the judgement of God. From a secular point of view, the oath and the affirmation have the same practical meaning and performative effect: the promisor is duty-bound, and the law is on hand to punish any breach of trust or act of perjury. As Jacques Derrida once observed, even when God “is not named,” that is, even “in the most ‘secular’ [laïque] pledge of commitment,” His presence is implicitly invoked.18 As Jean Bethke Elshtain maintained, there are only three possibilities: sovereignty is vested either in God, in the State or in the Self.19 How we understand the performative significance of oaths and affirmations depends on where we think sovereignty is ultimately located. The choice each person makes as to whether to take an oath or an affirmation reflects a particular view about the relative ordering of

15 E.g., Quakers Act 1695 7 & 8 Will. 3 c. 34 (uk). 16 Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty (George Schwab trans, University of Chicago Press, [1922] 2005), 36. 17 E.g., u.s. Constitution, Art. ii, Sec. 1, cl. 8; Oaths Act 1978 (uk) ss 1, 6. 18 Jacques Derrida, Acts of Religion (Routledge, 2002), 65. 19 Jean Bethke Elshtain, Sovereignty: God, State, and Self (Basic Books, 2008).

journal of law, religion and state 6 (2018) 195-212Downloaded from Brill.com09/26/2021 09:38:16AM via free access

202 Aroney our allegiances, but there is no one-to-one correspondence between taking an oath and religious faith, or between making an affirmation and an irreligious standpoint. Here it is worth noting that the oath, rather than the affirmation, remains the most popular option in many countries. In Australia, for example, since the late 1970s, a fairly consistent figure of around 70% of senators and 75% of members of the House of Representatives have chosen to take oaths rather than solemn affirmations.20 And even in that most secular of states, the Soviet Union, an oath was still found to be indispensable. However, it was an oath that invoked the judgement not of God but rather, as Stalin’s oath put it, the “stern punishment of Soviet law” and the “universal hatred and contempt of the working people.”21 In his Gulag Archipelago, Aleksandr Solzhenitsyn testi- fied eloquently to what the stern punishment of Soviet law looked like. In his account of Soviet justice, there was very little reference to the sworn testimony of witnesses under oath, and much more about endless interrogations, exqui- site tortures, and forced confessions.22 In a decent society, by contrast, the oath erects a protective barrier around the mind and conscience of the oath-taker. Consider what happens when witnesses give sworn evidence in court. None of us can be certain that they speak honestly. We cannot read their mind. The oath requires the witnesses to promise—as God is their witness—that they will tell the truth, the whole truth, and nothing but the truth. The state could resort, as the Soviets did, to unrelenting interrogations, psychological coercion, and even physical torture, but it does not. Why? It is not only because society abhors, or should abhor, such techniques. It is also because the state relies on the binding force of the oath. We cannot penetrate the mind and heart of the witnesses and judge their consciences. Rather, we leave that judgement to God. In this way, the oath casts up a barrier between the human judge and the conscience of the witness. Justin Clemens paints a dark picture of a society that has abandoned the oath:

20 Deirdre McKeow, Oaths and affirmations made by the executive and members of federal parliament since 1901 (Department of Parliamentary Services, Parliament of Australia, 2013), 7–8. 21 Joseph Stalin, “Oath of Allegiance of the Workers’ and Peasants’ Red Army” (23 February 1939), published in Pravda, 25 February 1939, reproduced in Joseph Stalin, Works (London: Red Star Press, 1978), Vol. 14, accessed at (2 September 2015). 22 Aleksandr Solzhenitsyn, The Gulag Archipelago 1918–1956, in T.P. Whitney (trans.) (New York: Harper & Row, 1974), Part i, Ch 3.

journal of law, religion andDownloaded state from 6 Brill.com09/26/2021 (2018) 195-212 09:38:16AM via free access

The Rule of Law, Religious Authority, and Oaths of Office 203

It is thus no wonder today, when the oath has fallen into desuetude, that torture is explicitly back on the agenda even for those democratic states which had prided themselves on their thoroughgoing rejection of it. Without any trust in oaths—indeed, having repudiated almost altogether their function and efficacy—our contemporary materialist polities can imagine no other recourse than direct psycho-physical incur- sions into bodies in a forlorn and terrifying attempt to extract “reliable” “information.”23

When an officially secular state requires office holders to take oaths to uphold the law, it cannot appeal to any sanction for the breach of the oath other than the force of the state itself. The newly-minted constitutional oath of office of China, for example, requires all civil servants to pledge their loyalty to the Con- stitution of the People’s Republic of China, and among others, to “accept the supervision of the people.”24 But when newly-elected representatives to the Hong Kong Legislative Council, Sixtus Baggio Leung Chung-hang and Yau Wai- ching, instead of swearing allegiance to the Hong Kong Special Administra- tive Region of the People’s Republic of China, pledged allegiance to the “Hong Kong nation,”25 the National People’s Congress Standing Committee soon re- sponded by determining that (a) “an oath-taker must take the oath sincerely and solemnly, and must accurately, completely and solemnly read out the oath prescribed by law,” (b) there would not be a second chance to retake the oath properly, and (c) those who breach the oath “shall bear legal responsibility.”26 The state does not stand idly by when its oaths and affirmations are openly subverted or ridiculed. Dietrich Bonhoeffer observed that there are two ways in which untruthful- ness can undermine an oath: “either it may actually insinuate itself into the oath ([i.e., through] perjury), or else disguise itself in the form of an oath by invoking some secular or divine power instead of the living God.”27 As Paolo

23 Justin Clemens, “The Sacrament of Language: An Archaeology of the Oath (Review)”, 19 Symplokē (2011), 414. 24 “Chinese officials pledge allegiance to Constitution: decision”, The National People’s Congress of the People’s Republic of China, 1 July 2015 (accessed 11 May 2017). 25 “At Hong Kong Swearing-In, Some Lawmakers Pepper Their Oath With Jabs”, The New York Times, 12 October 2016. 26 “China’s top body lays down law on Hong Kong oath-taking”, South China Morning Post, 8 November 2016. 27 Dietrich Bonhoeffer, The Cost of Discipleship (London: scm Press, 1948), 136. Bonhoeffer continued at 137: “the abolition of oaths is in itself no guarantee that the truth will be told,

journal of law, religion and state 6 (2018) 195-212Downloaded from Brill.com09/26/2021 09:38:16AM via free access

204 Aroney

Prodi argued, “the early modern state’s monopolisation of oaths represent[ed] a sacralisation of power in the first step towards a ‘secular oath.’”28 This suggests that although a religious oath may be a ready tool in the hands of the political authorities to enforce obedience, its complete secularization can also mark a shift toward totalitarianism.

5 Sacraments of Power

We must distinguish between oaths of office and oaths of allegiance. Histori- cally, oaths of allegiance have been powerful tools in the hands of rulers to require and enforce obedience. In England, they were used by Henry viii, Eliz- abeth, and James i to bolster their authority. Even at this early point in time, the oaths were, in an important sense, instruments of secularization: they se- cured the authority that Henry viii claimed over the Church of England and they demanded the personal loyalty of his subjects over any alternative loyal- ties to the Catholic Church or to the pope. Sir Thomas More and Bishop John Fisher were executed precisely because they refused to take Henry viii’s oath of succession, particularly as it required the oath-taker to abjure “any foreign potentate,” which was to repudiate the authority of the pope in favor of the king.29 Oaths of office tend to work in the opposite direction. Traditionally required of English kings since the time of Alfred, the coronation oath, as Margaret Kelly has shown, required the king to promise that justice would be admin- istered throughout the land and that he would govern in accordance with the law.30 The coronation oath played a crucial role in the argument of Henry de Bracton, in his mid-13th century De Legibus et Consuetudinibus Angliae, that although the king might not be “under any man,” he is nevertheless “under God and the law.”31 Applying this idea to new circumstances, more than three

indeed it may only lead to its concealment. No general rule can be laid down to enable us to decide where this is so, i.e., where an oath is desirable precisely in the interests of the truth; each case must be decided on its own merits.” 28 The quotation is from John Spurr, ‘A Profane History of Early Modern Oaths’ (2001) 11 Transactions of the Royal Historical Society 37, 40. 29 Jonathan Gray, Oaths and the English Reformation (Cambridge University Press, 2012), 62, 119–125. 30 Margaret Kelly, King and Crown: An Examination of the Legal Foundation of the British King (PhD Thesis, Macquarie University, 1998). 31 Henry De Bracton, De Legibus Et Consuetudinibus Angliae (on the Laws and Customs of England) (S.E. Thorne trans, Harvard University Press, [c 1235–1260] 1968–77), ii:33.

journal of law, religion andDownloaded state from 6 Brill.com09/26/2021 (2018) 195-212 09:38:16AM via free access

The Rule of Law, Religious Authority, and Oaths of Office 205 centuries later, Sir Edward Coke asserted in the Case of Pr ohibitions that the king in his own person had no authority to adjudge any case because, among other reasons, the judges are “sworn to execute justice according to law.”32 As Denis Baranger has observed, the oath legitimates disobedience to the monarch because it imposes on the judge a higher duty of fidelity to the law, in much the same way that Chief Justice John Marshall justified the institution of judicial review on the basis of the judge’s personal oath, and therefore conscientious duty, to support the u.s. Constitution.33 During the English Civil War, publicists of all persuasions found it necessary to address the question of the oath as a way of identifying the proper bounds of the authority of the king, the Parliament, and the people.34 James i, for example, maintained that only God could enforce the coronation oath against the king,35 and Philip Hunton argued that the people continue to owe obedience to the king under their oaths of subjection.36 But by contrast, Samuel Rutherford insisted that if the “oath betwixt the king and his people” is broken, “the party injured is loosed from the contract” and the people, operating through their inferior magistrates, may resist tyranny on the part of the king.37 The sentence of Oliver Cromwell’s High Court of Justice, which convicted Charles i of high treason, was premised on the “trust, oath, and office” commit- ted to the king—to be used, it was said, for the “good of the people” and for the “preservation of their liberties,” and not to erect in himself an “unlimit ed and tyrannical power to rule according to his will.”38 Although those involved in the trial and execution of the king were later themselves executed for regicide

32 Prohibitions Del Roy (1607), 12 Co. Rep. 63; 77 e.r. 1342. 33 Baranger, supra n. 2, 57, 59. Marbury v. Madison, 1 Cranch (5 u.s.) 137, 180. See also William W. Van Alstyne, “A Critical Guide to Marbury v. Madison”, 1 Duke Law Journal (1969), 25–26. 34 The views of Oliver Cromwell, Henry Ireton, John Locke, Thomas Hobbes, and Algernon Sidney are referenced in A S P Woodhouse (ed), Puritanism and Liberty: Being the Army Debates (1647–9) from the Clarke Manuscripts with Supplementary Documents (University of Chicago Press, 1951) 9ff, 24, 26–27, and in David Wootton (ed), Divine Right and Democ- racy: An Anthology of Political Writing in Stuart England (Penguin, 1986) 68, 440–442, 472. 35 King James i, The Trew Law of Free Monarchies (1598), in Wootton, supra n. 34, 104. 36 Philip Hunton, A Treatise of Monarchy (1643), Section iii, in ibid. 179. Anthony Ascham, like Thomas Hobbes, later argued that self-preservation is the most basic obligation, so that no oath could oblige the oath-taker to comply with his oath if that should preju- dice his own safety, and that the oath binds him no more than he intended to be bound when taking the oath: Anthony Ascham, Of the Confusions and Revolutions of Government (1649), Ch vii, (1), Ch viii, in ibid. 22, 351. See, similarly, Nicolo Machiavelli, The Prince, Ch. 18. 37 Samuel Rutherford, Lex Rex (1644), Question xiv, in Woodhouse, supra n. 22, 207–208. 38 T B Howell (ed), A Complete Collection of State Trials (T C Hansard, 1816), 1119.

journal of law, religion and state 6 (2018) 195-212Downloaded from Brill.com09/26/2021 09:38:16AM via free access

206 Aroney and the breach of their own duties of loyalty, the assertion of Parliament’s ultimate control over the terms of the coronation oath, the succession to the Crown, and the oath of allegiance were crucial to the establishment of its sovereignty as a result of the “glorious revolution” of 1688/9.39 Thus were established the constitutional assumptions of law and government inherited by the Anglo-Saxon world. The oath thus has a complex character. It confers power, it controls power, and it can also be a ready instrument of power. William Shakespeare well recognized this complexity, as the pivotal role of oaths, vows, and conscriptions in his many plays attests.40 “Now oaths are so frequent,” said John Selden, “they should be taken like pills, swallowed whole: if you chew them you will find them bitter: if you think of what you swear, ’twill hardly go down.”41 The ex officio oath, which required defendants to swear to answer questions even if their answers might incriminate them, was a particularly useful tool in the hands of the Star Chamber and High Commission in Stuart England. Brian Cummings has explained its usefulness in the following terms:

… the judge … was empowered to act ex officio (on the authority of his office), and to ask the accused to take an oath to answer truthfully and absolutely any question that was asked of him. There was thus no spe- cific bill of charges, no indictment providing the limits of allowable questioning … The odds against the accused in such circumstances were catastrophic. Unless he was himself expert in theology, he was virtually certain to convict himself of some heresy or other.42

39 Oaths of Allegiance and Supremacy Act 1688; Bill of Rights 1689; Coronation Oath Act 1689; Act of Settlement 1701. 40 John Kerrigan, “Shakespeare, Oaths and Vows”, 167 Proceedings of the British Academy: 2009 Lectures 61 (2011). 41 John Selden, Table Talk (London: Joseph White, 1786), 95 (“Oaths,” ix). 42 Brian Cummings, “Swearing in Public: More and Shakespeare”, 27(2) English Literary Renaissance 197, 207 (1997). Since its establishment, at the Fourth Lateran Council in 1215, replacing the trial by ordeal, the inquisitio ex officio had recognized the principle of Eccle- sia de occultis non iudicat (“the Church does not judge secret matters”). Although this protected a person who kept his opinions to himself, it did not protect a person who made his views public, such as the early English Lutheran, Thomas Bilney, whose condemna- tion was defended by Sir Thomas More in his Dialogue Concerning Heresies (1529). For an account that is sympathetic to More, see David R Oakley, “English Heresy Procedures in Thomas More’s Dialogue Concerning Heresies”, 3 Thomas More Studies 70 (2008).

journal of law, religion andDownloaded state from 6 Brill.com09/26/2021 (2018) 195-212 09:38:16AM via free access

The Rule of Law, Religious Authority, and Oaths of Office 207

William Tyndale, like many protestant reformers, objected to the use of state power to inquire into private beliefs and thoughts in this way. He argued that judgement ought to proceed only on the basis of evidence sworn by witnesses, and should not presume to inquire into men’s consciences.43 Similar episodes have occurred in more recent times. Under the Weimar Constitution of 1919, for example, members of the German military swore loyalty to the Reich Constitution and pledged obedience to the Reichspräsident. After Adolf Hilter’s appointment as Chancellor in 1933, however, the oath of loyalty was reframed so that it was addressed to the People and the Fatherland (Volk und Vaterland), and when the offices of Chancellor and President were merged in 1934, it was further transformed into an oath of personal loyalty to Hitler himself—as Leader of the German Empire and People (Führer des Deutschen Reiches und Volkes).44 This personal oath of loyalty to the Führer was required of civil servants and government officials, including university professors and church pastors. Karl Barth, the eminent professor of theology, then at the University of Bonn, refused to take the oath unless it was clearly understood to be subject to his prior responsibilities to God “as an Evangelical Christian.” Without this qualification, he argued, a promise of unlimited obedience would treat Hitler as if he were some kind of “a god incarnate.”45 Under the extreme pressure of the time, the Confessing Church issued a statement that because an oath involves an acknowledgment of God as divine witness, it necessarily excludes “any actions which would be contrary to God’s command attested in Holy Scripture.” On this understanding, Barth decided he could take the oath, but he was nevertheless dismissed from his post at the university for raising the issue in the first place, and was soon forced to leave the country.46 From his native Switzerland, he continued to question the loyalty oath as purporting to displace the unqualified loyalty owed by a Christian to the Lord Jesus Christ. Dietrich Bonhoeffer, who was later killed for his courageous support of the Jews, his opposition to Nazism, and his role in the attempt to assassinate Hitler, was not required to take the oath because he was already deemed an “illegal” pastor, but he attempted to convince his fellow pastors not to do so.47

43 William Tyndale, The Obedience of a Christian Man (William Gross, 2011 (1528)), 21. 44 John Perry, “Not Pledging as Liturgy: Lessons from Karl Barth and American Mennonites on Refusing National Oaths”, 76 Mennonite Quarterly Review 431 [text to note 18] (2002). 45 Ibid. [text to note 27]. 46 Ibid. [text to notes 18–25]. 47 Ferdinand Schlingensiepen, Dietrich Bonhoeffer 1906–1945: Martyr, Thinker, Man of Resis- tance (London: T&T International/Continuum, 2010), 212–213.

journal of law, religion and state 6 (2018) 195-212Downloaded from Brill.com09/26/2021 09:38:16AM via free access

208 Aroney

For Bonhoeffer , “no earthly obligation is absolutely binding,” and it was therefore illegitimate to take any oath that made an “unconditional demand” after the style of the Hitler oath.48

6 Responsibilities of Judgement

We see that oaths can cut both ways. They are both instruments of power and instruments of resistance. They are the means by which power is conferred and by which it is constrained. Sir Gerard Brennan, former Chief Justice of the High Court of Australia, took the judicial oath of office very seriously.49 At his swearing in as Chief Justice, he publicly reflected on the judicial oath and its consequences for the performance of his duties as a judge. He insisted that the ceremony was not an “empty ritual” or “formal procedure.” Rather it was “a public witnessing of the making of two solemn promises for the performance of which the oath taker will be responsible not only to this Court and this country but also to his Creator.” The oath that Sir Gerard took was two-fold. It required him to swear allegiance to the Queen and to administer justice according to law. According to him, the first of the two promises was a “commitment of loyalty to Her Majesty the Queen her heirs and successors according to law.”50 His Honour’s gloss, however, was that this involves a commitment to the Head of State “under the Constitution”—a Constitution that can be amended by the people; and so the oath is ultimately “a promise … of fidelity and service to the Australian people.” The second undertaking, he further observ ed, was to “do right to all manner of people according to law without fear or favour, affection or ill-will.” Sir Gerard explained that this requires impartiality and independence in the administration of justice. “Justice,” he said, “is not done in public rallies. Nor can it be done by opinion polls or in the comment or correspondence columns of the journals.” Rather, the judge must decide the case “in the lonely room of his or her own conscience in accordance with the law.” In his many distinguished judgments we can see the Chief Justice giving expression to this tension between the duty to do justice and the duty to do so according to law. His leading judgment in the famous Mabo case, which

48 Bonhoeffer, supra n. 27, 138. 49 Brennan wrote the entry on the judicial oath in A.R. Blackshield, M. Coper, and G. Williams (eds.), The Oxford Companion to the High Court of Australia (Oxford Univer- sity Press, 2001). 50 Sir Gerard Brennan, “Speech on Swearing in as a Chief Justice” (1995) 183 CLR ix.

journal of law, religion andDownloaded state from 6 Brill.com09/26/2021 (2018) 195-212 09:38:16AM via free access

The Rule of Law, Religious Authority, and Oaths of Office 209 recognized native title for Australia’s indigenous peoples, is surely an example. In that case he observed:

In discharging its duty to declare the common law of Australia, this Court is not free to adopt rules that accord with contemporary notions of justice and human rights if their adoption would fracture the skeleton of principle which gives the body of our law its shape and internal consistency … The peace and order of Australian society is built on the legal system. It can be modified to bring it into conformity with contemporary notions of justice and human rights, but it cannot be destroyed … Whenever such a question arises, it is necessary to assess whether the particular rule is an essential doctrine of our legal system and whether, if the rule were to be overturned, the disturbance to be apprehended would be disproportion- ate to the benefit flowing from the overturning.51

Likewise, in a line of cases in which the High Court found that the Australian Constitution contained an implied guarantee of freedom of political commu- nication, Sir Gerard insisted that any such implication must be securely found- ed in the written text of the Constitution.52 His Honour observed:

In the interpretation of the Constitution, judicial policy has no role to play. The Court, owing its existence and its jurisdiction ultimately to the Constitution, can do no more than interpret and apply its text, uncover- ing implications where they exist. The Court has no jurisdiction to fill in what might be thought to be lacunae left by the Constitution … Under the Constitution, this Court does not have nor can it be given nor, a for- tiori, can it assume a power to attribute to the Constitution an operation which is not required by its text construed in the light of its history …, the common law and the circumstances or subject matter to which the text applies. The notion of ‘developing’ the law of the Constitution is inconsis- tent with the judicial power it confers. Clearly the Court cannot change the Constitution, nor can it convert constitutional silence into a legal rule with constitutional force. I do not mean that, in changing conditions, the

51 Mabo v Queensland (No. 2) (1992) 175 clr 1, 29–30. Note also the dissenting judgement in which his Honour joined in Wik Peoples v Queensland (1996) 187 clr 1. The dissenting judges held that the issue of a pastoral lease had extinguished native title over land affected by the lease. 52 Nationwide News Pty Ltd v Wills (1992) 177 clr 1; Australian Capital Television Pty Ltd v Commonwealth (1992) 177 clr 106.

journal of law, religion and state 6 (2018) 195-212Downloaded from Brill.com09/26/2021 09:38:16AM via free access

210 Aroney

Constitution does not have a changing effect …, that the denotation of its terms does not change …, that the course of judicial interpretation does not reveal that a past constitutional doctrine is untenable … or that new situations do not reveal new doctrines inherent in the constitutional text … The Constitution speaks continually to the present and it operates in and upon contemporary conditions … But, in the interpretation of the Constitution, judicial policy provides no leeway for judgment as it does when the Court is developing the common law. Nor can the Court find implications in the text by referring to extrinsic sources … The answers to these questions in no way depend on what the Court perceives to be desirable policy. The task is to expound the text of the Constitution: to ascertain what is implied in the text and to declare whether and in what manner the implication operates.53

In these passages, Brennan cj’s commitment to justice and the rule of law is powerfully expressed. It is difficult to resist the conclusion that this derived fundamentally from his understanding that the judicial oath required him to do justice according to law: nothing more, nothing less.

7 Conclusions

There is no getting away from the fact that an oath is an act of religion. For the Torah had thundered: “Thou shalt fear the Lord thy God, and serve him, and shalt swear by his name.”54 And, as the New Testament book of Hebrews puts it, “men swear by one greater than themselves, and with them an oath given as confirmation is an end of every dispute.”55 The Qur’an also warns: “those who exchange the covenant of Allah and their oaths for a small price will have no share in the Hereafter, and Allah will not speak to them or look at them on the Day of Resurrection, nor will He purify them; and they will have a painful punishment.”56 And yet Jesus Christ seemed to counter all this, or at least the abuse of oaths, when he said: “do not swear at all … but let your ‘Yes’ be ‘Yes,’ and your ‘No,’ ‘No.’”57

53 Theophanous v Commonwealth (2006) 225 clr 101, 43–4. 54 Deuteronomy 6:13 (av). See also Deuteronomy 10:20. 55 Hebrews 6:16 (nas). 56 Sura 3:77 (sit). 57 Matthew 5:33–37 (nkjv). See also Hosea 10:4; Ecclesiastes 9:2; James 5:12. Several church fathers, such as Justyn Martyr, Tertullian, and Clement of Alexandria, seem to have

journal of law, religion andDownloaded state from 6 Brill.com09/26/2021 (2018) 195-212 09:38:16AM via free access

The Rule of Law, Religious Authority, and Oaths of Office 211

Oaths of office come to us as vestiges, it seems, of a previous age. They be- long to a time when duty was prior to right, and religious sanction was taken for granted; an era when the whole of morality turned on the discharge of one’s moral duties, and the very foundation of justice was, as Cicero put it, “truth and fidelity to promises and agreements.”58 But despite the powerful argu- ments made against oaths—not least by such imposing figures as Hobbes,59 Voltaire,60 Mendelssohn,61 Kant,62 and Bentham63—oaths and affirmations remain a strangely ubiquitous presence in our public law and government administration. Indeed, Hobbes may be (negatively) instructive here, for he saw the power of oaths to bind consciences, to enforce obedience, and to justify revolution. And this is precisely why, as Haig Patapan has argued, Hobbes went to so much trouble to assert the authority of civil power over religion, and why he argued that the power of the civil leviathan must be without constitutional limita- tion. Fear is a great motivator, he realized, and he argued that a total consoli- dation of all military and police power in the civil authority was necessary to keep the consciences of subjects under control.64 There is a disturbing parallel

understood this to be an outright rejection of oaths, although others, like Augustine, not- ed that the use of oaths may still be legitimate in appropriate circumstances, relying on texts such as Hebrews 6:13, 17; Revelation 10:5–6; Matthew 26:63; Romans 1:9; ii Corinthians 1:23; i Thessalonians 2:10. 58 Cicero, De Officiis, 1.4, 1.23, but see 1.31. Cicero observed (at 1.4): “For no phase of life, whether public or private, whether in business or in the home, whether one is working on what concerns oneself alone or dealing with another, can be without its moral duty; on the discharge of such duties depends all that is morally right, and on their neglect all that is morally wrong in life.” 59 Thomas Hobbes, Leviathan (Clarendon Press, 1929) 1.14 (p. 109). 60 Voltaire, ‘Letter iv – On the Quakers’, in Letters on the English (New York: P.F. Collier & Son Company, 1909–14). 61 Moses Mendelsohn, Jerusalem: A Treatise on Ecclesiastical Authority and Judaism (Moses Samuels trans, Longman, Orme, Brown and Longmans, 1838), 51–54. 62 Immanuel Kant, Religion Within the Boundaries of Mere Reason (Cambridge Uni- versity Press, 1998), 6.159 (p. 157) (note); Immanuel Kant, “On the Miscarriage of All Philosophical Trials in Theodicy”, in Religion Within the Boundaries of Mere Rea- son and Other Writings (Cambridge University Press, 1998), 8.269 (p. 28); Metaphys- ics of Morals, in Practical Philosophy (Cambridge University Press, 1996), §40, 6.303–4 (p. 448). 63 Jeremy Bentham, Swear not at all (London: St Paul’s Churchyard, 1817), 3–5. 64 Haig Patapan, “Politics of Immortality: Hobbes on ‘Humane and Divine Politique’”, 18 Political Theology 1 (2016).

journal of law, religion and state 6 (2018) 195-212Downloaded from Brill.com09/26/2021 09:38:16AM via free access

212 Aroney

between Hobbes’s program and the awful totalitarianisms of the 20th and 21st centuries.65 Recognizing the significance of oaths enables us to think more deeply about the duties of public office and the rule of law. By requiring office holders to make a personal commitment to perform their duties according to law, oaths bring the private and the public into the closest of associations. But an oath does nothing to add to the legally enforceable duties of office unless it pen- etrates to and takes hold of the personal convictions of the office-holder as a private citizen, and ties them to the political duties of the public office holder. Oaths are religious acts—even solemn affirmations are religious acts—in the deep sense that they bind office holders to their duties. They are religious in the sense suggested by the original meaning of the term religio, which, according to no less a figure than St Augustine, is associated with the notion of binding and being bound by one’s words and affirmations.66 Oaths and affirmations of office are as much religious acts, in this sense, for those who profess religious belief as they are for those who do not. They suggest, therefore, that law and religion are as much intertwined as they are separated in today’s secular politics. Oaths of office and oaths of allegiance have long marked the ebb and flo of state authority.67 They have determined its metes and bounds,68 and continue to do so. This is because they are nothing less than the ultimate existential foundation of the rule of law.

65 The u.s. Commission on International Religious Freedom, Annual Report (2016), identi- fied 17 countries “whose government engages in or tolerates particularly severe violations of religious freedom that are systematic, ongoing and egregious.” According to the report, the North Korean regime “believes that its own absolute ideology sustains all of North Korean society—politically, economically, and morally—and that alternative beliefs, including religion, pose a threat”, ibid., 51. 66 But see Sarah F. Hoyt, “The Etymology of Religion”, 32(2) Journal of the American Oriental Society 126 (1912), 126. 67 Conal Condren, Argument and Authority in Early Modern England: The Presupposition of Oaths and Offices (Cambridge University Press, 2006), 6, 257–260. 68 Ibid., 259.

journal of law, religion andDownloaded state from 6 Brill.com09/26/2021 (2018) 195-212 09:38:16AM via free access